Chung v. Whiddon
| Decision Date | 09 July 2014 |
| Docket Number | Case No: 2:13-cv-85-FtM-29DNF |
| Court | U.S. District Court — Middle District of Florida |
| Parties | JAYSON CHUNG, Petitioner, v. STUART K. WHIDDON, Sheriff, MARC J. MOORE, Director of the Southern District Field Office, ANTHONY AIELLO, Asst. Field Office Director, ERIC HOLDER, Attorney General, and JANET NAPOLITANO, Secretary of The Department of Homeland Security, Respondents.1 |
Petitioner Jayson Chung ("Petitioner"), a native and citizen of Jamaica, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1, filed February 8, 2013). At the time he filed the petition, Petitioner had been detained in ICE custody at the Glades County Detention Center in Moore Haven,Florida since May 15, 2012. Id. at 1. Petitioner asserts that he is not subject to the mandatory detention provisions of INA § 236(c), 8 U.S.C. § 1226(c), because he was not taken into custody in "close temporal proximity" to his release from state incarceration (Doc. 1 at 4). Petitioner also asserts that his continued detention without an individualized bond hearing violates his due process rights under the Fifth Amendment of the United States Constitution (Doc. 1 at 2, 4). In addition, Petitioner challenges the legality of his underlying notice to appear ("NTA") as a whole because of a contradiction between his NTA and the Department of Homeland Security's Form I-826 (Doc. 1 at 4). Petitioner asks this Court to assume jurisdiction over this matter and order that he receive an individualized bond hearing (Doc. 1 at 5).2
Respondent was ordered to show cause why the petition should not be granted (Doc. 5). Respondent filed a response to the petition in which he argued that the habeas petition was premature and should be dismissed (Doc. 8). Specifically, Respondent notedthat Petitioner was currently subject to a final order of removal because he had failed to appeal the immigration judge's determination that Chung was removable (Doc. 8 at 3). Respondent argued that, because Petitioner was under a final order of removal, the statutory authority for his detention converted from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1231(a)(2). Respondent asserted that neither the statutory 90-day removal period prescribed by 8 U.S.C. § 1231(a)(b)(B)(i) nor the 180-day "presumptively reasonable" detention period, had yet expired (Doc. 8 at 6) (citing Zadvydas v. Davis, 533 U.S. 678 (2001) and Akinwale v. Ashcroft, 287 F.3d 1050, 1051 (11th Cir. 2002)).
Subsequent to the response, Petitioner was deported to Jamaica. Thereafter, Respondent filed a motion to dismiss the action as moot (Doc. 9, filed October 10, 2013). Petitioner has not responded to the motion to dismiss.
For the reasons set forth in this Order, Respondents' motion to dismiss the petition as moot is GRANTED. Petitioner's claim that he is being unconstitutionally held is moot. In addition, because this Court lacks jurisdiction to grant relief on Petitioner's claim contesting his NTA, the petition for writ of habeas corpus shall be DISMISSED.
Petitioner is a native and citizen of Jamaica (Doc. 8-1). He entered the United States as a lawful permanent resident onDecember 17, 1997. Id. On June 20, 2002, Petitioner was convicted in New York for criminal possession of marijuana for which he received a conditional discharge (Doc. 8-2). On September 10, 2002, Petitioner was convicted in New York on another charge of criminal possession of marijuana and imprisoned for seven days (Doc. 8-3). On February 22, 2008, Petitioner was convicted of criminal possession of a stolen or fictitious driver's license and for possession of marijuana in excess of twenty grams and received a suspended sentence (Doc. 8-4). On May 15, 2012, Petitioner was convicted for the fraudulent use of a social security number and the false impersonation of a United States citizen (Doc. 8-5). He was sentenced to time served and placed on supervised release for three years. Id.
Petitioner was detained by ICE officers on May 15, 2012 (Doc. 8-1). He was served with an NTA charging him with removability under 8 U.S.C. § 1227(a)(2)(B)(i); 8 U.S.C. § 1227(a)(2)(A)(ii) and 8 U.S.C. § 1227(a)(3)(D) for a controlled substance conviction, for convictions of two crimes involving moral turpitude, and for falsely representing himself as a United States citizen (Doc. 8-6).3 In January of 2013, the immigration court denied Petitioner'srequest for a custody redetermination, concluding that Petitioner was subject to detention without bond during the pendency of removal proceedings under 8 U.S.C. § 1226(c) (Doc. 1 at 2-3).
Subsequently, an immigration judge found Petitioner removable as charged and ordered his removal to Jamaica (Doc. 8-10). Petitioner did not appeal this decision, and authority for his detention shifted from 8 U.S.C. § 1226(c) to 8 U.S.C. § 1231(a)(3). See Denmore v. Kim, 538 U.S. 510, 512 (2003) ()(emphasis in original).
Petitioner was released from custody and removed to Jamaica on July 25, 2013 (Doc. 9; Doc. 9-1).
Petitioner claims that he is entitled to habeas relief based upon the length of his detention by ICE officials without an individualized bond hearing, which he says violates his substantive right to due process (Doc. 1 at 2). Petitioner also challenges the constitutionality of mandatory detention during removal proceedings under 8 U.S.C. § 1226 (Doc. 1 at 4).4
Respondent notes that Petitioner challenges only his continued detention, and has filed a motion to dismiss asserting that the petition is moot because, subsequent to the petition's filing, Petitioner was removed to Jamaica (Doc. 9 at 1) (citing Hernandez v. Wainwright, 796 F.2d 389, 390 (11th Cir. 1986); Suarez-Tejeda v. United States, 85 F. App'x 711, 715 (10th Cir. 2004); Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir. 1991)) (Doc. 9 at 2). Respondent attaches as an exhibit to the motion, Petitioner's detention history which indicates that he was removed on July 25, 2013 (Doc. 9-1).
The Eleventh Circuit has held that a Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001) (citing to Powell v. McCormack, 395 U.S. 486, 496 (1969)). "If 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." Id. at 1336. Where a habeas petitioner who was protesting his detention is no longer in custody, the dispute with regard to his detention is mooted. See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998) ().
It is undisputed that Petitioner has been released. Accordingly, to the extent Petitioner seeks release from INS custody or an individualized bond hearing, the Court can no longer give Petitioner any meaningful relief. See Soliman v. United States, 296 F.3d 1237, 1242-43 (11th Cir. 2002) (); Ousama v. Gonzales, Case No. CA 06-0770, 2007 WL 710106, at *2 (S.D. Ala. 2007) (); Gauchier v. Davis, Case No. 01-3710, 2002 WL 975434, at *2 (E.D. La. 2002) (); Xing Hai Liu v. Ashcroft, 218 F.Supp.2d 1, 1 (D. Me. 2002) (); Malainak v. Immigration & Naturalization Serv., No. 3-01-cv-1989, 2002 WL 220061, at *2 (N.D. Tex. 2002) ().
There is a narrow exception to the mootness doctrine for actions that are capable of repetition yet evading review. See Najjar, 273 F.3d at 1336, 1340. The exception may be invoked only when: "(1) there [is] a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration." Id. at 1336 (quoting Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997)).
The instant case cannot satisfy the narrow exception to the mootness doctrine because Petitioner is no longer being held pursuant to 8 U.S.C. § 1226(c). The issuance of a final removal order subsequent to Petitioner filing his habeas petition "fundamentally change[d] the procedural posture of the case" and rendered the petition moot. See De La Teja v. United States, 321 F.3d 1357, 1363 (11th Cir. 2003). The Eleventh Circuit's reasoning in De La Teja is instructive.
At the time he had filed his § 2241 habeas petition, De La Teja, like Petitioner, was detained pursuant to § 1226(c) pending a final decision on the INS's removal petition. De La Teja, 321 F.3d at 1362. Subsequently, De La Teja's removal order became final and he became subject to detention pursuant to § 1231(a)(2). Id. at 1363. The Eleventh Circuit concluded that De La Teja's habeas petition was moot "[b]ecause the Attorney General no longer [was] acting pursuant to § 1226(c)," and it was "altogether inappropriate" to consider the question of whether De La Teja's detention pursuant to § 1226(c) violated due process. Id. at 1263. The court addressed the narrow exception to the mootness doctrine, noting that "actions that are capable of repetition yet evading review applies only to the exceptional circumstance in which the same controversy will recur and there will be inadequate time to litigate it prior to its cessation." 321 F.3d at 1364, n. 3 (citation omitted). The court...
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