United States District Court, D. Minnesota
Augustin Bongono, pro se Petitioner.
Voss, Esq., Ann M. Bildtsen, Esq., and Friedrich A. P.
Siekert, Esq., Assistant United States Attorneys, counsel for
REPORT AND RECOMMENDATION AND ORDER
R. THORSON, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Petition of Augustin B. for
a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc.
No. 1, Petition.) The case was referred to this Court for a
Report and Recommendation under 28 U.S.C. § 636 and D.
Minn. LR 72.1. A Report and Recommendation was issued on July
12, 2019. (Doc. No. 38.) By separate order, the Report and
Recommendation was vacated because Petitioner was removed
from the United States on July 30, 2019. For the reasons
discussed below, this Court now recommends that
Petitioner's Petition for habeas corpus relief be
dismissed as moot.
December 27, 2005, an immigration judge in Denver, Colorado
ordered Petitioner's removal from the United States of
America. (See Doc. No. 6, Decl. of Richard N. Pryd,
Jr. ¶ 12, Ex. B.) On October 4, 2018, ICE Enforcement
and Removal Operations (ERO) arrested Petitioner at the St.
Paul, Minnesota field office on advice from ERO Headquarters
that there was a significant likelihood of his removal in the
reasonably foreseeable future. (Id. ¶ 23, Ex.
February 7, 2019, Petitioner filed a Petition for Habeas
Corpus relief, requesting that this Court order his release
from ICE custody. (Doc. No. 1, Petition.) In his Petition, he
relies on Zadvydas v. Davis, 533 U.S. 678 (2001),
for the position that if his removal is not reasonably
foreseeable, his detention is no longer permitted under the
United States Constitution. (Petition at 8-9 (citing
Zadvydas, 533 U.S. at 690, 699).)
February 19, 2019, this Court ordered Respondents to file a
written answer certifying the true cause and proper duration
of Petitioner's confinement and showing cause why the
writ should not be granted in this case. (Doc. No. 4, 2/19/19
Order.) On March 21, 2019, the United States filed its
response (Doc. No. 5, Resp.); on July 8, 2019, the United
States filed a supplemental response (Doc. No. 30, Supp.
Resp.); and on August 6, 2019, it filed another supplemental
response indicating that Petitioner was removed from the
United States by ICE on July 30, 2019, by charter flight, and
arguing that as a consequence, his Petition is now moot.
(Doc. No. 44, Third Supp. Resp.; Doc. No. 45, Third Decl. of
Richard N. Pryd. Jr. ¶ 6.)
III of the United States Constitution limits the jurisdiction
of the federal courts to actual, ongoing cases and
controversies.” Haden v. Pelofsky, 212 F.3d
466, 469 (8th Cir. 2000). “When, during the course of
litigation, the issues presented in a case lose their life .
. . and a federal court can no longer grant effective relief,
the case is considered moot.” Id. (internal
quotations omitted). The question, then, is whether
Petitioner's removal effectively moots his request that
the Court order his release from detention.
Soliman v. U.S. ex rel. INS, 296 F.3d 1237 (11th
Cir. 2002), an appeal from a petition for release from
detention was found to be moot when the petitioner was
removed and was no longer being detained. The Eleventh
Circuit concluded that “no order . . . requiring the
INS to release [the petitioner] into the community awaiting
his final removal could have any effect.” Id.
District of Minnesota has also found habeas corpus petitions
for release from detention moot when the petitioners have
been removed from the United States. See, e.g.,
Mohamed v. U.S. Dep't of Homeland Security, No.
13-643 (PAM/JJG), 2013 WL 5888081, at *1-2 (D. Minn. Oct. 31,
2013) (adopting report and recommendation stating that
“[p]etitioner has already been removed to Somalia and
therefore his request for release pending removal is
moot”); Hassan v. I.C.E., No. 13-841
(PJS/LIB), 2013 WL 3974522, at *1-2 (D. Minn. Aug. 2, 2013)
(adopting report and recommendation citing Soliman v.
U.S. ex rel. INS, 296 F.3d 1237 (11th Cir. 2002));
Orellana v. Napolitano, No. 12-1184 (JRT/AJB), 2012
WL 6006038, at *2 (D. Minn. Nov. 6, 2012) (“Because
[p]etitioner is no longer in state custody, he lacks standing
to bring a claim for wrongful detention under 28 U.S.C.
§ 2241.”), report and recommendation
adopted, 2012 WL 6005776 (D. Minn. Nov. 30, 2012);
Estrada-Heredia v. Holder, No. 12-1157 (SRN/SER),
2012 WL 4839113, at *2 (D. Minn. Sept. 25, 2012)
(“Petition challenged only the length of
[petitioner's] ICE detention . . . . This Court can no
longer order the relief sought . . . because [petitioner] has
already been repatriated to Mexico.” (internal
quotations omitted)), report and recommendation
adopted, 2012 WL 4839019 (D. Minn. Oct. 11, 2012). The
Eighth Circuit reached a similar conclusion in Ali v.
Cangemi, 419 F.3d 722, 724 (8th Cir. 2005) (“With
Ali's December 29, 2004 release, Ali arguably received
the relief he requested.”). Although that case
ultimately concerned release rather than removal, it
illustrated the mootness effect of non-custody on petitions
for release from detention. Id.
Petitioner sought release from ICE custody. He was
subsequently removed from the United States. Because he is no
longer in ICE custody, a writ of habeas corpus cannot ...