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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 LUAY LOUIS GHAREEB Case No. 20-cv-2338-GPC-KSC 11 JAZRAWI, 12 ORDER DISMISSING PETITION 13 Petitioner, FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 14 v. 15 CHAD WOLF, Secretary of the 16 United States Department of 17 Homeland Security; WILLIAM P. BARR, Attorney General of the 18 United States; San Diego Field 19 Office Director, Office of Detention 20 and Removal Operations, U.S. Immigration and Customs 21 Enforcement Agency 22 Respondents. 23 24 25 On November 27, 2020 Petitioner Luay Louis Ghareeb Jazrawi 26 (“Petitioner”), then detained at the Otay Mesa Detention Center in the custody of 27 the U.S. Department of Homeland Security, Immigration and Customs 28 Enforcement (“ICE”), filed a petition for writ of habeas corpus pursuant to 28 1 U.S.C. §2241 seeking an order directing Respondents to release Petitioner from 2 custody and enjoining Respondents from further unlawful detention of Petitioner 3 under Zadvydas v. Davis, 533 U.S. 678 (2001). ECF No. 1 (“Petition”). On 4 January 6, 2021, Respondents filed a return contending that the Petition is moot 5 because Petitioner was released from ICE custody on an order of supervision on 6 December 11, 2020. ECF No. 6. The Court denied Respondents’ motion to 7 dismiss because the Government failed to argue or establish that Petitioner would 8 not be unlawfully re-detained in the future, and directed Respondents to file a 9 supplemental return. ECF No. 7. Respondents have now done so. ECF No. 8. 10 Petitioner has not filed a reply. 11 For the reasons that follow, the Court DISMISSES the Petition without 12 prejudice. 13 I. Background 14 Petitioner is a citizen of Iraq and is subject to a final order of removal. ECF 15 No. 8-2 at 2, 19. Petitioner filed this Petition while in ICE custody, contending 16 that Respondents continued to detain him beyond the presumptively reasonable 17 six-month period to effectuate removal despite there being no reasonable 18 foreseeability of his removal to Iraq.1 Petition ¶ 1; Zadvydas, 533 U.S. at 701. 19 Petitioner argues that there is no significant likelihood of removal to Iraq because 20 of travel restrictions imposed as a result of the COVID-19 pandemic and ICE’s 21 inability to coordinate a flight for him. Petition ¶¶ 15, 17–19. Respondents 22 maintain that removal is reasonably foreseeable because the uncertainty due to 23 COVID-19 travel restrictions will not be indefinite. ECF No. 8 at 6. However, on 24 December 11, 2020, Petitioner was released on bond and an order of supervision 25 because flights to Iraq were still unavailable due to the pandemic. ECF No. 6-1; 26
27 1 In his Petition, Petitioner also states that he would be subject to persecution were he to be removed to Iraq. Petition ¶¶ 1, 15. However, the Court does not have jurisdiction to review 28 Petitioner’s removal order. 8 U.S.C. § 1252(a)(5), (g); Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1140–41 (9th Cir. 2008). 1 ECF No. 8-2 at 30; ECF No. 8-1 (“Nobleza Decl.”) ¶ 15. The release notification 2 provides that Petitioner’s release is subject to certain conditions and that Petitioner 3 would be required to surrender to ICE for removal once a travel document is 4 obtained, although Petitioner’s deportation officer notes that this is an error and 5 that Petitioner will instead be required to surrender once a flight itinerary for 6 Petitioner is secured. ECF No. 8-2 at 30; Nobleza Decl. ¶ 17. In their 7 supplemental return, Respondents argue that the Petition is moot because the order 8 of supervision only permits Respondents to re-detain Petitioner if he violates a 9 condition of supervision, if his removal to Iraq becomes “imminently feasible with 10 a valid travel document and an available flight itinerary,” or if there is another 11 lawful basis for his detention. ECF No. 8 at 7–8. This contention is supported by 12 a declaration of Petitioner’s deportation officer. Nobleza Decl. ¶ 19. 13 II. Legal Standard 14 “At any stage of the proceeding a case becomes moot when ‘it no longer 15 present[s] a case or controversy under Article III, § 2 of the Constitution.’” Abdala 16 v. INS, 488 F.3d 1061, 1063 (9th Cir. 2007) (quoting Spencer v. Kemna, 523 U.S. 17 1, 7 (1998)). A case is moot when the court can no longer grant effective relief. 18 Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997), 19 as amended (Sept. 16, 1997). Federal courts cannot exercise jurisdiction over a 20 case if it is moot, but “[t]he burden of demonstrating mootness is a heavy one.” 21 West v. Sec’y of Dep't of Transp., 206 F.3d 920, 924 (9th Cir. 2000) (quoting 22 Northwest Envt’l Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)). 23 Additionally, when a party voluntarily ceases the allegedly unlawful conduct, that 24 party “bears a formidable burden of showing that it is absolutely clear the allegedly 25 wrongful behavior could not reasonably be expected to recur.” Friends of the 26 Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 27 (2000). 28 \ \ \ 1 III. Discussion 2 The Court previously noted that a habeas petition seeking release from 3 immigration custody may not be mooted by the petitioner’s release if the release 4 could be revoked pursuant to the Government’s discretion or faced other 5 restrictions on his liberty. ECF No. 7 at 3 (citing Rodriguez v. Hayes, 591 F.3d 6 1105, 1117–18 (9th Cir. 2010); cf. Clark v. Martinez, 543 U.S. 371, 376 n.3 7 (2005); Nadeem v. Crawford, 465 F. App’x 659, 660 (9th Cir. 2012)). Petitioner’s 8 deportation officer now attests that Petitioner will not be re-detained unless 9 Petitioner violates a condition of his supervision, his removal becomes 10 “imminently feasible with a valid travel document and an available flight 11 itinerary,” or another lawful basis for his detention arises. Nobleza Decl. ¶ 19. 12 Respondents have presented a declaration under penalty of perjury that the 13 Government has not retained discretion to re-detain Petitioner absent the 14 conditions identified. This distinguishes his case from the petitioners in Rodriguez 15 and Clark who faced the prospect of future detention contingent on the 16 Government’s discretion. Rodriguez, 591 F.3d 1117–18; Clark, 543 U.S. at 376 17 n.3. Here, if the Court determined “that the Government lacks the authority to 18 continue to detain [Petitioner], he would have to be released, and could not be 19 taken back into custody unless he violated the conditions of release . . . or his 20 detention became necessary to effectuate his removal.” Clark, 543 U.S. 371, 376 21 n.3. Petitioner has been released and cannot be taken back into custody unless ICE 22 has both valid travel documents for him and a travel itinerary permitting him to be 23 imminently removed, a separate lawful basis for his detention arises, or he violates 24 the conditions of his order of supervision, which are authorized by 8 U.S.C.
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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 LUAY LOUIS GHAREEB Case No. 20-cv-2338-GPC-KSC 11 JAZRAWI, 12 ORDER DISMISSING PETITION 13 Petitioner, FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 14 v. 15 CHAD WOLF, Secretary of the 16 United States Department of 17 Homeland Security; WILLIAM P. BARR, Attorney General of the 18 United States; San Diego Field 19 Office Director, Office of Detention 20 and Removal Operations, U.S. Immigration and Customs 21 Enforcement Agency 22 Respondents. 23 24 25 On November 27, 2020 Petitioner Luay Louis Ghareeb Jazrawi 26 (“Petitioner”), then detained at the Otay Mesa Detention Center in the custody of 27 the U.S. Department of Homeland Security, Immigration and Customs 28 Enforcement (“ICE”), filed a petition for writ of habeas corpus pursuant to 28 1 U.S.C. §2241 seeking an order directing Respondents to release Petitioner from 2 custody and enjoining Respondents from further unlawful detention of Petitioner 3 under Zadvydas v. Davis, 533 U.S. 678 (2001). ECF No. 1 (“Petition”). On 4 January 6, 2021, Respondents filed a return contending that the Petition is moot 5 because Petitioner was released from ICE custody on an order of supervision on 6 December 11, 2020. ECF No. 6. The Court denied Respondents’ motion to 7 dismiss because the Government failed to argue or establish that Petitioner would 8 not be unlawfully re-detained in the future, and directed Respondents to file a 9 supplemental return. ECF No. 7. Respondents have now done so. ECF No. 8. 10 Petitioner has not filed a reply. 11 For the reasons that follow, the Court DISMISSES the Petition without 12 prejudice. 13 I. Background 14 Petitioner is a citizen of Iraq and is subject to a final order of removal. ECF 15 No. 8-2 at 2, 19. Petitioner filed this Petition while in ICE custody, contending 16 that Respondents continued to detain him beyond the presumptively reasonable 17 six-month period to effectuate removal despite there being no reasonable 18 foreseeability of his removal to Iraq.1 Petition ¶ 1; Zadvydas, 533 U.S. at 701. 19 Petitioner argues that there is no significant likelihood of removal to Iraq because 20 of travel restrictions imposed as a result of the COVID-19 pandemic and ICE’s 21 inability to coordinate a flight for him. Petition ¶¶ 15, 17–19. Respondents 22 maintain that removal is reasonably foreseeable because the uncertainty due to 23 COVID-19 travel restrictions will not be indefinite. ECF No. 8 at 6. However, on 24 December 11, 2020, Petitioner was released on bond and an order of supervision 25 because flights to Iraq were still unavailable due to the pandemic. ECF No. 6-1; 26
27 1 In his Petition, Petitioner also states that he would be subject to persecution were he to be removed to Iraq. Petition ¶¶ 1, 15. However, the Court does not have jurisdiction to review 28 Petitioner’s removal order. 8 U.S.C. § 1252(a)(5), (g); Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1140–41 (9th Cir. 2008). 1 ECF No. 8-2 at 30; ECF No. 8-1 (“Nobleza Decl.”) ¶ 15. The release notification 2 provides that Petitioner’s release is subject to certain conditions and that Petitioner 3 would be required to surrender to ICE for removal once a travel document is 4 obtained, although Petitioner’s deportation officer notes that this is an error and 5 that Petitioner will instead be required to surrender once a flight itinerary for 6 Petitioner is secured. ECF No. 8-2 at 30; Nobleza Decl. ¶ 17. In their 7 supplemental return, Respondents argue that the Petition is moot because the order 8 of supervision only permits Respondents to re-detain Petitioner if he violates a 9 condition of supervision, if his removal to Iraq becomes “imminently feasible with 10 a valid travel document and an available flight itinerary,” or if there is another 11 lawful basis for his detention. ECF No. 8 at 7–8. This contention is supported by 12 a declaration of Petitioner’s deportation officer. Nobleza Decl. ¶ 19. 13 II. Legal Standard 14 “At any stage of the proceeding a case becomes moot when ‘it no longer 15 present[s] a case or controversy under Article III, § 2 of the Constitution.’” Abdala 16 v. INS, 488 F.3d 1061, 1063 (9th Cir. 2007) (quoting Spencer v. Kemna, 523 U.S. 17 1, 7 (1998)). A case is moot when the court can no longer grant effective relief. 18 Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997), 19 as amended (Sept. 16, 1997). Federal courts cannot exercise jurisdiction over a 20 case if it is moot, but “[t]he burden of demonstrating mootness is a heavy one.” 21 West v. Sec’y of Dep't of Transp., 206 F.3d 920, 924 (9th Cir. 2000) (quoting 22 Northwest Envt’l Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988)). 23 Additionally, when a party voluntarily ceases the allegedly unlawful conduct, that 24 party “bears a formidable burden of showing that it is absolutely clear the allegedly 25 wrongful behavior could not reasonably be expected to recur.” Friends of the 26 Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 27 (2000). 28 \ \ \ 1 III. Discussion 2 The Court previously noted that a habeas petition seeking release from 3 immigration custody may not be mooted by the petitioner’s release if the release 4 could be revoked pursuant to the Government’s discretion or faced other 5 restrictions on his liberty. ECF No. 7 at 3 (citing Rodriguez v. Hayes, 591 F.3d 6 1105, 1117–18 (9th Cir. 2010); cf. Clark v. Martinez, 543 U.S. 371, 376 n.3 7 (2005); Nadeem v. Crawford, 465 F. App’x 659, 660 (9th Cir. 2012)). Petitioner’s 8 deportation officer now attests that Petitioner will not be re-detained unless 9 Petitioner violates a condition of his supervision, his removal becomes 10 “imminently feasible with a valid travel document and an available flight 11 itinerary,” or another lawful basis for his detention arises. Nobleza Decl. ¶ 19. 12 Respondents have presented a declaration under penalty of perjury that the 13 Government has not retained discretion to re-detain Petitioner absent the 14 conditions identified. This distinguishes his case from the petitioners in Rodriguez 15 and Clark who faced the prospect of future detention contingent on the 16 Government’s discretion. Rodriguez, 591 F.3d 1117–18; Clark, 543 U.S. at 376 17 n.3. Here, if the Court determined “that the Government lacks the authority to 18 continue to detain [Petitioner], he would have to be released, and could not be 19 taken back into custody unless he violated the conditions of release . . . or his 20 detention became necessary to effectuate his removal.” Clark, 543 U.S. 371, 376 21 n.3. Petitioner has been released and cannot be taken back into custody unless ICE 22 has both valid travel documents for him and a travel itinerary permitting him to be 23 imminently removed, a separate lawful basis for his detention arises, or he violates 24 the conditions of his order of supervision, which are authorized by 8 U.S.C. § 25 1231(a)(3). See Tuan Thai v. Ashcroft, 366 F.3d 790, 799 (9th Cir. 2004). In these 26 circumstances, the Petition no longer presents a live case or controversy because 27 the Court cannot order effective relief beyond what Respondents have already 28 provided. As Petitioner has not filed a reply, the Court cannot determine whether 1 Petitioner challenges any of the conditions of his release or whether other collateral 2 consequences of detention may be redressed through the Petition. Cf. Rodriguez, 3 591 F.3d at 1118 (noting that even though petitioner had been released, the petition 4 also challenged the strict limitations placed on his freedom by the order of 5 supervision). Accordingly, because Petitioner has already received all the relief he 6 sought in the Petition, the Court finds that the Petition for Writ of Habeas Corpus 7 is moot. 8 Petitioner also seeks “injunctive relief enjoining Respondents from further 9 unlawful detention of Petitioner.” ECF No. 1 at 8. However, the lawfulness of 10 Petitioner’s future detention depends on the foreseeability of Petitioner’s removal 11 at that point in time. Because it is impractical for the Court to determine whether 12 Petitioner’s removal may become reasonably foreseeable at some future date that 13 Respondents seek to detain him and Petitioner is not currently faced with the 14 prospect of being unlawfully re-detained, the question is not ripe.2 See Richardson 15 v. City & Cty. of Honolulu, 124 F.3d 1150, 1160 (9th Cir. 1997) (“Whether a claim 16 is ripe generally turns on the fitness of the issues for judicial decision and the 17 hardship to the parties of withholding court consideration.”); Nat’l Park Hosp. 18 Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (ripeness can be considered 19 sua sponte); cf. Zebdieh v. Sessions, No. 5:17-CV-01646-SVW-KES, 2018 WL 20 3155711, at *4 (C.D. Cal. June 25, 2018) (finding request for injunction not ripe 21 because it was “not clear that (1) another detention of Petitioner will occur, or (2) 22 that any future detention will violate the holding of Zadvydas,” and because 23 petitioner had not demonstrated harm from delayed consideration as he was not 24 currently detained). 25 \ \ \ 26 \ \ \ 27 2 The Petition may also be dismissed without prejudice for failure to prosecute because Petitioner 28 has not informed the Court of his current address within 60 days after the Court’s previous order was returned as undeliverable. See Civ. L.R. 83.11(b). 1 IV. Conclusion 2 The Court therefore DISMISSES the Petition for Writ of Habeas Corpus 3 || without prejudice. 4 IT IS SO ORDERED. 5 ||Dated: July 12, 2021 (2 apho Crk ) 6 Hon. Gonzalo P. Curiel 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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