“[F]or a habeas petition to continue to 21 present a live controversy after petitioner’s release. . . there must be some remaining 22 ‘collateral consequence’ that may be redressed by success on the petition.” (citation 23 omitted.)
How later courts described this case
- “[F]or a habeas petition to continue to 21 present a live controversy after petitioner’s release. . . there must be some remaining 22 ‘collateral consequence’ that may be redressed by success on the petition.” (citation 23 omitted.)
- declining to apply exception even 6 when the plaintiff had suffered an initial injury because the possibility of recurring injury 7 was speculative
Written by the judges who cited it.
The opinion
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6 UNITED STATES DISTRICT COURT
7 SOUTHERN DISTRICT OF CALIFORNIA
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9 RABIEH ALAWAD, Case No.: 3:16-CV-2227-JAH-BLM
Petitioner,
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v. ORDER DISMISSING AS MOOT
11 PETITION FOR WRIT OF HABEAS
FRED FIGUEROA, Warden; GREGORY
CORPUS PURSUANT TO 28 U.S.C §
12 ARCHAMBEAULT, Field Office
2241
Director, U.S. Immigration and Customs
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Enforcement; et al.,
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Respondents.
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17 INTRODUCTION
18 Pending before the Court is Rabieh Alawad’s (“Petitioner”) Petition for Writ of
19 Habeas Corpus pursuant to 28 U.S.C. § 2241. (See Petition, ECF No. 1). The Petition is
20 fully briefed. (See ECF No. 3, 4, 6, 8, 9). Upon review of the parties’ submissions, and
21 for the reasons set forth below, the Court DENIES as moot the Petition for Writ of Habeas
22 Corpus.
23 BACKGROUND
24 Petitioner is a Syrian national, and in March of 2016 traveled with his family via
25 Mexico seeking refuge “from religious and political persecution” in the United States at
26 the San Ysidro, California, Port of Entry. (ECF No. 1 at 3). There, Petitioner presented
27 himself to a United States Customs and Border Patrol official and requested asylum. (Id.)
28 Petitioner was detained in Otay Mesa and his family was transferred to a residential center
1 in Dilley, Texas. (Id.) Petitioner’s wife was interviewed by an asylum officer with the
2 U.S. Citizenship and Immigration Service (CIS) who determined she had “a credible fear
3 of persecution and torture and issued a positive fear determination[.]” (Id.) On April 7,
4 2016, a CIS asylum officer interviewed Petitioner and consolidated his application with his
5 wife’s asylum application. (Id. at 4). Petitioner was subsequently put in removal
6 proceedings by the San Diego Immigration Court, where he requested discretionary parole.
7 (Id.) Petitioner’s request was denied. (Id.) Petitioner later appeared before an Immigration
8 Judge (“IJ”) asserting the IJ possessed jurisdiction to hold a bond determination hearing
9 under Matter of X-K-, 23 I&N Dec. 731 (BJA 2005)1 under section 235(b)(1)(A) of the
10 Immigration and Nationality Act (INA), 8 U.S.C. § 1225(b)(1)(A) (2000). (Id. at 5). DHS
11 opposed the request, and the Immigration Judge subsequently denied Petitioner’s request.
12 (Id.)
13 The instant petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 was
14 filed with this Court on September 2, 2016. (See generally ECF No. 1). Relevant here,
15 Petitioner requested relief in the form of a bond redetermination hearing or an immediate
16 release from custody. (Id. at 7). An appeal of the Immigration Judge’s decision was
17 pending with the Board of Immigration Appeals at the time of Petitioner’s filing. (Id.)
18 Respondents filed a return arguing the Immigration Judge lacked jurisdiction until
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21 1 In Matter of X-K-, the Board of Immigration Appeals held that an asylum seeker who is initially placed
in expedited removal proceedings under INA § 235(b)(1)(A), 8 U.S.C. § 1225(b)(1)(A), but who then is
22 placed in regular removal proceedings under INA § 240, 8 U.S.C. § 1229a proceedings after a positive
credible fear determination, is eligible for a bond hearing before an IJ unless the alien is a member of
23 any of the listed classes of aliens who are specifically excluded from the custody jurisdiction of IJs
pursuant to 8 C.F.R. § 1003.19(h)(2)(i). In re Matter of X-K-, 23 I&N Dec. 731 (BJA 2005). The
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Attorney General later issued a self-certification finding Matter of X-K- to have been “wrongly decided”
25 and overruling it. Matter of M-S-, 27 I. & N. Dec. at 510. In M-S-, the alien was transferred from
expedited to full removal proceedings after establishing a credible fear, and an IJ ordered his release on
26 bond. The Attorney General disagreed with the BIA's statutory interpretation in Matter of X-K- and
concluded that the “text ... mandate[d]” the conclusion that “aliens who are originally placed in
27 expedited proceedings and then transferred to full proceedings after establishing a credible fear ...
remain ineligible for bond, whether they are arriving at the border or are apprehended in the United
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1 Petitioner was in custody for six-months , a threshold not met at the time of filing. (See
2 Resp. Return, ECF No. 3). Petitioner appeared before an Immigration Judge on October
3 12, 2016, for a bond hearing. (Id. at 2).
4 Petitioner filed a reply in support of his petition but did not specifically address his
5 upcoming bond hearing, only to say he has exhausted his administrative remedies, and a
6 failure to do so is not required to seek relief under § 2241. (See Pet. Reply, ECF No. 4).
7 Rather, Petitioner reasserted his challenge to 8 C.F.R. 1003.19(h)(2)(i)(B) as ultra vires
8 and unconstitutional.3 (Id.)
9 On October 14, 2016, the Court requested both parties to file a status report by
10 October 28, 2016, addressing the status of the Petitioner’s immigration proceedings.
11 (Order for Status, ECF No. 5). Respondents filed a status report stating Petitioner appeared
12 before the Immigration Judge for a bond hearing on October 12, 2016, and was released
13 on bond that same day. (Resp. Status Rep., ECF No. 6). Respondents argued that
14 Petitioner’s petition should be dismissed as moot because he was released from custody.
15 (Id.) Petitioner failed to file a status report. Thereafter, the Court directed Petitioner file a
16 supplemental brief to address whether his petition was now moot. (Order for Supp. Brief.,
17 ECF No. 7).
18 On November 15, 2016, Petitioner filed a supplemental brief where he argued (1)
19 his release does not make his Petition moot since he is subject to detention at any time; (2)
20 his petition is not moot as it alleges constitutional and legal violations that are capable of
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2 This argument has been dismissed by the Supreme Court in Jennings v. Rodriguez, where the Court
23 found, “Nothing in § 1226(a)'s text—which says only that the Attorney General ‘may release’ the alien
‘on ... bond’—even remotely supports the imposition [of periodic bond hearings every six months]. Nor
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does § 1226(a)'s text even hint that the length of detention prior to a bond hearing must specifically be
25 considered in determining whether the alien should be released.” 138 S. Ct. 830, 847-48 (2018). The
Court declined to engage further in any bail-related constitutional argument.
26 3 “Upon expiration of the Transition Period Custody Rules set forth in section 303(b)(3) of Div. C. of
Pub. L. 104–208, an immigration judge may not redetermine conditions of custody imposed by the
27 Service with respect to the following classes of aliens: . . . (B) Arriving aliens in removal proceedings,
including aliens paroled after arrival pursuant to section 212(d)(5) of the Act[.]” 8 C.F.R.
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1 repetition yet evading review, and; (3) administrative remedies are inadequate, and a
2 showing of irreparable injury should not be required. (See Pet. Supp. Brief, ECF No. 8).
3 Respondents argued (1) no collateral consequence exists to be redressed by way of the
4 Habeas petition; (2) Petitioner does not challenge the Immigration Judge’s bond decision;
5 and (3) Petitioner incorrectly suggests that Respondents would ignore the Immigration
6 Judge’s bond decision and act unlawfully. (See Resp. Supp. Brief, ECF No. 9).
7 LEGAL STANDARD
8 Under 28 U.S.C. § 2241, district courts have jurisdiction to consider a habeas
9 petition brought by a federal pretrial detainee. See McNeely v. Blanas, 336 F.3d 822, 824
10 (9th Cir. 2003); Hoyle v. Ada Cty., 501 F.3d 1053, 1058 (9th Cir. 2007). Pursuant to section
11 2241(c)(3), a district court may grant a writ of habeas corpus to a federal detainee “in
12 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
13 § 2241(c)(3).
14 ANALYSIS
15 I. Mootness
16 Petitioner seeks relief in the form of a bond redetermination hearing or an immediate
17 release from custody. As noted above, Petitioner appeared before an Immigration Judge
18 for a bond hearing on October 12, 2016, and was released on a $1500 bond that same day.
19 (ECF Nos. 6, 9). Petitioner’s release from custody renders his petition moot. See Abdala
20 v. I.N.S., 488 F.3d 1061, 1063064 (9th Cir. 2007) (“[F]or a habeas petition to continue to
21 present a live controversy after petitioner’s release. . . there must be some remaining
22 ‘collateral consequence’ that may be redressed by success on the petition.” (citation
23 omitted.))
24 Petitioner contends this Court maintains jurisdiction on the basis of collateral legal
25 consequences, and wrongs capable of repetition, yet evading review. (ECF No. 8 at 7-11).
26 However, Petitioner has not demonstrated that he will suffer any remaining legally
27 cognizable collateral consequences and asserts no other viable collateral consequences that
28 his original petition could have redressed, as he was granted a bond redetermination
1 hearing as requested. As such, “there [is] no extant controversy for the district court to act
2 upon.” Abdala, 488 F.3d at 1065. Furthermore, there is no reasonable expectation that
3 Petitioner would be unlawfully detained in the future. If Petitioner’s bond was revoked, it
4 would be based on new justifications, at which time he can bring a new habeas petition.
5 See, e.g., Murphy v. Hunt, 455 U.S. 478, 482–84 (1982) (declining to apply exception even
6 when the plaintiff had suffered an initial injury because the possibility of recurring injury
7 was speculative); see also Spencer, 523 U.S. at 17-18 (“[Petitioner] has not shown (and we
8 doubt that he could) that the time between parole revocation and expiration of sentence is
9 always so short as to evade review. Nor has he demonstrated a reasonable likelihood that
10 he will once again be paroled and have that parole revoked.” (emphasis added)).
11 II. Due Process Challenge
12 “Freedom from imprisonment—from government custody, detention, or other
13 forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment's Due
14 Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Petitioner was
15 granted a bond determination hearing and is no longer detained and, therefore, his due
16 process challenge is also moot. See Moses v. Lynch, 2016 WL 2636352 (D. Minn. April
17 12, 2016), report and recommendation adopted, 2016 WL 2596020 (D. Minn. May 5, 2016)
18 (“[w]hen immigration officials reach continued-custody decisions for aliens who have been
19 ordered removed according to the custody-review procedures established in the Code of
20 Federal Regulations, such aliens receive the process that is constitutionally required.”).
21 Absent a showing that there was a violation of the established regulatory framework, the
22 Court does not see any basis to find a violation of Petitioner’s due process rights.
23 ///
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l CONCLUSION
2 Based on the foregoing reasons, Petitioner’s petition for habeas relief pursuant to
3 U.S.C. 2241 is DISMISSED as moot.
4 IT IS SO ORDERED.
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6 ||DATED: March 30, 2021
HON. JOHN A. HOUSTON
ITED STATES DISTRICT JUDGE
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