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JING v. ASHCROFT

United States District Court, E.D. Pennsylvania


May 27, 2004.

YANG JING
v.
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.

 DISCUSSION:

  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 237-38.

  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:

RECOMMENDATION
  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.

  ORDER

  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 ADOPTED.
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.


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