United States District Court, D. Minnesota
N. Ericksen United States District Judge
Report and Recommendation ("R&R") dated
September 18, 2019, the Honorable Hildy Bowbeer, United
States Magistrate Judge, recommended that the Court grant in
part and deny in part Petitioner's Petition for Habeas
Corpus. ECF No. 23. Judge Bowbeer recommended that the Court
deny Petitioner's requests for immediate release or a
bond hearing in front of the Court, but grant
Petitioner's request for a bond hearing in front of an
immigration judge for an individualized determination on
whether his continued detention is necessary. ECF No. 23 at
15. Respondents object to the R&R on the basis that it
incorrectly applied 8 U.S.C. § 1226, instead of 8 U.S.C.
§ 1231, to Petitioner's detention, and that
alternatively, the Court should not adopt the R&R's
analysis under § 1226.
Court has considered Respondents' objections de novo, as
required by 28 U.S.C. § 636(b)(1) and local Rule
72.2(b). The Court overrules Respondents' objections and
adopts the R&R to the extent it is consistent with this
Statutory Basis for Petitioner's Detention
are two statutory bases for the government's authority to
detain non-citizens: 8 U.S.C. § 1226 and § 1231.
Section 1226(c) mandates detention while removal proceedings
are pending for aliens who have committed certain crimes,
such as the ones Petitioner has committed. Section 1231
allows the government to detain individuals in the short
period after the completion of removal proceedings, before
they are deported. Neither § 1226 nor § 1231
expressly address the power to detain an individual who has
appealed the Board of Immigrations Appeals'
("BIA") determination and received a stay from the
Eighth Circuit. The Eighth Circuit also has not addressed the
object to the R&R on the basis that § 1231 applies.
Respondents assert the BIA's decision in August 2018 to
dismiss Petitioner's appeal amounted to a final order of
removal and the Eighth Circuit's stay of the case paused
or suspended the removal period under § 1231 rather than
reverting the basis of detention to § 1226.
Court disagrees with Respondents and finds that § 1226
applies here. An example from Bah v. Cangemi
explains the Court's reasoning:
Suppose that an alien's order of removal becomes
administratively final on Day 1 because the BIA dismisses the
alien's appeal. The alien then petitions the court of
appeals for review of the dismissal and asks for a stay. The
court of appeals does not rule on the stay order . . . But
suppose that, on Day 201, the court of appeals grants the
stay. Under § 1231(a)(1)(B), the stay does not suspend
the removal period; instead, it defers the start of
the removal period. Seen from Day 200, the removal period
began on Day 1. But seen from Day 202, the removal period
never began. And if the removal period never began, neither
did the Zadvydas clock, and § 1226 (the
provision that applies before and during immigration
proceedings) rather than § 1231 (the provision that
applies after immigration proceedings) governs the
489 F.Supp.2d 905, 916 (D. Minn. May 1, 2007). This case
resembles the preceding example. Petitioner's order of
removal was administratively final between August 30, 2018
and January 28, 2019 because the BIA had dismissed his appeal
and the Eighth Circuit had not ruled on his stay.
See ECF No. 1, Ex. H at 5. But when the Eighth
Circuit granted a stay, on January 29, 2019, the stay
deferred the start of Petitioner's removal period.
See ECF No. 1, Ex. N, Sanchez Decl. ¶ 2. Seen
from January 30, 2019, the removal period never began and
§ 1226 therefore governs Petitioner's detention.
Petitioner's Detention Under § 1226
then object to the R&R's analysis of the
Muse factors in evaluating the constitutionality of
Petitioner's detention under § 1226. There are six
factors in this analysis: (1) the total length of detention
to date, (2) the likely duration of future detention, (3) the
conditions of the 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
the removal proceedings will result in a final order of
removal.  Muse v. Sessions, Civ. No. 18-0054
(PJS/LIB), 2018 WL 4466052, at *3 (D. Minn. Sept. 18, 2018).
Respondents dispute the R&R's analysis of the first
four factors and contend the R&R should have additionally
considered public safety in its analysis.
Total Length of Detention to Date
argue the R&R erred in finding that Petitioner's
detention of then 20 months, now 22 months, weighs in favor
of granting relief. Respondents assert the Court should
consider the reason for Petitioner's detention rather
than the time period itself: "Petitioner's detention
has been necessitated by the due process he has been availing
himself of before the BIA, and since filing his petition for
review on September 19, 2018, the Eighth Circuit." ECF
No. 27 at 7-8. Respondents also assert that the R&R
impermissibly applies "a near-bright-line rule that sees
either six months or one year as a type of benchmark" of
a detention violating the Due Process Clause. ECF No. 27 at
Denmore v. Kim, the Supreme Court held that
deportable criminal aliens, such as Petitioner, may "be
detained for the 6r/e/period necessary for their removal
proceedings." 538 U.S. 510, 511 (2003) (emphasis added).
Constitutional difficulties arise, however, when detention
under § 1226(c) ceases to be "brief." The
Supreme Court has warned that indefinite detention during
removal proceedings would raise "serious constitutional
concerns." Zadvydas v. Davis,533 U.S. 678, 682
(2001). The Supreme Court has not, ...