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Lebie B. v. Barr

United States District Court, D. Minnesota

November 5, 2019

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


          Joan N. Ericksen United States District Judge

         In a 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.

         The 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 Order.[1]

         A. Statutory Basis for Petitioner's Detention

         There 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 issue.

         Respondents 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.

         The 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 alien's detention.

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.

         B. Petitioner's Detention Under § 1226

         Respondents 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. [2] 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.

         1. The Total Length of Detention to Date

         Respondents 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 6.

         In 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, ...

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