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Petitioner has been in the actual custody of David O. Streiff,

Warden of the Perry County Correctional Center in Uniontown, Alabama. 

“Whenever a § 2241 habeas petitioner seeks to challenge his present

physical custody with the United States, he should name his warden as

respondent and file the petition in the district of confinement.” 

Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MING LEE, : 

Petitioner, : 

v. : 

CIVIL ACTION 07-0038-KD-M 

ALBERTO GONZALES, : 

MICHAEL CHERTOFF,

WARDEN DAVID O. STREIFF, : 

Respondents. : 

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2241 by Ming Lee, a

citizen and native of China, who has been detained by the U.S.

Department of Homeland Security (Doc. 1).1 This action has been

referred for report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.1(c) and is now ready for

consideration. The record is adequate to determine Petitioner's

claims; no evidentiary hearing is required. It is recommended

that the instant petition be dismissed as moot.

In his petition, Lee states that he entered this country on

May 3, 1993 (Doc. 1, ¶ 10). Petitioner asserts that he was taken

into custody by agents of the U.S. Bureau of Immigration and

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Customs Enforcement (hereinafter ICE), on June 27, 2006, pursuant

to findings by an Immigration Judge that Lee had failed to appear

in court for a scheduled hearing and that he should be deported

(id. at ¶¶ 12-14). Petitioner maintains that he has been

detained for too long and that such detention is improper (Doc.

1). Lee seeks release from custody (id. at ¶¶ 20-24). 

Petitioner filed this action on January 12, 2007 (Doc. 1).

Respondent subsequently filed an Answer, stating that

Petitioner was released from custody on February 8, 2007 (Doc.

9). Attached to that Motion is a letter, dated February 2, 2007,

on ICE letterhead, from a Deportation Officer, stating that Lee

was to be released, under supervision, on February 8, 2007;

further documents indicate that Petitioner was, in fact, released

(Doc. 9 Attachment). Respondent asserts that because Lee is no

longer in the custody of ICE or the U.S. Department of Homeland

Security (hereinafter DHS), Petitioner’s request is moot and this

action should be dismissed (Doc. 9). 

The Eleventh Circuit Court of Appeals has directly answered

the question posed in this action, stating as follows:

As we have explained on many occasions,

Article III of the Constitution limits the

jurisdiction of federal courts to the

consideration of “Cases” and “Controversies.” 

U.S. Const. art III, § 2. In turn, the “case

or controversy” constraint imposes on federal

courts a “dual limitation” known as

“justiciability.” United States v. Fla.

Azalea Specialists, 19 F.3d 620, 621 (11th

Cir. 1994). “The doctrine of justiciability

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prevents courts from encroaching on the

powers of the elected branches of government

and guarantees that courts consider only

matters presented in an actual adversarial

context.” Al Najjar v. Ashcroft, 273 F.3d

1330, 1335 (11th Cir. 2001). Article III's

case or controversy requirement provides “an

important restriction on the power of the

federal courts,” which is necessary

“[b]ecause the judiciary is unelected and

unrepresentative.” Id. (quoting Socialist

Workers Party v. Leahy, 145 F.3d 1240, 1244

(11th Cir.1998)) (internal quotations

omitted); see also Allen v. Wright, 468 U.S.

737-38, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d

556 (1984) (“[T]he ‘case or controversy’

requirement defines with respect to the

Judicial Branch the idea of separation of

powers on which the Federal Government is

founded.”).

The doctrine of mootness derives

directly from the case or controversy

limitation because “an action that is moot

cannot be characterized as an active case or

controversy.” Adler v. Duval County Sch.

Bd., 112 F.3d 1475, 1477 (11th Cir. 1997). 

“[A] case is moot when the issues presented

are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” 

Powell v. McCormack, 395 U.S. 486, 496, 89

S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). As

this Court has explained, “[p]ut another way,

‘a case is moot when it no longer presents a

live controversy with respect to which the

court can give meaningful relief.’” Fla.

Ass'n of Rehab. Facilities, Inc. v. Fla.

Dep't of Health and Rehab. Servs., 225 F.3d

1208, 1216-17 (11th Cir. 2000) (quoting

Ethredge v. Hail, 996 F.2d 1173, 1175 (11th

Cir. 1993)). Therefore, “[i]f events that

occur subsequent to the filing of a lawsuit

or an appeal deprive the court of the ability

to give the plaintiff or appellant meaningful

relief, then the case is moot and must be

dismissed.” Al Najjar, 273 F.3d at 1336. In

fact, “dismissal is required because mootness

is jurisdictional.” Id. (citing, e.g., North

Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct.

402, 404, 30 L.Ed.2d 413 (1971) (“The

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question of mootness is . . . one which a

federal court must resolve before it assumes

jurisdiction”)). “Any decision on the merits

of a moot case or issue would be an

impermissible advisory opinion.” Florida

Ass'n of Rehab. Facilities, 225 F.3d at 1217.

Although there is an exception to the

mootness doctrine when the action being

challenged by the lawsuit is capable of being

repeated and evading review, we have held

that “this exception is ‘narrow,’ and applies

only in ‘exceptional situations.’” Al

Najjar, 273 F.3d at 1336 (quoting Dow Jones &

Co. v. Kaye, 256 F.3d 1251, 1256 (11th Cir.

2001)) (internal quotations omitted). In

particular, the exception can be invoked only

when “(1) there [is] a reasonable expectation

or a demonstrated probability that the same

controversy will recur involving the same

complaining party, and (2) the challenged

action is in its duration too short to be

fully litigated prior to its cessation or

expiration.” Sierra Club v. Martin, 110 F.3d

1551, 1554 (11th Cir. 1997) (emphasis added). 

Simply put, “[t]he remote possibility that an

event might recur is not enough to overcome

mootness, and even a likely recurrence is

insufficient if there would be ample

opportunity for review at that time.” Al

Najjar, 273 F.3d at 1336.

Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242-1243 (11th Cir.

2002). 

Under these legal principles, it is clear that Lee’s

petition is now moot because there is no case or controversy. As

Petitioner was released from custody on February 8, 2007, he is

no longer being held by ICE, the DHS, or, presumably, any other

U.S. Government entity. See Soliman, 296 F.3d at 1243. 

Furthermore, there is no reason to believe that Lee will be

detained again in the future, so this is not a case that meets

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“the narrow exception for cases that are capable of repetition

yet evading review.” Id. 

Because no case or controversy now exists with regard to

this petition, it is recommended that this action be dismissed as

moot.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

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objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 22nd day of February, 2007.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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