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Lopez v. Warden, Stewart Detention Center

United States District Court, M.D. Georgia, Columbus Division

December 26, 2018




         Pending 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.


         Petitioner 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.

         This 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).[1]


         I. Respondents' Motion to Dismiss

         Respondents 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.

         Petitioner's 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 denied.

         As for 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)).

         Removal 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 (1998)).

         Despite 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. 9.[2] 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, this ...

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