United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing United States Magistrate Judge
MATTER comes before the Court on Respondents Kevin K.
McAleenan, William P. Barr, William P. Joyce, Diane L. Witte,
William Jepsen, and Brian Koehn’s (collectively
“respondents” or the “government”)
Motion to Dismiss Petition for Writ of Habeas Corpus for Lack
of Jurisdiction, filed December 26, 2018. Doc. 11. Petitioner
Dieu Donne Umba Bokole filed his Response in Opposition to
the Government’s Motion to Dismiss on January 21, 2019.
Doc. 16. Respondents filed their Reply to Petitioner’s
Response in Opposition the Government’s Motion to
Dismiss on February 4, 2019. Doc. 18. On March 11, 2019, Mr.
Bokole filed a Notice about the Status of Petitioner
Bokole’s Immigration Proceedings. Doc. 19. The
government filed a response to the notice on March 25, 2019.
Doc. 21. Mr. Bokole filed a reply in support of his notice on
April 1, 2019, along with supporting exhibits on April 2,
2019. Docs. 22, 23. The Court set a hearing on the
government’s motion to dismiss and heard the argument
of counsel on April 5, 2019. Docs. 20, 24.
read the submissions of the parties and the relevant case
law, and having heard the argument of counsel, I find that
the government’s motion is well-taken, and I recommend
that the Court GRANT it.
Bokole is a citizen of the Democratic Republic of Congo
(“DRC”). Doc. 11-1 at 2. On June 13, 2017, Mr.
Bokole presented himself at a United States port of entry in
El Paso, Texas, without valid entry documents and asked for
asylum. Doc. 1 at 6; Doc. 11 at 2; Doc. 16 at 3. The U.S.
Customs and Border Protection (“CBP”) detained
Mr. Bokole the same day.Doc. 11-1 at 2; Doc. 16 at 3. Because
Mr. Bokole did not have valid entry documents, CBP processed
him for expedited removal pursuant to 8 U.S.C.
§1182(a)(7)(A)(ii). Doc. 11-1 at 2. Mr. Bokole expressed
a fear of returning to the DRC, and CBP referred him for a
credible fear interview. Doc. 11-1 at 2; Doc. 16 at 3. On
July 3, 2017, an asylum officer conducted a credible fear
interview. Doc. 11-1 at 2. Although the U.S. Citizenship and
Immigration Services (“USCIS”) issued a positive
credible fear determination, Doc. 11-2 at 1, an immigration
judge issued a written decision in March 2018 denying all
relief, and he ordered Mr. Bokole removed to the DRC. Doc.
11-1 at 2-3; Doc. 11-3. Mr. Bokole filed an appeal with the
Board of Immigration Appeals (“BIA”). Doc. 11-1
at 3. On September 20, 2018, the BIA affirmed the immigration
judge’s decision, and the order of removal became
administratively final. Doc. 11-1 at 3; Doc. 11-6 at 4-7. Mr.
Bokole did not file a petition for review with the Tenth
Circuit Court of Appeals at that time. Doc. 11-1 at 3.
September 2018, Mr. Bokole was transferred to a detention
facility in Texas to effectuate the removal
order. Doc. 11-1 at 3. Although Mr. Bokole has
been ordered removed, he has refused to complete the
documentation necessary to effectuate the removal order.
Id. at 3, 4. On November 2, 2018, Mr. Bokole filed a
motion with the BIA requesting that it reissue its decision
to allow him to file a timely petition for review with the
Tenth Circuit. Id. at 4. On February 27, 2019, the
BIA rescinded and reissued its September 20, 2018 decision
denying Mr. Bokole relief. Doc. 19 at 2; Doc. 19-1 at
2–6. The BIA’s reissuance of its decision and
final order of removal allowed Mr. Bokole to petition the
Tenth Circuit Court of Appeals for review of the BIA’s
final decision. Doc. 19 at 2. On March 27, 2019, Mr. Bokole
filed an appeal with the Tenth Circuit. Doc. 22 at 2; see
also Bokole Umba v. Barr, Tenth Cir. No. 19-9513,
Petition for Review filed 3/27/2019. Mr. Bokole also filed an
emergency motion for stay of removal, which the Tenth Circuit
denied on April 1, 2019. See Bokole Umba v. Barr,
Tenth Cir. No. 19-9513, Emergency Motion filed 3/27/2019,
Order filed 4/1/2019.
Bokole has been detained by the government since June 13,
2017. Less than a month after Mr. Bokole filed his petition
in this case, he asked the Court to stay the proceedings so
that he could pursue release through parole. Doc. 5. That
stay was in effect until November 30, 2018. Doc. 9. During
that time, Mr. Bokole twice sought release through parole.
Doc. 7 at 2; see also Docs. 11-4, 11-5. On August 9,
2018, U.S. Immigration and Customs Enforcement
(“ICE”) denied parole because Mr. Bokole had
“not established to ICE’s satisfaction that [he
was] not a flight risk,” or a “danger to the
community or U.S. Security.” Doc. 11-4. ICE further
determined that “[a]dditional exceptional, overriding
factors (e.g., law enforcement interests or potential foreign
policy consequences) in [his] case militate against
parole,” in that Mr. Bokole “was arrested by the
police in his country for demonstrating against the
government and escape[d] from detention.” Id. at
2. Within a week of ICE’s denial of parole, Mr. Bokole
requested “parole re-determination,” but ICE
denied the request shortly thereafter for the same reasons
given in its original denial. Doc. 11-1 at 3; Doc. 11-5. ICE
also noted that it “previously had provided [Mr.
Bokole] with a written decision declining to grant parole,
and [he had] failed to provide additional documentation or to
demonstrate any significant changed circumstances which would
alter ICE’s previous determination.” Doc. 11-5 at
lifted the stay, the Court ordered the government to answer
Mr. Bokole’s petition. Doc. 9 at 2. Instead of doing
so, and because Mr. Bokole’s status had changed since
he filed his petition, the government filed a motion to
dismiss his petition. See Doc. 11 at 1-2.
Mr. Bokole originally filed his petition in this case, he was
in pre-removal proceedings and was not subject to a final
order of removal. By the time the stay was lifted, he was
subject to a final order of removal. See Doc. 11 at
2; Doc. 11-1 at 3. This is the basis for the
government moves the Court to dismiss Mr. Bokole’s
petition for lack of jurisdiction, which is governed by Fed.
R. Civ. P. 12(b)(1). It argues that “[w]ith the
issuance of Bokole’s final order of removal on
September 20, 2018, [(and subsequent reissuance on February
27, 2019),] the Government’s authority to detain Bokole
shifted from 8 U.S.C. § 1225(b)(1), which governed his
detention during the consideration of his asylum application,
to 8 U.S.C. § 1231(a), which governs his detention now
that a final order of removal has issued.” Doc. 11 at
2. Thus, according to the government, Mr. Bokole’s
challenge to his detention under 8 U.S.C. § 1225(b)(1)
is moot, and his challenge to his detention under 8 U.S.C.
§ 1231(a) is not yet ripe for review. Id. Mr.
Bokole does not directly address the government’s
jurisdictional arguments. See generally Doc. 16.
Instead, he argues that his petition states a plausible claim
for relief because consideration of the entire time
that Mr. Bokole has been in custody without a “custody
hearing before a neutral arbiter” compels the
conclusion that his continued detention has deprived him of
his procedural due process rights under the Fifth Amendment.
See Id. at 1-2. Mr. Bokole further argues that his
continued detention without a “custody hearing before a
neutral arbiter” violates the Eighth Amendment’s
prohibition of excessive bail. See Id. at 2. For the
following reasons, I agree with the government and recommend
that the Court dismiss Mr. Bokole’s petition for lack
of subject-matter jurisdiction.
Article III of the Constitution, federal courts may only
adjudicate live controversies. Alvarez v. Smith, 558
U.S. 87, 92 (2009). An “actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.” Id. (internal quotation
marks and citations omitted). “If, during the pendency
of the case, circumstances change such that a party’s
legally cognizable interest in a case is extinguished, the
case is moot, and dismissal may be required.” Green
v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 794
(10th Cir. 2009).
Bokole filed his habeas petition while he was in pre-removal
proceedings and before he was subject to a final order of
removal. During that time, he was detained under 8 U.S.C.
§ 1225(b)(1)(B)(ii). Section 1225(b)(1)(A) governs the
screening of individuals who arrive in the United States but
are found inadmissible because of, among other things, a lack
of valid documentation. See 8 U.S.C. §§
1182(a)(7) (documentation requirements), 1225(b)(1)(A)(i)
(referring to aliens ...