Post-Conviction Relief for Immigrants

(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.