United States District Court, S.D. Ohio, Eastern Division
George C. Smith
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
case is before the Court to consider Respondent's Motion
to Dismiss for Lack of Jurisdiction. (Doc. 4). For the
reasons that follow, the Court RECOMMENDS
that the Motion be GRANTED, and that this
action be DISMISSED.
November 15, 2017, Petitioner, a native and citizen of the
People's Republic of China, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241,
explaining that he had been in the custody of U.S.
Immigration and Customs Enforcement (“ICE”)
pending removal since March 17, 2017. (Doc. 1 at 3).
Petitioner argued that the length of his detention pending
removal contravened 8 U.S.C. § 1231(a)(6) (Count I), and
was in violation of his substantive and procedural due
process rights (Counts II and III). (Id. at 7-8
(citing Zadvydas v. Davis, 533 U.S. 678 (2001)).
Thus, Petitioner requested that this Court grant him a writ
of habeas corpus directing Respondents to immediately release
him from custody. (Id. at 9).
Court ordered Respondents to show cause why the writ should
not be granted (Docs. 2-3). On December 18, 2017, Respondents
filed a Motion to Dismiss for Lack of Jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 4).
Attached to Respondents' Motion is a declaration from ICE
Deportation Officer Oscar E. Blair, Jr., indicating that
Petitioner was removed from United States to the People's
Republic of China on December 4, 2017. (Doc. 4-1 at ¶
well established that federal courts may only adjudicate live
cases or controversies. Hall v. Beals, 396 U.S. 45,
48 (1969). Consequently, federal courts lack jurisdiction to
consider a case when it has “lost its character as a
present, live controversy and thereby becomes moot.”
Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009)
(internal quotation and citation omitted). “Simply
stated, a case is moot when the issues presented are no
longer ‘live' or the parties lack a legally
cognizable interest in the outcome.” Id.
(quoting Int'l Union v. Dana Corp., 697 F.2d
718, 720-21 (6th Cir. 1983)).
courts have determined that where an alien is released from
ICE custody pending removal from the United States, his
petition for relief under Zavydas is moot.”
Patel v. Streiff, No. 06-00584, 2008 WL 748396, *2
(S.D. Ala. Mar. 18, 2008) (internal quotations and citation
omitted); see also Dubois v. Hendricks, No. 14-3861,
2014 WL 4105482, at *2 (D.N.J. Aug. 18, 2014) (finding
petition moot because there was no longer a live case or
controversy); Emeni v. Holder, No. 6:13-cv-6404,
2014 WL 347799, at *3 (W.D.N.Y. Jan. 31, 2014) (same);
Rojas v. Lowe, No. 1:cv-13-871, 2013 WL 5876851, at
*3 (M.D. Pa. Oct. 30, 2013) (same).
on the foregoing, the Court finds that the petition no longer
reflects a present, live controversy, and it is, therefore,
MOOT. Consequently, the Court
RECOMMENDS that Respondents' Motion to
Dismiss (Doc. 4) be GRANTED, and that this
case be DISMISSED.
on the foregoing, the Court RECOMMENDS that
the Motion to Dismiss be GRANTED (Doc.
4), and that this action be
DISMISSED as MOOT.
PROCEDURE ON OBJECTIONS
party objects to this Report and Recommendation, that party
may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is
made, together with supporting authority for the
objection(s). A judge of this Court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made. Upon proper objections, a judge of this
Court may accept, reject, or modify, in whole or in part, the