The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Daciann D. B., No. 23-cv-1338 (KMM/JFD)
Petitioner,
v. ORDER
Immigration Custody Enforcement, ICE,
Respondent.
Daciann D. B. (“Ms. B”) filed a Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241, seeking relief from her ongoing detention at the Kandiyohi County Jail by
U.S. Immigration and Customs Enforcement (“ICE”). On October 31, 2023, United
States Magistrate Judge John F. Docherty issued a Report and Recommendation (“R&R”)
recommending that Ms. B’s petition be granted in part because her mandatory detention
under 8 U.S.C. § 1226(c) violates her constitutional right to due process of law. [R&R,
ECF 38.]
Specifically, although noncitizens detained pursuant to § 1226(c) ordinarily are
not entitled to a bond hearing, Judge Docherty recommends that Ms. B, a Jamaican
citizen, be given an individualized bond hearing before an immigration judge. Further, he
recommends that the government bear the burden of proving, by clear and convincing
evidence, that that no condition or combination of conditions of release and parole will
ensure the safety of the community or her appearance at future immigration proceedings.
Judge Docherty concluded that these remedies were appropriate after applying the factors
set forth in Muse v. Sessions, 409 F. Supp. 3d 707 (D. Minn. 2018) to the circumstances
of Ms. B’s detention. Weighing in Ms. B’s favor, Judge Docherty found that the length of
her detention has become unreasonable; the likely duration of her future detention is
indeterminate; and the conditions of her detention—in a county jail—resemble penal
confinement. Weighing in favor of the Respondent, he found that ICE did not delay the
removal proceedings and Ms. B had caused some delays of the removal proceedings,
though she did not engage in dilatory tactics. “On balance, [Judge Docherty concluded]
the Muse factors weigh in favor of Ms. B, and ICE may not continue detaining her an
individualized determination that such detention is necessary.”1 [R&R at 6.]
The Respondent objects to the R&R on several grounds. First, it contends that the
proper analysis stems from Demore v. Kim, 538 U.S. 510 (2003) and the R&R’s
application of the multi-factor test developed in Muse to determine when mandatory
detention of a noncitizen under s. 1226(c) has become unreasonable is inconsistent with
Demore. Second, Respondent argues that the R&R’s use of the Muse factors was
erroneous because it does not consider the congressional purposes behind mandatory
detention. Third, Respondent contends that the R&R’s conclusion improperly elevates the
importance of the length and context of the Petitioner’s detention over its purpose and
discounts the choices that Petitioner made—seeking continuance, hiring new lawyers,
and seeking relief from removal—that prolonged her pre-removal detention. Finally, the
Respondent contends that the R&R improperly shifts the burden of proof to the
1 Judge Docherty rejected Ms. B’s request for immediate release, and Ms. B does
not object to that conclusion. [R&R at 8; ECF 41.] The Court accepts that
recommendation.
government because it fails defer to congressional and executive policy and ignores
Supreme Court precedent indicating that noncitizens are not entitled to the same
procedural protections afforded to citizens.
Respondent’s objections are overruled. The Respondent’s first three arguments
ultimately suggest that the Due Process Clause places virtually no limits on the length of
detention under § 1226(c), and that Demore supports that proposition. But courts in this
District, including the Muse court, this Court, and others have repeatedly rejected
variations of that argument.2 See, e.g., Pedro O. v. Garland, 543 F. Supp. 3d 733, 738–39
(D. Minn. 2021) (rejecting similar arguments). Further, based on a de novo review of the
record, the Court agrees with Judge Docherty’s application of the relevant factors
outlined in Muse and his conclusion that Ms. B is entitled to an individualized bond
hearing. In addition, the Court agrees with the cases in which courts have concluded that
the government should bear the burden of proof at such a bond hearing, where it will be
required to prove, by clear and convincing evidence, that no condition or combination of
conditions of release and parole will ensure the safety of the community or her
appearance at future immigration proceedings. Id. at 740–44; Chuol P.M. v. Garland, No.
21-CV-1746 (KMM/DTS), 2022 WL 2302635, at *1 (D. Minn. June 27, 2022) (citing
cases).
2 The undersigned is aware of the pending appeal in Banyee v. Garland, No. 22-
2252 (8th Cir.). However, neither the Eighth Circuit, nor the Supreme Court have
resolved the question of what limits the Due Process Clause places on detention under
§ 1226(c).
Accordingly, IT IS HEREBY ORDERED THAT:
1. The Report and Recommendation [ECF 38] is ACCEPTED.
2. Daciann B.’s Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241
[ECF 1] is GRANTED IN PART and DENIED IN PART.
3. Ms. B’s request for immediate release is denied.
4. Within 21 days of this Order, Respondent must ensure that Petitioner receives
an individualized bond hearing before an immigration judge. If no bond
hearing occurs, then Ms. B must be released absent further order of this Court.
5. At the bond hearing, the parties must be allowed to present evidence and
argument concerning whether Ms. B is a danger to the community and whether
she is likely to flee if not detained. The immigration judge must place the
burden of proof on ICE, and continued detention must only be authorized if
ICE meets its burden with clear and convincing evidence.
6. The Clerk of Court is directed to substitute ICE Field Office Director Marcos
Charles as Respondent for Immigration Custody Enforcement.3
Let Judgment be entered accordingly.
Date: November 13, 2023 s/ Katherine Menendez
Katherine Menendez
United States District Judge
3 Judge Docherty’s recommendation that ICE Field Office Director Marcos
Charles be substituted as the Respondent in this case is based on the general proposition
that generally speaking, the proper respondent in a habeas case is the person who has
custody over the petitioner. [R&R at 1 n.1 (citing Rumsfield v. Padilla, 542 U.S. 426,
434–35 (2004))]. Counsel for the Respondent represented that Mr. Charles is the ICE
representative who controls Ms. B’s custody and can produce Ms. B if necessary. [ECF
16 at 1 n.1.] Petitioner does not object to this recommendation.