Jorge Chay v. Eric Holder, Jr. , 470 F. App'x 406 ( 2012 )

Case: 11-20674 Document: 00511869423 Page: 1 Date Filed: 05/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 29, 2012
No. 11-20674
Summary Calendar Lyle W. Cayce
Clerk
JORGE VINCENTE CHAY,
Petitioner–Appellant,
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL; DEPARTMENT OF
HOMELAND SECURITY,
Respondents–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-2965
Before DENNIS, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
In August 2011, Jorge Vincente Chay filed a petition pursuant to 28 U.S.C.
§ 2241, challenging his detention by Immigration and Customs Enforcement
(ICE) pending his removal from the United States. Chay asserted that his
detention by ICE may have violated due process by failing to comply with the
mandate of 8 U.S.C. § 1231 and the holding in Zadvydas v. Davis, 533 U.S. 678(2001). Chay sought to challenge the order reinstating his removal and asserted
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-20674
that a new Notice to Appear should be issued and a removal hearing held before
he was removed from the United States.
The district court determined that the REAL ID Act of 2005 divested
federal district courts of jurisdiction over § 2241 habeas corpus petitions that
attacked removal orders and sua sponte dismissed Chay’s petition for lack of
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C) and (a)(5). Chay filed a
postjudgment motion, arguing that the REAL ID Act is unconstitutional. The
district court did not address Chay’s arguments but instead denied the motion
for lack of jurisdiction.
Chay’s sole challenge to the district court’s determination that it lacked
jurisdiction over his § 2241 claims is that the REAL ID Act is unconstitutional
and, therefore, cannot eliminate habeas corpus actions under § 2241. Chay
contends, as he did in his § 2241 petition, that his detention was unlawful in
light of § 1231 and Zadvydas.
“This Court must examine the basis of its jurisdiction, on its own motion,
if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). “A moot case
presents no Article III case or controversy, and a court has no constitutional
jurisdiction to resolve the issues it presents.” Goldin v. Bartholow, 166 F.3d 710,
717 (5th Cir. 1999). Events occurring after a district court’s entry of judgment
may render an appeal moot. See Bailey v. Southerland, 821 F.2d 277, 278-79
(5th Cir. 1987).
Chay was removed from the United States on October 5, 2011, after the
notice of appeal was filed in this case but before briefs were filed, and he does
not challenge his removal. Even if the district court retained subject matter
jurisdiction over Chay’s § 2241 petition to the extent that it challenged the
continued lawfulness of Chay’s post-removal-order detention, and not an order
of removal, see Tran v. Mukasey, 515 F.3d 478, 485 (5th Cir. 2008), any such
challenge is now moot because Chay has been removed from the United States.
See Odus v. Ashcroft, 61 F. App’x 121,121 (5th Cir. 2003); Umanzor v. Lambert,
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No. 11-20674
782 F.2d 1299, 1301 (5th Cir. 1986). Chay does not assert that he raised another
claim over which the district court would have had jurisdiction that has not been
rendered moot by his removal, and we will not liberally construe his
attorney-prepared brief to find one. See Beasley v. McCotter, 798 F.2d 116, 118
(5th Cir. 1986).
Accordingly, the appeal is DISMISSED AS MOOT.
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