United States District Court, N.D. Ohio, Eastern Division
CHRISTOPHER A. BOYKO, JUDGE.
REPORT & RECOMMENDATION
M. Parker, United States Magistrate Judge
before the court is the motion to dismiss filed on May 8,
2018 by respondent, Jeff Sessions. ECF Doc. 6. This matter is
before the undersigned pursuant to an order of reference
entered by Judge Christopher A. Boyko on March 8, 2018.
Because this court no longer has subject matter jurisdiction
to consider Adinan's petition, I recommend that the
petition be dismissed.
Statement of Facts
February 20, 2018, Adinan filed a petition for writ of habeas
corpus and argued that respondent refused to release him even
though respondent had been unable to effect Adinan's
removal and would be unable to do so in the reasonably
foreseeable future. ECF Doc. 1, Page ID# 1-2. Adinan
requested that the court issue a writ of habeas corpus
directing the respondent to immediately release him from
custody. Id. at 4.
entered immigration custody on August 27, 2016. Id.
at 1. An immigration judge ordered that Adinan be removed on
February 9, 2017. Id. Adinan waived appeal and
accepted a final removal order on that date. ECF Doc. 6-2,
Page ID# 21. One year later, Adinan filed the instant
petition on February 20, 2018. On March 12, 2018, Immigration
and Customs Enforcement (“ICE”) successfully
removed Adinan from the United States to Ghana. ECF Doc. 6-1,
Page ID# 15.
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. § 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 (1982).
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 ...