Tindi v. Secretary et al

Filing 25

ORDER adopting Report and Recommendations re 18 Report and Recommendation; denying 23 Motion Compelling Immediate Release.(Written Opinion) Signed by Senior Judge David S. Doty on 2/5/2018. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-3663(DSD/DTS)
Wilson Nduri Tindi,
Petitioner,
v.

ORDER

Secretary,
Department of Homeland Security;
Jefferson Sessions,
Attorney General;
Scott Baniecke,
ICE Field Office Director; and
Kurt Freitag,
Freeborn County Sheriff,
Respondents.

This

matter

is

before

the

court

upon

the

objection

of

respondents Kirstjen M. Nielsen, Secretary of the Department of
Homeland Security; Jefferson Sessions, Attorney General; and Peter
Berg,1 Acting Field Office Director of United States Immigration
and Customs Enforcement to the December 8, 2017, report and
recommendation (R&R) of Magistrate Judge David T. Schultz.

In his

report, the magistrate judge recommended that the court grant pro
se petitioner Wilson Nduri Tindi’s petition for writ of habeas
corpus.

After a de novo review, the court overrules the objection

and grants the writ of habeas corpus.

1

Pursuant to Fed. R. Civ. P. 25(d), the court orders that
Peter Berg, Acting Field Office Director, United States Immigration
and Customs Enforcement shall replace Scott Baniecke on the case
caption.

BACKGROUND
The underlying facts are not in dispute and will not be
repeated except as necessary.

Tindi, a native and citizen of

Kenya, entered the United States in 2005 under a B2 Visitor Visa
that authorized him to remain in the country for six months.
Tindi, however, overstayed his visa, and his application to become
a permanent resident was denied in 2007.
On November 14, 2008, Immigration and Customs Enforcement
(ICE)

initiated

removal

proceedings

against

Tindi,

and

an

immigration judge ordered that Tindi be removed on March 10, 2009.
ICE

took

Tindi

into

custody

in

October

2009.

Tindi

then

successfully reopened his removal proceedings, and ICE released him
on bond in November 2009.

On September 21, 2011, an immigration

judge reversed the removal order.

On April 15, 2014, Tindi became

a lawful permanent resident.
In December 2014, Tindi was charged with first-degree burglary
and fourth-degree sexual assault. He pleaded guilty to the assault
charge, and the prosecutor dismissed the burglary charge pursuant
to a plea agreement.

Tindi was sentenced to twenty-four months’

imprisonment stayed for five years and 210 days in the Hennepin
County Adult Corrections Facility.
On August 16, 2016, ICE took Tindi into custody from the
Hennepin County jail.

On December 9, 2016, an immigration judge

ordered that Tindi be removed to Kenya, finding that Tindi was a

2

removable alien under 8 U.S.C. § 1227(a)(2)(A)(iii), because he had
committed an aggravated felony.

Tindi appealed, and on April 27,

2017, the Board of Immigration Appeals (BIA) affirmed the decision.
A final order of removal was issued on May 4, 2017.
On May 8, 2017, Tindi appealed his state court conviction,
arguing that his counsel had not advised him that pleading guilty
could lead to his removal.
pending.

A decision on the appeal is still

On May 16, 2017, Tindi filed a petition for review of his

final removal order with the Eighth Circuit Court of Appeals.

The

Eighth Circuit stayed Tindi’s removal pending its decision on the
petition for review and stayed the entire proceeding pending the
Supreme Court’s decision in Sessions v. Dimaya, No. 15-1498 (2017).
The Supreme Court has yet to issue its decision in Dimaya.
On August 10, 2017, Tindi filed a writ for habeas corpus
pursuant to 28 U.S.C. § 2241.

The magistrate judge recommended

that the court grant the petition, and respondents now object.

DISCUSSION
I.

Detention of Aliens
Generally, two statutes authorize the detention of aliens.

Under 8 U.S.C. § 1226(a), the government may arrest and detain an
alien “pending a decision on whether the alien is to be removed
from the United States.”

If a final order of removal is issued

against the alien, the government may continue to detain the alien
3

pursuant to 8 U.S.C. § 1231.

Under this statute, the government

must remove the alien within a period of ninety days, the beginning
of which begins on the latest of the following:
(i)
The
date
the
administratively final.

order

of

removal

becomes

(ii) If the removal order is judicially reviewed and if
a court orders a stay of the removal of the alien, the
date of the court’s final order.
(iii) If the alien is detained or confined (except under
an immigration process), the date the alien is release
from detention of confinement.
8 U.S.C. § 1231(a)(1)(B).
If the government does not remove the alien within the ninetyday period, the government may continue to detain the alien if it
determined that the alien is “a risk to the community or unlikely
to comply with the order of removal.”

8 U.S.C. § 1231(a)(6).

Although the statute does not limit the amount of time an alien can
be detained under § 1231(a)(6), the Supreme Court held in Zadvydas
v. Davis, 533 U.S. 678 (2001) that the statute implicitly “limits
an alien’s post-removal-period detention to a period reasonably
necessary to bring about that alien’s removal from the United
States.”
detention

Id. at 689.
period

reasonable.”

of

The court further held that a post-removal
up

Id. at 701.

to

six

months

was

“presumptively

After this six-month period, the alien

must provide “good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future,” and
the government must provide sufficient evidence to rebut such a
4

showing.

Id.

The Zadvydas six-month clock has only been applied to postremoval detention, but, as the magistrate judge correctly noted,
other circuit courts and courts in this district have held that
pre-removal detention is subject to reasonable time limitations.
See, e.g., Davis v. Tritten, No. 17-3710, 2017 WL 4277145, at *3
(D. Minn. Sept. 25. 2017) (collecting cases); Bah v. Cangemi, 489
F. Supp. 2d 905, 920 (D. Minn. 2007).
II.

Basis for Tindi’s Detention
The magistrate judge concluded that Tindi is in pre-removal

detention under § 1226(a).

R&R at 8.

The government argues that

Tindi is being held in post-removal detention under § 1231.

The

court agrees with the magistrate judge that Tindi is in pre-removal
detention. Although Tindi was subject to a final order of removal,
that order was stayed by the Eighth Circuit. Several circuits have
concluded that when a court stays a final order of removal, the
alien is no longer subject to a final order of removal and the
removal

period

has

not

yet

begun.

See

8

U.S.C.

§ 1231(a)(1)(B)(ii)(“If the removal order is judicially reviewed
and if a court orders a stay of the removal of the alien, the
[start of the removal period is the] date of the court’s final
order.”); see also Sopo v. U.S. Attorney Gen., 825 F.3d 1199, 1209
(11th Cir. 2016) (internal quotation marks omitted) (“If a court
stays an alien’s removal during judicial review of the alien’s

5

removal order, the statutory 90-day removal period does not begin
until the court’s final order.”); Codina v. Chertoff, 283 Fed.
App’x 432, 433 (8th Cir. 2008); Casas-Castrillon v. Dep’t of
Homeland Sec., 535 F.3d 942, 947-48 (9th Cir. 2008); Taylor v.
Attorney Gen. of the United States, 241 Fed. App’x 6, 9 (3d Cir.
2007);

Wang

v.

Ashcroft,

320

F.3d

130,

147

(2d

Cir.

2003).

Further, Tindi is currently detained pursuant to § 1226(a) because
he is awaiting a “decision on whether [he] is to be removed from
the United States.” 8 U.S.C. § 1226(a); see also Casas-Castrillon,
535 F.3d at 947-48 (concluding that an alien whose removal had been
stayed was detained under § 1226(a)).

Accordingly, the court

concludes that Tindi is being detained pursuant to § 1226(a), not
§ 1231.
III. Reasonableness of Tindi’s Detention
As noted by the magistrate judge, the Eighth Circuit has not
discussed when pre-removal detention becomes unreasonable, but the
majority of circuits have adopted a fact-based inquiry. See R&R at
9; see also Davies, 2017 WL 4277145, at *3 (collecting cases).
the

Reid,

First

Circuit

considered

a

non-exhaustive

list

In
of

relevant factors in determining whether an alien’s pre-removal
detention was unreasonable:
“the total length of detention;2 the foreseeability of

2

The magistrate judge adopted the “unencumbered time”
approach, where the legally relevant amount of detention, i.e. the
amount of unencumbered time served, is calculated by subtracting
6

proceedings concluding in the near future (or the likely
duration of future detention); the period of the
detention compared to the criminal sentence; the
promptness (or delay) of the immigration authorities or
the detainee; and the likelihood that the proceedings
will culminate in a final removal order.”
Reid v. Donelan, 819 F.3d 486, 500 (1st Cir. 2016).
Here,

the

magistrate

judge

correctly

considered

Tindi’s

fourteen-month long detention, the fact that Tindi did not flee
when he was previously released on bond, and the uncertainty of
when the Supreme Court will decide Dimaya, when the Eighth Circuit
will render a decision as to if and how Dimaya applies to Tindi’s
circumstances, and when Tindi’s state court appeal will conclude.
The court notes that Tindi’s continued detention would not
result in the threat of indefinite detention that concerned the
Supreme Court in Zadvydas; it is certain that, at some point, the
Eighth Circuit and the state courts will render decisions on
Tindi’s appeals.

But the probability that those decisions will

“culminate in a final removal order” would require the court to
presume too much.

See Reid, 819 F.3d at 500 (“[T]here is a

difference between the ‘foreseeability’ of proceedings ending and
the ‘foreseeability’ of proceedings ending adversely.”) (emphasis
in original).

detention time served during the stay from the total amount of
detention time. See Bah, 489 F. Supp. 2d at 922. Neither party
objects to the magistrate judge’s calculation that Tindi has been
in pre-removal detention for fourteen months of unencumbered time,
and so the court will not address whether an approach that
considers the total length of detention is more appropriate.
7

Respondents object to the magistrate judge’s analysis as too
narrow and emphasize that there has been no delay on their part in
facilitating Tindi’s deportation and the delay has been due to a
unusually long appeals process.

The court agrees that there is no

evidence that the respondents acted ineffectively in their attempts
to remove Tindi from the United States, but as the magistrate judge
correctly noted, “appeals and petitions for relief are to be
expected as a natural part of the process.

An alien who would not

normally be subject to an indefinite detention cannot be so
detained merely because he seeks to explore avenues of relief that
the law makes available to him.” R&R at 11 (quoting Ly v. Hansen,
351 F.3d 263, 272 (3d Cir. 2003)).
Tindi has been in pre-removal detention for over fourteen
months, the government has provided no evidence that he is a flight
risk or a danger to the community, and the court cannot say with
certainty when his appeals will be decided and whether they will
end in a final order of removal.

The court agrees with the

magistrate judge that Tindi’s continued detention does not “serve[]
the purpose of preventing deportable criminal aliens from fleeing
prior to or during their removal proceedings.”
U.S. 510, 528 (2003).3

Demore v. Kim, 538

As a result, the court grants the petition

3

Tindi filed a motion for an order compelling immediate
release. See ECF No. 23. The court agrees with the magistrate
judge and respondents that the respondents should be given an
opportunity to impose release conditions on Tindi pursuant to 8
C.F.R. § 241.13(h). The court, therefore, will not compel Tindi’s
8

for a writ of habeas corpus.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Peter Berg, Acting Field Office Director, United States

Immigration and Customs Enforcement shall replace Scott Baniecke on
the case caption;
2.

Respondents’ objection [ECF No. 19] is overruled;

3.

The R&R [ECF No. 18] is adopted in its entirety;

4.

Tindi’s petition for writ of habeas corpus [ECF No. 1] is

granted;
5.

Tindi’s motion for an order compelling immediate release

[ECF No. 23] is denied;
6.

Respondents shall release Tindi from custody on or before

February 9, 2018, and may impose release conditions on Tindi
pursuant to 8 C.F.R. § 241.13(h); and
7.

If Tindi is not released on or before February 9, 2018, a

writ of habeas corpus shall issue compelling Tindi’s immediate and
unconditional release.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 5, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

immediate release and denies the motion.
9