The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
Emanuel Nkemakolam, a detainee of the Bureau of Immigration and
Customs Enforcement (ICE) presently confined at the Pike County
Prison, Lords Valley, Pennsylvania, filed this pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Service of the petition was previously ordered. Named as
Respondents are the ICE, its Acting Field Office Director Thomas
Decker, and the Department of Homeland Security.
Nkemakolam identifies himself as being a native and citizen of
Nigeria who entered the United States as a student around 1980.
He became a lawful permanent resident in 1987. Petitioner
acknowledges that he was convicted of criminal possession of a
controlled substance in the State of New York. While serving a
term of incarceration stemming from his criminal conviction, the
ICE initiated removal proceedings. An Immigration Judge ordered
his removal from the United States on October 14, 1998. An appeal to the Board of Immigration Appeals (BIA) was
dismissed as untimely on December 23, 1998. Petitioner then filed
an emergency habeas corpus petition which was assigned to Judge
Munley of this Court. The emergency petition which challenged the
legality of his removal proceedings was subsequently denied.
See Nkemakolam v. Ridge, Civil No. 3:CV-04-1041, slip op.
(M.D. Pa Nov. 16, 2004) (Munley, J.). An appeal of that decision
was filed with the United States Court of Appeals for the Third
Circuit. On February 11, 2005, the Third Circuit granted
Petitioner's request for a temporary stay of removal. However,
pursuant to an agreement of the parties, Petitioner's appeal was
dismissed on August 19, 2005.
In a second § 2241 petition, Nkemakolam sought his immediate
placement on supervised release on the grounds that under the
standards announced in Zadvydas v. Davis, 533 U.S. 678 (2001),
his prolonged detention in ICE custody while awaiting deportation
violated his constitutional rights. See Nkemakolam v. Decker,
Civil No. 3:CV-05-893. By Memorandum and Order dated May 5, 2005,
this Court referred the petition to the ICE as a request for
review under 8 C.F.R. § 241.13 pursuant to the standards
announced in Zadvydas.
Petitioner has now filed a third § 2241 petition which again
challenges his indefinite detention pending removal.
Specifically, Nkemakolam states that on May 10, 2005 he received
a letter from Field Director Decker advising him that the ICE's Headquarters
Post Detention Unit (HQPDU)was presently unable to undertake
custody review in cases such as his where a judicially ordered
stay was the sole impediment to removal. Decker added that a
travel document had already been issued for his removal.
Nkemolam's present action contends that Decker erred by
concluding that a travel document had already been issued. In
addition, Petitioner asserts that regardless of the presence of
any judicially ordered stay he is still entitled to immediate
release because his removal to Nigeria is not likely to occur
within the reasonably forseeable future.
The case or controversy requirement of Article III, § 2 of the
United States Constitution subsists through all stages of federal
judicial proceedings. Parties must continue to have a "`personal
stake in the outcome' of the lawsuit." Lewis v. Continental Bank
Corp., 494 U.S. 472, 477-78 (1990); Preiser v. Newkirk,
422 U.S. 395, 401 (1975). In other words, throughout the course of
the action, the aggrieved party must suffer or be threatened with
actual injury caused by the defendant. Lewis, 494 U.S. at 477.
The adjudicatory power of a federal court depends upon "the
continuing existence of a live and acute controversy." Steffel
v. Thompson, 415 U.S. 452, 459 (1974) (emphasis in original).
"The rule in federal cases is that an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed." Id. at n. 10 (citations omitted). "Past exposure to
illegal conduct is insufficient to sustain a present case or
controversy . . . if unaccompanied by continuing, present adverse
effects." Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y.
1985) (citing O'Shea v. Littleton, 414 U.S. 488, 495-96
(1974)); see also Gaeta v. Gerlinski, Civil No.
3:CV-02-465, slip op. at p. 2 (M.D. Pa. May 17, 2002) (Vanaskie,
This Court contacted ICE officials at the Pike County Prison to
verify that Nkemakolam was still being held at that facility. The
Court was informed that removal proceedings against the
Petitioner were terminated on October 11, 2005 and that he had
been released from confinement. In a status report filed on
October 20, 2005 the Respondents confirmed Petitioner was granted
cancellation of removal and released from ICE custody on October
11, 2005. See Doc. 9.
Therefore, under the principles set forth in Steffel,
Nkemakolam's instant petition is subject to dismissal as moot
since it no longer presents an existing case or controversy. An
appropriate Order will enter.
AND NOW, THIS 21st DAY OF OCTOBER, 2005, IT IS THEREFORE
1. The petition for writ of habeas corpus is
dismissed as moot.
2. The Clerk of Court is directed to close the case. 3. Based on the Court's determination, there is no
basis for the ...