On July 19, 2007, this Court ordered the case in Henry v. Gonzales 1:07-1
1438-CAM to be administratively closed after finding that Henry Wesley had
filed a second petition raising the same challenge to his detention. Henry v.
Gonzales, No. 1:07-1438-CAM (N.D. Ga. Jul. 19, 2007) Doc. 3.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SEAN WESLEY HENRY :
(a/k/a NANYA-SHAABU:EL), :
:
:
Petitioner, :
:
vs. : CIVIL ACTION NO.
: 1:07-CV-01185-CAM-ECS
ALBERTO GONZALES :
United States Attorney General, et al., :
:
Respondents. :
MOTION TO DISMISS, OPPOSITION TO PLAINTIFF’S MOTIONS,
AND SUPPORTING MEMORANDUM
COMES NOW Respondents Alberto Gonzales, the Attorney General of the
United States Department of Justice, Michael Chertoff, Secretary, Department of
Homeland Security; Raymond A. Simonse, Field Director, Immigration and Customs
Enforcement (“ICE”), and David Rivera, Immigration Supervisory Deportation
Officer, Department of Homeland Security (“Respondents”), through David E.
Nahmias, United States Attorney for the Northern District of Georgia, and
respectfully move to dismiss the amended habeas petition (“petition”) filed by Henry
Sean Wesley (a/k/a Nanya-Shaabu:El) on July 17, 2007. 1
On August 16, 2007, this Court entered an order for Respondents to show cause
why Petitioner Chen Sean Henry’s (“Henry”) petition should not be granted. Doc.
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 1 of 8
2
(unnumbered). Respondents received the Show Cause Order on August 20, 2007,
making the response due on September, 19, 2007. Respondents hereby respond to Mr.
Henry’s petition, and request that Mr. Henry’s other motions (Docs. 10-13) be denied
for lack of jurisdiction.
ARGUMENT
I. THE PETITION IS MOOT BECAUSE MR. HENRY HAS BEEN REMOVED.
Mr. Henry was removed back to Canada on June 21, 2007. See Petitioner’s
Canadian address on docket sheet; see also Declaration of Morris I. Onyewuchi, ICE
Assistant Chief Counsel, Atlanta District ¶ 15 (attached hereto). Mr. Henry’s removal
makes his petition for writ of habeas corpus moot because there is no actual
controversy in this case relating to his detention. Consequently, the Court should
dismiss the petition on the grounds that it is moot.
As the Eleventh Circuit has explained, “a case is moot when it no longer
presents a live controversy with respect to which the court can give meaningful relief.”
Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dept. of Health and Rehab Servs., 225 F.3d 1208,
1216-17 (11 Cir. 2000) (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11 Cir. 1993)). th th
Thus, “[i]f events that occur subsequent to the filing of a lawsuit or an appeal deprive
the court of the ability to give the plaintiff or appellant meaningful relief, then the case
is moot and must be dismissed.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11 Cir.th
2001).
In his petition Mr. Henry only challenges the lawfulness of his detention prior to
removal and not the lawfulness of the removal order. See Amended Petition for Writ
of Habeas Corpus. Doc. 2. Obviously, issues related to Mr. Henry’s removal are now
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 2 of 8
The memorandum in support of Mr. Henry’s motion for summary2
judgment is incomplete and only contains one page. See Doc. 12.
3
moot. See Soliman v. United States, 296 F.3d 1237 (11th Cir. 2002) (appeal was rendered
moot when alien was removed and returned to his native country.). Because the
detention has ceased with Mr. Henry’s removal, this Court cannot provide him with
any, let alone meaningful relief.
Moreover, since Mr. Henry has been removed and it is improbable that this
same controversy will recur involving him, the “narrow exception” for cases that are
“capable of repetition yet evading review” does not apply. Soliman, 296 F.3d at 1243.
That exception can be invoked “only in the exceptional circumstance in which the
same controversy will recur and there will be inadequate time to litigate it prior to its
cessation.” Id. (emphasis added). As shown above, neither basis for the exception
exists in this case.
Based on the foregoing, there is nothing for this Court to remedy relating to Mr.
Henry’s detention even if it were disposed to do so, and no live case or controversy
exists following Mr. Henry’s release. Accordingly, Respondents respectfully request
this Court to dismiss Mr. Henry’s writ of habeas petition on mootness grounds.
II. THIS COURT SHOULD DENY PLAINTIFF’S OTHER MOTIONS AND
DISMISS THE CLAIMS THEREIN FOR LACK OF JURISDICTION
PURSUANT TO THE REAL ID ACT.
In addition to his Amended Petition, Mr. Henry has filed a motion to compel, a
motion for summary judgment, a motion for default, and a motion for recoupment.
Docs. 10-13. However, the claims raised by all of those motions appear to challenge2
the factual circumstances and legal aspects of his removal and should be dismissed
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 3 of 8
In order to make this point absolutely clear, Congress also enacted3
new Section 242(a)(5) of the INA, 8 U.S.C. § 1252(a)(5), as amended by REAL ID
Act § 106(a). This provision, which is entitled “Exclusive Means of Review,”
states as follows:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of title 28, United States Code, or any other habeas corpus
provision, and section 1361 and 1651 of such title, a petition for review filed
with an appropriate court of appeals in accordance with this section shall be
the sole and exclusive means of judicial review of an order of removal
entered or issued under any provision of this Act, except as provided in
subsection (e).
8 U.S.C. § 1252(a)(5)(emphasis added); see also 8 U.S.C. § 1252(g), as amended by
REAL ID Act § 106(a)(making clear that 242(g)’s jurisdictional bar precludes
habeas review and any other review in district court).
4
because the Court lacks jurisdiction to review them via a writ of habeas corpus. In
2005, the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 310, amended 8 U.S.C. § 1252
to eliminate habeas review of final removal orders. See 8 U.S.C. §§ 1252(a)(5), (b)(9), (g)
(as amended by Real ID Act § 106); see also Balogun v. U.S. Attorney Gen., 425 F.3d 1356,
1359-60 (11th Cir. 2005) (explaining Real ID Act’s effect on habeas review). Section
106(a)(2)amended 8 U.S.C. § 1252(b)(9), which now states as follows:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the United States under
this subchapter shall be available only in the judicial review of a final order
under this section. Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of title 28, United States Code, or any
other habeas corpus provision, by section 1361 or 1651 of such title, or by any other
provision of law (statutory or nonstatutory), to review such an order or such questions
of law or fact.3
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 4 of 8
In addition, Plaintiff’s motion to compel the production of discovery that4
is allegedly outstanding in the immigration and state court cases is not properly
before this Court. See Doc. 13 at 1.,
5
Thus, the district courts no longer have habeas jurisdiction to review removal orders
under 28 U.S.C. § 2241 or any other provision of law. See 151 Cong. Rec. H2813, 2837,
109 Cong., 1 Sess, available at 2005 WL 1025891 (May 3, 2005)(stating that theth st
amendment to Section 242(b)(9) of the INA is intended to “clarify that, except as
otherwise provided in section 242 of the INA, no court is to have jurisdiction for
habeas review or other non-direct judicial review of a removal order or questions of
law or facts arising from such an order”).
Exclusive jurisdiction for review of final orders of removal now lies in the
Courts of Appeals. 8 U.S.C. § 1252(a)(5). Thus, to the extent Mr. Henry is challenging
the lawfulness or any factual findings related to his removal order through the above-
referenced motions, those motions should be denied and claims therein dismissed for
lack of jurisdiction.4
CONCLUSION
For all of the above reasons, this petition for habeas corpus should be
dismissed.
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 5 of 8
6
Respectfully submitted this 19th day of September, 2007.
DAVID E. NAHMIAS
UNITED STATES ATTORNEY
S/Melaine A. Williams
____________________________
MELAINE A. WILLIAMS
ASSISTANT U.S. ATTORNEY
Georgia Bar No. 057307
600 Richard B. Russell Bldg.
75 Spring Street, SW
Atlanta, Georgia 30303
(404) 581-6063 (telephone)
(404) 581-6150 (facsimile)
OF COUNSEL:
MORRIS I. ONYEWUCHI
Assistant District Counsel
Department of Homeland Security
77 Forsyth Street, SW, Room 385
Atlanta, Georgia 30303
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 6 of 8
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CERTIFICATE OF COMPLIANCE
I certify that the documents to which this certificate is attached have been
prepared with one of the font and point selections approved by the Court in Local Rule
5.1B for documents prepared by computer.
S/Melaine A. Williams
____________________________
MELAINE A. WILLIAMS
Assistant U.S. Attorney
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 7 of 8
8
CERTIFICATE OF SERVICE
I certify that on September 19, 2007, I electronically filed the within and
foregoing with the Clerk of Court using the CM/ECF system which will automatically
send email notification of such filing to the Clerk of Court.
I also certify that I have this day served the within and foregoing Motion to
Dismiss by depositing a copy thereof in the United States mail, first class postage
prepaid, and properly addressed to ensure delivery upon the following:
Sean Wesley Henry
a/k/a Nanya-Shaabu:El
Gd Stn Main
Demonton, AB T5J2G8
Case 1:07-cv-01185-CAM Document 15 Filed 09/19/07 Page 8 of 8
