United States District Court, D. Colorado
ORDER OF DISMISSAL
Michael E. Hegarty United States Magistrate Judge.
the Court is Respondents' Motion to Dismiss for Lack of
Jurisdiction (ECF No. 25). The parties have consented to the
jurisdiction of this Magistrate Judge (see ECF Nos.
17, 18, 20). For the reasons set forth below, the Court
grants the Motion, denies the Amended Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No.
7) as moot, and dismisses this action without prejudice for
lack of jurisdiction.
Furat Yousif was detained at the Aurora Detention Center in
Aurora, Colorado. On January 30, 2019, he filed pro
se a Petition for a Writ of Habeas Corpus that sought a
remedy under 28 U.S.C. § 2241 (ECF No. 1). At the
Court's direction (ECF No. 3), he paid the filing fee
(ECF No. 4) and filed an Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the
Court-approved form (ECF No. 7). The Amended Application (ECF
No. 7) is the operative pleading.
Amended Application, Applicant alleged that a final order of
removal was entered on September 19, 2018, and his removal to
Iraq was not reasonably foreseeable. (ECF No. 7 at 7-10). He
requested “relief under Zadvydas, or any
relief as the Court deems just and proper.”
(Id. at 13).
Court directed Respondents to show cause as to why the
Amended Application should not be granted. (ECF No. 12).
After review of the parties' filings, the Court directed
Respondents to file supplemental briefing. (ECF No. 24). On
May 24, 2019, Respondents filed the Motion to Dismiss for
Lack of Jurisdiction presently before the Court. (ECF No.
25). In the Motion, Respondents represent that Applicant was
removed to Iraq on May 15, 2019, and released from the United
States' custody there. (Id. at 2).
has not filed a Response to the Motion. (See
Docket). On May 29, 2019, mail addressed to Applicant was
returned to the Court as undeliverable, indicating “Not
here/Deported 5/16/2019.” (ECF No. 26).
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 be granted only 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).
Amended Application, Applicant challenged the lawfulness of
his continued detention in light of the alleged expiration of
the removal period. (ECF No. 7). He requested release
“per Zadvydas.” (Id. at 13).
Respondents filed a Declaration of an ICE Deportation
Officer, declaring under penalty of perjury that, “[o]n
May 16, 2019, the Petitioner was repatriated to his native
Iraq via travel on a commercial airline. The Petitioner was
accompanied by two [ICE Enforcement and Removal Operations]
escort officers on the commercial flight and throughout the
repatriation process.” (ECF No. 25-1 at 2, para. 5).
has filed nothing 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: he has been released from
detention and ICE custody. The Court finds that ...