The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
OMAR MOHAMED OMAR, )
)
Petitioner, )
) Civil Action
v. ) No. 20-10846-PBS
)
ANTONE MONIZ, )
)
Respondent. )
___________________________________)
MEMORANDUM AND ORDER
May 20, 2020
Saris, D.J.
INTRODUCTION
Petitioner Omar Mohamed Omar brings this habeas petition
seeking relief pursuant to the Court’s declaratory judgment in
Reid v. Donelan, 390 F. Supp. 3d 201 (D. Mass. 2019) (“Reid”).
Petitioner argues that his mandatory detention under 8 U.S.C.
§ 1226(c) has become unreasonably prolonged and that he is
entitled to a bond hearing before an immigration judge.
For the reasons stated below, the Court hereby DENIES
without prejudice Omar’s petition (Docket No. 1).
LEGAL STANDARDS
Under 8 U.S.C. § 1226(c), the Government “shall take into
custody” any noncitizen who is inadmissible or deportable based
on a conviction for “certain crimes of moral turpitude,
controlled substance offenses, aggravated felonies, firearm
offenses, or acts associated with terrorism.” Reid, 390 F. Supp.
3d at 213 (quoting 8 U.S.C. § 1226(c)(1); Gordon v. Lynch, 842
F.3d 66, 67 n.1 (1st Cir. 2016)). The statute does not allow for
conditional release on bond, except in the limited circumstance
of witness protection. See 8 U.S.C. § 1226(c)(2).
Nonetheless, “mandatory detention under § 1226(c) without a
bond hearing violates due process when an alien’s individual
circumstances render the detention unreasonably prolonged in
relation to its purpose in ensuring the removal of deportable
criminal aliens.” Reid, 390 F. Supp. 3d at 219.
In Reid v. Donelan, this Court certified a class of “[a]ll
individuals who are or will be detained within the Commonwealth
of Massachusetts or the State of New Hampshire pursuant to 8
U.S.C. § 1226(c) for over six months and have not been afforded
an individualized bond or reasonableness hearing.” No. 13-30125-
PBS, 2018 WL 5269992, at *8 (D. Mass. Oct. 23, 2018). Pursuant
to this Court’s subsequent declaratory judgment, any member of
the Reid class may “bring a habeas petition in federal court to
challenge his detention as unreasonably prolonged.” Reid, 390 F.
Supp. 3d at 227.
The reasonableness of a petitioner’s continued detention
without a bond hearing under § 1226(c) must be analyzed on a
case-by-case basis. See id. at 219. The following nonexclusive
factors are relevant in determining the reasonableness of
continued mandatory detention:
[T]he total length of the detention; the foreseeability of
proceedings concluding in the near future (or the likely
duration of future detention); the period of the detention
compared to the criminal sentence; the promptness (or
delay) of the immigration authorities or the detainee; and
the likelihood that the proceedings will culminate in a
final removal order.
Id. (citation omitted).
Of these factors, the length of the petitioner’s detention
is “the most important.” Id. Mandatory detention is “likely to
be unreasonable if it lasts for more than one year during
removal proceedings before the agency, excluding any delays due
to the alien’s dilatory tactics.” Id. Detention of less than one
year may be unreasonable “if the Government unreasonably delays
or the case languishes on a docket.” Id. at 220.
If a petitioner’s mandatory detention has been unreasonably
prolonged, the petitioner “is entitled to a bond hearing before
an immigration judge.” Id. At that hearing,
[T]he Government [must] prove that the alien is either
dangerous by clear and convincing evidence or a risk of
flight by a preponderance of the evidence. The immigration
court may not impose excessive bail, must evaluate the
alien’s ability to pay in setting bond, and must consider
alternative conditions of release such as GPS monitoring
that reasonably assure the safety of the community and the
alien’s future appearances.
Id. at 228.
FACTS
I. Legal Status and Criminal History
Petitioner was born in Kenya but is a citizen of Somalia.
He entered the United States in 1996 at one year old as a
refugee and adjusted his status to lawful permanent resident in
1999.
Petitioner was convicted of burglary when he was seventeen
and served eight months in a juvenile facility. The next year,
in April 2014, Petitioner was convicted of felony assault. In
December 2016, he was convicted of theft and having a weapon
while under disability. He served 10 months in jail on those
charges. On July 3, 2018, Petitioner was arrested and charged
with two counts of aggravated assault, assault, and criminal
threatening with a dangerous weapon. Petitioner pled guilty to
the criminal threatening charge and was sentenced to a five-year
term of incarceration, all but 18 months suspended. On April 4,
2018, Petitioner was also convicted of unlawful possession of
Oxycodone.
From 2014 to 2016, Petitioner was also arrested on several
charges that were subsequently dismissed, including for
receiving stolen property, improperly handling a firearm,
assault, and domestic violence.
II. Immigration Detention and Proceedings
Petitioner has been held in immigration detention since his
release from state custody on October 8, 2019. He is currently
detained at Plymouth County Correctional Facility.
On October 31, 2019, Petitioner appeared for his first
hearing before the Boston Immigration Court and requested a
continuance in order to obtain an attorney. Petitioner asked for
another continuance on November 14, 2019 to seek an attorney.
On November 27, 2019, the immigration judge (“IJ”) provided
Petitioner with an application for cancellation of removal and
instructed him to complete it prior to his next hearing. On
December 11, 2019, the IJ set Petitioner’s case for a merits
hearing on his applications for immigration relief. Petitioner
asked for another continuance to seek an attorney on January 23,
2020. On February 28, 2020, an attorney entered an appearance
for Petitioner and moved for a continuance.
The IJ held a merits hearing on March 27, 2020. The IJ
received testimony from Petitioner and his sister in support of
his application for protection from removal. The IJ denied
Petitioner’s application in an oral decision and ordered him
removed to Somalia.
Petitioner filed an appeal with the Board of Immigration
Appeals (“BIA”) on April 24, 2020 seeking protection under the
Convention Against Torture. On May 7, 2020, ICE filed a motion
with the BIA to expedite the appeal.
DISCUSSION
Petitioner argues he is entitled to a bond hearing before
an immigration judge because his mandatory detention is
“unreasonably prolonged in relation to its purpose in ensuring
the removal of deportable criminal aliens.” Reid, 390 F. Supp.
3d at 219.
I. Length of Detention
The length of a petitioner’s mandatory detention is “the
most important factor” in determining its reasonableness. Id.
Detention of over a year is “likely to be unreasonable,” but
“[p]eriods of detention directly attributable to an alien’s
dilatory tactics should not count in determining whether
detention has exceeded the one-year mark.” Id. at 219-20. The
Court begins by determining whether Petitioner’s detention has
exceeded the one-year mark.
Here, Petitioner has been detained since October 8, 2019,
or approximately seven and a half months. This is well below the
one-year mark. Petitioner’s detention is not presumptively
unreasonable.
II. Other Relevant Factors
In assessing the reasonableness of Petitioner’s mandatory
detention, the Court also considers “[1] the foreseeability of
proceedings concluding in the near future (or the likely
duration of future detention); [2] the period of the detention
compared to the criminal sentence; . . . and [3] the likelihood
that the proceedings will culminate in a final removal order.”
Reid, 390 F. Supp. 3d at 219 (numbering added). Detention under
a year may also be unreasonable “if the Government unreasonably
delays or the case languishes on a docket.” Id. at 220.
Although Petitioner’s appeal is at an early stage and so
unlikely to conclude in the near future, all the other factors
discussed in Reid weigh against a finding of unreasonableness at
this time. Petitioner served more time on his criminal sentences
than the time he has spent in immigration detention. The IJ
denied Petitioner’s applications for relief, which is the best
guide available to this Court regarding the likelihood that
Petitioner’s proceedings will culminate in a final removal
order. In addition, the continuances in Petitioner’s case were
at his request. Although Petitioner’s efforts to seek counsel
were not dilatory, neither did the Government unreasonably delay
the progress of Petitioner’s case.
Finally, Petitioner also argues that the current COVID-19
pandemic renders his continued detention without a bond hearing
unreasonable. Petitioner notes that he has “serious and
persistent asthma,” which puts him at higher risk of severe
illness should he contract the COVID-19 virus. While the Court
may weigh the impact of COVID-19 in deciding whether proceedings
are unreasonably prolonged under the Due Process clause, that
factor does not outweigh the others in the Reid analysis here.
With respect to petitioners who have been detained over a year,
Reid’s presumption of unreasonableness has particular weight in
light of current public health crisis.
Neither does the COVID-19 pandemic independently render
Petitioner’s detention excessive in relation to legitimate
governmental objectives under the Due Process Clause. Although
Petitioner’s moderate asthma places him in a high-risk category,
there are currently no detainees confirmed as COVID-19 positive
within the immigration detention unit at Plymouth. In addition,
the Government has a legitimate objective in detaining
Petitioner, whose lengthy criminal history includes several
violent attacks. In one case, Petitioner admitted to punching
the victim three times and video footage showed Petitioner
kicking the victim while he was on the ground and punching him
in the head. Balancing the risk to Petitioner’s health against
the Government’s interest in his detention, there is no Due
Process violation at this time.
ORDER
Petitioner’s mandatory detention under 8 U.S.C. § 1226(c)
has not been unreasonably prolonged and Petitioner therefore is
not entitled to a bond hearing before an immigration judge at
this time. The petition for a writ of habeas corpus [Docket No.
1] is accordingly DENIED without prejudice.
SO ORDERED.
/s/ PATTI B. SARIS
Patti B. Saris
United States District Judge