Critopher Enrique Moreno-Camacho, Petitioner, v. Robert Lynch, District Director, United States Immigration and Customs Enforcement, Detroit Field Office,1 Respondent. (2025)

OPINION AND ORDER AMENDING THE CASE CAPTION, GRANTING THE MOTION TO DISMISS [13], DENYING THE HABEAS PETITION [1], DENYING THE MOTION TO APPOINT COUNSEL [3], VACATING THE ORDER TO SHOW CAUSE [8], AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2241. (ECF No. 1.) Before the Court are Petitioner's Motion to Appoint Counsel, (ECF No. 3), and Respondent's Motion to Dismiss. (ECF No. 13.) The Court has also issued an Order to Show Cause in this case. (ECF No. 8.) For the reasons set forth below, the Court grants Respondent's Motion to Dismiss, (ECF No. 13), denies Petitioner's Motion to Appoint Counsel, (ECF No. 3), and vacates its Order to Show Cause. (ECF No. 8.) The Court also denies leave to proceed in forma pauperis on appeal.

II. Background

On January 2, 2025, Petitioner, a native and citizen of Venezuela, filed this Petition for a Writ of Habeas Corpus challenging his detention. (ECF No. 1.) At the time the Petition was filed, Petitioner was being held at Calhoun County Detention Center in Battle Creek, Michigan following his arrest for forgery and counterfeiting on September 22, 2024. (Id. at PageID.1; ECF No. 7-5, PageID.71.) He was never convicted of those crimes. The same day Petitioner was arrested, the Department of Homeland Security (“DHS”) initiated removal proceedings. (ECF No. 7-6.) The Immigration Judge ordered Petitioner “removed to Venezuela” on December 9, 2024. (ECF No. 7-8, PageID.80–81.)

Along with the Petition for a Writ of Habeas Corpus, Petitioner also filed an application to proceed without prepaying fees or costs, (ECF No. 2), and a motion to appoint counsel. (ECF No. 3.) Petitioner's application to proceed without prepaying fees or costs was granted on January 6, 2025. (ECF No. 5.) On February 26, 2025, Respondent filed a brief in opposition to Petitioner's request for a writ of habeas corpus. (ECF No. 7; see also ECF No. 6 (order requiring responsive pleading from Respondents).)

On March 25, 2025, the Court issued an Order to Show Cause requiring Respondent to inform the Court whether “Petitioner remain[ed] in custody in the United States of America or if he was removed to El Salvador on March 15, 2025.” (ECF No. 8, PageID.83.) If Petitioner had been removed, the Court also ordered Respondent to explain why he did not inform the Court in advance of Petitioner's removal and to explain under what authority Petitioner had been removed. (Id.) In his Response to the Court's Order to Show Cause, filed on March 26, 2025, Respondent stated that Petitioner had been removed from the United States on March 15, 2025 pursuant to the Immigration and Nationality Act. (ECF No. 10, PageID.91.) Respondent asserted that he was “preparing to notify the Court of [the removal] when the Court issued its show cause order.” (Id.; see also id. at PageID.93 (stating that counsel learned of the removal two days in advance and that “the agency is unaware of a statute or regulation requiring such pre-removal notice to a district court in a case that is not challenging removal and it is not the agency's practice to do so for practical and prudential reasons”).) Without explaining what those “prudential reasons” might be, Respondent explained that he had not received approval to disclose the country to which Petitioner was deported, and that he would supplement his response if permission to comply with the Court's Order to Show Cause was granted. (Id. at PageID.91.) On the same day Respondent filed his Response to the Order to Show Cause, he filed a Supplemental Response stating that Petitioner had been removed to El Salvador. (ECF No. 12, PageID.101.) On April 3, 2025, Petitioner filed a Motion to Dismiss the Petition for a Writ of Habeas Corpus. (ECF No. 13.)

III. Legal Standard

Respondent seeks to dismiss the Petition as moot pursuant to Federal Rule of Civil Procedure 12(b)(1). (Id. at PageID.114.)

“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).

A facial attack “questions [ ] the sufficiency of the pleading.” Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). “When reviewing a facial attack, a district court takes the allegations in the complaint as true.” Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015) (quoting Gentek, 491 F.3d at 330).

In contrast, “[w]hen a factual attack ․ raises a factual controversy, the district court must weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.” Gentek, 491 F.3d at 330. In a factual attack on subject matter jurisdiction, “no presumptive truthfulness applies to the factual allegations,” id., and “the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

“In considering a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, a district court may consider factual matters outside the pleadings and resolve factual disputes.” Anestis v. United States, 749 F.3d 520, 524 (6th Cir. 2014). When a court's subject-matter jurisdiction is challenged under Federal Rule of Civil Procedure 12(b)(1), the plaintiff has the burden to prove jurisdiction. Glob. Tech., Inc., 807 F.3d at 810 (“[T]he party invoking federal jurisdiction has the burden to prove that jurisdiction.”).

The Sixth Circuit sets forth that

[t]he mootness doctrine ․ “requires that there be a live case or controversy at the time that a federal court decides the case.” Burke, 479 U.S. at 363. “[I]f events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give meaningful relief, then the case is moot and must be dismissed.” Ailor v. City of Maynardville, 368 F.3d 587, 596 (6th Cir. 2004) (internal citations omitted).

Sullivan v. Benningfield, 920 F.3d 401, 410 (6th Cir. 2019). “[A] case may become moot at any stage of the litigation.” Graveline v. Benson, 992 F.3d 524, 533 (6th Cir. 2021). The “test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties.” Sullivan, 920 F.3d at 410 (quoting McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc)). “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit,” the claim for relief is moot “if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs' particular legal rights.’ ” Id. (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

IV. Analysis

Respondent argues that Petitioner's removal from the United States moots the Petition, deprives the Court of subject-matter jurisdiction, and requires the Court to dismiss the Petition. (ECF No. 13, PageID.115–118.)

The Sixth Circuit has held that when a Petitioner is deported, claims seeking release from immigration detention are mooted and must be dismissed. Enazeh v. Davis, 107 F. App'x 489, 491 (6th Cir. 2004) (“Enazeh sought release from detention pending his removal from the United States and an injunction against execution of the removal order. Because he has already been deported, the court can no longer grant the requested relief.”) (citing Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986)). The Petition sought immediate release from custody and an injunction against further detention. (ECF No. 1, PageID.6.) As of March 15, 2025, Petitioner has been removed to El Salvador. (ECF No. 10, PageID.91; ECF No. 12, PageID.101.) No exception to the mootness doctrine applies here. See Enazeh, 107 F. App'x at 491 (discussing the exception to mootness where conduct is “capable of repetition but evading review”). Accordingly, the Petition is moot and must be dismissed. Because the Petition must be dismissed, Petitioner's Motion to Appoint Counsel, (ECF No. 3), is moot and must also be denied.

Although the Court is dismissing the Petition, it has concerns about some of the representations made by Respondent. Specifically, the Court is concerned about statements related to the timing of Petitioner's removal, as well as the destination to which he would be removed. These representations may not have led to a different outcome, but they are important nonetheless, as set forth below.

The Response to the Petition for a Writ of Habeas Corpus discusses Petitioner's temporary protected status (“TPS”).² Respondent states that United States Citizenship and Immigration Services (“USCIS”) granted Petitioner TPS after Immigration and Customs Enforcement (“ICE”) initiated removal proceedings against him. (ECF No. 7, PageID.46.) After an Immigration Judge ordered that Petitioner be removed, “USCIS revoked Moreno-Camacho's temporary protected status after it learned of the arrest warrants issued for Moreno-Camacho in Venezuela prior to his arrival in the United States.” (Id. at PageID.47.)

Citing a declaration made under penalty of perjury by Bevan Anderson, an ICE officer, (ECF No. 7-2), Respondent asserts that “[Petitioner] Moreno-Camacho may appeal USCIS's decision to revoke his temporary protected status until March 18, 2025. (Exhibit 1 – Anderson Decl. ¶ 20). If Moreno-Camacho does not appeal, respondents will promptly remove Moreno-Camacho to Venezuela. (Exhibit 1 – Anderson Decl. ¶ 24).” (ECF No. 7, PageID.47.) Though the Court does not have jurisdiction over Moreno-Camacho's removal process, neither of the above statements turned out to be true.

Petitioner was removed on March 15, 2025. (ECF No. 10, PageID.91; ECF No. 10-1, PageID.96) That contradicts Respondent and Anderson's representation that Petitioner would have until March 18, 2025 to appeal the revocation of his TPS. (ECF No. 7, PageID.47; see also ECF No. 7-2, PageID.56 (“Any motion to reopen or appeal [ ] USCIS's decision [to revoke Petitioner's TPS] must be filed ․ by March 18, 2025.”); ECF No. 7-3, PageID.59–62 (February 13, 2025 decision revoking Petitioner's TPS, which states that he could “appeal to the Administrative Appeals Office (AAO) by filing a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision”).) In response to the Court's Order to Show Cause, Respondent states that “Moreno-Camacho did not appeal USCIS's withdrawal of his temporary protected status before his removal.” (ECF No. 10, PageID.91; see also ECF No. 10-1, PageID.97; ECF No. 12-1, PageID.105.) This statement elides the fact that—as Respondent's own submissions indicate—the deadline for Petitioner to appeal the revocation of his TPS had not passed when he was removed.

Petitioner was removed to El Salvador. (ECF No. 12, PageID.101.) That contradicts Respondent and Anderson's representations that Petitioner would be removed to Venezuela, which were included in submissions filed on February 26, 2025. (ECF No. 7, PageID.47; see also ECF No. 7-2, PageID.56 (Anderson stating that ICE had identified Petitioner “for removal to Venezuela” on February 11, 2025).) Respondent filed a Supplemental Declaration from Anderson on March 26, 2025. (ECF No. 12-1.) There, Anderson states that on January 13, 2025—before Respondent and Anderson asserted that Petitioner would be removed to Venezuela—ICE reached out to Guatemala, El Salvador, and Colombia but never contacted Venezuela which, at the time, “was not accepting any removals of its citizens from [the] United States.” (Id. at PageID.105.)

Respondent does not explain these discrepancies. The Court relies upon counsel and declarants to provide accurate and timely information, which did not occur here. The case must nonetheless be dismissed, and the Court will therefore vacate the Order for Respondents to Show Cause. (ECF No. 8.)

V. Conclusion

For the reasons set forth above, Petitioner is not entitled to federal habeas relief on his claims. Accordingly, the Court GRANTS Respondents' Motion to Dismiss, (ECF No. 13), DENIES the Petition for a Writ of Habeas Corpus, (ECF No. 1), DENIES Petitioner's Motion to Appoint Counsel, (ECF No. 3), and VACATES the Order to Show Cause. (ECF No. 8.)

The Court also concludes that an appeal from this decision cannot be taken in good faith. See Fed. R. App. P. 24(a). Accordingly, the Court DENIES Petitioner leave to proceed in forma pauperis on appeal.

IT IS SO ORDERED.

Ann Arbor, Michigan

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or first-class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 29, 2025.

WILLIAM BARKHOLZ Case Manager

FOOTNOTES

2.   As one court has explained,Under § 1254a, the Secretary of [the Department of Homeland Security] may designate a foreign country for TPS when individuals from that country cannot safely return due to armed conflict, natural disaster, or other extraordinary and temporary circumstances. See 8 U.S.C. § 1254a(b)․Once a foreign country is given a TPS designation, individuals from that country may apply for immigration status. If granted, they may not be removed from the United States; furthermore, they are given authorization to work in the United States. See id. § 1254a(a)(1).Nat'l TPS Alliance v. Noem, No. 25-cv-01766, 2025 WL 957677, *2 (N.D. Cal. Mar. 31, 2025) appeal docketed, No. 25-2120 (9th Cir. April 2, 2025).

JUDITH E. LEVY United States District Judge