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Ngo v. Siegl

United States District Court, S.D. Texas, Houston Division

May 15, 2018

THANH H NGO, Petitioner,
v.
MARK SIEGL, et al, Respondents.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt, United States District Judge

         Petitioner Thanh H. Ngo is a detainee in the custody of the United States Immigration and Customs Enforcement (“ICE”). Ngo filed a petition for a writ of habeas corpus challenging his detention. Respondents filed a motion to dismiss the petition, and petitioner responded and moved for summary judgment. The respondents did not respond to Ngo's motion for summary judgment. Having considered the motions, the record, the relevant law, and the arguments of the parties, the Court concludes that the respondents' motion should be conditionally granted.

         I. Background

         The following facts are not in dispute. Petitioner is a native of Vietnam. He arrived in the United States as a child in July 1984.

         In 1996, Ngo was convicted of two state felony offenses, burglary, and grand theft by possession of stolen property, in Idaho. He was sentenced to concurrent terms of six and a half years imprisonment. As a result of these convictions, the United States government began removal proceedings against Ngo.

         In 1997, Ngo was released on parole from his imprisonment on the Idaho state charges. He was transferred to the custody of federal immigration authorities in or about August 1977.

         On December 19, 1997, Ngo was ordered removed to Vietnam. That order became final on February 20, 1998.

         Petitioner states, and respondents do not dispute, that Ngo was in custody “[f]or years following the final entry of the removal order . . . .” Response to Motion to Dismiss (“Response”) (Doc. # 6) at 4. He states that he was in federal immigration detention “[b]etween 1998 and 2008, ” id., but does not specify whether he was in continuous detention for that entire period of time, or whether he was in custody for some portion of that time.

         In 2008, Ngo was released from immigration detention under an Order to Supervision. The order required Ngo to report monthly to an ICE office and call the ICE office bi-weekly. Response, Exh. F.

         On September 13, 2017, Ngo was arrested in Texas and charged with possession of marijuana. He was released to ICE custody on September 15, 2017, and has remained in ICE custody since that date.

         On October 18, 2017, Ngo filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241. On January 12, 2018, the government moved to dismiss the petition under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. On February 14, 2018, Ngo responded to the motion to dismiss, and cross-moved for summary judgment. The respondents did not respond to Ngo's motion for summary judgment.

         II. Standard of Review

         Respondents argue that the petition is subject to dismissal under Fed.R.Civ.P. 12(b)(1). Rule 12(b)(1) provides for dismissal, in relevant part, when the court lacks subject matter jurisdiction. It is beyond dispute that

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the ...

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