United States District Court, Southern District of New York
February 16, 2000
VICTOR M. RAMIREZ, PETITIONER,
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.
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.
REPORT AND RECOMMENDATION
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
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
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
For the reasons set forth above, Ramirez's petition should be dismissed
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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).