Ndikumana v. Barr
- John Tunheim
- 0:19-cv-03144
- U.S. District Court · District of Minnesota
- 5
In Ndikumana v. Barr, Judge Tunheim dismissed the detention challenge without prejudice because it was not yet ripe under post-removal detention law.
Egide Ndikumana, whose challenge to his immigration detention was dismissed without prejudice; the respondents remained parties to the detention case.
What happened
In Ndikumana v. Barr, Egide Ndikumana challenged his continued immigration detention and sought release. His removal order became final on January 22, 2020, after he withdrew his appeal.
The court explained that detention is required during the first 90 days after a removal order becomes final. The Supreme Court has said that the first six months are generally presumed reasonable, and Ndikumana had not yet been detained that long under the final order.
Judge Tunheim vacated the magistrate judge’s earlier recommendation and dismissed Ndikumana’s petition without prejudice because the claim was not yet ready for decision. The order allowed Ndikumana to file again later if he could show a significant likelihood that removal would not occur in the reasonably foreseeable future.
The detailed version
- Ndikumana v. Barr · No. 0:19-cv-03144
- John Tunheim
- July 1, 2020
Background
Egide Ndikumana, proceeding without a lawyer, filed a petition under 28 U.S.C. § 2241 challenging his immigration detention and seeking release. He had been in immigration custody, with small gaps, since August 2018. His removal proceedings were initially terminated and later reinstated. In April 2019, an immigration judge found him removable. Ndikumana appealed to the Board of Immigration Appeals but later withdrew the appeal, making the removal order final on January 22, 2020.
A magistrate judge issued a Report and Recommendation recommending denial of the petition because Ndikumana was then within the first 90 days after the removal order became final. Ndikumana objected, explaining that he was concerned about detention continuing beyond 180 days, particularly because obtaining travel documents and official permissions could take significant time.
Legal standard and analysis
The district judge reviewed the objected-to portions of the recommendation independently. Under 8 U.S.C. § 1231, detention is mandatory during the initial 90-day period after a removal order becomes final. Detention may continue beyond that period, but the Supreme Court has held that it may last only for a period reasonably necessary to accomplish removal, not indefinitely.
The first six months of post-removal-order detention are presumed reasonable. After six months, a detainee may show good reason to believe that removal is not significantly likely in the reasonably foreseeable future; if that showing is made, the government must respond with evidence.
Because Ndikumana had been detained under the final removal order for fewer than six months, his detention was presumptively reasonable. The court also found that he had not attempted to make the required showing. His concern about possible detention beyond 180 days did not make the petition ready for decision at that time.
Disposition
Judge John R. Tunheim vacated the Report and Recommendation. The court dismissed Ndikumana’s petition for a writ of habeas corpus without prejudice. The opinion states that Ndikumana may file again later if he can demonstrate good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.