Anyanwu v. Board of Immigration Appeals
ORDER ACCEPTING REPORT AND RECOMMENDATION. The Report and Recommendation 12 is ACCEPTED. The action is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. Section 1915(e)(2)(B). Anyanwu's application to proceed in forma pauperis 2 is DENIED as moot. Anyanwu's motion for a preliminary injunction 13 is DENIED. Anyanwu's motion for appointment of counsel 7 is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Nancy E. Brasel on 4/26/2021.(KMW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICHARD ANYIAM ANYANWU,
BOARD OF IMMIGRATION APPEALS,
Case No. 20‐CV‐2475 (NEB/HB)
ORDER ACCEPTING REPORT AND
Plaintiff Richard Anyiam Anyanwu sued the Board of Immigration Appeals
(“BIA”) alleging violations of his civil rights under 42 U.S.C. Section 1983. In a
February 9, 2021 Report and Recommendation, United States Magistrate Judge Hildy
Bowbeer recommends that the matter be dismissed without prejudice. (ECF No. 12
(“R&R”).) Judge Bowbeer also recommends denying Anyanwu’s pending application to
proceed in forma pauperis and his remaining motions. (Id.) Anyanwu filed objections to
the R&R, and so the Court conducts a de novo review. (ECF No. 17 (“Obj.”); 28 U.S.C.
§ 636(b)(1); D. Minn. L.R. 72.2(b)(3)). Because Anyanwu is proceeding pro se, the Court
construes his objections liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Anyanwu, a native and citizen of Nigeria, has been subject to a final order of
removal since 1998. Anyanwu v. Bd. of Immigr. Appeals, No. 18‐CV‐707 (NEB/TNL), 2018
WL 5660158, at *1 (D. Minn. Sept. 27, 2018), report and recommendation adopted, 2018 WL
5635116 (D. Minn. Oct. 31, 2018). In 2003, Anyanwu was charged with attempted first‐
degree murder and first‐ and second‐degree assault. Id. (citing State v. Anyanwu, 681
N.W.2d 411, 412 (Minn. Ct. App. 2004)). Since then, Anyanwu has spent stretches of time
in both the Minnesota prison system and the Minnesota Security Hospital. Id.; (ECF No.
1‐11 at 19.) Due to his mental illness, Anyanwu currently resides in the Minnesota
Security Hospital; he wishes to transfer to a group home. (ECF No. 1 (“Compl.”) at 6–7.1)
The State granted Anyanwu a provisional discharge to a group home, but
Anyanwu asserts the BIA’s removal order prevented the discharge. (ECF No. 1‐1 at 1; see
id. at 3; Compl. at 7; ECF No. 1‐11 at 1–3; ECF No. 18.) According to Anyanwu, he could
be moved to a group home if the BIA would release his deportation order. (Compl. at 6–
7; see ECF No. 1‐5 (“[B]ecause of [Anyanwu’s] immigration status, we are unable to place
him at a community group home”).) Anyanwu alleges the BIA’s removal order violates
his constitutional rights because it prevents the provisional discharge. In addition to
monetary compensation, Anyanwu asks this Court to vacate the BIA’s removal order so
he can move to a group home.2 (See Compl. at 7 (asking for “[i]njunctive relief from
custody of B.I.A.”); ECF No. 1‐1 at 3 (asking the Court to give Anyanwu “protection from
Page references to the Complaint refer to the document’s pagination.
Many of the exhibits attached to the Complaint are substantially similar to those
Anyanwu attached to his 2018 petition for habeas corpus. See Anyanwu v. Bd. of Immigr.
Appeals, No. 18‐CV‐707 (NEB/TNL), ECF Nos. 1‐2–1‐4, 1‐6–1‐7, 1‐12–1‐14, 1‐17–1‐18).
the [BIA] not to deport” him); ECF No. 18 at 1 (“I am appealing for my own defense not
to be deported.”).) He also alleges that his current medical care is unconstitutionally
inadequate. (See ECF No. 1‐1 at 1–2 (asserting that he has the right “to receive treatment
for a mental illness” and “to adequate psychiatric care . . . necessary to maintain patient
health and safety”).)
Anyanwu also moves to proceed in forma pauperis (IFP), for a preliminary
injunction that would require that he be transferred to a lower‐security care facility, and
for appointment of counsel. (ECF Nos. 2, 3, 4, 7.)
Failure to State a Claim
When a litigant seeks IFP status, the Court must review the action and dismiss it
if the complaint “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii). In other words, the complaint must allege a wrong that the Court can
remedy. During this review, the Court accepts as true all the factual allegations in the
complaint and draws all reasonable inferences in the plaintiff’s favor. Aten v. Scottsdale
Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008); Williams v. Willits, 853 F.2d 586, 588 (8th Cir.
1988). Pro se complaints, like this one, must be construed liberally. Stone v. Harry, 364
F.3d 912, 914 (8th Cir. 2004).
Anyanwu’s Complaint alleges that the BIA’s refusal to rescind his order of
removal keeps him from being transferred from a state hospital to a group home. (Compl.
at 6–7.) Because he asks the Court to prevent the BIA from deporting him, the Court treats
this claim as a petition to review his deportation order. As the R&R notes and as this
Court has explained to Anyanwu previously, it has no jurisdiction to issue the order
Anyanwu seeks. (R&R at 3.) “To the extent Anyanwu seeks to challenge the deportation
order . . . or any other immigration decision, this federal district court lacks jurisdiction.”
Anyanwu, 2018 WL 5660158, at *3. Under Section 106 of the REAL ID Act, “a petition for
review to the courts of appeal is the exclusive means of review of an administrative order
of removal, deportation, or exclusion.” Tostado v. Carlson, 481 F.3d 1012, 1014 (8th Cir.
2007) (citing 8 U.S.C. § 1252(a)(5)) (holding that a habeas petition was not a proper avenue
for review of a removal order because the REAL ID Act established the procedures for
review). As a result, to the extent Anyanwu seeks a holding that his order of removal is
unlawful, this Court lacks jurisdiction to grant relief.
Anyanwu nonetheless insists that the election of United States President Joseph R.
Biden entitles him to a new argument because the Biden administration has changed the
nation’s immigration policies. (Obj. at 1.) But nothing about the change in the presidential
administration has any effect on this Court’s jurisdiction.
To the extent that Anyanwu’s claims do not rely on an argument that the order of
removal is unlawful, the BIA is not an appropriate defendant for this action. Civil rights
suits afford detainees and prisoners a vehicle to challenge the conditions of their
confinement while leaving undisturbed the core authority legitimizing their detention in
the first instance. See e.g., Bucklew v. Precythe, 139 S. Ct. 1112, 1128 (2019) (using a § 1983
claim to challenge the state’s selected method for lethal injection). But to succeed on such
a challenge, the defendant must be the party responsible for the allegedly
unconstitutional conditions of confinement. In arguing that his current medical care is
inadequate, Anyanwu acknowledges that he is in state custody. (ECF No. 1‐1 at 1 (“State
of Minnesota has current jurisdiction under (MID) Mentally Ill and Dangerous order.”);
Compl. at 6–7 (similar); see ECF No. 1‐11 at 2 (granting Anyanwu a provisional
discharge).)3 The BIA does not control the conditions of Anyanwu’s medical care and is
not the appropriate defendant for this claim.
Because Anyanwu fails to state a claim on which relief may be granted, the Court
dismisses his complaint. The Court denies his application for in forma pauperis status as
Motion for a Preliminary Injunction
Anyanwu also filed a motion for a preliminary injunction seeking transfer to a
lower‐security facility or a group home. (ECF No. 3.) But he does not dispute that he is
currently in state custody. The BIA is the only defendant to this action and, as explained
above, the Court cannot compel the BIA to review or vacate the order of removal that
The State of Minnesota Special Review Board recommended granting Anyanwu a
provisional discharge but denying his discharge from civil commitment as mentally ill
and dangerous. (ECF No. 1‐11 at 21.)
allegedly prevents Anyanwu from being transferred to a group home. Therefore, the
motion for a preliminary injunction is denied.
Motion for Appointment of Counsel
Finally, Anyanwu requests that the Court appoint counsel to help him litigate this
matter. (ECF No. 7.) A pro se litigant is not statutorily or constitutionally entitled to
counsel in a civil case. Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (citation
omitted). To determine whether to appoint counsel, a court considers “the complexity of
the case, the ability of the indigent litigant to investigate the facts, the existence of
conflicting testimony, and the ability of the indigent to present his claim.” Id. (citation
omitted). The Court acknowledges that Anyanwu will continue to struggle with
representing himself in this matter. But even if the Court appointed counsel, it is unlikely
that counsel could help Anyanwu with his current claims because, as explained above,
the Court lacks jurisdiction to review the BIA’s order of removal. Furthermore, to the
extent Anyanwu argues his current care at the Minnesota Security Hospital is
inappropriate, he has failed to make clear why his current care is unconstitutional. For
these reasons, the motion to appoint counsel is denied.
Based on the foregoing and on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
The Report and Recommendation (ECF No. 12) is ACCEPTED;
The action is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
Anyanwu’s application to proceed in forma pauperis (ECF No. 2) is DENIED
Anyanwu’s motion for a preliminary injunction (ECF No. 3) is DENIED;
Anyanwu’s motion for appointment of counsel (ECF No. 7) is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: April 26, 2021
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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