Collins Nyabwa v. DHS Img Customs Field Off Dir ( 2013 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2013
No. 12-20739
Summary Calendar Lyle W. Cayce
Clerk
COLLINS O. NYABWA,
Plaintiff–Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY IMMIGRATION AND CUSTOMS
ENFORCEMENT FIELD OFFICE DIRECTOR,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-2518
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Collins O. Nyabwa, immigration detainee # A087 029 259, filed a 28 U.S.C.
§ 2241 habeas corpus application challenging the legality of his immigration
detention on the ground that his state convictions were based on violations of an
unconstitutional state statute. The district court dismissed the petition as
premature.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 12-20739
This court reviews a district court’s dismissal of a § 2241 petition de novo.
Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). Nyabwa is not required to
obtain a certificate of appealability before proceeding on appeal. See Ojo v. INS,
106 F.3d 680, 681 (5th Cir. 1997).
When Nyabwa filed his § 2241 application, he was being detained
pursuant to 8 U.S.C. § 1226(c), which mandates that the Attorney General take
into custody aliens who are deportable for having committed certain crimes.
Thus, Nyabwa’s § 2241 application challenged his preadjudication detention
pending a removal hearing. Nyabwa has since been ordered removed and is now
being held pending removal pursuant to 8 U.S.C. § 1231(a)(1)(A). Because
Nyabwa is no longer subject to the detention he challenged in his application, his
appeal of the district court’s dismissal is moot. See Oyelude v. Chertoff, 170 F.
App’x 366, 367 & n.4 (5th Cir. 2006).
DISMISSED AS MOOT; MOTION FOR APPOINTMENT OF
APPELLATE COUNSEL DENIED.
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