United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK SENIOR UNITED STATES DISTRICT JUDGE
Applicant, Sain Alejandro Flores Elacios, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging the lawfulness of his detention by federal immigration authorities. The Government has filed a Preliminary Response (ECF No. 7) requesting that the Court dismiss this action for lack of jurisdiction. Applicant has not filed any reply. For the reasons set forth below, the Court concludes that the Application should be denied as moot and the action dismissed without prejudice for lack of jurisdiction.
A. Relevant Background Information
Applicant was born in Mexico and entered the United States in 1998. (ECF No. 1 at 2, ¶ 11). He was ordered removed on March 8, 2007, and after serving 24 months for a state drug conviction, he was removed from the United States to Mexico on September 20, 2010. (Id. at 3, ¶¶ 17, 23). Applicant re-entered the United States without inspection in 2011. (Id., ¶¶ 19, 24). In February 2012, Applicant was arrested on drug charges and sentenced to 4 years in state prison. (Id., ¶ 21). On June 22, 2012, Applicant’s order of removal was reinstated pursuant to 8 U.S.C. § 1231(a)(5) because he reentered the United States illegally after having been removed under an order of removal. (Id., ¶ 25). At the conclusion of Applicant’s state prison sentence, he was remanded into custody of Immigration and Customs Enforcement (“ICE”) on December 23, 2014. (Id., ¶ 26). After review of Applicant’s custody status, ICE decided, on March 10, 2015 and again on June 22, 2015, to continue Applicant’s detention in ICE custody. (See ECF No. 1-2 at 29-30).
On July 21, 2015, an Immigration Judge (IJ) granted Applicant a deferral of removal to Mexico under the Convention Against Torture (“CAT”) pursuant to 8 U.S.C. § 1208.17. (See ECF No. 1-2 at 19-28). The July 21 order expressly stated that the deferral of removal ““[w]ill not necessarily result in the applicant’s release from the custody of the Department” and that Applicant “may be removed at any time to another country [other than Mexico] ….” (Id. at 27).
Applicant then submitted a letter dated July 31, 2015 to ICE’s HQ Post-Order Custody Review Unit (“POCRU”) requesting custody review. (ECF No. 1-2 at 31).
On September 18, 2015, Applicant initiated the instant action by submitting the § 2241 Application contending that he was being unlawfully detained by ICE at the ICE Processing Center in Aurora, Colorado in violation of § 241 of the Immigration and Nationality Act (“INA”) and his substantive and procedural due process rights. (See ECF No. 1 at 4-7). As relief, Applicant seeks an order “(a) [d]eclaring that Petitioners continued detention is not authorized by the INA and/or violated the Fifth Amendment; (b) [g]ranting this Petition for a Writ of Habeas Corpus and releasing Petitioner under an order of supervision; (c) [d]eclaring that Petitioners continued indefinite detention without a hearing before an impartial adjudicator infringes upon his right to procedural due process in violation of the Fifth Amendment; and (d) [e]njoining Respondents-defendants to conduct an immediate hearing before an Immigration Judge. (e) [o]rder Respondents to refrain from transferring Petitioner out of the jurisdiction of this court during the pendency of this proceeding and while Petitioner remains in Respondent’s custody.” (Id. at 7).
On October 6, 2015, ICE issued a Release Notification advising Applicant that he was being released from ICE custody pending his removal from the United States. (See ECF No. 7-1). On October 7, 2015, ICE issued an Order of Supervision setting forth the conditions of Applicant’s release from custody. (See ECF No. 7-2). Applicant was released from ICE custody on October 7, 2015. (See ECF No. 7-3 at 2).
B. Standard of Review
An application for habeas corpus pursuant to 28 U.S.C. § 2241 may only be granted if the Applicant “is in custody in violation of the Constitution, or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. §2241(c)(1) (stating that “[t]he writ of habeas corpus shall not extend to a prisoner unless [he] is in custody.”). Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for an immigration detention unrelated to a final order of removal. Demore v. Kim, 538 U.S. 510, 517-18 (2003).
In the Preliminary Response (ECF No. 7), Respondents request that this action be dismissed for mootness since Applicant has been released from ICE custody pursuant to an Order of Supervision.
Article III of the United States Constitution restricts the decision-making power of the federal judiciary to cases involving "a case or controversy." U.S. Const. Art. III, § 2. "Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). Parties must have a "personal stake in the outcome" of the lawsuit at all stages of the case. Spencer v. Kenma, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990)). Consequently, “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Ariz., 520 U.S. 43, 67 (1997) (quotations omitted). “If, during the pendency of the case, circumstances change such that [a party’s] legally cognizable interest in a case is extinguished, the case is moot, and dismissal may be required.” Green v. Haskell County Bd. of Comm’rs, 568 F.3d 784, 794 (10th Cir. 2009) (quotations omitted). If the Court finds that a case is moot, it must dismiss the case for lack of jurisdiction. See, e.g., McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (“Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.”).
A habeas corpus petition is moot when it no longer presents a case or controversy under Article III, § 2, of the Constitution. Spencer, 523 U.S. at 7; see also Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (“The mootness doctrine provides that although there may be an actual and justiciable controversy at the time the litigation is commenced, once that controversy ceases to exist, the federal court must dismiss the action for want of jurisdiction.”) (citation omitted). To satisfy the case or controversy requirement, a habeas petitioner must demonstrate that he has suffered, or is threatened with, an actual injury traceable to respondents and likely to be redressed by a favorable judicial decision. Lewis v. Cont'l. Bank Corp., 494 U.S. 472, 478 (1990). Where a habeas petitioner has been released from custody, the petition must be dismissed as moot unless one of the following exceptions to the mootness doctrine applies: “(1) secondary or ‘collateral’ injuries survive after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an allegedly illegal practice but ...