Situ v. Beers, et al.

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 04/03/14 ORDERING that the clerk of the court randomly assign this case to a District Judge. U.S. District Judge Kimberly J. Mueller randomly assigned to this action. Also, RECOMMENDING that respondent's motion to dismiss 7 be granted. MOTION to DISMISS 7 referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JIN JIE SITU,

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Petitioner,

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No. 2:13-cv-02617 AC P

v.

ORDER AND FINDINGS AND
RECOMMENDATION

RAND BEERS, et al.,

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Respondents.

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On December 18, 2013, petitioner Jin Jie Situ, a detainee in the custody of the Department

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of Homeland Security’s Bureau of Immigration and Customs Enforcement (“ICE”), proceeding

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pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent filed a

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motion to dismiss on January 13, 2014, arguing that the petition was mooted by petitioner’s

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release from detention on January 9, 2014. See ECF Nos. 7, 7-1 at 1 (Order of Supervised

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Release). Petitioner did not file an opposition to the motion, and the time period in which to do

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so has expired. Therefore, the motion is deemed submitted. For the reasons that follow, the

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undersigned recommends granting the motion.

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I.

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Factual and Procedural Background
According to the allegations in the habeas application, petitioner is a native citizen of

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China and was ordered “deported/excluded/removed” from the United States on May 29, 2012 by

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an order from the Executive Office of Immigration Review. ECF No. 1 at 2. Petitioner’s appeal

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of the deportation order was denied by the Board of Immigration Appeals on October 11, 2012,
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thus rendering the administrative decision final. Id. at 3. Petitioner contends that he has been

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detained beyond the mandatory 90 day period pursuant to 8 U.S.C. § 1231(a)(1)(A)1 of the

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Immigration and Nationality Act and that he may now be placed on supervised release pursuant to

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8 U.S.C. § 1231(a)(6). ECF No. 1 at 3. He further argues that the presumptively reasonable six

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month period of detention pending deportation announced in Zadvydas v. Davis, 533 U.S. 678

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(2001), has already passed. Id. (finding that “the [post-removal-period detention] statute, read in

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light of the Constitution's demands, limits an alien's post-removal-period detention to a period

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reasonably necessary to bring about that alien's removal from the United States. It does not

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permit indefinite detention.”). Therefore, petitioner alleges that his continued detention is not

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reasonable because there is no significant likelihood of removal to China in the reasonably

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foreseeable future. Id. at 3-4. As grounds for relief, petitioner argues that his ongoing detention

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violates his substantive and procedural due process rights as well the statutory provision for

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detention of removable aliens under 8 U.S.C. § 1231(a)(6). ECF No. 1 at 4-5. In addition, he

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asserts that his ongoing confinement is punitive in nature and therefore violates his due process

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rights. Id. By way of relief, petitioner requests his immediate release from custody on supervised

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release pursuant to 8 U.S.C. § 1231(a)(6). Id. at 3.

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II.

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Motion to Dismiss
In their motion to dismiss, respondents argue that the present habeas petition is moot in

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light of petitioner’s release from confinement on January 9, 2014. See ECF No. 7 at 1. As proof

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thereof, respondents submitted petitioner’s order of supervised release. ECF No. 7-1 at 1. As a

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basis to dismiss the pending habeas petition, respondents cite Picrin–Peron v. Rison, 930 F.2d

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773 (9th Cir.1991), for the proposition that petitioner’s release from custody after the filing of the

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present habeas petition has rendered the case moot. See ECF No. 7 at 1.

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III.

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Legal Principles Governing Mootness
28 U.S.C. § 2241, like other federal habeas statutes, requires that a petitioner be in

custody as a jurisdictional prerequisite. See 28 U.S.C. § 2241(c)(1) (stating that “[t]he writ of
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Under this section, an alien may be detained for a period of 90 days in order to accomplish that
alien’s removal from the United States.
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habeas corpus shall not extend to a prisoner unless [h]e is in custody….”). However, the fact that

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a petitioner is released from custody does not automatically render a habeas case moot where the

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custody requirement was met at its inception. The dispositive question for mootness purposes is

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whether a justiciable case or controversy remains. Lewis v. Continental Bank Corp., 494 U.S.

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472, 477-78 (1990) (Article III “case or controversy” requirement applies throughout all stages of

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judicial proceedings). The “case or controversy” requirement is satisfied where the plaintiff

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“‘[has] suffered, or [is] threatened with, an actual injury traceable to the defendant and likely to

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be redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citation

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omitted). In a habeas case challenging a criminal conviction, this requirement remains satisfied

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even after a petitioner is released from custody. That is because the conviction itself has

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presumed collateral consequences that constitute an injury and that remain redressable by a

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favorable decision invalidating the conviction. Id.; see also Chacon v. Wood, 36 F.3d 1459, 1463

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(9th Cir. 1994).

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When changed circumstances means that the habeas court is without power to grant the

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relief requested, however, a case is moot. See Lane v. Williams, 455 U.S. 624, 632 (1982). Such

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is the case where, for example, a habeas prisoner seeking relief from a term of parole has

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completed that term, id., or where an immigration detainee seeking release to immigration parole

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has obtained release, Picrin–Peron, 930 F.2d 773. In cases which do not seek to invalidate a

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criminal conviction, the presumption of collateral consequences does not apply. See Spencer,

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523 U.S. at 7. The dispositive question for mootness purposes is whether the relief requested can

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still be provided. Id.; Lane, 455 U.S. at 632.

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IV.

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Analysis
This case is governed squarely by Picrin-Peron, supra, in which the Ninth Circuit Court of

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Appeal dismissed an appeal of a 28 U.S.C. § 2241 petition as moot because the immigration

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detainee had been released. 930 F.2d at 776. Since the writ of habeas corpus is used “to secure

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immediate release from illegal physical custody,” and such release was the only remedy which

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the immigration detainee requested, there was no further relief that the court could provide. Id. at

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775-776 (citing Preisser v. Rodriguez, 411 U.S. 475, 484-85 (1973)). Likewise, in the present
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case, the petition seeks only release and does not implicate the validity of the underlying

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immigration orders. Because petitioner he has already been released under supervision, there is

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no effective relief remaining for the court to provide. See ECF No. 7-1 at 1. Accordingly, the

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undersigned recommends granting the motion to dismiss based on mootness.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this
case to a District Court Judge.
IT IS FURTHER RECOMMENDED that respondent’s motion to dismiss (ECF No. 7) be
granted.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 3, 2014

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