United States District Court, M.D. Florida, Fort Myers Division
FREDDY L. TOSCANO FERNANDEZ, Petitioner,
STATE OF FLORIDA, ATTORNEY GENERAL and DISTRICT DIRECTOR U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondents.
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Petitioner Freddy L. Toscano Fernandez's
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241 (Doc. 1) filed on September 13, 2018. No.
response in opposition has been filed.
is a native of Cuba and a lawful permanent resident in the
United States. Petitioner immigrated to the United States on
August 12, 1980, as part of the Mariel boat lift. Petitioner
received legal status, was paroled, and released from
custody. Petitioner was convicted of crimes including
burglary of an occupied dwelling and petit theft, possession
of cocaine, and assault on a law enforcement
officer/firefighter and driving without a license. Petitioner
was subsequently ordered deported.
was detained at Glades County Detention Center pending
deportation to Cuba. However, ICE failed to deport Petitioner
to Cuba because there is no formal or informal repatriation
agreement between Cuba and the United States. On July 9,
2019, the Court was informed by the Department of Justice
that Petitioner was released from ICE custody to an Order of
Supervision on November 14, 2018.
reasons set forth below, the Court concludes that this action
must be dismissed as moot. “[A] case is moot when the
issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.” Al
Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir.
2001) (internal punctuation omitted). “If 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.” Id. at 1336.
dismissal after release is not automatic; a habeas petition
continues to present a live controversy after the
petitioner's release or deportation when there is some
remaining “collateral consequence” that may be
redressed by success on the petition. See
Spencer v. Kemna, 523 U.S. 1, 7-8 (1998)
(“Once the convict's sentence has expired, however,
some concrete and continuing injury other than the now-ended
incarceration or parole-some ‘collateral
consequence' of the conviction-must exist if the suit is
to be maintained.”); Lopez v. Gonzales, 549
U.S. 47, 52 n.2 (2006) (case not mooted by petitioner's
deportation because the petitioner could still benefit by
pursuing his application for cancellation of removal). This
exception to the mootness doctrine applies when: (1) the
challenged action is too short in duration to be fully
litigated prior to its cessation or expiration; and (2) there
is a reasonable expectation that the same complaining party
would be subjected to the same action again. Murphy v.
Hunt, 455 U.S. 478, 482 (1982); Weinstein v.
Bradford, 423 U.S. 147, 149 (1975); Carafas v.
LaVallee, 391 U.S. 234, 237 (1968).
Petitioner does not challenge the underlying deportation
order. Instead he only seeks release from ICE custody to an
Order of Supervision. Therefore, when Petitioner was released
from ICE custody to an Order of Supervision, his claim was
resolved. Because Petitioner was released from custody
pending removal from the United States, the chances of his
extended detention happening again are too speculative to
create a controversy enough to support a claim for relief,
and the exception to the mootness doctrine does not apply.
See Ijaoba v. Holder, No.
4:12-cv-3792-JHH-RRA, 2013 WL 1490927, at *1 (N.D. Ala. 2013)
(holding “[s]ince the petitioner has been released
pending his deportation to Nigeria, the circumstances of this
case happening again are too speculative to create an actual
controversy sufficient to support a claim for
the Court can no longer give Petitioner any meaningful
relief, his § 2241 Petition is moot and “dismissal
is required because mootness is jurisdictional.”
See Al Najjar, 273 F.3d at 1336, 1253; Riley v.
I.N.S., 310 F.3d 1253 (10th Cir. 2002) (release from
detention to an Order of Supervision moots a petitioner's
challenge to the legality of his extended detention);
Nunes v. Decker, 480 Fed.Appx. 173, 175 (3d Cir.
2012) (release of alien to an Order of Supervision who
challenged only his extended detention mooted § 2241
habeas petition because the alien “achieved the result
he sought in his habeas petition”).
it is now
Freddy L. Toscano Fernandez Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241 (Doc. 1) is
DISMISSED as moot.
Clerk of Court shall enter judgment accordingly, terminate
all pending motions ...