Tindi v. Secretary, Dept. Of Homeland Sec.

Citation: 363 F. Supp. 3d 971Docket: CIVIL NO. 17-3663 (DSD/DTS)

Court: District Court, D. Maine; December 7, 2017; Federal District Court

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Wilson Nduri Tindi, a Kenyan national, has been in ICE detention for approximately 15 months while awaiting removal to Kenya. He claims that his detention is indefinite and unreasonable, prompting him to seek a Writ of Habeas Corpus for his immediate release. Tindi initially entered the U.S. on a B2 Visitor Visa in November 2005 but overstayed. His attempt to become a permanent resident was denied in 2007, and removal proceedings were initiated by ICE in 2008, culminating in a removal order in 2009. After a successful motion to reopen his case, Tindi was released from custody in 2009 and became a lawful permanent resident in 2014.

Subsequently, Tindi was charged with first-degree burglary and fourth-degree sexual assault in December 2014, pleading guilty to the assault, with a sentence of 210 days in jail. He was taken into ICE custody from jail in August 2016, leading to an immigration judge ordering his removal in December 2016, affirmed by the BIA in April 2017. Despite receiving a travel document from the Kenyan Embassy in September 2017, ICE decided to keep him detained, citing a community threat and likelihood of removal.

Tindi has appealed his criminal conviction, claiming inadequate counsel regarding the deportation consequences of his plea, and has also filed a Petition for Review of his removal order with the Eighth Circuit, which has been stayed pending the outcome of a related Supreme Court case concerning the vagueness of the definition of "a crime of violence."

Tindi filed a Petition for a Writ of Habeas Corpus on August 7, 2017, asserting he should be released pending removal due to lack of threat to the community, indefinite detention by ICE, and uncertainty of his removal timeline. The Government responded on September 25, 2017, with Tindi replying on October 19, 2017. 

The statutory basis for Tindi's detention is outlined in 8 U.S.C. § 1226(c), which mandates detention for certain criminal aliens during removal proceedings, prohibiting release except under limited circumstances not relevant to Tindi. Review by an Immigration Judge regarding mandatory detention can occur but is confined to assessing whether the individual qualifies for that category based on criminal history. Appeals can be made to the Board of Immigration Appeals and subsequently to circuit courts; however, the current Court lacks jurisdiction to evaluate Tindi's detention under § 1226(c).

Post-removal, ICE can detain individuals for a 90-day period following a final removal order under 8 U.S.C. § 1231(a)(2) and may continue detention if the individual poses a community risk per § 1231(a)(6). The Supreme Court has established that both pre- and post-removal detention lengths are subject to habeas corpus review by federal courts. Tindi's situation intersects with both pre-removal and post-removal detention frameworks, as discussed in relevant case law, particularly Bah v. Cangemi and Davies v. Tritten, though Tindi's specific facts and procedural history present unique distinctions from those cases.

Post-removal detention under 8 U.S.C. § 1231 allows for the detention of individuals with a final removal order for a 90-day period, extendable as necessary. The Supreme Court case Zadvydas v. Davis established that detention for up to six months is presumptively reasonable and does not violate the Fifth Amendment. Detention beyond six months is permissible if there is a "significant likelihood of removal in the reasonably foreseeable future." If a detainee shows good reason to believe there is no such likelihood, the government must provide evidence to counter that claim, or the detainee must be released.

In Tindi's case, his final order of removal was issued on April 27, 2017, but was stayed by the Eighth Circuit on June 1, 2017, pending further legal proceedings. The court’s review of similar cases, such as Bah, indicates differing approaches in applying Zadvydas to individuals with fluctuating removal statuses. The "retrospective recharacterization" approach treats all detention time as pre-removal, while the "unencumbered time" approach aggregates all lawful detention periods. The court favored the unencumbered time approach, which led to Bah's release after exceeding the six-month threshold. Tindi, however, has only served a maximum of 35 days under this clock, keeping him within the presumptively reasonable six-month limit. Since Tindi is not currently under a final removal order, Zadvydas does not apply, and his release must be considered under 8 U.S.C. § 1226(a), which pertains to pre-removal detention.

An alien may be arrested and detained pending removal from the U.S. under 8 U.S.C. 1226, which allows for constitutional detention during removal proceedings. Tindi has been in pre-removal detention for over 14 months without an actionable final removal order. The constitutionality of his detention is assessed based on the precedent set in Demore, which mandates a reasonableness requirement for pre-removal detention duration. The majority of circuits apply a fact-dependent reasonableness standard, while the Second and Ninth Circuits utilize a bright-line rule necessitating a finding of flight risk or community danger for detentions exceeding six months. The Eighth Circuit has not established which approach it endorses, and this Court has not explicitly adopted either. However, prior decisions indicate that as detention lengthens, the government bears a greater burden to justify it. A 14-month detention is deemed excessive, exceeding the brief detainment envisioned in Demore. This Court will employ a fact-based individualized determination of reasonableness, concluding that Tindi's continued detention is unreasonable and fails to serve its intended purpose of preventing flight during removal proceedings.

Tindi overstayed his 2005 Visa but has consistently utilized legal channels to contest his removal, presenting no indications of being a flight risk or noncompliance with a removal order. He remained outside ICE custody for nearly two years while challenging an initial removal order, demonstrating his commitment to the legal process without attempting to flee. Despite the possibility of flight upon an adverse ruling, there is no evidence to support that conjecture. Tindi has been in ICE custody for over 15 months, with an indefinite timeline ahead, as his Eighth Circuit matter is stayed pending the Supreme Court's decision in Dimaya regarding the vagueness of the "crime of violence" definition under 18 U.S.C. 16(b). This decision could impact his removal order based on his sexual assault conviction. The timing of both the Supreme Court's decision and Tindi's state court appeal outcomes remains uncertain. Consequently, his continued detention lacks a foreseeable end, despite the Government's arguments regarding their diligence in processing his removal. The Court asserts that an alien should not face indefinite detention solely for pursuing legal remedies available to them, and there is no evidence that Tindi's appeals were made in bad faith. The Government's claim that Tindi should remain detained because he would still be in criminal custody if his sentence had not been stayed does not align with the proper legal inquiry, as they provided no evidence linking the stay to his deportation status or indicating any violation of its conditions by Tindi.

Tindi's continued detention by ICE is deemed unreasonable and a violation of due process, as his custody is directly attributed to ICE's actions. The Court recommends his release under conditions to protect the public and ensure his appearance for potential removal. It references Congress's authority to manage the detention and supervision of aliens, supported by Title 8 of the Code of Federal Regulations, which allows for the imposition of release conditions. The Court specifically recommends that Tindi be released on or before January 2, 2018, and if not, a Writ of Habeas Corpus should be issued for his unconditional release. Additionally, there are procedural guidelines for filing objections to this recommendation, emphasizing that it is not directly appealable to the Eighth Circuit. The determination of Tindi's pre-removal detention time is contingent on which legal test applies, which could affect the calculation of his total detention duration.