Opinion
Civil Action No. 04-1950.
July 13, 2004
REPORT AND RECOMMENDATION
Presently before the court is a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is an alien under a final order of removal. At the time he filed his petition, petitioner was detained by United States Immigration authorities and sought release from the detention. Since the filing of his petition, he has been released from custody under an Order of Supervision. For the reasons stated below, the court recommends that the petition be dismissed as moot.
I. BACKGROUND
Petitioner, Trung Cao Nguyen, is a native and citizen of Vietnam. (Pet. ¶ 1.) He was admitted to the United States in 1986 as an immigrant and adjusted his status to lawful permanent resident in 1987. (Response to Pet. at 1.) In 1995 and 1996, petitioner was convicted of three separate criminal offenses in federal and state courts. (Pet. ¶¶ 7-9.)
The petitioner filed a pro se petition (Doc. No. 1) and counsel filed another petition. (Doc. No. 4.) The court will cite only to counsel's petition.
On November 8, 1999, the Immigration and Naturalization Service (now known as the Bureau of Immigration Customs Enforcement, Department of Homeland Security, hereinafter "BICE"), issued a Notice to Appear to the petitioner, charging him with being subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) (providing for removal of an alien convicted of two or more crimes of moral turpitude). (Pet. ¶ 10; Response to Pet. at 2.) Petitioner was taken into custody in August, 2003. (Response to Pet. at 2.) On December 2, 2003, petitioner was ordered removed to Vietnam. (Pet. ¶ 12.) He waived his right to appeal to the Board of Immigration Appeals. (Pet. ¶ 13; Response to Pet. at 3.)
Petitioner received a Post Order Custody Review in March, 2004. (Response to Pet. at 2.) In part because the government of Vietnam would not issue a travel document, he was recommended for supervised release. Id. The BICE issued an Order of Supervision on April 9, 2004. Id.; Response to Pet., Ex. E. Petitioner was released under terms of supervision on June 3, 2004. (Response to Pet. at 3.) As a condition of his release, petitioner posted a $30,000 bond which was secured by a bonding company. See Letter from counsel for petitioner dated June 8, 2004.
II. DISCUSSION
A federal court has jurisdiction to issue a writ of habeas corpus only if the person seeking the writ is "in custody." See 28 U.S.C. § 2241. The "in custody" determination is made as of the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once the federal habeas jurisdiction has attached, "it is not defeated by the release of the petitioner prior to completion of proceedings on such application." Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
Although petitioner was "in custody" at the time he filed his application for a writ of habeas corpus on May 5, 2004, he does not challenge his removal. Instead, petitioner sought release on conditions pending his removal to Vietnam. See Pet. ¶¶ 18-20. Because petitioner was released on an Order of Supervision of April 9, 2004, he has obtained all the relief to which he is entitled. This moots consideration of his habeas petition.See Izquierdo v. Ashcroft, 2004 WL 1211960, at *1 (E.D. Pa. June 2, 2004) (Kauffman, J.) (release moots habeas petition filed by alien challenging legality of extended detention); Camara v. Comfort, 235 F. Supp.2d 1174 1175 (Colo. 2002) (same).
Counsel for the petitioner argues that since his client has to pay an annual premium to a bonding company for the security posted for his release, the case is not moot "since the extent of the bond requires a significant present expense and an indefinite greater expense for future years of premium to the bonding company." See Letter from counsel for petitioner dated June 8, 2004. A similar argument was rejected by the court in Camara. There, the petitioner was an alien who was released on a bond not to exceed $2,500. The bond was posted and petitioner was released from custody. Petitioner argued that his habeas corpus proceeding was not moot when he was released from custody because there were multiple restrictions on his freedom contained in the Order of Supervision, including the bond requirement. The Camara court rejected this argument, stating the following:
The primary injury alleged in the petition, however, was Petitioner's illegal detention, not the final order of removal to which he is subject. Since the conditions in the order of supervision flow, not from Petitioner's illegal detention, but from the final order of removal, they are not collateral consequences of Petitioner's detention, and therefore cannot sustain the petition's justiciability under Article III. Even if the conditions in the order of supervision could be construed as "collateral consequences," they do not rise to the level of constitutional injury sufficient to render this case a live controversy under Article III.Camara, 235 F. Supp.2d at 1176 (footnotes omitted).
Accordingly, the court should dismiss this petition for a writ of habeas corpus as moot. III. CONCLUSION
The Supreme Court acknowledged that it is most appropriate to impose conditions on the release of aliens awaiting removal because they pose a serious risk of flight and a risk that they may commit further crimes. The Court stated the following:
Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.Zadvydas. v. Davis, 533 U.S. 678, 699-700 (2001) (emphasis added).
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 13th day of July, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED as moot, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).