Civil No. 17-cv-226-DRH-CJP
REPORT AND RECOMMENDATION PROUD, Magistrate Judge :
Petitioner Kariuki Alfred Wachaga filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241 challenging his detention by Immigration and Customs Enforcement (ICE).
Now before the Court is respondent's Motion to Dismiss Petition as Moot. (Doc. 20). Petitioner has not responded to the motion.
For the reasons discussed below, the undersigned RECOMMENDS that the District Judge GRANT the motion.
Relevant Facts and Procedural History
Petitioner is a native and citizen of Kenya who does not have legal status in the United States. ICE initiated removal proceedings and petitioner was ordered removed as inadmissible. The order of removal became final in July 2016. Petitioner was detained in ICE custody since March 2016. See, Doc. 1, pp. 2-3.
The § 2241 petition, filed in March 2017, asserts that petitioner's continued detention is unlawful because he has been detained longer than the presumptively reasonable period of six months set by Zadvydas v. Davis, 121 S. Ct. 2491 (2001). The relief sought is release from custody.
Grounds for Dismissal
During the pendency of this action, ICE procured the necessary travel document, and, on October 27, 2017, petitioner was removed from the United States to Kenya. See, Supplemental Declaration, attached to Doc. 20 as Exhibit 1.
Under 28 U.S.C. § 2241(c), a writ of habeas corpus "shall not extend to a prisoner" unless he is "in custody." The "in custody" requirement is satisfied if the petitioner was in custody at the time of the filing of the petition. Spencer v. Kemna, 118 S. Ct. 978, 983 (1998). Therefore, a detainee who is released while his petition for writ of habeas corpus is pending meets the "in custody" requirement; his release does not necessarily render his petition moot.
However, the petition must still present a "case or controversy" under Article III, § 2 of the Constitution. That is, the petitioner "must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision." Spencer, 118 S. Ct. at 983 (internal citation omitted).
"The inability to review moot cases stems from the requirement of Article III of the Constitution which limits the exercise of judicial power to live cases or controversies." A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004). The Seventh Circuit directs a federal court to "dismiss a case as moot when it cannot give the petitioner any effective relief." Ibid. That is the situation here. According to the Supplemental Declaration, petitioner has been removed to Kenya. Petitioner has received the relief sought, i.e., release from ICE custody.
For the foregoing reasons, the undersigned RECOMMENDS that the District Judge GRANT the Motion to Dismiss (Doc. 20) and dismiss this action without prejudice.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to any or all of the proposed findings and recommendations set forth above. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. See, e.g., Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
IT IS SO ORDERED.
DATE: July 26, 2018.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE