Sall v. Adducci et al

Filing 8

ORDER granting 1 Petition for Writ of Habeas Corpus - Deportation, filed by Abdou Karim Sall. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ABDOU KARIM SALL,
Case No. 18-10935
Petitioner.
v.

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

DIRECTOR, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, ET AL.,

U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Respondents.
/
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS [1]
Petitioner Abdou Karim Sall, a native and citizen of Senegal, filed a Petition
for Writ of Habeas Corpus [Dkt. 1] on March 21, 2018. Mr. Sall asks the Court to,
among other things, issue a writ of habeas corpus directing Respondents – the
Immigration and Customs Enforcement (“ICE”) Agency’s District Director for the
Detroit office, Rebecca Adducci, ICE Deputy Director Thomas D. Homan, U.S.
Secretary of Homeland Security Kirstjen M. Nielson, U.S. Attorney General Jefferson
B. Sessions III, and Lieutenant Paul Stanaway – to release him immediately, subject
to reasonable terms of supervision. Mr. Sall argues that he is being unlawfully
detained1 and that he is not subject to the mandatory detention provisions of section
236(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c).

1

Mr. Sall is detained at the Chippewa County Jail in Sault Ste. Marie, Michigan.

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Respondents argue that Mr. Sall’s detention pending completion of removal
proceedings is mandated by § 1226(c). They maintain that the Court should defer to
the Board of Immigration Appeals’ (“BIA”) interpretation of § 1226(c), as well as its
decision in In re Rojas, 23 I. & N. Dec. 117 (B.I.A. 2001). See Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
For the reasons discussed below, the Court will GRANT Mr. Sall’s Petition for
Writ of Habeas Corpus [1].
FACTUAL AND PROCEDURAL BACKGROUND
35-year-old Petitioner Abdou Karim Sall is a native and citizen of Senegal. Mr.
Sall’s father, a former employee at the Senegal Consulate, helped his son enter the
U.S. with a valid visa in April 2002. Mr. Sall’s father returned to Senegal two years
later.
Shortly after arriving in the U.S., Mr. Sall began working as a street vendor in
New York, making approximately $30-$40 per day. He was convicted of petit larceny
in Hempstead, New York on November 22, 2006. Four or five years later, Mr. Sall
met his current wife, Kalissa Maxwell-Sall, who is an American citizen. He converted
to Christianity around this time.
Mr. Sall was convicted of four fraud-related offenses in New York between
September 2010 and December 2012. These convictions, for third degree trademark
counterfeiting and theft of services, related to his work as a street vendor and his
failure to pay for public and private transportation in New York City.

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Mr. Sall’s son, Elhadji Sall, was born in New York in June 2013. It appears that
Mr. Sall and his family moved to Michigan sometime after 2015.2
Mr. Sall suffers from bipolar disorder. During the summer of 2017, Kalissa
observed her husband’s mental health issues for the first time. He behaved in erratic,
strange, and aggressive ways. One day, in June 2017, Mr. Sall apparently wandered
away from home. When Kalissa found him and he returned home, he hit her on the
back and on the back of the head. Mr. Sall was convicted of a disorderly person
offense on June 27, 2017. The following day, Mr. Sall was taken into custody.
On July 10, 2017, an Immigration Court judge denied Mr. Sall’s request for an
individualized bond hearing, on the grounds that Mr. Sall is subject to mandatory
detention pursuant to 8 U.S.C. § 1226(c). Mr. Sall did not apply for asylum until he
was in immigration court.
Kalissa and Mr. Sall married on August 18, 2017, while Mr. Sall was in
custody. Their daughter, Adalisa Gloriana Sall, was born in White Lake, Michigan in
October 2017.
On November 20, 2017, a second Immigration Court judge denied Mr. Sall’s
application for asylum and ordered that he be removed to Senegal. The judge also,
however, granted Mr. Sall’s application withholding of removal, which forbids the
Department of Homeland Security (“DHS”) from removing Mr. Sall to Senegal. Mr.
2

In the oral decision denying asylum and granting withholding of removal, the
Immigration Judge noted that Mr. Sall “testified that he was hospitalized several times in
New York City between 2000 and 2015 for depression.” See Dkt. 1, Pg. ID 27.

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Sall waived his right to appeal on all issues. DHS appealed the judge’s grant of
withholding removal to the BIA.
The BIA issued its decision on May 8, 2018. The BIA remanded Mr. Sall’s
case for further proceedings, on the grounds that the Immigration Court judge failed to
“explain why she believed that the respondent’s proposed particular social group3 was
cognizable under section 241(b)(3) of the [INA].” (Dkt. 6, Pg. ID 94). The BIA
directed the Immigration Court judge to enter a new decision “setting forth – pursuant
to the applicable statutes, regulations, and case law – her basis for granting” Mr. Sall’s
application for withholding of removal. Id. at Pg. ID 95.
LAW AND ANALYSIS
This case involves the BIA’s construction of 8 U.S.C. § 1226(c). Accordingly,
the Court applies the two-step analysis described as follows in Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984):
First, always, is the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court determines
Congress has not directly addressed the precise question at issue, the court does
not simply impose its own construction on the statute, as would be necessary in
the absence of an administrative interpretation. Rather, if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction of the
statute.
8 U.S.C. § 1226(c) provides:
3

Mr. Sall explained that his proposed social group “consist[ed] of indigent Senegalese
citizens in Senegal without family support with bipolar disorder who exhibit outwardly
erratic behavior.” (Dkt. 6, Pg. ID 94).

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(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who –
(A) is inadmissible by reason of having committed any offense covered
in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in
section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis
of an offense for which the alien has been sentence [sic] to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on
parole, supervised release, or probation, and without regard to whether the alien
may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1)
only if the Attorney General decides . . . that release of the alien from
custody is necessary to provide protection to a witness . . . and the alien
satisfies the Attorney General that the alien will not pose a danger to the
safety or other persons or of property and is likely to appear for any
scheduled proceeding . . . .
(emphasis added).
The Court joins the majority of others courts in this District in concluding that
§ 1226(c) does not apply to an individual not taken into custody immediately upon
release from criminal custody. See Hamama v. Adducci, 285 F.Supp.3d 997, 1016
(E.D. Mich. 2018); Rosciszewski v. Adducci, 983 F.Supp.2d 910, 916 (E.D. Mich.
2013); Khodr v. Adduci, 697 F.Supp.2d 774, 778 (E.D. Mich. 2010). “[T]he phrase

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‘when the alien is released’ clearly and unambiguously requires that the Attorney
General take the alien into custody immediately upon the alien’s release from criminal
custody.” Khodr, 697 F.Supp.2d at 778. By using the word ‘when,’ “Congress
demonstrated its intent that such aliens be taken into custody contemporaneous with
their release or not at all (at least under section 1226(c)).” Id. at 778-79. The Khodr
Court also noted that the BIA “agreed with this reading of the statute.” Id. at 779
(citing Matter of Rojas, 23 I. & N. Dec. 117, 122 (BIA 2001)).
These courts also highlighted the delay between the time petitioners were
released from criminal custody and the time they were taken into ICE custody. Id. at
780 (finding that “the four year plus delay in taking Petitioner into custody was
clearly an unreasonable delay.”); see also Rosciszewski, 983 F.Supp.2d at 916 (an 11
year delay between release from criminal custody and entering ICE custody is clearly
unreasonable delay); Zabadi v. Chertoff, 2005 WL 3157377, at *1-2 (N.D. Cal. Nov.
22, 2005) (a two-year period between release from criminal custody and ICE
detention was deemed unreasonable for § 1226(c) purposes).
In this case, Mr. Sall’s most recent conviction for a deportable offense was
theft of services in December 2012. This nearly five year delay is clearly unreasonable
under § 1226(c).
CONCLUSION
For the reasons set forth above,

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IT IS ORDERED that Petitioner’s Petition for Writ of Habeas Corpus [1] is
GRANTED.
IT IS FURTHER ORDERED that Respondents shall release Petitioner from
custody immediately.
IT IS FURTHER ORDERED that Respondents shall transport Petitioner
from the Chippewa County Jail to Petitioner’s home in White Lake, Michigan.
IT IS FURTHER ORDERED that Respondents shall not detain Petitioner in
any custodial facility, but shall instead require that he submit to the electronic
tethering program administered by the U.S. Pretrial Services.
IT IS FURTHER ORDERED that Petitioner will, in the company of his
lawyer, meet with a representative from U.S. Pretrial Services for initiation of the
tethering program.
IT IS FURTHERED ORDERED that Petitioner shall not leave the Eastern
District of Michigan.
IT IS FURTHER ORDERED that Petitioner shall report daily (or less
frequently, as required by U.S. Pretrial Services) by telephone to Pretrial Services.
IT IS FURTHER ORDERED that Respondents shall recommend to the
immigration judge that this case receive priority consideration for an early removal
hearing.
IT IS FURTHER ORDERED that Petitioner will enroll in a mental health
treatment program.

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IT IS FURTHER ORDERED that this Order will be in effect until further
order of the Court. Modifications to this Order may be made by stipulation of the
parties or, in the event of changed circumstances, through application to the Court.
SO ORDERED.

Dated: May 24, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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