Emeka Ufele v. US Atty Gen , 473 F. App'x 144 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1648
___________
EMEKA F. UFELE,
Appellant
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL; SCOTT WEBER,
Director, United States Immigration and Customs Enforcement (ICE), Office of
Detention and Removal Operations (DRO); ROY HENDRICKS, Warden Of The Essex
County Coor. Fac.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 10-cv-03440)
District Judge: Honorable Susan D. Wigenton
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 1, 2012
Before: JORDAN, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: March 30, 2012)
___________
OPINION
___________
PER CURIAM
Emeka Ufele, proceeding pro se and in forma pauperis, appeals from the District
Court’s order denying his 28 U.S.C. § 2241 petition. For the following reasons, we will
affirm the District Court’s decision to the extent that it dismissed Ufele’s challenge to his
removal proceedings. We will dismiss the remainder of the appeal as moot.
I.
Ufele is a Nigerian citizen who in 2004 was convicted of conspiracy/theft by
deception in the New Jersey Superior Court. In October 2009, Ufele was convicted of
two counts of bank fraud in the United States District Court for the Southern District of
New York. Meanwhile, in October 2008, immigration officials charged him with
inadmissibility/removability under 8 U.S.C. § 1227(a)(2)(C)(i), based on the 2004 state
conviction. On October 22, 2008, an administrative arrest warrant was issued, and a
detainer was placed on Ufele while he was in the Hudson County Jail. On that date, a
“notice of custody determination” was issued, stating that Ufele would be detained in the
custody of the Department of Homeland Security until a final determination in his
removal proceedings. Then, upon Ufele’s federal conviction, immigration officials
issued another detainer and began formal removal proceedings.
In July 2010, Ufele filed a 28 U.S.C. § 2241 petition for writ of habeas corpus in
the United States District Court for the District of New Jersey. He asserted that his
immigration detention violated his due process rights and that the removal proceedings
violated an agreement that he made with the federal prosecutor during his federal
criminal proceedings. While his § 2241 petition was pending, an Immigration Judge
(“IJ”) denied Ufele’s request for a change in custody status, noting that he was in
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“mandatory custody.” On February 3, 2011, the District Court denied Ufele’s petition.
Ufele timely appealed.
Meanwhile, on May 9, 2011, an IJ ordered Ufele removed and on September 16,
2011, the Board of Immigration Appeals (“BIA”) dismissed Ufele’s appeal from the IJ’s
order and issued a final order of removal. 1 The Government notified us that upon the
issuance of a final order of removal, the authority for Ufele’s detention switched from 8
U.S.C. § 1226 to 8 U.S.C. § 1331. We asked the parties to address whether this
development made moot Ufele’s challenge to his 8 U.S.C. § 1226 detention. The
Government responded by arguing that the appeal was moot. Ufele’s response asserted
that the length of his detention remains a viable issue.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo the District
Court’s decision as to Ufele’s habeas corpus petition. See United States v. Cleary, 46
F.3d 307, 309-10 (3d Cir. 1995).
We first consider whether Ufele’s challenge to the propriety of his 8 U.S.C. §
1226 detention is moot. Federal courts have habeas jurisdiction to examine the statutory
and constitutional bases for an immigration detention unrelated to a final order of
removal. Demore v. Kim, 538 U.S. 510, 517-18 (2003). Ufele’s § 2241 petition alleged
that his two-year mandatory detention under 8 U.S.C. § 1226(c) violated his
constitutional rights. The District Court denied his petition and Ufele timely appealed.
1
Our records do not indicate that Ufele has sought review of the BIA’s order of removal.
3
However, while Ufele’s appeal was pending, the BIA issued a final order of removal.
When Ufele’s time to file a petition for review expired, the BIA’s order became
administratively final and Ufele’s detention switched from § 1226 to § 1231. See Casas-
Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 947 (9th Cir. 2008); 8 C.F.R. §
1241.1(a).
Accordingly, insofar as Ufele challenges the lawfulness of his detention pursuant
to § 1226(c), and he is no longer in custody pursuant to this statute, his appeal is moot
and must be dismissed for lack of jurisdiction. Article III of the Constitution states that
“federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990). Here, the injury alleged is an
unreasonably long pre-final order of removal detention under 8 U.S.C. § 1226. Because
this injury can no longer be redressed by a favorable judicial decision, this issue is moot. 2
See Isidor Paiewonsky Assocs., Inc. v. Sharp Properties, Inc., 998 F.2d 145, 151 (3d Cir.
1993) (internal quotation and citation omitted).
2
We note that Ufele’s situation is distinguishable from that of the petitioner in Diop v.
ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011). In Diop, we held that a challenge to an
8 U.S.C. § 1226(c) detention was not moot even though the petitioner had been released
from custody after determining that the challenge fell within the “special mootness
exception for cases that are capable of repetition while evading review.” 656 F.3d at 227(internal citation and quotation omitted). However, unlike Ufele, Diop was not subject to
a final order of removal and had been released from detention after his criminal
conviction was vacated. We thus explained that Diop’s claim was capable of repetition
because the Government could once again detain him under § 1226(c) if the vacatur of
his conviction was overturned on appeal. Id. at 228.
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Additionally, we agree with the District Court to the extent that it dismissed
Ufele’s challenges to his removal proceedings for lack of jurisdiction, as the REAL ID
Act “eliminate[ed] the district courts’ habeas corpus jurisdiction . . . over final orders of
removal in nearly all cases.” Francois v. Gonzales, 448 F.3d 645, 647 (3d Cir. 2006).
Thus, we will affirm the District Court’s decision to the limited extent that it
dismissed Ufele’s challenge to his removal proceedings. We will dismiss the remainder
of the appeal as moot. Ufele’s motion for appointment of counsel is denied.
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