United States District Court, E.D. Pennsylvania
July 13, 2004.
TRUNG CAO NGUYEN
JOHN ASHCROFT, United States Attorney General, et al.
The opinion of the court was delivered by: THOMAS RUETER, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before the court is a counseled petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is an
alien under a final order of removal. At the time he filed his
petition, petitioner was detained by United States Immigration
authorities and sought release from the detention. Since the
filing of his petition, he has been released from custody under
an Order of Supervision. For the reasons stated below, the court
recommends that the petition be dismissed as moot.
Petitioner, Trung Cao Nguyen, is a native and citizen of
Vietnam. (Pet. ¶ 1.)*fn1 He was admitted to the United
States in 1986 as an immigrant and adjusted his status to lawful
permanent resident in 1987. (Response to Pet. at 1.) In 1995 and
1996, petitioner was convicted of three separate criminal
offenses in federal and state courts. (Pet. ¶¶ 7-9.)
On November 8, 1999, the Immigration and Naturalization Service
(now known as the Bureau of Immigration & Customs Enforcement,
Department of Homeland Security, hereinafter "BICE"), issued a
Notice to Appear to the petitioner, charging him with being
subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (providing
for removal of an alien convicted of two or more crimes of moral
turpitude). (Pet. ¶ 10; Response to Pet. at 2.) Petitioner was
taken into custody in August, 2003. (Response to Pet. at 2.) On
December 2, 2003, petitioner was ordered removed to Vietnam.
(Pet. ¶ 12.) He waived his right to appeal to the Board of
Immigration Appeals. (Pet. ¶ 13; Response to Pet. at 3.)
Petitioner received a Post Order Custody Review in March, 2004.
(Response to Pet. at 2.) In part because the government of
Vietnam would not issue a travel document, he was recommended for
supervised release. Id. The BICE issued an Order of Supervision
on April 9, 2004. Id.; Response to Pet., Ex. E. Petitioner was
released under terms of supervision on June 3, 2004. (Response to
Pet. at 3.) As a condition of his release, petitioner posted a
$30,000 bond which was secured by a bonding company. See Letter
from counsel for petitioner dated June 8, 2004.
A federal court has jurisdiction to issue a writ of habeas
corpus only if the person seeking the writ is "in custody." See
28 U.S.C. § 2241. The "in custody" determination is made as of
the time the habeas petition is filed. Spencer v. Kemna,
523 U.S. 1, 7 (1998). Once the federal habeas jurisdiction has
attached, "it is not defeated by the release of the petitioner
prior to completion of proceedings on such application." Carafas
v. LaVallee, 391 U.S. 234, 238 (1968).
Although petitioner was "in custody" at the time he filed his
application for a writ of habeas corpus on May 5, 2004, he does
not challenge his removal. Instead, petitioner sought release on
conditions pending his removal to Vietnam. See Pet. ¶¶ 18-20.
Because petitioner was released on an Order of Supervision of
April 9, 2004, he has obtained all the relief to which he is entitled. This moots consideration of his habeas petition.
See Izquierdo v. Ashcroft, 2004 WL 1211960, at *1 (E.D. Pa.
June 2, 2004) (Kauffman, J.) (release moots habeas petition filed
by alien challenging legality of extended detention); Camara v.
Comfort, 235 F. Supp.2d 1174 1175 (Colo. 2002) (same).
Counsel for the petitioner argues that since his client has to
pay an annual premium to a bonding company for the security
posted for his release, the case is not moot "since the extent of
the bond requires a significant present expense and an indefinite
greater expense for future years of premium to the bonding
company." See Letter from counsel for petitioner dated June 8,
2004. A similar argument was rejected by the court in Camara.
There, the petitioner was an alien who was released on a bond not
to exceed $2,500. The bond was posted and petitioner was released
from custody. Petitioner argued that his habeas corpus proceeding
was not moot when he was released from custody because there were
multiple restrictions on his freedom contained in the Order of
Supervision, including the bond requirement. The Camara court
rejected this argument, stating the following:
The primary injury alleged in the petition, however,
was Petitioner's illegal detention, not the final
order of removal to which he is subject. Since the
conditions in the order of supervision flow, not from
Petitioner's illegal detention, but from the final
order of removal, they are not collateral
consequences of Petitioner's detention, and therefore
cannot sustain the petition's justiciability under
Article III. Even if the conditions in the order of
supervision could be construed as "collateral
consequences," they do not rise to the level of
constitutional injury sufficient to render this case
a live controversy under Article III.
Camara, 235 F. Supp.2d at 1176 (footnotes omitted). Accordingly, the court should dismiss this petition for a writ
of habeas corpus as moot.*fn2
For all the above reasons, the court makes the following:
AND NOW, this 13th day of July, 2004, the court
respectfully recommends that the petition for a writ of habeas
corpus be DISMISSED as moot, and that no certificate of
appealability ("COA") be granted.*fn3