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Ngo v. Johnson

United States District Court, N.D. Texas, Dallas Division

July 17, 2019

DIEN THANH NGO, # A074521524, Petitioner,
v.
J. JOHNSON, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE [1]

         Before the Court is the respondent's Motion to Dismiss as Moot, filed June 11, 2019 (doc. 9). Based on the relevant findings and applicable law, the motion should be GRANTED, and the petition for writ of habeas corpus under 28 U.S.C. § 2241, should be DISMISSED as moot.

         I. BACKGROUND

         Dien Thanh Ngo (Petitioner) is an alien under a final order of removal who was detained in the Prairieland Detention Center in Alvarado, Texas, on April 23, 2019, when his petition for writ of habeas corpus seeking relief under 28 U.S.C. § 2241 was received. (See doc. 3.) He claimed that his continued detention beyond 180 days while awaiting removal was unlawful under Zadvydas v. Davis, 533 U.S. 678 (2001), because there was no reason to believe that the government could obtain travel documents in order to deport him to Vietnam in the foreseeable future. (Id. at 2, 6-7.)[2] The only relief he requested in his petition was release on supervision pending deportation. (Id. at 8.)

         On June 11, 2019, the government moved to dismiss the petition as moot because Petitioner had been released on supervision on June 10, 2019, and it attached copies of the release notification and order of supervision showing that he was released on that date. (See docs. 9, 9-1.) Petitioner did not respond to the motion.

         I. JURISDICTION

         The respondent moves to dismiss the § 2241 petition under Rule 12(b)(1) for lack of subject matter jurisdiction, alleging that it is moot. (doc. 9 at 1.)

         A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by the Constitution and statute, they lack the power to adjudicate claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The district court may dismiss for lack of subject matter jurisdiction based on the petition alone, the petition supplemented by undisputed facts in the record; or the petition supplemented by undisputed facts plus the court's resolution of disputed facts. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The respondent has tendered copies of documents in support of its motion, and Petitioner has not responded or otherwise disputed the respondent's evidence.

         A. “In Custody

         The respondent first argues that Petitioner is no longer in custody because he has been released on supervision, so jurisdiction is lacking over his § 2241 petition. (doc. 9 at 1.)

         Section 2241(a) provides district courts the power to grant a writ of habeas corpus. A § 2241 petition is the proper vehicle for a challenge to the legality and constitutionality of extended detention pending removal. Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). An individual may seek habeas relief under § 2241 only if he is “in custody” under federal authority for a violation of federal law, or in violation of either federal law or the United States Constitution. See 28 U.S.C. § 2241(c). The “in custody” requirement is a jurisdictional prerequisite. Maleng v. Cook, 490 U.S. 488, 490 (1989). Physical detention is not required for a petitioner to meet the custody requirement and obtain habeas relief, but there must be some restraint on liberty. See Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004); Jones v. Cunningham, 371 U.S. 236, 239-40 (1963). In the immigration context, a final deportation order subjects an alien to sufficient restraint for purposes of the “in custody” requirement. Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735 (5th Cir. 2005); Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538, 540 (5th 2003).

         Because Petitioner is an alien subject to a final deportation order, he is “in custody” for purposes of § 2241 despite his release on supervision.

         B. Mootness

         The respondent next argues that the § 2241 petition is moot because Petitioner has been released on supervision, which is all ...


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