1

Even if the Habeas Petition did challenge his final order of removal, this Court would no

longer have jurisdiction to hear such a claim under Section 106 of the Real ID Act of 2005, Pub.

L. No. 109-13 (May 11, 1005). See Soyemi v. Chertoff, No. 05-mc-145, M.D. Pa. (May 26,

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BING ZE DING, : CIVIL ACTION NO. 4:CV-05-0947

:

Petitioner : (Judge McClure)

:

v. : (Magistrate Judge Blewitt)

:

BUREAU OF IMMIGRATION AND :

CUSTOMS ENFORCEMENT, et al., :

 :

Respondents :

 REPORT AND RECOMMENDATION

I. Discussion.

On May 9, 2005, the Petitioner, Bing Ze Ding, formerly an inmate at the York County

Prison, York, Pennsylvania, filed, pro se, this Habeas Corpus Petition pursuant to 28 U.S.C. § 2241.

(Doc. 1). The Petitioner paid the required filing fee. On May 11, 2005, the Court directed

Respondents to respond to the Petition. Respondents’ Response was due on May 31, 2005.

On May 31, 2005, the Respondents filed a Notice of Release and a support Exhibit. (Doc.

6). We construe Respondents’ Notice as their Response to the Petition. Respondents request that

the Petition be dismissed as moot, since it challenged Petitioner’s continued detention by BICE, and

Petitioner was no longer incarcerated due to his release pursuant to an Order of Supervision. A

review of the instant Petition reveals that Petitioner does not challenge his final order of

deportation. Rather, he challenges his continued detention by BICE and seeks his immediate

release from custody. (See Doc. 1, pp. 4, 17-18).1 

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 1 of 7
2005 Order, J. McClure). 

2We note that on March 1, 2003, the INS was transferred to two bureaus under the

Department of Homeland Security, namely, Bureau of Immigration and Customs Enforcement

(“BICE”) and Bureau of Citizenship and Immigration Services (“BCIS”). Thus, as Petitioner 

correctly recognizes, the proper Respondent is the BICE Field Office Director with jurisdiction

over the detention facility where Petitioner is located. Here, Petitioner was an inmate at York

County Prison and the BICE District Director of the Philadelphia District has been named by

Petitioner, and thus, this Court has jurisdiction over his Petition. (Doc. 1, p. 4). See Rumsfeld v.

Padilla, 124 S. Ct. 2711, 2718, 2722 (2004) (habeas jurisdiction rests in the district of

confinement). 

3Respondents’ Exhibit A attached to their present Notice indicates that Petitioner was

taken into BICE custody on June 14, 2004. Doc. 6, Ex. A.

2

In his Habeas Petition, the Petitioner only contended that he was being unlawfully detained

by BICE2 and that his continued detention violated his due process rights. (Id., pp. 5, 15). The

Petitioner contended that he was beyond the six-month presumptively reasonable period for

removal since he states that he was taken into BICE custody. (Id., p. 18).3 Specifically, the

Petitioner claims that his continued detention violates the Supreme Court’s holding in Zadvydas v.

Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001), in that as an alien in post final removal order detention

beyond six (6) months, once he has provided good reason to believe that there is no significant

likelihood of his removal in the reasonably foreseeable future, the BICE must show a reasonable

likelihood of his deportation. (Id., pp. 11, 15-16). 

A Notice of Release and request for dismissal based on mootness was filed by Respondents

on May 31, 2005. (Doc. 6). Also submitted was an Exhibit in support of the Notice, which

demonstrates that Petitioner was in fact released from BICE custody on May 13, 2005. (Doc. 6, Ex.

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 2 of 7
3

A). The Respondents represent that on May 13, 2005, Petitioner was released pursuant to an

Order of Supervision. (Doc. 6, p. 1). Petitioner’s requested habeas relief was that he receive a

custody review and that he be released from BICE custody under conditions of supervision. (Doc.

1, p. 18). Petitioner has seemingly been given a custody review, and he was released from BICE

custody pursuant to an Order of Supervision entered on May 13, 2005. (Doc. 6, Ex. A).

Respondents essentially state that since Petitioner has only challenged his detention, and he is no

longer being detained, the Petition is now moot and should be dismissed as such. Notwithstanding

the fact that Petitioner did not yet have time to file a Response to Respondents’ Notice, we agree

with Respondents that the present Petition is moot. 

Since Petitioner has now been released from BICE custody on May 13, 2005, we find that

the present Habeas Corpus Petition is moot and should be dismissed. (Doc. 6). 

In Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court found that a petitioner’s release

in and of itself did not render moot his habeas petition. Rather, the Court stated that “[t]he more

substantial question ... is whether petitioner’s subsequent release caused the petition to be moot

because it no longer presented a case or controversy under Article III, § 2, of the Constitution.” Id.

at 7. In the present case, Petitioner sought habeas relief, claiming that BICE violated his due process

rights by detaining him beyond the presumptively reasonable removal period and by not releasing

him. Thus, Petitioner claimed he was being unlawfully detained. The question arises now as to

whether Petitioner’s claim is moot since he is no longer being detained and is no longer in custody.

In Spencer, the Court stated that “[t]he parties must continue to have a personal stake in the

outcome of the lawsuit. This means that, throughout the litigation, the Plaintiff must have suffered,

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 3 of 7
4

or be threatened with, an actual injury traceable to the Defendant and likely to be redressed by a

favorable judicial decision.” Id. (Citations omitted). Because Petitioner is not currently being

detained and he was found to be a suitable alien for release from custody, his release cannot be

simply revoked at any time and for any reason. Rather, Petitioner is under conditions of release

contained in his Order of Supervision. (Doc. 6, Ex. A). 

Accordingly, we find that Petitioner’s release from federal custody truly constitutes an end

to his detention. Petitioner is no longer threatened with any actual injury traceable to the

Respondents and likely to be redressed by a favorable decision by this Court. Thus, there is no

longer any case or controversy presented by Petitioner’s Habeas Corpus Petition. We therefore

conclude that Petitioner’s Habeas Corpus Petition should be dismissed as moot as Respondents

request. See Cox v. McCarthy, 829 F.2d 800, 802-03 (9th Cir.1987) (A petition for habeas corpus

becomes moot when a prisoner is released on parole before the court addresses the merits where

being paroled leaves no relief possible). 

Moreover, in his Habeas Petition, the Petitioner requested as relief that he be released from

BICE custody under supervision. (Doc. 1, p. 18). We find that he will not still suffer from an actual

injury from the Respondents now that he has been released from federal custody, and that there

is no longer a case or controversy presented.

The Petitioner’s claims are moot since he is no longer being detained and there are no

longer any collateral consequences as a result of the BICE’s detention of him.

In the Third Circuit case of Chong v. INS, 264 F. 3d 378 (3d Cir. 2001), the court dealt with

the issue as to whether an alien’s § 2241 habeas petition was moot when she was no longer in INS

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 4 of 7
5

custody and deported from the United States. The court found sufficient collateral consequences

flowed from the alien’s appeal of the BIA’s order of removal, since the removal order prevented the

alien as an aggravated felon from reentering the United States for ten (10) years. Id. at 384-86.

Thus, if the BIA’s decision were reversed by the court in Chong, the Attorney General could

exercise his discretion to grant withholding of removal and allow the alien to reenter the United

States. Id. at 386. In Chong, the court also discussed the four (4) exceptions to the mootness

doctrine, which allow judicial review. These exceptions are:

(1) secondary or “collateral” injuries survive after resolution of the primary

injury; (2) the issue is deemed a wrong capable of repetition yet evading

review; (3) the defendant voluntarily ceases an allegedly illegal practice but

is free to resume it at any time; or (4) it is a properly certified class action suit.

Id. at 384. (citation omitted).

We find that, based upon Chong, Petitioner’s Habeas Petition is moot regrading his attack

on his continued detention. Because the Petitioner's habeas corpus claim is now moot, we shall

recommend that the Petitioner‘s Habeas Petition be dismissed.

II. Recommendation.

Based on the foregoing, it is respectfully recommended that Petitioner‘s Petition for Writ of

Habeas Corpus be dismissed as moot.

s/ Thomas M. Blewitt

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: June 3, 2005 

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 5 of 7
6

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BING ZE DING, : CIVIL ACTION NO. 4:CV-05-0947

:

Petitioner : (Judge McClure)

:

v. : (Magistrate Judge Blewitt)

:

BUREAU OF IMMIGRATION AND :

CUSTOMS ENFORCEMENT, et al., :

 :

Respondents :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated June 3, 2005. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

magistrate judge, making his or her own determination on the basis

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 6 of 7
7

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

S/ Thomas M. Blewitt

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: June 3, 2005 

Case 4:05-cv-00947-JFM Document 7 Filed 06/03/05 Page 7 of 7