United States District Court, E.D. Pennsylvania
May 27, 2004.
JOHN ASHCROFT, et al
The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for writ
of habeas corpus filed by Yang Jing ("Jing") pursuant to
28 U.S.C. § 2241. As set forth more fully herein, I recommend that Jing's
petition be dismissed as moot.
FACTS AND PROCEDURAL HISTORY:
Jing is a citizen of the People's Republic of China. Jing v.
I.N.S., No. 02-1221, slip op. at 1 (M.D. Pa. July, 7, 2003),
attached to Pet. as Ex. "A." On November 27, 2000, Jing was arrested in
Philadelphia, Pennsylvania, while attempting to enter the United States
without identification, a valid immigration visa or other documentation
authorizing entry to the United States. Id. Jing was then
placed in removal proceedings under § 240 of the Immigration and
Nationality Act ("INA"). Id.
At a proceeding before an immigration judge ("I.J."), Jing sought
asylum under INA § 208, codified as, 8 U.S.C. § 1158; withholding
of removal under INA § 241(b)(3); and protection under the
Convention Against Torture ("CAT"). Jing, supra, at 2. On June
6, 2001, the I.J. denied Jing's claims and ordered him removed under
8 U.S.C. § 1231(b)(1)(A). Id. On October 22, 2001, the Board
of Immigration Appeals ("BIA") dismissed Jing's appeal. Id.
In July 2002, Jing filed a petition for writ of habeas corpus in the
United States District Court for the Middle District of Pennsylvania
contesting his order of removal and his continued detention pending
removal. Jing, supra. The court denied Jing's
petition on July 7, 2003. Id.
On January 29, 2004, Jing filed the instant petition for writ of habeas
corpus arguing that his continued detention pending removal to China
violates his Due Process rights because he had not been given periodic
and meaningful parole review. See Pet. at 6-10: see also
Chi Thon Ngo v. I.N.S., 192 F.3d 390 (3d Cir. 1999). Jing therefore
requested immediate "file custody review" to determine his removal status
and possible parole into the community.*fn1 See Pet. at 14. On
February 11, 2004, Jing was removed to the People's Republic of China.
See Resp't Answer, at Ex. "A."
On March 23, 2004, Respondents filed an answer to Jing's habeas
petition asserting that it should be dismissed as moot.
The writ of habeas corpus is available only to persons held "in custody
in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2241(c)(3). Jing has satisfied the "custody"
requirement found in 28 U.S.C. § 2241 because he was physically "in
custody" when he filed the instant petition. Carafas v.
LaVallee, 391 U.S. 234, 238 (1968). Once federal habeas jurisdiction has attached, "it
is not defeated by the release of the petitioner prior to the completion
of proceedings on such application." Carafas, 391 U.S. at
Respondents contend, however, that the instant petition must be
dismissed as moot because, rather than challenging his removal, Jing
exclusively sought release on conditions pending his removal to China. I
agree. When a habeas petitioner has been released from custody after
filing a petition, the relevant inquiry becomes whether the case still
presents a case or controversy under Article III, § 2 of the United
States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
"This means that, throughout the litigation, the [petitioner] `must have
suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision."
Id. (citing Lewis v. Continental Bank Corp.,
494 U.S. 472, 477-78 (1990)). We find that this petition no longer presents
a case or controversy because Jing only requested his release from
indefinite detention and/or his removal to China. Even if unlawful, Jing's
detention pending removal imposes no collateral consequences on him today in
light of the fact that Jing has been released from detention due to his
removal to China. Sango v. Reno, 2001 WL 1223427, at *3 (S.D.N.Y. Oct.
15, 2001). As a result, I find that Jing's claim is moot.
Spencer, 523 U.S. at 7-8; see generally Rilevy v.
I.N.S., 310 F.3d 1253, 1257 (10th Cir. 2002) (release moots habeas
petition challenging legality of extended detention); Alhamdani v.
Attorney General of the United States, 2003 WL 21448784 (N.D. Tex. April 28, 2003) (removal to native country moots consideration of
habeas petition when petitioner only sought release on conditions pending
removal); Sango, 2001 WL 1223427 (same). Consequently, the
instant petition must be dismissed.
Therefore, I make the following:
AND NOW, this day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the
petition for writ of habeas corpus be DISMISSED. There has been
no substantial showing of the denial of a constitutional right
requiring the issuance of a certificate of appealability.
AND NOW, this day of, upon careful and independent consideration of the
petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2241, and after review of the Report and Recommendation of
United States Magistrate Judge Peter B. Scuderi, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and
2. The petition for a writ for habeas corpus filed
pursuant to 28 U.S.C. § 2241 is DISMISSED.
3. There is no basis for the issuance of
a certificate of appealability.