United States District Court, W.D. New York
MR. CHIU WAI IP, Petitioner,
JEFFERSON B. SESSIONS III, Attorney General U.S. Department of Justice; JOHN F. KELLY, Secretary of the Department of Homeland Security; THOMAS P. BROPHY, ICE ERO Acting Field Office Director-Buffalo; and ROBERT F. JUDGE, Assistant Field Office Director Buffalo Federal Detention Facility, Respondents.
DECISION AND ORDER
ELIZABETH A. WELFORD UNITED STATES DISTRICT JUDGE
Chiu Wai Ip ("Petitioner"), commenced this habeas
proceeding on May 17, 2017, 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. (DM. 1). He requested relief, including asking
that this Court: (1) assume jurisdiction over the matter; (2)
grant Petitioner a writ of habeas corpus directing
Respondents to immediately release petitioner from custody;
(3) enter preliminary and permanent injunctive relief
enjoining Respondents from further unlawful detention of
Petitioner; (4) award Petitioner attorney's fees and
costs; (5) order the Attorney General not to remove
Petitioner from the jurisdiction of this Court during
consideration of this petition; and (6) grant any further relief
that the Court deems just and proper. (Id. at 7-8).
was born in Hong Kong in 1972, when Hong Kong was still a
colony of Great Britain. (Id. at 3). Petitioner
arrived in the United States on November 11, 1991, as a Legal
Permanent Resident. (Id.). In 1994, Petitioner was
arrested in Hong Kong and extradited to the United States,
where he was convicted of second and third degree possession
of a weapon, as well as second degree murder under New York
law. (Id. at 4). Petitioner was sentenced to 20
years to life imprisonment. (Id.). He was released
on parole on October 12, 2016, into ICE custody.
(Id.). On that date, Petitioner became subject to a
final order of removal. (Id.).
the instant petition was filed, Petitioner had been in ICE
custody for more than seven months after receiving his final
order of removal. (Id.). DHS reviewed
Petitioner's detention status in January 2017, and again
in April 2017, and decided to continue Petitioner's
detention after each review. (Id. at 5).
23, 2017, 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 7, 2017, Respondents filed an answer and
return response to the petition. (Dkt. 5). On August 15,
2017, Petitioner was released from administrative custody and
removed from the United States. (Dkt. 6-1 at 3). On August
29, 2017, Respondents moved to dismiss the petition on the
grounds of mootness. (Dkt. 6). Petitioner did not respond to
following reasons, Respondents' motion to dismiss (Dkt.
6) 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."
Brempongv. 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 marks and citation
omitted) (alteration in original). "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 [the] petitioner continues to suffer
'collateral consequences' of the conviction upon
which the now-ended incarceration was based." Denis
v. DHS/ICE of Buffalo, N.Y., 634 F.Supp.2d 338, 340
(W.D.N.Y. 2009). However, "[t]he district courts in this
Circuit to have considered the issue have found that where an
alien challenging his detention under 28 U.S.C. § 2241
is released during the pendency of his petition under an
order of supervision, the petition is rendered moot."
Id. at 341; see also Williams v. INS, No.
02CIV38I4(GBDGWG), 2005 WL 1994102, at *2 (S.D.N.Y. Aug. 18,
2005) (finding the petitioner "lacks any interest in the
outcome of this suit inasmuch as the relief he has
requested-release from detention-has already been afforded to
him"); Johnson v. Reno, 143 F.Supp.2d 389, 391
(S.D.N.Y. 2001) ("A habeas corpus petition seeking
release from (INS) custody is moot when the petitioner is no
longer in (INS) custody.").
the relief sought by Petitioner included that this Court: (1)
assume jurisdiction over the matter; (2) grant Petitioner a
writ of habeas corpus directing Respondents to immediately
release petitioner from custody; (3) enter preliminary and
permanent injunctive relief enjoining Respondents from
further unlawful detention of Petitioner; (4) award
Petitioner attorney's fees and costs; (5) order the
Attorney General not to remove Petitioner from the
jurisdiction of this ...