United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
David Deodatus Ndunguru filed this Petition for Writ of
Habeas Corpus on September 4, 2019, alleging that he had been
detained pending removal from this country and that the
length of his detention surpassed the presumptively
reasonable period of time for detention pending removal under
Zadvydas v. Davis, 533 U.S. 678 (2001). ECF No. 1.
Petitioner sought immediate release during the pendency of
deportation proceedings initiated by the United States
Immigration and Customs Enforcement (“ICE”).
October 18, 2019, Respondent filed an answer arguing that the
Petition should be dismissed for lack of subject matter
jurisdiction. ECF No. 4. Specifically, Respondent asserts
that the instant dispute is now moot because ICE obtained a
travel document and removed Petitioner from the United States
to Tanzania on September 24, 2019. Id. at p. 5.
reasons set forth below, the Petition will be DISMISSED as
facts of this case are undisputed. Petitioner, a native and
citizen of Tanzania, was admitted to the United States on May
16, 2009, as a nonimmigrant. See ECF 1-1, Notice to
Appear, p. 19. He remained in the United States beyond six
months without authorization from the Department of Homeland
Security (“DHS”). Id. On May 13, 2016,
Petitioner was convicted of robbery in the Circuit Court for
Prince George's County, Maryland and sentenced to 10
years of imprisonment. Id.; ECF No. 1, p. 4.
October 16, 2017, DHS found Petitioner was subject to removal
under the Immigration and Nationality Act (“INA”)
§ 237(a)(1)(B) for remaining in the United States for a
time longer than permitted, and § 237(a)(2)(A)(iii) of
the INA for being convicted of an aggravated felony.
Id.; ECF No. 1, p. 3. ICE detained Petitioner on May
30, 2018. ECF No. 1, pp. 1 & 4; ECF No. 1-1, p. 9. On
June 21, 2018, an immigration judge (“IJ”)
terminated the removal proceedings without prejudice at the
request of DHS. ECF No. 1-1, p. 23. DHS issued a final
administrative order of removal on July 3, 2018, ordering
Petitioner's removal to Tanzania based on both grounds
charged. ECF No. 1, pp. 2 & 4; ECF 1-1, p. 16.
was provided a credible fear interview with an asylum officer
after expressing reasonable fear of persecution or torture if
returned to Tanzania. On July 12, 2018, DHS found that
Petitioner established a reasonable fear of persecution if
returned to Tanzania. ECF No. 1-1, p. 4. Accordingly, on July
17, 2018, DHS referred Petitioner's case to an IJ.
Id. at p. 2.
immigration proceedings, Petitioner requested withholding of
removal under INA § 241(b)(3) and relief under the
Convention Against Torture. ECF No. 4-1, IJ Order, p. 2. On
November 27, 2018, the IJ denied the requested withholding of
removal claim under the INA and relief under the Convention
Against Torture. Id. Petitioner appealed the
IJ's order to the Board of Immigration Appeals, which
denied his appeal on May 9, 2019. ECF 1, p. 4; see
also ECF No. 1-1, p. 1.
reviewed Petitioner's detention status on September 27,
2018, January 22, 2019 and April 8, 2019. ECF 1-1, pp. 5-7;
ECF 1, pp. 4-5. Each time, ICE determined that he should
remain detained. Id. The January 22 and April 8,
2019 ICE detention decisions advised Petitioner that ICE was
working with the government of Tanzania to secure a travel
document for his removal, and that a travel document was
expected. ECF No. 1-1, p. 5.
filed his Petition on September 4, 2019, while he was
detained at the Worcester County Jail in Snow Hill, Maryland,
after being detained for approximately one year and four
months. See ECF 1. ICE obtained a travel document
and removed Petitioner on September 24, 2019, from the United
States to Tanzania. Ex. 1, ICE Warrant of Removal, pp. 3-4.
Standard of Review
Civ. P. 12(b)(1) governs motions to dismiss for lack of
subject matter jurisdiction. See Khoury v. Meserve,
628 F.Supp.2d 600, 606 (D. Md. 2003), aff'd, 85
Fed.Appx. 960 (4th Cir. 2004). Under Rule 12(b)(1), the
plaintiff bears the burden of proving, by a preponderance of
evidence, the existence of subject matter jurisdiction.
See Demetres v. E. W. Constr., Inc., 776 F.3d 271,
272 (4th Cir. 2015); see also Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). “If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3); see also Ellenburg v. Spartan
Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008).
Thus, the court may properly grant a motion to dismiss for
lack of subject matter jurisdiction “where a claim
fails to allege facts upon which the court may base
jurisdiction.” Davis v. Thompson, 367
F.Supp.2d 792, 799 (D. Md. 2005) (citing Crosten v.
Kamauf, 932 F.Supp. 676, 679 (D. Md. 1996)).