Suarez v. Rooney , 53 F. App'x 703 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LUIS ALBERTO SUAREZ, 
Petitioner-Appellant,
v.
KEVIN ROONEY, Acting
Commissioner, Immigration and
Naturalization Service; JOHN
ASHCROFT, Attorney General, United
States Department of Justice; LOUIS  No. 02-6170
D. CROCETTI, JR., District Director,
Immigration and Naturalization
Service; DOUGLAS DEVENUYNS,
Wicomico County Detention
Facility; U.S. IMMIGRATION AND
NATURALIZATION SERVICE,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CA-01-1722-WMN)
Argued: December 5, 2002
Decided: January 6, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
2 SUAREZ v. ROONEY
COUNSEL
ARGUED: Jay Schine Marks, MARKS & KATZ, L.L.C., Silver
Spring, Maryland, for Appellant. Papu Sandhu, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. ON BRIEF: Robert D. McCallum, Jr., Assistant Attorney
General, Emily Anne Radford, Assistant Director, Office of Immigra-
tion Litigation, Civil Division, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Luis Suarez appeals the district court’s procedural dismissal of his
28 U.S.C.A. § 2241 (West 1994) petition in which he sought to chal-
lenge his removal from the United States by the Immigration and Nat-
uralization Service, claiming that he is a United States citizen. The
merits of Suarez’s case are currently before this court in a separate
proceeding, see Suarez v. INS, No. 02-1813, in which Suarez
advances the same challenge under 8 U.S.C.A. § 1252(b)(5) (West
1999) and which is presently in the briefing stage. Suarez’s petition
for review on the merits renders moot the jurisdictional issue in the
current appeal by causing it to lose "‘its character as a present, live
controversy of the kind that must exist if we are to avoid advisory
opinions on abstract propositions of law.’" Maryland Highways Con-
tractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1249 (4th Cir. 1991)
(quoting Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414
(1972)). Accordingly, we dismiss this appeal without prejudice to the
right of either party to move the district court, under Federal Rule of
Civil Procedure 60(b), to vacate its judgment. See Pressley Ridge
Schools v. Shimer, 134 F.3d 1218, 1222 (4th Cir. 1998) (dismissing
SUAREZ v. ROONEY 3
an appeal without vacatur because the parties were not cognizant of,
nor briefed the court on, whether vacatur was proper); see also Valero
Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000) (holding
that district courts should consider the same factors of voluntariness
and extraordinary circumstances in considering vacatur as courts of
appeals).
DISMISSED