Deng v. Kane

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 12 . The Petition (Doc. 1) is DENIED WITHOUT PREJUDICE as moot. IT IS ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied because failure to file timely objections to any factual determinations of the Magistrate Judge is considered a waiver of a party's right to appellate review of those findings of fact. Fed. R. Civ. P. 72. Signed by Chief Judge Roslyn O Silver on 12/1/11. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Fuyin Yin Deng,
Petitioner,

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vs.

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Katrina S. Kane,
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Respondent.
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No. CV-11-249-PHX-ROS (MHB)
ORDER

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Pending before the Court is a report and recommendation (“R&R”) (Doc. 12). For
the reasons below, the R&R will be adopted.
BACKGROUND

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On February 7, 2011, Petitioner filed a petition for writ of habeas corpus (“Petition”).

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Petitioner alleged immigration officials were holding him in detention pending his removal

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to China. On June 6, 2011, Respondent filed a response. On October 21, 2011, the Court

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issued an order to show cause (“OSC”) why this case should not be dismissed as moot

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because Petitioner was no longer in detention. The copy of the OSC mailed to Petitioner was

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returned as undeliverable because Petitioner was not in custody. On October 31, 2011, the

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R&R recommended the case should be dismissed without prejudice because it is moot.

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Petitioner did not file any objections to the R&R. On November 23, 2011, Respondent filed

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a notice suggesting the case was moot because Petitioner was removed from the United

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States on or about June 9, 2011.

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ANALYSIS

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A district court “must make a de novo determination of those portions of the report

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. . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). A court

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need review only those portions objected to by a party, meaning a court can adopt without

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further review all unobjected to portions. See United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003).

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The R&R recommends the case be dismissed as moot. The Court will adopt the R&R
in full.
IT IS ORDERED the Report and Recommendation (Doc. 12) is ADOPTED IN
FULL. The Petition (Doc. 1) is DENIED WITHOUT PREJUDICE as moot.

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IT IS ORDERED a Certificate of Appealability and leave to proceed in forma

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pauperis on appeal is denied because failure to file timely objections to any factual

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determinations of the Magistrate Judge is considered a waiver of a party’s right to appellate

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review of those findings of fact. Fed. R. Civ. P. 72.

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DATED this 1st day of December, 2011.

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