Opinion
00 CIV. 7983 (DLC)
October 12, 2001
Saenateh S. Sango, pro se.
Megan L. Brackney, U.S. Attorney's Office, Civil Division, New York, NY, Attorney for the Respondent
OPINION and ORDER
On October 19, 2000, Saenateh S. Sango, a citizen of Sierra Leone, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, Sango challenged his detention without bail pursuant to Section 236 of the Immigration and Nationality Act ("INA") and requested a bond hearing pending the conclusion of his deportation proceedings and appeal of his deportation order to the Board of Immigration Appeals ("BIA") His petition was referred to Magistrate Judge Ellis on November 2, 2000. By letter dated July 19, 2001, the Assistant United States Attorney informed Judge Ellis that Sango had been removed to Sierra Leone. This Court withdrew the referral of Sango's petition to Judge Ellis on July 30, 2001. For the reasons that follow, this Court dismisses Sango's petition as moot.
BACKGROUND
The facts in this case are drawn from Sango's habeas petition and from correspondence with the Government. Sango first entered the United States on or about November 27, 1982. On September 14, 1992, he was indicted and convicted of selling a controlled substance in violation of Section 220.39 of the New York Penal Law. On June 23, 1997, Sango was convicted of the crime of theft of services under Section 165.15 of the New York Penal Law.
On December 30, 1999, the INS detained Sango and initiated deportation proceedings against him on the ground that his convictions made him removable under the INA. On June 19, 2000, an Immigration Judge ("IJ") found Sango removable, denied his petition for withholding of removal, and denied his request for a bond hearing to set bail pending appeal of the IJ's decision to the BIA. Under the mandatory detention provisions of the INA, the INS is required to detain and hold in custody any alien found to have committed a crime triggering the INA's removal provisions, pending a final administrative decision in the alien's deportation proceedings. Section 236(c)(1) of the INA provides:
The Attorney General shall take into custody any alien [found to have been convicted of a specified felony triggering deportation proceedings] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation and without regard to whether the alien may be arrested or imprisoned again for the same offense.8 U.S.C. § 1226(c)(1). Section 1226(e) further provides that "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review." 8 U.S.C. § 1226(e). The INS has interpreted these two provisions as precluding federal judicial power to release on bail an alien in deportation proceedings because of prior criminal convictions during the pendency of those proceedings. See Mapo v. Reno, 241 F.3d 221, 228 (2d Cir. 2001)
Sango brought a petition for a writ of habeas corpus seeking an order for a bond hearing to set bail for his release pending the BIA's final determination. In his petition, Sango maintained that the mandatory detention provisions of the INA under Section 236 did not apply retroactively to individuals like himself who, at the time of his detention by the INS, had already been released from custody on the underlying convictions that had triggered the deportation proceedings. At the time of his detention, Sango had completed his term of incarceration and was released without restraint. Because his appeal to the BIA was still pending, Sango, in his habeas petition, did not — and could not, under the doctrine of exhaustion of administrative remedies — challenge the IJ's decision finding him removable.
Between his detention on December 30, 1999, until his return to Sierra Leone, Sango was in custody at Dekalb County Jail in Decatur, Georgia. The BIA issued a final warrant of removal on May 11, 2001. Sango was deported on May 29, 2001.
DISCUSSION
Because Sango has been deported to Sierra Leone and is no longer in the custody of the INS, there is a question of the proper disposition of his petition for a bond hearing. The Government contends that Sango's petition is moot or, in the alternative, that this Court lacks jurisdiction because Sango is no longer "in custody" for habeas purposes. The question of jurisdiction must be the initial inquiry because only if this Court has jurisdiction over Sango's petition can it proceed to address the question of mootness.
A district court has jurisdiction over a petition for habeas corpus under 28 U.S.C. § 2241 if the petitioner is "in custody." Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994). The habeas statutes require only that the petitioner be "in custody" at the time the petition is filed. A court is not divested of jurisdiction by a petitioner's subsequent release as long as the petition was filed while the petitioner was "in custody." Spencer v. Kemna, 523 U.S. 1, 7(1998) (§ 2254 petition); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Scanio, 37 F.3d at 860. Thus, although Sango is no longer in the custody of the INS, this Court retains jurisdiction over his petition.
The Government contends that the petition must nonetheless be dismissed as moot. When a habeas petitioner has been released from custody after filing a petition, the relevant inquiry is then
whether petitioner's subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution. . . . This means that, throughout the litigation, the plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision."Spencer, 523 U.S. at 7 (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)) (citations omitted). While physical incarceration will always constitute injury sufficient to ensure a case or controversy, a petitioner need not be physically restrained for his or her habeas petition to meet the requirements of Article III. A petition is not moot if the petitioner suffers from any "concrete and continuing injury other than the now-ended incarceration or parole — some "collateral consequence' of the conviction." Id.
Most of the courts in this district that have addressed the question of collateral consequences following deportation have found that as a matter of law, a non-citizen who has been deported does not suffer continuing collateral consequences. See, e.g., Knight v. Murray, No. 97 CIV. 6908 (JGK), 1999 WL 493371, at *1 (S.D.N.Y. July 12, 1999); Garcia v. McCoy, No. 97 CIV. 1131 (JGK), 1998 WL 288625, at *1 (S.D.N.Y. June 2, 1998);Borbon v. United States, 95 Civ. 1552 (CSH), 1995 WL 390125, at *1 (S.D.N.Y. July 3, 1995); Gomez-Arboleda v. United States, No. 93 Civ. 4757 (JFK), 1993 WL 512838, at *1 (S.D.N.Y. Dec. 9, 1993). But see Fuller v. Immigration Naturalization Serv., 144 F. Supp.2d 72, 86-87 (D. Conn. 2000); cf. Ramirez, 86 F. Supp. 2d at 303. The Fifth Circuit, however, has held that deportation does result in collateral consequences. See Cuezada v. Immigration Naturalization Serv., 898 F.2d 474, 476 (5th Cir. 1990).
It is unnecessary to decide whether deportation imposes collateral consequences because Sango did not challenge his deportation in his petition for habeas relief. Rather, Sango challenged the legality of his detention without opportunity for bail. Even if unlawful, the INS's detention of Sango under Section 236 imposes no collateral consequences on the petitioner today. See. e.g., Maung v. McElroy, No. 98 Civ. 5380 (SHS)(AJP), 1998 WL 896709, at *2 (S.D.N.Y. Dec. 10, 1998). Because Sango's deportation proceedings have become administratively final and he has been deported, the claim on which Sango's petition is based, namely, that his detention without a bond hearing pending the completion of his deportation proceedings was illegal, is moot.
CONCLUSION
For the reasons stated, Mr. Sango's petition is dismissed as moot. The Clerk of Court shall close the case. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED