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Agustin M.-O. v. Secretary of Homeland Security

United States District Court, D. Minnesota

June 12, 2019

Agustin M.-O., [1] Petitioner,
v.
Secretary of Homeland Security, et al., Respondents.

          REPORT AND RECOMMENDATION

          LEO I. BRISBOIS U.S. MAGISTRATE JUDGE

         This matter comes before the undersigned United States Magistrate Judge pursuant to a general referral in accordance with the provisions of 28 U.S.C. § 636 and Local Rule 72.1, as well as, upon Petitioner Agustin M.-O.'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. [Docket No. 1].

         Petitioner, who at the time he filed the present Petition was in the custody of Immigration and Customs Enforcement (hereinafter “ICE”), filed a Petition for a Writ of Habeas Corpus (hereinafter the “Petition”) challenging the legality of his detention by ICE pending his removal from the United States, as well as, the decision to remove him from the United States. Petitioner seeks reversal of the “Immigration Judge decision and” to be “release[d] immediately from custody.” (Petition [Docket No. 1]).

         Since the filing of his Petition, however, Petitioner has been removed to Mexico. (Response [Docket No. 8]; Immigration and Customs Enforcement Case Summary [Docket No. 9-5]). Because Petitioner has been removed from the United States to Mexico this matter, as well as, his request to be released from detention pending his removal and his challenges thereto, have become moot.

         Accordingly, the undersigned recommends that this matter be dismissed without prejudice as moot.

         I. Background

         Petitioner is a native and citizen of Mexico. (Immigration Judge Order, [Docket No. 9-1], at 1). Petitioner entered “the United States at or near an unknown place on or about an unknown date, and he was not then admitted or paroled after inspection by an Immigration Officer.” (Id.).

         On April 12, 2011, removal proceedings were commenced against Petitioner based on his unlawful entry into the United States. (Id.). After Petitioner conceded to the charge of illegal entry, Mexico was designated as the county of removal; however, Petitioner subsequently filed an application for cancellation of removal. (Id.).

         On May 29, 2018, after a hearing at which Petitioner appeared, testified, and was represented by counsel, Petitioner's application for cancellation of removal was denied. (Id.). Petitioner appealed that denial. (See, Order [Docket No. 9-2]).

         On October 26, 2018, Petitioner initiated the present action. (Petition [Docket No. 1]). In his present Petition, he challenges the length and legality of his detention pending removal, as well as, his removal itself. (See, Id.).

         On November 6, 2018, the Board of Immigration Appeals denied Petitioner's appeal of his removal order. (Order [Docket No. 9-2]). Thereafter, Petitioner requested that his removal be stayed, but that request was denied by the Eighth Circuit Court of Appeals on November 26, 2018. (Order [Docket No. 9-4]). Although at the time his request for a stay was denied Petitioner's request for review at the Eighth Circuit Court of Appeals remained pending, his petition for review at the Eighth Circuit Court of Appeals has since be dismissed for failure to prosecute. M.-O. v. Barr, 18-3479, Order (8th Cir. Feb. 14, 2019).

         On November 28, 2018, Petitioner was removed from the United States to Mexico. (Immigration and Customs Enforcement Case Summary [Docket No. 9-5]).

         II. Analysis

         Article III of the United States Constitution allows Federal Courts to adjudicate only actual, ongoing cases or controversies. See, Am. United for Separation of Church and State v. Prison Fellowship Ministries, 509 F.3d 406, 420-21 (8th Cir. 2007). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate” and “[w]hen an action no longer satisfies the case or controversy requirement, the action is moot and a ...


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