United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
a habeas action brought under 28 U.S.C. § 2241 by
Petitioner Omar M., asking the Court to release him from
immigration detention or to order a bond hearing to determine
if he is a danger to the public or a flight risk. In a Report
and Recommendation ("R&R") dated May 6, 2019,
United States Magistrate Judge Elizabeth Cowan Wright
recommended that an immigration judge ("IJ")
provide Petitioner with a bond hearing. ECF No. 14. The
Federal Respondents in this proceeding object to the R&R.
ECF No. 15. Based on a de novo review of the R&R,
see 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b),
the Court overrules the Federal Respondents' objections,
adopts the R&R, and requires that Petitioner be provided
with a bond hearing before an IJ within thirty days of this
factual background for the above-entitled matter is set forth
in the R&R and is incorporated by reference for purposes
of Federal Respondents' objections. In short, this case
involves Petitioner's petition for a Writ of Habeas
Corpus seeking release from custody pending removal. In the
R&R, the Magistrate Judge concluded that Petitioner,
having been detained for nearly two years despite having been
granted withholding of removal on September 28, 2018, was
entitled to a bond hearing to determine whether his release
would pose a risk of flight or danger to the community. In
reaching this conclusion, the R&R carefully analyzed the
state of the law on pre-removal detention pursuant to 8
U.S.C. § 1226(c).
Federal Respondents assert two main objections. First, the
Federal Respondents submit that the proper due-process
analysis comes directly from the Supreme Court's decision
in Demore v. Kim, 538 U.S. 510, 518-20 (2003), which
recognized and upheld immigration detention under §
1226(c) as serving Congress' purposes of removing
criminal aliens from the country, protecting the community,
and ensuring that aliens show up for removal proceedings.
They argue that Petitioner's continued detention serves
the purpose of § 1226 because the purpose of preventing
flight is served as long as deportable criminal aliens, like
Petitioner, are held until their removal proceedings have
this argument fails to recognize that the Supreme Court
limited its Demore holding to a brief period of
detention under § 1226(c). See Muse v.
Sessions, No. 18-CV-0054, 2018 WL 4466052, at *3 (D.
Minn. Sept. 18, 2018) (discussing and citing the
"repeated references to the brevity of detention under
§ 1226(c)" in Demore). Here, Petitioner
has now been detained for over two years. ECF No. 14 at 3.
Although the Eighth Circuit has not addressed the issue of
prolonged detention under § 1226(c)
post-Jennings, courts in this district have
concluded that the Due Process Clause imposes a limitation on
the length of § 1226(c) detention and such a challenge
must be resolved by closely examining the facts of the
particular case to determine whether the detention is
reasonable. See, e.g., Muse, 2018 WL 4466052, at *3;
Mohamedv. Sec'y, Dep't of Homeland Sec, No.
17-cv-5055, 2018 WL 2392205, at *5 (D. Minn. Mar. 26, 2018),
adopted, 2018 WL 2390132 (D. Minn. May 25, 2018). In
assessing due process challenges to § 1226(c)
detentions, these courts consider several factors to
determine when "continued detention becomes unreasonable
and the Executive Branch's implementation of §
1226(c) becomes unconstitutional unless" a bond hearing
is provided. Muse, 2018 WL 4466052, at *3 (listing
the Reid factors).
the Federal Respondents argue that the R&R erred in
applying the Reid factors because the First Circuit
withdrew the Reid opinion after Jennings.
The Court disagrees. As other courts in this district have
acknowledged since Jennings, "[t]he
Reid factors 'represent a reasonable framework
for balancing the due process interests at stake' even
though they were 'originally adopted in the context of
reading an implicit reasonableness limitation into §
1226(c)' . . . and even though the First Circuit withdrew
the Reid decision after the Supreme Court decided
Jennings.'" Muse, 2018 WL 4466052, at *3
n.3 (citations omitted); see, e.g., Tao J. v. Sec'y
of Dep't of Homeland Sec, No. 18-CV-1845,
2019 WL 1923110, at *3 n.3 (D. Minn. Apr. 30, 2019). And, as
the R&R made clear, the Court "looks only to
Reid's analysis for this individualized
decision, rather than the withdrawn holding on the general
constitutionality of § 1226." ECF No. 14 at 11.
Furthermore, the R&R explained that "[m]any courts
in this District have followed the Muse court's
approach to determining when an alien detained under §
1226(c) is entitled to a bond hearing to prevent a possible
violation of Petitioner's due process rights."
Id. (collecting cases). The Court follows the
approach taken by these courts. Accordingly, the Court finds
that the R&R properly applied the reasonableness factors
and determined that Petitioner is entitled to a bond hearing.
these reasons, in addition to the reasons set forth in the
R&R, the Court overrules the Federal Respondents'
objections and orders an IJ to conduct a bond hearing within
thirty days of this Order. Therefore, based on the files,
records, and proceedings herein, IT IS ORDERED THAT:
Court ADOPTS the R&R.
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 [ECF No. 1] is GRANTED IN PART and DENIED IN PART, as
a. An Immigration Judge must provide Petitioner with a bond
hearing within thirty days of this Order. At the bond
hearing, the Immigration Judge must make an individualized
determination regarding whether Petitioner's continued
detention is necessary to protect the community or to prevent
Petitioner from fleeing during the pendency of immigration
b. Petitioner's request for immediate release is DENIED.
JUDGMENT BE ENTERED ACCORDINGLY.