United States District Court, D. Minnesota
T., pro se Petitioner.
Vos, Esq., Assistant United States Attorney, counsel for
REPORT AND RECOMMENDATION
R. THORSON UNITED STATES MAGISTRATE JUDGE.
October 31, 2018, Petitioner Toua T. filed a petition for a
writ of habeas corpus challenging his detention by
Immigration and Customs Enforcement (“ICE”)
pending his removal to Vietnam. (Doc. No. 1.) Petitioner,
however, was ordered released from ICE custody on October 30,
2018. (Doc. No. 7, Declaration of Ana H. Voss (“Voss
Decl.”), Ex. 1.)
in this district have generally held that release from
custody pending removal moots a habeas petition challenging
that custody. See, e.g., Kargbo v. Brott,
No. 15-cv-2713 (PJS/LIB), 2016 WL 3676162, at *2 (D. Minn.
July 6, 2016) (finding a habeas petition moot after
petitioner was released from ICE custody pending removal
because if the Court “granted every bit of the
relief” sought in the petition, the petitioner
“would find himself in precisely the situation
in which he already finds himself”). Release does not
“automatically” cause the petition to become
moot, however, and there are four potential exceptions to the
mootness doctrine: (1) secondary or collateral injuries
survive after resolution of the primary injury, (2) the issue
is deemed capable of repetition yet evading review, (3) the
defendant voluntarily ceases an allegedly illegal practice
but is free to resume it at any time, or (4) it is a properly
certified class action suit. Mohamed v. Lynch, No.
15-cv-2726 (JRT/LIB), 2016 WL 563164, at *3 (D. Minn. Jan.
first exception to apply, there must be “some concrete
and continuing injury other than the now-ended
incarceration” or a “collateral consequence of
the conviction” still at issue. Spencer v.
Kemna, 523 U.S. 1, 7 (1998). Petitioner has not
identified any such consequences. Petitioner was released
subject to conditions (see Voss Decl., Ex. 1), but
those conditions are consequences of his removal order, not
his detention, which has now ended. See Kargbo, 2016
WL 3676162, at *2; see also Mohamed, 2016 WL 563164,
at *3 (“[C]onditions of release are actually collateral
to the original uncontested order of removal rather than the
allegedly unlawful detention.”). This action challenges
Petitioner's now-expired detention, not his removal
second exception, “capable of repetition, yet evading
review, ” is limited to circumstances in which (1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there
was a reasonable expectation that the same complaining party
would be subject to the same action again. Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). While
Petitioner's detention ended before it could be
litigated, there is nothing in the record to suggest that ICE
will again subject Petitioner to pre-removal detention.
Mohamed, 2016 WL 563164, at *3. Even if that
circumstance could be considered likely to occur, any future
detention “will not be a ‘repeat'” of
the previous detention; “it will be a different type of
detention that will be based on a different
justification.” Kargbo, 2016 WL 3767162, at
*2. Since the challenge to any future detention would present
different issues, the issues presented by the previous
detention are not capable of repetition, yet evading review.
For similar reasons, the third exception, when the defendant
voluntarily ceases an allegedly illegal practice but is free
to resume it at any time, is also inapplicable. Even if, as
noted, Petitioner were taken into custody once again,
“that detention would be [allegedly] illegal for
different factual and legal reasons” than before.
foregoing reasons, this action is moot, and none of the
exceptions to mootness are applicable.
on the foregoing, and on the files, records, and proceedings
herein, IT IS HEREBY RECOMMENDED that:
1. Petitioner's Motion to Grant a Writ of Habeas Corpus
(Doc. No. 1) be DENIED;
2. This action be DISMISSED without
3. Judgment be entered ...