Hussein S.M. v. Wilkinson

Background

Hussein S.M. filed a petition under 28 U.S.C. § 2241 challenging his immigration detention. He had been detained by Immigration and Customs Enforcement since November 2019. An immigration judge ordered his removal to Ethiopia on February 13, 2020, and the Board of Immigration Appeals dismissed his appeal on August 6, 2020. He was held in post-final-order detention at the Sherburne County Jail.

Hussein S.M. argued that his continued detention violated the statute governing detention after a removal order and the Fifth Amendment’s due-process protection. He relied on the Supreme Court’s decision in Zadvydas v. Davis, which addresses prolonged detention when removal is not reasonably foreseeable. The magistrate judge recommended denying the petition without prejudice, concluding that Hussein S.M. had not shown that removal was unlikely in the reasonably foreseeable future. Hussein S.M. objected.

Analysis

The court reviewed the properly objected-to portions of the magistrate judge’s recommendation independently. It explained that people detained under 8 U.S.C. § 1231 retain a liberty interest and that detention lasting more than six months raises serious constitutional concerns under Zadvydas.

Under that framework, the detained person must first provide good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. The government must then present evidence sufficient to rebut that showing. The court found that Hussein S.M.’s detention had lasted 18 months, including more than nine months after the removal order became final.

The court gave substantial weight to the worsening civil conflict and political conditions in Ethiopia. Although the United States reported that travel documents had been issued and that removal plans were underway, it acknowledged that those plans had changed repeatedly and could be affected by conditions in Ethiopia. The court found that these circumstances made removal unlikely in the reasonably foreseeable future and that the United States had not sufficiently rebutted that conclusion.

The court also noted that the United States had not argued that Hussein S.M. was a flight risk or a danger to the community. It concluded that continued detention was unwarranted and that supervised release under 8 U.S.C. § 1231(a)(3), with appropriate conditions and monitoring, was a less restrictive alternative.

Order

Judge John R. Tunheim sustained Hussein S.M.’s objections, rejected the magistrate judge’s report and recommendation, and granted the petition. The court ordered that Hussein S.M. be released no later than 10:00 a.m. Central Daylight Time on May 19, 2021, subject to appropriate supervision and monitoring. The order directed that judgment be entered accordingly.