Traore v. U.S. Attorney General et al

Filing 9

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS granting 8 MOTION to Dismiss. Objections to R&R due by 11/13/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/27/2017. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CHEICKNE TRAORE, Case No. 2:17-cv-874 Chief Judge Edmund A. Sargus, Jr. Magistrate Judge Kimberly A. Jolson Petitioner, v. U.S. ATTORNEY GENERAL, et al., Respondents. REPORT AND RECOMMENDATION This case is before the Court to consider Respondent’s Motion to Dismiss for Lack of Jurisdiction. (Doc. 8). For the reasons that follow, the Court RECOMMENDS that the Motion be GRANTED, and that this action be DISMISSED. I. BACKGROUND On October 2, 2017, Petitioner, a native and citizen of Mali, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, explaining that he had been in the custody of U.S. Immigration and Customs Enforcement (“ICE”) at the Morrow County Jail since March 23, 2017, when he was released from prison after serving two years. (Doc. 1 at 1–2, 5). Petitioner indicated that he was willing to return to Mali, but objected to his deportation to any other country. (Id. at 8). Petitioner argued that the length of his detention pending removal contravened 8 U.S.C. § 1231(a)(6) (Count I), and was in violation of his substantive and procedural due process rights (Counts II and III). (Id. at 9–10 (citing Zadvydas v. Davis, 533 U.S. 678 (2001)). Thus, Petitioner requested that this Court grant him a writ of habeas corpus directing Respondents to immediately release him from custody. (Id. at 11). This Court ordered Respondents to show cause why the writ should not be granted (Doc. 5). The Clerk sent a copy of this Court’s Order to Petitioner at the Morrow County Jail, but it was returned as undeliverable on October 23, 2017. (See Docs. 6, 7). On October 26, 2017, Respondents filed a Motion to Dismiss for Lack of Jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 8). Attached to Respondents’ Motion is a declaration from ICE Deportation Officer Amanda Glassburn, indicating that Petitioner was removed from United States to Mali on October 3, 2017. (Doc. 8-1 at ¶ 5). II. DISCUSSION It is well established that federal courts may adjudicate only live cases or controversies. Hall v. Beals, 396 U.S. 45, 48 (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, 512 (6th Cir. 2009) (internal quotation and citation omitted). “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.” Patel v. Streiff, No. 06-00584, 2008 WL 748396, *2 (S.D. Ala. Mar. 18, 2008) (internal quotations and citation omitted); see also Dubois v. Hendricks, No. 14-3861, 2014 WL 4105482, at *2 (D.N.J. Aug. 18, 2014) (finding petition moot because there was no longer a live case or controversy); Emeni v. Holder, No. 6:13-cv-6404, 2014 WL 347799, at *3 (W.D.N.Y. Jan. 31, 2014) (same); Rojas v. Lowe, No. 1:cv-13-871, 2013 WL 5876851, at *3 (M.D. Pa. Oct. 30, 2013) (same). Based on the foregoing, the Court finds that the petition no longer reflects a present, live controversy, and it is, therefore, MOOT. Consequently, the Court RECOMMENDS that Respondents’ Motion to Dismiss (Doc. 8) be GRANTED, and that this case be DISMISSED. III. CONCLUSION Based on the foregoing, the Court RECOMMENDS that the Motion to Dismiss be GRANTED (Doc. 8), and that this action be DISMISSED as MOOT. IV. 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 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). IT IS SO ORDERED. Date: October 27, 2017 /s/ Kimberly A. Jolson KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

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