Vizarraga Sanchez v. Noem et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
VICTOR JESUS VIZARRAGA
SANCHEZ,
)
)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-547-R
)
MARKWAYNE MULLIN, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Victor Jesus Vizarraga Sanchez, a noncitizen detainee in the custody of
the U.S. Immigration & Customs Enforcement (“ICE”), filed a Petition for Writ of Habeas
Corpus. Doc. 1. United States District Judge David L. Russell referred this matter to the
undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Because
Petitioner is no longer in ICE custody and this Court can grant no relief to him, the
undersigned recommends the Court dismiss the Petition as moot.
I. 	Background and Petitioner’s Claims
Petitioner is a native and citizen of Peru. Pet. at 6. He entered the United States in
February 2023 without admission or parole after inspection by an immigration official. Id.;
Resp. at 4. Immigration officials placed Petitioner into removal proceedings, and a Notice
to Appear charged him as removable as an alien present in the United States who had not
been admitted or paroled. Resp. at 4; Doc. 10-1. Petitioner sought asylum in June 2024.
Resp. at 4.; Doc. 10-2. In September 2025, he was stopped on a traffic violation and later
transferred to ICE custody. Pet. at 7. On January 7, 2026, an Immigration Judge ordered
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Petitioner removed to Peru. 	Resp. at 4-5; Doc. 10-4. 	He appealed, but the Board of
Immigration Appeals dismissed his appeal as untimely. Resp. at 5; Doc. 10-5 at 2.
Petitioner alleges his continued detention violates the Fifth Amendment, the
Immigration and Nationality Act, and the Administrative Procedures Act. 	Pet. at 29-33.
He seeks immediate release and injunctive relief from any transfer or removal. Id. at 33-
34. When Petitioner filed his Petition on March 19, 2026, he was detained at the
Diamondback Correctional Facility in Watonga, Oklahoma. Id. at 11.
Petitioner later filed a Motion for Preliminary Injunction Ordering Release Pending
Final Judgment, Doc. 13, and an Emergency Motion to Enjoin Transfer and for Temporary
Restraining Order (“TRO Motion”), Doc. 16. In the TRO Motion, Petitioner alleges he “is
medically fragile,” “has recently undergone multiple serious surgeries,” and “remains in a
vulnerable condition.” Doc. 16 at 2. He seeks injunctive relief for his transfer and removal
based on his medical conditions. Id. The undersigned recommended denial of Petitioner’s
TRO Motion. Doc. 22. On April 20, 2026, the Court denied the TRO Motion. Doc. 24.
On April 21, 2026, when Petitioner no longer appeared on the ICE Detainee
Locator, the Court ordered Respondents to advise whether Petitioner had been removed
from the United States.1 Doc. 25. 	On April 27, 2026, Respondents informed the Court
that Petitioner was removed from the United States to Peru on April 14, 2026. 	Doc. 26.
1 On April 10, 2026, Respondents stated they “will provide notice to the Court once
Petitioner had been assigned a flight” for removal. 	Doc. 23 at 2-3 n.3. 	No notice was
provided. 	When Petitioner no longer appeared on the ICE Detainee Locator, the Court
ordered Respondents to provide an update.
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The undersigned has separately confirmed Petitioner’s location in ICE custody no longer
appears on ICE’s Online Detainee Locator System, at https://locator.ice.gov/odls/#/results
(last visited Apr. 28, 2026).
II. 	Standard of Review
To obtain habeas corpus relief, Petitioner must show he is “in custody in violation
of the Constitution or laws or treaties of the United States.” 	28 U.S.C. § 2241(c)(3).
“Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis,
533 U.S. 678, 687-88 (2001)).
“Mootness is a threshold issue because the existence of a live case or controversy is
a 	constitutional 	prerequisite 	to 	federal 	court 	jurisdiction.” 	McClendon 	v. 	City 	of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). 	“Because mootness is a matter of
jurisdiction, a court may raise the issue sua sponte.” Id.
III. 	Analysis
Petitioner properly filed his Petition in this district because he was detained here at
the time of filing. Pet. at 11; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (noting
a § 2241 petition “must be filed in the district where the prisoner is confined”). Petitioner
satisfied the “in custody” requirement under § 2241 “at the time the petition was filed.”
Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also Riley v. I.N.S., 310 F.3d 1253, 1256 (10th
Cir. 2002) (noting that petitioner met the “in custody” requirement of § 2241 because he
was “in custody at the time of filing” (quoting 28 U.S.C. § 2241)). “The more substantial
question, however, is whether petitioner’s subsequent release caused the petition to be
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moot because it no longer presented a case or controversy under Article III, § 2, of the
Constitution.” Spencer, 523 U.S. at 7.
“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and
‘controversies.’” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (quoting U.S.
Const. art. III, § 2). 	“In order to invoke federal-court jurisdiction, a [petitioner] must
demonstrate that he possesses a legally cognizable interest, or personal stake, in the
outcome of the action.” 	Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)
(citation modified). 	This means “an actual controversy must be extant at all stages of
review, not merely at time the [petition] is filed.” Arizonans for Off. Eng. v. Arizona, 520
U.S. 43, 67 (1997) (citation modified). 	“If an intervening circumstance deprives the
[petitioner] of a personal stake in the outcome of the lawsuit, at any point during litigation,
the action can no longer proceed and must be dismissed as moot.” 	Genesis Healthcare
Corp., 569 U.S. at 72 (citation modified). 	“A case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox
v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (citation modified).
Here, Petitioner is no longer in ICE custody and has been removed from the United
States to his home country of Peru. 	Though jurisdiction attached in this district when
Petitioner filed his Petition here, his subsequent removal from the United States and release
from ICE custody may render his Petition moot. 	The Petition does not become moot,
however, merely because Petitioner has been removed from the country. 	If a petitioner
“has been released from custody while his or her habeas petition is pending, a court’s
jurisdiction depends upon the existence of ‘collateral consequences . . . adequate to meet
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Article III’s injury-in-fact requirement.’” King v. Ciolli, No. 23-1201, 2024 WL 1179908,
at *2 (10th Cir. Mar. 19, 2024) (quoting Spencer, 523 U.S. at 14). To overcome mootness
after release from custody, a petitioner must show “some concrete and continuing injury”
“if the suit is to be maintained.” Spencer, 523 U.S. at 7.
Petitioner challenges his detention, and not his underlying removal order. 	Courts
have concluded a petitioner’s release from immigration custody mooted his habeas
challenge to the legality of his detention, where the only possible “continuing injury” or
collateral consequence “stems from his removal order, not his detention.” 	Ferry v.
Gonzales, 457 F.3d 1117, 1132 (10th Cir. 2006). 	Further, any determination now as to
whether Petitioner’s detention violated his due process rights would amount to an advisory
opinion that this Court cannot issue. Id. (declining “to issue an advisory opinion regarding
[petitioner’s] entitlement to a bond hearing because a declaratory judgment on that question
would have no meaningful effect on the [immigration officials’] future conduct” with him).
Petitioner is no longer in ICE custody, and the relief he requests is no longer
available and cannot be redressed by a favorable judicial decision. The undersigned is not
aware from the record of any collateral consequences to Petitioner that would constitute an
exception to the mootness doctrine. As such, Petitioner’s habeas challenge to his detention
no longer presents a case or controversy subject to this Court’s jurisdiction, and the Petition
should be dismissed as moot. See, e.g., Sule v. I.N.S., 189 F.3d 478, 1999 WL 668716, at
*1 (10th Cir. 1999) (unpublished table decision) (concluding an immigration detainee’s
release from immigration custody through deportation “mooted his challenge to the legality
of his detention”); Mounivong v. Bondi, No. CIV-25-1483-PRW, 2025 WL 3907008 (W.D.
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Okla. Dec. 22, 2025) (recommending dismissal of habeas petition as moot when petitioner
was removed to home country and no longer in ICE custody) (R&R), adopted, 2026 WL
69364 (W.D. Okla. Jan. 8, 2026); Souphanthong v. Bondi, No. CIV-25-1220-D, Doc. 16
(W.D. Okla. Dec. 1, 2025) (same) (R&R), adopted, Doc. 20 (W.D. Okla. Dec. 16, 2025);
Bolom Vazquez v. Holt, No. CIV-25-1191-J, Doc. 12 (W.D. Okla. Nov. 6, 2025) (same)
(R&R), adopted, Doc. 13 (W.D. Okla. Nov. 21, 2025).
IV. 	Recommendation and Notice of Right to Object
Petitioner’s release from ICE custody and removal to Peru render his Petition moot,
as there is no longer an actual case or controversy for the Court to decide. The undersigned
therefore recommends that the Court DISMISS the Petition, Doc. 1, as moot.2
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. 	Any objection must be filed not later than May 5, 2026. 	See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). 	If a party wishes to respond to the other party’s
objections, such response must be filed not later than May 8, 2026. 	See Fed. R. Civ. P.
72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	See Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
2 Adoption of this Report and Recommendation would moot Petitioner’s Motion for
Preliminary Injunction Ordering Release Pending Final Judgment, Doc. 13.
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ENTERED this 28 th day of April, 2026.
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