Ogunbanke v. Nielsen et al

Filing 46

FINDINGS and RECOMMENDATIONS to Grant Respondent's 40 Motion to Dismiss signed by Magistrate Judge Jeremy D. Peterson on 12/12/2020. Fourteen-Day Deadline. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAYO OLUGBOYEGA OGUNBANKE,

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Petitioner,
v.
KIRSTEN NIELSEN, et al.,
Respondent.

Case No. 1:18-cv-00796-NONE-JDP
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS
OBJECTIONS DUE IN FOURTEEN DAYS
ECF No. 40

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Petitioner Tayo Olugboyega Ogunbanke, a former detainee in the custody of the United

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States Bureau of Immigration and Customs Enforcement (“ICE”) proceeding without counsel,

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petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. On September 16,

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2019, petitioner was removed from the United States to Lagos, Nigeria. See ECF Nos. 40-1, 41.

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On October 15, 2019, respondent moved for dismissal of the petition as moot because petitioner

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is no longer in U.S. custody. ECF No. 40. On December 4, 2019, petitioner was served at his last

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known address with an order granting him 30 days to respond to the motion to dismiss. ECF No.

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42. Petitioner has not responded and the time for doing so has passed. Because the petition is

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moot, we grant respondent’s motion to dismiss.

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Background

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In his June 11, 2018 petition, petitioner stated that he had been held for eight months in

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ICE detention without a bond hearing while awaiting removal. ECF No. 1 at 4. He claimed that

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(1) his Fifth Amendment due process rights were violated when the government failed to hold a

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bond hearing in a timely manner, and (2) his Eighth Amendment right to be free from cruel and

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unusual punishment was violated by the government’s denial of bail. Id. at 12-13. Petitioner

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sought either his release while awaiting execution of the removal order, or in the alternative a

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hearing before an immigration judge to determine whether his continued detention was warranted.

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Id. at 13.

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On July 20, 2018, petitioner appeared before an immigration judge for a bond hearing and

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was granted release on a $250,000 bond. ECF Nos. 20 at 2, 20-1 at 8. 1 On September 9, 2018,

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respondents filed an answer to the petition, arguing that the case should be dismissed as moot

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because petitioner’s only relief sought, a bond hearing, had been granted. ECF No. 20 at 9-10.

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On November 5, 2018, petitioner filed a traverse, raising a new argument that he is entitled to a

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waiver of deportation under various provisions of the Immigration and Nationality Act. See ECF

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No. 22 at 4, 7. On September 16, 2019, petitioner was removed from the United States. See ECF

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Nos. 40-1, 41. Respondent now moves to dismiss the petition as moot. ECF No. 40.

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Discussion
The “case-or-controversy requirement of Article III, § 2, of the Constitution subsists

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through all stages of federal judicial proceedings, trial and appellate. . . . The parties must

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continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank

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Corp., 494 U.S. 472, 477-78 (1990) (internal quotations omitted). Therefore, throughout civil

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proceedings, the petitioner “must have suffered, or be threatened with, an actual injury traceable

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to the defendant and likely to be redressed by a favorable judicial decision.” Id. at 477. “[I]f it

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appears that [the court is] without power to grant the relief requested, then the case is moot.”

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Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir. 1991).

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The bond amount was later reduced to $25,000. See ECF No. 33.
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Detention is a “concrete injury.” See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once

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detention has ended “some concrete and continuing injury” other than detention—a “collateral

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consequence”—must exist if a habeas petition is to be maintained. See id. When a habeas

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petitioner challenges his underlying criminal conviction, collateral consequences are presumed to

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exist, even after a petitioner has been released from custody. See id. However, collateral

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consequences are not presumed where a habeas petitioner challenges an action other than a

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criminal conviction. Id. at 12-13. In those cases, the petition is moot once the petitioner is

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released from custody, unless the petitioner can show that he will suffer collateral consequences.

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Id. at 14.

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Here, petitioner initially sought a bond hearing or release. See generally ECF No. 1. He

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was granted a bond hearing, see ECF No. 33, and is no longer in custody of the United States, see

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ECF No. 40-1. Because it is now “impossible for [the] court to grant any effectual relief” on

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petitioner’s claims, they are moot. See Dominguez v. Kernan, 906 F.3d 1127, 1132 (9th Cir.

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2018); Adelabu v. Gonzales, 166 F. App’x. 275, 276 (9th Cir. 2006) (“To the extent [petitioner]

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challenges his detention, we dismiss the appeals as moot because [petitioner] was removed” from

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the United States.).

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Next, petitioner claimed that he was entitled to a waiver of deportation under various

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provisions of the Immigration and Nationality Act. See ECF No. 22 at 4, 7. To the extent

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petitioner seeks review of his final deportation order, jurisdiction does not lie with this court. See

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8 U.S.C. § 1252. The Court of Appeals has exclusive jurisdiction over the review of final orders

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of removal. See Hose v. INS, 180 F.3d 992, 995 (9th Cir. 1999) (The “[Illegal Immigration

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Reform and Immigrant Responsibility Act]’s transitional rules vest exclusive jurisdiction over

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petitions for review of exclusion orders in the courts of appeals, not the district courts.”). To the

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extent that petitioner sought a stay of deportation pending judicial review, his claim is moot

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because he has already been deported. See id. at 996 (“If we construe [petitioner’s] petition as

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one merely seeking a stay, the case is moot because of [her] deportation.”).

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Finally, petitioner did not allege any current or future collateral consequences from his
detention and pending deportation. Because collateral consequences are not presumed in habeas
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cases challenging detention, petitioner had the burden to show he would suffer collateral

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consequences. See Spencer, 523 U.S. at 14. Therefore, because petitioner is no longer in

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detention, and he has failed to allege any collateral consequences of his detention, his petition is

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moot. See id.

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Certificate of Appealability

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A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

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court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases

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requires a district court to issue or deny a certificate of appealability when entering a final order

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adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d

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1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes

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“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

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standard requires the petitioner to show that “jurists of reason could disagree with the district

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court’s resolution of his constitutional claims or that jurists could conclude the issues presented

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are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Here, petitioner has not made a substantial showing of the denial of a constitutional right.

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Thus, the court should decline to issue a certificate of appealability.

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Findings and Recommendations

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For the foregoing reasons, we recommend that the court grant respondent’s motion to

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dismiss, ECF No. 40, and dismiss this case without prejudice. These findings and

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recommendations are submitted to the U.S. district judge presiding over the case under 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of the findings and

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recommendations, the parties may file written objections to the findings and recommendations

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with the court and serve a copy on all parties. Any such objections must be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” The presiding district judge

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will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

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IT IS SO ORDERED.

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Dated:

February 12, 2020
UNITED STATES MAGISTRATE JUDGE

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No. 206.
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