Kargbo v. Brott, Case No. 15-CV-2713 (PJS/LIB)
| Decision Date | 06 July 2016 |
| Docket Number | Case No. 15-CV-2713 (PJS/LIB) |
| Parties | NELSON KARGBO, Petitioner, v. JOEL BROTT, Sherburne County Sheriff; SCOTT BANIECKE, Field Office Director, Immigration and Customs Enforcement; JEH JOHNSON, Secretary of the Department of Homeland Security; LORETTA LYNCH, Attorney General of the United States; SARAH SALDAÑA, Director, Immigration and Customs Enforcement; and JIM OLSON, Carver County Sheriff, Respondents. |
| Court | U.S. District Court — District of Minnesota |
Rebecca Cassler, Katherine L. Evans, and Benjamin R. Casper, UNIVERSITY OF MINNESOTA; Ian Bratlie and Teresa J. Nelson, ACLU OF MINNESOTA; Kirsten E. Schubert, DORSEY & WHITNEY LLP, for petitioner.
Chad A. Blumenfield, UNITED STATES ATTORNEY'S OFFICE, for respondents.
This matter is before the Court on respondents' objection to the October 2, 2015 Report and Recommendation ("R&R") [ECF No. 37] of Magistrate Judge Leo I. Brisbois. For the reasons stated on the record at the June 13, 2016 hearing and briefly summarized below, the Court sustains the objection, declines to adopt the R&R, and dismisses the case as moot.
Petitioner Nelson Kargbo came to the United States as a refugee from Sierra Leone in 2000 and became a lawful permanent resident of the United States in 2003. In 2013, United States Immigration and Customs Enforcement ("ICE") detained Kargbo and charged him with removability for convictions of two or more crimes of moral turpitude and conviction of an aggravated felony. An immigration judge then ordered Kargbo removed to Sierra Leone.
Kargbo experienced two years of detention while he litigated his case through multiple rounds of removal proceedings and appeals. In July 2015, an immigration judge granted Kargbo deferral of removal to Sierra Leone pursuant to Article 3 of the Convention Against Torture, but found Kargbo removable to any country other than Sierra Leone. Following that order, ICE continued to detain Kargbo.
In June 2015—before the immigration judge ordered Kargbo removed to any country other than Sierra Leone—Kargbo filed a habeas petition to challenge his pre-removal-order detention. In September 2015—after the immigration judge entered the removal order—Kargbo filed a supplemental habeas petition to challenge his post-removal-order detention. Judge Brisbois then issued the R&R, which recommends that the Court deny Kargbo's habeas petition as moot, grant his supplemental habeas petition, and issue a writ releasing Kargbo from custody subject to conditions.
Six days after Judge Brisbois issued the R&R, ICE released Kargbo from custody subject to conditions. Respondents then objected to the R&R, mainly arguing that the case had become moot because Kargbo is no longer in custody. Kargbo disagrees and asks the Court to adopt the R&R. On June 13, 2016, after receiving supplemental briefing, the Court held a hearing on respondents' objection to the R&R.
The Court sustains the objection and dismisses Kargbo's habeas petitions as moot for the reasons described on the record at the June 13, 2016 hearing. To reiterate briefly: Both parties agree that ICE released Kargbo pursuant to 8 C.F.R. § 241.13, which applies when an "alien has provided good reason to believe there is no significant likelihood of removal to the country to which he or she was ordered removed, or to a third country, in the reasonably foreseeable future." § 241.13(a); see also § 241.4(b)(4). As the Court interprets the law—and as ICE has explicitly confirmed on the record—Kargbo can be taken back into custody under only two circumstances: (1) if he violates his release conditions or (2) if ICE finds "a third country willing to accept [him] into their borders on a permanent basis." ECF No. 46 at 2. This is consistent with the revocation provisions of § 241.13(i).
If the Court were to grant the relief Kargbo requests by adopting Judge Brisbois's R&R, Kargbo would still be subject to the order of removal. The government would still have the right—indeed, the obligation—to impose release conditions in an order ofsupervision under 8 U.S.C. § 1231(a)(3) and 8 C.F.R. § 241.13(h). Kargbo could still be taken into custody if he violated his release conditions or circumstances changed such that there was a significant likelihood of removal in the reasonably foreseeable future.
In other words, if the Court adopted the R&R and gave Kargbo every bit of the relief that he seeks in his supplemental habeas petition, Kargbo would find himself in precisely the situation in which he already finds himself. Absolutely nothing would change. This is the very definition of mootness. See Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013).
Kargbo's arguments that his case is not moot are unpersuasive:
First, there are no collateral consequences arising from the allegedly unlawful detentions. The things of which Kargbo complains—being subject to release conditions and the possibility of being taken back into custody if ICE finds another country that will permanently accept him—are not consequences of the detentions, but consequences of the removal order. Kargbo's habeas petitions do not—and could not—challenge the removal order; instead, they challenge only his detentions, which have now ended. Kargbo's habeas petitions also do not—and could...
To continue reading
Request your trial