Opinion
Civil Action No. 06-cv-00139-LTB-PAC.
June 13, 2006
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Reindolf A. Quacoe filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on January 26, 2006. A March 10, 2006 Order of Reference referred the Application to the undersigned to issue a recommendation on disposition. Respondent filed a Response to Order to Show Cause and Motion to Dismiss Habeas Petition for Mootness on March 30, 2006. The court gave Applicant an opportunity to file a Reply to the Government's Response and to respond to the Government's Motion to Dismiss, but Applicant declined to do so. See Minute Orders filed April 4, 2006, May 8, 2006.
I.
Mr. Quacoe is a citizen of Sierra Leone. The documents attached to the Response show that the Immigration and Naturalization Service ("INS") issued Mr. Quacoe a Notice to Appear on July 22, 2002, charging that he was subject to removal because he was an arriving alien present in the United States without a valid immigrant visa, reentry permit, border crossing identification, or other valid entry document. (Respondent's Ex. A-1) Applicant filed an application for asylum which was denied on December 10, 2003 by an Immigration Judge. (Respondent's Exs. A-2, A-3) The Immigration Judge also issued an oral decision that Applicant was subject to removal to Sierra Leone. (Respondent's Ex. A-3) Applicant appealed the removal order to the Board of Immigration Appeals ("BIA"). The BIA upheld the decision and issued a final order of removal on May 10, 2005. ( Id. at Ex. A-4)
The Department of Homeland Security, Immigration and Customs Enforcement ("ICE") took Applicant into custody on June 23, 2005. (Declaration of Kelly Garbiso, ICE Deportation Officer, at ¶ 3) ICE requested travel documents from Sierra Leone on July 6, 2005 to effectuate Applicant's removal. ( Id. at ¶ 4, Respondent's Ex. A-6) The Sierra Leone Embassy notified ICE on July 15, 2005 that it would not issue a travel document for Applicant because it did not believe that Applicant was a citizen of Sierra Leone. (Garbiso Declaration, at ¶ 5, Respondent's Ex. A-7) Sierra Leone had not issued a travel document for Mr. Quacoe as of January 26, 2006, the date Applicant filed his § 2241 Application. ( See Garbiso Declaration, at ¶ 7)
On September 29, 2005, ICE conducted a ninety-day post-order custody review to determine whether Applicant should be released from ICE detention. (Respondent's Ex. A-5, Garbiso Declaration, at ¶ 8) ICE advised Applicant on November 3, 2005 that ICE had decided to continue his detention because Applicant's nationality and identity were still in question. (Respondent's Ex. A-9) ICE conducted a six-month post-order custody review in January 2006 and determined that Applicant should be released from detention on an Order of Supervision. (Respondent's Ex. A-5, Garbiso Declaration, at ¶ 10) On January 27, 2006, Application was released from ICE detention on an Order of Supervision. (Respondent's Ex. A-5, Garbiso Declaration, at ¶ 11, Ex. A-10)
Mr. Quacoe claims in his § 2241 Application that his continued detention violates his statutory rights, as interpreted by the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001) and Clark v. Martinez, 543 U.S. 371 (2005). Applicant asks the court to order the Respondent to release him immediately pending Applicant's removal from the United States.
II.
A. The Removal Statute
Section 1231(a)(6) of Title 8 United States Code provides: "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)."
In Zadvydas v. Davis, 533 U.S. 678, 689, 699 (2001), the Court interpreted § 1231(a)(6) to authorize the Attorney General (now the Secretary) to detain "removable" aliens only as long as "reasonably necessary" to remove them from the country. Id. "[O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized." Id. at 699. The Court further held that six months is the presumptive period during which it is reasonably necessary to detain an alien to effectuate his removal; after that, the alien is eligible for conditional release if he can demonstrate that there is "no significant likelihood of removal in the reasonably foreseeable future." Id. at 701. In Clark v. Martinez, 543 U.S. 371, 386 (2005), the Supreme Court extended the holding in Zadvydas to inadmissible aliens.
B. Mootness
Respondent argues that Mr. Quacoe's § 2241 Application is moot because Applicant has been released from ICE custody.
"The writ of habeas corpus shall not extend to a prisoner unless [h]e is in custody." 28 U.S.C. § 2241(c)(1). The "in custody" requirement is satisfied if the applicant was officially detained at the time the habeas application was filed. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Riley v. INS, 310 F.3d 1253, 1256 (10th Cir. 2002). If the applicant is later released from custody, the crucial question is whether the application continues to present the court with a case or controversy as required under Article III, § 2, of the Constitution. Spencer, 523 U.S. at 7.
A constitutional prerequisite to federal court jurisdiction is that a live case or controversy must be extant at all stages of the proceeding and it is "not enough that the dispute was alive when the suit was filed." McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). A case becomes moot if an event occurs during the pendency of an action that "makes it impossible for the court to grant "any effectual relief." Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotations and citation omitted).
In his § 2241 Application, Mr. Quacoe asks that he be released immediately from ICE detention. Applicant was released from detention on supervised release on January 27, 2006. Although the ICE may detain Applicant in the future if he "wilfully fail[s] to comply with regulations or requirements issued pursuant to section 241(a)(3) [ 8 U.S.C. § 1231(a)(3)]," see 8 U.S.C. § 1253(b), Applicant does not claim to have violated the terms of his supervised release, nor is there any evidence in the record to indicate as much. Any claim of supervised release violations at this time would be purely speculative. 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 [his] release . . . would undermine the presumption of innocence . . . and the rehabilitative focus of the parole system"). A "threatened injury must be `certainly impending' to constitute injury in fact." Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).
Mr. Quacoe's § 2241 Application is thus moot unless he meets one of the exceptions to the mootness doctrine. Riley, 310 F.3d at 1256. The court will not dismiss a case as moot if: (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. Id. at 1257 (collecting cases).
The first and fourth exceptions are clearly inapplicable to Mr. Quacoe.
The second exception only applies when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975); see, also, United States v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir. 2002). Here, the first element of the second exception has not been satisfied. If the ICE resumes detention at some future date, there is no reason to believe detention will be so short in duration as to deny Mr. Quacoe the opportunity to litigate his claims at that time.
Application of the narrow exception of voluntary cessation is more troubling. This exception "traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1 (2001). It "protects plaintiffs from defendants who seek to evade sanction by predictable protestations of repentance and reform." Id. (internal quotation marks and citations omitted). According to Respondent, the ICE began Applicant's six-month post-order custody review process sometime in January 2006. Applicant signed his § 2241 Application on January 17, 2006, and gave it to government officers for mailing that same date. The ICE issued a final decision on Applicant's custody review on January 26, 2006. Accordingly, the government had approximately nine days to consider the fact that Applicant was filing a § 2241 Application in the United States District Court before deciding to release Applicant from detention. Although I am somewhat concerned about the circumstances surrounding Applicant's release, I recommend finding that the record is inadequately developed and therefore cannot support a finding that the narrow exception of voluntary cessation is applicable here. See Riley, 310 F.3d at 1257.
Finally, under the third exception, although the ICE may resume Applicant's detention at a future date, Mr. Quacoe will have a remedy available to him at that time. "The case or controversy requirement of Article III admonishes federal courts to avoid premature adjudication and to abstain from entangling themselves in abstract disagreements." U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999) (internal quotation marks and citations omitted).
Because none of the exceptions to the mootness doctrine are applicable here, I recommend finding that Mr. Quacoe's release from detention moots his challenge to the legality of his extended detention.
III.
For the reasons set forth above, it is
RECOMMENDED that Respondent's Motion to Dismiss Habeas Petition for Mootness, filed March 30, 2006, be GRANTED. It is
FURTHER RECOMMENDED that Applicant Reindolf Quacoe's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed January 26, 2006, be DENIED AS MOOT. It is
FURTHER RECOMMENDED that the § 2241 Application be DISMISSED. Within ten days after being served with a copy of the proposed findings and recommendation, any party may serve and file written objections to the proposed findings and recommendation with the Clerk of the United States District Court for the District of Colorado. The district judge shall make a de novo determination of those portions of the proposed findings or specified recommendation to which objection is made. The district judge may accept, reject, or modify, in whole or in part, the proposed findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Failure to make timely objections to the magistrate judge's recommendation may result in a waiver of de novo review of the recommendation by the district judge and may also waive the right to appeal from a judgment of the district court based on the findings and recommendations of the magistrate judge.