United States District Court, S.D. Ohio, Eastern Division
Judge, Edmund A. Sargus, Jr.
ORDER AND REPORT & RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE
a citizen of Sierra Leone, filed this Petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241
seeking his immediate release from the custody of Immigration
and Customs Enforcement ("ICE"). However, the
Respondent indicates that, on January 23. 2018, Petitioner
was removed from the United States to Sierra Leone pursuant
to his removal order. Declaration of Oscar Blair Jr.
(h(T No. 7-1, PAGEID# 38.) The record thus reflects that
Petitioner no longer remains in federal custody. Respondent
argues that, as a result, this Court hicks jurisdiction in
this habeas corpus action. This Court agrees.
courts are vested with jurisdiction to grant habeas corpus
relief if. inter alia., a petitioner is "in
custody" in violation of the Constitution or laws of the
United Stales. 28 U.S.C. § 2241(c)(3).
28 U.S.C. § 2241 is a vehicle to challenge a Board of
Immigration Appeals determination. Calcano-Martinez v.
INS. 533 U.S. 348. 121 S.Ct. 2268, 150 L.Ed.2d 392
(2001); INS v. St. Cyr, 533 U.S. 289. 121 S.Ct.
2271, 150 L.Ed.2d 347 (2001), It also may be used to appeal
continued immigration administrative custody after final
removal order in "post-removal-period" indefinite
detention. Zadvydas v. Davis, 533 U.S. 678, 121
S.Ct. 2491, 150 L.Ed.2d 653 (2001). The key is I.C.E.
Maldomdo Parra v. Gonzalez, No. 4:4-cv-920, 2006 WL
2463665, at *5 (N.D.Ohio Aug, 2l, 2006). However,
"[o]nce a habeas petitioner is no longer In custody, the
court must determine "whether petitioner's
subsequent release caused the petition to be moot because it
no longer presented a case or controversy under Article III.
§ 2, of the Constitution.' " See Beiruti v.
Clawson, No. 1:08-cv-443, at "2 (W.D.Mich, Feb. 6,
2009) (quoting Spencer v. Kentna, 523 U.S. I, 7
(1998)). In order to meet the case or controversy
requirement. a petitioner who has been released from the
detention challenged in the petition must establish some
concrete and continuing injury or collateral consequences
aside from the now-ended incarceration that can be addressed
by the habeas corpus petition. Id. (citing
Spencer v. Kemna. 523 U.S. at 7-8)). The deportation
of a habeas petitioner during the pendency of a habeas
proceeding challenging the removal proceedings will deprive
the district court of jurisdiction over the case unless the
petition seeks relief from enduring and significant
collateral consequences of the deportation, Zundel v.
Berrong, 106 Fed.Appx. 331, 334-35 (6th Cir. 2004)
(citing Spencer v. Kemna. 523 U.S. at 7); see
also Ali v. I.N.S. 2010 WL 3001901, at *2 (N.D. Ohio
July 9. 2010) (no subject matter jurisdiction where the
petitioner does not seek relief from collateral consequences
of his removal, and he has been removed from the United
States). Even a notice that reentry into the United States
would be barred does not serve as a collateral consequence of
deportation sufficient to support continued jurisdiction
because the warning, without more, has '"no relevant
legal force."' Zundel v. Holder, 687 F.3d
271. 27S (6th Cir. 2012) (quoting United States v.
Perez-Torres, 15 F.3d 403, 406 (5th Cir. 1994}).
the record indicates that Petitioner has been removed from
the United Stales. The Petition seeks relief from
Petitioner's allegedly unlawful detention; Petitioner
does not allege any collateral consequences of his removal.
This Court concludes that, in light of Petitioner's
release from ICE detention and removal from the United
States, this case no longer presents an actual case or
controversy. This Court therefore lacks subject matter
jurisdiction to consider this habeas corpus petition.
also states that he seeks to pursue a civil action against
ICE. based on the loss of his personal property, which
purportedly has been returned to Africa. Petitioner seeks
$16, 600.00 in damages. (ECP No. 1-1. PageID# 12-13.)
However, such a claim is not properly brought under 28 U.S.C.
§ 2241 and would, in any event, be barred by sovereign
immunity. See Walton v. Untied States, 997 F.Supp.2d
808, 812 (N.D. Ohio Jan. 31. 2014) ("The doctrine of
sovereign immunity precludes suits against the United States
without its consent.") (citing Premo v. United
States, 599 F.3d 540, 544 (6th Cir. 2010): see also
Storm v. Bureau of Prisons, No. 4:08-cv-1690, 2009 WL
1163 123, at *3 (N.D. Ohio April 29. 2009) (citing 28 U.S.C.
§ 2680(c); Ali v. Federal Bureau of Prisons,
552 U.S. 214 (2008) (sovereign immunity precludes
prisoner's recovery for damages from loss of property by
prison officials): Mann v. Schlotlman, No.
15-cv-12869, 2017 WL 1077669, at *5 (E.D. Mich. March 22.
2017) (citing Muniz-Muniz v. U.S. Border Patrol, 741
F.3d 668, 672 (6th Cir. 2013) ("Without a waiver of
sovereign immunity, a court is without subject matter
jurisdiction over claims against federal agencies.").
Magistrate Judge therefore RECOMMENDS that
Respondent's Motion to Dismiss (ECF No. 7) be
GRANTED and that diis action be
Motion for an Immediate Stay of Removal (ECF No. 4)
is DENIED, as moot.
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
findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge
with instructions. 28 U.S.C. 636(B)(1).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates
as a waiver of the right to appeal the decision of the
District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985): United
States v. Walters. 638 F.2d 947 (6th Cir. 1981).
parties arc further advised that, if they intend to file an
appeal of any adverse decision, they may submit arguments in
any objections filed, regarding ...