Kurtishi v. Cicchi

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-24-2008
Kurtishi v. Cicchi
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4595
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Recommended Citation
"Kurtishi v. Cicchi" (2008). 2008 Decisions. Paper 1397.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1397
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ALD-145 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4595
___________
MUSHTEBA KURTISHI,
Appellant
v.
EDMOND CICCHI, Warden, Middlesex County Jail;
CHRISTOPHER SHANAHAN, New York City Field Office
Director, Department of Homeland Security,
Immigration and Customs Enforcement;
DEPARTMENT OF HOMELAND SECURITY;
IMMIGRATION & CUSTOMS ENFORCEMENT
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-cv-05169)
District Judge: Honorable Freda L. Wolfson
____________________________________
Submitted for Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
February 28, 2008
Before: SLOVITER, FISHER and HARDIMAN, CIRCUIT JUDGES.
(Filed: March 24, 2008)
_________
OPINION
_________
PER CURIAM
Appellant Mushteba Kurtishi appeals from the District Court’s order denying his
petition for a writ of habeas corpus. Appellees Christopher Shanahan, Department of
Homeland Security, and Immigration and Customs Enforcement have moved for a
summary affirmance of the District Court’s order entered on November 29, 2007.1 For
the reasons discussed below, we will grant the Appellees’ motion to the extent Kurtishi
seeks to appeal the District Court’s denial of his challenge to the order of removal for
lack of jurisdiction. To the extent Kurtishi seeks to appeal the District Court’s rejection
of his petition for relief under 28 U.S.C. § 2241, we will dismiss the appeal as moot.
In 1997, Kurtishi was ordered removed from the United States to Macedonia after
an immigration judge denied his application for asylum and withholding of deportation.
Kurtishi filed an unsuccessful appeal to the Board of Immigration Appeals, as well as
three subsequent unsuccessful motions to reopen his asylum proceedings. Kurtishi also
filed a petition for review with the United States Court of Appeals for the Second
Circuit,2 which denied it on February 15, 2006. Kurtishi was then taken into custody by
1
Although Edmond Cicchi, warden of the Middlesex County Jail, was named as a
party in Kurtishi’s amended habeas petition, it appears from the District Court docket that
he did not participate in the proceedings before that court. In any event, for the reasons
explained below, any claims with respect to Cicchi’s detention of Kurtishi are moot.
2
The final hearing in Kurtishi’s deportation proceedings apparently took place in
New York.
2
the Department of Homeland Security and Immigration and Customs Enforcement and
held at Middlesex County Jail in New Jersey.
While he was in custody, Kurtishi filed a petition for writ of habeas corpus. After
filing that petition, Kurtishi was deported. A few hours before this deportation, Kurtishi
filed an emergency motion for a temporary restraining order with the District Court.
After a teleconference, the District Court granted a temporary restraining order enjoining
Kurtishi’s removal based on the exigent circumstances created by Kurtishi’s eleventh
hour application. At that time, the District Court did not make any findings regarding
Kurtishi’s right to relief. Apparently, Kurtishi was deported during the teleconference,
before the order granting a temporary restraining order was entered. Accordingly, the
District Court modified its order to state that Kurtishi should be returned to the United
States and held in custody until further order of the District Court. The District Court
also granted Kurtishi permission to file an amended habeas petition.
Kurtishi subsequently filed an amended habeas petition conceding that the REAL
ID Act divested federal district courts of jurisdiction to review final orders of deportation,
but nonetheless seeking to challenge his “continued restraint by DHS-ICE” under 28
U.S.C. § 2241. Kurtishi also argued that his enforced departure from the United States
was unlawful “as the DHS-ICE continued the process of removing him even after a
federal judge had granted his request for a temporary restraining order.” Appellees filed a
response opposing the amended habeas petition.
3
The District Court issued an opinion and order denying both the original and
amended habeas petitions and vacating its prior temporary restraining order as
improvidently granted. The District Court reasoned that its prior temporary restraining
order had been improvidently granted because it lacked jurisdiction under the Real ID
Act, Publ. L. 109-13m 119 Stat. 231, to review the order of removal that had been entered
against petitioner. The District Court also observed that the United States Court of
Appeals for the Second Circuit had already reviewed a petition for review from Kurtishi.
However, the District Court went on to conclude that it did have jurisdiction to entertain
Kurtishi’s challenge to the legality of his detention under § 2241. The District Court
stated that it had jurisdiction to hear this challenge even though Kurtishi had already been
deported because Kurtishi’s original habeas petition was filed when he was still in
custody. The District Court further concluded the petition was not moot because the
court’s prior order directed that Kurtishi be returned to the United States pending the
resolution of his amended petition.
The District Court then rejected Kurtishi’s challenge to his deportation on the
merits because Kurtishi had provided no rationale for his argument that his five-week
detention was unlawful. The District Court further reasoned that his enforced departure
was lawful because, inter alia, DHS had no knowledge the TRO was granted until after
the plane had left the gate. The District Court also explained that because the TRO had
now been vacated as improvidently granted, it could no longer serve as a basis for an
4
argument that Kurtishi had been unlawfully detained. Moreover, the District Court
rejected Kurtishi’s petition to the extent he sought to rely on 8 U.S.C. § 1231(a),
concluding that a five-week detention was presumptively reasonable under Zadvydas v.
Davis, 533 U.S. 678 (2001). Kurtishi timely appealed and, as noted above, the Appellees
seek summary affirmance of the District Court’s order. Kurtishi has not filed a response
to the Appellees’ motion for summary affirmance.
For substantially the reasons stated by the District Court, we agree that the District
Court was without jurisdiction to consider Kurtishi’s challenge to his order of removal
and will summarily affirm this part of the District court’s order. See Bonhomretre v.
Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005) (Real ID Act effectively limits “all aliens
to one bite of the apple with regard to challenging an order of removal”).3
To the extent Kurtishi seeks to appeal the District Court’s rejection of his
challenge to the legality of his five-week detention under 28 U.S.C. § 2241, we will
dismiss the appeal as moot. Regardless of whether an Article III, § 2 case or controversy
continued to exist during the District Court proceedings, Kurtishi must show the
subsistence of a case or controversy in this Court. Chong v. District Director, I.N.S., 264
F.3d 378, 383 (3d Cir. 2001). Kurtishi cannot make this showing. In view of Kurtishi’s
deportation, there are no remaining collateral consequences that may be redressed by
3
No transfer of Kurtishi’s habeas petition was necessary given that the Second
Circuit had already ruled on a petition for review from Kurtishi.
5
success on Kurtishi’s challenge under § 2241 to his “continued restraint by DHS-ICE.”
See Abdala v. Immigration and Naturalization Service, 488 F.3d 1061, 1065 (9th Cir.
2007) (petition complaining of the length of detention at an INS facility mooted by
petitioner’s subsequent deportation six weeks later). Further, to the extent Kurtishi
attempts to premise a request for relief on the fact that he was allegedly deported after the
District Court granted his request for a temporary restraining order, such a claim is moot
given that the District Court vacated the order in question as improvidently granted.
For these reasons, we will grant the Appellees’ motion for summary affirmance in
part, and dismiss Kurtishi’s challenge under § 2241 to his detention and deportation as
moot.
6