United States District Court, D. Minnesota
C. Tostrud United States District Court
case concerns a habeas petition filed by petitioner Mario
Cabrera Penaloza (“Cabrera”), a native and
citizen of Mexico, challenging his continued detention by
Immigration and Customs Enforcement (“ICE”)
pending removal. See generally Pet. [ECF No. 1];
Pet. Mem. at 2 [ECF No. 8]. The Court has received the
December 12, 2018 Report and Recommendation of United States
Magistrate Judge Leo I. Brisbois. ECF No. 20. No party has
objected to that Report and Recommendation, and the Court
therefore would ordinarily review it for clear error.
See Fed. R. Civ. P. 72(b); Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
But a recent filing by the government reveals that on
November 7, 2018, immigration officials effectuated
Cabrera's final order of removal and removed him to
Mexico. Decl. of Ana H. Voss (“Voss Decl.”) Ex. 1
at 3 [ECF No. 24]. Given that newly filed information
regarding the change in Cabrera's circumstances, the
Court must first satisfy itself that it retains
subject-matter jurisdiction over the case before reviewing
the substance of the Report and Recommendation.
United States Constitution limits the subject-matter
jurisdiction of federal courts to ongoing cases and
controversies. See U.S. Const. art. III, § 2,
cl. 1. “[A]n actual [case or] controversy must exist
not only at the time the complaint is filed, but through all
stages of the litigation.” Already, LLC v. Nike,
Inc., 568 U.S. 85, 91 (2013) (citations and internal
quotation marks omitted). “When . . . the issues
presented in a case lose their life because of the passage of
time or a change in circumstances . . . and a federal court
can no longer grant effective relief, the case is considered
moot.” Ali v. Cangemi, 419 F.3d 722, 723 (8th
Cir. 2005) (quoting Haden v. Pelofsky, 212 F.3d 466,
469 (8th Cir. 2000)). If an action is moot because it no
longer satisfies the case-or-controversy requirement, a
federal court “ha[s] no discretion and must dismiss the
action for lack of jurisdiction.” Ali, 419
F.3d at 724 (citing Powell v. McCormack, 395 U.S.
486, 496 n.7 (1969)). There are four exceptions, however. If
any of the following exceptions apply, a court should not
dismiss a habeas petition as moot:
(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 resume it at any time; or (4) it is a
properly certified class action suit.
Ahmed v. Sessions, No. 16-cv-02124 (DSD/HB), 2017 WL
3267738, at *2 (D. Minn. July 11, 2017) (citation omitted),
report and recommendation adopted, 2017 WL 3268176
(D. Minn. July 31, 2017).
case, Cabrera sought release from ICE detention during the
pendency of his removal proceedings via a § 2241 habeas
petition. On October 26, 2018, the Board of Immigration
Appeals denied Cabrera's administrative appeal in his
removal proceedings, Voss Decl. Ex. 1 at 6, and he was
subsequently deported to Mexico, id. at 3. As a
result, the relief he initially sought would now be
ineffectual-he is no longer in ICE detention, so the Court
cannot order his release. Therefore, an ongoing controversy
no longer exists, and the habeas petition is moot.
exceptions apply, either. “[T]he collateral-injuries
exception does not apply when such injuries are a result of
the final Order of Removal, and not the prolonged detention
itself.” Ahmed, 2017 WL 3267738, at *2
(citation omitted). This is because any further injury would
follow from Cabrera's order of removal to Mexico, rather
than his continuing detention. See Chuol v.
Sessions, No. 17-cv-4700 (JNE/TNL), 2018 WL 1598624, at
*2 (D. Minn. Feb. 27, 2018) (citations omitted), report
and recommendation adopted, 2018 WL 1587611 (D. Minn.
Apr. 2, 2018). The exception for wrongs capable of repetition
yet evading review only applies in exceptional situations
where “there is a reasonable expectation that the same
complaining party will be subject to the same action
again.” Id. (citing Spencer v. Kemna,
523 U.S. 1, 17 (1998)). Here, Cabrera has been removed from
the country, and there is no evidence justifying an
expectation of him returning to ICE detention. The third
exception, for voluntary cessation, arises in cases in which
“the government voluntarily ceased allegedly unlawful
conduct but is free to restart such conduct at whim.”
Kargbo v. Brott, No. 15-cv-2713 (PJS/LIB), 2016 WL
3676162, at *2 (D. Minn. July 6, 2016) (citing Already,
LLC, 568 U.S. at 91). Here, the government is not free
to “restart such conduct at whim” because Cabrera
is not within the government's control. He has been
deported to Mexico. Finally, the fourth exception does not
apply because this is not a class-action suit. Thus, none of
the exceptions to the mootness doctrine apply, and the
mootness of Cabrera's case results in a lack of
subject-matter jurisdiction over his habeas petition.
based on all of the files, records, and proceedings in the
above-captioned matter, IT IS HEREBY ORDERED
1. The Court DECLINES TO ACCEPT the Report
and Recommendation [ECF No. 20] because the case has become
2. The Petition for Writ of Habeas Corpus [ECF No. 1] is
DENIED as moot; and
3. The action is DISMISSED WITHOUT PREJUDICE
for lack of subject-matter jurisdiction.
JUDGMENT BE ENTERED ACCORDINGLY.