Bankhole v. Immigration and Naturalization Service, 3:02-CV-00702 (EBB) (D. Conn. 8/9/2002), 3:02-CV-00702 (EBB).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Connecticut)
Writing for the CourtEllen Bree Burns
PartiesPRECIOUS BANKHOLE, Petitioner, v. IMMIGRATION and NATURALIZATION SERVICE, Respondent.
Docket Number3:02-CV-00702 (EBB).
Decision Date09 August 2002

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PRECIOUS BANKHOLE, Petitioner,
v.
IMMIGRATION and NATURALIZATION SERVICE, Respondent.
3:02-CV-00702 (EBB).
United States District Court, D. Connecticut.
August 9, 2002.
RULING ON PETITION FOR HABEAS CORPUS

ELLEN BREE BURNS, Senior District Judge.


Petitioner is a native and citizen of Nigeria. She was admitted to the United States in 1972 as the spouse of a non-immigrant student and her status was adjusted to that of lawful permanent resident in 1984. On June 6, 1996, Petitioner was convicted in the United States District Court for the Eastern District of Virginia of: (1) conspiracy to commit money laundering; (2) perjury; and (3) obstruction of justice. She was sentenced to 63 months in prison. Her conviction was affirmed by the Court of Appeals for the Fourth Circuit.

As a result of these convictions, Respondent instituted removal proceedings against Petitioner. She conceded her removability and sought asylum, cancellation of removal under the Immigration and Nationality Act ("INA"), § 240(A), family hardship relief, withholding of removal under INA § 241(B)(3), and withholding of removal under the Convention Against Torture.1

The Immigration Judge found that she was not eligible to remain in the United States on any ground and his decision was upheld by the Board of Immigration Appeals on April 30, 2002.

Petitioner's initial reason for nonremovability is that her mandatory detention pursuant to INA § 236(c), 8 U.S.C. § 1226(c), violates her Fifth Amendment rights. The claim has been mooted because Petitioner has a final order of removal against her by virtue of the Board's April 30, 2002 order. Accordingly, her detention is governed by 8 U.S.C. § 1231(a), INA § 241(a).

The Board has determined that mandatory detention of criminal aliens prior to an administratively final decision is governed by 8 U.S.C. § 1226(c) whereas detention of aliens after a final order is governed by 8 U.S.C. § 1231(a). Matter of Joseph, Int. Dec. 3387, 1999 WL 271357 (BIA 1999) (en banc). Accord Zadvydas v. Davis, 122 S.Ct. 2491 (2001).

Because she now has a final order of removal, Petitioner no longer is being detained under the statute she seeks to have declared unconstitutional. "[T]he hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Martin-Trigona v. Schiff, 702 F.2d 380, 386 (2d Cir. 1983). Accordingly, there is no longer a case or controversy before this Court on the detention issue, as the relief she...

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