Sheikh v. United States of America Immigration Customs Enforcement
Filing
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MEMORANDUM AND ORDER - Respondents' first Motion to Dismiss (filing no. 4 ) is denied as moot. Respondents shall have until March 24, 2014, to supplement the record with sufficient evidence to show that Petitioner is no longer in custody. Th e Clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 24, 2014: Check for supplement. Petitioner shall have until April 19, 2014, to file a response to Respondents' Second Motion to Dismiss. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALI AHMED SHEIKH,
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Petitioner,
v.
UNITED STATES OF AMERICA
IMMIGRATION CUSTOMS
ENFORCEMENT,
Respondent.
8:13CV184
MEMORANDUM
AND ORDER
This matter is before the court on Respondents’ Second Motion to Dismiss.
(Filing No. 7.) As set forth below, the court will deny Respondents’ first Motion to
Dismiss (filing no. 4) as moot and provide Respondents with the opportunity to submit
additional evidence in support of their Second Motion to Dismiss.
I.
BACKGROUND
On September 30, 2013, Respondents filed a Motion to Dismiss along with a
Brief and Index of Evidence in Support. (Filing Nos. 4, 5, and 6.) Petitioner did not
respond. (See Docket Sheet.) On February 20, 2014, Respondents filed a Second
Motion to Dismiss. (Filing No. 7.) In this Motion, Respondents state that on or about
October 22, 2013, Petitioner was released from custody after U.S. Immigration and
Customs Enforcement determined that their efforts to remove Petitioner would be
unsuccessful. (Id.)
II.
ANALYSIS
Individuals seeking release from the custody of the United States through a
habeas corpus petition must be “in custody.” 28 U.S.C. § 2241(c). An individual
satisfies the “in custody” requirement if he is incarcerated “at the time the petition was
filed” and a petition for a writ of habeas corpus does not become moot simply because
the petitioner fulfills his sentence. Spencer v. Kemna, 523 U.S. 1, 7 (1998). However,
if a petitioner is released from custody while his habeas corpus petition is pending, the
petition is moot unless “some concrete and continuing injury other than the nowended incarceration . . . some ‘collateral consequence’” exists. Id. (citation omitted).
Such “collateral consequences” are required in order to satisfy the jurisdictional “case
or controversy requirement” for federal judicial proceedings. Id. Stated another way,
the petitioner “must have suffered, or be threatened with, an actual injury traceable to
the defendant and likely to be redressed by a favorable judicial decision,” or his
petition is moot. Id. (quotation omitted).
Although Petitioner filed his Petition while he was still in custody, Respondents
state that he has been released and his Petition is moot. (Filing No. 7.) However,
Respondents have not provided any evidence showing that such a release actually
occurred. (See Docket Sheet.) Accordingly,
IT IS THEREFORE ORDERED that:
1.
Respondents’ first Motion to Dismiss (filing no. 4) is denied as moot.
2.
Respondents shall have until March 24, 2014, to supplement the record
with sufficient evidence to show that Petitioner is no longer in custody.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: March 24, 2014: Check for supplement.
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4.
Petitioner shall have until April 19, 2014, to file a response to
Respondents’ Second Motion to Dismiss.
DATED this 26th day of February, 2014.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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