Tong v. Duke

Filing 17

MEMORANDUM AND ORDER granting 16 Respondent's MOTION to Dismiss 1 Petition for Writ of Habeas Corpus. The petition (Doc. # 1) is DISMISSED WITHOUT PREJUDICE as moot. All other pending motions are denied as moot. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TAN VAN TONG,

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Petitioner,
VS.
ELAINE DUKE,
Respondent.

October 31, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-CV-3589

MEMORANDUM AND ORDER
Petitioner Tan Van Tong was a detainee in the custody of the United States Immigration
and Customs Enforcement (“ICE”). Tong filed a petition for a writ of habeas corpus challenging
his detention. Respondent filed a motion to dismiss the petition as moot. Petitioner did not
respond. Having considered the motion and the attached exhibit, the Court concludes that the
respondent’s motion should be granted.
I.

Background
The facts leading to Tong’s detention are not relevant to the disposition of this case.

Tong states, and respondent does not dispute, that he was in custody for more than six months
following the final entry of a removal order. Tong contends that this prolonged detention
violates his statutory and constitutional rights.
II.

Standard of Review
Respondent argues that the petition is subject to dismissal under Fed.R.Civ.P. 12(b)(1).

Rule 12(b)(1) provides for dismissal, in relevant part, when the court lacks subject matter
jurisdiction.
It is beyond dispute that

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“Without jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of announcing
the fact and dismissing the cause.” Ex Parte McCardle, 7 Wall.
506, 514 (1868).
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). The petitioner bears the
burden of proving by a preponderance of the evidence that this Court has jurisdiction to hear his
claims. Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
III.

Analysis
Respondent argues that the Court lacks jurisdiction because Tong has been released from

custody, rendering his petition moot. Respondent attaches to her motion to dismiss copies of
documents demonstrating that Tong was released from ICE custody on April 10, 2018. See
Respondent’s Motion to Dismiss, Exh. 1. Because Tong is no longer in custody, there is no
relief that this Court can grant regarding his petition.
“Under Article III of the Constitution this Court may only adjudicate actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “Mootness has two aspects: ‘when the
issues presented are no longer “live” or the parties lack a legally cognizable interest in the
outcome.’” United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting
Powell v. McCormack, 395 U.S. 486, 496(1969)). “If a dispute has been resolved or if it has
evanesced because of changed circumstances, including the passage of time, it is considered
moot. With the designation of mootness comes the concomitant designation of nonjusticiability.” American Med. Ass'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988)(citations
omitted). Because Tong’s petition no longer presents a justiciable claim, it must be dismissed as
moot.

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IV.

Order
For the foregoing reasons, it is ORDERED that Respondent’s motion to dismiss (Doc. #

16) is GRANTED. The petition (Doc. # 1) is DISMISSED WITHOUT PREJUDICE as moot.
All other pending motions are denied as moot.
It is so ORDERED.
SIGNED on this 31st day of October, 2018.
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Kenneth M. Hoyt
United States District Judge

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