United States District Court, D. Colorado
ORDER OF DISMISSAL
William J. Martinez United States District Judge
the Court is Respondents' Motion to Dismiss as Moot
Pursuant to Fed.R.Civ.P. 12(b)(1) (Motion to Dismiss) (ECF
No. 31). For the reasons set forth below, the Court grants
the Motion to Dismiss, denies the Amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF
No. 18) as moot, and dismisses this action without prejudice
for lack of jurisdiction.
Malkit Singh was detained at the Aurora Detention Center in
Aurora, Colorado. On April 30, 2019, he filed pro se
in the United States District Court for the Northern District
of California a Petition for a Writ of Habeas Corpus that
sought a remedy under 28 U.S.C. § 2241. (ECF No. 1). The
action was transferred to this Court pursuant to 28 U.S.C.
§ 1404(a) on June 27, 2019. (ECF Nos. 7, 8). At the
Court's direction (ECF Nos. 11, 15, 17), Applicant paid
the filing fee (ECF No. 14) and on August 30, 2019, filed an
Amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (Amended Application) (ECF No. 18). The
Amended Application (ECF No. 18) is the operative pleading in
Amended Application, Applicant alleged that a final order of
removal was entered on April 18, 2018, and his removal to
India was not reasonably foreseeable. (ECF No. 18-1 at 4-5).
He asserted that his “continued detention is unlawful
and violates 8 U.S.C. § 1231(a)(6) as interpreted by the
Supreme Court in Zadvydas.” (Id. at
5). He requested that the Court grant the Amended Application
and “order Petitioner's immediate release from
custody.” (Id. at 6). Applicant also filed a
Motion for Appointment of Counsel. (ECF No. 13). The Court
granted the Motion for Appointment of Counsel, with the
advisement that that there was no guarantee that a Civil
Pro Bono Panel member would undertake
Applicant's representation and cautioning that, until
appointed counsel entered an appearance, Applicant must
continue to be responsible for all scheduled matters and must
follow the Court's procedures and rules accordingly. (ECF
Court directed Respondents to show cause as to why the
Amended Application should not be granted. (ECF No. 20).
Respondents filed a Response to Order to Show Cause (ECF No.
23) and Supplement thereto (ECF No. 27). On October 29, 2019,
Applicant filed a motion for extension of time to file a
reply, which the Court granted, allowing Applicant until
November 27, 2019, to file a reply to Respondents'
Response. (ECF Nos. 28, 30).
November 21, 2019, Respondents filed the Motion to Dismiss
presently before the Court. (ECF No. 31). In the Motion to
Dismiss, Respondents represent that Applicant was removed to
India on November 18, 2019, and is no longer in the United
States' custody. (ECF No. 31-1 at 1). On November 25,
2019, the Court ordered Applicant to file a response to the
Motion to Dismiss within 21 days. (ECF No. 32). On December
11, 2019, the copy of the November 25 order which had been
mailed to Applicant at his address of record at the Aurora
Detention Center was returned to the Court as undeliverable.
(ECF No. 33). The label on the returned envelope states
“RETURN TO SENDER / ATTEMPTED - NOT KNOWN / UNABLE TO
FORWARD.” (Id.). Applicant has not filed
either a response to Respondents' Motion to Dismiss or a
reply to Respondents' Response to Order to Show Cause.
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).
Amended Application, Applicant challenged the lawfulness of
his continued detention in light of the alleged expiration of
the removal period. (ECF No. 18). He asserted that his
“continued detention is unlawful and violates 8 U.S.C.
§ 1231(a)(6) as interpreted by the Supreme Court in
Zadvydas.” (ECF No. 18-1 at 5). In support of
their Motion to Dismiss, Respondents have filed a Declaration
of the Immigration and Customs Enforcement (ICE) Deportation
Officer assigned to Applicant's case, declaring under
penalty of perjury that, “[t]he Consulate of India
issued a travel document for Malkit Singh (Applicant) on
October 9, 2019, ” that “Applicant was removed to
India on November 18, 2019, ” and that “Applicant
is no longer in ICE Custody.” (ECF No. 31-1 at 1).
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: he has been released
from detention and ICE custody. The Court finds ...