United States District Court, S.D. Texas, Houston Division
RAMON APOLONIO BAUTISTA-LEIVA and MARI RODRIGUEZ-MACHADO, Petitioners,
KEVIN McALEENAN, Respondent.
MEMORANDUM AND ORDER
H. BENNETT UNITED STATES DISTRICT JUDGE
Apolonio Bautista-Leiva and Mari Rodriguez-Machado filed an
emergency petition for a writ of habeas corpus under 28
U.S.C. § 2241, seeking release from confinement by
immigration officials with the United States Department of
Homeland Security (DHS) and a stay of removal. The respondent
filed a motion to dismiss and the petitioners filed a reply.
(Docket Entry Nos 7, 8). The petitioners requested leave to
submit a sur-reply, which the respondent movsd to dismiss or
strike. (Docket Entry Nos. 11, 12, 13). The respondent
subsequently filed an amended motion to dismiss, advising the
Court that both of the petitioners have bee n removed from
the United States and that the petition is moot. (Docket
Entry No. 17). The petitioners have filed a response through
their counsel of record and the respondent has filed a reply.
(Docket Entry Nos. 18, 19).
considering all the pleadings and the applicable law, the
Court will grant the respondent's amended motion and
dismiss this case for the reasons explained below.
is a native and citizen of Honduras. (Docket Entry No. 1, at
2). Rodriguez-Machado is a native and citizen of El Salvador.
(Id.). Both petitioners entered the United States
without inspection on or about June 14, 2004. (Id.).
At some point in 2004, both petitioners were issued a Notice
to Appear before an immigration judge, which they allegedly
did not receive, and were ordered removed in absentia
petitioners were taken into custody by police in Conroe,
Texas, and detained without criminal charges on an
unspecified date. (Id.). The petitioners filed
motions to reopen their immigration proceedings based on lack
of notice, but the immigration judge denied those motions
(Docket Entry Nos. 1-5, 1-6). Rodriguez-Machado was removed
from the United States on March 1, 2019. (Docket Entry No. 1,
at 3). Bautista-Leiva was removed from the United States on
April 2, 2019. (Docket Entry No. 17, at 1).
March 11, 2019, Bautista-Leiva and Rodriguez-Machado filed
their emergency petition for a writ of habeas corpus to
challenge Bautista-Leiva's continued detention by
immigration officials and seeking a stay of removal. In
addition to the habeas corpus statute found at 28 U.S.C.
§ 2241, the petitioners also invoke the Declaratory
Judgment Act, 28 U.S.C. § 2201, and the All Writs Act,
28 U.S.C. § 1651. The respondent moves to dismiss for
lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1), arguing that the petitioners' release from
custody and removal from the United States renders their
Standard of Review
respondent's motion to dismiss for lack of subject matter
jurisdiction is governed by Fed.R.Civ.P. 12(b)(1). "A
case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case." Krim
v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)
(citation and internal quotation marks omitted). "The
district court 'has the power to dismiss for lack of
subject matter jurisdiction on any one of three separate
bases: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts pus the
court's resolution of disputed facts.'"
Stiftung v. Plains Marketing, L.P., 603 F.3d 295,
297 (5th Cir. 2010) (quoting Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981)). When considering whether
subject matter jurisdiction exists, a district court is
"free to weigh the evidence and resolve factual disputes
in order to satisfy itself that it has the power to hear the
case." Krim, 402 F.3d at 494. The party seeking
federal court review bears the burden of demonstrating that
jurisdiction is proper. See Stiftung, 603 F.3d at
respondent argues that subject matter jurisdiction is lacking
because the case is now moot as the result of the
petitioners' release from custody. The United States
Supreme Court has explained that a case becomes moot if it
"no longer present[s] a case or controversy under
Article III, § 2, of the Constitution." Spencer
v. Kemna, 523 U.S. 1, 7 (1998). Under the case or
controversy requirement, "[t]he parties must continue to
have a 'personal stake in the outcome' of the
lawsuit.'" Id. (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 477-78
(1990)). "This, means that, throughout the litigation,
the plaintiff 'must have suffered, or be threatened with,
an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.'"
Id. (quoting Lewis, 494 U.S. at 477).
undisputed that both petitioners have been released from
immigration custody and removed from the United States. To
the extent that the petition challenges the fact of continued
detention, the petitioners' release from custody leaves
nothing for this Court to remedy. See Spencer, 523
U.S. at 18. Under these circumstances, the petition is moot
and must be dismissed. See Fed. R. Civ. P. 12(h)(3)
("If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
petitioners argue that continuing collateral consequences
exist because they are now barred from returning to the
United States for a period of ten years as a result of the
removal orders entered against them. (Docket Entry No. 18, at
1-3). The petitioners argue, therefore, that their petition
is not moot and that they should be permitted to challenge
the validity of the removal orders that were entered against
them in absentia without adequate
notice. This argument fails because district
courts do not have jurisdiction to entertain the type of
challenge that the petitioners present.
well established that district courts do not have subject
matter jurisdiction to consider any issues pertaining to an
order of removal under the REAL ID Act of 2005, codified as
amended at 8 U.S.C. § 1252(a). This statute makes a
petition for review to the applicable circuit court of
appeals the "sole and exclusive means of judicial
review" for orders of removal. 8 U.S.C. §
1252(a)(5). Thus, the REAL ID Act "divested district
courts of jurisdiction over removal orders and designated the
courts of appeals as the sole forums for such challenges via
petitions for review." Moreira v. Mukasey, 509
F.3d 709, 712 (5th Cir. 2007); see also Merlan v.
Holder,667 F.3d 538, 539 (5th Cir. 2011) (observing
that district courts lack jurisdiction to review a removal
order under provisions ...