UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Koffi D.,1                            File No. 23-cv-2421 (ECT/TNL)       

     Petitioner,                                                     

v.                                   ORDER ACCEPTING REPORT               
                                  AND RECOMMENDATION                 
Merrick B. Garland, U.S. Attorney General;                                
Alejandro Mayorkas, Secretary, Department                                 
of Homeland Security; Tae D. Johnson,                                     
Acting Director, Immigration and Customs                                  
Enforcement; Marcos Charles, Director, St.                                
Paul Field Office Immigration and Customs                                 
Enforcement; and Eric Tollefson, Sheriff,                                 
Kandiyohi County.                                                         

     Respondents.                                                    
________________________________________________________________________  
For more than a year, Koffi D., a citizen of the Ivory Coast, has been detained in the 
Kandiyohi County Jail while he waits for the conclusion of his removal proceedings.  He 
has not received an individualized bond hearing.2  In a petition for a writ of habeas corpus, 
he argues that his prolonged detention violates the Due Process Clause of the Fifth 
Amendment to the U.S. Constitution.  Pet. [ECF No. 1] ¶¶ 39–55.  Koffi requests a bond 

1    This District has adopted the policy of using only the first name and last initial of 
any nongovernmental parties in immigration opinions.                      

2    The Government contends that Koffi “was already afforded a bond hearing last 
summer.”  ECF No. 12 at 1.  But at that bond hearing, an immigration judge denied Koffi’s 
request for a change in custody status because the immigration court “lack[ed] jurisdiction 
due to mandatory custody under INA 236(c).”  ECF No. 6-1; see also R&R [ECF No. 8] 
at 4 (“While the appeal has been pending, on June 8, 2023, an [immigration judge] entered 
a custody redetermination order, finding [Koffi] subject to mandatory detention per 

(c).”).                                                      
hearing before the immigration judge, at which the Government must prove by clear and 
convincing evidence Koffi’s dangerousness and flight risk.  

.  In a Report and 
Recommendation, Magistrate Judge Tony N. Leung concluded that Koffi’s detention has 

become  unconstitutional.    R&R  at  8–14.    As  a  remedy,  Magistrate  Judge  Leung 
recommended granting Koffi’s request for a bond hearing at which the Government would 
“be required to bear the burden of proving, by clear and convincing evidence, that no 
condition or combination of conditions of release and parole (including [Koffi’s] ability to 
post bond) will ensure the safety of the community or his appearance at future immigration 

proceedings.”  R&R at 18.  The Government filed objections to the R&R, and Koffi filed 
a response.  ECF No. 12; ECF No. 13.  The Government’s objections are familiar to courts 
in this District and will be overruled.                                   
The Government first takes issue with the R&R’s reliance on the due-process 
framework established by Muse v. Sessions, 

, 715 (D. Minn. 2018).  It 

contends “that the Muse framework contradicts the Supreme Court’s holding in Demore v. 
Kim.”  ECF No. 12 at 1 (footnote omitted).  But this argument has repeatedly been 
considered and rejected in similar cases.  See Daciann D. B. v. Immigr. Custody Enf’t, 
No. 23-cv-1338  (KMM/JFD),  

,  at  *2  (D.  Minn.  Nov.  13,  2023); 
Zackaria D. M. v. Garland, No. 21-cv-2629 (SRN/LIB), 

, at *4 
(D. Minn. Oct. 28, 2022) (collecting cases); Pedro O. v. Garland, 

, 738 
(D. Minn. 2021).3                                                         
If the Muse framework applies, the Government proposes that this Court should 

adopt a seventh factor, “whether the civil detention is for a longer period than the criminal 
sentence for the crimes resulting in the deportable status.”  ECF No. 12 at 7 n.4 (quoting 
Reid v. Donelan, 

, 500 n.4 (1st Cir. 2016)).  But Muse already considered and 
rejected the Government’s proposed factor.  Muse, 409 F. Supp. 3d at 715 n.3.  As Judge 
Schiltz thoughtfully explained, “[t]he Court cannot understand why the length of a sentence 

imposed on an alien years ago by, say, the State of Minnesota to punish him for a predicate 
offense has any bearing on whether the alien’s current civil detention by the federal 
government under § 1226(c) is constitutional.  Why, for example, should it be permissible 
to detain an alien who was sentenced to 12 months for theft longer than an alien who was 
sentenced to three months for theft?”  Muse’s reasoning is persuasive here.4   

The Government next challenges the R&R’s recommendation that the Government 
bear the burden of proof at the bond hearing by clear and convincing evidence.  It argues 
that the R&R’s burden-of-proof recommendation is at odds with the statutory allocation of 
burdens in § 1226(a) and (c).  ECF No. 12 at 8.  Again, such arguments have been 


3    The Government notes that the Muse framework “is currently under review” in a 
pending appeal to the Eighth Circuit.  ECF No. 12 at 2 (citing Nyynkpao B. v. Garland, No. 
22-2252 (8th Cir. argued Feb. 15, 2024).                                  

4    The Government does not otherwise meaningfully challenge the way the R&R 
applies the Muse factors.  Having carefully reviewed the R&R, Magistrate Judge Leung’s 
conclusion that Koffi’s detention has become unconstitutional will be accepted. 
considered  and  rejected.    See  Zackaria  D.  M.,  

,  at  *4  (“[The 
Government’s] reliance on the four corners of 

 ignores the obligation and 
authority of this Court to fashion constitutional due process protections that should be 

accorded  to  [the  petitioner]  in  light  of  his  unconstitutionally  prolonged  detention.”); 
Nyynkpao  B.  v.  Garland,  No.  21-cv-1817  (WMW/BRT),  

,  at  *5 
(D. Minn. Apr. 14, 2022); Omar M. v. Garland, No. 20-cv-1784 (NEB/BRT), 

, at *6 (D. Minn. Mar. 29, 2021) (“The problem with this position is that statutory 
interpretation must give way to constitutional analysis.”).               

Finally, the Government contends that “nearly a century of Supreme Court case law 
provides that aliens are not subject to the same due-process protections as citizens.”  ECF 
No. 12 at 11.  Based on that premise, the Government reasons that “any due-process 
analysis under Mathews v. Eldridge, 

 (1976), must reckon with this line 
of authority.”  

 at 10–11 (citing Demore v. Kim, 

 (2003), Reno v. 

Flores, 

 (1993), and Carlson v. Landon, 

 (1952)).  In 
those cases, the Supreme Court recognized that because Congress exercises broad power 
over  immigration  and  naturalization,  “Congress  regularly  makes  rules  that  would  be 
unacceptable if applied to citizens.”  Flores, 

 (quotation omitted).  But 
courts applying Mathews have regularly concluded the Government should bear the burden 

of  proof  by  clear  and  convincing  evidence  while  considering  that  line  of  cases  and 
Congress’s broad authority.  Daciann D. B., 

, at *1–2 (rejecting the 
Government’s argument that the R&R “ignores Supreme Court precedent indicating that 
noncitizens are not entitled to the same procedural protections afforded to citizens.”); 
Zackaria D. M., 

, at *5 (“[T]his allocation of power does not render 
legislative and executive actions immune from the constitutional requirements of due 
process.”); Pedro O., 543 F. Supp. 3d at 742–43 (weighing Congress’s broad authority 

over immigration when applying Mathews).5  Magistrate Judge Leung’s recommendation 
that the Government bear the burden of proof by clear and convincing evidence will be 
accepted.                                                                 
Magistrate Judge Leung recommended sua sponte that the immigration judge be 
ordered to consider additional procedural safeguards.  R&R at 17–18 (citing Zackaria 

D. M., 

, at *6–7).  In Zackaria D. M., Judge Nelson required the 
immigration judge to consider alternatives to detention and a petitioner’s financial ability 
to pay because “BIA precedent appears to be inconsistent as to the consideration of [those] 


5    It is worth noting that the landscape has changed since Pedro O.  The Fourth Circuit 
and Ninth Circuit have been persuaded by similar arguments to those that the Government 
raises here when analyzing due-process challenges to bond hearings conducted under 
§ 1226(a).  See Miranda v. Garland, 

, 361 (4th Cir. 2022) (“In short, the district 
court  failed  to  recognize  and  incorporate  into  its  analysis  Supreme  Court  precedent 
establishing that aliens are due less process when facing removal hearings than an ordinary 
citizen would have.  This failure constitutes an error of law.”); Rodriguez Diaz v. Garland, 

, 1213 (9th Cir. 2022) (“In sum, while [the petitioner’s] private interest and 
the government’s interests are both substantial here, the private interest of a detained alien 
under § 1226(a) is lower than that of a detained U.S. citizen, and the governmental interests 
are significantly higher in the immigration detention context.”).  But both panels issued 
divided opinions with vigorous dissents.  And those cases involved due-process challenges 
to  bond  hearings  under  §  1226(a),  not  requests  for  an  initial  bond  hearing  because 
petitioners were subject to mandatory detention under § 1226(c).  See e.g., Durand v. Allen, 
No.  3:23-cv-00279-RBM-BGS,  

,  at  *7  (S.D.  Cal.  Feb.  21,  2024) 
(concluding that a petitioner was “entitled to an initial bond hearing where the government 
[bears the burden of proof] by clear and convincing evidence” despite the Ninth Circuit’s 
decision in Rodriguez Diaz).  Miranda and Rodriguez Diaz offer an insufficient basis to 
diverge from the majority of courts concluding that the Government must justify the 
continued confinement of an alien under § 1226(c) by clear and convincing evidence. 
procedural safeguards.”  Zackaria D. M., 

, at *6 n.6.  Magistrate Judge 
Leung recommended the same procedural safeguards be adopted here.  Neither party 
objects to this recommendation, and it will be adopted.                   

Therefore,  based  upon  all  of  the  files,  records,  and  proceedings  in  the 
above-captioned matter, IT IS ORDERED THAT:                               
1.   Respondents’ Objections to the Report and Recommendation [ECF No. 12] 
are OVERRULED;                                                            
2.   The Report and Recommendation [ECF No. 8] is ACCEPTED; and      

3.   The Petition for Writ of Habeas Corpus [ECF No. 1] is GRANTED IN 
PART and DENIED IN PART as follows:                                       
     a.   Within 21 days of this Order, Respondents must ensure that Petitioner 
receives an individualized bond hearing before an immigration judge.  If no bond 
hearing occurs, then Petitioner must be released absent further order of this Court. 

     b.   At the bond hearing, the Government shall bear the burden of proving, 
by clear and convincing evidence, that no condition or combination of conditions of 
release and parole (including Petitioner’s ability to post bond) will ensure the safety 
of the community or his appearance at future immigration proceedings. 
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          


Dated:  April 9, 2024              s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Koffi D.,1                            File No. 23-cv-2421 (ECT/TNL)       

     Petitioner,                                                     

v.                                   ORDER ACCEPTING REPORT               
                                  AND RECOMMENDATION                 
Merrick B. Garland, U.S. Attorney General;                                
Alejandro Mayorkas, Secretary, Department                                 
of Homeland Security; Tae D. Johnson,                                     
Acting Director, Immigration and Customs                                  
Enforcement; Marcos Charles, Director, St.                                
Paul Field Office Immigration and Customs                                 
Enforcement; and Eric Tollefson, Sheriff,                                 
Kandiyohi County.                                                         

     Respondents.                                                    
________________________________________________________________________  
For more than a year, Koffi D., a citizen of the Ivory Coast, has been detained in the 
Kandiyohi County Jail while he waits for the conclusion of his removal proceedings.  He 
has not received an individualized bond hearing.2  In a petition for a writ of habeas corpus, 
he argues that his prolonged detention violates the Due Process Clause of the Fifth 
Amendment to the U.S. Constitution.  Pet. [ECF No. 1] ¶¶ 39–55.  Koffi requests a bond 

1    This District has adopted the policy of using only the first name and last initial of 
any nongovernmental parties in immigration opinions.                      

2    The Government contends that Koffi “was already afforded a bond hearing last 
summer.”  ECF No. 12 at 1.  But at that bond hearing, an immigration judge denied Koffi’s 
request for a change in custody status because the immigration court “lack[ed] jurisdiction 
due to mandatory custody under INA 236(c).”  ECF No. 6-1; see also R&R [ECF No. 8] 
at 4 (“While the appeal has been pending, on June 8, 2023, an [immigration judge] entered 
a custody redetermination order, finding [Koffi] subject to mandatory detention per 

(c).”).                                                      
hearing before the immigration judge, at which the Government must prove by clear and 
convincing evidence Koffi’s dangerousness and flight risk.  

.  In a Report and 
Recommendation, Magistrate Judge Tony N. Leung concluded that Koffi’s detention has 

become  unconstitutional.    R&R  at  8–14.    As  a  remedy,  Magistrate  Judge  Leung 
recommended granting Koffi’s request for a bond hearing at which the Government would 
“be required to bear the burden of proving, by clear and convincing evidence, that no 
condition or combination of conditions of release and parole (including [Koffi’s] ability to 
post bond) will ensure the safety of the community or his appearance at future immigration 

proceedings.”  R&R at 18.  The Government filed objections to the R&R, and Koffi filed 
a response.  ECF No. 12; ECF No. 13.  The Government’s objections are familiar to courts 
in this District and will be overruled.                                   
The Government first takes issue with the R&R’s reliance on the due-process 
framework established by Muse v. Sessions, 

, 715 (D. Minn. 2018).  It 

contends “that the Muse framework contradicts the Supreme Court’s holding in Demore v. 
Kim.”  ECF No. 12 at 1 (footnote omitted).  But this argument has repeatedly been 
considered and rejected in similar cases.  See Daciann D. B. v. Immigr. Custody Enf’t, 
No. 23-cv-1338  (KMM/JFD),  

,  at  *2  (D.  Minn.  Nov.  13,  2023); 
Zackaria D. M. v. Garland, No. 21-cv-2629 (SRN/LIB), 

, at *4 
(D. Minn. Oct. 28, 2022) (collecting cases); Pedro O. v. Garland, 

, 738 
(D. Minn. 2021).3                                                         
If the Muse framework applies, the Government proposes that this Court should 

adopt a seventh factor, “whether the civil detention is for a longer period than the criminal 
sentence for the crimes resulting in the deportable status.”  ECF No. 12 at 7 n.4 (quoting 
Reid v. Donelan, 

, 500 n.4 (1st Cir. 2016)).  But Muse already considered and 
rejected the Government’s proposed factor.  Muse, 409 F. Supp. 3d at 715 n.3.  As Judge 
Schiltz thoughtfully explained, “[t]he Court cannot understand why the length of a sentence 

imposed on an alien years ago by, say, the State of Minnesota to punish him for a predicate 
offense has any bearing on whether the alien’s current civil detention by the federal 
government under § 1226(c) is constitutional.  Why, for example, should it be permissible 
to detain an alien who was sentenced to 12 months for theft longer than an alien who was 
sentenced to three months for theft?”  Muse’s reasoning is persuasive here.4   

The Government next challenges the R&R’s recommendation that the Government 
bear the burden of proof at the bond hearing by clear and convincing evidence.  It argues 
that the R&R’s burden-of-proof recommendation is at odds with the statutory allocation of 
burdens in § 1226(a) and (c).  ECF No. 12 at 8.  Again, such arguments have been 


3    The Government notes that the Muse framework “is currently under review” in a 
pending appeal to the Eighth Circuit.  ECF No. 12 at 2 (citing Nyynkpao B. v. Garland, No. 
22-2252 (8th Cir. argued Feb. 15, 2024).                                  

4    The Government does not otherwise meaningfully challenge the way the R&R 
applies the Muse factors.  Having carefully reviewed the R&R, Magistrate Judge Leung’s 
conclusion that Koffi’s detention has become unconstitutional will be accepted. 
considered  and  rejected.    See  Zackaria  D.  M.,  

,  at  *4  (“[The 
Government’s] reliance on the four corners of 

 ignores the obligation and 
authority of this Court to fashion constitutional due process protections that should be 

accorded  to  [the  petitioner]  in  light  of  his  unconstitutionally  prolonged  detention.”); 
Nyynkpao  B.  v.  Garland,  No.  21-cv-1817  (WMW/BRT),  

,  at  *5 
(D. Minn. Apr. 14, 2022); Omar M. v. Garland, No. 20-cv-1784 (NEB/BRT), 

, at *6 (D. Minn. Mar. 29, 2021) (“The problem with this position is that statutory 
interpretation must give way to constitutional analysis.”).               

Finally, the Government contends that “nearly a century of Supreme Court case law 
provides that aliens are not subject to the same due-process protections as citizens.”  ECF 
No. 12 at 11.  Based on that premise, the Government reasons that “any due-process 
analysis under Mathews v. Eldridge, 

 (1976), must reckon with this line 
of authority.”  

 at 10–11 (citing Demore v. Kim, 

 (2003), Reno v. 

Flores, 

 (1993), and Carlson v. Landon, 

 (1952)).  In 
those cases, the Supreme Court recognized that because Congress exercises broad power 
over  immigration  and  naturalization,  “Congress  regularly  makes  rules  that  would  be 
unacceptable if applied to citizens.”  Flores, 

 (quotation omitted).  But 
courts applying Mathews have regularly concluded the Government should bear the burden 

of  proof  by  clear  and  convincing  evidence  while  considering  that  line  of  cases  and 
Congress’s broad authority.  Daciann D. B., 

, at *1–2 (rejecting the 
Government’s argument that the R&R “ignores Supreme Court precedent indicating that 
noncitizens are not entitled to the same procedural protections afforded to citizens.”); 
Zackaria D. M., 

, at *5 (“[T]his allocation of power does not render 
legislative and executive actions immune from the constitutional requirements of due 
process.”); Pedro O., 543 F. Supp. 3d at 742–43 (weighing Congress’s broad authority 

over immigration when applying Mathews).5  Magistrate Judge Leung’s recommendation 
that the Government bear the burden of proof by clear and convincing evidence will be 
accepted.                                                                 
Magistrate Judge Leung recommended sua sponte that the immigration judge be 
ordered to consider additional procedural safeguards.  R&R at 17–18 (citing Zackaria 

D. M., 

, at *6–7).  In Zackaria D. M., Judge Nelson required the 
immigration judge to consider alternatives to detention and a petitioner’s financial ability 
to pay because “BIA precedent appears to be inconsistent as to the consideration of [those] 


5    It is worth noting that the landscape has changed since Pedro O.  The Fourth Circuit 
and Ninth Circuit have been persuaded by similar arguments to those that the Government 
raises here when analyzing due-process challenges to bond hearings conducted under 
§ 1226(a).  See Miranda v. Garland, 

, 361 (4th Cir. 2022) (“In short, the district 
court  failed  to  recognize  and  incorporate  into  its  analysis  Supreme  Court  precedent 
establishing that aliens are due less process when facing removal hearings than an ordinary 
citizen would have.  This failure constitutes an error of law.”); Rodriguez Diaz v. Garland, 

, 1213 (9th Cir. 2022) (“In sum, while [the petitioner’s] private interest and 
the government’s interests are both substantial here, the private interest of a detained alien 
under § 1226(a) is lower than that of a detained U.S. citizen, and the governmental interests 
are significantly higher in the immigration detention context.”).  But both panels issued 
divided opinions with vigorous dissents.  And those cases involved due-process challenges 
to  bond  hearings  under  §  1226(a),  not  requests  for  an  initial  bond  hearing  because 
petitioners were subject to mandatory detention under § 1226(c).  See e.g., Durand v. Allen, 
No.  3:23-cv-00279-RBM-BGS,  

,  at  *7  (S.D.  Cal.  Feb.  21,  2024) 
(concluding that a petitioner was “entitled to an initial bond hearing where the government 
[bears the burden of proof] by clear and convincing evidence” despite the Ninth Circuit’s 
decision in Rodriguez Diaz).  Miranda and Rodriguez Diaz offer an insufficient basis to 
diverge from the majority of courts concluding that the Government must justify the 
continued confinement of an alien under § 1226(c) by clear and convincing evidence. 
procedural safeguards.”  Zackaria D. M., 

, at *6 n.6.  Magistrate Judge 
Leung recommended the same procedural safeguards be adopted here.  Neither party 
objects to this recommendation, and it will be adopted.                   

Therefore,  based  upon  all  of  the  files,  records,  and  proceedings  in  the 
above-captioned matter, IT IS ORDERED THAT:                               
1.   Respondents’ Objections to the Report and Recommendation [ECF No. 12] 
are OVERRULED;                                                            
2.   The Report and Recommendation [ECF No. 8] is ACCEPTED; and      

3.   The Petition for Writ of Habeas Corpus [ECF No. 1] is GRANTED IN 
PART and DENIED IN PART as follows:                                       
     a.   Within 21 days of this Order, Respondents must ensure that Petitioner 
receives an individualized bond hearing before an immigration judge.  If no bond 
hearing occurs, then Petitioner must be released absent further order of this Court. 

     b.   At the bond hearing, the Government shall bear the burden of proving, 
by clear and convincing evidence, that no condition or combination of conditions of 
release and parole (including Petitioner’s ability to post bond) will ensure the safety 
of the community or his appearance at future immigration proceedings. 
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          


Dated:  April 9, 2024              s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court