Tooby's California Post-Conviction Relief for Immigrants

 

A case becomes moot when it no longer satisfies the case-or-controversy requirement of Article III, Section 2, of the Constitution, which requires that the parties “continue to have a personal stake in the outcome of the lawsuit,” and “‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’”[58]  In a challenge to the criminal conviction itself, the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement is presumed.[59]

 

Whenever the defendant is in physical custody or in constructive custody on probation or supervised release, the action is not considered moot because both direct and indirect collateral effects of the conviction remain.[60]

 

If the petitioner has been released from constructive custody after the filing of the post-conviction action,[61] the action is not rendered moot merely because the “‘in custody’” requirement” of the habeas statute is no longer satisfied.[62]  The relevant inquiry is whether the petitioner can demonstrate “collateral consequences adequate to meet Article III’s injury-in-fact requirement.”[63]

 

Even if the action is technically moot, the court can continue to litigate it to judgment under certain exceptional circumstances:

 

There are four exceptions to the mootness doctrine, so that a court will not dismiss a case as moot if: (1) secondary or “collateral” injuries survive after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified class action suit.  Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1246 n.6 (3d Cir. 1996).[64]

 

The noncitizen can attempt to establish one or more of these exceptions.

 

Even after release from physical and constructive custody on parole or probation, the immigration effects of the conviction are also sufficient consequences to prevent the action from being moot.[65]

 

Moreover, those consequences do not disappear upon the noncitizen’s deportation.  First, at least in the Ninth Circuit, the petitioner can vacate the underlying conviction that triggered deportation, and later require the DHS to return him or her to the United States. [66]

Moreover, the effect of the deportation and many criminal convictions is that the noncitizen remains inadmissible to re-enter the United States once deported.  The conviction thus has the continuing effect of preventing the noncitizen from being about to travel and re-enter the country to obtain immigrant status.[67]

 

The Second Circuit has explained:

 

Historically, the narrowest approach to collateral consequences recognized only “concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses).”  Id. at 8.  Under the INA’s admissibility provisions, Mr. Tapia-Garcia’s removal and status as an aggravated felon render him permanently inadmissible unless the Attorney General consents to his reapplying for admission, 8 U.S.C. § 1182(a)(9)(A)(ii)-(iii), which is unlikely. His inability to reenter and reside legally in the United States with his family is a collateral consequence of his deportation because it is clearly a concrete disadvantage imposed as a matter of law. See Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (holding inadmissibility is a penalty imposed as a matter of law).

Because he is inadmissible, Mr. Tapia-Garcia is therefore threatened with an actual injury traceable to the DHS. Furthermore, a favorable judicial decision would undoubtedly redress the injury: Mr. Tapia- Garcia's status as a legal permanent resident would be restored and he could return to the United States. See Gao v. Jenifer, 185 F.3d 548, 557 (6th Cir. 1999) (holding case not moot because requested relief would allow alien to apply for adjustment of status to that of a legal permanent resident). We therefore hold that this appeal is not moot.[68]

 

Therefore, the post-conviction action does not become moot, since the noncitizen continues to suffer the ongoing effects of inadmissibility.

 

          One federal court of appeal, however, has found a habeas action moot where the petitioner was deported after filing a notice of appeal, but where he was otherwise inadmissible due to a separate drug conviction.  Because he would be denied entry into the United States on the basis of that conviction, the court finds that collateral consequences could not arise from the conviction at hand, thereby rendering the petition moot.  The court also rejected the possibility of a future prosecution for illegal re-entry after deportation under 8 U.S.C. § 1326 as a sufficient basis to preclude mootness.[69]

 

            This case appears to conflict with the United States Supreme Court law on the subject, which indicates that any adverse consequence, however collateral, that the petitioner cares about is sufficient to create a continuing case or controversy under Article III.  This includes such relatively minor matters as the stigma to reputation from a conviction, the fact that the conviction may be used to impeach the petitioner's credibility if s/he is called as a witness in some future proceeding, and the like.  The possibility of § 1326 prosecution on the basis of the challenged conviction is sufficient under the Supreme Court's reasoning to create a case or controversy sufficient to preclude mootness.  See § 6.38, supra.

[58] Spencer v. Kemna, 523 U.S. 1, 7 (1998).

[59] Id. at 8.

[60] See United States v. Verdin, 243 F.3d 1174 (9th Cir. 2001) (federal appeal challenging sentencing guidelines calculations not moot where defendant released from custody but still on supervised release).

[61] For habeas corpus jurisdiction to exist, “custody,” whether in the form of actual physical custody, or constructive custody on probation or parole must exist on the day of filing.  See Sibron v. New York, 392 U.S. 40, 55-56 (1968).  Jurisdiction is not lost if thereafter the petitioner is released from habeas corpus custody.  See Carafas v. LaVallee, 391 U.S. 234, 238 (1968); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975) (“The ‘in-custody’ jurisdictional requirement is determined as of the date the petition is filed in the district court.”); Chong v. Quarantillo, 264 F.3d 378 (3d Cir. 2001).

[62] Spencer v. Kemna, 118 S. Ct. 978, 983 (1998).

[63] Id. at 986.

[64] Chong v. Quarantillo, 264 F.3d 378 (3d Cir. 2001).

[65] See, e.g., United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988) (finding the possibility of deportation to be a serious collateral consequence of a conviction); Chong v. Quarantillo, 264 F.3d 378 (3d Cir. 2001) (“[T]he Board's order of removal creates sufficient collateral consequences to render Chong’s petition a live case or controversy by preventing her from entering the United States for ten years.”)

[66] See Weidersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).  See also Matter of Malone, 11 I&N 730 (BIA 1966).

[67] Chong v. Quarantillo, 264 F.3d 378 (3d Cir. 2001) (3d Cir. 2001)(“[T]he Board’s order of removal creates sufficient collateral consequences to render Chong’s petition a live case or controversy by preventing her from entering the United States for ten years.”)

[68] Tapia-Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir. 2000).

[69] Perez v. Greiner, 296 F.3d 123 (2d Cir. 2002).