Agoro v. Herron

Filing 29

DECISION AND ORDER dismissing the petition without prejudice. Signed by Hon. Michael A. Telesca on 5/25/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
BABATUNDE KAREEM AGORO,
Petitioner,
No. 10-CV-1055(MAT)
DECISION AND ORDER

-vsMARTIN HERRON, in his official
capacity Director, Buffalo
Federal Detention Facility,
Batavia, New York,
Respondent.
_____________________________________
I.

Introduction
Babatunde Kareem Agoro (“Agoro” or “Petitioner”), a native and

citizen

of

Nigeria,

filed

this

pro

se

petition

pursuant

to

28 U.S.C. § 2241 on December 27, 2010, while he was in the custody
of Respondents (also referred to hereinafter as the Department of
Homeland Services Immigration and Customs Enforcement (“DHS/ICE”))
at the Federal Detention Facility in Batavia, New York. Agoro was
awaiting deportation pursuant to a final order of removal entered
against him on November 29, 2005, based upon his having been
convicted of credit card fraud in the District of Rhode Island, as
well as a subsequent failure to appear in violation of 18 U.S.C.
§ 3416, an aggravated felony under the Immigration and Nationality
Act.1

1

Represented by counsel, Agoro has filed a challenge in the District
of Rhode Island to the underlying felony conviction for credit card fraud

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Agoro’s habeas petition was transferred to the undersigned on
February 3, 2012, at which time Respondent was requested to provide
additional documentation regarding DHS/ICE’s latest decision to
continue Agoro’s custody. After those documents were submitted,
Agoro filed several pleadings in further support of his request for
supervised release.
At some point during the pendency of the proceeding, Agoro was
transferred to the Etowah County Detention Center in Alabama. On
May 17, 2012, the Court received a telephone call from Agoro
stating simply that he had been released. The Detainee Locator on
the

U.S.

Immigration

and

Customs

Enforcement

website,

https://locator.ice.gov/odls/case-satus.jsp, last accessed by the
Court on May 24, 2012, indicates that Agoro, A24-624-753, a native
of Nigeria, was “Not In Custody”.
As Agoro still has at least one petition for review pending in
the United States Court of Appeals for the Second Circuit,2 DHS/ICE
is precluded from removing him pursuant to the informal forbearance

that led to his order of removal. See Agoro v. United States of America,
Docket No. 12-1048 (1st Cir. 2012).
2

On February 16, 2012, Agoro filed his tenth petition for review
challenging his order of removal. See Agoro v. Holder, Docket No. 12-607
(2d Cir. 2012); Declaration of Donald Vaccaro dated March 28, 2012 &
Exhibit A, pp. 47-49. Review of the Second Circuit’s PACER website
indicates that the Government has moved to dismiss the petition, but the
matter remains pending. The Second Circuit has dismissed Agoro’s nine
previous petitions.

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policy between the Government and the Court of Appeals.

Thus, he

presumably has been released under an order of supervision.
Since Agoro has been released from continued administrative
detention in DHS custody, the relief Agoro requests in his petition
to this Court has been granted, and therefore the petition is moot.
For the reasons that follow, the petition is dismissed without
prejudice.
II. Jurisdiction
Courts have an obligation to ensure that they have subject
matter jurisdiction over a proceeding. See Alliance of American
Insurers v. Cuomo, 854 F.2d 591, 605 (2d Cir. 1988) (stating that
“a challenge to subject matter jurisdiction cannot be waived and
may be raised sua sponte by the district court.”).
A. The Habeas Statute’s “In Custody” Requirement
Section 2241(c)(1) of Title 28 of the United States Code
provides that district courts may consider habeas petitions from
prisoners “in custody under or by color of the authority of the
United

States.”

requirement

is

28

U.S.C.

satisfied

if

§

2241(c)(1).

the

petitioner

“The

‘in

files

custody’

the

habeas

petition before being deported.” So v. Reno, 251 F. Supp.2d 1112,
1120 (E.D.N.Y. 2003) (citing Gonzalez v. I.N.S., No. 01 Civ.
6229(HB), 2002 WL 31444952, at *3 (S.D.N.Y. Oct. 31, 2002) (stating
that petitioner satisfies the “in custody” requirement of 28 U.S.C.
§ 2241 so long as he is in physical custody at the time the

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petition is filed even if petitioner is later deported)). Here,
when Agoro filed his § 2241 petition, he was in Respondents’
custody, detained at the Federal Detention Facility in Batavia, New
York. He therefore satisfied the “in custody” requirement of the
habeas statute.
B. Mootness
When a habeas petitioner has been released from custody after
filing a petition, the petition may be moot, and the relevant
inquiry

becomes

controversy

whether

under

the

Article

case

III,

§

still
2

presents

of

the

a

case

United

or

States

Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998) “‘[A] case is
moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome.’” County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)); accord City of Erie v. Pap’s
A.M., 529 U.S. 277, 287 (2000).
Where a habeas petition is based upon a criminal conviction,
the cause is not rendered moot by the petitioner’s release from
custody, provided that petitioner continues to suffer “collateral
consequences”

of

the

conviction

upon

which

the

now-ended

incarceration was based. Spencer, 523 U.S. at 7. Here, however,
Agoro’s habeas petition challenges only the lawfulness of his
administrative detention by DHS. The sole relief Agoro seeks is

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release from custody.3

As this petition is based only on Agoro’s

allegedly unlawful detention in DHS custody, and not on the removal
order from which the detention flowed, the issue is whether Agoro
suffers from any “collateral consequences” of detention now that he
has been released on bond and he is no longer “in custody” of DHS.
The district courts in this Circuit that have considered the
issue have found that where an alien challenging his detention
under 28 U.S.C. § 2241 is released during the pendency of his
petition under an order of supervision, the petition is rendered
moot. E.g., Denis v. DHS/ICE of Buffalo, N.Y., 634 F. Supp.2d 338,
341 (W.D.N.Y. 2009) (citing, inter alia, Baptiste v. I.N.S., 2006
WL 3050884, No. 06-CV-0615 (NG), at *2 (E.D.N.Y. Oct. 23, 2006)
(holding that where petitioner was released pursuant to an order of
supervision pending her removal, it was “clear that petitioner in
the case at hand was challenging only the lawfulness of her
detention” and “as a result of her release, [her] application for
relief [was] moot.”); Sayavong v. McElroy, No. 00Civ.0922(WHP)(FM),

3

If Agoro sought to challenge the underlying order of removal, this
Court would be precluded from exercising jurisdiction over this Petition
by section 106(a)(1)(B) of REAL ID Act of 2005, 8 U.S.C. § 1252(a)(5),
which “unequivocally eliminates habeas corpus review of orders of
removal.” Marquez-Almanzar v. I.N.S., 418 F.3d 210, 215 (2d Cir.2005).
However, “[w]hile Congress specifically eliminated the district courts'
habeas corpus jurisdiction over review of removal orders, the REAL ID Act
does not affect the district courts’ jurisdiction over review of other
habeas corpus claims.” Brempong v. Chertoff, No. 05-CV-733 (PCD), 2006
WL 618106, at *2 (D. Conn. Mar. 10, 2006).

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2003 WL 470576, at *3 (S.D.N.Y. Jan. 9, 2003) (“After his petition
was filed, Sayavong was released from INS custody pursuant to an
Order of Supervision . . . . [T]he only relief sought . . . has
previously been granted by the INS. It follows that Sayavong’s
petition is moot.”).4
The only relief sought by Agoro and obtainable from this Court
was release from DHS custody. Accordingly, Agoro’s habeas petition
became moot upon his release from his detention in Respondents’
custody. Accord, e.g., Sayavong v. McElroy, 2003 WL 470576, at *3.
III. Conclusion
For the foregoing reasons, Babatunde Kareem Agoro’s habeas
petition no longer presents a “live” case or controversy for
purposes of satisfying Article III, Section 2 of the United States

4

Although the Second Circuit has not ruled on the issue
directly in a published opinion, it has stated in an unpublished
opinion:
Petitioner . . . appeals from the judgment of the district
court . . . finding his habeas petition to be moot. In that
petition, [petitioner] challenged certain aspects of his
immigration detention. . . . During the pendency of this
appeal, another panel of this court vacated [petitioner’s]
order of removal. . . . As a result of this decision,
[petitioner] was released from immigration detention. . . .
[Petitioner's] release renders the issues presented in this
appeal moot, and, we must dismiss his appeal.
Edwards v. Ashcroft, 126 Fed. Appx. 4 (2d Cir.2005) (unpublished);
accord, e.g., Ali v. Cangemi, 419 F.3d 722, 724 (8th Cir. 2005); Riley v.
I.N.S., 310 F.3d 1253, 1256-57 (10th Cir. 2002).

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Constitution. The petition (Dkt. #1) accordingly is dismissed
without prejudice.
A certificate of appealability shall not issue. See 28 U.S.C.
§ 2253(c)(2) (“A certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of a
constitutional right.”); see also Lucidore v. New York State Div.
of Parole, 209 F.3d 107, 112 (2d Cir. 2000).
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
May 25, 2012

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