United States District Court, D. Colorado
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Respondent's Motion
to Dismiss [#21] (the “Motion”). Applicant
has not filed a Response in opposition to the Motion [#21],
and the time for doing so has elapsed. The Court has reviewed
the Motion, the case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Motion [#21] is GRANTED.
April 3, 2017, Taiwo Gbenga (“Gbenga”) initiated
this action by filing pro se an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#3] (the
“Application”) challenging the length of his
detention. On April 21, 2017, Mr. Gbenga submitted an Amended
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 [#5] (the “Amended Application”). Mr.
Gbenga, a citizen of Nigeria, was first detained on April 20,
2016, at the port of entry in San Ysidro, California.
Decl. of Eden Minter [#16-1]
¶ 2. On April 29, 2016, Mr. Gbenga was
transferred to the Denver Contract Detention Facility in
Aurora, Colorado. Id. ¶ 3. On May 13, 2016,
United States Citizenship and Immigration Services
(“USCIS”) issued a Notice to Appear
(“NTA”) designating Mr. Gbenga as an arriving
alien and charging him as inadmissible to the United States
pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Id.
¶ 4. On September 12, 2016, the Immigration Judge issued
a decision ordering Mr. Gbenga removed from the United States
to his native country of Nigeria. Id. ¶ 6. On
September 23, 2016, Mr. Gbenga informed ICE that he would not
appeal the decision. Id. ¶ 8. On September 23,
2016, ICE requested travel documents for Mr. Gbenga from the
Consulate of Nigeria. Id. ¶ 8. On March 21,
2017, the Consulate of Nigeria indicated that it would issue
travel documents to Mr. Gbenga. Id. ¶ 13.
April 3, 2017, ICE completed a travel itinerary for Mr.
Gbenga which scheduled him to be removed from the United
States on June 7, 2017. Decl. of Eden Minter
[#16-1] ¶ 15, 19. On May 26, 2017, the Nigerian
government issued a travel document allowing Mr. Gbenga to
travel from the United States to Lagos, Nigeria. Decl. of
Eden Mnter [#20-1] ¶ 2. Mr.
Gbenga was removed from the United States to Nigeria on June
7, 2017 as previously planned. Warrant of
Removal/Deportation [#21-1] at 3. In the
Amended Application, Mr. Gbenga requests supervised release,
stating that he has never committed a crime and would not
pose a danger. Amended Application [#5]. Mr. Gbenga
also alleged that his prolonged detention was a violation of
his due process rights. Id.
Standard of Review
purpose of a motion to dismiss pursuant to Rule 12(b)(1) is
to test whether the Court has jurisdiction to properly hear
the case before it. Because “federal courts are courts
of limited jurisdiction, ” the Court must have a
statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F & S
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.”
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
motion to dismiss pursuant to Rule 12(b)(1) may take two
forms: facial attack or factual attack. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). When
reviewing a facial attack on a complaint, the Court accepts
the allegations of the complaint as true. Id. By
contrast, when reviewing a factual attack on a complaint, the
Court “may not presume the truthfulness of the
complaint's factual allegations.” Id. at
1003. With a factual attack, the moving party challenges the
facts upon which subject-matter jurisdiction depends.
Id. The Court therefore must make its own findings
of fact. Id. In order to make its findings regarding
disputed jurisdictional facts, the Court “has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990); Wheeler v. Hurdman,
825 F.2d 257, 259 n.5 (10th Cir.1987)). The Court's
reliance on “evidence outside the pleadings” to
make findings concerning purely jurisdictional facts does not
convert a motion to dismiss pursuant to Rule 12(b)(1) into a
motion for summary judgment pursuant to Rule 56. Id.
contends that this action is now moot because Mr. Gbenga is
no longer in the custody of the United States, having been
removed to Nigeria on June 7, 2017. Warrant of
Removal/Deportation [#21-1] at 3.
challenges to most administrative orders of removal,
deportation, or exclusion are reviewable only by the court of
appeals, see 8 U.S.C. § 1252(a)(5), challenges
to detention are reviewable by the district court in an
action brought pursuant to 28 U.S.C. § 2241. See
Ferry v. Gonzales, 457 F.3d 1187, 1192 (10th Cir. 2005).
In a § 2241 action, a district court is authorized to
issue the writ of habeas corpus when an applicant is
“in custody in violation of the Constitution or laws or
treaties of the United States.” §2241(c)(3). Thus,
to assert a § 2241 claim, Mr. Gbenga must demonstrate
that he is “in custody, ” but this requirement
need only be met at the time the action is initiated.
See, e.g., Spencer v. Kenna, 523 U.S. 1, 7
although not affecting the “in custody”
requirement, a petitioner's release from custody after
the initiation of his habeas petition may result in his
petition becoming moot. See Id. Article III of the
United States Constitution limits the jurisdiction of the
federal courts to actual cases or controversies. U.S. Const.
art. III, § 2, cl. 1. To meet this jurisdictional
requirement, an actual case or controversy must be present at
all stages of the litigation, not only when the action is
initiated. See Copar Pumice Co. v. Tidwell, 603 F.3d
780, 792 (10th Cir. 2010). Indeed, without a controversy that
is both live and concrete, federal courts lack jurisdiction
to consider claims, no matter how meritorious. See Mink
v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007).
Accordingly, when a court considers this threshold issue and
determines that there is no current live case or controversy,
it must dismiss the action for lack of jurisdiction. See
Copar Pumice, 603 F.3d at 792; McKeen v. U.S. Forest
Serv., 615 F.3d 1244, 1255 (10th Cir. 2010).
circumstances change such that the court is unable to grant
effective relief that has some effect in the real world, a
live case or controversy no longer exists and the case is,
therefore, moot. See McKeen, 615 F.3d at 1255;
Copar Pumice, 603 F.3d at 792 (stating that a case
is moot where intervening events or relief “have
completely and irrevocably eradicated the effects of the
alleged violation”). The mootness doctrine incorporates
two aspects: (I) whether the issues are live; and (ii)
whether the parties have a legally cognizable interest in the
outcome. See Lucero v. Bureau of Collection Recovery,
Inc., 639 F.3d 1239, 1243 (10th Cir. 2011). The critical
question in determining these two aspects is “whether
granting a present determination of the issues offered will
have some effect in the real world.” McKeen,
615 F.3d at 1255; Kennecott Utah Copper Corp. v.
Becker, 186 F.3d 1261, 1266 (10th Cir. 1999).
Demonstrating that a case is moot is a heavy burden and lies
with the party alleging that the action is moot. See
McKeen, 615 F.3d at 1255; Copar Pumice, 603
F.3d at 792.
are, however, exceptions to the mootness doctrine; that is,
even if an action appears moot on its face, a court will
refrain from dismissing the action when certain circumstances
are present. The four generally recognized exceptions are:
(1) the plaintiff continues to have secondary or collateral
injuries even 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 alleged
illegal practice, but is free to resume ...