United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Brisbois U.S. MAGISTRATE JUDGE
matter comes before the undersigned United States Magistrate
Judge upon Petitioner Pheakday Chan Chak's Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241,
[Docket No. 1], and upon a general referral pursuant to 28
U.S.C. § 636. .
reasons discussed below, the Court recommends that the
Petition for Writ of Habeas Corpus, [Docket No. 1], be
DENIED as moot and that this action be
dismissed without prejudice.
BACKGROUND AND STATEMENT OF FACTS
is a native and citizen of Cambodia. (See, Petition,
[Docket No. 1], 2). He arrived in the United States in 2002.
(Id. at 3). On September 8, 2016, U.S. Immigration
and Customs Enforcement (“ICE) took him into custody
and on November 8, 2016, an Immigration Judge ordered that
Petitioner be removed to Cambodia. (Id. at 2).
Petitioner was detained pending his removal. (Id. at
10, 2017, Petitioner filed the present pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241; he
asserted that his continued detention pending removal to
Cambodia was unlawful because it was not significantly likely
that he would be removed to Cambodia in the reasonably
foreseeable future. (Id.). On May 12, 2017, the
undersigned ordered Respondents to submit a Response to the
Petition for Writ of Habeas Corpus by no later than June 11,
2017. (Order, [Docket No. 3]).
12, 2017, Respondents filed their Response to the Petition
for Writ of Habeas Corpus; they asserted that
Petitioner's detention should continue and the Petition
should be denied because there was a substantial likelihood
of Petitioner's removal in the reasonably foreseeable
future. (Response, [Docket No. 4], 1). Respondents noted that
in December 2016, ICE had uploaded an Electronic Travel
Request for Cambodia and a Cambodia travel document package
was set to the HQ Removal Management Division in Washington,
D.C. (Id. at 4). Respondents informed the Court that
they were waiting for an updated custody determination, but
had had recent success in repatriating Cambodian nationals.
12, 2017, Petitioner filed his Reply to Respondents'
Response. (Reply, [Docket No. 8]). Petitioner informed the
Court that he was still awaiting an updated custody
determination, and he was still being detained by ICE.
(Id. at 1). Plaintiff again asserted that his
continued detention was unlawful. (Id. at 2-6).
September 6, 2017, this Court issued an Order instructing
Respondents to file a Status Update informing the Court of
Petitioner's current whereabouts and providing any
updated information regarding Respondents' efforts to
remove Petitioner. ([Docket No. 9]).
September 14, 2017, Respondents filed their Status Update.
([Docket No. 10]). Therein, Respondents state that Petitioner
was released from ICE custody on July 11, 2017. (Id.
at 1). Respondents have filed with the Court an Order of
Supervision and supporting documentation which set forth the
conditions for Plaintiff's release from ICE detention.
([Docket No. 11-1], 1-8). The documents submitted are signed
by Petitioner. (See, Id. at 1-3,
5-6).Accordingly, Respondents request that Petitioner's
Petition be denied as moot and that this action be dismissed
with prejudice. (Id.).
forth above, Respondents assert, and Petitioner has submitted
nothing to dispute, that Petitioner is no longer being held
in custody pending his removal to Cambodia. Therefore,
Respondents contend that any challenges to the legality of
Petitioner's detention are now moot. (Id. at 6).
the release from detention of a detainee during the pendency
of that detainee's petition challenging the legality of
that detention does not automatically render the
petition moot.See, Mohamed v. Lynch, No.
15-cv-2726 (JRT/LIB), 2016 WL 563164, *3 (D. Minn. Jan. 26,
2016), report and recommendation adopted at 2016 WL 593512
(D. Minn. Feb. 12, 2016); Sayonkon v. Beniecke, No.
12-cv-27 (MJD/JJK), 2012 WL 1621149, *2 (D. Minn. Apr. 17,
2012), report and recommendation adopted at 2012 WL 1622545
(D. Minn. May 9, 2012).Rather, whether the petition becomes
moot upon the petitioner's release depends on whether any
of the potential exceptions to the mootness doctrine may
apply. Mohamed, 2016 WL 563164, at*3.
“Under these exceptions, the Petition should not be
dismissed as moot if: ‘(1) secondary or
“collateral” injuries survive after resolution of
the primary injury; (2) the issue is deemed a wrong capable
of repetition yet evading review; (3) the defendant
voluntarily ceases an allegedly illegal practice but is free