Summary
vacating jurisdictional dismissal once case became moot
Summary of this case from Mtaza v. GarlandOpinion
No. 07-1426-pr.
December 3, 2009.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the appeal be DISMISSED, the district court judgment be VACATED, and the cause be REMANDED with instructions to DISMISS the petition as moot
Vlad Kuzmin, for Kuzmin Associates, New York, NY, for Appellant.
David Bober, for Michael Garcia, Former United States Attorney for the Southern District of New York, and Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellees.
SUMMARY ORDER
Petitioner-Appellant Shiqi Xue appeals from a judgment of the United States District Court for the Southern District of New York (Victor M. Marrero, Judge), denying Xue's petition for a writ of habeas corpus. The petition sought relief from a decision by the Board of Immigration Appeals (the "BIA") denying Xue's request for bond during the pendency of his removal proceedings. The district court found that it did not have subject matter jurisdiction over the petition, because, in its estimation, the challenged decision by the BIA was discretionary. See, e.g., Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001) (per curiam) ("[F]ederal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the [Immigration Judge] and the BIA."). Xue argues on appeal that the district court's decision was in fact based on a legal error, namely a misinterpretation of the Attorney General's decision, In re D-J-, 23 I. N. Dec. 572 (Op. Att'y Gen. Apr. 17, 2003) ("D-J-"). See, e.g., Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) ("[W]here, as here, . . . the petitioner raises a question of law, [] we have jurisdiction to review [it].").
While this appeal was pending, Xue became subject to a final order of removal. Because his removal proceedings are no longer pending, Xue's petition for relief from the BIA's decision not to grant him bond during the pendency of his removal proceedings is moot. See Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003) ("[A] challenge to pre-final order detention [is] moot once the final order has been entered.") (parentheses omitted); see also United States ex rel., Spinella v. Savoretti, 201 F.2d 364, 364 (5th Cir. 1953) ("We think it clear . . . that the deportation order is now final; that the question raised by [the petitioner's] appeal, whether the court erred in denying him bond pending the deportation proceedings, has become moot; and that the appeal should be dismissed.").
Xue appears to concede that the underlying petition is moot, but seems to argue that the Court should not dismiss the appeal because "regardless of whether this petition is moot . . . the Court has subject matter jurisdiction over this petition." Nov. 9, 2009 Supp. Br. 1. However, "if a claim becomes moot between the entry of final judgment and the completion of appellate review, the appellate court usually must either dismiss the appeal or vacate so much of the district court's judgment as adjudicated that claim and remand for entry of a judgment dismissing that claim." Altman v. Bedford Cent. School Dist., 245 F.3d 49, 70-71 (2d Cir. 2001) (internal citations omitted); see also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ("The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."); Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 94 F.3d 96, 100 (2d Cir. 1996) ("[W]hen it becomes impossible for an appellate court, through the exercise of its remedial powers, to do anything to redress the injury, the court is without power to review the district court's judgment and the appeal must be dismissed.") (internal quotation marks, citation, and alterations omitted).
Here, the issues raised in the underlying habeas petition and on appeal, and the relief requested therein, pertain solely to the pendency of Xue's removal proceedings. Because those removal proceedings are no longer pending, the underlying habeas petition, and this appeal, are moot. We therefore dismiss the appeal, vacate the district court judgment, and remand with instructions to dismiss the petition as moot. See, e.g., Perez v. Greiner, 296 F.3d 123, 126-27 (2d Cir. 2002); Russman v. Bd. of Educ. of Enlarged City School Dist of City of Watervliet, 260 F.3d 114, 121 (2d Cir. 2001) (observing that "the established practice is to reverse or vacate the judgment below and remand with a direction to dismiss") (internal quotation marks, alterations, and ellipses omitted).
For the foregoing reasons, it is ordered that the appeal be hereby DISMISSED, the district court judgment hereby VACATED, and the cause hereby REMANDED to the district court with instructions to DISMISS the petition as moot.