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Ali v. Brott

United States Court of Appeals, Eighth Circuit

April 16, 2019

Farass Ali Petitioner - Appellee
v.
Joel L. Brott, Sheriff, Sherburne County Respondent - Appellant William P. Barr, Attorney General; Kirstjen Nielsen, Secretary, Department of Homeland Security; Ronald Vitiello, Acting Director, Immigration and Customs Enforcement; Peter B. Berg, Director, St. Paul Field Office Immigration and Customs Enforcement Respondents

          Submitted: March 12, 2019

          Appeal from United States District Court for the District of Minnesota

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          GRASZ, CIRCUIT JUDGE

         Farass Ali, who immigrated to the United States in 2014, has been held in custody under 8 U.S.C. § 1226(a) since May 2017 while he litigates the issue of whether he is a removable alien. The district court granted relief on Ali's petition for a writ of habeas corpus after interpreting § 1226(a) to permit detention of an alien only for a "period reasonably necessary to receive a removal decision" and concluding Ali's time in detention was not reasonable. Sherburne County Sheriff Joel Brott appeals, [1] arguing the district court wrongly applied a "reasonableness" standard not included in the text of the statute. We agree with Sheriff Brott and therefore reverse the order granting Ali's petition and remand for the district court to consider Ali's constitutional arguments.

         I. Background

         Ali is a native and citizen of Iraq. In January 2014, Ali entered the United States as a refugee. His immigration status was adjusted to lawful permanent resident in 2015.

         In November 2016, Ali was arrested in Minnesota for violation of Minnesota laws. The arrest caused federal investigators to review Ali's immigration status. The Department of Homeland Security claims to have found significant inconsistencies among Ali's application for refugee status, his statements to officers who interviewed him on that application, and his application for adjustment of status to lawful permanent resident. Federal investigators also examined Ali's social media platform and found posts related to and purportedly in support of a terrorist organization.

         In May 2017, FBI Special Agents interviewed Ali and questioned him regarding his use of social media and his familial lineage. Agents asked for his consent to search the electronic devices he used to access social media. Ali consented only to a search of his laptop. The day after the interview, federal immigration agents took Ali into custody pursuant to an administrative warrant. Ali was served with a Notice to Appear and charged with being a removable alien who, at the time of entry or adjustment, procured admission into the United States by fraud or willful misrepresentation, and as an alien who, at the time of entry or adjustment, was inadmissible because he was not in possession of valid travel documents.

         In June 2017, Ali was transferred to state custody for purposes of his pending state charges. Shortly after, the FBI notified immigration officials Ali would be considered a threat to national security if he was released from immigration custody. In July 2017, Ali's state criminal charges were dismissed and he was transferred back to federal immigration custody.

         Between July 2017 and August 2018, an Immigration Judge ("IJ") presided over a series of hearings on the merits of the removal charges and other matters. The IJ granted multiple continuances, almost all of which were at Ali's request. During this time, on September 19, 2017, the IJ presided over a bond hearing. Ali called two witnesses and both parties submitted evidence. The IJ denied Ali's request to be released on bond, concluding Ali had failed to show he was not a danger to the community. Ali did not appeal the IJ's bond determination and has not sought a new bond hearing.

         On September 7, 2018, Ali filed a petition for habeas corpus under 28 U.S.C. § 2241, seeking release from federal immigration custody pending resolution of his immigration proceedings. Ali argued his continued detention was not authorized by § 1226(a), violated his Fifth Amendment right to due process, and was an unauthorized seizure under the Fourth Amendment. The government argued Ali's continued detention was constitutional and that Ali was permitted to seek relief through administrative procedures. The government also suggested Ali was the cause of any undue delay in his removal proceedings.

         The district court entered an order on January 7, 2019, granting Ali's petition and ordering Brott to release Ali from custody within thirty days. The district court explained that Ali was subject to pre-removal detention under § 1226(a) and observed the statute did not explicitly limit the length of an alien's pre-removal detention period. The district court compared the situation to Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Supreme Court analyzed 8 U.S.C. § 1231(a)(6), which governs post-removal order detention, and employed the doctrine of constitutional avoidance to read a "reasonableness limitation" into the length of time an alien could be detained after he was ordered removed. 533 U.S. at 689-90. Applying the rationale of Zadvydas to the facts of Ali's case, the district court concluded that pre-removal order detention under § 1226(a) is limited to "the period reasonably necessary to receive a removal decision." The district court then determined Ali's time in detention had exceeded this limitation and therefore ordered him released within thirty days.

         After the district court denied his motion for reconsideration, [2] Sheriff Brott appealed and sought an emergency motion to stay the district court order pending appeal. We granted a temporary stay until further order of the court, directed the parties ...


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