IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WU WEI TONG, 

Case No. 2:17-cv-1007

Petitioner, Judge George C. Smith

Magistrate Judge Kimberly A. Jolson

v. 

ATTORNEY GENERAL, et al., 

Respondents.

REPORT AND RECOMMENDATION

This case is before the Court to consider Respondent’s Motion to Dismiss for Lack of 

Jurisdiction. (Doc. 4). For the reasons that follow, the Court RECOMMENDS that the Motion 

be GRANTED, and that this action be DISMISSED.

I. BACKGROUND

On November 15, 2017, Petitioner, a native and citizen of the People’s Republic of 

China, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, explaining that 

he had been in the custody of U.S. Immigration and Customs Enforcement (“ICE”) pending 

removal since March 17, 2017. (Doc. 1 at 3). Petitioner argued that the length of his detention 

pending removal contravened 8 U.S.C. § 1231(a)(6) (Count I), and was in violation of his 

substantive and procedural due process rights (Counts II and III). (Id. at 7–8 (citing Zadvydas v. 

Davis, 533 U.S. 678 (2001)). Thus, Petitioner requested that this Court grant him a writ of 

habeas corpus directing Respondents to immediately release him from custody. (Id. at 9). 

This Court ordered Respondents to show cause why the writ should not be granted (Docs.

2–3). On December 18, 2017, Respondents filed a Motion to Dismiss for Lack of Jurisdiction 

under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Doc. 4). Attached to 
Respondents’ Motion is a declaration from ICE Deportation Officer Oscar E. Blair, Jr.,

indicating that Petitioner was removed from United States to the People’s Republic of China on

December 4, 2017. (Doc. 4-1 at ¶ 11).

II. DISCUSSION

It is well established that federal courts may only adjudicate live cases or controversies. 

Hall v. Beals, 396 U.S. 45, 48 (1969). Consequently, federal courts lack jurisdiction to consider 

a case when it has “lost its character as a present, live controversy and thereby becomes moot.” 

Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009) (internal quotation and citation omitted). 

“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a 

legally cognizable interest in the outcome.” Id. (quoting Int’l Union v. Dana Corp., 697 F.2d 

718, 720–21 (6th Cir. 1983)).

“Several courts have determined that where an alien is released from ICE custody 

pending removal from the United States, his petition for relief under Zavydas is moot.” Patel v. 

Streiff, No. 06-00584, 2008 WL 748396, *2 (S.D. Ala. Mar. 18, 2008) (internal quotations and 

citation omitted); see also Dubois v. Hendricks, No. 14-3861, 2014 WL 4105482, at *2 (D.N.J. 

Aug. 18, 2014) (finding petition moot because there was no longer a live case or controversy); 

Emeni v. Holder, No. 6:13-cv-6404, 2014 WL 347799, at *3 (W.D.N.Y. Jan. 31, 2014) (same); 

Rojas v. Lowe, No. 1:cv-13-871, 2013 WL 5876851, at *3 (M.D. Pa. Oct. 30, 2013) (same). 

Based on the foregoing, the Court finds that the petition no longer reflects a present, live 

controversy, and it is, therefore, MOOT. Consequently, the Court RECOMMENDS that 

Respondents’ Motion to Dismiss (Doc. 4) be GRANTED, and that this case be DISMISSED.
III. CONCLUSION

Based on the foregoing, the Court RECOMMENDS that the Motion to Dismiss be 

GRANTED (Doc. 4), and that this action be DISMISSED as MOOT.

IV. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party 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 objection(s). A judge of this Court shall make a de novo determination of those 

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

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

in 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 of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

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

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: December 19, 2017 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE