Martinez-Senan et al v. Tritten et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Wilhelmina M. Wright on 3/8/2018. (TJB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Drian Martinez-Senan and
Sarah Martinez,

Case No. 17-cv-5080 (WMW/BRT)
Petitioners,
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
Leslie D. Tritten, et al.,
Respondents.

This matter is before the Court on the December 7, 2017 Report and
Recommendation (R&R) of United States Magistrate Becky R. Thorson. (Dkt. 17.) The
R&R recommends dismissing without prejudice Petitioners Drian Martinez-Senan and
Sarah Martinez’s petition for a writ of habeas corpus and denying Petitioners’ motions
for injunctive relief. Petitioners timely objected to the R&R. For the reasons that follow,
the Court overrules Petitioners’ objections and adopts the R&R.
BACKGROUND1
Martinez-Senan is a citizen of Cuba who became a lawful permanent resident of
the United States on September 25, 2013. Martinez-Senan was convicted of rape on
March 15, 2017, in South Dakota. United States Immigration and Customs Enforcement
subsequently arrested Martinez-Senan and initiated removal proceedings, charging him
with being an alien convicted of an aggravated felony after his admission into the United
States. 8 U.S.C. § 1227(a)(2)(A)(iii). On June 15, 2017, an immigration judge ordered
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R&R.

The factual and procedural background is addressed with greater detail in the

Martinez-Senan removable to Cuba.
Immigration Appeals.

Martinez-Senan appealed to the Board of

Petitioners married during the pendency of Martinez-Senan’s

appeal, and Martinez filed a Form I-130 with the United States Citizenship and
Immigration Services seeking classification of Martinez-Senan as an immediate relative
of Martinez. A ruling on Martinez’s Form I-130 remains pending.
On November 3, 2017, the Board of Immigration Appeals dismissed
Martinez-Senan’s appeal, which initiated Martinez-Senan’s removal period. See 8 U.S.C.
§ 1231(a)(1)(B)(i)-(iii). Petitioners filed this petition for a writ of habeas corpus on
November 10, 2017, and two days later filed motions for expedited injunctive relief.
Petitioners seek an order releasing Martinez-Senan pending the completion of his
removal proceedings and an order compelling the adjudication of Martinez’s Form I-130.
ANALYSIS
The R&R recommends dismissing without prejudice as premature the petition for
a writ of habeas corpus and denying the motions for expedited injunctive relief because
Petitioners cannot establish an unreasonable delay in the processing of Martinez’s
Form I-130. Because Petitioners filed objections to the R&R, this Court conducts a de
novo review. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); LR 72.2(b)(3);
Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
Martinez-Senan’s removal period commenced when the Board of Immigration
Appeals dismissed Martinez-Senan’s appeal on November 3, 2017.

See 8 U.S.C.

§ 1231(a)(1)(B)(i); Giraldo v. Holder, 654 F.3d 609, 611 (6th Cir. 2011) (explaining that
orders of removal are administratively final when affirmed by the Board of Immigration
Appeals). The Immigration and Nationality Act requires the detention and removal of an
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alien within 90 days of the commencement of a removal period. Id. § 1231(a)(1)-(2).
But when, as here, an alien convicted of an aggravated felony cannot be removed within
that 90-day window, continued detention may be warranted until removal is secured. Id.
§ 1231(a)(6). In Zadvydas v. Davis, the Supreme Court of United States held that “an
alien’s post-removal-period detention” cannot exceed “a period reasonably necessary to
bring about that alien’s removal.” 533 U.S. 678, 689 (2001). The Zadvydas Court
determined that a post-removal-period lasting six months is “presumptively reasonable,”
and a longer detention may be appropriate depending on the likelihood of removal in the
near future.

Id. at 701.

Because Martinez-Senan’s removal period commenced on

November 3, 2017, his current detention remains “presumptively reasonable.” Id. The
petition for a writ of habeas corpus at issue here, therefore, is premature.
Petitioners also seek expedited injunctive relief requiring an adjudication of
Martinez’s Form I-130. To obtain such relief, a petitioner must establish that the delay in
processing is unreasonable.

See, e.g., Ali v. Frazier, 575 F. Supp. 2d 1084, 1090

(D. Minn. 2008). The R&R determines, based on publicly available information, that an
average processing time for a Form I-130—as of September 20, 2017—is 8.5 months.
Martinez filed her Form I-130 approximately eight months ago. Petitioners have not
established that a delay in processing Martinez’s Form I-130, if any, is unreasonable.
Petitioners contend that Miah v. Mukasey, 519 F.3d 784 (8th Cir. 2008), controls
under these circumstances and requires granting the relief they seek. This argument is
unavailing. Miah does not address the post-removal-detention of an alien convicted of an
aggravated felony or the timeline in which immigration filings must be adjudicated. See
519 F.3d at 786-89 (rejecting argument that removal was unwarranted because appellant
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should be granted asylum or protection under the Convention Against Torture). In sum,
Miah is inapposite.
Petitioners also assert that Martinez “has done everything to assist in a speedy
adjudication” and that Respondents “may delay for as long as [they] choose[].” But
Petitioners’ arguments do not address the holding of Zadvydas or the fact that Martinez’s
Form I-130 falls within an average processing time for adjudication. The R&R does not
recommend, nor would the law support, a perennial delay in Martinez-Senan’s removal
or in the adjudication of Martinez’s Form I-130.

Presently, the timeliness of both

Martinez-Senan’s post-removal-detention and the processing of Martinez’s Form I-130
remains reasonable. For this reason, the Court overrules Petitioners’ objections.
Because Petitioners do not object to any other aspect of the R&R, the Court
reviews the remainder of the R&R for clear error. See Grinder, 73 F.3d at 795; see also
Fed. R. Civ. P. 72(b) advisory committee’s note (“When no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.”). Having carefully performed this review, the Court
finds no clear error and adopts the recommendations.
ORDER
Based on the foregoing analysis, the Report and Recommendation, and all the files,
records and proceedings herein, IT IS HEREBY ORDERED:
1.

Petitioners’ objections to the Report and Recommendation, (Dkt. 18), are

OVERRULED;
2.

The December 7, 2017 Report and Recommendation, (Dkt. 17), is

ADOPTED;
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3.

Petitioners’ Petition for a Writ of Habeas Corpus, (Dkt. 1), is DISMISSED

WITHOUT PREJUDICE;
4.

Petitioners’ Motion for a Preliminary Injunction, (Dkt. 2), is DENIED;

5.

Petitioners’ Motion for a Temporary Restraining Order, (Dkt. 3), is

DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: March 8, 2018

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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