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Solomon Cohen v. Hunt ICE

Solomon Cohen v. Hunt ICE

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Published by: mary eng on Apr 05, 2013
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*
 This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata, and collateral estoppel. It maybe cited, however, for its persuasive value consistent with Fed. R. App. P.32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals Tenth Circuit
April 12, 2010
Elisabeth A. ShumakerClerk of Court
UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT
SOLOMON BEN-TOV COHEN MA(CANTAB),Petitioner-Appellant,v. THERESA HUNT, Warden of GEO-ICE Detention Facility, Aurora,Colorado,Respondent-Appellee.No. 09-1277(D.C. No. 1:08-CV-01844-LTB-CBS)(D. Colorado)
ORDER AND JUDGMENT
*
Before
 TACHA
,
BRISCOE,
and
TYMKOVICH
, Circuit Judges.After examining the briefs and appellate record, this panel hasdetermined unanimously that oral argument would not materially assist thedetermination of this appeal.
See
Fed. R. App. P. 34(a)(2); 10th Cir. R.34.1(G). The case is therefore ordered submitted without oral argument. The government has filed a motion to dismiss this appeal based on
 
-2-mootness. We dismiss in part and affirm in part. The petitioner filed a 28 U.S.C. § 2241 petition challenging hisdetention without bond by Immigration and Customs Enforcement (“ICE”).In the petition, he not only challenged his detention, but also alleged that hewas denied access to the Internet and that he was unable to practice hisreligion. He sought either release or the setting of bond, injunctive anddeclaratory relief regarding the conditions of confinement as well asdamages for wrongful incarceration. The district court denied the petition,concluding that it lacked jurisdiction to review the decision of ICE to holdthe petitioner without bond. The court also determined that § 2241 was notthe proper vehicle to present the claims regarding the conditions of confinement. The government argues that the appeal is moot because the petitioneris no longer in the custody of ICE, but rather now is being held in anotherfacility pursuant to an arrest warrant issued after he was indicted on fivecounts of “refusing to apply for documents for deportation” in violation of 8U.S.C. § 1253(a)(1)(B). The petitioner contends that the government cannotevade jurisdiction by merely transferring him to another facility.Under Article III of the Constitution, federal courts may onlyadjudicate live controversies.
Alvarez v, Smith,
130 S.Ct. 576, 580 (2009).An “actual controversy must be extant at all stages of review, not merely at
 
-3-the time the complaint is filed.”
Id
. (quotation omitted). Once thecontroversy ceases to exist, the action is moot and this court lacks jurisdiction.
Lane v. Simon
, 495 F.3d 1182, 1186 (10th Cir. 2007) (citationomitted).We agree with the government that the appeal is moot as to the releaseclaims and those claims seeking declaratory judgment and injunctive relief regarding the conditions of confinement.
See Ferry v. Gonzales
, 457 F.3d1117, 1132 (10th Cir. 2006) (§ 2241 petition challenging alien’s detentionwithout bond was moot when the alien was no longer “in the custody of theDHS to benefit from a bond determination or release.”);
Wirsching v.Colorado
, 360 F.3d 1191, 1196 (10th Cir. 2004) (appeal of denial of declaratory and injunction relief regarding conditions of confinement ismoot where the prisoner was released). The petitioner was not merelytransferred from one facility to another, but rather he was released fromICEs custody and is now being held, not awaiting removal, but pending theresolution of criminal charges.However, the petitioner’s claims for damages for wrongfulincarceration are not moot.
See
 
Lippoldt v. Cole
, 468 F.3d 1204, 1217 (10thCir. 2006) (“[B]y definition claims for past damages cannot be deemedmoot.”) (quotation omitted);
Wirsching
, 360 F.3d at 1196 (release did notmoot damages claims; these claims “remain viable because a judgment for

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