Anderson v. Mukasey et al

Filing 25

REPORT AND RECOMMENDATIONS re 21 MOTION to Dismiss filed by Michael Chertoff, Michael Mukasey, Michael J Pitts, Ernesto Velasco, Adrian Ramirez. IT IS RECOMMENDED that the respondents Motion to Dismiss [doc. 21] be GRANTED and that this petition be DENIED AND DISMISSED WITH PREJUDICE as MOOT. Objections to R&R due by 7/20/2009. Signed by Magistrate Judge C Michael Hill on 7/1/09. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA

D A V I D RAFAEL ANDERSON, SR. V S. M I C H A E L MUKASEY, ET AL.

: : :

D O C K E T NO. 2:09-cv-0711 S e c tio n P J U D G E MELANCON M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION C u rre n tly before the court is a Motion to Dismiss filed on behalf of the respondent in th e above-captioned habeas corpus matter. [doc. 21]. This matter has been referred to the u n d e rs ig n e d magistrate judge for review, report, and recommendation in accordance with 28 U .S .C . § 636(b)(1)(B). A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 was filed by pro s e petitioner, David Rafael Anderson, Sr., in the Southern District of Texas on December 31, 2 0 0 8 , and transferred to this court on April 23, 2009, challenging his continued detention in p o s t-re m o v a l-o rd e r custody. The petition alleges that petitioner, a native of Honduras, was o rd e re d removed on October 17, 1993, and that his removal order has become final. The p e titio n further alleges that petitioner has been in the custody of ICE pursuant to INA § 241 s in c e April 1, 2006. Thus, petitioner claims that he has been detained beyond both the 90 day re m o v a l period and the jurisprudential presumptively reasonable six month removal period in violation of the principles established by the Supreme Court in Court in Zadvydas v. D a v is, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Accordingly, petitioner re q u e s ts that this court order his release from custody.

In response to this petition, the respondent filed the instant Motion to Dismiss. In s u p p o rt of this motion, the government presents documentation which establishes that the p e t itio n e r was released from post-removal-order detention pursuant to an Order of Release o n his own recognizance on June 11, 2009. See Government Exhibit A. A t the time that this petition was filed, Petitioner was in detention pursuant to the sta tu to ry authority of § 241 of the Immigration and Nationality Act (INA), codified at 8 U .S .C . § 1231, and he sought to have the court review his post-removal-order detention. H o w e v e r, because the petitioner is no longer in custody, his challenge to his post-removalo rd e r detention is now moot and should be dismissed. For this reason, I T IS RECOMMENDED that the respondent's Motion to Dismiss [doc. 21] be G R A N T E D and that this petition be DENIED AND DISMISSED WITH PREJUDICE a s MOOT. U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C), the parties have ten (10) business d ays from receipt of this Report and Recommendation to file any objections with the Clerk o f Court. Timely objections will be considered by the district judge prior to a final ruling. F A I L U R E TO FILE WRITTEN OBJECTIONS TO THE PROPOSED F I N D IN G S AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN T E N (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN A G G R I E V E D PARTY FROM ATTACKING ON APPEAL, EXCEPT UPON G R O U N D S OF PLAIN ERROR, THE UNOBJECTED-TO PROPOSED FACTUAL

2

F I N D IN G S AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT COURT. THUS DONE AND SIGNED in Chambers at Lafayette, Louisiana, July 1, 2009.

3