Shiqi Xue v. Holder , 354 F. App'x 596 ( 2009 )

07-1426-pr
Xue v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUM M ARY ORD ER DO NO T HAVE PRECEDENTIAL EFFECT . C ITATIO N TO SU M M ARY O RD ERS FILED AFTER
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GOVERNED BY THIS COU RT ’S L O CAL R U LE 0.23 AN D F ED ERAL R U LE O F A PPELLATE
P RO CED U RE 32.1. I N A BRIEF O R O THER PAPER IN W H ICH A LITIGAN T CITES A SUM M ARY O RD ER , IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS , AT LEAST O N E CITATIO N M U ST EITHER B E TO THE F ED ERAL A PPEN D IX O R BE ACC O M PAN IED
BY TH E N O TATIO N : “( SU M M ARY O RD ER ).” U N LESS THE SU M M ARY O RD ER IS AVAILABLE IN AN ELECTRO N IC D ATABASE
W H ICH IS PUB LICLY ACCESSIBLE W ITHO U T PA Y M EN T OF FEE ( SUCH AS THE DATABASE AVAILABLE AT
H TTP ://W W W . CA 2. U SCO U RTS . GO V /), THE PARTY CITING THE SUM M ARY ORD ER M UST FILE AND SERVE A CO PY OF THAT
SU M M ARY O RD ER TOGETH ER W ITH TH E PAPER IN W H ICH THE SU M M ARY O RD ER IS CITED . I F N O CO PY IS SERVED BY REASO N
O F THE AVAILABILITY OF THE ORD ER O N SU CH A D ATABASE , THE CITATIO N M U ST IN CLU D E R EFERENC E TO THAT D ATABASE
AN D THE D O CKET NU M BER O F THE CASE IN W H ICH THE O RD ER W AS ENTERED .
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 3rd
day of December, two thousand and nine.
PRESENT:
AMALYA L. KEARSE,
ROBERT D. SACK,
PAUL J. KELLY,*
Circuit Judges.
_______________________________________________
Shiqi Xue,
Petitioner-Appellant,
v. No. 07-1426-pr
Eric H. Holder, Jr., Attorney General of the United States, Janet Napolitano, Secretary of
Homeland Security, Alejandro Mayorkas, Director of the U.S. Citizenship and Immigration
Services,** Edward J. McElroy, District Director, The U.S. Immigration and Customs
Enforcement Agency,
Respondents-Appellees.***
______________________________________________
*
The Honorable Paul J. Kelly, Jr., of the United States Court of Appeals for the Tenth
Circuit, sitting by designation.
**
Attorney General Eric H. Holder, Jr., Secretary of Homeland Security Janet Napolitano,
and Director of the U.S. Citizenship and Immigration Services Alejandro Mayorkas are
substituted for their predecessors as respondents in this case. See Fed. R. App. P. 43(c)(2).
***
The Clerk of the Court is directed to amend the caption as set forth above.
For Appellant: VLAD KUZMIN, for Kuzmin &
Associates, New York, NY
For Appellees: 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
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.
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].").
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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 (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
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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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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