Moallin v. Cangemi
| Decision Date | 12 April 2006 |
| Docket Number | No. 05-CV-1826(JMR/SRN).,05-CV-1826(JMR/SRN). |
| Citation | 427 F.Supp.2d 908 |
| Parties | Abdirahman MOALLIN v. Mark CANGEMI, Interim Director, and Bureau of Immigration and Customs Enforcement. |
| Court | U.S. District Court — District of Minnesota |
Katherine Menendez, Assistant Federal Public Defender, on behalf of Petitioner.
Joan D. Humes, Assistant United States Attorney, on behalf of Respondents.
Respondents object to the Report and Recommendation, issued January 17, 2006 [Docket No. 9], by the Honorable Susan Richard Nelson, United States Magistrate Judge. The Report recommended that petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be granted, and that petitioner be released from custody. Respondents' objections were timely filed pursuant to Local Rule 72.2(b).
Based upon a de novo review of the record herein, the Court adopts the Magistrate's Report and Recommendation.
Accordingly, IT IS ORDERED that:
1. The petition under 28 U.S.C. § 2241 for a writ of habeas corpus [Docket No. 1] is granted.
2. Respondents are directed to advise the Court and counsel for petitioner on or before April 13, 2006, of conditions they suggest are necessary to assure the Court of access to, and control over, the petitioner pending removal.
3. Upon this Court's Order setting conditions of release, the petitioner shall be released from custody pursuant to this Order.
The above entitled matter comes before the undersigned United States Magistrate Judge on the petition of Abdirahman Moallin for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1). This matter has been referred to the undersigned for a report and recommendation under 28 U.S.C. § 636 (2000) and D. Minn. L.R. 72.1. For the reasons given below, the Court recommends that the petition be granted and a writ issue releasing Petitioner from custody, subject to such terms and conditions as may be necessary to ensure that Respondents will be kept apprised of his whereabouts pending his removal.
Petitioner was born in Mogadishu in the Banadir province of Somalia on February 25, 1979. (Admin. Record (hereafter R.), Doc. No. 6, at 2.) At age eleven, Petitioner fled war torn Somalia to Kenya. (See id.) On August 18, 1994, at age fifteen and while in Kenya, he applied to enter the United States as a refugee. (See id.) His application states his reason for seeking the refugee classification (reprinted verbatim):
When the war broke out the City of Mogadishu our neighborhood become target for the shells and burglars and rabist that resulted our father killed militia and our mother beaten badly and also our house demolished totaly and properties looted. After that we been smuggled to Kismayo[, Somalia] except our mother in order to assist our sister who has six child. We faced another problem and then fled.
(Id.) At the time Petitioner filed his application for refugee status, his mother and half-brother were already living in the United States in Alexandria, Virginia. (Id. at 3, 59.) Petitioner's application was approved, and he was admitted to the United States as a refugee on February 1, 1995. (R. at 3, 6.) On May 15, 1996, the United States accorded Petitioner lawful permanent resident status. (R. at 1, 6.) The administrative record does not describe Petitioner's whereabouts or activities from the time of his entry until the year 2000. In the years 2000-2004, however, Petitioner was charged with and pled guilty to six crimes in two states, including theft of rental cars, buying a stolen car, and stealing telephone cards and liquor. (R. at 9, 14-15, 37-40, 44-45, 49-50, 59-62, 63.) The specific conviction dates and locations of the crimes are as follows:
April 12, 2000: Petit Larceny (Virginia), theft of alcoholic beverage less than $200
August 9, 2000: Petit Larceny (Virginia), theft of telephone cards
January 16, 2001: Petit Larceny (Virginia), theft of a rental car
July 30, 2001: Forgery of a Public Document and Receiving Stolen Property (Virginia)
January 20, 2004: Theft of a Motor Vehicle and Fleeing a Police Officer (Minnesota)
December 1, 2004: Theft of a Motor Vehicle (Minnesota)
(R. at 9.) Petitioner received sentences ranging from ten days to three years for committing these crimes. (Id.) His January 20, 2004 conviction stems from an incident on August 21, 2001 during which Petitioner stole a car. (R. at 22.) When law enforcement officers attempted to stop him while he was driving the car without a license, Petitioner led them on a 2.3 mile car chase at night, with the car's headlights off, during which he exceeded 80 miles per hour in a posted 30 mile per hour zone. (Id.) The chase ended when Petitioner crashed the car. (Id.) In sentencing Petitioner for this conviction, the state judge departed upward because she found Petitioner: (1) continued to commit crimes while the matter was pending; (2) used multiple aliases, (3) failed to cooperate with the presentence investigation or probation; (4) was not amenable to probation; and (5) had outstanding warrants in Washington D.C., Michigan, Virginia, and Ramsey County. (R. at 33.)
On December 3, 2004, the U.S. Bureau of Immigration and Customs Enforcement (ICE), formerly the Immigration and Naturalization Service, issued Petitioner a Notice to Appear, which ordered Petitioner to appear before a U.S. Department of Justice immigration judge "to show why [Petitioner] should not be removed from the United States based on" violations of the Immigration and Nationality Act, the relevant provisions of which are codified at 8 U.S.C. § 1227(a)(2)(A)(ii)-(iii) and which read:
Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable. . . . Any alien who is convicted of an aggravated felony at any time after admission is deportable.
The United States represents that Petitioner was taken into ICE custody upon release from his criminal sentence1 and that Petitioner appeared before an immigration judge in Bloomington, Minnesota on December 16, 2004. (Doc. No. 5 at 3.) On December 16, 2004, the immigration judge determined that Petitioner was subject to removal and ordered him removed from the United States to Somalia. (R. at 73.) Petitioner expressly waived his right to appeal this decision to the Board of Immigration Affairs. (Id.) On the same day, the field office director for ICE issued a warrant of removal/deportation which directed "any officer" of ICE "to take into custody and remove" Petitioner "from the United States." (R. at 74.) Petitioner has been civilly detained ever since.
On January 20, 2005, Petitioner was given written notice of a nationwide injunction barring the removal of certain aliens to Somali (R. at 77) as required by Ali v. Ashcroft, 213 F.R.D. 390, 397 (W.D.Wash. 2003), aff'd, 346 F.3d 873 (9th Cir. 2003), opinion withdrawn on denial of reh'g, 421 F.3d 795 (9th Cir. 2005), as amended on reh'g (Oct. 20, 2005).2 ICE informed Petitioner that the nationwide injunction prevented his removal but that his case would be reviewed on a monthly basis to determine if the injunction had been lifted. (Doc. No. 5 at 4.) Specifically, on March 16, 2005, ICE sent Petitioner a letter captioned, "Ineligibility for Custody Review Under 8 C.F.R. 241.4." That letter states:
A review of your case indicates that you are under a court ordered stay of removal. The stay prevents the Immigration and Naturalization Service (Service) from enforcing your removal order. Under 8 Code of Federal Regulations section 241.4, the Service must conduct a custody review before the end of the removal period. However, for an alien whose removal order is under judicial review (including habeas corpus) and where the alien has been granted a judicial stay of removal, the removal period does not begin until the date on which the court issues a final order pursuant to 8 USC 1231(a)(1)(B)(ii), [8 C.F.R. §] 241(a)(1)(B)(ii). This letter is to inform you that your case has been reviewed and it has been determined that you do not qualify for a custody review under 8 CFR 241.4.
Your case will be reviewed on a monthly basis to determine if your stay has been lifted or if some form of relief has been granted. Once your stay is lifted you will be provided with a 30-day notice prior to any custody review. At that time, you may submit information in writing in support of your case.
(R. at 89.) Also on March 16, 2005, the ICE field office director issued a "Post Order Custody Review Worksheet," which indicates that, as of that date, Petitioner had no prior disciplinary reports and no disciplinary reports or incidents while in ICE custody. (R. at 93.) The ICE review worksheet also indicates that Petitioner met none of the regulatory criteria for continued detention (i.e., he had no highly contagious disease that is a threat to public safety, no serious foreign policy consequences would result from his release, no security or terrorism concerns were present, and was not likely to be violent in the future.) (R. at 96.) Nonetheless, the director recommended continued detention because he believed "subject to be a continued threat to society" due to his criminal record, his commission of crimes shortly after being released from custody, his attempt to evade law enforcement, his refusal to comply with law enforcement orders, and the state court judge's reasons for departing upward on Petitioner's July 2004 conviction. (R. at 97.)
On August 15, 2005, Petitioner filed the petition for writ of habeas corpus now before the Court. (Doc. No. 1.) In his petition, he alleges that he is being held in custody unlawfully and should be released immediately because his "continued indefinite detention in...
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