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Sall v. Director, U.S. Immigration and Customs Enforcement

United States District Court, E.D. Michigan, Southern Division

May 24, 2018

Abdou Karim Sall, Petitioner.
v.
Director, U.S. Immigration and Customs Enforcement, et al., Respondents.

          Stephanie Dawkins Davis U.S. Magistrate Judge

          ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS [1]

          Arthur J. Tarnow Senior United States District Judge

         Petitioner Abdou Karim Sall, a native and citizen of Senegal, filed a Petition for Writ of Habeas Corpus [Dkt. 1] on March 21, 2018. Mr. Sall asks the Court to, among other things, issue a writ of habeas corpus directing Respondents - the Immigration and Customs Enforcement (“ICE”) Agency's District Director for the Detroit office, Rebecca Adducci, ICE Deputy Director Thomas D. Homan, U.S. Secretary of Homeland Security Kirstjen M. Nielson, U.S. Attorney General Jefferson B. Sessions III, and Lieutenant Paul Stanaway - to release him immediately, subject to reasonable terms of supervision. Mr. Sall argues that he is being unlawfully detained[1] and that he is not subject to the mandatory detention provisions of section 236(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c).

         Respondents argue that Mr. Sall's detention pending completion of removal proceedings is mandated by § 1226(c). They maintain that the Court should defer to the Board of Immigration Appeals' (“BIA”) interpretation of § 1226(c), as well as its decision in In re Rojas, 23 I. & N. Dec. 117 (B.I.A. 2001). See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

         For the reasons discussed below, the Court will GRANT Mr. Sall's Petition for Writ of Habeas Corpus [1].

         Factual and Procedural Background

         35-year-old Petitioner Abdou Karim Sall is a native and citizen of Senegal. Mr. Sall's father, a former employee at the Senegal Consulate, helped his son enter the U.S. with a valid visa in April 2002. Mr. Sall's father returned to Senegal two years later.

         Shortly after arriving in the U.S., Mr. Sall began working as a street vendor in New York, making approximately $30-$40 per day. He was convicted of petit larceny in Hempstead, New York on November 22, 2006. Four or five years later, Mr. Sall met his current wife, Kalissa Maxwell-Sall, who is an American citizen. He converted to Christianity around this time.

         Mr. Sall was convicted of four fraud-related offenses in New York between September 2010 and December 2012. These convictions, for third degree trademark counterfeiting and theft of services, related to his work as a street vendor and his failure to pay for public and private transportation in New York City.

         Mr. Sall's son, Elhadji Sall, was born in New York in June 2013. It appears that Mr. Sall and his family moved to Michigan sometime after 2015.[2]

         Mr. Sall suffers from bipolar disorder. During the summer of 2017, Kalissa observed her husband's mental health issues for the first time. He behaved in erratic, strange, and aggressive ways. One day, in June 2017, Mr. Sall apparently wandered away from home. When Kalissa found him and he returned home, he hit her on the back and on the back of the head. Mr. Sall was convicted of a disorderly person offense on June 27, 2017. The following day, Mr. Sall was taken into custody.

         On July 10, 2017, an Immigration Court judge denied Mr. Sall's request for an individualized bond hearing, on the grounds that Mr. Sall is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). Mr. Sall did not apply for asylum until he was in immigration court.

         Kalissa and Mr. Sall married on August 18, 2017, while Mr. Sall was in custody. Their daughter, Adalisa Gloriana Sall, was born in White Lake, Michigan in October 2017.

         On November 20, 2017, a second Immigration Court judge denied Mr. Sall's application for asylum and ordered that he be removed to Senegal. The judge also, however, granted Mr. Sall's application withholding of removal, which forbids the Department of Homeland Security (“DHS”) from removing Mr. Sall to Senegal. Mr. Sall waived his ...


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