In March 1998, plaintiff Tuong Huan Van Dinh, a lawful permanent resident alien facing deportation because of a criminal conviction, filed a habeas corpus action in the District Court for the District of Colorado, individually and on behalf of others similarly situated, challenging the ...
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In March 1998, plaintiff Tuong Huan Van Dinh, a lawful permanent resident alien facing deportation because of a criminal conviction, filed a habeas corpus action in the District Court for the District of Colorado, individually and on behalf of others similarly situated, challenging the constitutionality of holding deported aliens indefinitely when their country of origin refused to allow them reentry. Subsequent to the suit being filed, plaintiff received notice that he and other immigration detainees might be transferred from the facility in Aurora, Colorado to other facilities due to a contract dispute with the facility operator.
On April 24 1998, plaintiff filed an amended application for habeas corpus, challenging the possibility of his transfer as being an unconstitutional, denial of his right to counsel if moved to a remote area. He requested class certification and a TRO to prevent transfer of all detainees outside of the Denver-area. The District Court issued a TRO, suspending any detainee transfers until a hearing set on April 27.
On April 26, 1998, plaintiff and other immigrant detainees filed a separate class action lawsuit under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In that suit, plaintiffs requested injunctive relief restraining all alien transfers until the detainees were able to consult with local counsel. Plaintiffs also moved for class certification and to consolidate the case with Tuong's original habeas action.
The government moved to dismiss both cases for lack of jurisdiction.
At the April 27 TRO hearing, the government advised the Court that it reached a temporary contract extension for its facility in Aurora, Colorado, making the TRO moot. A long term contract was subsequently entered and the parties eventually reached a stipulation with regard to Tuong's bail, resolving his habeas case.
As the government was no longer transferring detainees from Aurora, Colorado, it moved to dismiss as moot the Bivens class action. Plaintiffs filed a response, agreeing that the case was moot, but requesting attorneys fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.S. § 2412(d)(1)(A). The District Court refused to award attorneys fees, concluding that plaintiffs had not shown that they were the prevailing party. Plaintiffs appealed.
The Tenth Circuit Court of Appeals found that the District Court did not have subject matter jurisdiction over the case. The judgment was vacated and the case was remanded for dismissal with prejudice. Van Dinh v. Reno, 197 F.3d 427 (10th Cir. 1999).Dan Dalton - 11/15/2007