United States District Court, M.D. Georgia, Columbus Division
ORDER AND RECOMMENDATION OF DISMISSAL 28 U.S.C.
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
before the Court is Petitioner's emergency motion to stay
removal (ECF No. 5) and Respondents' motion to dismiss
Petitioner's application for habeas corpus relief (ECF
Nos. 12, 1). For the reasons explained below it is
recommended that Respondents' motion to dismiss be
granted, Petitioner's application for habeas corpus
relief be dismissed, and Petitioner's emergency motion to
stay removal be denied.
is a native and citizen of Mexico. Pet. Ex. A, at 2, ECF No.
1-6. He was served with a Notice to Appear
(“NTA”) on February 11, 2013, and charged by the
Department of Homeland Security with being removable under
the Immigration and Nationality Act (“INA”)
§ 212(a)(6)(A)(i) as an alien present in the United
States after entering the country without inspection or
parole. Pet. 6. At a hearing before an immigration judge on
June 26, 2013, Petitioner admitted to the NTA's
allegations and conceded removability. Id. At
another hearing on June 6, 2016, Petitioner accepted
voluntary departure. Id. at 7. Petitioner was given
until October 4, 2016, to depart the United States and warned
that if he appealed or moved to reopen proceedings, an
alternate order of removal would take effect. Rabaglia Decl.
1, ECF No. 12-1. On August 1, 2016, Petitioner filed a motion
to reopen, which was denied by an immigration judge on
September 19, 2016. Pet. 7-8. Petitioner appealed the denial
to the Board of Immigration Appeals (“BIA”), and
the BIA dismissed the appeal on March 6, 2017. Id.
at 8. On June 27, 2018, Petitioner filed another motion to
reopen with the BIA. Pet. Ex. B, at 3-14, ECF No. 1-7. In the
second motion to reopen, Petitioner argued that the NTA
served on him in February 2013 did not specify the date and
time of his removal hearing, and was insufficient to vest the
immigration judge with jurisdiction to order his removal.
Id. at 9.
Court received Petitioner's application for habeas corpus
relief (ECF No. 1) on June 29, 2018, and his emergency motion
to stay his removal on July 2, 2018 (ECF No. 5). Respondents
filed a motion to dismiss Petitioner's application for
habeas relief on November 19, 2018, along with a declaration
of Deportation Officer Richard P. Rabaglia showing that
Petitioner was removed from the United States on July 2, 2018
(ECF Nos. 12, 12-1).
Respondents' Motion to Dismiss
have moved to dismiss Petitioner's application for habeas
corpus relief, contending this Court does not have authority
to grant the relief requested. Mot. to Dismiss 2-8, ECF No.
12. The Court agrees and recommends dismissal of the
application. In his application, Petitioner argues because
the NTA initiating his removal proceedings did not include a
specific date and time, the immigration judge's removal
order was void. Pet. 6-12. He seeks a temporary restraining
order and/or stay of his removal while his motion to reopen
and terminate proceedings filed with the BIA remains pending.
Pet. 16. Petitioner also requests an order granting him a
writ of habeas corpus and release from Respondents'
custody. Id. at 15-16.
request that the Court stay his removal has been rendered
moot by his actual removal. Moreover, even had he not been
removed, the Court would not be authorized to grant the
relief requested. The REAL ID Act states:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision ..., a petition for review
filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for
judicial review of an order of removal entered or issued
under any provision of this chapter[.]
8 U.S.C. § 1252 (a)(5). “This provision has
consistently been interpreted by district courts faced with a
motion to stay removal as stripping them of jurisdiction to
provide such relief.” Watson v. Stone, No.
4:13-cv-480(CDL), 2013 WL 6072894, at *2 (M.D. Ga. Nov. 18,
2013); accord Torres-Jurado v. Saudino, No.
18-2115(KM), 2018 WL 2254565, at *2 (D.N.J. May 17, 2018)
(“Judges in districts across the country…have
found this jurisdictional bar applies to applications to stay
removal.”). The Court recommends, therefore, that
Petitioner's request for a temporary restraining order be
Petitioner's application for habeas relief, his removal
from the country renders his application moot. “Article
III of the Constitution limits the jurisdiction of federal
courts to the consideration of ‘Cases' and
‘Controversies.'” Soliman v. United
States, 296 F.3d 1237, 1242 (11th Cir. 2002) (per
curiam) (finding appeal moot where petitioner was removed
from the United States); U.S. Const. art. III, § 2.
“The doctrine of mootness derives directly from the
case or controversy limitation because ‘an action that
is moot cannot be characterized as an active case or
controversy.'” Soliman, 296 F.3d at 1242
(citation omitted). “[P]ut another way, a cause is moot
when it no longer presents a live controversy with respect to
which the court can give meaningful relief.”
Id. (internal quotation and citation omitted).
“Therefore, ‘if events that occur subsequent to
the filing of a lawsuit or an appeal deprive the court of the
ability to give the plaintiff or appellant meaningful relief,
then the case is moot and must be dismissed.'”
Id. (citing Al Najjar v. Ashcroft, 273 F.3d
1330, 1336 (11th Cir. 2001) (per curiam)).
from the United States pursuant to a final order of removal
generally moots an alien's habeas challenge to his
continued detention. See, e.g., Soliman, 296 F.3d at
1243-44. “However, dismissal after [removal] is not
automatic; a habeas petition continues to present a live
controversy after the petitioner's release or deportation
when there is some remaining ‘collateral
consequence' that may be redressed by success on the
petition.” Martinez v. Sessions, No.
2:18-cv-58-FtM-99CM, 2018 WL 1830845, at *1 (M.D. Fla. Mar.
6, 2018) (citing Spencer v. Kemna, 523 U.S. 1, 7-8
his removal from the country and release from detention,
Petitioner argues his petition is not moot because he has
suffered collateral consequences in the form of his
“ability to have his meritorious claims adjudicated by
the [BIA][.]” Pet'r's Status Update 4, ECF No.
The collateral consequences identified by Petitioner,
however, stem not from his detention but from the removal
order. See Ferry v. Gonzales, 457 F.3d 1117, 1132
(10th Cir. 2006) (finding alien's inability to return to
the United States to be a consequence of his removal order,
not his detention); see also Jackson v. Holder, 893
F.Supp.2d 629, 631 (S.D.N.Y. 2012) (denying petitioner's
request for declaratory judgment that his continued detention
was unauthorized by the INA and/or violated the Fifth
Amendment because “any continuing injury to the
petitioner stems not from his detention, which has ended, but
from the final removal order”). As previously stated,