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Augustin B. v. Secretary of Homeland Security

United States District Court, D. Minnesota

July 12, 2019

Augustin B., Petitioner,
v.
Secretary of Homeland Security, et al., Respondents.

          Augustin B., pro se Petitioner.

          Friedrich A. P. Siekert, Esq., Assistant United States Attorney, counsel for Respondents.

          REPORT and RECOMMENDATION AND ORDER

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         In this petition for a writ of habeas corpus under 28 U.S.C. § 2241, Petitioner Augustin B. requests release from immigration detention pending his removal from the United States. (Doc. No. 1, Habeas Pet.) For the reasons stated below, this Court recommends that Petitioner's action be dismissed.

         I. Background

         On December 14, 2000, Petitioner was admitted into the United States at New York, New York, as a B-1 Visitor. (Doc. No. 8, Declaration of Richard Pyrd (“Pyrd Decl.”) ¶ 6.) Petitioner entered the country with a Mali passport issued to an individual named Lassine Kone. (Id.)

         Several years later, Petitioner attempted to adjust his status to lawful permanent resident based on his I-485 application and a visa petition filed by his then wife, Jamie Nash. (Id. ¶ 7.) The United States Citizenship and Immigration Services (“USCIS”) denied the I-485 and the visa petition. (Id. ¶¶ 7-9.)

         On October 28, 2005, USCIS issued a Notice to Appear (“NTA”) in removal proceedings under Section 240 of the Immigration and Nationality Act to Petitioner a/k/a Lassine Kone. (Id. ¶ 10, Ex. A.) Petitioner was charged as removable as an alien present in the United States in violation of the Immigration and Nationality Act and because he failed to maintain the nonimmigrant status under which he had been admitted. (Id.)

         On November 21, 2005, ICE arrested Petitioner in Boulder, Colorado, and reserved the previously issued NTA in person. (Id. ¶ 11, Ex. A at 2.) On December 27, 2005, an immigration judge in Denver ordered Petitioner (under the alias Kone) removed from the United States to Mali. (Id. ¶ 12, Ex. B.) Petitioner filed an appeal with the Board of Immigration Appeals (“BIA”). (Id. ¶ 12, Ex. C.) On January 3, 2006, ICE Enforcement and Removal Operations (“ERO”) released Petitioner and placed him on the Intensive Supervision Appearance Program (“ISAP”) while his appeal with the BIA was pending. (Id. ¶ 13.)

         On June 28, 2007, the BIA dismissed Petitioner's appeal. (Id. ¶ 14, Ex. D.) With the BIA decision, Petitioner's removal order became administratively final, and on July 20, 2007, ERO Denver arrested Petitioner and terminated his participation in the ISAP program. (Id. ¶ 15.)

         Petitioner again tried to adjust his status to that of a lawful permanent resident. On October 2, 2007, USCIS received a Petition for Alien Relative, Form I-130, submitted by Katherine Knight, as the second wife and on behalf of Petitioner (using the alias Lassine Kone). (Id. ¶ 16.) On October 10, 2007, ERO Denver released Petitioner on an Order of Supervision pending a decision on the I-130. (Id. ¶ 17.) On November 20, 2008, USCIS denied Katherine Knight's I-130 petition on behalf of Petitioner. (Id. ¶ 18.)

         On June 10, 2009, ERO Denver, through its sub-office in Grand Junction, Colorado (“ERO Grand Junction”), fingerprinted Petitioner after receiving intelligence that Petitioner was using the identity of Lemen Tounkara, an Algerian citizen. During questioning, Petitioner admitted to ERO officers that his true name was Augustin B., a native and citizen of Guinea. Petitioner also admitted he gained his original admission to the United States using a fraudulent B-1 visa in conjunction with a real Mali passport that was not his. Petitioner further admitted his father and mother both were natives and citizens of Guinea. Petitioner admitted he did not have a fear of persecution or torture if he were to be removed from the United States. Accordingly, ERO Grand Junction revoked Petitioner's Order of Supervision and detained him in immigration custody. (Pyrd Decl. ¶ 19, Exs. E and F.)

         On June 11, 2009, ERO officers in ERO Grand Junction allowed Petitioner to call his mother. Petitioner claimed his mother's name was Odile Keita, a citizen and national of Guinea, who was residing in Conakry, Guinea. ERO officers also allowed Petitioner to call the Embassy of Guinea. (Id. ¶ 20.)

         On June 30, 2009, Petitioner confirmed in a sworn statement to ERO officers that his true name was Augustin B; he was born on April 25, 1979, in Conakry, Guinea; he was a citizen and national of Guinea; he was admitted on a visitor visa in New York; and he had no fear of persecution or ...


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