Theagene v. Holder et al

Filing 15

REPORT AND RECOMMENDATIONS re 11 MOTION to Dismiss filed by Eric H Holder, Janet Napolitano, Joe P Young, George Lund, III. IT IS RECOMMENDED that the respondents Motion to Dismiss [doc. 11] be GRANTED and that this petition be DENIED AND DISMISSED WITH PREJUDICE as moot. Objections to R&R due by 7/10/2009. Signed by Magistrate Judge C Michael Hill on 6/22/09. (crt,Roaix, G)

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

E L Y S E E THEAGENE V S. E R I C HOLDER, ET AL.

: : :

D O C K E T NO. 2:09-cv-0810 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 respondents in the above-captioned habeas corpus matter. [doc. 11]. 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, Elysee Theagene, on May 15, 2009 challenging his continued detention in postre m o v a l-o rd e r custody. The petition alleges that petitioner was ordered removed to Haiti in M a rc h , 2001, and that his removal order has become final. The petition further alleges that p e t itio n e r has been in the custody of ICE pursuant to INA § 241 since March 24, 2008. Thus, p e titio n e r claims that he has been detained beyond both the 90 day removal period and the ju ris p ru d e n tia l presumptively reasonable six month removal period in violation of the p rin c ip le s established by the Supreme Court in Court in Zadvydas v. Davis, 533 U.S. 678, 1 2 1 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Accordingly, petitioner requests that this court o rd e r his release from custody.

In response to this petition, the respondents 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 titio n e r was removed from the United States and thus, released from post-removal-order d e te n tio n on May 27, 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. 11] 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 IN 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

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F I N D IN G S AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT COURT. THUS DONE AND SIGNED in Chambers at Lafayette, Louisiana, June 22, 2009.

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