United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
14, 2017, Petitioner, Thomas Omollo, an immigration detainee
of the United States Department of Homeland Security,
Immigration and Customs Enforcement (“ICE”),
currently housed in York County Prison, filed the above
captioned petition for writ of habeas corpus, pursuant to
28 U.S.C. §2241. (Doc. 1). At the time
of petition, Omollo was in pre-final immigration detention,
and challenged his prolonged detention, requesting he be
granted a bond hearing. Id. Simultaneous to the
above captioned petition, Omollo was pursuing, in the United
States Court of Appeals for the Third Circuit, a petition for
review of the Immigration Court's decision to deny his
applications for asylum, for withholding of removal and for
protection under the Convention Against Torture. See
Omollo v. Att'y Gen., No. 17-2306 (3d Cir. 2017).
Order dated October 30, 2017, the Court, finding that
Respondent did not oppose Petitioner's request for a bond
hearing, granted the petition for writ of habeas and directed
that Petitioner be granted a bond hearing. (Doc. 7).
before the Court is Respondent's motion to stay and to
amend and vacate this Court's October 30, 2017 Order,
granting the habeas petition. (Doc. 8). No. brief in
opposition has been filed. For the reasons that follow,
Respondent's motion will be granted.
motion for reconsideration is a device of limited utility. It
may be used only to seek remediation for manifest errors of
law or fact or to present newly discovered evidence which, if
discovered previously, might have affected the court's
decision. Harsco Corp. v. Zlotnicki, 779 F.2d 906
(3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986).
Accordingly, a party seeking reconsideration must demonstrate
at least one of the following grounds prior to the court
altering, or amending, a standing judgment: (1) an
intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Max's Seafood Café v. Quineros, 176 F.3d
669, 677 (3d Cir. 1999)(citing North River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.
1995)). A motion for reconsideration is appropriate in
instances where the court has “...misunderstood a
party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error
not of reasoning, but of apprehension.” See
Rohrbach v. AT & T Nassau Metals Corp., 902
F.Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other
grounds on reconsideration, 915 F.Supp. 712 (M.D. Pa. 1996),
quoting Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It may not be
used as a means to reargue unsuccessful theories, or argue
new facts or issues that were not presented to the court in
the context of the matter previously decided. Drysdale v.
Woerth, 153 F.Supp.2d 678, 682 (E.D. Pa. 2001).
“Because federal courts have a strong interest in the
finality of judgments, motions for reconsideration should be
granted sparingly.” Continental Casualty Co. v.
Diversified Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa.
support of his motion for reconsideration, Respondent states
that at the time of their response to the petition, Omollo
was in pre-final order detention and his detention was
governed by 8 U.S.C. §1226(c), which mandates the
detention of aliens with certain criminal convictions during
the pendency of their removal proceedings. See also
Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 270 (3d
Cir. 2012) (finding that where an alien benefits from a stay
of removal following an administratively final order of
removal, Section 1226 continues to provide the statutory
authority for detention).
on October 4, 2017, prior to this Court's Order, the
Court of Appeals dismissed Omollo's petition for review
at Omollo's request and dismissed the stay of
proceedings. (See Doc. 9-1 at 7, Order).
The dismissal of Omollo's pending petition for review
converted his mandatory detention under Section 1226 to
post-final order detention under Section 1231. See
e.g, Leslie, 678 F.3d at 269-70; Jones v.
Sabol, 2010 WL 4384251, at *4 (M.D. Pa. Oct. 29, 2010)
(“[I]f Jones chooses not to file a petition for review
with the Third Circuit Court of Appeals, or if he files a
petition for review and a motion for stay, and the motion is
denied, then his order of removal will become
administratively final . . . . After an order of removal
becomes final, an alien is detained under the post-final
Order provisions of 8 U.S.C. §1231(a).”);
Wilson v. Green, 2016 WL 4571389, at *2-3 (D. N.J.
Sept. 1, 2016) (concluding that alien's detention during
period of temporary stay of removal was governed by
§1226(c), and governed by §1231 after the Court of
Appeals for the Third Circuit denied the alien's motion
for stay and vacated the temporary stay of removal). Because
Respondent's motion presents evidence regarding
Omollo's detention, which, if available at the time of
this Court's October 30, 2017, would have affected this
Court's decision, the Court will grant Respondents'
motion for reconsideration, and vacate its October 30, 2017
Order granting Omollo a bond hearing. The Court, however,
will not reopen the above captioned action.
Omollo commenced this action, he was subject to pre-final
order detention, and was detained under 8 U.S.C.
§1226(c). Because Omollo's removal order became
final on October 4, 2017, he is no longer being detained
pursuant to Section 1226. Therefore, Omollo's claim
pursuant to that section is necessarily moot because he is
now subject to a final order of removal. Rodney v.
Mukasey, 340 Fed.Appx. 761, 764 (3d Cir. 2009) (finding
that the change in the procedural posture of the case from
pre-final order to post-final order mooted petitioner's
challenge to pre-final order detention under section 1226(c)
because “[t]he injury alleged, unreasonably long
pre-final order of removal detention under 8 U.S.C.
§1226(c), can no longer be redressed by a favorable
judicial decision”). Omollo is permitted, however, to
file a new section 2241 petition challenging his post-removal
order under 8 U.S.C. §1231. Consequently,
Respondent's motion for reconsideration of this
Court's Order granting a bond hearing will be granted and
Omollo's petition for writ of habeas corpus will be
dismissed as moot.
appropriate order shall follow.
Federal courts may adjudicate
“only actual, ongoing cases or controversies.”
Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990).
To be an actual case or controversy, there must be injury
that “is likely to be redressed by a favorable
decision. Valley Forge Christian College v. Amercans
United for Separation of Church and State, Inc., 454
U.S. 464, 472 (1982) (quoting Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26, 38 (1976)) The
necessity of an actual ...