United States District Court, D. Colorado
ORDER OF DISMISSAL
A. BRMMER, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Respondent's Motion to Dismiss for Lack of
Jurisdiction [Docket No. 16]. For the reasons set forth
below, the Court grants the Motion, denies the Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2241 [Docket No.
1] as moot, and dismisses this action without prejudice for
lack of jurisdiction.
December 10, 2018, Applicant Tunkara Haggi filed pro
se a Petition for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241. Docket No. 1. He paid the filing fee.
Docket No. 5. In the Petition, Applicant challenged his
continued detention by the Bureau of Immigration and Customs
Enforcement (“ICE”) at a detention facility in
Aurora, Colorado. Docket No. 1 at 6-8. He alleged that a
final order of removal entered on June 4, 2018, but he had
not yet been removed. Id. at 7; see also
Docket No. 1-1 at 6 (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
“with an order of supervision or on bond.”
Id. at 8.
Court's direction, on February 1, 2019, Respondent filed
a Response to the Order to Show Cause. Docket Nos. 6, 15.
Contemporaneously, Respondent filed the Motion to Dismiss for
Lack of Jurisdiction presently before the Court. Docket No.
16. In both filings, Respondent represents that Applicant was
removed to Gambia on January 17, 2019, and released from the
United States' custody there.
has not filed a Response to the Motion or a Reply in support
of the Application, as permitted in the Order to Show Cause.
He has not made any other filing on the docket since he paid
the filing fee on December 31, 2018. On January 29, 2019,
mail addressed to Applicant was returned to the Court as
undeliverable, indicating “Deported 1-17-2019.”
Docket No. 14.
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 the [respondent] and
likely to be redressed by a favorable judicial
decision.” Id. (citation omitted).
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).
Petition, Applicant challenged the lawfulness of his
continued detention in light of the alleged expiration of the
removal period. Docket No. 1 at 7. He requested release
“with an order of supervision or on bond.”
Id. at 8. Respondent filed a Declaration of an ICE
Deportation Officer, declaring under penalty of perjury that,
“[o]n January 17, 2019, the Applicant was removed from
the United States to his native country of Gambia. The
Applicant is no longer in ICE custody.” Docket No. 15-1
at 2, para. 7. 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 obtained the relief he requested;
namely, he has been released from detention and ICE custody.
The Court finds that Applicant has failed to set forth any
reason as to why his claims are not mooted by his release.
the Court finds that none of the exceptions to the mootness
doctrine recognized in Riley apply. Exception (1) is
not implicated because Applicant has not alleged or shown any
collateral injury resulting from his former detention.
See Ferry v. Gonzales, 457 F.3d 1117, 1132 (10th
Cir. 2006) (rejecting petitioner's argument of collateral
consequences because his “inability to return to the
United States is a continuing injury that stems from his
removal order, not his detention”).
(2) does not apply because any concern that Applicant might
be detained again for a prolonged period is based on
speculation and therefore fails to satisfy the requirements
of Article III. See McAlpine v. Thompson, 187 F.3d
1213, 1218 (10th Cir. 1999) (noting that speculation that a
defendant will “break the law or otherwise violate the
conditions of their release . . . would undermine our
presumption of innocence . . . and the rehabilitative focus
of the parole system”). The ...