The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PEMA JANGMO,
Petitioner,
v. 20-CV-256 (JLS)
WILLIAM BARR, CHAD WOLF,
MATTHEW ALBENCE, THOMAS
FEELEY, JEFFREY SEARLS,
Respondents.
DECISION AND ORDER
Petitioner Pema Jangmo commenced this habeas proceeding pursuant to 42
U.S.C. § 2241, challenging her continued detention in the custody of the United
States Department of Homeland Security Immigration and Customs Enforcement
(“DHS/ICE”). Respondents (hereinafter “the Government”) filed a motion to dismiss
the petition as moot, Dkt. 4, based on Jangmo’s release pursuant to an Order of
Supervision, Dkt. 4-1.
For the reasons below, the Court grants the motion to dismiss and dismisses
the Petition as moot.
BACKGROUND
Petitioner Pema Jangmo filed this petition pursuant to 28 U.S.C. § 2241 on
February 28, 2020, arguing her detention in the custody of DHS at the Federal
Detention Facility in Batavia, New York, violates the Due Process Clause of the
Constitution and the Immigration and Nationality Act. Dkt. 1. Her petition states
she is a Tibetan refugee who was born in India and is stateless. Dkt. 1 ¶ 14.
Jangmo was admitted to the United States, pursuant to a validly issued B-2 visa, on
October 6, 2008, with authorization to remain until April 5, 2009. Dkt. 1 ¶ 15. On
October 28, 2009, Jangmo was arrested by ICE. Dkt. 1 ¶ 18. Following
immigration proceedings, Jangmo was ordered removed on January 15, 2013, and
this order was affirmed when the Board of Immigration Appeals dismissed her
appeal on December 5, 2014. Dkt. 1 ¶ 18. On April 2, 2015, Jangmo’s bond was
breached because she failed to surrender for removal, based on her fears of
returning to India. Dkt. 1 ¶ 18. On May 19, 2019, the U.S. Customs and Border
Protection arrested Jangmo near Ogdensburg, NY, and she has been in custody at
the federal detention facility in Batavia since that date. Dkt. 1 ¶¶ 7, 19.
Jangmo filed the instant petition on February 28, 2020, arguing that her
continued administrative custody at DHS/ICE was in violation of her constitutional
rights and the statute. Dkt. 1. Specifically, Jangmo requested the Court grant her
petition and order the Government to release her on reasonable conditions of
supervision or, in the alternative, provide her with a constitutionally adequate bond
hearing before an impartial adjudicator where the Government bears the burden of
justifying her continued detention. Dkt. 1, at 2-3.
On March 10, 2020, this Court ordered the Government to file an answer or
motion to dismiss the petition within 45 days of service of the order. Dkt. 2. On
April 7, 2020, the Government moved to dismiss the petition as moot because
Petitioner had been released from custody on March 19, 2020, pursuant to an Order
of Supervision. Dkt. 4, 4-1. Petitioner filed a response on April 9, 2020, arguing
that the petitioner is not mooted. Dkt. 7. The Government replied on April 13,
2020. Dkt. 8.
DISCUSSION
Federal courts have jurisdiction under 28 U.S.C. § 2241 to grant writs as to
aliens who are “in custody under or by color of the authority of the United States.”
28 U.SC. § 2241; see Denis v. DHS/ICE of Buffalo, New York, 634 F. Supp. 2d 338,
340 (W.D.N.Y. 2009). When a habeas petitioner has been released from custody
after filing a petition, the petition may be moot. See, e.g., Agoro v. Herron, No. 10-
CV-1055 (MAT), 2012 WL 1909214, at *2 (W.D.N.Y. May 25, 2012). The relevant
inquiry is whether the case still presents a case or controversy under Article III,
Section 2, of the Constitution. See id. (citing Spencer v. Kemna, 523 U.S. 1, 7
(1998)). A case is moot “when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome.” Harvey v. Holder, 63 F. Supp. 3d
318, 320 (W.D.N.Y. 2014) (citing Jackson v. Holder, 893 F. Supp. 2d 629, 631
(S.D.N.Y. 2012)). In the habeas context, a released petitioner must demonstrate
“collateral consequences [of the detention] adequate to meet Article III’s injury-in-
fact requirement.” Spencer, 523 at 7; Xing Jian Yu v. Sessions, No. 6:17-cv-06699-
MAT, 2019 WL 4258892, at *2 (W.D.N.Y. Sept. 9, 2019).
Here, Jangmo’s habeas petition challenges only the lawfulness of her
administrative detention by DHS, and the sole relief she seeks is release from
custody or, alternatively, a constitutionally adequate bond hearing. Dkt. 1, at 2-3.
On March 19, 2020, Petitioner was released from DHS’s custody pursuant to an
Order of Supervision. Dkt. 4-1.
“The district courts in this Circuit to have considered the issue have found
that where an alien challenging his detention under 28 U.S.C. § 2241 is released
during the pendency of his petition under an order of supervision, the petition is
rendered moot.” See, e.g., Masoud v. Filip, No. 08-CV-6345-CJS-VEB, 2009 WL
223006, at *5 (W.D.N.Y. Jan. 27, 2009) (collecting cases); see also Watson v. Orsino,
No. 13 Civ. 1631(LGS), 2013 WL 4780033, at *1 (S.D.N.Y. May 31, 2013). The fact
that Jangmo was released subject to an Order of Supervision imposing some
restrictions on her does not create a live case or controversy, nor does the fact that
she might be returned to custody in the future. See Sokolov v. Holder, No. 13 Civ.
0947 (PAE), 2013 WL 12377011, at *3-4 (S.D.N.Y. Aug. 13, 2013) (“Any future
detention based on a violation of the Order of Supervision would not be a ‘collateral
consequence’ of the detention challenged in the petition, but of [petitioner’s] final
order of removal, which he does not contest here.”). Petitioner also has not
indicated how she specifically is in foreseeable danger of arbitrary detention under
Respondents’ discretionary regulatory authority. See Leybinsky v. U.S. Immigr.
and Customs Enf’t, 553 Fed. App’x 108, 110 (2d Cir. 2014) (summary order).
This Court is not aware of, nor has Petitioner indicated, she suffers from any
“collateral consequences” of detention now that she is no longer in custody. See
Musheyev v. Barr, No. 6:19-cv-06729-MAT, 2020 WL 735712, at *1 (W.D.N.Y. Feb.
13, 2020) (noting it is “hard to imagine any possible ‘collateral consequences’” of
petitioner’s detention, and that petitioner has not specified any such consequences,
after petitioner was released from DHS custody pursuant to an Order of
Supervision). Nor is this a case involving any other exception to mootness.1 See
Hubacek v. Holder, No. 13-CV-1085C, 2014 WL 1096949, at *2 (W.D.N.Y. Mar. 19,
2014) (finding none of the mootness exceptions applies to petitioner released
pursuant to an order of supervision); see also Leybinsky, 553 Fed. App’x at 109-10
(finding petitioner’s release from ICE custody pending removal following final order
of removal mooted his habeas petition, and the “capable of repetition but evading
review” exception doctrine did not apply).
Here, as a result of Jangmo’s release from DHS custody, her petition for a
writ of habeas corpus is moot. Accordingly, this Court lacks subject matter
jurisdiction to examine the merits of her petition.
1 This Court agrees with the Government that Petitioner has not distinguished her
case from Hubacek, which rejected a number of mootness exceptions. In that case,
the court determined that fear of future detention is insufficient to meet Article III’s
injury-in-fact requirement for federal subject matter jurisdiction. Hubacek, 2014
WL 1096949, at *2. As for the capable-of-repetition-yet-evading-review exception,
Hubacek had not shown a “reasonable expectation” that he would be subjected to
the same action—unreasonably long detention—again. Id. The court even noted
that petitioner was able and “required by law” to prevent that possibility by
complying with the conditions set forth in the order of supervision. Id.
Furthermore, the court rejected voluntary cessation argument because there was no
indication DHS released the petitioner from custody with the sole purpose of
preventing judicial review of the legality of detention pending execution of the final
order of removal. Id.
CONCLUSION
For the foregoing reasons, Respondents’ motion to dismiss (Dkt. 4) is granted.
Petitioner’s habeas petition (Dkt. 1) is dismissed without prejudice as moot. The
Clerk of the Court is directed to close the case.
SO ORDERED.
Dated: April 16, 2020
Buffalo, New York
s/ John L. Sinatra, Jr.
JOHN L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE