Opinion
9:99-CV-1039 (FJS)(GLS)
January 17, 2001
Leonel Delacruz, North Babylon, NY, Petitioner, Pro Se.
James W. Grable, Esq., Special Ass't. U.S. Att'y., Buffalo, NY, for Respondent United States Immigration and Naturalization Service.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Leonel Delacruz ("Delacruz" or "petitioner") commenced this action pursuant to 28 U.S.C. § 2254 on July 6, 1999. Docket No. 1. At the time, Delacruz was incarcerated at the Ulster Correctional Facility. His action sought review of an order of deportation issued by an Immigration Judge and affirmed by the Board of Immigration Appeals on March 24, 1999. Id. at ¶ 9. By Order filed September 20, 1999, now-Chief Judge Frederick J. Scullin, Jr., denied a request by Delacruz for an order staying his deportation pending resolution of this action. Docket No. 6.
On October 28, 1999, respondent Immigration and Naturalization Service ("respondent" or "INS") moved to dismiss the petition. Docket No. 9. In its motion, the INS states that Delacruz was deported to Guatemala on September 3, 1999. Affidavit of James W. Grable, Esq. (10/27/99) (attachment to Docket No. 11) ("Grable Affidavit") at ¶ 12. Respondent argues that this deportation has deprived this court of jurisdiction, and therefore the petition should be dismissed.
Attached to this affidavit are: (i) the decision of the Immigration Judge ordering Delacruz's deportation; (ii) the decision by the Board of Immigration Appeals affirming that decision; and, (iii) a Warrant of Removal/Deportation.
II. Discussion
A. Propriety of Motion
Initially, the court notes that respondent brought its motion as one seeking to dismiss Delacruz's petition. Docket No. 9. Ordinarily, a court may not look past the pleadings when considering a motion to dismiss. Six West Retail Acquisition, Inc. v. Sony Theatre Management Corp., 2000 WL 264295, at *12 (S.D.N.Y. Mar. 9, 2000) (citing Fed.R.Civ.Proc. 12(b)(6)) (other citations omitted). However, "when the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Financial Serv., Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citation omitted).
Thus, where the subject matter jurisdiction of the court is in question, the court may properly look to matters outside the pleadings, such as affidavits, that address the court's jurisdiction. Id.; Maritima Petroleo E Engenharia LTDA v. Ocean Rig 1 AS, 78 F. Supp.2d 162, 165-66 (S.D.N.Y. 1999). Moreover, in addition to pleadings filed in a case, a court may also consider matters of public record in ruling on a motion to dismiss. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.), cert. denied, 525 U.S. 1103 (1999) ("[i]t is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6)"); Friedman v. Salomon/Smith Barney, Inc., 2000 WL 1804719, at *3 (S.D.N.Y. Dec. 8, 2000) (same).
B. Merits of the Motion
In order for this court to have jurisdiction over Delacruz's habeas claims, Delacruz must be "in custody." 28 U.S.C. § 2254; Long v. Andrews, 2000 WL 1716443, at *2 (E.D.N.Y. Nov. 13, 2000) ("petitioner must first prove . . . he is in custody in violation of his constitutional rights"); 28 U.S.C. § 2241(c).
Although Delacruz brought his petition under 28 U.S.C. § 2254, the appropriate section to challenge federal custody is § 2241. Santana v. Giambruno, 1998 WL 295666, at *3 n. 1 (N.D.N.Y. May 28, 1998) (Pooler, J.). However, since custody is a prerequisite for petitions under either § 2254 or § 2241, the form utilized by Delacruz in bringing this application is of no moment.
Although Delacruz has not filed a notice of a change in his address with the Clerk, the court is in possession of an INS Warrant of Removal/Deportation which has attached thereto a verification that indicates that petitioner was deported from the United States on September 3, 1999. See attachment to Docket No. 11. This warrant is a public record and may therefore be considered by the court in ruling upon this motion. U.S. v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997) ("warrants of deportation are public records"); U.S. v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985) (warrants of deportation are matters of public record which are "inherently reliable."). Additionally, the Grable Affidavit, in addressing the issue of the court's jurisdiction, states that "[o]n September 3, 1999, the INS removed petitioner from the United States to Guatemala under the . . . warrant of removal." Id. at ¶ 12. The affidavit continues by stating that "[p]etitioner has not returned to INS custody at any time since his removal . . . ." Id. at ¶ 13. Thus, it is uncontroverted that petitioner is not in the custody of the INS.
Petitioner has not responded to the motion to dismiss which was filed on October 28, 1999.
Where an alien has been deported, the court lacks jurisdiction to entertain the petition because the alien has already departed the United States. Maung v. McElroy, 1998 WL 896709, at *2 (S.D.N.Y. Dec. 10, 1998) (adopting Report-Recommendation of Magistrate Judge that recommended dismissing habeas petition because alien had been deported), see e.g., Santana, 1998 WL 295666, at *3 (same).
The fact that an INS detainer may have been lodged against petitioner does not afford this court a basis upon which it may conclude that it has jurisdiction over the petitioner; the lodging of a detainer is insufficient to place an alien in INS custody for habeas corpus purposes. Deutsch v. U.S., 943 F. Supp. 276 (W.D.N.Y. 1996) ("[c]ourts in this Circuit uniformly have held that the mere filing of an INS detainer fails to satisfy the "in custody" requirement for habeas corpus jurisdiction) (citations omitted); Garcia v. Taylor, 40 F.3d 299, 303 (9th Cir. 1994).
Moreover, Delacruz's deportation also appears to have rendered the application moot. As the court noted in Ramirez v. Immigration Naturalization Service, 86 F. Supp.2d 301 (S.D.N.Y. 2000):
[C]ourts in this District have held that a petitioner who is deported to another country cannot, as a matter of law, suffer from the types of adverse collateral consequences that render an application for habeas corpus [not] moot. This is because a petitioner who is not a citizen is not subject to such adverse collateral consequences [as the inability to vote or serve as a juror] and is not subject to any restraints by the Government. Thus, a district court does not retain jurisdiction over a petitioner who is no longer physically confined and has been deported to another country.
Id. at 303 n. 1 (citations omitted).
In sum, this court finds that petitioner's deportation has: (i) deprived this court of jurisdiction to consider the petition; and, (ii) rendered his petition moot. Therefore, the court recommends that the motion to dismiss be granted and the petition be dismissed.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that respondent's motion to dismiss (Docket No. 9) be GRANTED and petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order 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.