Opinion
No. CV-20-01912-PHX-GMS (JZB)
06-16-2021
Mohammed Mostafa Altayar, Petitioner, v. Chad Wolf, Jesse Williams, II, Fred Figueroa, and Jeffrey A Rosen, Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Petitioner Mohammed Mostafa Altayar has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) On June 6, 2017, an Immigration Judge ordered Petitioner to be removed to Iraq from the United States. On February 10, 2020, Petitioner became subject to an enforceable final removal order when the Ninth Circuit's stay of removal was lifted. For more than eight months after the final order of removal was issued, travel restrictions in place due to the Covid-19 pandemic prevented Petitioner's removal. On June 8, 2021, Respondents filed notice that, on March 14, 2021, Petitioner was released from custody and removed from the United States to Iraq. (Doc. 16.) Petitioner's request that he be released from custody is now moot.
I. Procedural History.
A. Petitioner's Arrest and Removal Proceedings.
On January 25, 2011, Petitioner, a citizen of Iraq, entered the United States as a refugee. (Doc. 14-2, Ex. 2, at 7.) On May 24, 2012, Petitioner's United States Citizenship and Immigration Services adjusted Petitioner's immigration status to legal permanent resident. (Id.)
On May 7, 2015, Immigration and Customs Enforcement (ICE) officers encountered Petitioner at his home and arrested Petitioner after he served 48 hours in jail for a conviction of aggravated assault. (Doc. 14-2, Ex. 1, at 4.) On June 6, 2017, an Immigration Judge ordered Petitioner removed from the United States to Iraq. (Doc. 14-5, Ex. 12, at 2-29.) On June 29, 2017, Petitioner appealed the IJ's decision to the Board of Immigration Appeals (BIA) on the merits of his applications for asylum and related relief from removal. (Doc. 14-6, Ex. 15, at 9.) On November 14, 2017, the BIA denied Petitioner's appeal and denied his claims for asylum and relief. (Doc. 14-7, Ex. 18, at 5-10.) On December 13, 2017, Petitioner appealed the BIA's decision to the Ninth Circuit Court of Appeals. See Mohammed Altayar v. William Barr, Docket No. 17-73308 (9th Cir.).
On June 15, 2018, Petitioner filed a second petition for review with the Ninth Circuit challenging the BIA's denial of his Motion to Reopen his removal proceedings. See Mohammed Altayar v. William Barr, Docket No. 18-71754 (9th Cir.). Concurrent with his petition for review, Petitioner filed a Motion for a Stay of Removal with the Ninth Circuit. Id. On June 21, 2018, the Ninth Circuit consolidated Petitioner's two petitions for review. See Mohammed Altayar v. William Barr, Docket No. 18-71754 (9th Cir.).
On January 14, 2020, in a published opinion, the Ninth Circuit denied Petitioner's consolidated petitions for review, holding that Petitioner's conviction for aggravated assault under Arizona law constituted a crime involving moral turpitude rendering Petitioner removable from the United States. Altayar v. Barr, 947 F.3d 544, 554-55 (9th Cir. 2020). On February 10, 2020, the Ninth Circuit's stay of removal was lifted, and ICE resumed scheduling of Petitioner's removal. (Doc. 14-8, Ex. 24, at 15.)
On May 22, 2020, ICE received a travel document issued by the government of Iraq. (Doc. 14-9, Ex. 25, at 2.) On May 28, 2020, ICE initiated removal plans through Bahrain, the country generally utilized for transit in escorted removals to Iraq, and was informed that Bahrain remained closed to transit. (Id.) On August 19, 2020, ICE submitted a removal update request to ICE Air Operations (IAO), but was informed again that Bahrain remained closed. (Id.) Over the next four months, ICE submitted three additional removal update requests to IAO. (Id.) On December 14, 2020, after the fourth removal update request, IAO informed ICE that it may be possible to remove Petitioner to Iraq through Cairo, Egypt; however, a request for Petitioner's removal to Iraq through Cairo must be vetted and approved by the government of Iraq. (Id.)
On December 17, 2020, ICE submitted the necessary documents requesting approval from the Iraqi government to remove Petitioner to Iraq through Cairo, Egypt. (Doc. 14-9, Ex. 25, at 3.) As of January 6, 2021, IAO advised ICE that Petitioner's removal remained pending approval by Iraq authorities. (Id.)
On March 14, 2021, Petitioner was released from custody and removed from the United States to Iraq. (Doc. 16 at 2; Doc. 16-1 at 2-3.)
B. Habeas Petition.
On October 1, 2020, Petitioner filed the Petition challenging his indefinite detention in ICE custody and requesting the Court order a bond hearing. (Doc. 1.) The Court summarized his argument:
In Grounds One and Two, Petitioner challenges his indefinite detention under Zadvydas v. Davis, 533 U.S. 678 (2001). He claims that his detention in excess of six months after his order of removal became final, when there is no significant likelihood that he will be removed from the United States in the reasonably foreseeable future, violates 8 U.S.C. § 1231(a)(6) and the Due Process Clause of the Fifth Amendment.(Doc. 5 at 3-4.)
In Ground Three, Petitioner challenges his prolonged detention in post-removal order custody. He claims that his detention in excess of six months without a hearing before an impartial decisionmaker to determine whether his detention is justified violates the Due Process Clause of the Fifth Amendment.
In Ground Four, Petitioner challenges his indefinite detention under Zadvydas, supra. Petitioner claims that his detention under 8 U.S.C. § 1231(a)(6) in excess of six months when his removal from the United States is not likely to occur in the reasonably foreseeable future amounts to cruel and unusual punishment in violation of the Eighth Amendment.
On February 8, 2021, Respondents filed a Response. (Doc. 14.) On June 8, 2021, Respondents filed a notice that Petitioner was released from custody and removed from the United States to Iraq. (Doc. 16.) Petitioner did not reply to the notice.
II. The Petition is Moot.
The Court may grant a writ of habeas corpus to a detainee who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). 8 U.S.C. § 1231 governs the detention of aliens whose order of removal is administratively final. "The case or controversy requirement of Article III admonishes federal courts to avoid premature adjudication and to abstain from entangling themselves in abstract disagreements." U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999) (internal quotation marks and citations omitted). The Court must dismiss a case as moot if, at any point, it becomes certain either that "'the allegedly wrongful behavior could not reasonably be expected to recur,'" Friends of the Earth Inc. v. Laidlaw Environmental Assoc. (TOC), Inc., 528 U.S. 167 (2000) (citation omitted), or that there is no effective relief remaining for the court to provide. See Calderon v. Moore, 518 U.S. 149, 150 (1996). The case or controversy requirement warrants a finding of mootness if: (1) the petitioner has received the relief requested in the petition; or (2) the court is unable to provide the petitioner with the relief sought. Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir. 1997). The Court does not have subject matter jurisdiction to consider a habeas claim that is moot. See, e.g., McCullough v. Graber, 726 F.3d 1057, 1060 (9th Cir. 2013).
Here, Petitioner sought release from detention, but he is no longer detained because he has already been removed from the United States. Petitioner's case is rendered moot because there is no case or controversy. See Spencer v. Kemna, 523 U.S. 1 (1998) ("[M]ootness, however it may have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong."); Abdala v. INS, 488 F.3d 1061, 1064-65 (9th Cir. 2007) (discussing and collecting cases wherein a petitioner's release from detention or parole or their removal rendered a habeas petition moot); Mensah-Yawson v. Lowe, No. 3:16-cv-200, 2016 WL 3704878, *1 (M.D. Pa. July 12, 2016) ("[T]he habeas petition challenges petitioner's continued detention pending removal. Because petitioner has since been released from ICE custody and removed from the United States, the petition no longer presents an existing case or controversy. Accordingly, the instant habeas corpus petition will be dismissed as moot.").
III. Conclusion.
Petitioner seeks release from confinement. Because Petitioner has been removed from the United States, his Petition is moot.
Accordingly,
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (doc 1.) be DENIED and DISMISSED WITH PREJUDICE.
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 Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) 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 to the Report and Recommendation may not exceed seventeen (17) pages in length.
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 consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Dated this 16th day of June, 2021.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge