Nyabwa v. Department of Homeland Security Immigration & Customs Enforcement Field Office Director

537 F. App'x 451

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 26, 2013
• Docket: 12-20739
• Status: Unpublished

Opinion

PER CURIAM: *

Collins O. Nyabwa, immigration detainee # A087 029 259, filed a 28 U.S.C. § 2241 habeas corpus application challenging the legality of his immigration detention on the ground that his state convictions were based on violations of an unconstitutional state statute. The district court dismissed the petition as premature.

This court reviews a district court’s dismissal of a § 2241 petition de novo. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). Nyabwa is not required to obtain a certifícate of appealability before proceeding on appeal. See Ojo v. INS, 106 F.3d 680, 681 (5th Cir.1997).

When Nyabwa filed his § 2241 application, he was being detained pursuant to 8 U.S.C. § 1226(c), which mandates that the Attorney General take into custody aliens who are deportable for having committed certain crimes. Thus, Nyabwa’s § 2241 application challenged his preadjudication detention pending a removal hearing. Nyabwa has since been ordered removed and is now being held pending removal pursuant to 8 U.S.C. § 1231(a)(1)(A). Because Nyabwa is no longer subject to the detention he challenged in his application, his appeal of the district court’s dismissal is moot. See Oyelude v. Chertoff, 170 Fed.Appx. 366, 367 & n. 4 (5th Cir.2006).

DISMISSED AS MOOT; MOTION FOR APPOINTMENT OF APPELLATE COUNSEL DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.