Opinion
No. 97 CIV. 1131(JGK).
June 2, 1998
Humberto Garcia, pro se, [Please Forward], Cayuga Correctional Facility, Moravia, for the Petitioner.
Avi Lew, Assistant Attorney General, New York, for the Respondents.
MEMORANDUM OPINION AND ORDER
*1 By Order dated March 17, 1998, the respondents were directed to respond to the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by May 29, 1998. The Court has received a letter from the respondents dated May 20, 1998. The respondents have verified that the petitioner was released from Ulster County Correctional Facility on August 21, 1997 and deported to Columbia. The respondents further indicate that the petitioner left no forwarding address with the prison authorities.
A district court has jurisdiction over a § 2254 petition if the petitioner making the application for habeas corpus is "in custody." See Carr v. Superintendent, No. 97 Civ. 117, 1998 WL 178844, at *1 (E.D.N.Y. Feb. 13, 1998). However, § 2254 does not require that a petitioner be physically confined in order for the district court to retain jurisdiction over the application. See Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). For example, a petitioner who has been released from custody after filing his application can satisfy the "in custody" requirement if he remains subject to adverse collateral consequences from his conviction. See Carafas v. LaVallee, 391 U.S. 234, 237-39, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Examples of such consequences include the inability to vote, engage in certain businesses, or serve as a juror. Id. at 237. Since the petitioner in this case has been released from prison, the Court can retain jurisdiction over his application only if Garcia also faces adverse collateral consequences from the conviction for which he was imprisoned.
Other courts 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 moot. See e.g., Borbon v. United States, No. 95 Civ. 1552, 1995 WL 390125, at *1-2 (S.D.N.Y. Jul. 3, 1995) (with respect to § a 2255 petition); Gomez-Arboleda v. United States, No. 93 Civ. 4757, 1993 WL 512838, at *1 (S.D.N.Y. Dec.9, 1993) (same), affd, 17 F.3d 391 (2d Cir. 1993); accord Carr v. Superintendent, No. 97 Civ. 117, 1998 WL 178844, at *1 (E.D.N.Y. Feb. 13, 1998) (with respect to § 2254 petition). This is because a petitioner who is not a citizen is not subject to such adverse collateral consequences 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.
In this case, the petitioner's application for a writ of habeas corpus is rendered moot because Garcia is no longer in the custody of New York State — or in the custody of the United States — and is therefore not subject to this Court's jurisdiction. The Clerk of the Court is directed to enter judgment dismissing the petition without prejudice.
SO ORDERED.