(A)  Custody and Mootness.  Whenever the defendant is in physical custody or in constructive custody on probation or supervised release, the habeas corpus petition is not considered moot because both direct and indirect collateral effects of the conviction remain.[150]  If the petitioner has been released from constructive custody after the filing of the post-conviction petition,[151] the action is not rendered moot merely because the “‘in custody’ requirement” of the habeas statute is no longer satisfied.[152]  The relevant inquiry is whether the petitioner can demonstrate “collateral consequences adequate to meet Article III’s injury-in-fact requirement.”[153] 

[150] 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).

[151] 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.

[152] Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 983 (1998).

[153] Id. at 986.

Second Circuit

JUDICIAL REVIEW - FEDERAL - HABEAS - MOOTNESS - REMOVAL DID NOT RENDER MOOT HABEAS ACTION CHALLENGING REMOVAL ORDER ON BASIS THAT CONVICTION DID NOT CONSTITUTE AN AGGRAVATED FELONY
Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (removal of respondent did not render moot a federal habeas action under 28 U.S.C. 2241 challenging validity of removal order on basis of aggravated felony, since he can show some 'collateral consequence' ... meaning 'some concrete and continuing injury other than the now-ended [threat of removal]' to establish a live case or controversy; noncitizen convicted of a crime of moral turpitude may seek cancellation of removal and thereby avoid permanent inadmissibility, only if he is not an aggravated felon; fact that noncitizen removed as aggravated felon causes ongoing damage sufficient to create case and controversy).

POST CON RELIEF - HABEAS CORPUS - MOOTNESS - DEPORTED AGGGRAVATED FELON PRESENTS LIVE CONTROVERSY
Swaby v. Ashcroft, 357 F.3d 156 (2nd Cir. Feb. 3, 2004) (lifetime bar from reentrying the United States due to aggravated felony conviction is collateral consequences which creates live controversy).

Lower Courts of Second Circuit

POST CON RELIEF - HABEAS - MOOTNESS AFTER DEPORTATION - DISQUALIFICATION FROM NATURALIZATION CONSTITUTES CONTINUING DAMAGE SUFFICIENT TO PREVENT MOOTNESS EVEN AFTER DEPORTATION
State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a bar to the defendant's present appeal from denial of a motion to withdraw the plea).

Lower Courts of Third Circuit

POST CONVICTION RELIEF - HABEAS - IMMIGRATION - DEPORTATION DOES NOT MOOT HABEAS
The fact that a noncitizen has been deported does not moot his habeas petition. His future ineligibility for readmission to the United States preserves his Article III standing. See Shittu v. Elwood, 204 F. Supp. 2d 876, 878 (E.D. Pa. 2002); Johnson v. Department of Justice, (Not Reported in F.Supp.2d), 2004 WL 1240695 (E.D. Pa. June 3, 2004).

Fifth Circuit

VEHICLE - FEDERAL - HABEAS - MOOTNESS
Zalawadia v. Ashcroft, 371 F.3d 292 (5th Cir. June 4, 2004) (removal of noncitizen while appeal of district court dismissal of habeas petition was pending in court of appeal did not deprive district court of habeas jurisdiction on remand, and case was not moot, but district court lacked authority to grant any relief beyond vacating defective deportation order).