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Tua Mene Lebie B. v. Barr

United States District Court, D. Minnesota

September 18, 2019

Tua Mene Lebie B., Petitioner,
v.
William Barr, Attorney General; Keven McAleenan, Acting Secretary DHS; Michael Albence, Acting Director ICE; Peter Berg, Director St. Paul F.O. ICE; Eric Holien, Sheriff Kandiyohi County. Respondents.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         This 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 part.

         I. Background

         A. Petitioner's Citizenship and Immigration Status

         Petitioner 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. (Id.)

         B. Petitioner's Criminal History

         On 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].)

         On May 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.)

         C. The Removal Proceedings

         Immigration 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 removal.

         On 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.)

         Petitioner filed the instant Petition on August 8, 2019, and Respondents answered on August 30, 2019. [Doc. No. 19.]

         II. Analysis

         A. Judicial Review of Immigration Detention

         A writ 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. 25, 2017).

         B. Statutory ...


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