United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge
Slapel Leeward Elliot ("Petitioner"), commenced
this habeas proceeding on May 16, 2016, pursuant to 28 U.S.C.
§ 2241, alleging that his detention in administrative
custody by the United States Department of Homeland Security
Immigration and Customs Enforcement ("ICE")
violated his federal constitutional rights under the Fifth
Amendment. (Dkt. 1). He requested relief, including asking
this Court to: (1) assume jurisdiction over the matter; (2)
issue an order requiring Respondents to promptly release
Petitioner during the pendency of his appeal before
the Second Circuit; (3) order the Attorney
General not to remove Petitioner from the jurisdiction of
this Court while the Court is considering this
petition; (4) grant any further relief that the
Court deems just and proper. (Id. at 15).
a citizen of Jamaica, was admitted to the United States on
September 12, 1987, as a lawful permanent resident.
(Id. at 2, 4). In February and March 1993,
Petitioner pled guilty to attempted sale of a controlled
substance in the third degree under New York law.
(Id. at 4). He was sentenced to concurrent prison
terms of one to three years. (Id.). In September
1997, Petitioner was convicted of second-degree murder and
first-degree manslaughter and sentenced to concurrent terms
of 20 years to life and 8'/3 years to 25 years.
(Id.). Petitioner's convictions rendered him
deportable, and Immigration and Naturalization Service
("INS") commenced deportation proceedings on
February 10, 1995. (Id.).
was found removable on March 24, 1998, and ordered deported
to the United Kingdom, or, alternatively, to Jamaica.
(Id. at 5). After the denial of his appeal by the
Board of Immigration Appeals ("BIA"), Petitioner
moved for relief under § 212(c) of the Immigration and
Nationality Act and for a stay of deportation.
(Id.). Petitioner also filed an- application for
asylum and for withholding of removal under the Convention
against Torture ("CAT"). (Id.). On August
23, 2006, an Immigration Judge ruled that Petitioner was
statutorily ineligible for relief under § 212(c) and
denied petitioner deferral of removal under the CAT.
(Id.). Petitioner appealed from that decision, but
the BIA dismissed his appeal on February 13, 2007, triggering
an administrative final order of removal. (Id.).
4, 2015, Petitioner was released from state correctional
custody into the custody of ICE. (Id.). On July 6,
2015, Petitioner filed a motion with the BIA to reopen and
reapply for asylum under the CAT based on changed
circumstances. (Id.). The BIA denied his motion as
untimely on August 7, 2015. (Id., ). ICE reviewed
Petitioner's detention status in September 2015, and
again in March 2016, and decided to continue Petitioner's
detention after each review. (Id. at 6). On
September 16, 2015, Petitioner filed a petition for review
and a stay of removal in the United States Court of Appeals
for the Second Circuit. (Id. at 5-6). The court
denied his petition on May 4, 2016. (Id. at 6).
24, 2016, this Court ordered Respondents to file and serve an
answer or motion to dismiss the petition, accompanied by a
memorandum of law, within 45 days of service of the Order.
(Dkt. 3). On July 11, 2016, Respondents filed an answer and
return response to the petition (Dkt. 5), as well as a
memorandum in opposition (Dkt. 6). On June 29, 2017,
Petitioner was released from administrative custody and
removed from the United States. (Dkt. 10 at 2). On August 18,
2017, Respondents moved to dismiss the petition on the
grounds of mootness. (Dkt. 9). Petitioner did not respond to
following reasons, Respondents' motion to dismiss (Dkt.
10) is granted, and the petition is dismissed as moot.
federal courts have jurisdiction under § 2241 to grant
writs of habeas corpus to aliens when those aliens are
'in custody in violation of the Constitution or laws or
treaties of the United States."' Henderson v.
INS, 157 F.3d 106, 122 (2d Cir. 1998) (quoting 28 U.S.C.
§ 2241). When considering a habeas corpus petition,
"[t]he '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). "A non-citizen who has been deported
must go beyond satisfying the 'in custody'
requirement of the federal habeas statute; it must also be
demonstrated that the case is not moot as a result of the
deportation." Id. at 1120-21. Petitioner
"must show 'collateral consequences adequate to meet
Article Ill's injury-in-fact requirement.'"
Sayavong v. McElroy, No. 00Civ.0922(WHP)(FM), 2003
WL 470576, at *3 (S.D.N.Y. Jan. 9, 2003) (quoting Ramirez
v. INS, 86 F.Supp.2d 301, 303-04 (S.D.N.Y. 2000)).
courts do not have jurisdiction to review final orders of
removal. "[A] petition for review filed with an
appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of
an order of removal. ..." 8 U.S.C. § 1252(a)(5).
The Second Circuit has found that § 1252(a)(5)
"unequivocally eliminates habeas corpus review of orders
of removal" by a district court. Marquez-Almanzar v.
INS, 418 F.3d 210, 215 (2d Cir. 2005). This statute
"does not affect the district courts' jurisdiction
over review of other habeas corpus claims." Brempong
v. Chertoff, No. Civ. 305CV733(PCD), 2006 WL 618106, at
*2 (D. Conn. Mar. 10, 2006).
case is moot when the issues presented are no longer live or
the parties lack a legally cognizable interest in the
outcome." Jackson v. Holder,893 F.Supp.2d 629,
631 (S.D.N.Y. 2012) (internal quotation ...