United States District Court, S.D. Georgia, Waycross Division
MOCKTAR A. TAIROU, Petitioner,
PATRICK GARTLAND, Respondent.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
Mocktar Tairou (“Tairou”), who was housed at the
Folkston Immigration and Customs Enforcement
(“ICE”) Processing Center in Folkston, Georgia,
filed a 28 U.S.C. § 2241 Petition for Writ of Habeas
Corpus. Doc. 1. Respondent filed a Motion to Dismiss, and
Tairou filed a Response. Docs. 22, 29. For the reasons which
follow, I RECOMMEND the Court
GRANT Respondent's Motion to Dismiss,
DENY as moot Tairou's Petition, and
DIRECT the Clerk of Court to
CLOSE this case and to enter the appropriate
judgment of dismissal. I further RECOMMEND
the Court DENY Tairou leave to proceed
in forma pauperis on appeal.
filed his Petition on March 7, 2019. Doc. 1. In his Petition,
Tairou contends he is a native of Benin, arrived in the
United States in 2014, and has been in continued detention or
removal proceedings since his arrival. Id. at 1-3.
Tairou asserts he was taken into ICE's custody on May 3,
2018 and was not afforded the opportunity to say goodbye to
his wife and child, who are United States' citizens.
Id. at 3-4. Tairou states he is attempting to fight
removal, as his wife filed a petition for an alien relative
(I-130) on his behalf. Id. at 5. Tairou maintains he
has committed no crime and is no longer under a final order
of removal, yet the Attorney General has revoked his bond and
rearrested him. Id. at 6. Tairou alleges his
continued detention deprives him of his Fifth Amendment due
process rights, and he is entitled to bond hearings.
Id. at 7. As relief, Tairou asks to be released
immediately, to be provided with the opportunity to say
goodbye to his family, and to have a reasonable amount of
bond set. Id. at 7-8.
filed a Motion to Dismiss, whereby he asserts ICE released
Tairou on parole on July 24, 2019, and he is no longer in the
Government's custody. Doc. 22 at 1. Respondent contends
that Tairou asks for his release from ICE custody in his
Petition, and because he has been granted this relief, his
Petition is moot. Id. Respondent notes the general
rule that a transfer or release from custody moots claims for
declaratory and injunctive relief, and this rule has been
extended to cases where a detainee challenging his ICE
custody has been removed during the pendency of his case and
to cases where a petitioner has been released from ICE
custody after the filing of his habeas petition. Id.
response, Tairou asserts he “continues to have a
personal stake” in his Petition, despite his release.
Doc. 29 at 6. Tairou states he was released on parole under 8
U.S.C. § 1182(d)(5)(A), which is a discretionary release
on parole which can be revoked at any time. Id.
According to Tairou, if his relief is granted, he would be
entitled to a hearing before an immigration judge.
Id. at 7. Additionally, Tairou avers his detention
falls under the “can reasonably be expected to
recur” exception to the mootness doctrine.
Whether Tairou'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). Regarding 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).
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)). “Events which
occur subsequent to the filing of a petition may render the
matter moot.” Johnson v. Glover, No.
1:04-CV-413, 2006 WL 1008986, at *1 (M.D. Ala. Apr. 18, 2006)
(citing Nat'l Black Police Ass'n v. District of
Columbia, 108 F.3d 346, 350 (D.C. Cir. 1997)). In such
cases, a “case is moot and must be dismissed.”
Hall v. Sec'y, Ala., 902 F.3d 1294, 1297 (11th
Cir. 2018) (citation omitted), cert. denied sub
nom., Hall v. Merrill, No. 18-1362, 2019 WL
4921309 (U.S. Oct. 7, 2019).
Tairou only requests to be released immediately, to be
provided with the opportunity to say goodbye to his family,
and to have a reasonable amount of bond set. Doc. 1 at 7-8.
Tairou was released on parole from ICE's custody on July
24, 2019, doc. 22 at 1; doc. 22-1 at 1. Thus, there is no
longer a “live controversy” over which the Court
can give meaningful relief. See Friends of
Everglades, 570 F.3d at 1216; see also
Alonso-Martinez v. Meissner, 697 F.2d 1160, 1165 (D.C.
Cir. 1983) (finding petitioner's parole under 8 U.S.C.
§ 1182(d)(5)(A) mooted habeas petition seeking release
from custody); Richard v. Buford, No. CIV.A.
09-00158, 2009 WL 1564759, at *2 (S.D. Ala. May 29, 2009)
(concluding release from ICE custody mooted habeas petition).
Accordingly, the Court should GRANT
Respondent's Motion to Dismiss and DENY as
moot Tairou's Petition for Writ of Habeas
Court notes Tairou's assertion that his Petition falls
within the “capable of repetition” exception to
the mootness doctrine. This exception “is
limited” to situations where “(1) the challenged
action [i]s in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there [i]s a
reasonable expectation that the same complaining party wi[ll]
be subjected to the same action again.” Hall,
902 F.3d at 1297 (alterations in original) (citations
omitted). “‘The remote possibility that an event
might recur is not enough to overcome mootness, and even a
likely recurrence is insufficient if there would be ample
opportunity for review at that time.'” Id.
(quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336
(11th Cir. 2001)). In the context of immigration proceedings,
courts have found the petitioner's release under an order
of supervision or pending the appeal of a removal order do
not fall within this exception. Fregis v. Holder,
2:13-cv-163, 2014 WL 54839, at *2 (M.D. Fla. Jan. 7, 2014)
(citing Riley v. INS, 310 F.3d 1253 (10th Cir.
2002), and Ijaoba v. Holder, 4:12-cv-3792, 2013 WL
1490927 (N.D. Ala. Mar. 4, 2013)). Because Tairou has been
released from custody and has not shown more than a
“remote possibility” he will be detained again,
he has not overcome mootness. If Tairou's parole is
revoked in the future and he once again is under the custody
of ICE, he may file another petition to challenge that
Leave to Appeal in Forma Pauperis
Court should also deny Tairou leave to appeal in forma
pauperis. Though Tairou has not yet filed a notice of
appeal, it would be appropriate to address that issue in the
Court's order of dismissal. See Fed. R. App. P.
24(a)(3) (trial court may certify that appeal is not taken ...