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United States District Court, Southern District of New York

February 16, 2000


The opinion of the court was delivered by: Baer, District Judge.


I referred this habeas corpus petition to Magistrate Judge Peck on September 24, 1999. On October 29, 1999, Judge Peck issued a Report and Recommendation which recommends that petitioner's request for habeas relief be dismissed.

The Report and Recommendation advised the parties of their obligation to file timely objections under Rule, 72 of the Federal Rules of Civil Procedure. To date, no objections have bee received.

I have found no clear error in the Report and Recommendation. Therefore, I adopt the Report and Recommendation in all respects and direct the Clerk of the Court to close this case.



PECK, United States Magistrate Judge.

Petitioner Victor M. Ramirez brought this petition for a writ of habeas corpus against the Immigration & Naturalization Service, attacking the validity of his removal (i.e., deportation) order. Before the government's response to the petition was due, Ramirez was deported. Accordingly, for the reasons set forth below, Ramirez's petition should be dismissed as moot.


Ramirez's pro se habeas corpus petition was received by this Court's Pro Se Office on June 1, 1999. The petition alleges that the INS initiated removal proceedings against Ramirez, a citizen of the Dominican Republic, after his New York conviction for sale of a controlled substance. (Pet. at 1.) The INS transferred Ramirez to the Federal Detention Center ("FDC") in Oakdale, Louisiana. (Pet. at 2-3.) An immigration judge ordered Ramirez removed by decision dated August 10, 1998, affirmed by the Board of Immigration Appeals ("BIA") on March 8, 1999. (Pet. at 2.) On May 6, 1999, the Fifth Circuit dismissed Ramirez's petition for a stay of deportation and review of the BIA's decision. (Pet. at 2 & Ex. A.) Ramirez's current petition alleges that his transfer from New York to Louisiana:

disadvantaged him, notwithstanding he was ordered removed in the State of Louisiana without being given an opportunity to apply for any discretionary relief whatever witnesses evidences, documentation as well as affordable legal representation that would be available to assist Mr Ramirez would be located in the State of New York.

(Pet. at 2.)

On October 12, 1999, the Court ordered the INS to respond to the petition by November 8, 1999. On October 21, 1999, the copy of that Order that had been mailed to Ramirez at the FDC in Louisiana was received by the Court marked "return to sender." Upon further inquiry, the Court's staff was informed by an INS clerk that Ramirez was removed on July 21, 1999 and that the INS has no forwarding addressing for Ramirez.


All of the federal habeas corpus statutes — 28 U.S.C. § 2241, 2254, 2255 — require the petitioner to be "in custody" when the habeas petition is filed. See, e.g., Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998); Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968); Maung v. McElroy, 98 Civ. 5380, 1998 WL 896709 at *2 (S.D.N.Y. Dec. 10, 1998) (Stein, D.J. & Peck, M.J.).

As long as a habeas petition was filed in federal court at a time when the petitioner was in custody, the petition is not necessarily mooted by the petitioner's release from custody prior to final adjudication of the petition. Carafas v. LaVallee, 391 U.S. at 237-40, 88 S.Ct. at 1559-61; see also, e.g., Spencer v. Kemna, 118 S.Ct. at 983 (petitioner "was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the `in custody' provision . . . requires."); Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989). The petition is moot, however, if there exist no "collateral consequences adequate to meet Article III's injury-in-fact requirement." Spencer v. Kemna, 118 S.Ct. at 986.

The Supreme Court recently narrowed the collateral consequences doctrine in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), where the Supreme Court "criticized its own precedents establishing the presumption of collateral consequences in challenges to a criminal conviction. And, more specifically, the [Supreme] Court held that the presumption does not extend to the parole revocation context." United States v. Probber, 170 F.3d 345, 348 (2d Cir. 1999) (describing Spencer); see also United States v. Mercurris, 192 F.3d 290, 292-93 (2d Cir. 1999). Instead, the Supreme Court required the petitioner to demonstrate concrete injury-in-fact. Spencer v. Kemna, 118 S.Ct. at 986; see also, e.g., United States v. Probber, 170 F.3d at 348.

Collateral consequences may flow from an order of removal. For example, a deported alien may be found guilty of a felony if he attempts to reenter the United States. See, e.g., Quezada v. INS, 898 F.2d 474, 476 (5th Cir. 1990) (pre-Spencer case holding that ineligibility for visa and possibility of being found guilty of a felony if deported alien attempted to reenter U.S. constituted sufficient collateral consequences to meet Article III case or controversy requirement). In light of Spencer, however, this Court is unwilling to presume such consequences in this case. In Sule v. INS, No. 98-1090, 189 F.3d at 478 (table), 1999 WL 668716 at *2 (10th Cir. Aug. 27, 1999), the Tenth Circuit stated that "we strongly suspect that deportation may, as a matter of law, always entail collateral consequences." The Tenth Circuit dismissed the petition as moot, however, because petitioner "failed to advance any argument regarding collateral consequences, and even though he appears pro se, we cannot make this argument for him." Id.*fn1 Here, as in Sule, "[t]here being no presumption of collateral consequences, [petitioner] must bear the burden of demonstrating some `concrete and continuing injury' sufficient to create an Article III case or controversy." United States v. Mercurris, 192 F.3d 290, 294-95; see also, e.g., Spencer v. Kemna, 118 S.Ct. at 986; United States v. Probber, 170 F.3d at 348. Accordingly, since Ramirez has failed to allege that he suffers any injury-in-fact as a result of the executed removal order, his petition should be dismissed as moot.*fn2

The Court notes that practical considerations support finding petitions moot under these circumstances. Ramirez brought this petition pro se. the. Court has not heard from Ramirez since his removal, has no current address for Ramirez, and hence has no way to contact him. Ramirez does not know he has the burden of demonstrating "concrete and continuing injury," and so cannot meet his burden. This likely will apply to future pro se petitioners challenging removal orders, so only petitioners represented by counsel are likely to be able to continue with their habeas petitions after removal.*fn3 It makes little sense, however, to adjudicate the petition in a petitioner's absence where there is no way to contact the petitioner. For example, if this Court were to issue a Report and Recommendation denying the petition on grounds other than mootness, the petitioner would not be able to file objections with the District Judge or, if the Report were adopted, file a timely notice of appeal to the Second Circuit. Thus, as a practical matter, it makes sense to dismiss the petition as moot in the petitioner's absence because of his removal.


For the reasons set forth above, Ramirez's petition should be dismissed as moot.


Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections.*fn4 See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

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