Opinion
9:02-CV-0227 (LEK)(GLS)
September 23, 2003
GEORGE BROWN Petitioner, Pro Se for THE PETITIONER,
JAMES W. GRABLE, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Buffalo, NY, for Respondent BICE,
HON. ELIOT SPITZER, GERALD J. ROCK, ESQ., Albany, NY, for Respondent DOCS
REPORT AND RECOMMENDATION
This matter has been referred for Report-Recommendation by the Hon. Lawrence E. Kahn, U.S. District Court Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
Last Known Address per Petitioner: Riverview Correctional Facility 99-A-5023 PO Box 247 Ogdensburg, N.Y. 13669
Last Known Address per BICE:
c/o Embassy of Jamacia 1520 New Hampshire Ave, NW Washington, DC, 20036
I. Background
Petitioner, pro se George Brown commenced this habeas corpus action on February 21, 2002. Pet. Brown's petition alleges that in May 2001, he was conditionally paroled for deportation only, and since that time, he has been improperly incarcerated solely because the INS has not instituted deportation proceedings relating to him. Id.
At the time, Brown was incarcerated at the Riverview Correctional Facility. Pet. at P. 2.
By Order filed February 27, 2002, this court directed, inter alia, the respondents to file a response to the petition (Dkt. No. 4).
On July 15, 2002, respondent DOCS filed an answer and memorandum of law in opposition to the petition (Dkt. Nos. 7-8). In its response, they argue that the only contention raised by Brown relates to the failure of the INS to deport him. DOCS argues that because its custody of Brown does not violate any of his constitutional rights, the petition should be dismissed (Dkt. No. 8 at PP. 1-3).
On August 20, 2002, the INS moved to dismiss the petition (Dkt. Nos. 13-15). In its motion, it argues that the petition should be dismissed because: i) Brown is not in its custody; and, ii) an inmate does not have the right to seek an order compelling his deportation until he has completed serving his criminal sentence (Dkt. No. 15 at PP. 2-4).
On November 19, 2002, Brown filed a response in opposition to the INS' motion (Dkt. No. 17). In opposition, Brown alleges, inter alia, that the INS has improperly failed to contact any officials from Jamacia (his native country) in order to secure the documents necessary for his deportation (Id.).
On September 19, 2003, respondent BICE filed a supplemental declaration in support of its motion to dismiss. See Supplemental Declaration of James W. Grable, Esq. (9/18/03) (Dkt. No. 19) ("September 2003 Declaration"). In that submission, BICE indicates that Brown was removed from the United States to Jamaica on April 17, 2003, and argues that such deportation has rendered this proceeding moot. Id. at ¶¶ 6-7 and attached Ex. A. II. Discussion A. Propriety of Motion to Dismiss
Ordinarily, a court may not look past the pleadings when considering motions to dismiss. See Six West Retail Acquisition, Inc. v. Sony Theatre Management Corp., 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). Moreover, 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); Greif v. Wilson, Elser, Moskowitz, Edelman Dicker LLP, 258 F. Supp.2d 157, 160 (E.D.N.Y. 2003). Therefore, this court may properly consider matters submitted by a party which address the issue of this court's subject matter jurisdiction. Fier v. United States, 01Civ.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 Motion to Dismiss
In further support of its motion to dismiss, respondent BICE has provided the court with a copy of a Warrant of Removal/Deportation issued by the INS which indicates that on April 17, 2003, Brown was deported from the United States. September 2003 Declaration at Ex. A at (unnumbered) P.2.
ln addition to addressing the issue regarding this court's subject matter jurisdiction, 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").
There is authority which indicates that where 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). However, other district courts within this Circuit have held that under certain circumstances, the deportation of an alien does not necessarily render a habeas petition moot. See So v. Reno, 251 F. Supp.2d 1112, 1124-25 (E.D.N.Y. 2003) (application for discretionary relief under former § 212(c) of the Immigration and Naturalization Act of 1952 not rendered moot due to deportation); Reyes-Sanchez v. Ashcroft, 261 F. Supp.2d 276, 283-84 (S.D.N.Y. 2003) (case not moot despite alien's deportation; "petitioner's dependence on life-sustaining medications and the fact that his deportation severed him from that vital treatment [has caused petitioner] to suffer collateral consequences of his deportation that can potentially be remedied by a favorable decision by this Court"). This action does not challenge the propriety of the decision of an Immigration Judge to remove Brown from this country. Rather, this proceeding was only brought to effectuate Brown's deportation. See Pet. at P. 1 (requesting that court order that Brown be immediately deported).
"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 Brown obtained the only relief he sought as of April 17, 2003, this action is now moot. Therefore, this court recommends that the petition be denied and dismissed due to lack of subject matter jurisdiction. Fox, 42 F.3d at140; Greif, 258 F. Supp.2d at 160.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that respondent BICE's motion to dismiss (Dkt. No. 13) 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.