Zackaria D. M. v. Garland
| Decision Date | 28 October 2022 |
| Docket Number | 21-CV-2629 (SRN/LIB) |
| Parties | Zackaria D. M.,[1] Petitioner, v. Merrick B. Garland et al., Respondents. |
| Court | U.S. District Court — District of Minnesota |
Benjamin Casper Sanchez, University of Minnesota Law School Federal Immigration Litigation Clinic; Ian Bratlie, ACLU of Minnesota; John R. Bruning, The Advocates for Human Rights Refugee & Immigrant Program; Mary Georgevich, National Immigrant Justice Center, Michael D. Reif and Rajin Olson Robins Kaplan LLP; Nadia Anguiano-Wehde, University of Minnesota Law School, James H. Binger Center for New Americans; Teresa J. Nelson, ACLU of Minnesota; and Paul Abraham Dimick, Minnesota Freedom Fund, for Petitioner.
Ana H. Voss and Andrew Tweeten, United States Attorney's Office, for Respondents.
This matter is before the Court on the Objections filed by Petitioner Zackaria D. M. (“Pet'r's Objs.”) [Doc. No. 22] and Respondents Merrick B. Garland, Alejandro Mayorkas, Tae D. Johnson, Marcos Charles, and Joel Brott (“Resp'ts' Objs.”) [Doc. No. 24] to United States Magistrate Judge Leo I. Brisbois's Report and Recommendation (“R&R”) [Doc. No. 16] dated July 27, 2022. The magistrate judge recommends granting in part and denying in part Mr. M.'s Petition for Writ of Habeas Corpus (the “Petition”) [Doc. No. 1]. Although the Court agrees with the magistrate judge to the extent he recommends granting the Petition, the Court respectfully declines to adopt the recommendation to the extent he recommends that the Petition be denied. Accordingly, based on a review of the files, submissions, and proceedings herein, and for the reasons stated below, the Court overrules the Respondents' Objections, sustains the Petitioner's Objections, and grants the Petition.
The factual and procedural background of this matter are well documented in the R&R and are incorporated herein by reference. (See R&R at 1-6.)
Petitioner is a citizen of Somalia who entered the United States as a refugee in 1998 and again in 2006. (Id. at 1.) Petitioner applied for permanent residence, but U.S. Citizenship and Immigration Services (“USCIS”) denied his request. (Id. at 1-2.) Between 2011 and 2017, Mr. M. was convicted of multiple criminal offenses, among them theft of a motor vehicle and aggravated assault. (Id. at 2-3; see also Resp'ts' Opp'n [Doc. No. 12] at 2 ().) While serving his sentence for assault, immigration authorities charged Mr. M. as removable under the Immigration and Nationality Act (“INA”), having found that his past criminal convictions were crimes of moral turpitude and violence. See 8 U.S.C. §§ 1227(a)(2)(A)(i) (concerning crimes of moral turpitude), (a)(2)(A)(iii) (concerning aggravated felonies). Detention under these circumstances is mandatory. See 8 U.S.C. § 1226(c)(1)(B)-(C) (). Mr. M. subsequently appealed the removal order to the Board of Immigration Appeals (“BIA”). (R&R at 4.)
When he completed serving his sentence for assault on January 25, 2021, U.S. Immigration and Customs Enforcement (“ICE”) took him into custody pursuant to 8 U.S.C. § 1226(c). (Id. at 2.) While in ICE's custody, an immigration judge (“IJ”)[2] assessed Mr. M. as competent to continue with removal proceedings, and Mr. M. appealed this competency decision to the BIA as well. (Id. at 4-6.) Thus, Mr. M.'s competency and removal proceedings remain pending. During the pendency of these matters, ICE has detained Mr. M. for now more than 20 months. (Id. at 6.)
On December 8, 2021, Mr. M. filed the instant Petition which challenges the constitutionality of his continued detention without a bond hearing. (Pet. ¶ 1.) He seeks an order from this Court for an individualized bond hearing before an IJ at which: (1) the government must bear the burden to prove, by clear and convincing evidence, that his detention is necessary because he presents a danger to the community or a flight risk; and (2) that, at such a bond hearing, the IJ must consider alternatives to detention and Mr. M.'s ability to pay the bond, if any is set. (Id. ¶ 4.) Respondents oppose the Petition, arguing that ICE's detention of Mr. M. remains constitutional under 8 U.S.C. § 1226(c) until his removal proceedings are resolved but that, even if the Court orders a bond hearing, the Court lacks the authority to order any additional procedural safeguards at that hearing as a remedy for his constitutional claim of prolonged detention. (Resp'ts' Opp'n at 6, 23, 26.)
In his July 27, 2022 R&R, Magistrate Judge Brisbois found that Mr. M.'s detention of then-18 months without a bond hearing was unconstitutional because it violates his constitutional due process rights. (R&R at 17.) Based on this finding, the magistrate judge recommends that the Court grant in part and deny in part Mr. M.'s request for habeas corpus relief. (Id. at 27-28.) Specifically, he recommends that an “immigration judge be required to conduct a bond hearing by no later than twenty-one (21) days after” the R&R's adoption, during which the government must bear the “burden to prove, by clear and convincing evidence, that Petitioner's continued detention is necessary because he is either a danger to the community or a flight risk[.]” (Id. at 23, 28.) However, the magistrate judge declined to recommend that the Court order the IJ to consider alternatives to detention or Mr. M.'s ability to post bond because Mr. M. had not presented evidence that, absent a court order, the IJ would not consider such procedural safeguards. (Id. at 23-26.)
Both parties raised timely objections to the R&R. Respondents object to the magistrate judge's recommendation that they must bear the burden of proof at Petitioner's bond hearing. (Resp'ts' Objs. at 1.) For his part, Mr. M. asserts that the magistrate judge's recommendation did not go far enough and should have included a recommendation requiring the IJ “to consider alternatives to detention and [Mr. M.'s] ability to pay bond.” (Pet'r's Objs. at 2.)
Thus, the Court reviews de novo the following two issues: (1) whether this Court may fashion a remedy for the constitutional deprivation of due process occasioned by his prolonged detention without a hearing by requiring the government at a bond hearing to prove, by clear and convincing evidence, that Mr. M. presents a danger to the community or a flight risk; and (2) further in support of that remedy, whether the IJ should be required to consider whether there are conditions or combinations of conditions of release that would ensure the safety of the community and his appearance at future immigration proceedings.
According to statute, the Court must review de novo any portions of a magistrate judge's R&R to which a party specifically objects, and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); D. Minn. LR 72.2(b)(3).
“Writs of habeas corpus may be granted by the Supreme Court, . . . the district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). “The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States[.]” Id. § 2241(c)(3). In seeking habeas relief, Mr. M. contends that ICE has violated his constitutional due process rights by detaining him for more than 20 months without a bond hearing. (Pet. ¶ 1.)
The Fifth Amendment entitles noncitizens “‘to due process of law in deportation proceedings.'” Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)); U.S. Const. amend. V. A criminal noncitizen subject to mandatory detention under 8 U.S.C. § 1226(c) may be detained during the “brief period necessary” for removal proceedings without periodic bond hearings. Demore, 538 U.S. at 513; see also Jennings v. Rodriguez, 138 S.Ct. 830, 851 (2018). However, the Supreme Court has cautioned that indefinite detention pending removal raises “serious constitutional concerns” and has held that there is “an implicit ‘reasonable time' limitation” to detention during removal proceedings. Zadvydas v. Davis, 533 U.S. 678, 682 (2001).
Mr. M. claims that his now 20-plus month detention is unconstitutional because of its length, the likelihood it will continue, and the penal-like conditions of detention. (Pet. ¶¶ 36-47.) To determine whether a § 1226(c) detention has become unconstitutional, courts in this District have applied the multi-factor, fact-specific test set forth in Muse v. Sessions. 409 F.Supp.3d 707, 715 (D. Minn. Sept. 18, 2018). Under the Muse test, courts focus on: (1) the total length of detention, (2) its likely future duration, and (3) the conditions of confinement. Id. Also, courts consider whether delays to the removal proceedings have been caused by the detainee or the government, along with the likelihood that the proceedings will result in a final removal order. Id. Applying the Muse test, Magistrate Judge Brisbois determined that most of the factors supported a finding that ICE's detention of Mr. M. is now unconstitutional. (R&R at 7-18.) Thus, the magistrate judge recommends granting Mr. M.'s request for a bond hearing as the appropriate remedy. (Id. at 18.) Neither party disputes this recommendation. (See Pet'r's Objs. at 1-2; Resp'ts' Objs. at 1 n.1.)
The Court agrees...
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