Opinion
9:02-CV-0112, (DNH)(GLS)
September 16, 2003
JAMES W. GRABLE, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Buffalo, NY, for RESPONDENT
REPORT AND RECOMMENDATION
This matter has been referred for Report-Recommendation by the Hon. David N. Hurd, U.S. District Court Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
I. Background
Petitioner, pro se Puello Garcia-Bienvenido Arturo commenced this action pursuant to 28 U.S.C. § 2241 on January 28, 2002. Pet. His petition challenges the validity of an order of deportation issued by an Immigration Judge on January 11, 2002. Id. at (unnumbered) P.2. By Order filed February 12, 2002, United States District Judge David N. Hurd directed, inter alia, the respondent to file a response to the petition (Dkt. No. 4).
At the time, Arturo was incarcerated at the Ogdensburg Correctional Facility. Pet. at (unnumbered) P. 1.
On May 21, 2002, respondent moved to dismiss the petition ( Dkt. Nos. 10-13 ). In its memorandum of law in support of its motion, respondent argues that after Arturo filed this action, the Board of Immigration Appeals re-opened Arturo's removal proceeding and directed the INS to provide him with another removal hearing ( Dkt. No. 12 at P.2). Respondent argues that because Arturo has been granted the relief sought in his petition, a second removal hearing before an Immigration Judge, his petition should be dismissed as moot. Id.
On August 20, 2002, respondent filed a supplemental response in further support of its motion to dismiss. See Second Supplemental Declaration of James W. Grable, Esq. (8/19/02) ( Dkt. No. 15) (" August 2002 Declaration"). In that submission, respondent indicates that Arturo was removed from the United States to the Dominican Republic on August 7, 2002, and argues that such deportation further establishes that the present action is moot. Id. at P. 2 and attached Ex. A. II. Discussion A. Propriety of motion
Respondent argues that this action is moot because: i) the INS provided Arturo with the relief sought in the petition; and, ii) Arturo has, since the filing of this action, been deported ( Dkt. Nos. 12, 15). Thus, the court must determine whether matters that have transpired since this proceeding was commenced, have deprived this court of jurisdiction over Arturo's petition.
Ordinarily, a court may not look past the pleadings when considering a motion to dismiss. See Six West Retail Acquisition, Inc. v. Sony Theatre Management Corp., No. 97Civ.5499, 2000 WL 264295, at *12 (S.D.N.Y. Mar. 9, 2000) (citations omitted). However, the party bringing the action in federal court has the burden of affirmatively establishing jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Since a federal court does not have subject matter jurisdiction over an action that has become moot, see Fox v. Board of Trustees of State University of New York, 42 F.3d 135, 140 (2d Cir. 1994) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)) (other citation omitted), this court may properly consider matters submitted by a party which address the issue of the court's jurisdiction. Fier v. United States, 01 Civ.2225, 2002 WL 453177, at *1 (S.D.N.Y. Mar. 25, 2002) (citations omitted), aff'd, 53 Fed.Appx. 158 (2d Cir. 2002) (unreported).
B. Merits of the Motion
Arturo claims that the removal order entered against him by the Immigration Judge was "illegal" because that Judge improperly and retroactively applied the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996 to the detriment of Arturo. Pet. at P.2. Additionally, although not explicitly stated by Arturo, a fair reading of the petition reveals that the relief sought by this action is another removal proceeding. See Pet. at PP. 1-3.
Arturo's petition is not entirely clear in this regard; the petition simply states that he seeks an order "grant[ing] Petitioner relief, to which he is entitled in this proceeding." Pet. at P.3.
In support of its motion, respondent has provided the court with a declaration which indicates that on July 9, 2002, Arturo was afforded a second removal hearing before an Immigration Judge. See Declaration of James W. Grable, Esq. (7/18/02) ( Dkt. No. 13) (" July Declaration") at ¶ 5. "The hallmark of a moot case . . . is that the relief sought . . . is no longer needed." Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983); see also, Petrazzoulo v. U.S. Marshals Service, 999 F. Supp. 401, 406 (W.D.N.Y. 1998) (citing Martin-Trigona) (other citations omitted). Since Arturo obtained the relief he sought in this action as of July 9, 2002, it appears that his petition was rendered moot on that basis alone.
Following that hearing, the Immigration Judge found that Arturo was subject to removal. July Declaration at ¶ 5. Arturo thereafter indicated that he "waived his right to pursue any appeal from that removal order and accepted that removal order as administratively final." Id. at attached Ex. A.
However, in its supplemental declaration in further support of its motion, respondent has filed a copy of a Warrant of Removal/Deportation issued by the INS which indicates that Arturo was deported from the United States on August 7, 2002. See August, 2002 Declaration at Ex. A. Where, as here, an alien has been deported, the court lacks jurisdiction to entertain the petition because the alien has already departed the United States. See Paulino v. United States Immigration and Naturalization Service, 97-CV-834, 1998 WL 99372, at *1 (N.D.N.Y. Feb 19, 1998) (Pooler, D.J.) (adopting Report-Recommendation of Magistrate Judge that recommended dismissing habeas petition because alien had been deported); Maung v. McElroy, 98Civ.5380, 1998 WL 896709, at *1 (S.D.N.Y. Dec. 10, 1998) (same). Thus, Arturo's deportation has also rendered his petition moot.
In addition to addressing the issue regarding this court's subject matter jurisdiction over this proceeding, the warrant of removal/deportation is a public record and is therefore properly considered by a court in the context of a motion to dismiss. United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997) ("warrants of deportation are public records"); United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985) (warrants of deportation are matters of public record which are "inherently reliable").
In light of the foregoing, the court recommends that the motion to dismiss be granted and the petition be dismissed as moot.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that respondent's motion to dismiss ( Dkt. No. 10) be GRANTED and the petition be DENIED and DISMISSED as MOOT, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation on the parties by regular mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e)and 72.
IT IS SO ORDERED.