Hoang v. Ashcroft

Full title: LOI CONG HOANG, Petitioner, v. JOHN ASHCROFT, et al., Respondents

Court: United States District Court, E.D. Pennsylvania

Date published: Aug 5, 2004

Civil Action No. 04-2511 (E.D. Pa. Aug. 5, 2004)

Opinion

Civil Action No. 04-2511.

August 5, 2004

REPORT AND RECOMMENDATION

LINDA CARACAPPA, Magistrate Judge

Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, challenging petitioner's continued detention. For the reasons which follow, it is recommended that the petition be DISMISSED AS MOOT.

I. PROCEDURAL HISTORY

Petitioner is a native and citizen of Vietnam who entered the United States as a refuge in 1987, and eventually obtained lawful permanent resident status. Since arriving in America, petitioner has been convicted of, and served time for, numerous crimes.

Petitioner's first conviction was handed down on September 23, 1988 for possession of burglary tools. In January of 1991, he was convicted of larceny and malicious destruction of property. Just nine months later, he was convicted of a violation of the controlled substances act, as well as possession with intent to distribute a controlled substance. On April 24, 1992, petitioner was convicted of assault with intent to murder, breaking and entering, and possession of burglary tools. Six months after that, he was convicted of an insurance violation and attaching improper plates to a motor vehicle. Petitioner's final conviction, on November 17, 1992, was for armed robbery and armed assault in a dwelling. These convictions led to prison terms of varying lengths as well as probation.

Removal proceedings were initiated when petitioner was issued a Notice to Appear by the Immigration and Naturalization Service (INS)¹ on July 22, 1992. The Notice to Appear alleged that petitioner was removable from the United States pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii), (now §§ 237(a)(2)(B)(i) and 237(a)(2)(A)(iii), respectively, of the Immigration and Nationality Act (INA)), as an alien convicted of an offense relating to a controlled substance and as an aggravated felon, as defined in INA § 101(a)(43).

1 On March 1, 2003, the INS was incorporated into the Department of Homeland Security. The responsibility for carrying out actions of removal is now that of the Bureau of Immigration and Customs Enforcement (ICE).

On August 23, 1996, the Immigration Judge ordered petitioner removed from the United States. Petitioner filed an appeal before the Board of Immigration Appeals (BIA), but later withdrew it on February 14, 1997, before any decision was made.

Petitioner was subsequently released twice under Orders of Supervision as a result of the fact that the United States does not have a repatriation agreement with Vietnam, and thus has been unable to carry out petitioner's removal.

On February 11, 2004, petitioner was taken into custody again for the purpose of removal. The ICE issued a Post-Order Custody review in June of 2004, which stated that petitioner was to remain in custody due to his extensive criminal record.

Petitioner filed the instant petition for Writ of Habeas Corpus on June 9, 2004, alleging the following claims:

(1) Petitioner's continued detention is unlawful and in opposition to 8 U.S.C. § 1231(a)(6), as interpreted by Zadvydas v. Davis, 533 U.S. 678 (2001);

(2) Petitioner's continued detention violates his substantive due process rights; and

(3) Petitioner's continued detention violates his procedural due process rights.

On July 21, 2004, petitioner was released for the third time under an Order of Supervision.

Respondent retorts that because petitioner has received the relief requested — he is no longer being detained — the petition for Writ of Habeas Corpus should be dismissed as moot.

II. DISCUSSION

Federal district courts have subject matter jurisdiction over habeas corpus petitions pursuant to 28 U.S.C. § 2241, despite the restrictions that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") impose on aliens' access to federal courts. The United States Supreme Court has held that neither statute repealed habeas jurisdiction under § 2241. See INS v. St. Cyr, 533 U.S. 289, 314 (2001). However, the scope of review is limited to questions of law. See Bakhtriger v. Elwood, 360 F.3d 414 (3^rd Cir. 2004).

In the case at bar, petitioner has made three claims, each of which challenge his continued detention by the ICE. Petitioner has not made any claim challenging the initial order of his removal. As mentioned above, petitioner was released under an Order of Supervision on July 21, 2004.

Where a petition for Writ of Habeas Corpus only challenges detention, and where the petitioner has subsequently been released from custody, the petition is rendered moot. See Riley v. INS, 310 F.3d 1253, 1257 (10^th Cir. 2002);Alhamdani v. Attorney General of U.S., 2003 WL 21448784 at *1 (N.D. Tex. 2003); Camara v. Comfort, 235 F. Supp.2d 1174, 1175 (Colo. 2002); Sango v. Reno, 2001 WL 1223427 at *3 (S.D.N.Y. 2001).

Accordingly, the petition must be dismissed.

Therefore, I make the following:

RECOMMENDATION

AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DISMISSED AS MOOT. It is also RECOMMENDED that a certificate of appealability not be granted.