Virani v. Huron et al, No. 5:2019cv00499 - Document 53 (W.D. Tex. 2020)
Court Description: ORDER GRANTING 48 Motion to Dismiss for Mootness. IT IS FURTHER ORDERED that Petitioners Verified Amended Habeas Petition and Complaint for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#29] is DISMISSED AS MOOT. Signed by Judge Elizabeth S. Chestney. (bc)
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n, 568 U.S. 165, 172 (2013) (citations omitted). Because Petitioner’s requested relief in his habeas petition was release from ICE custody—and he was, in fact, released—all relief Petitioner requested has been granted. (Am. Pet. [#29], at 54). The Fifth Circuit has held that where an alien is granted the relief he requests, no “case or controversy” remains. See Ortez v. Chandler, 845 F.2d 573, 575 (5th Cir. 1988); see also Riley v. I.N.S., 310 F.3d 1253, 1257 (10th Cir. 2002) (holding that the petitioner’s supervised release from detention mooted his habeas challenge to the legality of his extended detention). Here, therefore, the petition is moot unless an exception applies. B. The capable-of-repetition-yet-evading-review exception does not apply. Neither exception to the mootness doctrine invoked by Petitioner applies here. Petitioner contends his allegedly illegal detention is “capable of repetition yet evading review.” This exception applies when “‘(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.’” See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)). Here, Petitioner has not shown “a reasonable expectation” that he will be subject to same alleged violations of procedural due process in the possible future detention. While Respondents’ could revoke Petitioner’s OSUP, if they do, the revocation decision and the new 5 Case 5:19-cv-00499-ESC Document 53 Filed 12/17/20 Page 6 of 7 period of detention would be governed by different regulations than governed the first period of detention. See 8 C.F.R. §§ 241.4 and 241.13(i); accord Alam v. Nielsen, 312 F. Supp. 3d 574, 581–82 (S.D. Tex. 2018) (denying habeas relief to petitioner who claimed ICE had violated the regulations governing the revocation of his OSUP). If Petitioner were to challenge ICE’s compliance with the OSUP revocation regulations, that challenge would involve a different set of facts and different regulations and should be brought in a new Section 2241 petition. C. The voluntary-cessation exception does not apply either. Petitioner also argues that because Respondents voluntarily ended his allegedly illegal detention, but could detain him again, the Court still has power to decide whether his original detention violated his due process rights. “It is well settled that ‘a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Thus, a defendant’s voluntary cessation only moots a case if “subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”). Id. at 170 (citing United States v. Concentrated Phosphate Exp. Ass’n., 393 U.S. 199, 203 (1968)). Here, the Respondents’ conduct that Petitioner challenges in his petition cannot recur. Even if Respondents did, as Petitioner alleges, fail to provide him with is 90-day and 180-day POCRs during his first period of detention, the regulations that require those incremental reviews are no longer applicable to Petitioner’s situation. As explained above, if Petitioner’s OSUP is revoked, that revocation and ensuing detention would be governed by different regulations. If ICE were to violate Petitioner’s procedural due process rights by violating other INS regulations, 6 Case 5:19-cv-00499-ESC Document 53 Filed 12/17/20 Page 7 of 7 that would be new, distinct conduct by Respondents that would give rise to a new habeas claim. In summary, Petitioner’s release from custody has mooted the sole remaining claim asserted in his habeas petition—that his due process rights were violated by Respondents when they originally detained him but failed to provide him with the detention reviews prescribed by law. Because Petitioner’s claim is moot, the Court lacks jurisdiction over Plaintiff’s amended habeas petition, and Respondents’ motion to dismiss should be granted. V. Conclusion IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss for Mootness [#48] is GRANTED. IT IS FURTHER ORDERED that Petitioner’s Verified Amended Habeas Petition and Complaint for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#29] is DISMISSED AS MOOT. IT IS SO ORDERED. SIGNED this 17th day of December, 2020. ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE 7
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