United States District Court, D. Colorado
ORDER OF DISMISSAL
A. BRIMMER UNITED STATES DISTRICT JUDGE
the Court is Respondents' Motion to Dismiss for Lack of
Jurisdiction [Docket No. 12]. For the reasons set forth
below, the Court grants the Motion, denies the Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
[Docket No. 1] as moot, and dismisses this action without
prejudice for lack of jurisdiction.
14, 2018, Applicant Dat Tan Nguyen filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241. Docket No. 1. He paid the filing fee.
Id. In the Application, Applicant stated he is
“a native and citizen of Vietnam.” Id.
at 2. He challenged his continued detention by the Bureau of
Immigration and Customs Enforcement (“ICE”) at a
detention facility in Aurora, Colorado. Id. He
alleged that a final order of removal was entered on October
17, 2017, but he had not yet been removed. Id. at 3;
see also Docket No. 1-1 (Order of the Immigration
Judge). He claimed his removal was not reasonably
foreseeable, considering the length of time that had passed
without removal. Id. As relief, he requested release
under appropriate conditions of supervision. Id. at
Court's direction, on June 6, 2018, Respondents filed a
Response to Order to Show Cause. Docket Nos. 3, 11. In the
Response, Respondents argued that the Application should be
denied because “ICE received the Applicant's travel
documents and has reason to believe that it will be able to
remove Applicant in the reasonably foreseeable future.”
Docket No. 11 at 2.
did not file a Reply in support of the Application, as
permitted in the Order to Show Cause. Docket No. 3 at 2;
see generally Docket.
September 28, 2018, Respondents filed the Motion to Dismiss
for Lack of Jurisdiction presently before the Court. Docket
No. 12. In the Motion, Respondents state that Applicant
“was released on July 30, 2018” and, therefore,
the Application is moot. Id. at 1.
has not filed a Response to the Motion, nor has he made any
other filing on the Docket. See generally Docket. On
November 5, 2018, mail addressed to Applicant was returned to
the Court, indicating “Deported 7/30/2018.”
Docket No. 16.
corpus proceedings under 28 U.S.C. § 2241 “remain
available as a forum for statutory and constitutional
challenges to post-removal-period detention.”
Zadvydas v. Davis, 533 U.S. 678, 688 (2001). An
application for habeas corpus pursuant to 28 U.S.C. §
2241 may only be granted if 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) (“[t]he writ of
habeas corpus shall not extend to a prisoner unless [he] is
III of the United States Constitution restricts the
decision-making power of the federal judiciary to cases or
controversies. 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. Kemna,
523 U.S. 1, 7 (1998) (quotation omitted). 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); 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).
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. 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. Id.
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 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, 1257 (10th Cir. 2002) (citation
omitted) (holding that the petitioner's release from
detention under an order of supervision mooted his challenge
to the legality of his extended detention).
Application, Applicant challenged the lawfulness of his
continued detention in light of the alleged expiration of the
removal period. Docket No. 1 at 2-3. He requested release
“under appropriate conditions of supervision.”
Id. at 5. Respondents filed a Declaration of an ICE
Deportation Officer, declaring under penalty of perjury that,
“[o]n July 30, 2018, [Applicant] was removed to Vietnam
and released from ICE custody upon arrival in Vietnam.”
Docket No. 12-1 at 3, para. 12. Applicant has not filed
anything on the docket indicating that he remains in custody
or suffers some ongoing harm that may be redressed by a
favorable judicial decision in this action. Thus, it appears
that this case is moot, because Applicant has ...