Omar M. v. Barr

Background

Omar M. was in Immigration and Customs Enforcement custody during ongoing removal proceedings. He entered the United States as a refugee in 1999 and later became a lawful permanent resident. His record included a 2008 federal controlled-substance conviction and a 2017 Minnesota conviction for two counts of fraud involving employment of runners.

The government began removal proceedings in 2011 based on the controlled-substance conviction. An immigration judge later denied all requested relief and ordered Omar M. removed. He appealed to the Board of Immigration Appeals, and that appeal was still pending when he filed this case. Because there was not yet a final removal order, the court concluded that his detention was governed by 8 U.S.C. § 1226(c), which generally requires detention during removal proceedings for certain people with qualifying criminal convictions.

Omar M. had been detained since June 6, 2017. In an earlier related proceeding, a court ordered a bond hearing. At that hearing, the immigration judge denied bond and placed the burden on Omar M. to show that he was not a flight risk or danger to the community. Omar M. did not appeal that bond decision. Sixteen months later, he filed this petition seeking release or another bond hearing. He also requested attorney’s fees and costs. Separately, he moved for expedited consideration after testing positive for COVID-19 and reporting significant symptoms.

Jurisdiction and due-process claim

The government argued that the petition was an improper appeal of the earlier bond decision and that the federal court therefore lacked subject-matter jurisdiction. The court rejected that argument. It explained that Omar M. was not asking the court to review the immigration judge’s earlier factual findings or bond ruling; instead, he was challenging the constitutionality of continued detention after an additional sixteen months without another bond hearing. The court therefore concluded that it had authority to consider the constitutional detention challenge under 28 U.S.C. § 2241.

The court applied the six-factor framework used in the District of Minnesota to assess whether continued detention under § 1226(c) had become unreasonable: the total detention length, likely future detention length, detention conditions, delays caused by the detainee, delays caused by the government, and the likelihood of a final removal order.

The court found that four factors favored Omar M. The length of detention—more than three and a half years—and the likely continuation of detention favored another hearing. The conditions factor also favored him because he was held in a county jail and the record supported an assumption that he was housed alongside people serving criminal sentences. The court found no evidence that Omar M. had delayed the proceedings beyond vigorously contesting removal, which was his right. One factor favored the government: there was no evidence that the government had intentionally delayed the proceedings. The court treated the likelihood of a final removal order as neutral because the appeal remained unresolved and the record did not show whether removal would ultimately occur.

Based on those factors, the court concluded that Omar M.’s continued detention without a second bond hearing violated due process. It recommended that the petition be granted in part and denied in part and that an immigration judge conduct a bond hearing within 30 days of an order granting habeas relief.

Bond-hearing burden and Eighth Amendment claim

Omar M. asked that the government be required to prove by clear and convincing evidence that detention was necessary to prevent flight or danger to the community. The court did not prospectively order the immigration judge to use a particular burden or standard of proof. Instead, it recommended that the immigration judge consider what standard applies and which party bears the burden at the new hearing. The court also recommended an individualized determination of whether continued detention was necessary to protect the community or prevent flight.

The court rejected Omar M.’s argument that detention without bail violated the Eighth Amendment’s protection against excessive bail. It explained that the amendment does not guarantee bail in every case and recommended denying relief based on that claim.

Fees and expedited consideration

The court recommended that, if Omar M. ultimately prevailed after the objection period, he be allowed to file a separate motion seeking attorney’s fees and costs, with an opportunity for the government to respond.

The court also ordered that the time for objecting to the Report and Recommendation be shortened to five days, with five days for responses to objections. It therefore granted in part and denied in part Omar M.’s motion for expedited consideration.

Disposition and procedural posture

The document is an Order and Report and Recommendation, not a final district-court judgment. It ordered the expedited-consideration motion granted in part and denied in part. It recommended that the habeas petition be granted in part and denied in part, that a bond hearing occur within 30 days, that the immigration judge address the proper proof standard and burden, that the judge make an individualized detention determination, and that Omar M. be allowed to file a separate fees-and-costs motion. Parties could file objections within five days.