Prasad-Shrmanjadun v. Secretary of the Department of Homeland Security et al

Filing 14

REPORT AND RECOMMENDATION: It is RECOMMENDED that Respondent's Motion to Dismiss and Supplemental Motion to Dismiss (ECF Nos. 9, 12) be GRANTED and that this action be DISMISSED, as moot. Objections to R&R due by 4/24/2018. Signed by Magistrate Judge Chelsey M. Vascura on 4/10/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PRASAD SHRMANJADUN BHIM,
Case No. 2:17-cv-765
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney
General of the United States of America,
United States Department of Justice, et al.,
Respondents.

REPORT AND RECOMMENDATION
Petitioner, a citizen of Nepal, filed this Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 seeking immediate release from the custody of Immigration and Customs
Enforcement (“ICE”). Petitioner asserts that he is being illegally detained under Zadvydas v.
Davis, 533 U.S. 678 (2001). Petitioner was, at the time he filed this action, incarcerated at the
Morrow County Correctional Facility pursuant to a September 2016 order of removal. However,
the record now reflects that, on October 23, 2017, ICE removed Petitioner from the United States
to Nepal. See Declaration of Amanda Glassburn (ECF No. 12-1, PAGEID # 69); Warrant of
Removal/Deportation (ECF No. 12-2, PAGEID # 71-72.) Therefore, the Petitioner is no longer
in the custody of ICE or in the United States.
It is well established that federal courts may only adjudicate live cases or controversies.
Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). Consequently, federal
courts lack jurisdiction to consider a case when it has “‘lost its character as a present, live
controversy’ and thereby becomes moot.” Demis v. Sniezek, 558 F.3d 508 (6th Cir. 2009)
(quoting Hall, 396 U.S. at 48). “Simply stated, a case is moot when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (quoting Int'l
Union v. Dana Corp., 697 F.2d 718, 720–21 (6th Cir. 1983)).
“Several courts have determined that where an alien is released from ICE custody
pending removal from the United States, ‘his petition for relief under Zavydas is moot.’” Labor
v. Ice, Immigration, No. 2:14-cv-200, 2014 WL 3456946, at *1 (S.D. Ohio July 10, 2014)
(quoting Patel v. Streiff, 2008 WL 748396, *2 (S.D. Ala. Mar.18, 2008) (internal quotation
omitted) (dismissing habeas corpus petition as moot upon the petitioner’s removal from the
United States); see also Wu Wei Tong v. Attorney General, No. 2:17-cv-1007, 2017 WL 6497065
(S.D. Ohio Dec. 19, 2017) (same) (citations omitted).
Therefore, it is RECOMMENDED that Respondent’s Motion to Dismiss and
Supplemental Motion to Dismiss (ECF Nos. 9, 12) be GRANTED and that this action be
DISMISSED, as moot.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or
in part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report

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and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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