The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Babatunde Kareem Agoro ("Agoro" or "Petitioner"), a native and citizen of Nigeria, filed this pro se petition pursuant to 28 U.S.C. § 2241 on December 27, 2010, while he was in the custody of Respondents (also referred to hereinafter as the Department of Homeland Services Immigration and Customs Enforcement ("DHS/ICE")) at the Federal Detention Facility in Batavia, New York. Agoro was awaiting deportation pursuant to a final order of removal entered against him on November 29, 2005, based upon his having been convicted of credit card fraud in the District of Rhode Island, as well as a subsequent failure to appear in violation of 18 U.S.C. § 3416, an aggravated felony under the Immigration and Nationality Act.*fn1
Agoro's habeas petition was transferred to the undersigned on February 3, 2012, at which time Respondent was requested to provide additional documentation regarding DHS/ICE's latest decision to continue Agoro's custody. After those documents were submitted, Agoro filed several pleadings in further support of his request for supervised release.
At some point during the pendency of the proceeding, Agoro was transferred to the Etowah County Detention Center in Alabama. On May 17, 2012, the Court received a telephone call from Agoro stating simply that he had been released. The Detainee Locator on the U.S. Immigration and Customs Enforcement website, https://locator.ice.gov/odls/case-satus.jsp, last accessed by the Court on May 24, 2012, indicates that Agoro, A24-624-753, a native of Nigeria, was "Not In Custody".
As Agoro still has at least one petition for review pending in the
United States Court of Appeals for the Second Circuit,*fn2
DHS/ICE is precluded from removing him pursuant to the
informal forbearance policy between the Government and the Court of Appeals. Thus, he
presumably has been released under an order of supervision.
Since Agoro has been released from continued administrative detention in DHS custody, the relief Agoro requests in his petition to this Court has been granted, and therefore the petition is moot. For the reasons that follow, the petition is dismissed without prejudice.
Courts have an obligation to ensure that they have subject matter jurisdiction over a proceeding. See Alliance of American Insurers v. Cuomo, 854 F.2d 591, 605 (2d Cir. 1988) (stating that "a challenge to subject matter jurisdiction cannot be waived and may be raised sua sponte by the district court.").
A. The Habeas Statute's "In Custody" Requirement
Section 2241(c)(1) of Title 28 of the United States Code provides that district courts may consider habeas petitions from prisoners "in custody under or by color of the authority of the United States." 28 U.S.C. § 2241(c)(1). "The 'in custody' requirement is satisfied if the petitioner files the habeas petition before being deported." So v. Reno, 251 F. Supp.2d 1112, 1120 (E.D.N.Y. 2003) (citing Gonzalez v. I.N.S., No. 01 Civ. 6229(HB), 2002 WL 31444952, at *3 (S.D.N.Y. Oct. 31, 2002) (stating that petitioner satisfies the "in custody" requirement of 28 U.S.C. § 2241 so long as he is in physical custody at the time the petition is filed even if petitioner is later deported)). Here, when Agoro filed his § 2241 petition, he was in Respondents' custody, detained at the Federal Detention Facility in Batavia, New York. He therefore satisfied the "in custody" requirement of the habeas statute.
When a habeas petitioner has been released from custody after filing a petition, the petition may be moot, and the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the United States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998) "'[A] case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)); accord City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000).
Where a habeas petition is based upon a criminal conviction, the cause is not rendered moot by the petitioner's release from custody, provided that petitioner continues to suffer "collateral consequences" of the conviction upon which the now-ended incarceration was based. Spencer, 523 U.S. at 7. Here, however, Agoro's habeas petition challenges only the lawfulness of his administrative detention by DHS. The sole relief Agoro seeks is release from custody.*fn3 As this petition is based only on Agoro's allegedly unlawful detention in DHS custody, and not on the removal order from which the detention flowed, the ...