United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
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.
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. (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.)
November 16, 2017, Respondent filed his Response to
Nogues's Petition. (Doc. 10.)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
Whether Nogues's Petition is Moot
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)).
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
Leave to Appeal in Forma Pauperis
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
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,
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, ...