AMUSA CONTEH,

IN THE UNI'I'ED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CascNo. 2:I7.cv-0958

Petitioner, ChiefJudge Edmund A. Sargus, Jr.

Magistrate Judge Elizabeth P. Deavers

V.

UNITED STATES ATTORNEY

GENERAL, et al.,

Respondents.

ORDER AND REPORT & RECOMMENDATION

Petitioner, a citizen of Sierra Leone, filed this Peiiiion for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241 seeking his immediate release from the custody of Immigration and

Customs Enforcement ("ICE"). However, the Respondent indicates that, on January 23, 2018,

Petitioner was removed from the United Slates to Sierra Leone pursuant to his removal order.

Declaration of Oscar Blair Jr. (ECF No. 7-1, PAGEID// 38.) The record thus reflects that

Petitioner no longer remains in federal custody. Respondent argues that, as a result, this Court

lacksjurisdiction in this habeas corpus action. This Court agrees.

Federal courts are vested with jurisdiction to grant habeas corpus relief if, inter alia, a

petitioner is "in custody" in violation of the Constitution or laws of the United States. 28 U.S.C.

§ 2241 (c)(3).

28 U.S.C. § 2241 is a vehicle to challenge a Board of Immigration

Appeals determination. Calcano-Martinez v. INS. 533 U.S. 348.

121 S.Ct. 2268, 150 L.Ed.2d 392 (2001); INS v. St. Cyr, 533 U.S.

289. 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), It also may be used

to appeal continued immigration administrative custody after final

removal order in "post-removal-period" indefinite detention.

Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653

(2001). The key is I.C.E. custody[.]
Maldomdo Parra v. Gonzalez, No. 4:4-cv-920, 2006 WL 2463665, ai *5 (N.D.Ohio Aug,2l,

2006). However, "[o]nce a habeas petitioner is no longer In custody, the court must determine

"whether petitioner's sub.sequent release caused the petition to be moot because it no longer

presented a case or controversy under Article III. § 2, of the Constitution.' " See Beiruli v.

Clawson, No. 1:08-cv—443, at "2 (W.D.Mich, Feb. 6, 2009) (quoting Spencer v. Kentna. 523

U.S. I, 7 (1998)). In order to meet tlic case or controversy requiremcnl. a petitioner who has

been released from the detention challenged in the petition must establish some concrete and

continuing injury or collateral consequences aside from the now-ended incarceration that can be

addressed by the habeas corpus petition, hi. (citing Spencer v, Kemna, 523 U.S. at 7-8)). The

deportation of a habeas petitioner during the pendency of a habeas proceeding challenging the

removal proceedings will deprive the district court of jurisdiction over the case unless the

petition seeks relief from enduring and significant collateral consequences of the deportation.

Zundel v. Berrong, 106 F. App'x 331, 334-35 (6th Cir. 2004) (citing Spencer v. Kemna, 523 U.S.

at 7); see also All v. J.N.S. 2010 WL 3001901, at *2 (N.D. Ohio .luly 9, 2010) (no subject matter

jurisdiction where the petitioner does not seek relief from collateral consequences of his removal,

and he has been removed from the United Stales). Even a notice that reentry into the United

States would be barred docs not serve as a collateral consequence of deportation sulflcient to

support continued jurisdiction because the warning, without more, has '"no relevant legal

force."" Zundel v. Holder. 687 F.3d 271, 278 (6th Cir. 2012) (quoting United States v. PerezTorres, 15 F.3d 403, 406 (5th Cir. 1994)).

Here, the record indicates that Petitioner has been removed from the United Stales. The

Petition seeks relief from Petitioner's allegedly unlawful detention; Petitioner does not allege any

collateral consequences of his removal. This Court concludes that, in light of Petitioner's release
from ICE detention and removal from the United Slates, this case no longer presents an actual

case or controversy. This Court therefore lacks subject matter jurisdiction to consider this

habeas corpus petition.

Petitioner also states that he seeks to pursue a civil action against ICE, based on the loss

of his personal property, which purportedly has been returned to At'rica. Petitioner seeks

$16,600.00 in damages. (ECF No. 1-1, PagelD#' 12-13.) However, such a claim is not properly

brought under 28 U.S.C. § 2241 and would, in any event, be barred by sovereign immunity. See

WaUon V. United States. 997 F.Supp.2d 808, 812 (N.D. Ohio Jan. 31, 2014) ("The doctrine of

sovereign immunity precludes suits against the United States without its consent.") (citing Premo

V. United States. 599 F.3d 540, 544 (6lh Cir. 2010); see also Storm v. Bureau ofPrisons. No.

4:08-cv-l690, 2009 WL 1163123, at *3 (N.D. Ohio April 29. 2009) (citing 28 U.S.C. § 2680(c);

Ali V. Federal Bureau ofPrisons, 552 U.S. 214 (2008) (sovereign immunity precludes prisoner's

recovery for damages from loss of property by prison officials); Mann v. Schlottman. No. 15-cv12869, 2017 WL 1077669, at *5 (E.D. Mich. March 22, 2017) (citing Muniz-Muniz v. US.

Border Patrol, 741 F.3d 668, 672 (6th Cir. 2013) ("Without a waiver of sovereign immunity, a

court is without subject matter juri.sdiction over claims against federal agencies.").

The Magistrate Judge therefore RECOMMENDS that Respondent's Motion to Dismiss

(ECF No. 7) be GRANTED and that this action be DISMISSED.

Petitioner's Motionfor an ImmediateStay ofRemoval (ECF No. 4) is DENIED, as moot.

Procedure on Objections

If any party objects to this Report and Recommendation, that parly may. within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting
authority for the objeclion(s). Ajudge ofthis Court shall make ade novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, ajudge of this Court may accept, reject, or modify, in whole or m

part, the findings or recommendations made herein, may receive further evidence or may

recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver ofthe right to have the district judge review the Report

andRecommendation de novo, and al.so operates as a waiver ofthe right to appeal the decision ol

the District Court adopting the Report and Recommendation. See Thomas v. Am. 474 U.S. 140

(1985): United Stales v. iValters, 638 F.2d 947 (6'^ Cir. 1981).

The parties are further advised that, if they intend to file an appeal ot any adverse

decision, they may submit arguments in any objections filed, regarding whether a certificate of

appealability should issue.

eslon Diyivcrs

Unit^d-Sfates Magistrate .ludge