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Bautista-Leiva v. McAleenan

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

November 8, 2019

RAMON APOLONIO BAUTISTA-LEIVA and MARI RODRIGUEZ-MACHADO, Petitioners,
v.
KEVIN McALEENAN, Respondent.

          MEMORANDUM AND ORDER

          ALFRED H. BENNETT UNITED STATES DISTRICT JUDGE

         Ramon 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).

         After 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.

         I. Background

         Bautista-Leiva 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 (Id.)

         The 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).

         On 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 petition moot.

         II. Standard of Review

         The 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 297.

         III. Discussion

         The 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).

         It is 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 action.").

         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.[1] This argument fails because district courts do not have jurisdiction to entertain the type of challenge that the petitioners present.

         It is 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).[2] 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 ...


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