Zhao v. Wright

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS as moot Zhao's 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, DIRECT the Clerk to CLOSE this case, and DENY Zhao leave to proceed in for ma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/12/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/29/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

WEIDONG ZHAO,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-51

v.
PATRICK GARTLAND,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Weidong Zhao (“Zhao”), who was formerly housed at the Immigration and
Customs Enforcement (“ICE”) Processing Center in Folkston, Georgia, filed a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response.
(Doc. 9.) For the reasons which follow, I RECOMMEND that the Court DISMISS as moot
Zhao’s Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Zhao in forma
pauperis status on appeal.
BACKGROUND
Zhao filed his Petition on May 10, 2017. (Doc. 1.) Zhao asserts he unsuccessfully
attempted to enter the United States as an émigré. (Id.) He states he has been in ICE’s custody
as an alien subject to a final order of removal since April 8, 2016. He claims he has not been
deported within the ninety (90) day period prescribed by law. 1 Zhao challenges his detention by

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Under the Immigration and Nationality Act, “when an alien is ordered removed, the Attorney General
shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. §1231(a)(1)(A).
During that period, the Attorney General must detain the alien. 8 U.S.C. §1231(a)(2). Additionally, the
Attorney General may detain certain categories of aliens beyond the 90 day removal period. 8 U.S.C. §
1231(a)(6). However, any continued detention under that statute must not be indefinite. See Zadyvdas v.
Davis, 533 U.S. 678, 701 (2001) (construing 8 U.S.C. § 1231(a)(6) to contain a “reasonable time”

claiming he is cooperating with ICE for his removal, is not likely to be removed in the
reasonably foreseeable future, and is not a threat to the community. (Id. at pp. 6–7.) Thus, Zhao
requested release from ICE custody.
On July 26, 2017, Respondent filed his Response to Zhao’s Petition.

Respondent

maintains Zhao was released from ICE’s custody, pending removal under terms of supervision,
on July 19, 2017. (Doc. 9, p. 1.) Indeed, the Court’s show cause Order was returned to the
Court as undeliverable to Zhao because he is no longer at ICE’s processing center in Folkston.
(Doc. 8.) Thus, Respondent asserts Zhao’s release from ICE custody renders his Petition moot,
and his Petition should be dismissed.
DISCUSSION
I.

Whether Zhao’s Petition is Moot
Article III of the Constitution “extends the jurisdiction of federal courts to only ‘Cases’

and ‘Controversies.’” Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This “caseor-controversy restriction imposes” what is “generally referred to as ‘justiciability’ limitations.”
Id. There are “three strands of justiciability doctrine—standing, ripeness, and mootness—that go
to the heart of the Article III case or controversy requirement.” Harrell v. The Fla. Bar, 608
F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted). With regard
to the mootness strand, the United States Supreme Court has made clear that “a federal court has
no authority ‘to give opinions upon moot questions or abstract propositions, or to declare
limitation in which the Attorney General may detain aliens beyond the 90 day period). The United States
Supreme Court has found that six months is a presumptively reasonable period to detain a removable
alien awaiting deportation. Id. However, this does not entail that every alien detained longer than six
months must be released. Id. Rather, to state a claim for habeas relief under Zadvydas, an alien must (1)
demonstrate that he has been detained for more than six months after a final order of removal; and (2)
“provide evidence of a good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). If a
petitioner makes these showings, the burden shifts to the Government to respond with evidence to rebut
that showing. Zadvydas, 533 U.S. at 701.
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principles or rules of law which cannot affect the matter in issue in the case before it.’” Church
of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal citation omitted).
Accordingly, “[a]n issue is moot when it no Zhaoer presents a live controversy with respect to
which the court can give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist.,
570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted).

Questions of

justiciability are not answered “simply by looking to the state of affairs at the time the suit was
filed. Rather, the Supreme Court has made clear that the controversy ‘must be extant at all
stages of review, not merely at the time the complaint is filed.’” Christian Coal. of Fla., Inc. v.
United States, 662 F.3d 1182, 1189–90 (11th Cir. 2011) (quoting Preiser v. Newkirk, 422 U.S.
395, 401 (1975)).
As noted above, Respondent has informed the Court in his Response that Zhao has been
released from ICE’s custody. As Zhao only requests his release from the custody of ICE in his
Petition and he has been released from ICE’s custody, there is no longer a “live controversy”
over which the Court can give meaningful relief. Friends of Everglades, 570 F.3d at 1216.
Accordingly, the Court should DISMISS as moot Zhao’s Petition for Writ of Habeas Corpus.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Zhao leave to appeal in forma pauperis. Though Zhao has,

of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the
Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691

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(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Given the above analysis of Zhao’s Petition and Respondent’s Response, there are no
non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus,
the Court should DENY in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS as moot Zhao’s
Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the
Clerk of Court to CLOSE this case, and DENY Zhao leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.

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Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 29th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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