United States District Court, D. Minnesota
S. DOTY, DISTRICT JUDGE
matter is before the court upon respondent Sherburne County
Sheriff Joel Brott's motion to dismiss petitioner Farass
Ali's habeas petition as moot and to vacate the
court's July 30, 2019, order and judgment granting
Ali's petition. After a review of the file, record, and
proceedings herein, and for the following reasons, the court
grants the motion.
underlying facts of this case are not in dispute and will
only be discussed to the extent necessary. Ali was in
discretionary pre-order immigration detention pursuant to 8
U.S.C. § 1226(a) for more than two years. Pet.
¶¶ 1, 21. In September 2018, Ali petitioned for a
writ of habeas corpus seeking release from immigration
detention pending a final order of removal. See Pet.
On July 30, 2019, the court granted Ali's petition and
ordered that he be released within 30 days (Order). ECF No.
51 at 8-9. The Order, however, explicitly stated that it did
“not extend to a detention period after a removal order
is issued.” Id. at 8. The court recognized
that detention pursuant to a final order of removal is
mandatory under 8 U.S.C. § 1231(a)(2) and stated that it
would not interfere with the attorney general's authority
to detain Ali should removal be ordered. Id.
time the court granted Ali's petition, the Board of
Immigration Appeals (BIA) was considering Ali's appeal of
the Immigration Judge's December 2018 provisional order
of removal. ECF No. 33 at 2. On August 15, 2019, the BIA
dismissed Ali's appeal and the order of removal became
administratively final. 8 C.F.R. § 1241.1(a). On August
27, 2019, 28 days after the Order was issued, Brott filed a
notice that Ali would remain in custody, now under §
1231(a). ECF No. 53. That same day, Brott filed the instant
motion to dismiss Ali's petition and to vacate the Order.
ECF No. 54.
argues that Ali's petition should be dismissed as moot
because Ali is no longer in discretionary detention under
§ 1226(a). ECF NO. 55 at 2. As such, Brott contends, the
Order directing Ali's release from § 1226(a) custody
should be vacated. Id. Ali responds that the case
cannot be moot because the controversy was live when the
court issued the Order. ECF No. 58 at 2-3.
or controversy becomes moot “[w]hen, during the course
of litigation, 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.'” Ali v. Cangemi, 419
F.3d 722, 723 (8th Cir. 2005) (quoting Haden v.
Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000)). This court
and the Eighth Circuit Court of Appeals have recognized that
a habeas petitioner's release from custody or removal
from the United States moots a petition seeking release from
pre-removal detention. See, e.g., id. at
724 (“With Ali's December 29, 2004 release, Ali
arguably received the relief he requested.”);
Augustin B. v. McAleenan, No. 19-296, 2019 WL
4305534, at *1 (D. Minn. Sept. 11, 2019) (adopting report and
recommendation concluding that petitioner's removal from
the United States rendered moot his habeas petition seeking
release from ICE custody). Although Ali has not been released
from custody or removed from the United States, his situation
presents an analogous change in circumstances.
Ali v. Cangemi, the district court granted the
petitioner's writ of habeas corpus seeking release from
custody and the government appealed. 419 F.3d at 723. While
the decision was on appeal, the government mistakenly
released the petitioner from detention. Id. With
that release, the Eighth Circuit concluded that the habeas
petition was prudentially moot, and it reversed and vacated
the lower court's decision and remanded with instructions
to dismiss the case without prejudice. Id. at 724.
case presents a similar situation. The Order directed Brott
to release Ali from § 1226 custody within 30 days.
During that 30-day period, the BIA dismissed Ali's appeal
and his order of removal became final. Thereafter, Ali was
held in custody under § 1231, not § 1226. This
change in circumstances meant that the relief originally
granted by the court - release within 30 days from §
1226 custody - could no longer be executed, rendering
Ali's petition moot. See id.
an order to vacate and dismiss would typically come from a
court of appeals in this scenario, see, e.g.,
id.; Haden, 212 F.3d at 469, the fact that
the case is not yet on appeal does not change the outcome.
Under Federal Rule of Appellate Procedure 4(a), both parties
had 30 days to appeal the Order. Under Federal Rule of
Appellate Procedure 4(a)(4)(A)(vi), because Brott filed this
motion to vacate within 28 days of the Order, the original
30-day appeal period now runs from the date of the entry of
the order disposing of the motion. This court maintains
jurisdiction over Brott's motion. See Winter v. Cerro
Gordo Cty. Conservation Bd., 925 F.2d 1069, 1073 (8th
Cir. 1991) (stating the district court maintains jurisdiction
to dispose of post-judgment motions absent the filing of a
notice of appeal).
Brott moved for relief within 28 days of the Order, his
30-day period in which to appeal the Order now runs from the
date of this decision disposing of the instant motion.
See Fed. R. App. P. 4(a)(4)(A). Under these
circumstances and consistent with Ali v. Cangami,
Ali's change in detention status renders the case moot,
and on appeal the Order would be vacated and the Eighth
Circuit would direct the court to dismiss the petition. The
court will follow suit here.
based on the above, IT IS ...