United States District Court, N.D. Ohio, Eastern Division
SOLOMON OLIVER, JR. JUDGE
REPORT & RECOMMENDATION
M. PARKER MAGISTRATE JUDGE
before the court is the motion to dismiss filed on April 5,
2018 by respondent, Jeff Sessions. ECF Doc. 4. This matter is
before the undersigned pursuant to an order of reference
entered by Judge Solomon Oliver, Jr. on March 7, 2018.
Because this court no longer has subject matter jurisdiction
to consider Suleman's petition, I recommend that the
petition be dismissed.
Statement of Facts
February 28, 2018, Suleman filed a petition for writ of
habeas corpus and argued that respondent refused to release
him even though respondent had been unable to affect
Suleman's removal and would be unable to do so in the
reasonable foreseeable future. ECF Doc. 1, Page ID# 1.
Suleman requested that the court issue a writ of habeas
corpus directing the respondent to immediately release him
from custody. Id. at 4.
sought asylum at the United States' border on July 25,
2016. Id. at 2. An immigration judge ordered that
Suleman be removed on February 8, 2016. Id. Suleman
appealed the immigration judge's decision, his appeal was
dismissed, and the removal order became final on August 11,
2017. Id. Six months later, Suleman filed his
petition on February 28, 2018. On March 12, 2018. Immigration
and Customs Enforcement (“ICE”) successfully
removed Suleman from the United States to Ghana. ECF Doc.
4-1, Page ID# 12.
Motion to Dismiss Standard
motion to dismiss for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) may take
the form of either a facial or a factual attack. United
States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
Facial attacks challenge the sufficiency of the pleading
itself. Id. Factual attacks, on the other hand,
challenge the factual existence of subject-matter
jurisdiction, regardless of what is or might be alleged in
the pleadings. Id.
adjudicating a motion to dismiss based upon a facial attack,
the court must accept all material allegations of the
complaint as true and must construe the facts in favor of the
non-moving party. Ritchie, 15 F.3d at 598 (citing
Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974)). See also Robinson v.
Gov't of Malay., 269 F.3d 133, 140 (2d Cir. 2001)
(holding that all reasonable inferences must be drawn in
favor of the plaintiff when evaluating a facial attack on
contrast, a factual attack contests the validity of the facts
alleged as support for subject-matter jurisdiction.
Ritchie, 15 F.3d at 598. With a factual challenge,
no presumption of truthfulness arises for either party, and
the court must weigh the evidence to determine its power to
hear the case. Id. (citing Ohio Nat'l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th
Cir.1990)). In this analysis, the court may consider both the
pleadings and evidence not contained in the pleadings.
Makarova v. United States, 201 F.3d 110 (2d Cir.
Law & Analysis
district court lacks jurisdiction over a petitioner's
habeas claim under 28 U.S.C.S. § 2241 if the petitioner
is not in custody. See Prieto v. Gluch, 913 F.2d
1159, 1162 (6th Cir. 1990). A petition for writ of habeas
corpus challenges a government custodian's authority to
continue detaining an individual. Therefore, the
individual's release from custody generally moots a
habeas petition. Lane v. Williams, 455 U.S. 624, 632
Sixth Circuit has held that a petition for writ of habeas
corpus challenging the length of an alien's detention
pending removal is rendered moot by the alien's removal
from the United States. Enazeh v. Davis, 107
Fed.Appx. 489, 491 (6th Cir. 2004); Haddad v.
Ashcroft,76 Fed.Appx. 672, 673 (6th Cir. 2003) (removal
moots claims relating to conditions of detention.) See
also, Lin Su Fang v. Holder, No. 1:11-cv-313, 2011 WL
2784496 at *3, 2011 U.S. Dist. LEXIS 76112 (N.D. Ohio July
14, 2011) (removal moots habeas petition when petitioner only
sought relief from her allegedly unlawful detention.) Other
courts have also held that an alien's release from
custody renders moot the alien's habeas petition if it
challenged the length or conditions of detention. See,
e.g., G.S. v. Holder,373 Fed.Appx. 836, 844 (10th Cir.
2010) (removal moots issues pertaining to the legality of the
detention); Politis v. Chertoff,326 Fed.Appx. 272,
273 (5th Cir. 2009) (deportation moots wrongful detention
Bivens claim); Kurtishi v. Cicchi, 270
Fed.Appx. 197, 199-200 (3d Cir. 2008) (challenge to legality
of immigration detention mooted by deportation); Abdala
v. INS,488 F.3d 1061, 1065 (9th Cir. 2007) (deportation
mooted petition complaining about ...