United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE 
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.
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.) The only relief he requested in his
petition was release on supervision pending deportation.
(Id. at 8.)
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.
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.)
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
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.)
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).
Petitioner is an alien subject to a final deportation order,
he is “in custody” for purposes of § 2241
despite his release on supervision.
respondent next argues that the § 2241 petition is moot
because Petitioner has been released on supervision, which is