Mohamed A. v. Brott

Background

Abdirizak Mohamed A. petitioned for review of his immigration detention under 28 U.S.C. § 2241. Immigration and Customs Enforcement had detained him for more than 26 months under 8 U.S.C. § 1226(c), while his removal proceedings and related appeals continued. He sought immediate release or, alternatively, a bond hearing before an immigration judge.

Abdirizak argued that his prolonged detention violated the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s prohibition on excessive bail. He had entered the United States as a refugee, later became a lawful permanent resident, and had several Minnesota criminal convictions. His removal proceedings involved applications for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture. The opinion states that the Eighth Circuit appeal concerning his removal proceedings was pending when he filed this petition.

Magistrate Judge Hildy Bowbeer recommended denying immediate release but granting a bond hearing within 30 days based on the Fifth Amendment claim. The respondents objected, arguing that the recommendation used the wrong legal test and that applying that test should result in denial of the petition.

Legal standard

The court conducted a fresh review of the challenged portions of the recommendation. It held that an individualized, fact-based test should be used to determine whether the length of detention under § 1226(c) violates due process. The six factors were:

The court explained that the Supreme Court’s decisions in Demore v. Kim and Jennings v. Rodriguez did not prevent courts from considering the length of detention in an as-applied due-process challenge. Those decisions did not establish a specific time limit, but they recognized that detention under § 1226(c) was generally expected to be brief or limited.

Application of the factors

The court found that the factors, considered together, favored a bond hearing. Abdirizak had been detained for more than 26 months, which the court considered a long period. The future duration of his detention was uncertain because the court could not predict when the temporary stay of removal would end, when the Eighth Circuit would decide his appeal, or whether further proceedings would follow.

The conditions of detention also favored a hearing. The respondents acknowledged that Abdirizak was held in criminal correctional facilities, and the court noted that he was in a county jail alongside inmates serving criminal sentences. The court found no evidence that either Abdirizak or the government had caused delays in the removal proceedings. The record also did not allow a reasonable prediction about whether the proceedings would ultimately result in a final removal order. These remaining factors were neutral or did not outweigh the factors favoring a hearing.

Ruling

The court overruled the respondents’ objection and accepted the Report and Recommendation. It denied Abdirizak’s request for immediate release and granted the petition in part. The court ordered that an immigration judge provide Abdirizak with a bond hearing within 30 days of the order’s entry. At that hearing, the immigration judge must make an individualized determination about whether detention is necessary to protect the community or prevent flight.

The court did not address the Eighth Amendment excessive-bail claim because its ruling on the due-process claim made it unnecessary to do so. It also stated that Abdirizak’s request for attorney fees and costs under the Equal Access to Justice Act was not properly submitted and could not be considered at that time.