Lopes v. Ashcroft

Full title: DELMAR ADRIANO MONTEIRO LOPES, Petitioner v. JOHN ASHCROFT, Attorney…

Court: United States District Court, D. Rhode Island

Date published: Apr 5, 2004

C.A. No. 04-014 S (D.R.I. Apr. 5, 2004)

Opinion

C.A. No. 04-014 S

April 5, 2004

Report and Recommendation

JACOB HAGOPIAN, Recalled Magistrate Judge

On January 12, 2004, Delmar Adriano Monteiro Lopes ("Lopes" or "petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention by the Department of Homeland Security ("Government") pending his removal to Cape Verde.¹ The Government has moved to dismiss the petition. Lopes has not objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the Government's motion to dismiss be granted.

1 This matter was originally filed in the United States District Court for the District of Massachusetts. On January 13, 2004, this matter was transferred to this Court since Mr. Lopes was confined in Rhode Island at the Adult Correctional Institutions.

Discussion

Delmar Adriano Monteiro Lopes, a native of Cape Verde, entered this country when he was eight years old on July 1, 1988 with his family. Petitioner has continuously lived in Massachusetts since his arrival to this land.

Sometime after his admission to this country, petitioner became involved in criminal activity. In June 2000, when the then Immigration and Naturalization Services, now the Department of Homeland Security, learned of Lopes' illegal activity, it initiated removal proceedings against him, ultimately ordering him removed to Cape Verde. The order of removal became final on August 23, 2001. Since then, the Government has been unable to procure the necessary travel documents to secure Lopes' return to Cape Verde, all while Lopes has been detained. The government of Cape Verde has refused to issue the necessary paperwork since Lopes has a serious heart condition that requires medical attention that is unavailable in that country.

Petitioner, having had a final order of removal issued in August 2001, filed this petition for a writ of habeas corpus seeking to be released from the Government's continued detention, citing Zadvydas v. Davis, 533 U.S. 678 (2001) as authority. The Government has moved to dismiss contending that the petition is moot since Lopes has now been released from custody. Petitioner has not objected, and indeed, the documents submitted by the Government demonstrate that Lopes is no longer in custody.

Accordingly, since Lopes has been released from immigration custody, the Government's motion to dismiss should be granted. Lopes' instant claim is moot. I so recommend.

Conclusion

For the reasons stated above, I recommend that the Government's motion to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete. 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).