Abshir H.A. v. Barr

Background

Abshir H.A. is a citizen and native of Somalia who became a lawful permanent resident in 2008. Immigration and Customs Enforcement arrested him in February 2018 and began removal proceedings based on his 2010 felony conviction for aggravated witness tampering. He remained in mandatory immigration detention under 8 U.S.C. § 1226(c).

In April 2019, Abshir H.A. filed a petition under 28 U.S.C. § 2241 challenging the constitutionality of his continued detention. He sought immediate release or a bond hearing before an Immigration Judge. Magistrate Judge Tony Leung recommended granting the petition in part and ordering a bond hearing. The government objected.

Court’s Analysis

Judge Magnuson conducted a fresh review of the portions of the recommendation to which the government objected, overruled those objections, and adopted the recommendation.

The court held that Abshir H.A.’s continued detention violated due-process protections. It considered factors used by courts in the District of Minnesota for evaluating lengthy detention under § 1226(c): the total length of detention, the likely duration of future detention, the conditions of detention, delays caused by either side, and the likelihood of a final removal order.

The court emphasized that Abshir H.A. had already been detained for 18 months—well beyond the one- to five-month periods discussed in the Supreme Court’s decision in Demore v. Kim. His removal proceedings had no definite end because the government’s appeal of an Immigration Judge’s decision concerning an inadmissibility waiver remained pending, and further appeals were possible. The parties also agreed that he was being held in a penal setting, even though detention under § 1226(c) is civil rather than criminal. The court found that neither side had caused undue delay, and it treated the likelihood of a final removal order as neutral because it lacked a sufficient basis to assess the merits of the Immigration Judge’s decision and the appeals.

Relief Ordered

The court determined that a bond hearing, rather than immediate release, was the appropriate remedy. It noted that the Immigration Judge could consider relevant information and decide whether Abshir H.A. presented a flight risk or danger to the community. The court left the burden and level of proof for the Immigration Judge to decide in the first instance.

Disposition

The Report and Recommendation was adopted. Abshir H.A.’s petition was granted in part. An Immigration Judge was ordered to provide him with a bond hearing within 30 days of the order and to make an individualized determination about whether detention was necessary to protect the community or prevent him from fleeing.