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stating that both the United States Supreme Court and the Second Circuit interpret the habeas statutes consistently with the proposition that a court retains subject matter jurisdiction over a habeas motion filed if the movant "was in custody at the time the petition was filed" but also citing contrary authority from Southern District of New York
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01 Civ. 3987 (RWS)
July 2, 2002
Petitioner/Plaintiff Pro Se, Riviere Froide, Port-Au-Prince, Haiti, RICHARD JEAN LOUISE
United States Attorney for the Southern District of New York, Attorney for Respondents/Defendants, New York, NY, AUSA MICHAEL M. KRAUSS, Of Counsel, HONORABLE JAMES B. COMEY
OPINION
Petitioner Richard Jean Louise ("Louise") has filed pro se for the issuance of a writ of habeas corpus under 28 U.S.C. § 2241, naming as respondent Joseph Costello, Superintendent, Mid-State Correctional Facility; Kevin Rooney, Acting Commissioner of Immigration and Naturalization Service; Edward McElroy, New York District Director for Immigration and Naturalization Service; and John Ashcroft, Attorney General of the United States. Respondents have moved to dismiss the petition, and, for the reasons set forth below, this motion is granted.
Prior Proceedings
Louise, a native and citizen of Haiti, was admitted to the United States as a lawful permanent resident on or about December 5, 1967. Louise garnered a criminal record during his time in this country, culminating in May 1999. On May 18, 1999, Louise pled guilty to sexual abuse by forcible compulsion in the first degree, in violation of New York Penal Law 130.65(1). He was sentenced to two years imprisonment, and was incarcerated in New York State prison from June 11, 1999, through April 24, 2001.
The Immigration and Naturalization Service ("INS") initiated removal proceedings against Louise as a result of his 1999 conviction for sexual abuse in the first degree. On September 16, 1999, the INS issued a Notice to Appear, charging that Louise was subject to removal from the United States because he had been convicted of an aggravated felony, pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act of 1992 ("INA"), as amended, 8 U.S.C. § 1227(a)(2)(A) (iii). In relevant part, the Notice to Appear charged that Louise was removable as an aggravated felon because he had been convicted of a crime of violence for which the term of imprisonment was at least one year, pursuant to 8 U.S.C. § 1101(a)(43)(F).
Louise's removal proceedings commenced before an Immigration Judge on November 30, 1999, but were adjourned until February 15, 2000, to allow his counsel additional preparation time. The proceedings were completed on April 7, 2000, at which time the Immigration Judge ordered Louise removed to Haiti. Petitioner appealed this ruling, and the appeal was dismissed on October 31, 2000.
The instant petition was received by the Pro Se Clerk's Office on April 16, 2001, and filed by the court on July 13, 2001. By order filed on July 13, 2001, the Court directed the Clerk of the Court to serve the Government with a copy of Louise's petition. The Court further directed the Government to respond to Louise's petition by August 22, 2001. No stay of removal was entered. On August 13, 2001, Louise was removed from the United States. Without knowledge of this fact, the Government requested and received on August 20, 2001, an extension of time to respond to the petition.
Discussion
The Government contends that this Court lacks subject matter jurisdiction because Louise has been removed from the United States and thus is no longer "in custody" for habeas purposes.
A court has subject matter jurisdiction over a habeas corpus petition only if the petitioner is "in custody." 28 U.S.C. § 2241; Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994). The Supreme Court and the Second Circuit have interpreted the habeas statutes to require only that the petitioner be "in custody" at the time the petition was filed. A court is not divested of jurisdiction by a petitioner's subsequent release as long as the petition was filed while the petitioner was "in custody." Spencer v. Kemna, 523 U.S. 1, 7 (1998) (§ 2254 petition); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Scanio, 37 F.3d at 860; Sango v. Reno, No. 00 Civ. 7983 (DLC), 2001 WL 1223427 (S.D.N.Y. Oct. 15, 2001). But see Maung v. McElroy, No. 98 Civ. 5380 (SHS) (AJP), 1998 WL 896709, at *2 (S.D.N.Y. Dec. 10, 1998) (dismissing for lack of subject jurisdiction because petitioner was no longer "in custody" despite fact that petitioner had petitioned prior to deportation).
The Pro Se Office received Louise's petition on April 16, 2001, and the petition was filed by the Court on July 13, 2001. Louise was not deported until August 13, 2001. Thus, although Louise is no longer in the custody of the United States, this Court retains jurisdiction over his petition.
The petition may, nonetheless, be moot. When a habeas petitioner has been released from custody after filing a petition, the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the U.S. Constitution. "This means that, throughout the litigation, the plaintiff `must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer, 523 U.S. at 7 (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted)). A petitioner need not be physically restrained for his or her habeas petition to meet the requirements of Article III. A petition is not moot if the petitioner suffers from any "concrete and continuing injury other than the now-ended incarceration or parole — some `collateral consequence' of the conviction." Id.
Most of the courts in this district that have addressed the question of collateral consequences following deportation have found that as a matter of law, a non-citizen who has been deported does not suffer continuing collateral consequences. E.g., Knight v. Murray, No. 97 Civ. 6908 (JGK), 1999 WL 493371, at *1 (S.D.N.Y. July 12, 1999); Garcia v. McCoy, No. 97 Civ. 1121 (JGK), 1998 WL 288625, at *1 (S.D.N.Y. June 2, 1998); Borbon v. United States, 95 Civ. 1552 (CSH), 1995 WL 390125, at *1 (S.D.N.Y. July 3, 1995); Gomez-Arboleda v. United States, No. 93 Civ. 4757 (JFK), 1993 WL 512838, at *1 (S.D.N.Y. Dec. 9, 1993). The rationale is that once aliens leave the United States, the Government can no longer abridge their rights.
Other courts are in disagreement. Sango v. Reno, No. 00 Civ. 7983 (DLC), 2001 WL 1223427 (S.D.N.Y. Oct. 15, 2001) (recognizing disagreement); see also Oezada v. Immigration Naturalization Serv., 898 F.2d 474, 476 (5th Cir. 1990); Fuller v. Immigration Naturalization Serv., 144 F. Supp.2d 72, 86-87 (D.Conn. 2000). These courts reason that, in the words of the Supreme Court, deportation is "at times equivalent of banishment or exile. . . ." Costello v. INS, 376 U.S. 120, 131 (1964). Louise "has been removed to a country where he is a virtual stranger, [and] faces significant repercussions as a result of his deportation." Fuller, 144 F. Supp.2d at 86; see also Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977) ("Deportation is a sanction which in severity surpasses all but the most Draconian criminal penalties."). Deported aliens cannot obtain a visa and are excluded from admission into the United States for five years. 8 U.S.C. § 1182(a)(9); Ouezada, 898 F.2d at 476; Fuller, 144 F. Supp.2d at 87. Furthermore, 8 U.S.C. § 1326 provides that any deported alien who later enters, attempts to enter, or is found in the United States shall be guilty of a felony, punishable by a fine, imprisonment or both. In addition, aliens may not collaterally attack the validity of the original order of deportation as defense to this prosecution. United States v. Petrella, 707 F.2d 64 (2d Cir. 1983).
Although these are valid and persuasive points, the actual injury will not occur unless Louise returns to the United States. Therefore, the most persuasive decision was in Borbon, where the court dismissed the petition without prejudice and permitted Borbon to renew his petition if he were to return to the United States. 1995 WL 390125 at *1.
Therefore, the Court dismisses the petition without prejudice on the condition that if Louise re-enters the United States, he must inform the Court in writing of his intention to pursue the petition within sixty (60) days from the date of his return to this country. Failing such notification, the dismissal will be with prejudice.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
Conclusion
For the foregoing reasons, Louise's petition for habeas corpus is dismissed on the conditions stated above.