United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. Rau United States Magistrate Judge
matter is before the Court on Petitioner Iddrisu's
Petition for Writ of Habeas Corpus under 28 U.S.C. Â§ 2241.
(Pet., ECF No. 1). This action was referred to the
undersigned for a report and recommendation under 28 U.S.C. Â§
636 and Local Rule 72.1. For the reasons stated below, this
Court recommends the petition be denied as moot and this
action be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
is a native and citizen of Ghana. (Pet., at 5; Decl. of
Angela Minner ¶ 4, ECF No. 6). Petitioner entered the
United States via Otay Mesa, California on February 1, 2015
and sought asylum. (Minner Decl. ¶ 5). The United States
Citizenship and Immigration Services (“USCIS”)
Asylum Office in Los Angeles conducted a credible fear
interview on February 17, 2015. (Minner Decl. ¶ 6).
Petitioner was served a Notice to Appear on February 23,
2015. (Minner Decl. ¶ 7; Minner Decl., Ex. A). On
February 6, 2016, an immigration judge denied
Petitioner's applications for asylum and withholding of
removal and ordered Petitioner removed to Ghana. (Minner
Decl. ¶ 8; Minner Decl., Ex. B).
his appeal, Petitioner was released on a $20, 000 bond on
March 9, 2016. (Minner Decl. ¶¶ 9-10). The Board of
Immigration Appeals dismissed Petitioner's appeal on
January 24, 2017. (Minner Decl. ¶ 11; Minner Decl., Ex.
C). On January 31, 2017, Petitioner missed a scheduled home
visit and was deemed to have absconded from his release
program. (Minner Decl. ¶ 12).
March 11, 2017, Petitioner entered Canada at the Pembina,
North Dakota / Emerson, Manitoba border crossing to seek
refugee protection. (Minner Decl. ¶ 14). On July 31,
2018, U.S. Border Patrol encountered Petitioner at a Grand
Forks, North Dakota bus station. (Minner Decl. ¶ 16).
Petitioner was served by U.S. Border Patrol with a Notice of
Intent to Reinstate Prior Order. (Minner Decl. ¶ 16;
Minner Decl., Ex. D). Petitioner claimed a fear of returning
to Ghana. (Minner Decl. ¶ 16). Petitioner underwent a
reasonable fear interview on August 14, 2018. (Minner Decl.
¶ 19). Petitioner withdrew his fear claim. (Minner Decl.
August 24, 2018, U.S. Immigration & Customs Enforcement -
Enforcement and Removal Operations (“ICE/ERO”)
sent a travel document request to the Ghanaian embassy.
(Minner Decl. ¶ 20). On October 2, 2018, ICE received a
copy of Petitioner's passport biographical page from
Canadian immigration officials for assistance in obtaining
travel documents. (Minner Decl. ¶ 21). On November 5,
2018, Petitioner indicated he did not have his Ghanaian
passport. (Minner Decl. ¶ 24). On November 7, 2018,
ICE/ERO reviewed Petitioner's custody status and ordered
continued detention for 90 days based on significant
likelihood of removal in the reasonably foreseeable future
and because Petitioner posed a flight risk based on his prior
immigration history. (Minner Decl. ¶ 22).
November 28, 2018, the Embassy of Ghana conducted a telephone
interview of Petitioner. (Minner Decl. ¶ 25). The
Ghanaian Embassy indicated it would be possible to issue
travel documents in time for an upcoming ICE charter flight,
but wanted to speak with Petitioner's wife before making
a decision. (Minner Decl. ¶ 25). Petitioner was
transported to Oakdale, Louisiana on December 5, 2018 in
anticipation of a chartered flight to Ghana. (Minner Decl.
¶ 26). Petitioner was transferred back to Minnesota
because Ghana did not issue travel documents in time for the
chartered flight. (Minner Decl. ¶ 27).
custody was reviewed on January 24, 2019 and continued.
(Minner Decl. ¶ 29; ECF No. 10). On January 31, 2019,
the United States imposed visa sanctions on Ghana due to its
delays in issuing travel documents. (Minner Decl. ¶ 30).
On February 7, 2019, Ghana issued travel documents for
several Ghanaians in ICE custody. (Minner Decl. ¶ 31).
filed his habeas petition on February 6, 2019. Petitioner
asserts he is in prolonged, indefinite ICE custody following
a final removal order, that ICE has been unable to secure a
travel document, that ICE has had failed attempts to remove
Petitioner, and that ICE is unable to remove Petitioner in
the foreseeable future. (Pet., at 2). Petitioner challenges
his detention as violative of 8 U.S.C. § 1226,
Zadvydas v. Davis, 533 U.S. 678 (2001), and the Due
Process Clause of the Fifth Amendment. (Pet., at 6-8).
Petitioner also asserts that his detention is a “means
to punish [him] for his attempt to seek asylum elsewhere
particularly in Canada.” (Pet., at 8). Petitioner also
argues a Fourth Amendment violation because his detention is
without legal reason. (Pet., at 7; ECF No. 9, at 15-17).
March 13, 2019, Ghana issued a travel document for
Petitioner, valid through May 13, 2019. (Minner Decl. ¶
34; Supp. Decl. of Angela Minner ¶ 1, ECF No. 8). ICE
attempted a scheduled removal of Petitioner via commercial
flight on April 11, 2019, but the airline carrier cancelled
the flight due to inclement weather. (Supp. Minner Decl.
¶ 5). ICE rescheduled and then attempted a second
commercial removal of Petitioner to Ghana on April 29, 2019.
(Supp. Minner Decl. ¶ 6). On that date, Petitioner told
ICE officers that he would not cooperate with removal, that
he would resist efforts to board the aircraft, that he would
not be separated from his girlfriend and child, and that he
would rather remain incarcerated and go to prison. (Supp.
Minner Decl. ¶ 6; Second Supp. Decl. of Angela Minner
¶ 1, ECF No. 13). Based on Petitioner's statements
and for officer safety concerns, ICE cancelled the scheduled
removal. (Supp. Minner Decl. ¶ 6). ICE then served
Petitioner a Notice of Failure to Comply and, along with his
immigration history and previously-breached bond, stating ICE
considered Petitioner to be a flight risk and that he should
remain in custody pending an ICE charter flight. (Supp.
Minner Decl. ¶¶ 7-9; (Supp. Minner Decl., Ex. A).
16, 2019, Petitioner was removed to Ghana via an ICE charter
flight. (Second Supp. Minner Decl. ¶ 3). Respondents
assert that Petitioner's deportation renders this habeas
matter moot and request that it be dismissed. (ECF No. 14).
Court interprets Petitioner's claims as challenging his
continued detention pursuant to Zadvydas v. Davis,
533 U.S. 678, 688 (2001), because Petitioner requests that
the Court order his immediate and unconditional release from
custody. As Respondents note, however, Petitioner ...