Sule v. INS

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 27, 1999
• Docket: 98-1090
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 27 1999 TENTH CIRCUIT PATRICK FISHER Clerk

USMAN SHEHU SULE,

Petitioner - Appellant, v. No. 98-1090 (D.C. No. 98-D-402) IMMIGRATION & (District of Colorado) NATURALIZATION SERVICE,

Respondent - Appellee.

ORDER AND JUDGMENT *

Before TACHA, and LUCERO, Circuit Judges and COOK **, Senior District Judge.

Usman Shehu Sule, pro se, appeals the district court’s dismissal of his

habeas petition for lack of jurisdiction. We exercise jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253, and dismiss the petition as moot.

I

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

The Honorable H. Dale Cook, Senior District Judge of the Northern District of **

Oklahoma, sitting by designation. Following his conviction for an aggravated felony, Sule was ordered

deported from the United States, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). On

February 23, 1998, while in the custody of the Immigration and Naturalization

Service (“INS”), Sule filed a petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2241, alleging that his order of deportation and detention violated the

First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the

Constitution. The district court dismissed the petition for lack of jurisdiction

based on 8 U.S.C. § 1252(g), and Sule appealed, contending that the district court

erred in finding it lacked jurisdiction and in failing to address the merits of his

claims. While his appeal was pending, the INS deported Sule to Nigeria. We

ordered the agency to advise this court as to the effect the deportation has on

Sule’s appeal. The INS argues that Sule’s release from detention and deportation

effectively render his petition moot. Moreover, the INS contends, 8 U.S.C.

§ 1252(g) eliminates our jurisdiction to hear Sule’s appeal.

II

We review de novo the district court’s dismissal of a habeas petition. See

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The INS argues that the

district court correctly concluded that 8 U.S.C. § 1252(g) precludes our review of

Sule’s deportation order. This argument, however, is foreclosed by our recent

decision in Jurado-Gutierrez v. Greene, No. 97-1437, slip op. at 16-17 (10th Cir.

-2- August 19, 1999) (concluding that 8 U.S.C. § 1252(g) does not apply to review of

a final deportation order).

Although 8 U.S.C. § 1252(g) does not eliminate our jurisdiction to hear

Sule’s petition, there remains the issue of whether his release from custody and

deportation render his appeal moot. 28 U.S.C. § 2241(c)(1) provides, in relevant

part, that “[t]he writ of habeas corpus shall not extend to a prisoner

unless [he] is in custody.” A habeas petition, however, is not moot merely

because the “‘in custody’ requirement” of the habeas statute is no longer satisfied.

Spencer v. Kemna, 118 S. Ct. 978, 983 (1998). The relevant inquiry is whether

the petitioner can demonstrate “collateral consequences adequate to meet Article

III’s injury-in-fact requirement.” Id. at 986.

Sule challenges the legality of his detention by the INS; he does not

challenge the legality of his underlying criminal conviction. Thus, any injury

Sule suffered resulted from the mere fact of his detention, and the function of the

writ of habeas corpus in this case would be to secure his release from illegal

custody. Because Sule has been released from custody, however, “a favorable

judicial decision” is unlikely to redress any “actual injury traceable” to his

detention. Spencer, 118 S. Ct. at 983 (citation omitted). We conclude that Sule’s

release has mooted his challenge to the legality of his detention.

-3- Sule also claims that the deportation order issued against him was

unconstitutional. The INS argues that this claim is rendered moot by Sule’s

deportation. Although we strongly suspect that deportation may, as a matter of

law, always entail collateral consequences, we need not, and do not, resolve that

issue in this case. Sule has failed to advance any argument regarding collateral

consequences, and even though he appears pro se, we cannot make his argument

for him. See Glover River Org. v. Dep’t of Interior, 675 F.2d 251, 254 & n.3

(10th Cir. 1982) (stating that party who alleges concrete injury sufficient to

satisfy case and controversy requirement of Article III must prove it). We thus

dismiss Sule’s challenge to the legality of his deportation order as moot.

DISMISSED.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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