Opinion
Case No. 4:19-CV-808
03-11-2020
Abou DIALLO, Petitioner, v. Rebecca ADDUCCI, Field Office Director, In her official capacity, Respondent.
Reem Subei, Mark R. Heller, Advocates for Basic Legal Equality, Toledo, Ohio, for Respondent. Renee A. Bacchus, Office of the U.S. Attorney, Cleveland, Ohio, for Petitioner.
Reem Subei, Mark R. Heller, Advocates for Basic Legal Equality, Toledo, Ohio, for Respondent.
Renee A. Bacchus, Office of the U.S. Attorney, Cleveland, Ohio, for Petitioner.
ORDER
James G. Carr Sr., U.S. District Judge
This is a petition for habeas corpus challenging petitioner's indefinite detention. The petitioner filed the petition while in the custody of Immigration & Customs Enforcement (ICE). After that filing, the respondent released petitioner and filed a motion to dismiss for lack of subject matter jurisdiction. (Doc. 10-1).
For the reasons that follow, I grant the respondent's motion to dismiss.
Background
After leaving Mauritania, petitioner Abou Diallo entered the United States on May 28, 1993. He was not admitted or paroled. (Doc. 6-1, PageID 40). On April 25, 1997, he received a Notice to Appear before an Immigration Judge in New York. (Doc. 6-1, PageID 40). On September 1, 1999, the Immigration Judge denied petitioner's application for voluntary departure, asylum, and withholding of removal and ordered petitioner removed to Mauritania. (Doc. 6-1, PageID 41). The Board of Immigration Appeals (BIA) dismissed petitioner's appeal on December 12, 2002, (Doc. 6-1, PageID 43-44), rendering the removal order final and enforceable pursuant to 8 U.S.C. § 1231(a)(1)(B)(i).
The Second Circuit Court of Appeals dismissed petitioner's Petition for Review on April 20, 2006. (Doc. 1, § 20). On July 12, 2006, ICE placed petitioner under an order of supervision subject to certain conditions. (Doc. 11-2).
On January 24, 2018, the government of Mauritania issued a travel document to effectuate petitioner's removal. (Doc. 6-1, PageID 38, ¶ 9). On April 3, 2018, ICE took petitioner into custody pursuant to the final order of removal. (Doc. 6-1, PageID 38, ¶ 10). On April 25, 2018, petitioner refused to board the flight on which he was to be removed. (Doc. 6-1, PageID 38, ¶ 11).
On June 21, 2018, ICE determined that petitioner failed to comply with the directives of 8 C.F.R. § 241.4(g). (Doc. 6-1, PageID 45). Specifically, ICE determined that petitioner refused to board the flight scheduled to effectuate his removal. (Doc. 6-1, PageID 45). ICE informed petitioner of this decision on August 3, 2018. (Doc. 6-1, PageID 46).
On June 25, 2018, ICE concluded that petitioner would remain in custody for refusing to board the flight. (Doc. 6-1, PageID 47). ICE informed petitioner of this decision on June 26, 2018. (Doc. 6-1, PageID 48).
ICE rescheduled petitioner's flight for August 21, 2018. (Doc. 6-1, PageID 39, ¶ 14). In response, petitioner filed a Motion to Reopen with the Second Circuit Court of Appeals. The BIA issued a stay of removal on August 20, 2018. (Doc. 6-1, PageID 39, ¶ 14).
While petitioner was in ICE custody, he filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner asks me to grant his petition and enjoin the government from unlawfully detaining him in the future. (Doc. 1, PageID 9).
The Detention and Deportation Officer familiar with petitioner's case, Jason Edmister, declared on June 27, 2019:
Once the stay is lifted, should the removal order remain in effect, ICE will obtain a renewed travel document and promptly remove Petitioner from the United States. As such, I believe that it is significantly likely that Petitioner can and will be removed from the United States in the reasonably foreseeable future.
(Doc. 6-1, PageID 39, ¶ 16).
On July 8, 2019, the BIA denied petitioner's Motion to Reopen. (Doc. 8, PageID 52). He filed a Petition for Review of the BIA denial on July 16, 2019. (Doc. 8, PageID 52).
On July 25, 2019, Brenda Hogan, a Department of Justice attorney in the Office of Immigration Litigation, filed a document on CM/ECF indicating that the Department of Homeland Security received notice of the stay of removal and that it has no current plans to remove petitioner. (Doc. 8-2, PageID 56).
On July 26, 2019, ICE released petitioner from custody under an order of supervision. The order informs petitioner that a violation of the conditions may result in revocation of petitioner's employment status and detention in ICE custody. Id.
On August 5, 2019, the respondent filed the pending motion to dismiss the petition as moot because ICE had released petitioner from custody following the filing of his habeas petition. (Doc. 10-1). On September 4, 2019, petitioner filed an opposition to the motion to dismiss. (Doc. 11). The respondent filed its reply on September 13, 2019. (Doc. 12-1).
Standard
A motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may assert either a facial or a factual attack. United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994). While facial attacks challenge the sufficiency of the pleading itself, factual attacks challenge the factual existence of subject-matter jurisdiction. Id.
When, as here, a motion to dismiss presents a factual challenge, "no presumption of truthfulness arises for either party. The court then must weigh the evidence to determine its power to hear the case. Id. (citing Ohio Nat'l Life Ins. Co. v. United States , 922 F.2d 320, 325 (6th Cir. 1990). In this analysis, I may consider both the pleadings and evidence outside the pleadings. Ashqar v. LaRose , 2019 WL 1793000 (N.D. Ohio) (Knepp, MJ) (R & R adopted by 2019 WL 1790453 ) (citing Makarova v. United States , 201 F.3d 110 (2d Cir. 2000) ).
Discussion and Analysis
1. Mootness and Exceptions
A person in federal custody may challenge the constitutionality of his detention by means of a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The writ is available to a petitioner if "[h]e is in custody under or by color of authority of the United States or is committed for trial before some court thereof." § 2241(c)(1).
To obtain habeas relief following release from custody, "a petitioner must demonstrate he was in custody at the time he filed the petition and his release did not render the petition moot." Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). If a petitioner, as here, was in custody when he filed his petition, but later was released, "the question is whether [the court] is still faced with a case or controversy under Article III, § 2 of the U.S. Constitution." Id.
To ascertain whether a case or controversy still exists, courts inquire whether a petitioner has suffered, or is threatened with, an actual injury traceable to respondents that is likely to be redressed by a favorable judicial decision. Id. "[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). When events occur during the pendency of a litigation which render the court unable to grant the petitioner's requested relief, the case is moot. Carras v. Williams , 807 F.2d 1286, 1288 (6th Cir. 1986).
A petitioner no longer in custody can meet the case-or-controversy requirement by showing he suffers from collateral consequences of the prior detention that are "concrete" and "likely to be redressed by a favorable judicial decision." Spencer, supra , 523 U.S. at 7, 118 S.Ct. 978 (quoting Lewis v. Cont'l Bank Corp. , 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) ). Conjectural or hypothetical harm will not suffice. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). If the collateral consequences petitioner suffers amount to a sufficiently concrete injury, the case is not moot.
Petitioner has the burden of demonstrating that he suffers from collateral consequences sufficient to meet Article III's concrete injury requirement. Id. at 13-14, 118 S.Ct. 978. A habeas petitioner must show "some concrete and continuing injury other than the now-ended incarceration" that granting the habeas petition will remedy. Id. at 7-8, 118 S.Ct. 978.
I conclude that the petitioner fails to state or suggest any collateral consequences or continuing injury sufficient to meet the concrete injury requirement. (Doc. 11).
A. Capable of Repetition, Yet Evading Review Exception
Petitioner contends that his petition is not moot under certain exceptions to mootness. An exception to the mootness doctrine, "capable of repetition, yet evading review," applies only in "exceptional situations," City of Los Angeles v. Lyons , 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), in which the challenged conduct is too short in its duration to be fully litigated and there is a reasonable expectation that the same complaining party will be subject to the same action again. Lewis v. Continental Bank Corp. , 494 U.S. 472, 481, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (quoting Murphy v. Hunt , 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 ) (per curiam). The party asserting the exception bears the burden of proof. Lawrence v. Blackwell , 430 F.3d 368, 371 (6th Cir. 2005).
B. Voluntary Cessation of Challenged Conduct Exception
The Supreme Court has held that " ‘a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ... ‘[I]f it did, the courts would be compelled to leave [t]he defendant...free to return to his old ways.’ " Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc. , 455 U.S. 283, 289 & n.10, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) ).
As the petitioner points out, voluntary cessation will moot a case only where "there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Speech First, Inc. v. Schlissel , 939 F.3d 756, 767 (6th Cir. 2019) (quoting Friends of the Earth at 189, 120 S.Ct. 693 ).
The "heavy burden," Los Angeles Cty. v. David , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), of demonstrating that the allegedly wrongful behavior will not reasonably be expected to recur falls on the party claiming mootness. Friends of the Earth , 528 U.S. at 189, 120 S.Ct. 693. But, the Sixth Circuit has recognized that "cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties." Mosley v. Hairston , 920 F.2d 409, 415 (6th Cir. 1990).
The Sixth Circuit held that where the voluntary cessation doctrine is applicable, a case is not moot if it is "absolutely clear" that the potentially indefinite detention could not reasonably be expected to recur. Rosales-Garcia at 396-97. See also Argue v. Current MDOC Special Activities Director , 2011 WL 3648262 (W.D. Mich.) ("Voluntary cessation of [arguably constitutionally] offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.") (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1100 (10th Cir. 2010).
2. Continuing Habeas Jurisdiction
Petitioner asserts that his indefinite detention is both capable of repetition, yet evading review and falls within the voluntary cessation exception. This is because "ICE can revoke Petitioner's Order of Supervision at any time, and ICE has in fact revoked Petitioner's order of Supervision within the past year, in April 2018 – after twelve years of Petitioner's faithful compliance with his previous Order of Supervision." (Doc. 11).
The capable of repetition, yet evading review doctrine is not applicable here because there is not a reasonable expectation that petitioner will be subject to the same indefinite detention again. Petitioner was taken into custody when ICE obtained a travel document that would allow petitioner to travel to Mauritania. (Doc. 14, PageID 102, fn. 2). He remained in custody after ICE determined that he engaged in an act to prevent his removal, namely: petitioner, on April 25, 2018, refused to board a flight to Mauritania. Had petitioner, who is subject to removal, boarded his flight his detention would have ended.
The Supreme Court has held that "for the purposes of assessing the likelihood that [ ] authorities will re-inflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury." Honig v. Doe , 484 U.S. 305, 320, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).
Petitioner claims that Rosales-Garcia v. Holland establishes this case as capable of repetition, yet evading review. In that case, the petitioner was a Mariel Cuban subject to the Cuban Review Plan. 322 F.3d 386, 391 (6th Cir. 2003). At the time, Cuba had refused to accept the deportation of Mariel Cubans. Id. at 391-92.
The court found that Rosales's situation was capable of repetition, yet evading review because, under the Cuban Review Plan, the INS could revoke parole at any time, and had done so twice in the past 15 years, providing Rosales with a reasonable expectation that he would again be subject to indefinite detention. Id. at 397. Given that Cuba was not accepting deported Mariel Cubans at the time, Rosales was stuck in a state of purgatory, denied admission and unable to return to Cuba.
Here, ICE has revoked petitioner's release just once and for the purpose of effecting his removal. In order to remove petitioner, ICE will, in all likelihood, take petitioner back into custody. However, as long as the petitioner refrains from acting to prevent his removal, it is unlikely that he will be subject to the lengthy detention that followed his refusal to board his flight to Mauritania.
The voluntary cessation exception does not apply in this case either. The timing of petitioner's release indicates that ICE did not place him under an order of supervision simply to deprive the court of jurisdiction.
As respondent points out, the petitioner "was not taken into custody until after ICE had obtained a travel document allowing Petitioner to be returned to his native country." (Doc. 14, PageID 102, fn. 2). After petitioner refused to board his flight to Mauritania, he remained in detention.
The petitioner filed his petition on April 11, 2019, requesting release from custody and an injunction to prevent further unlawful detention. (Doc. 1). Had ICE released the petitioner from custody that day or sometime shortly after, it would have been indicative that his release was an effort to deprive the court of jurisdiction. But that is not what happened.
Rather, ICE released petitioner on July 26, 2019, following a Department of Justice notification to the Second Circuit of the BIA's stay of removal and the lack of plans to remove him. (Doc. 8-2, PageID 56). This appears to be the only catalyst to petitioner's release. Nothing in the record suggests that he was placed on an order of supervision to deprive this court of jurisdiction to review the petition.
3. Request for Injunction
Petitioner also requests an injunction enjoining the government from further unlawful detention. To receive such an injunction, petitioner must "demonstrate separate standing to seek declaratory or injunctive relief focused on the prospective harm. Barber v. Miller , 809 F.3d 840, 849 (6th Cir. 2015) (citing O'Shea v. Littleson , 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ).
To establish standing, petitioner must show an injury in fact, or in other words, "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Ashqar v. LaRose at *16 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). The petitioner must show that "the threatened injury is ‘certainly impending’ or that there is a ‘substantial risk’ that the harm will occur. Id.
Petitioner has not alleged or provided evidence that ICE will take him back into custody in the imminent future, or that there is a substantial risk that the detention will be indefinite. Because petitioner has not made such a showing, petitioner lacks standing to seek such relief.
Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT respondent's motion to dismiss (Doc. 10-1) be, and the same hereby is granted.
So ordered.