Ruben Bracamontes-Reyes v. Jeff B Sessions, III, et al.

Opinion

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9 Ruben Bracamontes-Reyes, No. CV 18-1301-PHX-DLR (JZB)

10 Petitioner, REPORT AND RECOMMENDATION 11 v.

12 Jeff B Sessions, III, et al.,

Respondents. 14 15 TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT 16 JUDGE: 17 Petitioner Ruben Bracamontes-Reyes has filed a Petition for Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2241. (Doc. 1.) On August 12, 2016, Petitioner was detained 19 pursuant to the government’s intent to reinstate a prior removal order. Petitioner claimed a 20 fear of returning to his home country, and requested a bond hearing while his asylum claim 21 was under consideration. Petitioner’s request for a hearing was denied, and Petitioner 22 subsequently filed this matter. But on June 22, 2018, Petitioner advised the Court that the 23 petition and pending motions are moot because Petitioner was granted a bond hearing and 24 was released from custody. Therefore, the Court recommends the matter be dismissed with 25 prejudice. 26 I. Procedural history. 27 A. Prior removal. 28 On January 17, 2003, Petitioner was removed from the United States pursuant to an 1 order of removal. (Doc. 1-6, Ex. D, at 2.) 2 B. Withholding only. 3 On January 21, 2003, Petitioner “illegally reentered the United States on or about 4 January 31, 2003, at or near Sasabe, Arizona.” (Id.) On June 15, 2016, police officers in 5 Marana, Arizona arrested Petitioner on outstanding warrants and released to him to DHS 6 officers. (Doc. 1-5, Ex. C, at 3-4.) On August 12, 2016, DHS served Petitioner with a 7 Notice of Intent/Decision to Reinstate Petitioner’s Prior Removal Order. (Doc. 1-6, Ex. D, 8 at 2-3.) That same day, August 12, 2016, Petitioner claimed a fear of returning to his home 9 country and was referred to an asylum officer for a reasonable fear interview. (Doc. 1-7, 10 Ex. E, at 2.) 11 On April 19, 2018, Petitioner requested a bond hearing with an immigration judge 12 (doc. 1-10, ex. H, at 2), who denied the motion due to lack of jurisdiction (doc. 1-11, ex. I, 13 at 2). On or about April 25, 2018, Petitioner appealed this denial to the Board of 14 Immigration Appeals. (Doc. 1-12, Ex. J, at 2.) Petitioner advised that the appeal was 15 pending. (Doc. 1 at 7.) 16 C. Habeas Petition and Motion for Preliminary Injunction. 17 On April 26, 2018, Petitioner filed the Petition requesting he “be afforded a proper 18 bond hearing by the Florence Immigration Court.” (Doc. 1 at 2.) Also on April 26, 2018, 19 Petitioner filed a Motion for Preliminary Injunction and/or Motion for Temporary 20 Restraining Order. (Doc. 2.) On May 24, 2018, Respondents filed a Response. (Doc. 12.) 21 On June 7, 2018, Petitioner filed a Motion to Expedite Ruling on Petition for Habeas 22 Corpus. (Doc. 15.) Petitioner argued that “U.S. Magistrate Judge, Jacqueline Scott Corley, 23 of the U.S. District Court of the Northern District of California, issued her Order Re 24 Plaintiff’s Motions for Class Certification and Preliminary Injunction in Aleman-Gonzalez, 25 et al., v. Sessions, et al., 18-cv-01869-JSC, on June 5, 2018.” (Id. at 2.) In that matter, 26 Magistrate Judge Corley ruled that the “Government is enjoined from detaining Plaintiffs 27 and the class members pursuant to section 1231(a)6) for more than 180 days without [] 28 providing each a bond hearing before an IJ as required by Diouff II.” (Doc. 14-1, Ex. 1, at 1 20.) Petitioner argues that because Aleman-Gonzalez was “controlling,” Petitioner was 2 entitled to an order requiring Petitioner be afforded a release “hearing before an 3 Immigration Judge.” (Id.)1 4 D. Petitioner’s release from custody. 5 On June 15, 2018, Respondents advised the Court that Petitioner was set for a bond 6 hearing on June 20, 2018. (Doc. 17 at 1.) On June 22, 2018, Petitioner filed a response 7 stating that Petitioner “concedes that his petition for habeas relief, and the accompanying 8 motion for preliminary injunctive relief are, in fact, moot because Petitioner has now 9 received a bond hearing, and has been released from detention.” (Doc. 19 at 1.) 10 II. The Petition and Motion are moot. 11 The Court may grant a writ of habeas corpus to a detainee who is “in custody in 12 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 13 2241(c)(3). 8 U.S.C. § 1231 governs the detention of aliens whose order of removal is 14 administratively final. “The case or controversy requirement of Article III admonishes 15 federal courts to avoid premature adjudication and to abstain from entangling themselves 16 in abstract disagreements.” U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 17 1999) (internal quotation marks and citations omitted). The Court must dismiss a case as 18 moot if, at any point, it becomes certain either that “‘the allegedly wrongful behavior could 19 not reasonably be expected to recur,’” Friends of the Earth Inc. v. Laidlaw Environmental 20 Assoc. (TOC), Inc., 528 U.S. 167 (2000) (citation omitted), or that there is no effective 21 relief remaining for the court to provide. See Calderon v. Moore, 518 U.S. 149, 150 (1996). 22 The case or controversy requirement warrants a finding of mootness if: (1) the petitioner 23 has received the relief requested in the petition; or (2) the court is unable to provide the 24 petitioner with the relief sought. Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir. 25 1997). The Court does not have subject matter jurisdiction to consider a habeas claim that 26 is moot. See, e.g., McCullough v. Graber, 726 F.3d 1057, 1060 (9th Cir. 2013). 27 28 1 The Court notes that Petitioner’s counsel, Matthew Green, was appointed as class counsel in the Aleman-Gonzalez case. (See Doc. 14-1 at 18.) 1 Here, Petitioner sought release from detention, but he is no longer detained. 2 Petitioner’s case is rendered moot because there is no case or controversy. See Spencer v. 3 Kemna, 523 U.S. 1 (1998) (“[M]ootness, however it may have come about, simply deprives 4 us of our power to act; there is nothing for us to remedy, even if we were disposed to do 5 so. We are not in the business of pronouncing that past actions which have no demonstrable 6 continuing effect were right or wrong.”); Abdala v. INS, 488 F.3d 1061, 1064-65 (9th 7 Cir. 2007) (discussing and collecting cases wherein a petitioner’s release from detention or 8 parole or their removal rendered a habeas petition moot); Mensah-Yawson v. Lowe, No. 9 3:16-cv-200, 2016 WL 3704878, *1 (M.D. Pa. July 12, 2016) (“[T]he habeas petition 10 challenges petitioner’s continued detention pending removal. Because petitioner has since 11 been released from ICE custody and removed from the United States, the petition no longer 12 presents an existing case or controversy. Accordingly, the instant habeas corpus petition 13 should be dismissed as moot.”).2 14 III. Conclusion. 15 Petitioner seeks release from confinement. Because Petitioner is no longer in 16 custody and has been removed from the United States, his Petition is moot. 17 Accordingly, 18 IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED 19 and DISMISSED WITH PREJUDICE.3 20 IT IS FURTHER RECOMMENDED that the Motion for Preliminary Injunction

21 2 In a status report, Petitioner states that “[a]lthough Petitioner does not object to 22 dismissal of the underlying petition as moot, he does so with the understanding that he is the ‘prevailing party’ as defined in 28 U.S.C. § 2412(a)(1).” (Doc. 19 at 2.) Respondents 23 oppose Petitioner’s assertion (doc. 20) and correctly note that Petitioner has yet received no relief from the filing of this case. The question of attorney fees is not before this Court. 24 3 The Petition should be dismissed with prejudice. See Abdala, 488 F.3d at 1065 25 (“Abdala’s attempt to amend his habeas petition after his deportation could not revive his petition. He sought to file an amended petition . . . after he was released from custody and 26 deported to Somalia. As Abdala was no longer ‘in custody’ within the meaning of [the habeas statute] when he attempted to amend his petition, his petition was moot and there 27 was nothing to amend.”); Noyola v. DHS, No. SA CV 15-00544-JCG, 2015 WL 3644006 (C.D. Cal. June 8, 2015) (“Petitioner’s removal renders the instant Amended Petition 28 moot. . . . Hence, the Amended Petition does not present a live controversy and must be dismissed with prejudice . . . .”) (emphasis added). || and/or Motion for Temporary Restraining Order be DENIED AS MOOT. (Doc. 2.) 2 IT IS FURTHER RECOMMENDED that the Motion to Expedite Ruling on 3 || Petition for Habeas Corpus be DENIED AS MOOT. (Doc. 15.) 4 This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 6|| Appellate Procedure, should not be filed until entry of the District Court’s judgment. 7 Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 8 || fourteen (14) days from the date of service of a copy of this recommendation within which 9||_ to file specific written objections with the Court. Thereafter, the parties have fourteen (14) 10 || days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections 12 || to the Report and Recommendation may not exceed seventeen (17) pages in length. 13 Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party’s right to de novo appellate 15 || consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 16 || Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations 17 || of the Magistrate Judge will constitute a waiver of a party’s right to appellate review of the 18 || findings of fact and conclusions of law in an order or judgment entered pursuant to the 19 || recommendation of the Magistrate Judge. 20 Dated this 28th day of June, 2018. 21

23 United States Magistrate Judge 24 25 26 27 28

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