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Nogues v. Gartland

United States District Court, S.D. Georgia, Waycross Division

January 22, 2018

EUGENIO DIAZ NOGUES, Petitioner,
v.
PATRICK GARTLAND, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Eugenio Diaz Nogues (“Nogues”), who was formerly housed at the Immigration and Customs Enforcement (“ICE”) Processing Center in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 10.) For the reasons set forth below, I RECOMMEND that the Court DISMISS as moot Nogues's Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Nogues in forma pauperis status on appeal.

         BACKGROUND

         Nogues filed his Petition on October 10, 2017. (Doc. 1.) At the time of his Petition, Nogues was in custody as the Folkston ICE Processing Center in Folkston, Georgia. (Id. at p. 1.) Nogues's Petition is less than clear. However, he appears to argue that, despite an Immigration Judge ordering him to be removed or deported, he was not deported within the ninety (90) day period following that order.[1] (Id. at p. 6.) Nogues asserted that he had been detained for 218 days, and he requested that this Court order ICE to release him from its custody. (Id. at p. 8.)

         On November 16, 2017, Respondent filed his Response to Nogues's Petition. (Doc. 10.)[2]Therein, Respondent explains that Nogues was released from ICE custody on November 14, 2017. (Id. at p. 1.) Respondent attached a release notification evidencing this release. (Doc. 10-1.) Thus, Respondent asserts Nogues's request for release from ICE custody renders his Petition moot, and his Petition should be dismissed.

         DISCUSSION

         I. Whether Nogues's Petition is Moot

         Article III of the Constitution “extends the jurisdiction of federal courts to only “‘Cases' and ‘Controversies.'” Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This “case-or-controversy restriction imposes” what is “generally referred to as ‘justiciability' limitations.” Id. There are “three strands of justiciability doctrine-standing, ripeness, and mootness-that go to the heart of the Article III case or controversy requirement.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted). With regard During that period, the Attorney General must detain the alien. 8 U.S.C. §1231(a)(2). Additionally, the Attorney General may detain certain categories of aliens beyond the 90 day removal period. 8 U.S.C. § 1231(a)(6). However, any continued detention under that statute must not be indefinite. See Zadyvdas v. Davis, 533 U.S. 678, 701 (2001) (construing 8 U.S.C. § 1231(a)(6) to contain a “reasonable time” limitation in which the Attorney General may detain aliens beyond the 90 day period). The United States Supreme Court has found that six months is a presumptively reasonable period to detain a removable alien awaiting deportation. Id. However, this does not entail that every alien detained longer than six months must be released. Id. Rather, to state a claim for habeas relief under Zadvydas, an alien must (1) demonstrate that he has been detained for more than six months after a final order of removal; and (2) “provide evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). If a petitioner makes these showings, the burden shifts to the Government to respond with evidence to rebut that showing. Zadvydas, 533 U.S. at 701. to the mootness strand, the United States Supreme Court has made clear that “a federal court has no authority ‘to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal citation omitted). Accordingly, “[a]n issue is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted). Questions of justiciability are not answered “simply by looking to the state of affairs at the time the suit was filed. Rather, the Supreme Court has made clear that the controversy ‘must be extant at all stages of review, not merely at the time the complaint is filed.'” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189-90 (11th Cir. 2011) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).

         In his Petition, Nogues only requests release from ICE's custody. As noted above, Nogues has since been granted this release, (doc. 10-1), and there is no longer a “live controversy” over which the Court can give meaningful relief. Friends of Everglades, 570 F.3d at 1216. Accordingly, the Court should DISMISS as moot Nogues's Petition for Writ of Habeas Corpus.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Nogues leave to appeal in forma pauperis. Though Nogues has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is filed”).

         An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).

         Given the above analysis of Nogues's Petition and Respondent's Response, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, ...


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