(B)  Collateral Immigration Effects Preclude Mootness.  Even after release from physical and constructive custody when parole or probation have terminated, the immigration effects of the conviction remain sufficient collateral consequences to prevent the habeas corpus petition from being moot. [154]

            Where the deportation, which flowed from the criminal conviction, and the conviction itself, trigger continuing inadmissibility, precluding the noncitizen from re-entering the United States, the conviction has the continuing collateral effect of preventing the noncitizen from being about to travel and re-enter the country to obtain immigrant status.[155]  This is sufficient to preclude mootness.

 

            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 INS. 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.[156]

 

Therefore, the post-conviction petition is not moot, since the noncitizen continues to suffer the ongoing effects of inadmissibility.

 

            Counsel will want to consider whether to raise or emphasize the immigration consequences as collateral consequences to prevent a mootness claim, since the immigration courts are concerned about the effectiveness to eliminate immigration consequences of vacaturs granted to avoid immigration consequences.  See Chapter 4, supra.  A conviction typically has many other collateral consequences sufficient to preclude mootness.  See § 5.38(c), infra.

 

[154] 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. District Director, INS, 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.”) ; United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) (habeas action was not mooted by deportation due to possibility of future arrest and imprisonment upon illegal re-entry after deportation); Cuevas-Diaz v. Ashcroft, 37 Fed.Appx. 935 (9th Cir.  2002) (unpublished) (possibility of illegal re-entry prosecution precluded mootness).

[155] Chong v. District Director, INS, 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.”)

[156] Tapia-Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir. 2001).

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).