United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
Irael Romeo Hernandez-Morales, through counsel, filed this
habeas corpus action pursuant to 28 U.S.C. § 2241. (Doc.
1). Currently before the Court is respondents' motion to
dismiss (Doc. 9), to which petitioner has filed a response in
opposition (Doc. 10). For the reasons stated below, it is
recommended that the motion to dismiss be granted.
24, 2018, petitioner Hernandez-Morales filed his initial
petition for habeas corpus, challenging the lawfulness of his
detention by the United States Immigration and Customs
Enforcement Agency (ICE). In addition, petitioner brought
civil rights claims pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971),
challenging the lawfulness of his arrest by police. In the
petition, petitioner sought his release from detention, as
well as monetary and other relief. (Doc. 1).
petitioner filed the operative "Amended Petition for
Declaratory Judgment, A Judicial Order for Release from
Detention, Other Injunctive Relief & Bivens
Damages." (Doc. 5). In the amended petition, petitioner
adds his wife, Gladys Jimenez Sales, as a petitioner and the
Attorney General of the United States as a respondent.
(See Doc. 5, at PagelD 21-23). The amended petition
also indicates that the Immigration Judge has granted
petitioner Hernandez- Morales release from ICE custody on a
$6, 500 bond. (See Doc. 5, at PagelD 23, 26). For
relief, petitioners seek monetary and declaratory relief, an
order suppressing evidence in petitioner
Hernandez-Morales's removal proceedings, an Order
identifying the "ICE Agents [sic] Respondents," and
an award of attorney's fees and costs. (Doc. 5, at PagelD
seek dismissal on the ground that petitioner
Hernandez-Morales's release from detention on bond moots
the action. (Doc. 9, at PagelD 61-63). Alternatively,
respondents assert that dismissal is appropriate on the
ground that petitioners have failed to perfect service of
process as required by Fed.R.Civ.P. 4. (Doc. 9, at PagelD
63-65). Petitioners oppose the motion to dismiss, urging the
Court to grant the requested declaratory, injunctive, and
monetary relief. (Doc. 10). For the reasons below, the Court
recommends that the action be dismissed for lack of
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,  a petitioner's release from custody
generally moots a habeas petition. See Lane v.
Williams, 455 U.S. 624, 631-32 (1982). Because
petitioner Hernandez-Morales has been released on bond, and
indeed no longer seeks release from detention, his initial
request for release from detention is moot. See Felix v.
Bureau of Immigration and Customs Enforcement, No.
3:05-cv-2211, 2007 WL 951452, at *l (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."); see also Kahn v. Attorney
General, Nos. 1:15-cv-2014, 1:16-cv-85, 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:ll-cv-894, 2012 WL 463830,
at *l (W.D. Mich. Jan 24, 2012) (finding habeas petition moot
where petitioner seeking release pending removal was released
pursuant to an order of supervision) (Report and
Recommendation), adopted, 2012 WL 463825 (W.D. Mich.
Feb. 13, 2012); Ceesay v. Chertoff, No. C07-1722RSL,
2008 WL 342744, at *l (W.D. Wash. Feb. 4, 2008) (dismissing
§ 2241 petition as moot where petitioner was released
from ICE custody on bond).
to the extent that petitioners bring claims under the
Declaratory Judgment Act, 28 U.S.C. § 2201, and
Bivens, such claims must be filed by way of a civil
complaint and are subject to the $400 filing fee. See,
e.g., Avery v. Phillips, No. 2:14-cv-1276-STA-egb, 2016
WL 94143, at *2 (W.D. Term. Jan. 7, 2016) ("A civil
rights action and a habeas petition have distinct purposes
and contain unique procedural requirements that make a hybrid
action difficult to manage.") (citing cases). See
also Flowers v. Schultz, No. 07-0045 (JBS), 2007 WL
1186312, at *3 (D. N.J. Apr. 19, 2007) ("Actions under
the Declaratory Judgment Act must be filed by way of a civil
complaint[.]"). In this case, petitioners have not paid
the applicable fee or issued service of process on
respondents. If petitioners wish to pursue these claims, they
must do so by filing a civil complaint, paying the applicable
filing fee, and properly issuing service of process on
petitioners seek an Order from this Court suppressing
evidence in the immigration court. District courts lack
jurisdiction "over 'questions of law and fact that
arise from either an action or proceeding brought in
connection with the removal of an alien.'"
Morales v. Sessions, No. l7-225-DLB-HAI, 2018 WL
3732670, at *6 (E.D. Ky Aug. 6, 2018) (quoting Hamdi ex
rel Hamdi v. Napolitano, 620 F.3d 615, 626 (6th Cir.
2010)). See also Puc-Ruiz v. Holder, 629 F.3d 771,
777-81 (8th Cir. 2010) (addressing denial of suppression
motion in a petition for review in the circuit court). In the
absence of any authority from petitioners to the contrary,
the undersigned finds that petitioners' request for an
Order suppressing evidence in the immigration court is not
properly before this Court.
in sum, it is recommended that respondents" motion to
dismiss (Doc. 9) be GRANTED and that this
action be DISMISSED without prejudice for
lack of subject matter jurisdiction. In light of this
recommendation, the undersigned need not reach
respondents' alternative argument for dismissal under
IS THEREFORE RECOMMENDED THAT:
Respondent's motion to dismiss be
GRANTED and that this action be
DISMISSED without prejudice for lack of
subject matter jurisdiction.
certificate of appealability should not issue under the
standard set forth in Slack v. McDaniel, 529 U.S.
473, 484-85 (2000), because "jurists of reason"
would not find it debatable whether this Court is correct in
its procedural ruling that it lacks subject-matter
jurisdiction. See, e.g., Wunderlich v. City of
Flushing, No. 14-cv-14626, 2014 WL 7433411, at *3 (E.D.
Mich. Dec. 31, 2014) (applying Slack to dismissal
for lack of subject matter jurisdiction).
Court certify pursuant to 28 U.S.C. § 1915(a)(3) that
with respect to any application by petitioner to proceed on
appeal in forma pauperis, an appeal of any Order
adopting this Report and Recommendation would not be taken in
"good faith," and therefore DENY petitioner leave
to appeal in forma pauperis. See ...