See v. Jennings et al

Filing 27

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AS MOOT. Re: Dkt. No. 1 . Signed by Judge Nathanael Cousins on 4/19/2017. (lmh, COURT STAFF) (Filed on 4/19/2017)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

KORNG SEE,
Petitioner,

United States District Court
Northern District of California

11
v.

12
13

DAVID JENNINGS, et al.,

14

Respondents.

Case No. 17-cv-00225 NC
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AS
MOOT
Re: Dkt. No. 1

15
16

Petitioner Korng See petitioned the Court for a writ of habeas corpus on January 17,

17

2017, challenging his “indefinite detention” in immigration custody. Dkt. No. 1. In a Joint

18

Status Report filed with the Court, the parties reported See had been released from custody

19

on March 16, 2017. Dkt. No. 21 at 3. The Court ordered the parties to file briefing as to

20

whether the case was moot after See’s release. The Court finds that under the current

21

record, the petition for the writ is MOOT, and that no exception to the mootness doctrine

22

applies. Thus, the Court DENIES See’s petition for a writ of habeas corpus.1
Article III, Section 2, of the Constitution requires the existence of a “case” or

23
24

“controversy” through all stages of federal judicial proceedings. This means that,

25

throughout the litigation, the plaintiff “must have suffered, or be threatened with, an actual

26

injury traceable to the defendant and likely to be redressed by a favorable judicial

27
28

1

All parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c).
Dkt. Nos. 8, 11, 20.
Case No. 17-cv-00225 NC

1

decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). A case becomes

2

moot “when the parties lack a legally cognizable interest in the outcome.” Johnson v.

3

Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1020 (9th Cir. 2010) (quotation marks

4

omitted). An exception to mootness is the voluntary cessation doctrine, where the

5

defendant voluntarily ceases engaging in the challenged practice. Friends of the Earth,

6

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citing City of

7

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 199, 203 (1968)). Yet for this exception to

8

apply, the government’s “voluntary cessation ‘must have arisen because of the litigation.’”

9

Sze v. I.N.S., 153 F.3d 1005, 1008 (9th Cir. 1998) (quoting Public Utilities Comm’n of

10

United States District Court
Northern District of California

11

State of Cal. v. F.E.R.C., 100 F.3d 1451, 1460 (9th Cir. 1996)).
Furthermore, “[f]or a habeas petition to continue to present a live controversy after

12

the petitioner’s release or deportation, . . . there must be some remaining ‘collateral

13

consequence’ that may be redressed by success on the petition.” Abdala v. I.N.S., 488 F.3d

14

1061, 1064 (9th Cir. 2007) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). “By contrast,

15

where the grounds for habeas relief will not redress collateral consequences, a habeas

16

petition does not continue to present a live controversy once the petitioner is released from

17

custody.” Id. As relevant here, the Ninth Circuit has found that a petitioner’s “release

18

from detention under an order of supervision ‘moot[ed] his challenge to the legality of his

19

extended detention.’” Id. at 1064-65 (quoting Riley v. INS, 310 F.3d 1253, 1256-57 (10th

20

Cir. 2002) and citing Sayyah v. Farquharson, 382 F.3d 20, 22 n.1 (1st Cir. 2004)).

21

See was taken into ICE custody on June 2, 2016. Dkt. No. 1 at 4. Beginning in

22

September 2016, at each hearing, See unsuccessfully moved to terminate the proceedings

23

against him because of the failure to locate a Lahu Yellow interpreter. Id. at 5. On March

24

15, 2017, the immigration judge again denied See’s motion to terminate the proceedings

25

against him, but administratively closed See’s case because of the failure to find an

26

interpreter. Dkt. No. 21 at 2. The next day, March 16, 2017, ICE voluntarily released See

27

from custody on supervision with conditions. Id. at 3, 4. The government continues to

28

search for a Lahu Yellow interpreter, and will not re-calendar See’s removal proceedings
Case No. 17-cv-00225 NC

2

1
2

until such an interpreter is found. Id. at 4.
The Court finds that under the record as developed thus far, the petition for a writ
does not present a case or controversy now that See has been released from custody and his

4

removal proceeding is administratively closed. The immigration court is still in the

5

process of locating a Lahu Yellow interpreter. Dkt. Nos. 23, 23-1. See was released under

6

supervision with specific conditions, and ICE has the authority to re-detain him if he

7

violates the conditions of his release. See Dkt. No. 25-1. Upon his release under

8

supervision, his petition for a writ has been mooted. Abdala, 488 F.3d at 1064. In

9

addition, See was released the day after the immigration court administratively closed the

10

removal proceedings, substantially lessening the likelihood that See was released because

11

United States District Court
Northern District of California

3

of this litigation rather than as a result of the immigration court’s decision. Sze, 153 F.3d

12

at 1008.

13

The petition for a writ of habeas corpus is therefore DENIED as moot. The clerk

14

will terminate the file. Should circumstances change in the future, See may file a new

15

petition.

16
17

IT IS SO ORDERED.

18
19

Dated: April 19, 2017

20

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

21
22
23
24
25
26
27
28
Case No. 17-cv-00225 NC

3