(D)  No Mootness After Deportation.  A habeas petition is not “moot” even if the deportation or removal has actually been effectuated and the petitioner is no longer in the United States, so long as the petition was filed prior to the execution of the removal order and there exist “collateral consequences arising from the deportation that create concrete legal disadvantages.”[158]  A few decisions have found mootness where the noncitizen was inadmissible on grounds other than the criminal conviction at issue, reasoning that the conviction therefore did not trigger any additional damage beyond the damage already triggered by other events, and the court was thus unable, by vacating the conviction, to relieve the petitioner from inadmissibility.[159]

 

            These decisions are erroneous, and conflict with United States Supreme Court decisions holding that virtually any continuing adverse consequence of a criminal conviction — even apart from the immigration consequences — is sufficient to create a case and controversy under Article III and preclude a finding of mootness. [160] 

 

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).[161]

 

The noncitizen can attempt to establish that one or more of these exceptions exists, to avert a finding of mootness.

 

            The law in some states, such as California, is even stronger, holding that even if the case is moot, that does not foreclose the court from acting on a habeas petition.[162]

[158] Zegarra-Gomez v. INS, 314 F.3d 1124 (9th Cir. 2003) (deportation after habeas corpus petition has been filed did not render petition moot, where collateral consequences arising from the deportation, such as fact that noncitizen would be ineligible to seek to return to the United States for period of 20 years, created concrete legal disadvantages); Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002) (noncitizen would still be affected by court’s decision even after deportation, and, if he prevailed, might be able to restore his immigration status); Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) (deportation did not render habeas petition moot, since noncitizen’s inadmissibility remained a collateral consequence of his deportation); Leitao v. Reno, 311 F.3d 453 (1st Cir. 2002) (inadmissibility of a removed noncitizen is a legally cognizable collateral consequence that preserves a live controversy even after deportation); Chong v. District Director, INS, 264 F.3d 378, 385-386 (3d Cir. 2001); Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (inadmissibility for 10 years under 8 U.S.C. § 1182(a)(9)(A)(ii)(2000) is a sufficient collateral consequence to preserve a live controversy even after deportation has occurred).

[159] Perez v. Greiner, 296 F.3d 123 (2d Cir. 2002) (finding mootness where defendant otherwise inadmissible due to a second drug conviction, and rejecting possibility of a future prosecution for illegal re-entry after deportation under 18 U.S.C. § 1326 as a sufficient basis to preclude mootness); Wilcox v. Aleman, 43 Fed.Appx. 210 (10th Cir. 2002) (unpublished) (finding mootness due to inadmissibility resulting from other crimes of moral turpitude).

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

[161] Chong v. District Director, INS, 264 F.3d 378 (3d Cir. 2001).

[162] Appeals And Writs In Criminal Cases § 2.96 (2d ed. 2000).

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).