Weidenburner v. Garland

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Maria W.,1                             File No. 24-cv-213 (ECT/DTS)       

     Petitioner,                                                     

v.                                       OPINION AND ORDER                

Merrick Garland, U.S. Atty. Gen., Alejandro                               
Mayorkas, Sec’y of U.S. Dep’t of Homeland                                 
Sec.,  Marcos  Charles,  ICE  Field  Office                               
Director,                                                                 

     Respondents.                                                    

Nicholas Ratkowski, Ratkowski Law PLLC, St. Paul, MN, for Petitioner Maria W.   
Anna  H.  Voss,  United  States  Attorney’s  Office,  Minneapolis,  MN,  for  Respondents 
Merrick Garland, Alejandro Mayorkas, and Marcos Charles.                  


Petitioner Maria W., a citizen of Mexico, has been detained in the Kandiyohi County 
Jail since August 1, 2023.  See ECF No. 1 at 2.2  In January 2024, Maria petitioned for a 
writ of habeas corpus under 

, seeking an individualized bond hearing to 
evaluate her prolonged pre-removal detention.  

.  She later added a request for 
immediate release.  See ECF No. 6 at 18, n.4.  Magistrate Judge David T. Schultz issued a 
Report and Recommendation on March 29, 2024, recommending that the habeas petition 
be  granted  in  part  and  denied  in  part.    ECF  No.  8.    Specifically,  Judge  Schultz 

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

2    Page citations are to a document’s CM/ECF pagination appearing in the upper right 
corner, not to a document’s original pagination.                          
recommended granting Maria’s request for a bond hearing with the burden of proof on the 
Government, and recommended denying Maria’s request for immediate release.  See 

.  Maria filed an “objection” to the Report and Recommendation, urging this Court to 
accept it in full, but objecting to the date by which Judge Schultz recommended holding a 

bond hearing.  See ECF No. 9.  Respondents filed a response to Maria’s objection.  See 
ECF No. 10.  In it, they explain that after the Report and Recommendation was issued, the 
Board of Immigration Appeals (“BIA”) affirmed Maria’s removal and dismissed her appeal 
on April 2, 2024.  

; ECF No. 11-1.  They argue her petition is moot.   
Because  Maria  has  objected,  the  Court  must  review  the  Report  and 

Recommendation de novo pursuant to 

(b)(1) and Local Rule 72.2(b)(3).  
The Court has undertaken that de novo review and agrees that Maria’s habeas petition is 
now moot.  As such, the Report and Recommendation will be rejected, Maria’s objection 
will be overruled, and the petition will be denied.                       
Familiarity  with  the  facts  as  detailed  in  the  Report  and  Recommendation  is 

presumed but will be summarized here.  Maria is a citizen of Mexico and lawful permanent 
resident of the United States.  ECF No. 5-3 at 1.  In July 2022, Maria pleaded guilty to 
conspiring to transport illegal aliens in violation of 

 and was sentenced to 
10 months’ imprisonment.  ECF No. 5-2 at 1–2.  In August 2023, after serving her 10-
month sentence, Maria was released from the custody of the Bureau of Prisons to the 

custody of Immigration and Customs Enforcement and was detained at the Kandiyohi 
County Jail.  ECF No. 1 at 2.  On November 9, 2023, an Immigration Judge ordered Maria 
removed to Mexico.  ECF No. 5-5.  She appealed the removal order to the BIA on 
November 13, 2023.  ECF No. 1 at 3; ECF No. 5-6.                          
When Maria filed her habeas petition in January 2024, she was as in mandatory pre-
removal  detention  pursuant  to  

(c).    At  the  time  the  Report  and 

Recommendation was entered, Maria had been in pre-removal detention for about eight 
months, from early August 2023 to late March 2024.  Maria argued her prolonged detention 
without an individualized bond hearing violated her Fifth Amendment due process rights 
and sought a bond hearing or immediate release from pre-removal custody.  

; 
ECF No. 6 at 18, n.4.  But Maria’s pre-removal detention ended April 2, when the BIA 

affirmed removal and dismissed her appeal.                                
“[W]hen an alien is ordered removed, the Attorney General shall remove the alien 
from the United States within a period of 90 days.”  

(a)(1)(A).  The 90-day 
removal period begins on one of three dates: (1) the date the order of removal becomes 
administratively final, (2) the date of a court’s final order staying the removal of an alien, 

or (3) the date the alien is release from detention of confinement.  8 U.S.C. 1231(a)(1)(B).  
Maria’s 90-day removal period began on April 2, 2024, when the order of removal became 
administratively final.  8 U.S.C. 1231(a)(1)(B)(i); 

(a) (explaining an order 
of removal becomes administratively final when the BIA dismisses an appeal).  During the 
removal period, the Attorney General “shall” detain the alien.  

(a)(2).   

Faced with facts much like these, Judge Brasel concluded that a petitioner was “not 
entitled  to  habeas  relief”  because  “the  petitioner  is  well  within  the  presumptively 
reasonable period of detention following an administratively final order of removal.”  Alier 
D. v. Sec’y of Dep't of Homeland Sec., No. 18-CV-1645 (NEB/HB), 

, at 
*3 (D. Minn. Nov. 8, 2018).  The petitioner in Alier D. filed a habeas petition challenging 
his  § 1226(c)  detention.    The  magistrate  judge  issued  a  report  and  recommendation 
recommending granting a bond hearing and denying immediate release.  Id. at *1.  The 

government, in its objection, informed the court that the BIA had affirmed the removal 
order and dismissed appeal.  Id. at *2.  At that point, the petitioner’s removal order became 
final.  Id. at *3.  The court found “[t]he shift of the government’s authority to detain the 
petition from § 1226 to § 1231 renders moot his claim based on pre-removal detention.”  
Id. at *2 (collecting cases).  So too here.  The government’s authority to detain Maria has 

shifted from § 1226(c) to § 1231 because her removal order became final when the BIA 
dismissed her appeal on April 2.  Her petition under § 1226 is therefore moot.  Maria’s 90-
day removal period under § 1231 began just two weeks ago; Maria is “well within” the 
“presumptively reasonable period of detention,” and is not entitled to habeas relief. 

Therefore,  based  upon  all  of  the  files,  records,  and  proceedings  in  the 
above-captioned matter, IT IS ORDERED THAT:                               
1.   The Report and Recommendation [ECF No. 8] is REJECTED AS MOOT;  
2.   Petitioner Maria W.’s Objection to the Report and Recommendation [ECF 
No. 9] is OVERRULED;                                                      
3.   Petitioner Maria W.’s Petition for a Writ of Habeas Corpus [ECF No. 1] is 
DENIED as moot.                                                           
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated:  April 18, 2024        s/ Eric C. Tostrud                          
                         Eric C. Tostrud                             
                         United States District Court                

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Maria W.,1                             File No. 24-cv-213 (ECT/DTS)       

     Petitioner,                                                     

v.                                       OPINION AND ORDER                

Merrick Garland, U.S. Atty. Gen., Alejandro                               
Mayorkas, Sec’y of U.S. Dep’t of Homeland                                 
Sec.,  Marcos  Charles,  ICE  Field  Office                               
Director,                                                                 

     Respondents.                                                    

Nicholas Ratkowski, Ratkowski Law PLLC, St. Paul, MN, for Petitioner Maria W.   
Anna  H.  Voss,  United  States  Attorney’s  Office,  Minneapolis,  MN,  for  Respondents 
Merrick Garland, Alejandro Mayorkas, and Marcos Charles.                  


Petitioner Maria W., a citizen of Mexico, has been detained in the Kandiyohi County 
Jail since August 1, 2023.  See ECF No. 1 at 2.2  In January 2024, Maria petitioned for a 
writ of habeas corpus under 

, seeking an individualized bond hearing to 
evaluate her prolonged pre-removal detention.  

.  She later added a request for 
immediate release.  See ECF No. 6 at 18, n.4.  Magistrate Judge David T. Schultz issued a 
Report and Recommendation on March 29, 2024, recommending that the habeas petition 
be  granted  in  part  and  denied  in  part.    ECF  No.  8.    Specifically,  Judge  Schultz 

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

2    Page citations are to a document’s CM/ECF pagination appearing in the upper right 
corner, not to a document’s original pagination.                          
recommended granting Maria’s request for a bond hearing with the burden of proof on the 
Government, and recommended denying Maria’s request for immediate release.  See 

.  Maria filed an “objection” to the Report and Recommendation, urging this Court to 
accept it in full, but objecting to the date by which Judge Schultz recommended holding a 

bond hearing.  See ECF No. 9.  Respondents filed a response to Maria’s objection.  See 
ECF No. 10.  In it, they explain that after the Report and Recommendation was issued, the 
Board of Immigration Appeals (“BIA”) affirmed Maria’s removal and dismissed her appeal 
on April 2, 2024.  

; ECF No. 11-1.  They argue her petition is moot.   
Because  Maria  has  objected,  the  Court  must  review  the  Report  and 

Recommendation de novo pursuant to 

(b)(1) and Local Rule 72.2(b)(3).  
The Court has undertaken that de novo review and agrees that Maria’s habeas petition is 
now moot.  As such, the Report and Recommendation will be rejected, Maria’s objection 
will be overruled, and the petition will be denied.                       
Familiarity  with  the  facts  as  detailed  in  the  Report  and  Recommendation  is 

presumed but will be summarized here.  Maria is a citizen of Mexico and lawful permanent 
resident of the United States.  ECF No. 5-3 at 1.  In July 2022, Maria pleaded guilty to 
conspiring to transport illegal aliens in violation of 

 and was sentenced to 
10 months’ imprisonment.  ECF No. 5-2 at 1–2.  In August 2023, after serving her 10-
month sentence, Maria was released from the custody of the Bureau of Prisons to the 

custody of Immigration and Customs Enforcement and was detained at the Kandiyohi 
County Jail.  ECF No. 1 at 2.  On November 9, 2023, an Immigration Judge ordered Maria 
removed to Mexico.  ECF No. 5-5.  She appealed the removal order to the BIA on 
November 13, 2023.  ECF No. 1 at 3; ECF No. 5-6.                          
When Maria filed her habeas petition in January 2024, she was as in mandatory pre-
removal  detention  pursuant  to  

(c).    At  the  time  the  Report  and 

Recommendation was entered, Maria had been in pre-removal detention for about eight 
months, from early August 2023 to late March 2024.  Maria argued her prolonged detention 
without an individualized bond hearing violated her Fifth Amendment due process rights 
and sought a bond hearing or immediate release from pre-removal custody.  

; 
ECF No. 6 at 18, n.4.  But Maria’s pre-removal detention ended April 2, when the BIA 

affirmed removal and dismissed her appeal.                                
“[W]hen an alien is ordered removed, the Attorney General shall remove the alien 
from the United States within a period of 90 days.”  

(a)(1)(A).  The 90-day 
removal period begins on one of three dates: (1) the date the order of removal becomes 
administratively final, (2) the date of a court’s final order staying the removal of an alien, 

or (3) the date the alien is release from detention of confinement.  8 U.S.C. 1231(a)(1)(B).  
Maria’s 90-day removal period began on April 2, 2024, when the order of removal became 
administratively final.  8 U.S.C. 1231(a)(1)(B)(i); 

(a) (explaining an order 
of removal becomes administratively final when the BIA dismisses an appeal).  During the 
removal period, the Attorney General “shall” detain the alien.  

(a)(2).   

Faced with facts much like these, Judge Brasel concluded that a petitioner was “not 
entitled  to  habeas  relief”  because  “the  petitioner  is  well  within  the  presumptively 
reasonable period of detention following an administratively final order of removal.”  Alier 
D. v. Sec’y of Dep't of Homeland Sec., No. 18-CV-1645 (NEB/HB), 

, at 
*3 (D. Minn. Nov. 8, 2018).  The petitioner in Alier D. filed a habeas petition challenging 
his  § 1226(c)  detention.    The  magistrate  judge  issued  a  report  and  recommendation 
recommending granting a bond hearing and denying immediate release.  Id. at *1.  The 

government, in its objection, informed the court that the BIA had affirmed the removal 
order and dismissed appeal.  Id. at *2.  At that point, the petitioner’s removal order became 
final.  Id. at *3.  The court found “[t]he shift of the government’s authority to detain the 
petition from § 1226 to § 1231 renders moot his claim based on pre-removal detention.”  
Id. at *2 (collecting cases).  So too here.  The government’s authority to detain Maria has 

shifted from § 1226(c) to § 1231 because her removal order became final when the BIA 
dismissed her appeal on April 2.  Her petition under § 1226 is therefore moot.  Maria’s 90-
day removal period under § 1231 began just two weeks ago; Maria is “well within” the 
“presumptively reasonable period of detention,” and is not entitled to habeas relief. 

Therefore,  based  upon  all  of  the  files,  records,  and  proceedings  in  the 
above-captioned matter, IT IS ORDERED THAT:                               
1.   The Report and Recommendation [ECF No. 8] is REJECTED AS MOOT;  
2.   Petitioner Maria W.’s Objection to the Report and Recommendation [ECF 
No. 9] is OVERRULED;                                                      
3.   Petitioner Maria W.’s Petition for a Writ of Habeas Corpus [ECF No. 1] is 
DENIED as moot.                                                           
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated:  April 18, 2024        s/ Eric C. Tostrud                          
                         Eric C. Tostrud                             
                         United States District Court