United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
habeas corpus action brought pro se pursuant to 28 U.S.C.
§ 2241 is before the Court on respondents' motion to
dismiss for lack of jurisdiction, to which petitioner has not
responded. (Doc. 5). For the reasons stated below, it is
recommended that the motion be granted.
March 27, 2017 petitioner initiated this action for a
petition for a writ of habeas corpus. Petitioner challenges
his continued detention by the United States Immigration and
Customs Enforcement Agency (ICE) pursuant to a removal order.
(Doc. 1). Petitioner was taken into ICE custody on or about
August 8, 2016. Petitioner argues that his continued
detention is unlawful because he has been detained for more
than six months with no significant likelihood of his actual
removal, in violation of Zadvydas v. Davis, 553 U.S.
678 (2001). (See Doc. 1 at PageID 6-8).
Petitioner seeks immediate release from custody.
(Id. at PageID 8).
16, 2017, respondents filed a motion to dismiss this action
for lack of jurisdiction. (Doc. 5). According to respondents,
petitioner has been removed from the United States. In
support of the motion, respondents include a copy of a
Warrant of Removal/Deportation. (Id. at Ex. A). The
document indicates that petitioner was removed from the
United States by plane on April 18, 2017 from Mesa, Arizona.
(Id. at PageID 27). The warrant is signed by Terry
A. Stevens, a Detention and Deportation Officer who witnessed
petitioner's departure. (See id.). In light of
petitioner's release from custody, respondents contend
that the petition should be dismissed for lack of
motion should be granted. Article III, § 2 of the United
States Constitution limits the federal judicial power to the
adjudication of cases and controversies. In the context of a
habeas corpus petition, a district court generally lacks
jurisdiction over the petition if the petitioner is not in
government custody. Therefore, except in limited
circumstances not applicable to the case-at-hand,
petitioner's release from custody generally moots a
habeas petition. See Lane v. Williams, 455 U.S. 624,
does not challenge his removal order in this case. He instead
contests his indefinite detention pending removal.
(See Doc. 1). In these circumstances,
petitioner's April 18, 2017 removal renders this action
moot and deprives the Court of jurisdiction. See Novikova
v. Prendes, Case No. 3:06-cv-0039, 2006 WL 1424255, at
*2 (N.D. Texas May 24, 2006) (finding that the removal of a
petitioner challenging her detention pending removal deprived
the district court of jurisdiction to consider the habeas
petition). See also Kahn v. Attorney Gen., Case Nos.
1:15-cv-2014, l:16-cv-85, 2016 WL 4004616, at *2 (N.D. Ohio
May 17, 2016) ("As Petitioner has received his requested
relief by being released from custody on an order of
supervision, there is no longer an active case or
controversy.") (Report and Recommendation),
adopted, 2016 WL 4009885 (N.D. Ohio June 25, 2016);
Willix v. Holder, No. 1:1 l-cv-894, 2012 WL 463830,
at *1 (W.D. Mich. Jan 24, 2012) (finding habeas petition moot
where petitioner seeking release pending removal is released
pursuant to an order of supervision) (Report and
Recommendation), adopted, 2012 WL 463825 (W.D. Mich.
Feb. 13, 2012); Felix v. Bureau of Immigration and
Customs Enforcement, No. 3:05-cv-2211, 2007 WL 951452,
at *1 (M.D. Pa. Mar. 27, 2007) ("When an alien subject
to removal challenges only his detention pending removal, his
release pending removal, whether or not conditional, entails
no collateral consequences. It renders the petition moot
because he has received all the relief he sought and would
have been entitled to.")- Therefore, because petitioner
has been removed, the undersigned recommends that
respondents' motion to dismiss (Doc. 5) be GRANTED and
the petition be dismissed.
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after being served with
a copy of the recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations. This period may be extended further by the
Court on timely motion for an extension. Such objections
shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendation is based in
whole or in part upon matters occurring on the record at an
oral hearing, the objecting party shall promptly arrange for
the transcription of the record, or such portions of it as
all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections WITHIN 14 DAYS after being served with a copy
thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).
In Zadvydas, the Supreme Court
held that indefinite detention of an alien who has been
ordered removed was not authorized by 8 U.S.C. § 1231(a)
and created a presumptive rule that after six months of
custody an alien should be released if there is "good
reason to believe there is no significant likelihood of
removal in the reasonably foreseeable future."
Zadvydas, 533 U.S. at 701.
Petitioner has not alleged nor is the
undersigned aware of any basis to find that petitioner will
suffer future collateral consequences as a result of the
detention or that the case is "capable of repetition,
yet evading review, " See Spencer ...