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habeas corpusleasevisa
motionhabeas corpusleasevisadocket

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Tindi v. Department of Homeland Security

Facts

Tindi, a native of Kenya, entered the U.S. on a visitor visa in 2005 but overstayed. After a series of immigration proceedings, he was granted lawful permanent resident status in 2014. However, following a criminal conviction in 2016, ICE initiated removal proceedings against him. Despite receiving a travel document from the Kenyan Embassy, Tindi remained in detention, which he claims is unreasonable and indefinite.

Tindi is a native and citizen of Kenya who entered the United States on November 25, 2005 under a B2 Visitor Visa that allowed him to remain here for six months, but Tindi remained in the United States beyond that date without authorization. Lee Decl., Ex. 1 p. 7, Docket No. 13. Though he applied to become a permanent resident, Tindi's application was rejected on September 1, 2007. Id. On November 14, 2008 ICE initiated removal proceedings against Tindi, which culminated in a March 10, 2009 order for removal. Id. Tindi was taken into custody in October 2009. Id. p. 8. He then filed a successful motion to reopen his immigration proceedings, which prompted his release from custody on November 17, 2009. Id. p. 46. Tindi remained out on bond under threat of removal for the next two years while his immigration status was under consideration. Lee Decl. �9-10, Docket No. 13. On September 21, 2011, an immigration judge reversed the previous removal order, and on April 15, 2014 Tindi's status was changed to lawful permanent resident. Id. �10-11.

Issue

Is Tindi's continued detention by ICE, pending removal to Kenya, indefinite and unreasonable, thereby warranting a Writ of Habeas Corpus for his release?

Is Tindi's continued detention by ICE, pending removal to Kenya, indefinite and unreasonable, thereby warranting a Writ of Habeas Corpus for his release?

Rule

The length of an alien's detention is subject to habeas corpus review, and detention beyond six months is not presumptively reasonable unless there is a significant likelihood of removal in the reasonably foreseeable future.

The length of an alien's detention `both before and after a final order of removal has issued `is subject to habeas corpus review by federal courts.

Analysis

The court analyzed Tindi's detention under the standards set forth in Zadvydas v. Davis and Demore v. Kim, determining that Tindi's detention has not exceeded the presumptively reasonable six-month period. However, since he is not currently subject to a final removal order, the court evaluated his request for release under 8 U.S.C. 1226(a), which governs pre-removal detention.

Tindi's case resides in that nebulous intersection of pre-removal detention under 8 U.S.C. 1226 and Demore, and post-removal detention under 1231 and Zadvydas, which intersection has been carefully described, analyzed and applied in Bah v. Cangemi, 489 F. Supp. 2d 905 (D. Minn. 2007) and Davies v. Tritten, No. 017CV03710SRNSER, 2017 U.S. Dist. LEXIS 156743, 2017 WL 4277145 (D. Minn. Sept. 25, 2017). The particular facts and procedural history of Tindi's case, however, distinguish it from both Bah and Davies.

Conclusion

The court recommends granting Tindi's petition for a Writ of Habeas Corpus, indicating that his continued detention is unreasonable under the circumstances.

For the reasons outlined below, it is recommended that the Petition be granted.

Who won?

Wilson Nduri Tindi prevailed in the case as the court recommended granting his petition for a Writ of Habeas Corpus due to the unreasonable nature of his continued detention.

Wilson Nduri Tindi prevailed in the case as the court recommended granting his petition for a Writ of Habeas Corpus due to the unreasonable nature of his continued detention.

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