1 William Bateman is no longer the Warden of the Perry County Correctional

Center. Accordingly, pursuant to the provisions of Rule 25(d) of the Federal Rules of Civil

Procedure, Robert Gaines, as Acting Warden of that facility, is hereby substituted for Bateman as

a proper defendant in this action. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

KIBROM RESSOM, :

Petitioner, :

vs. : CA 06-0528-WS-C

MICHAEL CHERTOFF, etc., :

et al.,1

:

Respondents.

REPORT AND RECOMMENDATION

On September 5, 2006, Kibrom Ressom, a citizen and native of Eritrea

ordered removed from the United States, petitioned this Court for habeas relief

pursuant to 28 U.S.C. § 2241. This matter has been referred to the undersigned

for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)

and Local Rule 72.1(c). It is recommended that the instant petition be

dismissed, without prejudice to being filed at a later date, because Ressom is

no longer in the custody of the United States Immigration and Customs

Enforcement (“ICE”) arm of the United States Department of Homeland

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 1 of 8
2 Ressom does not challenge his final order of removal. (Id. at ¶¶ 14-15)

3 In Zadvydas, the Supreme Court held that the post-removal-period detention

statute, 8 U.S.C. § 1231, “read in light of the Constitution’s demands, limits an alien’s postremoval-period detention to a period reasonably necessary to bring about that alien’s removal

from the United States. It does not permit indefinite detention.” 533 U.S. at 689, 121 S.Ct. at

2498. 

2

Security.

FINDINGS OF FACT

1. Ressom is a citizen and native of Eritrea who attempted to enter

the United States, without inspection, on April 15, 2005. (Doc. 1, at 2, ¶¶ 9-11)

Petitioner was taken into custody on that date (id. at ¶ 6) and though he

initially claimed political asylum in the United States (id. at ¶ 12) he withdrew

that application on March 6, 2006 (id. at 3, ¶ 13).2

 In his habeas petition filed

on September 5, 2006, Ressom’s sole argument was that his continued custody

by ICE violated the provisions of 8 U.S.C. § 1231(a)(6) as interpreted by the

Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150

L.Ed.2d 653 (2001). (See Doc. 1, at 3-5)3

 Significantly, petitioner sought

release from custody“under an order of supervision” pending his removal from

the United States. (Id. at 6)

2. On November 29, 2006, ICE notified Ressom that he was being

released from custody pending his removal from the United States. (Doc. 14,

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 2 of 8
3

Exhibit 1)

This release does not affect your removal order and does not

constitute an admission to the United States.

Your release will be subject to certain written conditions that

will be provided to you shortly on the Order of Supervision and

Addendum to the Order of Supervision forms, and by which you

must abide. Among other conditions will be the requirement

that you report to ICE monthly until you are removed. A

violation of one o[r] more of these conditions, or of any local,

state or federal law may result in your being taken back into

custody and any bond that you may have posted being forfeited.

Your release from custody is also conditioned upon your

maintaining proper behavior while sponsorship and placement

efforts for you are being undertaken.

Prior to your release from custody, an immigration officer may

verify the sponsorship or employment offers presented during

your review. Please forward any additional information

regarding potential sponsoring family members or nongovernmental organizations that may be willing to assist you

upon release.

It is particularly important that you keep ICE advised of your

address at all times. ICE will continue to make efforts to obtain

your travel document that will allow the United States

government to carry out your removal pursuant to your order of

deportation, exclusion, or removal. In addition, you are

required by law to continue to make good faith efforts to

secure a travel document on your own and provide proof of

your efforts to ICE. Once a travel document is obtained, you

will be required to surrender to ICE for removal. You will, at

that time, be given an opportunity to prepare for an orderly

departure.

(Id. (emphasis in original))

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 3 of 8
4

3. The federal respondents’ response to the petition contains the

averment that on December 4, 2006 “Officer Pineda confirmed by telephone

that [] petitioner was released from detention on November 30, 2006 at

approximately 10:00 a.m. EST.” (Doc. 14, at 1)

CONCLUSIONS OF LAW

1. “In reviewing a petition for writ of habeas corpus by a detained

alien who is subject to a final order of removal, a federal district court,

pursuant to the authority of 28 U.S.C. § 2241(c)(3), is to gauge whether a

particular set of circumstances amounts to detention within, or beyond, a

period reasonably necessary to secure removal.” He v. Gonzales, 2006 WL

1687796, *1 (W.D. La. 2006). Where, as here, a § 2241 petitioner has been

released from federal custody and thereby has garnered the relief sought in

filing his habeas corpus petition the issue becomes whether there is any longer

a live case or controversy or, instead, if the petition has become moot. See id.

2. As recognized by the Eleventh Circuit, “Article III of the

Constitution limits the jurisdiction of the federal courts to the consideration of

‘Cases’ and ‘Controversies.’” Soliman v. United States ex rel. INS, 296 F.3d

1237, 1242 (11th Cir. 2002) (citation omitted); see also Al Najjar v. Ashcroft,

273 F.3d 1330, 1335 (11th Cir. 2001) (same). Moreover, “[t]he doctrine of

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 4 of 8
5

mootness derives directly from the case or controversy limitation because ‘an

action that is moot cannot be characterized as an active case or controversy.’”

Soliman, 296 F.3d at 1242.

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.’” 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.” In fact. “dismissal is required because mootness is

jurisdictional.”

Id. (internal citations omitted). 

3. Several district courts have determined that where an alien is

released from ICE custody pending removal from the United States “his

petition for habeas relief under Zadvydas is moot.” He, supra, 2006 WL

1687796, at *1; see also Abdalla v. Ashcroft, 2004 WL 2315089, *2 (W.D.

N.Y. 2004) (“As, however, Petitioner does not dispute he was released from

administrative custody on January 30, 2004, the instant Petition no longer

presents a case or controversy pursuant to Article III, § 2 of the United States

Constitution.”), adopted by Abdalla v. Ashcroft, 2004 WL 2491646 (W.D.

N.Y. 2004). 

4. This case is indistinguishable from He and Abdalla.

Accordingly, this Court finds that Ressom’s petition for writ of habeas corpus

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 5 of 8
4 The Eleventh Circuit has recognized an exception to the mootness doctrine which

the undersigned does not find applicable in the instant case.

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.’” 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.”

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.”

Soliman, 296 F.3d at 1242-1243 (internal citations omitted; emphasis in original). There is

simply nothing to suggest that Ressom will be placed back into the custody of ICE before ICE

obtains a travel document allowing for petitioner’s immediate removal from the United States

and his return to his native country of Eritrea. Accordingly, the foregoing exception to the

mootness doctrine is inapplicable.

6

is now moot because there exists no active case or controversy. This Court can

no longer order the federal respondents to release petitioner under an order of

supervision, as requested in the petition, because Ressom has already been

released from the custody of ICE. “Quite simply, ‘there is nothing for us to

remedy, even if we were disposed to do so.’” Soliman, supra, 296 F.3d at

1243, quoting Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 988, 140

L.Ed.2d 43 (1998). Dismissal of the instant petition is required since mootness

is jurisdictional.4

CONCLUSION

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 6 of 8
7

The Magistrate Judge recommends that Ressom’s petition for writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2241, be DISMISSED

WITHOUT PREJUDICE as moot.

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 6th day of December, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 7 of 8
8

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. 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 this 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

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 case 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.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:06-cv-00528-WS-C Document 15 Filed 12/07/06 Page 8 of 8