Offei v. U.S. Attorney General
Filing
22
ORDER of Dismissal. 21 Motion to Dismiss for Lack of Jurisdiction is GRANTED and the Application for a Write of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is DENIED AS MOOT. The Clerk of Court is directed to close this matter, by Magistrate Judge Scott T. Varholak on 4/19/18. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00350-STV
BENJAMIN OFFEI,
Applicant,
v.
U.S. ATTORNEY GENERAL,
Respondent.
______________________________________________________________________
ORDER OF DISMISSAL
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Applicant’s Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (the “Application”) [#1] and Respondent’s Motion
to Dismiss for Lack of Jurisdiction (the “Motion”) [#21]. The parties consented to this
Court’s jurisdiction and an Order of Reference was entered, referring the case to this
Court for all purposes pursuant to D.C.COLO.LCivR 72.2(d) and 28 U.S.C. § 636(c).
[#11, 13, 19] For the following reasons, the Motion is GRANTED and the Application is
DENIED AS MOOT.
I.
Factual Background 1
On February 12, 2018, Applicant filed the Application arguing that he is being
detained by U.S. Immigration and Customs Enforcement (“ICE”) in violation of 8 U.S.C.
1
The relevant background facts are not in dispute and are drawn both from the
Application [#1] and the Declaration of Bret Talbot, a supervisory Detention and
Deportation Officer, submitted by Respondent in support of its Response to the Order to
Show Cause [#20-1].
§ 1231 and the Fifth Amendment. 2 [#1 at 3] On April 17, 2017, Applicant was taken
into ICE custody and detained at to the ICE Detention Center in Aurora, Colorado after
serving time for a criminal conviction in the Jefferson County, Colorado Jail. [Id. at 7;
#20-1, ¶ 2] On July 10, 2017, Applicant notified the Immigration Judge in a written letter
that he did not wish to challenge his removal.
[#1 at 7]
On that same day, the
Immigration Judge ordered Applicant removed. [Id.; #20-1, ¶ 3] Applicant waived all
rights to appeal and thus the removal order was final as of July 10, 2017. [Id.]
At the time the Application was filed, Applicant had been detained for over seven
months after the order of removal was final—beyond the presumptive 90-day removal
period prescribed by 8 U.S.C. § 1231(a)(1)(A). In the Application, Applicant contends
that the “government[’s] efforts to secure travel documents [from the Ghana Consulate]
for [Applicant] has no end in sight” and thus that his removal was not reasonably
foreseeable.
[#1 at 8-9]
Based on these allegations, Applicant contends that his
continued detention violates both the Fifth Amendment and Section 1231, as interpreted
by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 689 (2001). [Id. at 8] The
Application requests that the Court “order [Applicant’s] release” and “put an end to his
detention.” [Id. at 2, 11]
On February 13, 2018, the Court issued an Order to Show Cause ordering
Respondent to show cause why the Application should not be granted. [#7] On March
16, 2018, Respondent filed its Response to the Order to Show Cause (the “Response”).
2
8 U.S.C. § 1231(a)(1)(A) states that “when an alien is ordered removed, the Attorney
General shall remove the alien from the United States within a period of 90 days (. . .
referred to as the ‘removal period’).” The statute authorizes further detention if the
government is unable to remove the alien within the removal period. The Supreme
Court has interpreted the statute to “limit[ ] an alien’s post-removal-period detention to a
period reasonably necessary to bring about that alien’s removal from the United States”
and clarified that it “does not permit indefinite detention.” Zadvydas v. Davis, 533 U.S.
678, 689 (2001). The Supreme Court instructed that “if removal is not reasonably
foreseeable, the [habeas] court should hold continued detention unreasonable and no
longer authorized by statute.” Id. at 699-700.
2
[#20]
With its Response, Respondent submitted the Declaration of Bret Talbot, a
Supervisory Detention and Deportation Officer employed by the ICE Detention Center in
Aurora, Colorado. [#20-1, ¶ 1] Mr. Talbot testified that Applicant “was removed to
Ghana and released from ICE custody upon arrival in Ghana” on March 12, 2018. [Id.
at ¶ 4]
The Response argued that this testimony regarding Applicant’s removal
successfully rebutted Applicant’s contention that his removal was not reasonably
foreseeable and thus the Application should be denied. [#20 at 2] Concurrently with
the Response, Respondent filed a Motion to Dismiss for Lack of Jurisdiction (the
“Motion”), arguing that Applicant’s removal to Ghana mooted Applicant’s habeas action
and thus deprived the Court of jurisdiction. [#21]
Pursuant to the Court’s Order to Show Cause, Applicant was provided
permission to file a Reply “within twenty-one (21) days of Respondent’s answer” to the
Order to Show Cause. [#7] Pursuant to D.C.COLO.LCivR 7.1(d), “[t]he responding
party shall have 21 days after the date of service of a motion . . . in which to file a
response.” More than 30 days have elapsed since the Response and Motion were filed
and Applicant has not filed a response to either the Response or the Motion.
II.
Legal Standard
The United States Constitution limits the jurisdiction of the federal courts to actual
cases or controversies. U.S. CONST. art. III, § 2, cl. 1. Mootness thus “is a threshold
issue because the existence of a live case or controversy is a constitutional prerequisite
to federal court jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d 863, 867
(10th Cir. 1996). To satisfy this requirement, a live case or controversy must exist at all
stages of a proceeding, “and it is therefore not enough that the dispute was alive when
the suit was filed.” Id. An action becomes moot where an event occurs during the
pendency of the action “that makes it impossible for the court to grant any effectual
relief whatever.” Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal
quotation omitted).
3
In the context of habeas petitions, 3 once an applicant has been released from
detention, the “inquiry then becomes whether [the applicant] meets one of the
exceptions to the mootness doctrine.” Riley v. I.N.S., 310 F.3d 1253, 1256 (10th Cir.
2002). The Court “will not dismiss a petition as moot if (1) secondary or ‘collateral’
injuries survive after resolution of the primary injury; (2) the issue is deemed a wrong
capable of repetition yet evading review; (3) the defendant voluntarily ceases an
allegedly illegal practice but is free to resume it at any time; or (4) it is a properly
certified class action suit.” Id. at 1257.
III.
Analysis
Applicant’s Petition challenged only his continued detention by ICE pending his
final removal and the only requested relief was his release from detention pending his
removal to Ghana. [Id. at 2, 11] Applicant did not seek monetary damages or claim any
injury aside from his continued detention.
[Id.]
The undisputed record evidence
establishes that Applicant was deported to Ghana on March 12, 2018 and released from
ICE custody upon arrival in Ghana. [#20-1, ¶ 4] Applicant’s deportation and release
“make[ ] it impossible for the court to grant any effectual relief whatever” to Applicant.
Church of Scientology, 506 U.S. at 12.
Based upon the record before the Court, the Court finds that none of the
exceptions to mootness applies in this case. Because Applicant did not make a claim
for damages in his Application, “he has not demonstrated any secondary or collateral
injury surviving his detention.” Vaupel v. Ortiz, 244 F. App’x 892, 896 (10th Cir. 2007).
Nor is there anything in the record to indicate that the issue is one capable of repetition
yet evading review. To the contrary, the Supreme Court has considered the statutory
and constitutional limits on ICE’s ability to detain individuals pending their removal. See
3
Courts have interpreted the language of 28 U.S.C. § 2241(c) stating that “[t]he writ of
habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody” to require
only that the applicant was in custody at the time the petition was filed. Riley v. I.N.S.,
310 F.3d 1253, 1256 (10th Cir. 2002) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
4
Zadvydas, 533 U.S. 678. Similarly, given that Applicant has now been removed to
Ghana, there is nothing in the record to suggest that Respondent will resume its
detention of Applicant. Courts consistently have found habeas applications moot under
similar circumstances. See, e.g., Vaupel, 244 F. App’x at 896 (collecting cases); Arthur
v. Mukasey, No. 09-cv-00059-MSK-KMT, 2010 WL 234936, *3 (D. Colo., Jan. 19,
2010).
IV.
Conclusion
Accordingly, IT IS ORDERED that the Motion [#21] is GRANTED and Applicant’s
Application [#1] is DENIED AS MOOT. The Clerk of Court is directed to close this
matter.
DATED: April 19, 2018
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?