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Chak v. Sessions

United States District Court, D. Minnesota

September 18, 2017

Pheakday Chan Chak, Petitioner,
v.
Jeff Sessions, et al., Respondents.

          REPORT AND RECOMMENDATION

          Leo I. Brisbois U.S. MAGISTRATE JUDGE

         This 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. .

         For the 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.

         I. BACKGROUND AND STATEMENT OF FACTS

         Petitioner 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 4).

         On May 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]).

         On June 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. (Id.at 4-5).

         On July 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).

         On 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]).

         On 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.).

         II. ANALYSIS

         As set 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).

         However, 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 to ...

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