UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA

Nelson Kargbo,

Petitioner,

v.

JOEL BROTT, Sherburne County Sheriff; SCOTT BANIECKE, Field Office Director, Immigration and Customs Enforcement; SARAH SALDAÑA, Director, Immigration and Customs Enforcement; JEH JOHNSON, Secretary of the Department of Homeland Security; LORETTA LYNCH, Attorney General of the United States.

Respondents.

Civil File No. _______________

PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO

28 U.S.C. §   2241

INTRODUCTION

Petitioner Nelson Kargbo has been detained by federal immigration officials for

nearly two years without an opportunity for a bond determination. He petitions this Court

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Kargbo does not fall under

8 U.S.C. § 1226(c), the statute describing those noncitizens subject to mandatory

detention, because under the canon of constitutional avoidance, § 1226(c) cannot

authorize prolonged and indefinite detention. He is therefore entitled to an individualized

bond hearing at which the government must show that his continued detention is justified.

Mr. Kargbo is a long-time lawful permanent resident who came to this country as

a refugee after surviving two years as a child soldier in Sierra Leone. He has four U.S.

citizen children in Minnesota, and he was the primary caretaker for three of them before

immigration officials detained him. Respondents purport to detain Mr. Kargbo under

§ 1226(c) with no bond hearing, because of three previous convictions, the most recent of

which was in 2006. However, Respondents did not take Mr. Kargbo into custody at the

time he was released from criminal custody for any of these convictions. Instead, they

took no action against Mr. Kargbo for almost five years. In 2013, however, Mr. Kargbo

was abruptly placed in mandatory detention and ripped away from his stable job, his

children, and his life in Woodbury, MN. Neither immigration officials nor an

Immigration Judge have determined that Mr. Kargbo is a risk to the community or a risk

of flight, yet Mr. Kargbo has been forced to fight his removal proceedings from Carver

and Sherburne County jails, separated from his family and community for 21 months. Mr.

Kargbo’s immigration proceedings have finally been reopened by the Board of

Immigration Appeals, and he must continue his fight to stay in the U.S. before the

Immigration Judge, with resolution of this case many months away. In the meantime, his

four U.S. citizen children continue to be deprived of his care, and their mother and

grandmother struggle to meet the many demands on them in his absence.

Because his detention is unlawful, Mr. Kargbo respectfully requests that this Court

issue a writ of habeas corpus and order the Immigration Judge to conduct an

individualized hearing at which the Government bears the burden of establishing that Mr.

Kargbo’s continued detention is justified.

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PARTIES

A. Petitioner

Mr. Kargbo was born in Sierra Leone and lawfully immigrated to the United

States as a refugee with his family when he was fifteen years old. (Declaration of Nelson

Kargbo (“Kargbo Decl.”) ¶¶ 1, 22); Declaration of Nicholas Hittler (“Hittler Decl.”) Ex.

A at 3.) Mr. Kargbo has been a Lawful Permanent Resident since September 24, 2003.

(Hittler Decl. Ex. A at 3.) Immigration authorities have detained Mr. Kargbo since

August 29, 2013, and he is currently being held at Sherburne County Jail in Elk River,

Minnesota, while he challenges his immigration removal proceedings. (See id. at 4;

Kargbo Decl. ¶ 50.)

B. Respondents

Respondent Joel Brott is named in his official capacity as the Sheriff of Sherburne

County, Minnesota. In that capacity, Sheriff Brott is responsible for the Sherburne

County Jail, a detention facility under contract with Immigration and Customs

Enforcement (“ICE”) and the physical location where Mr. Kargbo has been in custody

since on or about August 29, 2013. The address for Sherburne County Jail is 13880

Business Center Dr. NW, Elk River, MN 55330.

Respondent Scott Baniecke is named in his official capacity as the Field Office

Director for the St. Paul Field Office for ICE within the United States Department of

Homeland Security (“DHS”) for St. Paul, Minnesota. In that capacity, Field Director

Baniecke has supervisory authority over the ICE agents responsible for making the initial

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custody decision regarding Mr. Kargbo. The address for the St. Paul Field Office is 1

Federal Drive Suite 1601, Fort Snelling, MN 55111.

Respondent Sarah Saldaña is named in her official capacity as the Director of ICE

within DHS, located in Washington, D.C. In that capacity, Director Saldaña has

supervisory capacity over ICE personnel in Minnesota, and she is the head of the agency

that retains legal custody of Mr. Kargbo. The address for ICE Headquarters is 500 12th

St. SW, Washington, D.C. 20536.

Respondent Jeh Johnson is named in his official capacity as the Secretary of

Homeland Security at DHS. In this capacity, Secretary Johnson is responsible for the

administration of the immigration laws pursuant to § 103(a) of the Immigration and

Naturalization Act (“INA”), 8 U.S.C. § 1103(a) (2007), routinely transacts business in the

District of Minnesota, supervises Field Director Baniecke, is legally responsible for

pursuing Mr. Kargbo’s detention and removal, and as such is Mr. Kargbo’s legal

custodian. Secretary Johnson’s address is U.S. Department of Homeland Security,

Washington, D.C. 20528.

Respondent Loretta Lynch is named in her official capacity as the Attorney

General of the United States. In this capacity, she is responsible for the administration of

the immigration laws as exercised by the Executive Office for Immigration Review,

pursuant to 8 U.S.C. § 1103(g). She routinely transacts business in the District of

Minnesota, is legally responsible for administering Mr. Kargbo’s removal proceedings

and the standards used in those proceedings, and as such is Mr. Kargbo’s legal custodian.

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Attorney General Lynch’s address is U.S. Department of Justice, 950 Pennsylvania Ave.

NW, Washington, D.C. 20530.

JURISDICTION

Mr. Kargbo is detained in the custody of Respondents in Elk River, Minnesota.

This Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 2241,

28 U.S.C § 1331, and Article I, § 9, cl. 2 of the United States Constitution; the All Writs

Act, 28 U.S.C § 1651; the Administrative Procedure Act, 5 U.S.C. § 701; and the

Declaratory Judgment Act, 28 U.S.C. § 2201. Mr. Kargbo’s current detention as enforced

by Respondents constitutes a “severe restraint[] on [his] individual liberty,” such that Mr.

Kargbo is “in custody” in violation of the laws of the United States. See Hensley v.

Municipal Court, 411 U.S. 345, 351 (1973). While the circuit courts of appeals have

jurisdiction to review removal orders directly though petitions for review, see 8 U.S.C.

§ 1252(a)(1), (b), the federal district courts have jurisdiction to determine the legality of

an individual’s detention by ICE. See, e.g., Demore v. Kim, 538 U.S. 510, 516-17 (2003);

Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Mr. Kargbo has no administrative remedy to address the claims raised in this

Petition, and even if there were administrative remedies which could provide relief,

exhaustion would be futile. Mr. Kargbo claims his detention is unconstitutional, Counts 2

and 3, claims over which the immigration agency has no jurisdiction. Matter of Fuentes-

Campos, 21 I&N Dec. 905, 912 (BIA 1997). With respect to Mr. Kargbo’s third claim,

Count 1, the statute is silent on whether exhaustion is required and it is therefore within

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this Court’s discretion. Garcia v. Shanahan, 615 F.Supp.2d 175, 179–80 (S.D.N.Y.2009);

Rianto v. Holder, No. CV-11-0137-PHX-FJM, 2011 WL 3489613, at *3 (D. Ariz. Aug.

9, 2011) (28 U.S.C. § 2241 does not specifically require petitioners to exhaust direct

appeals before seeking habeas relief); see generally Cisneros v. Napolitano, No. 13-700

(JNE/JJK), 2013 WL 3353939, at *3 (D. Minn. July 3, 2013) (addressing habeas claim

without discussing administrative exhaustion). Exhaustion is also not required if it would

be futile. Pastor–Camarena v. Smith, 977 F. Supp. 1415, 1417 (W.D. Wash. 1997); Duy

Tho Hy v. Gillen, 588 F.Supp.2d 122, 125–26 (D.Mass.2008) (holding that exhaustion of

administrative remedies is not required “where the agency has predetermined the issue

before it”).

Mr. Kargbo moved for his release before the Immigration Judge and presented the

claims raised here. (Hittler Decl. Ex. FF.) The immigration judge denied the motion

stating that BIA precedent precludes jurisdiction to consider his constitutional challenge

to his prolonged detention and that BIA precedent controlled his other statutory claim.

(Id. at 4.) Because the BIA would apply these same precedents as dispositive of Mr.

Kargbo’s claims, administrative appeal would be futile. See Monestime v. Reilly, 704 F.

Supp. 2d 453, 456-57 (S.D.N.Y. 2010). Furthermore, Mr. Kargbo challenges his

unlawful detention that has lasted over 21 months and should not be required as a

prudential matter to endure additional time detained while awaiting the BIA’s review.

VENUE

Mr. Kargbo resided in Minnesota prior to his detention, has been held by

Respondents for 21 months in detention facilities in Minnesota, and is subject to removal

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proceedings that are being conducted in Minnesota. Therefore, the District of Minnesota

is the proper venue to hear this Petition. Furthermore, this Petition was filed on June 11,

2015, when Mr. Kargbo was physically located within the District of Minnesota, under

the authority of Field Director Baniecke and Sheriff Brott, both of whom are located

within the authority of the court.

FACTUAL BACKGROUND

A. Early Life and Experience as a Child Soldier

Mr. Kargbo was born in Kamalo, Sierra Leone, on February XX, 1985. (Kargbo

Decl. ¶ 1.) Mr. Kargbo entered the United States on April 19, 2000, and became a lawful

permanent resident on September 24, 2003. (Hittler Decl. Ex. A at 3.) By August 2013,

when ICE took him into custody, Mr. Kargbo had a stable job, four citizen children, and a

caring family. (Kargbo Decl. ¶¶ 3, 34, 43.)

When Mr. Kargbo was just eleven years old, he was forced to become a child

soldier in Sierra Leone’s brutal civil war. (Id. at ¶ 8.) In 1996, the Revolutionary United

Front (“RUF”), a rebel army in Sierra Leone, invaded his village and forced Mr. Kargbo,

upon the threat of death, to join the RUF. (Id. at ¶¶ 9-12.) That day, Mr. Kargbo

witnessed the execution of multiple people who refused to join the RUF or acquiesce to

the demands of RUF soldiers, including his friend’s mother. (Id. at ¶ 11.)

During his two years with the RUF, the young Mr. Kargbo witnessed

unimaginable violence and destruction. He was trained to use guns and was repeatedly

used as a human shield on the battlefield. (Id. at ¶¶ 14-15.) He was injected with “Brown

Brown,” a mixture of cocaine and gunpowder on a daily basis, and he was given

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marijuana and alcohol, so that he was nearly constantly inebriated. (Id. at ¶ 13.) He

witnessed the invasion of multiple villages and saw the murder and dismemberment of

many people, including those who tried to escape the RUF. (Id. at ¶ 13-17; see also

Hittler Decl. Ex. L at 2-3.)

When he was thirteen, Mr. Kargbo became very ill. (Kargbo Decl. ¶ 18.) Believing

he would die soon, the RUF soldiers left Mr. Kargbo on the side of the road, where he

was eventually rescued. (Id. at ¶¶ 19-20.) After recovering from his illness, Mr. Kargbo

traveled to Freetown where he searched for—and found—his brother. (Id. at ¶¶ 20-21.)

They then entered a refugee camp together in Guinea and reunited with the rest of his

family, where they lived for approximately two years. (Id. at ¶¶ 21-22.) In April 2000,

when Mr. Kargbo was fifteen, he immigrated with his family to Minnesota as a refugee.

(Id. at ¶ 22.)

B. Adjusting to Life in the United States

C. Criminal History

Subsequently, Mr. Kargbo experienced a few years of instability and emerging,

untreated mental illness. Between October 2004 and March 2008, he was convicted of

several misdemeanors. Aside from several days he spent in jail pre-conviction, Mr.

Kargbo was not sentenced to additional terms of incarceration for any of these crimes at

the time of sentencing. (See Hittler Decl. at Exs. W at 1, 10; CC.) In total, Mr. Kargbo

has spent 24 days in criminal custody as a result of his convictions. (See id. at Ex. W.)

Mr. Kargbo has not been convicted of any crime since March 2008.

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D. Family Ties, Employment, and Finding Stability in the United States

When Mr. Kargbo was 19, he met H-. (Kargbo Decl. ¶ 31.) They dated and had

one child together, D.K., born in November 2004, in Minnesota. (Id.) Though the

relationship with Ms. H was brief, Mr. Kargbo has maintained a close and loving

relationship with D.K.. In the period before ICE detained him, Mr. Kargbo hosted D.K.

every other weekend in his home; he helped her with homework, went to her soccer

games, and spent time with her. (Kargbo Decl. ¶ 40; Declaration of RF ¶¶ 7, 13-14.)

In 2007, Mr. Kargbo met MF. (Kargbo Decl. ¶¶ 32-33.) Mr. Kargbo and Ms. F had

a long-term, romantic relationship and have three children together: T.K., born in

September 2008; C.K., born in September 2010; and K.F., born in July 2012. (Id. at ¶ 33;

Declaration of MF ¶ 3.)

The birth of Mr. Kargbo’s children with Ms. F precipitated a change in him, and in

the years since his convictions, Mr. Kargbo has transformed his life. (Kargbo Decl. ¶¶ 4,

46, R. Ford Decl. ¶¶ 8-9, 13-15, 18.) He became a devoted father and caretaker, and the

children remember him as the father who doted upon them and took them on family

outings to the park and to the library. (R. Ford Decl. ¶ 14.) MF’s mother, RF, who

regularly cares for the children and lives across the street from M, refers to Mr. Kargbo as

“Mr. Mom,” and she remembers him as a dependable parent. (Id. at ¶¶ 13, 15-16.) Ms. F

recalls that before ICE detained him, Mr. Kargbo cooked, cleaned, changed diapers, and

worked hard to provide for his children. (Id. at ¶ 13.)

As his family grew, Mr. Kargbo worked hard to provide for them. He first worked

at Burger King, then at a roofing company, and then at a trash company. (Kargbo Decl.

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¶¶ 31-32.) He eventually gained steady employment through a staffing agency, in 2011.

(Id. at ¶ 34; Hittler Decl. Ex. K) He worked the night shift at the signage company and

cared for his children each morning. (Id.) Before he was detained, he had started working

more hours and he believed that the signage company would soon hire him directly.

(Kargbo Decl. ¶ 34) In her Declaration, Ms. MF describes the extensive time Mr. Kargbo

used to spend with each child and the difficulty she has had caring for their children since

his detention, losing a job because of sick days spent with their children and the financial

hardships that result from being a single parent with only one income. (Decl. ¶¶ 6-13.)

Mr. Kargbo was the children’s primary caretaker, and was a pillar of support for

the whole family. (Id. at ¶ 6.) The children love him, and his presence is sorely missed.

(Id. at ¶ 6-13, Exs. 1-3 (Letter from D.K. describing how she and the other kids miss their

father; drawings of the kids with Mr. Kargbo by D.K. and T.K.).)

Mr. Kargbo successfully reintegrated himself into the community and created a

stable life—something he had not experienced in his own childhood. When ICE detained

Mr. Kargbo and initiated removal proceedings, Mr. Kargbo was living with Ms. MF and

their three children in Woodbury, Minnesota. (Kargbo Decl. ¶ 3.) Although he has

photographs of his children on the walls and talks to his children regularly, Mr. Kargbo

has been separated from his children since he was detained over a year and nine months

ago. (Id. at ¶¶ 36, 47, Exs. 4-6.) According to MF, “Nelson is the best thing for these kids

and I want him to be back with them.” (M. Ford Decl. ¶ 15.) Instead, Mr. Kargbo has

been subjected to no-bond detention while his family struggles to stay afloat.

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E. Immigration Detention

After a fight, Mr. Kargbo was arrested and detained by police in Washington

County Jail. (Hittler Decl. Exs. A at 4, V at 3.) Mr. Kargbo was not convicted of any

crime associated with this incident. On August 29, 2013, ICE issued a Notice to Appear

to Mr. Kargbo and detained him without any assessment of his flight risk or

dangerousness or invoking 8 U.S.C. § 1226(c). (Hittler Decl. Ex. A at 1-4.)

Since that date, Mr. Kargbo has been in ICE custody. First, he was held at Carver

County Jail, between August 29, 2013 and January 24, 2014. (Id. at Exs. M at 15-17, 51;

V at 2.) He was then transferred to and held at Sherburne County Jail, until on or about

April 20, 2015, when he was temporarily transferred to three locations around the country

on his way to York, Pennsylvania, for an interview at the Sierra Leonean consulate. (See

id. at ¶ 32, Exs. M at 1, N at 7, DD.) He was transferred back to Minnesota on or about

May 11, 2015. (See id. at ¶ 32.) Shortly after his return to Sherburne County Jail, the BIA

remanded his case to the Immigration Court. (Id. at Ex. EE.) As of the filing of this

Petition, Mr. Kargbo has been detained for one year, nine months, and 13 days. (Kargbo

Decl. ¶ 1; Hittler Decl. Ex. V at 2.)

Shortly after ICE took Mr. Kargbo into custody, he began to complain of mental

health problems. In October 2013, he called for medication by writing a note stating “my

hypolibelity is kicking in so I need some pills Bi-polar.” (Hittler Decl. Ex. M at 50.)

Even though he appeared to suffer from increasing mental health problems, he received

no diagnosis, treatment, or medications at that time. (Id. at 5.) Only in February of 2014,

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did the Sherburne County medical unit diagnose Mr. Kargbo with schizophrenia, bipolar

disorder, and post-traumatic stress disorder. (Id. at Ex. N at 16.)

Mr. Kargbo’s mental health deteriorated rapidly during his first few months in

detention. He suffered from auditory and visual hallucinations. (Id. at Exs. M at 4, 10, 29,

30, 42; N at 8, 10, 11, 15, 16, 19.) His symptoms were exacerbated when he was placed

in segregation (solitary confinement) from December 23, 2013, to January 19, 2014, at

Carver County Jail, and again from January 24, 2014, to February 17, 2014, at Sherburne

County Jail. (Id. at ¶ 31, Exs. M at 1, 25; AA at 2.)

This deterioration is not surprising, given that civil detention of indefinite duration

can cause “severe and chronic states of stress, helplessness, hopelessness, depression,

anxiety and dread.” Physicians for Human Rights, Punishment Before Justice: Indefinite

Detention in the US 9-10, 27-30 (2011) (available at

https://s3.amazonaws.com/PHR_Reports/indefinite-detention-june2011.pdf and attached

as Ex. O to Hittler Decl.). The deleterious effects of prolonged detention are magnified

for those who have experienced trauma, like Mr. Kargbo. (Id.) Moreover, solitary

confinement, which “is often used as a management tool for individuals with mental

illness,” has “disastrous psychological and physiological consequences,” and often

exacerbates mental illness. Nat’l Immigrant Justice Ctr. & Physicians for Human Rights,

Invisible in Isolation: The Use of Segregation and Solitary Confinement During

Immigration Detention 12-14 (2012) (available at

https://s3.amazonaws.com/PHR_Reports/Invisible-in-Isolation-Sep2012-detention.pdf

and attached as Ex. S to the Hittler Decl.). According to the DHS Office of Inspector

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General, “[i]t is not possible to make segregation into a therapeutic setting in which a

mentally ill detainee’s condition would improve.” Office of Inspector Gen., Dep’t of

Homeland Sec., Management of Mental Health Cases in Immigration Detention 15

(2011) (available at http://www.oig.dhs.gov/assets/Mgmt/OIG_11-62_Mar11.pdf and

attached as Ex. R to the Hittler Decl.).

In fact, ICE’s Office of Detention Oversight completed a Compliance Inspection

of Sherburne County Jail in July 2014 and documented 16 deficiencies related to the

National Detention Standards (“NDS”) used in the inspection, including standards on

Suicide Prevention and Intervention, Access to Legal Materials, and Use of Force.

(Hittler Decl. Ex. U at 2, 5.) Similarly, an April 2014 Compliance Inspection of Carver

County Jail, where Mr. Kargbo was held for the first five months of his immigration

detention, uncovered 26 instances of non-compliance with NDS, including violations of

Standards related to Disciplinary Segregation, Medical Care, and Environmental Health

and Safety. (Id. at Ex. T at 3.)

Mr. Kargbo’s experience illustrated these problems. His mental illness brought on

relentless suicidal thoughts, suicidal statements, and a number of suicide attempts while

in detention. (Id. at Exs. M at 48, 14-30; N at 9, 15.) In January 2014, after a mental

breakdown in solitary confinement, the Carver County Jail medical unit performed a

Mental Health Crisis Assessment and put him on suicide watch. (Id. at Ex. M at 46.) He

started receiving antipsychotic medication shortly after this incident. (Id. at Ex. M at 3, 4,

7.) Mr. Kargbo has been subjected to approximately two months of solitary confinement

during his immigration detention. (Id. at ¶ 31; Ex. AA at 2.)

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As described by Dr.,

There is broad psychiatric consensus concerning the effects of prolonged seclusion and isolation upon human beings in general, and especially upon those with mental illness who already have difficulties distinguishing reality from their own hallucinations and delusions. . . . In Mr. Kargbo’s case, placing him in segregation was to leave him completely helpless and vulnerable to all the fears and terrors he experiences as a child captive during his RUF years, and was a sure way to increase his psychosis and his risk of self-harm, as occurred. . . .

(Id. at Ex. L at 6.)

Mr. Kargbo’s situation continued to worsen in detention. He was put on suicide

watch again at Sherburne County Jail in May 2014 and reported hallucinations as late as

September 2014. (Id. at Ex. N at 6, 11.) A mental health assessment from May 20, 2014

states that his antipsychotics were “not well managed” early on. (Id. at Ex. N at 10.)

At one of the detention centers where Mr. Kargbo was held temporarily before

getting to York for his consular interview, medical staff performed a blood test and

diagnosed him with type 2 diabetes. (Kargbo Decl. ¶ 56; Hittler Decl. Ex. P at 1, 22.)

Now he undergoes repeated, daily blood testing and takes medication to control it.

(Kargbo Decl. ¶ 56; Hittler Decl. Ex. P at 22.) Diabetes likely resulted from the

combination and high dosage of antipsychotic medications prescribed to him by the

Sherburne County Jail medical staff. (Hittler Decl. Ex. Q at 1.) Overmedication also

caused Mr. Kargbo to feel like a “zombie.” (Kargbo Decl. ¶¶ 58, 66; Hittler Decl. Ex. P

at 5.)

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Mr. Kargbo’s symptoms have stabilized since diagnosis and treatment. Now, Mr.

Kargbo reports that his medications are effective, and he no longer suffers from suicidal

thoughts or hallucinations. (Kargbo Decl. ¶ 57; Hittler Decl. at Ex. N at 2-3.) Mr.

Kargbo’s mental condition requires treatment outside of jail, as evidenced by ongoing

complications due to mismanaged treatment, as Dr. describes. (Hittler Decl. Ex. Q at 2.)

As Dr. explained, “while Mr. Kargbo remains in confinement, he is not receiving

adequate psychiatric care. . . . [A]dequate treatment of his schizophrenia and PTSD

require focused efforts in social treatments and therapy for his very significant PTSD and

other effects of his horrific experiences as a child soldier.” (Hittler Decl. Ex. L at 6.) If

Mr. Kargbo were released, he could receive the necessary therapy and medication from

the…. (Id. at Ex. Q at 2.) Moreover, release from detention would help sustain Mr.

Kargbo’s recovery because he would be with his children, whom his mental health

examiners describe as protective factors against his suicide throughout his medical

reports. (Id. at Exs. M at 5, 16, 20; N at 7, 9.)

F. Mr. Kargbo’s Protracted and Defective Removal Proceedings

ICE has charged Mr. Kargbo as removable on two separate grounds: …

Mr. Kargbo’s most recent date of release from criminal custody related to any of

these convictions was December 11, 2008. (Id. at Ex. Z.) Rather than detaining Mr.

Kargbo at the time of his release from physical custody for a conviction underlying the

immigration charges, DHS waited for four years, eight months, and eighteen days, taking

Mr. Kargbo into custody on August 29, 2013.

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Mr. Kargbo’s first removal hearing commenced on September 12, 2013, and he

was ordered removed on November 15, 2013, appearing pro se throughout the

proceeding. (See id. at Exs. B at 8; F at 1, 4.) But the Immigration Judge apparently failed

to take pleadings on the factual allegations and the removal charges and never found Mr.

Kargbo removable by clear and convincing evidence. (See id. at Ex. B.) The result was a

fundamentally defective removal order. Mr. Kargbo was asking for help for his mental

illness at the time and later described experiencing hallucinations while his removal

proceedings took place. (Id. at D at 43, M at 49.) The Immigration Judge also encouraged

Mr. Kargbo to “get on the internet and do [his] own research” about country conditions to

support his asylum application, to which he responded, “I wish I could, [but] you know, I

cannot get on [the Internet].”1 (Hittler Decl. Ex. C at 113.) The Immigration Judge denied

relief for Mr. Kargbo and found, despite his young age and the fact that he had received

death threats and had been tortured in Sierra Leone, that he was barred from protection

because he was a “persecutor of others.” (Id. at Ex. E. at 2-3, F at 3-4.) Appealing pro se,

Mr. Kargbo obtained a remand from the BIA for further analysis of past persecution and

explanation of the conclusion that Mr. Kargbo was a persecutor of others, especially in

light of his own statements that he was afraid for his life as a child soldier in the RUF.

(Id. at Ex. E at 2-3.)

1 Detention of immigrants in removal proceedings provides a poignant illustration of why liberty matters: immigrants with representation have a much greater chance at obtaining relief from removal, and “custody status . . . strongly correlates with . . . likelihood of obtaining counsel.” See Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings: New York Immigrant Representation Study Report: Part I, 33 CARDOZO L. REV. 357, 367-73 (2011).

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After remand, during another pro se appearance, Mr. Kargbo provided his mental

health evaluation to the Immigration Court, and the Immigration Judge, along with the

government attorney, successfully sought pro bono counsel. (Id. at Ex. D at 8-12.) Mr.

Kargbo’s counsel then challenged the determination that his conviction was an

aggravated felony and applied for humanitarian asylum and withholding of removal

based on Mr. Kargbo’s time as a child soldier and his status as a person who suffers from

psychosis. (Id. at Exs. D at 29, J at 3-6.)

The Immigration Judge issued a written decision on July 31, 2014, refusing to

revisit the aggravated felony determination made during the first set of hearings while

Mr. Kargbo was pro se and mentally incompetent. (Id. at Ex. J at 4.) The Immigration

Judge also made several alternative rulings as to why Mr. Kargbo was barred from

protection. (Id. at 5-8.)

Mr. Kargbo again appealed to the BIA, which dismissed the appeal and denied his

accompanying motion to remand proceedings to allow pleadings to be taken. (Id. at G at

1.) The BIA agreed with Mr. Karbgo that his conviction was not necessarily an

aggravated felony but declined to resolve the challenge, stating that it was unnecessary to

decide. (Id. at Ex. G at 4.) It also affirmed the Immigration Judge’s alternative holding as

to Mr. Kargbo’s ineligibility for relief. (Id.) Mr. Kargbo petitioned for review of these

decisions by the Eighth Circuit Court of Appeals. See Kargbo v. Holder, Case No. 15-

1157.

In the meantime, Attorney General Holder reversed a critical decision by prior

Attorney General Mukasey concerning the methodology used to determine whether a

17

conviction was for a CIMT. See Matter of Silva Trevino, 26 I&N Dec. 550 (A.G. 2015).

This reversal provided an additional challenge to the immigration charges against Mr.

Kargbo. Mr. Kargbo again moved the BIA to reopen his case and this time the BIA

agreed. (Hittler Decl. Ex. EE.) The BIA order allows Mr. Kargbo to contest the removal

charges and seek humanitarian protection anew in immigration court. (Hittler Decl. Ex.

EE.) Consequently, after successfully fighting his removal for a year and nine months,

Mr. Kargbo faces more months of detention as he starts over before the Immigration

Judge and pursues his appellate rights again if that becomes necessary.

G. Planning for Mr. Kargbo’s Release

Mr. Kargbo should be at home with his children and extended family. If released,

Mr. Kargbo would live with Ms and resume his role as the primary caretaker for his

children. (Kargbo Decl. ¶ 63.) He would apply for work full-time through the same

staffing agency where he worked before detention and use these earnings to support his

children. (Id. at ¶¶ 34, 63.)

With his new dosage, Mr. Kargbo is able to maintain his treatment program. Mr.

Kargbo describes his thoughts as “clear” when he takes his medications as prescribed.

(Id. at ¶ 57.) Before the medications, he felt anxious and did not want to communicate

with others, but now he has more confidence. (Id.) Dr. has outlined a multi-faceted

treatment plan that --is prepared to provide and coordinate upon his release. (Hittler Decl.

Ex. L at 7-9.) Through this plan, Mr. Kargbo can continue treatment that has eliminated

his hallucinations while better managing their potential side effects and can begin a

process of recovery for his PTSD. (Id.)

18

Providing Mr. Kargbo an opportunity for release would allow a long-time lawful

permanent resident to resume his role as the primary caretaker for his U.S. citizen

children. His release would alleviate the financial and emotional burdens that currently

weigh heavily on his children, their mother, and their grandmother. With medication

available, psychotherapy services secured, and active assistance assured by Ms., Mr.

Kargbo already has a support network in place. Mr. Kargbo needs the stability of a home

environment while he awaits the resolution of his immigration proceedings, which could

continue for an extended period beyond the year and a half of detention he has already

experienced. Mr. Kargbo’s friends and family are in Minnesota. (Kargbo Decl. ¶ 65.) He

wants more than anything to be reunited with his children and states that he will abide by

any conditions imposed on his release. (Id. at ¶¶ 36, 65, 68.)

LEGAL BACKGROUND

I. STATUTORY FRAMEWORK

The statutory authority for detention during removal proceedings before a final

order of removal is issued is 8 U.S.C. § 1226. Section 1226, in turn, consists of two main

subsections: § 1226(a) and § 1226(c). The text of § 1226(a), the general statute

authorizing detention of noncitizens, reads in pertinent part:

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on--

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(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole

8 U.S.C. § 1226(a) (emphasis added).

Section (b) then provides that “[t]he Attorney General at any time may revoke a

bond or parole authorized under subsection (a) of this section, re-arrest the alien under

the original warrant, and detain the alien.” 8 U.S.C. § 1226(b) (emphasis added).

Section (c)(1) describes a limited subset of detained noncitizens who are subject to

mandatory detention, rather than the discretionary detention of section (a). It reads:

(1) Custody

The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. § 1226(c)(1) (emphasis added).

Under § 1226(a), a detained noncitizen is entitled to an individualized review of

risk of flight and dangerousness to the community, in the form of a bond hearing.

20

However, a noncitizen detained under § 1226(c) is not entitled to any opportunity to seek

bond, and is instead mandatorily detained for the duration of their immigration

proceedings. In other words, § 1226(a) is the broad, authorizing provision that allows for

the discretionary detention of any noncitizen pending removal proceedings on an

individualized basis, and § 1226(c) sets out an exception to the “general rule that allows

bond hearings.” Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 153 (3d Cir. 2013). This

exception prescribes a categorical detention regime applicable only to a limited sub-class

of detainees.

II. 8 U.S.C. § 1226(c) DOES NOT AUTHORIZE PROLONGED MANDATORY DETENTION

Mr. Kargbo’s detention for over 21 months without a bond hearing is an egregious

violation of the Fifth Amendment’s guarantee that “[n]o person shall be . . . deprived of

life, liberty, or property, without due process of law.” Recognizing that the prolonged

detention of noncitizens would raise serious due process concerns, the four circuits that

have addressed the question have all agreed that § 1226(c) contains an implicit

‘reasonableness’ limit, after which individualized review or release is required. Lora v.

Shanahan, 804 F.3d 601 (2d Cir. 2015); Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir.

2013) (“Rodriguez II”); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011); Ly v.

21

Hansen, 351 F.3d 263 (6th Cir. 2003).2 Mr. Kargbo’s detention has far exceeded any

measure of reasonableness, so he is entitled to habeas relief.

In order to determine whether no-bond detention has become unreasonable, courts

have employed either a six-month bright-line test or a multi-factor test. Compare Lora,

804 F.3d at 614-16 (six-month bright-line test) and Rodriguez II, 715 F.3d at 1138-39

(same), with Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 473-75 (3d Cir.

2015) (multi-factor test) and Ly, 351 F.3d at 271-73 (same). As discussed below, Part B,

this Court should apply the six-month bright-line test, under which a noncitizen is entitled

to an automatic bond hearing after six months of § 1226(c) detention, because this test is

supported by Supreme Court due process precedent, is more practical, will conserve

judicial resources and the resources of the parties, and will better and more consistently

protect individuals’ core constitutional rights. Under this test, Mr. Kargbo was due a bond

hearing with constitutionally sufficient procedural protections over a year ago. See

Rodriguez II, 715 F.3d at 1138-39. However, even if this Court elects instead to follow a

multi-factor reasonableness test, the Court should still find that Mr. Kargbo’s detention

has exceeded the bounds of reasonableness, and therefore due process requires a bond

hearing “at which the Government bears the burden of proving that continued detention is

necessary to fulfill the purposes of the detention statute,” namely, preventing flight and

2 NOTE FOR PRACTITIONERS: at the time of writing, the First Circuit and Eleventh Circuit have both heard oral argument on related cases: Reid v. Donelan, 991 F. Supp. 2d 275 (D. Mass. 2014), appealed, case no. 14-1270 (1st Cir. Mar. 11, 2014) (oral argument took place in fall 2015); Sopo v. U.S. Attorney General, 4:13-cv-00160-CDL-MSH, (M.D. Ga. 2014), appealed, No. 14-11421-EE (11th Cir. Apr. 1, 2014) (oral argument took place in January 2016).

22

danger to the community. Diop, 656 F.3d at 233; see also Ly, 351 F.3d at 273 (applying

the multi-factor test and placing the burden on the government to show that detention

prevents flight or danger to the community).

A. Because Prolonged Detention Under § 1226(c) Raises Due Process Concerns, §   1226(c) Must Be Construed to Authorize No-Bond Mandatory Detention for Only a ‘Reasonable’ Duration

“Freedom from imprisonment—from government custody, detention, or other

forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause

protects.” Zadvydas 533 U.S. at 690. It is “well established” that the Fifth Amendment’s

Due Process Clause protects detained noncitizens like Mr. Kargbo from unconstitutional

deprivations of liberty when in deportation proceedings. Demore, 538 U.S. at 523

(internal citations omitted). The Supreme Court “repeatedly has recognized that civil

commitment for any purpose constitutes a significant deprivation of liberty that requires

due process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979) (emphasis added).

Additionally, the Court has long held that civil detention is unconstitutional absent a

sufficient justification and strong procedural protections. See generally, e.g., Zadvydas,

533 U.S. at 690; Foucha v. Louisiana, 504 U.S. 71, 80–83 (1992); United States v.

Salerno, 481 U.S. 739 (1987); Addington, 441 U.S. at 425–27, 433; Jackson v. Indiana,

406 U.S. 715 (1972). Moreover, as detention grows in length, the justification for the

increasingly severe deprivation of individual liberty must also grow stronger. See, e.g.,

Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997); see also Chavez-Alvarez, 783 F.3d at

474 (citing Diop, 656 F.3d at 232, 234); Casas-Castrillon v. Dep’t of Homeland Sec., 535

F.3d 942, 950 (9th Cir. 2008).

23

The Supreme Court has applied the canon of constitutional avoidance to preclude

prolonged categorical detention without individualized review in the context of post-

removal period detention under 8 U.S.C. § 1231(a)(6). In Zadvydas v. Davis, the

Supreme Court held that post-removal period detention under § 1231(a)(6), like other

“nonpunitive” civil detention, is subject to due process limitations. 533 U.S. at 690-92,

696-700. Applying the canon of constitutional avoidance, the Supreme Court limited

detention under § 1231(a)(6) without an individualized justification to a presumptively

reasonable period of six months—the time “reasonably necessary” to ensure removal—

even though § 1231(a)(6) is silent on the length of detention it authorizes. Id. at 689, 697-

98. After the six-month period has passed, noncitizens can demand that the government

justify their continued detention on an individual basis. Id. at 689 (explaining that courts

must construe statutes to avoid constitutional concerns where “fairly possible”).

Like § 1231(a)(6), § 1226(c) contains no express temporal limitation on the length

of mandatory detention; however, § 1226(c) detention without bond should be similarly

limited to a reasonable period. The Supreme Court has never addressed whether no-bond

detention of more than twenty-one months would violate the constitution, but all of the

circuit courts addressing the issue have ruled that prolonged no-bond detention under

§ 1226(c) raises serious due process concerns and have ordered either a bond hearing or

immediate release when detention becomes prolonged.

In the Second and Ninth Circuits, mandatory detention under § 1226(c) is

“presumptively prolonged,” and thus “‘constitutionally doubtful’” when it “surpasses six

months in duration.” Rodriguez II, 715 F.3d at 1136-1137, 1139 (affirming an order for

24

bond hearings for § 1226(c) detainees held longer than six months) (quoting Casas-

Castrillon, 535 F.3d at 951); see also Lora, 804 F.3d at 606 n.11, 614-16 (adopting the

six-month bright-line rule in use in the Ninth Circuit and affirming an order for a bond

hearing for an individual detained under § 1226(c) based on the fact that he was detained

for five-and-a-half months before being released on bond and “it [wa]s certain that, were

he to be returned to custody, his total period of detention would exceed six months”);

Rodriguez v. Robbins, 804 F.3d 1060, 1080-81 (9th Cir. 2015) (“Rodriguez III”)

(reiterating the holding in Rodriguez II that individuals detained longer than six months

pursuant to § 1226(c) are entitled to bond hearings).

Similarly, in Diop v. ICE/Homeland Security, the Third Circuit granted habeas

relief for a noncitizen held under § 1226(c) for thirty-five months. The court held that

“the constitutionality of [mandatory § 1226(c) detention without a bond hearing] is a

function of the length of the detention. At a certain point, continued detention becomes

unreasonable and the Executive Branch’s implementation of § 1226(c) becomes

unconstitutional unless the Government . . . justifie[s] its actions at a hearing inquiring

into whether continued detention is consistent with the law’s purposes of preventing

flight and dangers to the community.” Diop, 656 F.3d at 232. The Third Circuit also

concluded that in enacting § 1226(c), Congress “did not intend to authorize prolonged

detention without . . . further inquiry into whether detention is necessary.” Id. at 235

(emphasis added).

Likewise, in Ly v. Hansen, the Sixth Circuit held that detainees may not be held

under § 1226(c) without bond beyond the time “reasonably required to complete removal

25

proceedings in a timely manner.” 351 F.3d at 266, 268 (affirming the district court order

for a bond hearing after one and one-half years of detention). The Ly court read the

constitutional requirement for reasonable duration as consistent with Congress’s “clear”

intent that “removal proceedings [for detained criminal noncitizens] were to proceed

quickly.” Id. at 269 (citing 8 U.S.C. § 1229(d)(1), which states that “[i]n the case of an

alien who is convicted of an offense which makes the alien deportable, the Attorney

General shall begin any removal proceeding as expeditiously as possible after the date of

the conviction”).

While the Supreme Court held in Demore v. Kim that brief mandatory detention

under § 1226(c) without a bond hearing did not violate due process, this holding was

specifically premised upon the fact that the noncitizen had been detained for just six

months, as well as evidence that, at the time, § 1226(c) detention more broadly was

neither indefinite nor prolonged. 538 U.S. at 530-31; id. at 529–30 (relying on evidence

that, at that time, removal proceedings were completed in an average time of forty-seven

days and a median time of thirty days in 85% of cases, and that the remaining 15% of

cases, in which an there is an appeal, were completed in an average of four months).

Indeed, although the Demore Court upheld a narrow exception to the general civil

detention rule that “liberty is the norm” absent procedural protections to ensure that

detention is justified, Salerno, 481 U.S. at 755, this exception was narrowly tailored to

the relatively brief period at issue in Demore. Id. at 513, 523, 527–29; see also Lora, 804

F.3d at 614 (“[I]n Demore v. Kim, [the Supreme Court] emphasized that, for detention

26

under the statute to be reasonable, it must be for a brief period of time.”); Ly, 351 F.3d at

276–77 (Judge Haynes, concurring in part and dissenting in part).

As the crucial fifth vote in Demore, Justice Kennedy acknowledged in his

concurrence that “if continued detention bec[omes] unreasonable or unjustified,” a

noncitizen could be “entitled to an individualized determination as to his risk of flight and

dangerousness.” 538 U.S. at 532 (Kennedy, J., concurring); see also id. at 532-33 (“Were

there to be an unreasonable delay by the INS in pursuing and completing deportation

proceedings, it could become necessary then to inquire whether the detention is not to

facilitate deportation, or to protect against risk of flight or dangerousness, but to

incarcerate for other reasons.”); Lora, 804 F.3d at 614; Rodriguez II, 715 F.3d at 1137.

Since Demore, “the time that each immigrant spends in detention has . . . risen

substantially.” Lora, 804 F.3d at 604-05. Circuit courts now rely on the six months of

detention at issue in Demore as a touchstone for determining whether no-bond detention

under § 1226(c) has become unreasonably prolonged. See, e.g., Rodriguez III, 804 F.3d at

1068 (“[T]he Court’s holding in Demore turned on the brevity of mandatory detention

under § 1226(c) . . . .”); Chavez-Alvarez, 783 F.3d at 474, 477-78 (holding that detention

became unreasonable at some point between six months and one year of detention and

noting that “the Court in Demore expected the detentions under section 1226(c) to be

brief, and . . . this expectation was key to their conclusion that the law complied with due

process.”); Rodriguez II, 715 F.3d at 1137 (“[W]e have consistently held that Demore’s

holding is limited to detentions of brief duration.”); Diop, 656 F.3d at 234 (explaining

27

that mandatory detention becomes more constitutionally “suspect” as it extends beyond

the brief detention periods considered by the Supreme Court in Demore).

This Court has agreed that imposing a reasonable time limit on § 1226(c)

detention “saves the statute from constitutional challenge.” Ly, 351 F.3d at 270. In Bah v.

Cangemi, the District of Minnesota explained:

Given Demore’s repeated references to the brief and finite duration of § 1226 detention, it is quite possible that the Constitution requires some time limits on that detention—or at least that, as in Zadvydas, such time limits should be read into the statute to avoid constitutional problems. . . . This Court believes that allowing unlimited pre-removal-period detention under § 1226 would be inconsistent with the reasoning underlying Zadvydas.

489 F. Supp. 2d 905, 919–20 (D. Minn. 2007) (Judge Schiltz). Similarly, in Moallin v.

Cangemi, this Court assumed for the sake of argument that a petitioner held for thirteen

months was detained under § 1226(c), and found that “[e]ven if the removal period has

not yet begun, Zadvydas mandates either construing the pre-removal detention authority

to avoid constitutional doubt or a declaration that the pre-removal statute is

unconstitutional.” 427 F. Supp. 2d 908, 924 (D. Minn. 2006) (C.J. Rosenbaum adopting

the Report and Recommendation of Mag. Judge Nelson). The District of Minnesota has

also held that “the BIA’s interpretation . . . does not automatically permit prolonged

detention” and that, even if the case they were deciding did not raise serious

constitutional concerns, “‘[t]his is not to say . . . that at some time in the future [a

petitioner] is in any way prevented from pursuing relief in that any challenge with respect

to his continued detention without inquiry into its necessity becomes more suspect as his

28

detention continues.’” Cisneros v. Napolitano, No. CIV. 13-700 JNE/JJK, 2013 WL 3353939,

at *8 n.6 (D. Minn. July 3, 2013) (citing Hernandez v. Sabol, 823 F.3d 266, 273 (M.D. Pa.

2011)).

Numerous district courts concur that constitutional concerns compel a construction

of § 1226(c) that does not authorize prolonged detention. See, e.g., Bourguignon v.

MacDonald, 667 F. Supp. 2d 175, 183 (D. Mass. 2009) (noting that even if the

petitioner’s detention under § 1226(c) lasted between seven and eight months, habeas

relief would still be warranted because this period “exceeds the brief time frame

contemplated by Chief Justice Rehnquist in Demore”); Araujo-Cortes, 35 F. Supp. 3d at

548 (“[R]eading § 1226(c) in a manner that does not contain a reasonable limit would

raise serious constitutional [concerns] and would be contrary to the Supreme Court's

guidance in Zadvydas and Demore.”); Sengkeo v. Horgan, 670 F. Supp. 2d 116, 126 (D.

Mass. 2009) (“In light of . . . Demore . . . the Court cannot accept the government’s

position that pre-removal detention is exempt from the bedrock due process principles

relied upon in Zadvydas.”); Alli v. Decker, 644 F. Supp. 2d 535, 539 (M.D. Pa. 2009)

rev’d in part and vacated in part on other grounds, 650 F.3d 1007 (3d Cir. 2011) (“[T]he

Court concurs with the growing consensus within this district and . . . throughout the

federal courts, that prolonged detention . . . under § 1226(c) raises serious constitutional

concerns.”).3

3 For additional district court decisions with similar holdings [list updated late 2015], see Maldonado v. Macias, __ F. Supp. 3d. ___, 2-15 WL 8958848 (W.D. Tex. Dec. 15, 2015) (applying case law limiting detention under § 1226(c) for due process reasons to detention under § 1225(b)(2)(A)); Reid v. Donelan, 991 F. Supp. 2d 275 (D. Mass. 2014) (NOTE FOR PRACTITIONERS: on appeal to the First Circuit as of 03/2016);

29

In sum, prolonged detention under § 1226(c) raises serious due process concerns

because of the “sheer length of detention” absent any individualized justification. Tijani

v. Willis, 430 F.3d 1241, 1249 (9th Cir. 2005) (Tashima, J., concurring). Instead,

§ 1226(c) must be construed to “implicitly authorize[] detention for a reasonable amount

of time, after which the authorities must make an individualized inquiry into whether

detention is still necessary to fulfill the statute’s purpose of ensuring that an alien attends

removal proceedings and that his release will not pose a danger to the community.” Diop,

656 F.3d at 231.

B. No-Bond Detention Under § 1226(c) Is Unreasonably Prolonged After Six Months

In determining whether § 1226(c) detention has become unreasonably prolonged,

courts have applied two tests. Under the most efficient test, which should be applied here,

no-bond detention under § 1226(c) is unreasonable after six months, and the detainee

must be given a bond hearing at which the Government must demonstrate that continued

detention of the individual, rather than supervised release, is justified by flight risk or

danger to the community. See Lora, 804 F.3d at 614-16; Rodriguez II, 715 F.3d at 1130-

31, 1137-39.

Pujalt-Leon v. Holder, 934 F. Supp. 2d 759 (M.D. Pa. 2013); Monestime v. Reilly, 704 F. Supp. 2d 453 (S.D.N.Y. 2010); Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455 (D. Mass. 2010); Ramirez v. Watkins, No. B:10-126, 2010 WL 6269226 (S.D. Tex. Nov. 3, 2010); Parlak v. Baker, 374 F. Supp. 2d 551 (E.D. Mich. 2005), vacated as moot sub nom. Parlak v. U.S. Immigration & Customs Enforcement, No. 05-2003, 2006 WL 3634385 (6th Cir. Apr. 27, 2006) (holding that detention had become unreasonable after eight months); Uritsky v. Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003). But see Ramirez, 2010 WL 6269226, at *11 (discussing minority of opinions in district courts in the Fifth Circuit that declined to limit duration of § 1226(c) detention).

30

Under the second approach—a multi-factor “reasonableness” test—courts consider

a variety of factors to determine whether detention has become unreasonable, including:

(1) the duration of detention in relation to the average time necessary for completion of

proceedings identified in Demore; (2) the probable extent of future removal proceedings;

(3) the likelihood that the detainee will eventually be removed; and (4) the conduct of the

government and the noncitizen during removal proceedings, keeping in mind that

noncitizens should not be penalized for pursuing legal remedies.4 Alli, 644 F. Supp. 2d at

543–45. Even under this multi-factor test, however, the length of time in detention is the

most important consideration. See Diop, 656 F.3d at 234 (emphasizing that even under

the multi-factor test, “the constitutional case for continued detention without inquiry into

its necessity becomes more and more suspect as detention continues past [the length of

time deemed necessary in Demore—between a month and a half and five months]”).

A bright-line rule that mandatory detention is reasonable only for six-months is

superior to a multi-factor reasonableness test because a six-month test is supported by

Supreme Court precedent and Congressional intent; better protects detainees’

constitutional rights; conserves judicial and party resources by eliminating unnecessary

litigation; and leads to more consistent application of core constitutional principles.

4 Some courts also consider the length of criminal sentence served for the crimes that make a noncitizen deportable, relative to the duration of immigration detention. See, e.g., Sengkeo, 670 F. Supp. 2d at 127 (detention was prolonged when it had lasted “ten times as long as [petitioner]'s original 60–day sentence”); see also Ly, 351 F.3d at 271 (“Ly served criminal sentences for his two convictions of a total of 12 months; he spent considerably more time than that in INS custody awaiting a determination on removal.”). Mr. Kargbo’s civil detention has continued about forty-five times longer than his fourteen days of incarceration stemming from the alleged deportable offenses. (See Hittler Decl. Exs. W at 4, Z, BB, CC.)

31

First, Supreme Court precedent supports drawing a line at six months. Lora, 804

F.3d at 615 (“Zadvydas and Demore, taken together, suggest that the preferred approach

for avoiding due process concerns in this area is to establish a presumptively reasonable

six-month period of detention.”). In Zadvydas and Demore, the Supreme Court

acknowledged that detention for up to six months under § 1231(a)(6) and § 1226(c)

without an individualized determination of necessity is not per se unconstitutional, but

the Court also strongly signaled in both cases that mandatory detention lasting longer

than six months triggers heightened due process concerns. Demore, 538 U.S. at 530–31;

Zadvydas, 533 U.S. at 701. The Zadvydas Court noted that it had “reason to believe . . .

that Congress previously doubted the constitutionality of [similar immigration] detention

for more than six months,” based on longstanding precedent. 533 U.S. at 701 (citing

United States v. Witkovich, O.T. 1956, No. 295, pp. 8-9); see also Rodriguez II, 715 F.3d

at 1139 (“[I]mmigration detention becomes prolonged at the six-month mark regardless

of the authorizing statute.”). A judge in the Sixth Circuit has even advocated that no-bond

§ 1226(c) detention becomes presumptively unreasonable after the average length of

proceedings noted in Demore—forty-seven days without an administrative appeal and

120 days with appeal. Ly, 351 F.3d at 275–76 (Judge Haynes, concurring in part and

dissenting in part). Furthermore, after six months, “‘the private interests at stake are

profound’ and ‘the risk of an erroneous deprivation of liberty in the absence of a hearing

before a neutral decisionmaker is substantial.’” Rodriguez III, 804 F.3d at 1078 (citation

omitted).

32

Examining the immigration statutes as a whole further suggests that when

Congress wants to authorize lengthy detention, it will do so explicitly and only with

certain procedural safeguards, including review after the touchstone duration of six

months. For example, under the Patriot Act, Congress authorized lengthy detention of

suspected terrorists, but “in order to effect such lengthy detentions, the Attorney General

is required to certify that the statutory criteria has been met, and the Attorney General

must review the certifications every six months.” See Nadarajah v. Gonzales, 443 F.3d

1069, 1078-79 (9th Cir. 2006) (citing 8 U.S.C. §§ 1182, 1226a, 1227, 1531–1537).

Second, a bright-line test is a more practical and effective way to protect

individual detainees’ constitutional right to liberty, which we hold sacred for obvious

reasons: “endless months of detention . . . has real-life consequences for immigrants and

their families.” Lora, 804 F.3d at 615-16. Under a bright-line rule, individuals detained

for a prolonged period would be entitled to a bond hearing without first filing a habeas

corpus petition in federal court; under the multi-factor test, however, each detainee must

file an individual habeas petition before even having a chance to argue for release. It is

unreasonable to require detainees to overcome the many barriers to accessing federal

courts, often with no practical access to counsel, when there are matters of “grave

constitutional concern[]” at stake. Rodriguez II, 715 F.3d at 1132. A multi-factor test

erroneously presumes that detainees have knowledge and finances to obtain an attorney

and that they have the language skills required to access the federal courts. Cf. Rodriguez

III, 804 F.3d at 1073 (“Confinement makes it more difficult to retain or meet with legal

counsel, and the resources in detention facility law libraries are minimal at best, thereby

33

compounding the challenges of navigating the complexities of immigration law and

proceedings.”).5

Without clear guidance from the courts about when detention becomes

unreasonable, ICE may simply continue to detain those noncitizens facing prolonged

detention who fail to file a successful habeas petition. See Rodriguez III, 804 F.3d at 1079

(“As a result of § 1226(c)’s mandatory language and the limited review available through

a Joseph hearing, individuals are detained for years without adequate process.”); Ly, 351

F.3d at 276 (Judge Haynes, concurring in part and dissenting in part) (arguing that,

without “a judicial time limit” on mandatory detention, detention will continue, even

when the duration is clearly unconstitutionally prolonged). Furthermore, without a bright-

line test, detention of individuals whose detention is unrelated to avoiding flight or

danger will continue if a person cannot file a proper habeas petition. Cf. Lora, 804 F.3d at

605 (noting that the district court ordered a bond hearing for the petitioner although he

was detained under § 1226(c), and “[a]t that hearing, the government did not contest [the

petitioner’s] eligibility for bail” (emphasis added)). ICE personnel are simply ill-

equipped to police for themselves the constitutional limits implicit in the detention

statutes. E.g. Chavez-Alvarez, 783 F.3d at 477 (granting habeas relief and implying that

ICE should have held a bond hearing well before the habeas petition was filed because

after nine months of detention and numerous IJ hearings, “the Government had, by then,

5 See also Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harv. C.R.–C.L. L.Rev. 601, 603 (2010) (“Unfortunately, litigation is unlikely to be a viable solution for most immigrants in prolonged detention. . . . it is logistically difficult to bring a habeas petition. Federal litigation is complex, resource-intensive, and time-consuming.).

34

enough exposure to Chavez-Alvarez, and sufficient time to examine information about

him to assess whether he truly posed a flight risk or presented any danger to the

community”); see also Diop, 656 F.3d at 234 (“We cannot simply rely on the

Government’s determination of what is reasonable.”).

When the government defaults to continuing detention without a bond hearing no

matter the duration, individuals who merit release are especially likely to be detained for

an unconstitutionally prolonged period when immigration court dockets are large in size,

as they regularly are in the District of Minnesota and throughout the country. Lora, 804

F.3d at 616 (noting that without a six-month rule, there would likely be “endless months

of detention, often caused by nothing more than bureaucratic backlog”). Additionally

“many detainees choose to give up meritorious claims and voluntarily leave the country

instead of enduring years of immigration detention awaiting a judicial finding of their

lawful status.” Rodriguez III, 804 F.3d at 1072. A bright-line rule would do away with

this default to continue detention in the absence of a habeas petition; all detainees whose

confinement has become presumptively unreasonable would be protected, even if lack of

resources would preclude production of a sufficiently sophisticated habeas petition.

For these same reasons, the multi-factor test would result in a higher volume of

federal habeas filings, burdening the resources of the courts, detainees, and the

government. Cf. Zadvydas, 533 U.S. at 700–01 (“In order to limit the occasions when

courts will need to make [difficult judgments], we think it practically necessary to

recognize some presumptively reasonable period of detention.”). Pro se petitioners

entitled to relief will also “pay” for the litigation by spending many unwarranted months

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in detention, given the slow nature of federal litigation and the need for additional

administrative procedures once a court grants habeas relief. See Alli, 644 F. Supp. 2d at

542 (describing the administrative procedures required once a district court grants habeas

relief in the form of ordering a bond hearing). Meanwhile, under a bright-line rule, there

is no need for federal litigation—once detention becomes prolonged, bond hearings will

be streamlined automatically into existing administrative proceedings, and immigration

courts are accustomed to holding such hearings. See Rodriguez III, 8-04 F.3d at 1086

(holding that class members were entitled to automatic bond hearings after six months of

detention).

Finally, the multi-factor test will lead to inconsistent results, to the detriment of the

detainee’s constitutional rights. Case law interpreting the multi-factor reasonableness test

from other jurisdictions yields substantially different analyses and results in inconsistent

application of core constitutional principles. Compare Flores-Powell, 677 F. Supp. 2d at

472–73 (granting habeas relief based on “[t]he factors employed in Ly,” understood to

mean (1) overall length of detention, (2) length of imprisonment for detainee’s

underlying criminal conviction, (3) whether resolution of removal proceedings was

reasonably foreseeable, (4) whether the Immigration Court had acted promptly to

advance its interests, and (5) whether petitioner had engaged in dilatory tactics) with

Akunvabey v. Adducci, No. 3:13CV2781, 2015 WL 65529, at *5 (N.D. Ohio Jan. 5, 2015)

(holding that based on Ly, civil immigration detention for twenty-five months was

reasonable after analyzing only (1) whether petitioner would have any foreseeable

opportunity for removal, in the form of availability of travel documents, if ever ordered

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removed (Zadvydas’s holding to the contrary) and (2) whether the government had

“dragged its feet,” while completely omitting constitutional analysis of the length of time

petitioner had been detained); see also Lora, 804 F.3d at 615 (noting “the pervasive

inconsistency and confusion exhibited by district courts . . . when asked to apply a

reasonableness test on a case-by-case basis” and collecting district court cases from the

Second Circuit demonstrating this inconsistency); Farrin R. Anello, Due Process and

Temporal Limits on Mandatory Immigration Detention, 65 HASTINGS L.J. 363, 396, 400

(2014) (“District court judges in the Third Circuit have applied the reasonableness

standard [from Diop] to interpret similar facts in different ways . . . . These disparities

bolster the importance of a clear upper temporal limit for mandatory detention.”).

C. Mr. Kargbo’s Mandatory Detention Has Become Unreasonably Prolonged

Mr. Kargbo has been detained for a total of 652 days, since August 29, 2013.

(Kargbo Decl. ¶ 1; Hittler Decl. Ex. V at 2.) He has had no meaningful opportunity to

challenge his detention, nor has there been any determination that his detention is

warranted based on flight risk or danger. Under either the bright-line rule or the multi-

factor test, Mr. Kargbo’s detention has become unreasonable, and he is entitled to relief

from this Court.

Mr. Kargbo has been in ICE custody since August 29, 2013. Under the six-month

rule, Mr. Kargbo was entitled to a constitutionally adequate bond hearing in late February

2014. More than a year later, however, he continues to languish in mandatory detention.

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Mr. Kargbo is clearly entitled to a bond hearing where the government bears the burden

of justifying his continued detention.

Likewise, under the multi-factored reasonableness test, Mr. Kargbo’s detention is

unreasonable. The most central consideration—length of detention “beyond the average

times necessary for completion of removal proceedings which were identified

in Demore,” Alli, 644 F. Supp. 2d at 543—weighs heavily in favor of release, since Mr.

Kargbo’s detention has continued more than five times longer than the average of four

months in Demore. 538 U.S. at 529; see also Araujo-Cortes, 35 F. Supp. 3d at 548, 550

(holding that detention under § 1226(c) became unconstitutionally unreasonable under a

multi-factor test after six months of detention).

Second, it is highly likely that Mr. Kargbo’s removal proceedings will continue for

untold months while he awaits a third decision by the immigration court and any

subsequent appeal that becomes necessary. Unlike the petitioner in Demore, whose

detention had a “definite termination point,” 538 U.S. at 529, and who, according to the

Demore majority, “conceded . . . to being a deportable alien for whom deportation was a

real and imminent probability,” there is “no end in sight” for Mr. Kargbo. See

Bourguignon, 667 F. Supp. 2d at 182-83. By reopening his case, the BIA has agreed that

“there is a reasonable likelihood that the statutory requirements for the relief sought have

been satisfied, and that there is a reasonable likelihood that relief will be granted in the

exercise of discretion,” but he is now starting over and a final resolution could be many

months away. See Matter of L-O-G-, 21 I. & N. Dec. 413, 419 (B.I.A. 1996). Therefore,

this factor weighs heavily in favor of release. See Madrane v. Hogan, 520 F. Supp. 2d

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654, 667 (M.D. Pa. 2007) (“In light of . . . the forecast of additional future appeals or

proceedings that could result in Petitioner being detained for many months . . . the Court

cannot adopt Respondent's inflexible position that Petitioner may be detained for as many

years as it may take to obtain a final order regarding his removal simply on the basis of

the mandatory language of [§ 1226(c)] . . . .”); Oyedeji v. Ashcroft, 332 F. Supp. 2d 747,

753 (holding that in the context of § 1231(a)(6) detention, “[p]rolonged incarceration for

an alien whose potentially meritorious challenge to removal is part of a congested docket

is indistinguishable from lengthy incarceration because the alien's native country refuses

to issue travel documents”).

Third, it is not clear that the pending immigration proceedings will ever result in

Mr. Kargbo’s removal. Given the extraordinary trauma that Mr. Kargbo experienced in

Sierra Leone as a child soldier and his bona fide arguments against his charges on

remand, “the court can recognize that the issue [of Mr. Kargbo’s removal] is not finally

decided, that there is authority for the BIA or the [Eighth] Circuit to conclude that he is

not [removable], and that this added complexity is likely to extend the removal

proceedings.” Flores-Powell, 677 F. Supp. 2d at 472; see also Hussain v. Mukasey, 510

F.3d 739, 743 (7th Cir. 2007) (“It would be a considerable paradox to confer a

constitutional or quasi-constitutional right to release on a [noncitizen] ordered removed

(Zadvydas) but not on one who might have a good defense to removal.”).

Fourth, any unwarranted delay in this case was caused by the government. After

the BIA first remanded the case to the IJ on March 26, 2014, it appears that the

immigration court delayed scheduling a new hearing for approximately one month

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because the IJ was out of town, after which the court had “a computer problem,” and

then, according to the IJ, the case “kind of sat for a bit.”6 (Hittler Decl. Ex. D at 2

(describing delay at the immigration court), 7 (showing that hearing notice was sent out

on April 24, 2014, a full month after remand). Furthermore, Mr. Kargbo has not engaged

in dilatory tactics, and he has only pursued bona fide legal challenges to his removal. See

Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 271 (3d Cir. 2012) (quoting Oyedeji, 332 F.

Supp. 2d at 753 (rejecting the government’s argument that the noncitizen’s voluntary

pursuit of bona fide legal challenges to removal renders the corresponding increase in

time of detention reasonable because otherwise, the noncitizen would be “effectively

punish[ed] for pursuing applicable legal remedies.”). Therefore, this factor weighs in

favor of his release.

This Court must construe § 1226(c) to only authorize detention of a reasonable

duration. Because under either the six-month presumption or the multi-factor test, Mr.

Kargbo’s detention has become unreasonably prolonged, he is entitled to relief.

D. Because § 1226(c) Cannot Authorize Further No-Bond Detention, Mr. Kargbo Is Entitled to a Constitutionally Adequate Bond Hearing

The courts have authority to fashion habeas relief as the equities require. Schlup v.

Delo, 513 U.S. 298, 319 (1995); see also Flores-Powell, 677 F. Supp. 2d at 474. Given

6 An additional two to four weeks of delay is attributable to each side in this case, amounting to merely “a drop in the proverbial bucket” given the total length of proceedings. Sengkeo, 670 F. Supp. 2d at 128. On June 26, 2014, counsel for DHS requested a week continuance, after which a hearing could not be scheduled for another week because immigration court was closed. (Hittler Decl. Ex. D at 59-65.) The new hearing then was delayed for an additional week because Mr. Kargbo’s counsel was traveling. Id. Additionally, in October 2014, Mr. Kargbo’s counsel requested a 21-day briefing extension before the BIA. (Id. at Ex. I.)

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the prolonged nature of his detention, Mr. Kargbo requests that this Court order a

constitutionally adequate bond hearing, at which the government bears the burden of

proving, by clear and convincing evidence, that Mr. Kargbo would pose a flight risk or a

danger to the community, even under supervised release. See Rodriguez III, 804 F.3d at

1086-89 (affirming district court order of bond hearings after six months of detention,

and periodic bond hearings every six months after that, in which immigration judges must

consider alternatives to detention and the length of past detention thus far, with the

burden on the government to prove dangerousness or flight risk by clear and convincing

evidence); see also Diop, 656 F.3d at 235 (squarely placing the burden of proving that

continued detention is justified on the government).7

III. BECAUSE MR. KARGBO HAS A SUBSTANTIAL CHALLENGE TO REMOVABILITY, HIS MANDATORY DETENTION VIOLATES THE DUE PROCESS CLAUSE

Placing a lawful permanent resident like Mr. Kargbo in mandatory detention

violates his due process rights because, unlike the detained noncitizen in Demore who

conceded removability, Mr. Kargbo has substantial challenges to all alleged grounds of

removability. See 538 U.S. at 513-14; Hittler Decl. Exs. G at 4, EE (discussing challenges

to both grounds of removability). In Demore, Justices expressed concern that detaining

noncitizens with substantial claims against removability violates due process. See 7 Courts applying a bright-line rule require an administrative bond hearing after six-months of detention. See Rodriguez II, 715 F.3d at 1138-39; Lora, 804 F.3d at 613. Under the multi-factor approach, courts order a variety of habeas relief including a bond hearing in district court or an administrative bond hearing. See, e.g., Chavez-Alvarez, 783 F.3d at 478 (ordering an administrative bond hearing); Araujo-Cortes, 35 F. Supp. 3d at 551 (ordering an administrative bond hearing, and if not completed within fourteen days, allowing the detainee to request a bond hearing in district court); Flores-Powell, 677 F. Supp. 2d at 479 (ordering a bond hearing in district court).

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Demore, 538 U.S. at 532 (Kennedy, J., concurring); id. at 577 (Breyer, J., concurring in

part and dissenting in part); id. at 561 (Souter, J., dissenting) (“Some individual aliens

covered by § 1226(c) have meritorious challenges to removability or claims for relief

from removal. . . . As to such aliens, as with Zadvydas . . . the Government has only a

weak reason under the immigration laws for detaining them.”).

Several federal courts agree that “when a detainee who has a good-faith challenge

to his deportability is mandatorily detained under § 1226(c),” his due process rights can

be violated. Gonzalez v. O’Connell, 355 F.3d 1010, 1019-21 (7th Cir. 2004); see also

Lora, 804 F.3d at 616 (noting, in a decision affirming a district court grant of habeas

relief after prolonged detention under § 1226(c), that the petitioner was “an excellent

candidate for cancellation of removal” and therefore he was a good candidate for bond);

Papazoglou v. Napolitano, No. 1:12-cv-00892, 2012 WL 1570778, at *5 (N.D. Ill. May

3, 2012) (holding that a noncitizen’s due process rights were violated when he was

“mandatorily detained despite the fact that he ha[d] demonstrated substantial likelihood

that he w[ould] be allowed to remain in the United States and w[ould] be released from

custody”); Bourguignon, 667 F. Supp. 2d at 183 & n.10 (granting habeas relief in part

because, unlike in Demore, the noncitizen in Bourguignon “vigorously contest[ed] the

issue of his deportability,” arguing he was eligible for deferral of removal under CAT);

see generally Rodriguez III, 804 F.3d at 1072 (noting that “[n]on-citizens who vigorously

pursue claims for relief from removal face substantially longer detention periods than

those who concede removability” and that individuals “who persevere through this

lengthy process are often successful”).

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In Mr. Kargbo’s case, the BIA agreed that he may not have been convicted of an

aggravated felony and that his challenge to the CIMT charge merited reopening his case.

See infra at 18-19. Upon reopening, even if the government succeeds in meeting its

burden to establish his removability, Mr. Kargbo can seek protection in the form of

asylum, withholding of removal, or relief under the Convention Against Torture. 8 U.S.C.

§ 1229a (c)(3)(A) (placing burden on the government to establish removability); Hittler

Decl. Ex. EE. Applying mandatory detention in his case violates due process because

“the ultimate purpose behind [§ 1226(c)] detention is premised upon the alien’s

deportability,” and there is a reasonable likelihood that he will never be deported.

Demore, 538 U.S. at 531 (Kennedy, J., concurring).

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTIONPROLONGED DETENTION VIOLATES 8 U.S.C. § 1226(c)

1. The allegations in the preceding paragraphs are repeated and re-alleged as though

fully set forth herein.

2. The canon of constitutional avoidance requires courts to construe statutes so that

they are constitutional.

3. A statute allowing prolonged mandatory civil detention of noncitizens would

violate the Due Process Clause of the Fifth Amendment of the United States Constitution.

4. 8 U.S.C. § 1226(c) must be construed so as not to authorize prolonged mandatory

detention but instead to authorize detention only of a “reasonable” duration in order to

avoid this constitutional issue.

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5. Beyond this reasonable time, the Court must construe 8 U.S.C. § 1226(c) to

authorize an individualized hearing at which the government must show that the

noncitizen’s prolonged detention is justified.

6. Because Mr. Kargbo’s detention has become prolonged, § 1226(c) can no longer

authorize it without a bond hearing, so his continued detention will violate § 1226(c) if he

does not receive a constitutionally adequate bond hearing.

SECOND CAUSE OF ACTIONMR. KARGBO’S PROLONGED DETENTION VIOLATES THE DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT

1. The allegations in the preceding paragraphs are repeated and re-alleged as

though fully set forth herein.

2. The Due Process Clause of the Fifth Amendment of the United States

Constitution prohibits prolonged civil deprivation of liberty without an adequate

justification and strong procedural protections. Zadvydas, 533 U.S. at 690.

3. Once detention under § 1226(c) becomes “unreasonable or unjustified,” a

noncitizen is entitled to a constitutionally adequate bond hearing. Demore, 538 U.S. at

532 (Kennedy, J., concurring); accord Rodriguez II, 715 F.3d at 1137–38, 1146.

4. Mr. Kargbo has been detained pursuant to 8 U.S.C. § 1226(c) for 21

months; his detention is likely to continue absent relief from this Court; and it does not

further its stated purposes. Therefore, Mr. Kargbo’s detention has become unreasonably

prolonged and arbitrary, violating his Fifth Amendment substantive due process rights.

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5. Mr. Kargbo’s continued detention also violates the Fifth Amendment’s

requirement of procedural due process because he has been detained for a prolonged

period of time with no procedural safeguards in place to prevent an erroneous deprivation

of liberty.

THIRD CAUSE OF ACTIONMANDATORY DETENTION OF LAWFUL PERMANENT RESIDENTS WITH

SUBSTANTIAL CHALLENGES TO THEIR REMOVABILITY VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT

1. The Due Process Clause of the Fifth Amendment of the United States

Constitution prohibits prolonged civil deprivation of liberty without an adequate

justification and strong procedural protections. Zadvydas, 533 U.S. at 690.

2. When a lawful permanent resident challenges his removability in good

faith, as opposed to conceding removability, blanket application of § 1226(c) mandatory

detention violates due process because § 1226(c) is “premised upon the alien’s

deportability.” Demore, 538 U.S. at 531 (Kennedy, J., concurring); see also id. at 532; id.

at 577 (Breyer, J., concurring in part and dissenting in part).

3. Given Mr. Kargbo’s good-faith challenges to removability and resulting

low flight risk, the government has not presented an adequate justification for his

mandatory detention, and therefore, by continuing to detain him under § 1226(c) without

bond, the government violates Mr. Kargbo’s constitutional right to due process.

PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that this Court:

1. Assume jurisdiction over this matter;

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2. Enjoin Respondents from transferring Mr. Kargbo outside the

jurisdiction of this Court pending the resolution of this case;

3. Enter a judgment declaring that Respondents’ detention of Mr. Kargbo

is unauthorized by statute and contrary to law;

4. Issue a Writ of Habeas Corpus requiring Respondents to release Mr.

Kargbo immediately, or, in the alternative, hold a constitutionally valid

individualized bond hearing within fourteen days;

5. Award Mr. Kargbo reasonable costs and attorney’s fees in this action as

provided by the Equal Access to Justice Act, 28 U.S.C. § 2412, or other

statute; and

6. Grant further such relief as this Court may deem fit and proper.

Dated: June 11, 2015 UNIVERSITY OF MINNESOTA LAW SCHOOL, CENTER FOR NEW AMERICANS

By s/ Nicholas D. Hittler _______________Nicholas D. Hittler, Law Studenthittle005@umn.eduRebecca Cassler, Law Studentcassl003@umn.edu Katherine L. Evans, Supervising Attorney #0389923, evans407@umn.edu

190 Mondale Hall229 19th Avenue SouthMinneapolis, MN 55455Telephone: (612) 625-5515

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DORSEY & WHITNEY LLPKirsten E. Schubert #0388396schubert.kirsten@dorsey.com

Suite 1500, 50 South Sixth StreetMinneapolis, MN 55402-1498Telephone: (612) 340-2600

Attorneys for Petitioner

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