Tindi v. Secretary, Dept. Of Homeland Sec.

363 F.Supp.3d 971

Wilson Nduri TINDI, Petitioner,

v.SECRETARY, DEPARTMENT OF HOMELAND SECURITY; Jefferson Sessions, Attorney General; Scott Baniecke, ICE Field Office Director; and Kurt Freitag, Freeborn County Sheriff, Respondents.

CIVIL NO. 17-3663 (DSD/DTS)

United States District Court, D. Minnesota.

Signed December 8, 2017

Filed December 11, 2017

Wilson Nduri Tindi, Freeborn County Adult Detention Center, PO Drawer 170, Albert Lea, Minnesota, 56007, Pro Se Petitioner.

Ana H. Voss, Esq. and Ann M. Bildtsen, Esq., Assistant U.S. Attorneys, United States, Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota, 55415, for Respondents.

REPORT AND RECOMMENDATION

DAVID T. SCHULTZ, United States Magistrate Judge

INTRODUCTION¹

Petitioner Wilson Nduri Tindi ("Tindi") has been detained by United States Immigration and Customs Enforcement ("ICE") for some 15 months pending removal to Kenya. Despite the issuance of the requisite travel document, Tindi asserts his detention is indefinite and unreasonable, and therefore seeks a Writ of Habeas Corpus securing his immediate release. For the reasons outlined below, it is recommended that the Petition be granted.

FINDINGS OF FACT

1. Tindi's Initial Immigration Proceedings

Tindi is a native and citizen of Kenya who entered the United States on November 25, 2005 under a B2 Visitor Visa that allowed him to remain here for six months, but Tindi remained in the United States beyond that date without authorization. Lee Decl., Ex. 1 p. 7, Docket No. 13. Though he applied to become a permanent resident, Tindi's application was rejected on September 1, 2007. Id. On November 14, 2008 ICE initiated removal proceedings against Tindi, which culminated in a March 10, 2009 order for removal. Id. Tindi was taken into custody in October 2009. Id. p. 8. He then filed a successful motion to reopen his immigration proceedings, which prompted his release from custody on November 17, 2009. Id. p. 46. Tindi remained out on bond under threat of removal for the next two years while his immigration status was under consideration. Lee Decl. ¶¶ 9-10, Docket No. 13. On September 21, 2011, an immigration judge reversed the previous removal order, and on April 15, 2014 Tindi's status was changed to lawful permanent resident. Id. ¶¶ 10-11.

2. Tindi's Criminal Conviction And Resulting Removal Proceedings

December 2014, Tindi was charged with first degree burglary and fourth degree sexual assault for entering his neighbor's apartment without permission and attempting to sexually assault a woman who was asleep there. Lee Decl., Ex. 1 pp. 16-18, Docket No. 13. Tindi pleaded guilty to the assault; the burglary charge was dismissed as part of his plea agreement. Id. p. 20. Tindi was sentenced to 24 months, the execution of which was stayed for five years, and he was ordered to serve 210 days in the Hennepin County Adult Corrections Facility, which he began serving on April 4, 2016. Id. pp. 10, 12, 14.

ICE took Tindi into custody directly from the Hennepin County Jail on August 16, 2016. Lee Decl. ¶ 13, Docket No. 13. Pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), on December 9, 2016, an immigration judge ordered Tindi's removal to Kenya, which Order was affirmed by the Board of Immigration Appeals ("BIA") on April 27, 2017. Lee Decl., Ex. 1 pp. 23-30, 36-40, Docket No. 13. A final warrant of removal was issued on May 4, 2017. Lee Decl. ¶ 17, Docket No. 13. On July 27, 2017, Tindi was informed he would remain in ICE detention beyond the 90-day removal period because he appeared to be a threat to the community and that there was a significant likelihood of removal in the reasonable foreseeable future. Id. ¶ 21. On September 19, 2017 ICE received a travel document for Tindi from the Kenyan Embassy. Id. ¶ 22.

3. Tindi's Appeals

Four days after Tindi's final warrant of removal was issued, on May 8, 2017, Tindi appealed his state criminal conviction, arguing his counsel failed to inform him that pleading guilty would result in his deportation. Wilson Nduri Tindi v. State of Minnesota , No. A17-0724. This appeal was argued October 26, 2017.

On May 16, 2017 Tindi also filed a Petition for Review of his final removal order to the Eighth Circuit. Tindi v. Jeff B. Sessions, et al., No. 17-2086 (8th Cir. 2017). The Eighth Circuit stayed Tindi's removal pending resolution of his Petition for Review, which appeal was then stayed in its entirety pending the United States Supreme Court's decision in Sessions v. Dimaya , which was argued on October 2, 2017. Tindi v. Jeff B. Sessions, et al. , No. 17-2086 (Order Jun. 1, 2017). The issue before the Supreme Court in Dimaya is whether the definition of "a crime of violence" in 18 U.S.C. § 16(b), as incorporated into the removal statute at issue in this case, 8 U.S.C. § 1227(a)(2)(A)(iii), is unconstitutionally vague. Sessions v. Dimaya , No. 15-1498 (Argued Oct. 2, 2017).

4. The Habeas Proceeding

Tindi filed this Petition for a Writ of Habeas Corpus on August 7, 2017, arguing he should be released pending removal because he is not a threat to the community, that ICE is forbidden from holding him indefinitely, and that his release is not reasonably foreseeable. Pet'r. Mem., Docket No. 2. The Government filed their response on September 25, 2017, Gov't. Resp., Docket No. 12, to which Tindi replied on October 19, 2017. Pet'r. Reply, Docket No. 15.

CONCLUSIONS OF LAW

1. Statutory Basis For Detention

8 U.S.C. § 1226(c) mandates detention during removal proceedings for certain aliens who have committed specified crimes. 8 U.S.C. § 1226(c). Unlike non-criminal aliens, individuals detained pursuant to 8 U.S.C. § 1226(c) may not be released, except in narrow circumstances that are inapplicable here. See 8 U.S.C. § 1226(c)(2). While an individual detained under this section may ask an Immigration Judge to reconsider whether the mandatory detention provision applies to him, see 8 C.F.R. § 1003.19(h)(2)(ii), such review is limited to whether the person is properly included in the category for mandatory detention based on criminal history. Rodriguez v. Robbins, 804 F.3d 1060, 1078 (9th Cir. 2015). The Immigration Judge's decision may be appealed to the Board of Immigration Appeals, and from there directly to the appropriate circuit court of appeals. 8 C.F.R. § 1003.38(a). This Court does not have jurisdiction to decide whether Tindi is properly detained under 8 U.S.C. § 1226(c).

Once removal proceedings have been completed, ICE has separate authority to detain individuals to ensure they are removed. Under 8 U.S.C. § 1231(a)(2), the Attorney General shall detain an alien during the 90-day removal period following a final order of removal and may thereafter continue to detain an individual removable under § 1227(a)(2) if the Attorney General determines the alien is a risk to the community. 8 U.S.C. § 1231(a)(6).

2. Judicial Review of Immigration Detention

The Supreme Court has determined that the length of an alien's detention – both before and after a final order of removal has issued – is subject to habeas corpus review by federal courts.² See Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (pre-removal detention); Zadvydas v. Davis, 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (post-removal detention).

Tindi's case resides in that nebulous intersection of pre-removal detention under 8 U.S.C. § 1226 and Demore, and post-removal detention under § 1231 and Zadvydas, which intersection has been carefully described, analyzed and applied in Bah v. Cangemi , 489 F.Supp.2d 905 (D. Minn. 2007) and Davies v. Tritten , No. 017CV03710SRNSER, 2017 WL 4277145 (D. Minn. Sept. 25, 2017). The particular facts and procedural history of Tindi's case, however, distinguish it from both Bah and Davies . Accordingly, a brief review of this intersection and of those opinions is in order.

3. Post Removal Detention ( 8 U.S.C. § 1231 )

8 U.S.C. § 1231, which governs detention of persons subject to a final order of removal, provides that such persons shall be detained for the 90-day removal period following issuance of the final removal order, and may be detained beyond the 90-day period as necessary. 8 U.S.C. § 1231(a)(6). However, the Government's power to detain even those persons who have been convicted of crimes is not without limitation. In Zadvydas v. Davis , 533 U.S. 678, 689-90, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the United States Supreme Court held that post-removal detention up to six months is presumptively reasonable and does not violate the detainee's Fifth Amendment right to due process. Id. at 690, 693-94, 701, 121 S.Ct. 2491. Detention longer than six months is not presumptively reasonable, but nonetheless comports with due process if there is a "significant likelihood of removal in the reasonably foreseeable future." Id. at 701, 121 S.Ct. 2491. Once a detainee "provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. Absent such evidence, the detainee must be released. Bah , 489 F.Supp.2d at 922-23.

For a brief period, Tindi was subject to a final order of removal. Tindi's order of removal became final upon the rejection of his administrative appeal on April 27, 2017. He remained in final removal status until June 1, 2017, when the Eighth Circuit stayed the removal order. See Bah , 489 F.Supp.2d at 918. Shortly thereafter on June 23, 2017, the Eighth Circuit also stayed Tindi's entire PFR proceeding pending a decision by the United States Supreme Court in Dimaya.

In Bah v. Cangemi , 489 F.Supp.2d 905 (D. Minn. 2007), this Court considered how Zadvydas is applied to someone, like Tindi, who has been subject to a final removal order but has later been granted a stay of that order. In Bah , the petitioner awaited deportation for over two years, but had not been released under Zadvydas because he had repeatedly...