Louismar v. Holder et al

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Hughe Louismar. It is recommended that the petition be dismissed because petitioner is no longer in custody. Objections to R&R due by 7/21/2009. Signed by Magistrate Judge William E. Cassady on 7/1/09. Copy mailed to Petitioner. (tgw)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION HUGHE LOUISMAR, Petitioner, vs. ERIC HOLDER, Attorney General of the United States, et al., Respondents. REPORT AND RECOMMENDATION On April 20, 2009, Hughe Louismar, a native and citizen of Haiti ordered removed from the United States, petitioned this Court for habeas relief pursuant to 28 U.S.C. 2241. This matter has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 72.1(c). It is recommended that the instant petition be dismissed because petitioner is no longer in the custody of the United States Immigration and Customs Enforcement ("ICE") arm of the United States Department of Homeland Security, having been repatriated to his native Haiti. FINDINGS OF FACT 1. Louismar, a native and citizen of Haiti, applied for admission : : : : : CA 09-0221-WS-C into the United States on January 24, 2002 at JFK International Airport in New York as a returning Legal Permanent Resident. (See Doc. 1, January 5, 2009 Decision to Continue Detention) Louismar was originally ordered removed from the United States on October 28, 2005; this order was made final on November 21, 2008, following the decision of the Board of Immigration Appeals dismissing petitioner's appeal. (See Doc. 1, March 3, 2009 Decision to Continue Detention) Petitioner was taken into ICE custody on August 23, 2008. (Doc. 1, January 5, 2009 Decision to Continue Detention, at 1) 2. Petitioner's primary argument, in his habeas petition filed on April 20, 2009, was that his continued custody by ICE violated the provisions of 8 U.S.C. 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). (See Doc. 1, at 4-5)1 Petitioner sought immediate release from custody and an order from this Court directing the respondents to desist from any further unlawful detention of his person. (See id. at 7) 3. Louismar was removed to Haiti on June 10, 2009, on a special In Zadvydas, the Supreme Court held that the post-removal-period detention statute, 8 U.S.C. 1231, "read in light of the Constitution's demands, limits an alien's postremoval-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." 533 U.S. at 689, 121 S.Ct. at 2498. 2 1 chartered flight. (See Doc. 8, Attachment; Doc. 9, Declaration of Jacques T. Metoyer, at 4 & 5 ("Mr. Louismar was removed on a chartered flight to Haiti on June 10, 2009. [] On June 10, 2009, I was present on the tarmac in Alexandria, LA and witnessed Mr. Lambert (sic)2 board the plane and the plane depart for Haiti.")) CONCLUSIONS OF LAW 1. "In reviewing a petition for writ of habeas corpus by a detained alien who is subject to a final order of removal, a federal district court, pursuant to the authority of 28 U.S.C. 2241(c)(3), is to gauge whether a particular set of circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal." He v. Gonzales, 2006 WL 1687796, *1 (W.D. La. 2006). Where, as here, a 2241 petitioner has been released from federal custody and repatriated to his native country, thereby garnering the relief sought in filing his habeas corpus petition, the issue becomes whether there is any longer a live case or controversy or, instead, if the petition has become moot. See id. 2. As recognized by the Eleventh Circuit, "Article III of the The declaration by Metoyer obviously contains a mistake and should be read that he was present on the tarmac in Alexandria, Louisiana on June 10, 2009 and witnessed Hughe Louismar board the chartered plane to Haiti. If this is incorrect, the Petitioner may point out the undersigned's error in his objections to Judge Steele. 3 2 Constitution limits the jurisdiction of the federal courts to the consideration of `Cases' and `Controversies.'" Soliman v. United States ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002) (citation omitted); see also Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (same). Moreover, "[t]he doctrine of mootness derives directly from the case or controversy limitation because `an action that is moot cannot be characterized as an active case or controversy.'" Soliman, 296 F.3d at 1242. As this Court has explained, "[p]ut another way, `a case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.'" Therefore, "[i]f events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed." In fact. "dismissal is required because mootness is jurisdictional." Id. (internal citations omitted). 3. Several district courts, in addition to this Court, have determined that once a 2241 petitioner has been removed from the United States and deported to his native country his petition seeking release from detention and ICE custody becomes moot as "there is no longer a live case or controversy as required under Art. 3, 2, cl. 1." Gauchier v. Davis, 2002 WL 975434, *2 (E.D. La. 2002); see Alvarado v. Gonzales, 2007 WL 998524, *2 (W.D. Okla. 2007) ( 2241 petition dismissed as moot because petitioner was deported to 4 his native Honduras); Xing Hai Liu v. Ashcroft, 218 F.Supp.2d 1 (D. Me. 2002) (petition for writ of habeas corpus dismissed as moot because petitioner had been returned to China); Malainak v. Immigration & Naturalization Service, 2002 WL 220061 (N.D. Tex. 2002) ( 2241 petition dismissed as moot because petitioner was removed to his native country of Thailand). 4. This case is indistinguishable from the foregoing cases. Accordingly, this Court finds that Louismar's petition for writ of habeas corpus is now moot because there exists no active case or controversy. This Court can no longer order the federal respondents to immediately release petitioner from custody pending his removal to Haiti, in accordance with the specific request contained in the habeas corpus petition (see Doc. 1, at 7 ("Grant Petitioner a writ of Habeas Corpus directing the Respondents to immediately release Petitioner from custody[.].")), because Louismar has been repatriated to his native Haiti. "Quite simply, `there is nothing for us to remedy, even if we were disposed to do so.'" Soliman, supra, 296 F.3d at 1243, quoting Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 988, 140 L.Ed.2d 43 (1998). Dismissal of the instant petition is required since mootness is jurisdictional.3 The Eleventh Circuit has recognized an exception to the mootness doctrine which the undersigned does not find applicable in the instant case. 5 3 CONCLUSION The Magistrate Judge recommends that Louismar's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. 2241, be DISMISSED as moot. The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge. DONE this the 1st day of July, 2009. s/WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE Although there is an exception to the mootness doctrine when the action being challenged by the lawsuit is capable of being repeated and evading review, we have held that "this exception is `narrow,' and applies only in `exceptional situations.'" In particular, the exception can be invoked only when "(1) there [is] a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration." Simply put, "[t]he remote possibility that an event might recur is not enough to overcome mootness, and even a likely recurrence is insufficient if there would be ample opportunity for review at that time." Soliman, 296 F.3d at 1242-1243 (internal citations omitted; emphasis in original). There is nothing to suggest that Louismar will ever find himself again in the custody of ICE since he has been removed from the United States and returned to his native country of Haiti. Accordingly, the foregoing exception to the mootness doctrine is inapplicable. 6 MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT l. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that: A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. 636(b)(1)(A), by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection. A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed. 2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript. 7

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