United States District Court, D. Minnesota
ORDER
Paul
A. Magnuson United States District Court Judge
This
matter is before the Court on the Report and Recommendation
(“R&R”) of United States Magistrate Judge Leo
I. Brisbois. (Docket No. 16.) The R&R recommends granting
Petitioner's Petition for Writ of Habeas Corpus.
(Id.) Respondents filed timely objections to the
R&R. (Docket No. 17.)
The
Court must conduct a de novo review of any portion of the
R&R to which specific objections are made. 28 U.S.C.
§ 636(b)(1)(C); Fed.R.Civ.P. 72(b); D. Minn. L.R.
72.2(b). Based on that de novo review, and for the reasons
set forth below, the Court overrules Petitioner's
objections and adopts the R&R.
BACKGROUND
The
full factual background of this matter is set forth in the
R&R and need not be repeated here. Petitioner is in
Immigration and Customs Enforcement (“ICE”)
custody pursuant to 8 U.S.C. § 1226(c). Petitioner has
been in ICE custody since December 20, 2017, approximately
nineteen months. Petitioner filed the instant petition
pursuant to 28 U.S.C. § 2241 on December 28, 2018,
arguing that his continued detention violates his due process
rights under the Fifth Amendment.
In his
response to the Government's objections to the R&R,
Petitioner informed the Court that one of his two criminal
convictions serving as the basis for his detention had been
vacated, and that the second relevant conviction would be
vacated shortly. (Pet'r's Resp. (Docket No. 18) at
1.) After Petitioner's conviction was vacated, his
counsel filed a bond motion. (Bruning Decl. (Docket No. 19)
at 2.) A bond hearing was held before two separate
immigration judges on June 3 and 4, 2019, while the R&R
was still in the objection period. (Id.) Petitioner
informed the Court that the immigration judge
(“IJ”) “indicated that bond would be proper
now that [Petitioner] is no longer removable as
charged.” (Id.) He also stated that
“such a decision may make the Petition moot and will
regardless be material to Petitioner's claims.”
(Pet'r's Resp. at 2.) Accordingly, the Court stayed
resolution of the R&R pending the IJ's bond decision.
Petitioner
updated the Court on July 15, 2019, stating that the
immigration court had issued its decision and denied
Petitioner bond. The IJ denied bond largely because evidence
of Petitioner's second vacated criminal conviction was
not before the court and “without a motion with
evidence for the [Board of Immigration Appeals] to remand,
and motion to terminate, the Court cannot find that [the
Department of Homeland Security] is substantially unlikely to
prevail on the charge and that Respondent is not subject to
mandatory detention.” (Bruning Decl. (Docket No. 22-4)
at 3.) The IJ also stated, “[i]f Respondent were to
show that a motion was actually filed with the Board, with
evidence of the vacated conviction(s), a very different query
would be presented.” (Id. at 4.) Petitioner
has provided this Court with documentation demonstrating that
he has now filed a Motion to Remand and Terminate with the
Board of Immigration Appeals (“BIA”), and that
both of his relevant convictions have been vacated.
(Id., Ex. 1 at 2, 10, 17.)
DISCUSSION
Individuals
who have been admitted to the United States may be removed if
they are convicted of certain criminal offenses after
admission. Jennings v. Rodriguez, 138 S.Ct. 830, 837
(2018). These cases are governed by 8 U.S.C. § 1226,
which states that such aliens must be “detained pending
a decision on whether [they are] to be removed from the
United States.” 8 U.S.C. § 1226(a). Petitioner is
detained and subject to removal pursuant to § 1226(c)
because he was convicted of multiple crimes of moral
turpitude. See 8 U.S.C. § 1226(c)(1)(B);
see also § 1227(a)(2)(A)(ii). While the Supreme
Court has held that § 1226(c) requires that certain
removable aliens be detained for the duration of their
removal proceedings, it declined to decide what limitations
the Due Process Clause places on lengthy detentions under the
statute. Jennings, 138 S.Ct. at 846-48. However,
“‘[d]ue process is flexible,' we have
stressed repeatedly, and it ‘calls for such procedural
protections as the particular situation demands.'”
Id. at 852 (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972)).
The
Government argues that Petitioner's ongoing detention is
constitutional, citing the Supreme Court's decision in
Demore v. Kim, 538 U.S. 510 (2003) and arguing that
Petitioner's detention continues to serve the purposes of
§ 1226(c). According to the Government, the R&R
ignores “the ultimate question from Demore:
has prolonged immigration detention become unjustified or
arbitrary in light of the purposes of Section 1226(c)?”
(Gov't's Obj. (Docket No. 17) at 3.) The Court
believes that it has.
Post-Jennings,
Courts in this District consider a series of factors when
assessing due process challenges to § 1226(c)
detentions. See Muse v. Sessions, No. 18cv0054, 2018
WL 4466052, at *3 (D. Minn. Sept. 18, 2018) (Schiltz, J.);
Tao J. v. Sec'y of Dep't of Homeland
Sec., No. 18cv1845, 2019 WL 1923110, at *3 (D. Minn.
April 30, 2019) (Brasel, J.); Bolus A.D. v. Sec'y of
Homeland Sec., 376 F.Supp.3d 959, 961 (D. Minn. 2019)
(Wright, J.) These factors include:
(1) the total length of detention to date; (2) the likely
duration of future detention; (3) the conditions of
detention; (4) delays of the removal proceedings caused by
the detainee; (5) delays of the removal proceedings caused by
the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal.
Muse, 2018 WL 4466052, at *3. The Government
contends that these factors should not be used in a §
1226(c) analysis. However, whether considering these factors
or the standard the Government's gleans from
Demore, Petitioner's continued detention runs
afoul of due process protections and habeas relief is
appropriate. The Court will only analyze factors (1), (2),
and (6) here, as those factors weigh very strongly in favor
of removal. The Court agrees with the R&R's treatment
of the remaining factors, which does not need to be repeated.
First,
the total length of Petitioner's detention to date is
staggeringly long, totaling nineteen months. This far exceeds
the one- to five-month periods of detention considered by the
Supreme Court in Demore. See Demore, 538
U.S. at 529-530. Other Courts have found that similar periods
of detention violate due process protections. See
Muse, 2018 WL 4466052, at ...