United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Tua Mene Lebie B.'s
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241. [Doc. No. 1]. Petitioner has been detained without
bond, pending removal by United States Immigration and
Customs Enforcement (“ICE”), since December 4,
2017. Petitioner argues that his lengthy detention without a
bond hearing is unreasonable and violates his right to due
process. (Pet. at 1.) He therefore seeks a writ of habeas
corpus securing his immediate release, or, failing that, a
bond hearing before either this Court or an immigration judge
(“IJ”). For the reasons that follow, the Court
recommends that the Petition be granted in part and denied in
Petitioner's Citizenship and Immigration Status
is a citizen and national of Nigeria who entered the United
States as a refugee on September 20, 1999. (Pet. Ex. L at 70
[Doc. No.1-13].) On March 8, 2002, Petitioner's
immigration status was adjusted to lawful permanent resident.
Petitioner's Criminal History
September 24, 2001 Petitioner was convicted of Fifth Degree
Criminal Sexual Conduct, a gross misdemeanor. (Pet. Ex. M at
75 [Doc. No. 1-14].) He was sentenced to 364 days in custody
with 274 days stayed. (Pet. Ex. L at 70; Pet. Ex. I at 51
[Doc. No. 1-10].)
6, 2016 Petitioner was convicted of violating Minnesota's
predatory offender registration statute. (Pet. Ex. M at 75.)
He was sentenced to another 364 days in custody, but that
sentence was stayed in favor of two years' probation.
(Pet. Ex. I at 52.)
The Removal Proceedings
officials commenced removal proceedings against Petitioner
and took him into custody on December 4, 2017. (Pet. Ex. L at
71.) Petitioner was charged as removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii) as an alien who has been convicted
of two or more crimes involving moral turpitude. (Pet. Ex. M
at 73.) The IJ ruled that Petitioner was deportable and on
March 26, 2018 ordered him removed. (Pet. Ex. H at 44 [Doc.
No. 1-9].) Petitioner timely appealed to the Board of
Immigration Appeals (“BIA”). (See id.)
On August 30, 2018 the BIA dismissed Petitioner's appeal
and affirmed the IJ's determination that Petitioner's
convictions were for crimes involving moral turpitude. (Pet.
Ex. H at 44-46.) The BIA's decision was a final order of
September 19, 2018 Petitioner appealed the BIA's removal
order to the Eighth Circuit. (Pet. Ex. N ¶ 2 [Doc. No.
1-15].) On January 29, 2019 the Eighth Circuit granted
Petitioner's motion for a stay of removal while his
appeal is pending. (Id. ¶ 2.)
filed the instant Petition on August 8, 2019, and Respondents
answered on August 30, 2019. [Doc. No. 19.]
Judicial Review of Immigration Detention
of habeas corpus enables a person detained by the government
to challenge the legality of his confinement and, if
successful, obtain his release. Preiser v.
Rodriguez, 411 U.S. 475, 485 (1973). 28 U.S.C. §
2241 confers jurisdiction upon federal courts to hear habeas
challenges to the lawfulness of immigration-related
detentions, but a court's jurisdiction to do so is
limited. Zadvydas v. Davis, 533 U.S. 678, 687
(2001); see also Demore v. Kim, 538 U.S. 510, 517
(2003). This Court may not review a discretionary decision
made by immigration authorities, such as the decision to
order that a noncitizen be removed to another country. It
may, however, review immigration-related detentions to
determine if they comport with the demands of the
Constitution. Zadvydas, 533 U.S. at 688.
Accordingly, the Court's task is not to second-guess
decisions made within the discretion of an immigration
authority, but to assess the constitutional permissibility of
the detention itself. See Davies v. Tritten, No.
17-cv-3710 (SRN/SER), 2017 WL 4277145, at *2 (D. Minn. Sept.