United States District Court, D. Maryland
W. Grimm United States District Judge.
September 29, 2017, self-represented Petitioner Angel De
Jesus Pacheco Santos ("Pacheco Santos") filed a
habeas corpus petition pursuant to 28 U.S.C. § 2241. ECF
No. 1. He claims that he is improperly detained by the
Department of Homeland Security ("DHS"). Pacheco
Santos states that he was denied bail and found to be a
'"danger to society" based upon his traffic
infractions and a November 22, 2016 state circuit
court conviction for assault. He argues that he was
"unfairly asked to remember exact dates and events that
happened over 20 years ago and was badly advised and
represented by [his] attorney." Pet. 7. Pacheco Santos
requests that his custody review be reopened and that he be
granted bail. Id.
filed a motion to dismiss and response to the Court's
show cause order, ECF No. 5, along with eleven exhibits
containing Pacheco Santos's legal records. ECF Nos. 5-1
-5-11. The records establish that, at an April 17, 2017,
proceeding Pacheco Santos filed two applications: (1) an
application for suspension of deportation or special rule
cancellation of removal, which was supplemented on July 5,
2017; and (2) an application for cancellation of removal and
adjustment of status for certain non-permanent residents.
Recs., ECF No. 5-9, at 3-37. An individual removal hearing
was held and on July 24, 2017, Immigration Judge Elizabeth
Kessler denied both applications and ordered Pacheco Santos
removed to El Salvador. Recs., ECF No. 5-10, at 3-4. Santos
appealed the judge's decision to the Board of Immigration
Appeals ("BIA") on August 25, 2017. Recs., ECF No.
5-11, at 1-4.
January 25, 2018, Respondent filed another motion to dismiss,
arguing the petition is moot. ECF No. 8. Respondent attached
the BIA's January 18, 2018 affirmance of the immigration
judge's removal order and dismissal of Santos's
appeal. ECF No. 8-1. Respondent argues that, as Santos is no
longer in pre-removal-order custody under 8 U.S.C. §
1226 and subject to bond or bail review hearings, his claim
is moot and "his detention is now governed by 8 U.S.C.
§ 1231, which starts a new period of
detention.'" Resp."s Mot. 3.
III of the Constitution limits the judicial power to
"actual, ongoing cases or controversies." Lewis
v. Continental Bank Corp., 494 U.S. 472, 477 (1990)
(citations omitted). The "case-or-controversy"
requirement subsists through all stages of federal judicial
proceedings, Id. Thus, an actual controversy must
exist "at all stages of review, not merely at the time
the complaint is filed." Arizonam for Official
English v. Arizona, 520 U.S. 43, 67 (1997) (internal
quotation marks and citations omitted), A case becomes moot
when the issues presented are "no longer 'live'
or the parties lack a legally cognizable interest in the
outcome." City of Erie v. Pap's A.M., 529
U.S. 277, 287 (2000) (quoting County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979)) (alterations in
original). Plainly, there has been a change in Pacheco
Santos's immigration custody status in that he is no
longer held in pre-removal custody, and his original due
process claim regarding his custodial status under 8 U.S.C.
§ 1226 is now moot. Respondent's motion to dismiss
as Pacheco Santos may challenge, under § 1231, the
reasonableness of his continued detention following the
January 10, 2018 removal order. Respondent accurately
summarized the relevant case law from Zadvydas v.
Davis, 533 U.S. 678 (2001):
In Zadvydas, the Supreme Court interpreted §
1231(a)(6) to limit post-removal-period detention to a period
"reasonably necessary to bring about the alien's
removal from the United States." Id. at 689.
The Supreme Court held that it was presumptively reasonable
for the government to detain an alien for six months.
Id. at 701. Beyond the six months, if removal is no
longer reasonably foreseeable, the statute does not authorize
continued detention. Id. The Supreme Court made
clear that after the expiration of the presumptively
reasonable six-month detention period, the alien, not the
government, bears the burden to show that his removal is no
longer reasonably foreseeable. Id. at 701. If the
alien carries this burden, then the government must provide
evidence to rebut that showing - such that if it can show
there is a significant likelihood of removal in the
reasonably foreseeable future, the government may continue to
detain the alien. Id. at 700-01.
Mot. 5-6. Because this presumptively reasonable six-month
period has not expired, any such challenge would be
premature. See Zadvydas, 533 U.S. at 700-01;
Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir.
2002) (six-month period of post-removal-order detention
recognized by Supreme Court must have expired at the time the
§ 2241 petition is filed in order to state a claim under
Zadvydas). Thus, Pacheco Santos's current
detention violates neither procedural nor substantive due
Santos's challenge to his pre-removal detention has been
rendered moot. Respondent's motion to dismiss shall be
granted. The Petition for writ of habeas corpus
shall otherwise be dismissed. A separate Order follows.
 Pacheco Santos was convicted of
driving under the influence (DUI) in November of 2016 in the
Circuit Court for Anne Arundel County. State Ct. ...