United States District Court, D. Colorado
DEMETRIO A. VALERGA, Applicant,
JEFF SESSIONS, U.S. Attorney General, Respondent.
REPORT AND RECOMMENDATION ON APPLICATION FOR WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 (DOCKET NO.
1) AND PETITIONER'S MOTION TO KEEP HABEAS PROCEEDINGS
OPEN (DOCKET NO. 23)
Michael J. Watanabe, United States Magistrate Judge
case is before this Court pursuant to Orders of Reference to
Magistrate Judge issued by Judge William J. Martinez on
October 17, 2017, and November 11, 2017, respectively.
(Docket Nos. 21 & 24.) Now before the Court is Applicant
Demetrio A. Valerga's (“Applicant”)
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 (Docket No. 1) and Motion to Keep Habeas
Proceedings Open. (Docket No. 23.)
October 6, 2017, Respondent Jeff Sessions
(“Respondent”) filed a response (Docket No. 16)
to the Court's Order to Show Cause. (Docket No. 8.) He
supplemented that response on November 9, 2017 (Docket No.
26), and responded to Petitioner's motion to keep the
proceedings open on November 15, 2017. (Docket No. 26.) The
Court has carefully considered the pleadings and motion,
taken judicial notice of the Court's file, and considered
the applicable Federal Rules of Civil Procedure and case law.
The Court now being fully informed makes the following
findings of fact, conclusions of law, and recommendation.
signed an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (Docket No. 1) on September 13, 2017,
and it was filed with the Court on September 15, 2017.
Applicant is a citizen of Argentina who was admitted to the
United States as a lawful permanent resident in 1990. (Docket
No. 16-1 at ¶ 2.) He was ordered removed from this
country on February 20, 2014, because he was convicted of
various crimes. (Docket No. 1 at pp. 9-10; Docket No. 16-1 at
¶ 4.) He was released by Immigration and Customs
Enforcement (“ICE”) while the agency tried to
obtain travel documents for Applicant. (Docket No. 16-1 at
¶ 7.) After Applicant was arrested and incarcerated
again in 2016, ICE contacted the Argentine Consulate, which
said it would issue travel documents upon Applicant's
release from prison. (Docket No. 16-1 at ¶ 8.) He was
released from the Colorado Department of Corrections on June
29, 2017. (Docket No. 1 at p. 10.) In his
Application, he alleged that he was then detained by ICE for
a period exceeding 90 days without being removed, in
contravention of 8 U.S.C. § 1231(c). (Id. at p.
15.) The delay was caused by the fact that ICE has not still
been able to secure the appropriate travel documents.
(Id. at p. 2.) On September 14, 2017, after the
Application at issue was signed but before it was served on
Respondent, Applicant was again released from custody,
subject to an Order of Supervision. (Docket No. 16-1 at
¶ 12.) He then filed the subject Motion to Keep Habeas
Proceedings Open. (Docket No. 23.) However, ICE was
eventually able to secure the necessary travel documents, and
Applicant was taken into custody on November 1, 2017, and
removed to Argentina on November 5, 2017. (Docket No. 25-1 at
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).
“To invoke the jurisdiction of a federal court, a
litigant must have suffered, or be threatened with, an actual
injury traceable to the defendant and likely to be redressed
by a favorable judicial decision.” Lewis v.
Cont'l Bank Corp., 494 U.S. 472, 477 (1990).
2241(c)(1) provides that “[t]he writ of habeas corpus
shall not extend to a prisoner unless [he] is in
custody.” Although the fact that Applicant is no longer
in custody does not automatically moot his Application, it
will be dismissed unless one of the following exceptions is
established: “‘(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 is free
to resume it at any time; or (4) it is a properly certified
class action suit.'” Riley v. I.N.S., 310
F.3d 1253, 1256-57 (10th Cir. 2002) (quoting Chong v.
I.N.S., 264 F.3d 378, 384 (3d Cir. 2001)).
court finds that none of these exceptions to the mootness
doctrine apply. Therefore, under Riley,
Applicant's petition must be dismissed as moot. See
Riley, 310 F.3d at 1255, 1257. See also Herrera v.
Holder, No. 14-cv-00218-PAB, 2014 WL 3672116, at *4 (D.
Colo. July 23, 2014) (finding that an applicant's release
from detention pursuant to an order of supervision moots his
§ 2241 application).
reasons discussed above, it is RECOMMENDED
• The Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (Docket No. 1), filed by Applicant
Demetrio A. Valerga on September 15, 2017, be
DISMISSED WITHOUT PREJUDICE; and
• Applicant Demetrio A. Valerga's Motion to Keep
Habeas Proceedings Open (Docket No. 23) be DENIED AS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P.
72(b)(2), the parties have fourteen (14) days after service
of this recommendation to serve and file specific written
objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another
party's objections within fourteen (14) days after being
served with a copy. The District Judge need not consider
frivolous, conclusive, or general objections. A party's
failure to file and serve such written, specific objections
waives de novo review of the recommendation by the
District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review ...