IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
December 14, 2009
YAROSLAV KUROCHKA, PETITIONER,
MARY SABOL, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Judge Vanaskie
Yaroslav Kurochka, a detainee of the Bureau of Immigration and Customs Enforcement (ICE) presently confined at the York County Prison, York, Pennsylvania, filed this prosehabeas corpus petition pursuant to 28 U.S.C. § 2241. Named as Respondents are Warden Mary Sabol of the York County Prison and various federal officials.*fn1 Service of the Petition was previously ordered.*fn2
Kurochka, a native and citizen of Ukraine, states that he entered this country during May, 2005 as a non-immigrant student. On December 12, 2007, Petitioner acknowledges that he was convicted of an insurance fraud related offense in the Bucks County, Pennsylvania Court of Common Pleas. (Dkt. Entry # 1, ¶ 18.) ICE initiated removal proceedings against him during June, 2008.*fn3 Upon completing service of his criminal sentence on December 19, 2008, he was taken into custody by ICE. Kurochka alleges that on April 15, 2009 he was granted withholding of removal by an Immigration Judge. However, said determination has been appealed to the Board of Immigration Appeals. (Id. at ¶ 9.)
His pending Petition asserts that although he was granted withholding of removal over three (3) months ago, ICE has not provided him with a hearing "to demonstrate why his prolonged detention is justified." (Id. at ¶ 20.) Petitioner adds that he is not a flight risk and poses no danger to the community if released. Based upon those factors, he challenges his continued detention pending removal under the standards announced in Zadvydas v. Davis, 533 U.S. 678, 682 (2001),*fn4 and Demore v. Kim, 538 U.S. 510 (2003). As relief, Petitioner seeks his immediate release subject to reasonable terms of supervision, including the wearing of an electronic monitoring device. (Dkt. Entry # 1, ¶ 20.)
On December 11, 2009, Respondents filed a Status Report stating that "on September 25, 2009, the Petitioner 'was released on an order of supervision and an electronic monitoring device.'" (Dkt. Entry # 13 at 1.) Since Petitioner has been released from confinement, Respondents seek dismissal of the petition on the basis of mootness. Accompanying Respondents' notice is a declaration under penalty of perjury by Chief Counsel Kent J. Frederick for the Philadelphia Office of ICE.
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, C.J.).
As previously noted, Kurochka does not challenge the fact of his deportation. The relief sought by his Petition, release from detention pending removal, has been obtained. Consequently, Petitioner's challenge to indefinite detention pending removal must be dismissed as moot since it no longer presents an existing case or controversy. See Novas v. ICE, 303 Fed. Appx. 115, 118 n. 3 (3d Cir. 2008)(release from ICE custody moots habeas petition solely addressing the detention issue.) An appropriate Order is attached.
NOW, THEREFORE, THIS 14th DAY OF DECEMBER, 2009, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus is DISMISSED AS MOOT.
2. The Clerk of Court is directed to CLOSE the case.
Thomas I. Vanaskie United States District Judge