Terrado v. Moyer

• Decision Date: 12 June 1987
• Docket Number: No. 86-2524,86-2524
• Citation: 820 F.2d 920
• Parties: Belinda TERRADO, Petitioner-Appellant, v. A.D. MOYER, District Director, Immigration and Naturalization Service, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 920

820 F.2d 920

Belinda TERRADO, Petitioner-Appellant, v. A.D. MOYER, District Director, Immigration and Naturalization Service, Respondent-Appellee.

No. 86-2524.

United States Court of Appeals Seventh Circuit.

Submitted May 27, 1987.

Decided June 12, 1987.

Stanley J. Horn, Horn, Randall & Assoc., Ltd., Chicago, Ill., for petitioner-appellant.

Anton R. Valukas, U.S. Atty., Joseph H. Hartzler, Jack Penca, Asst. U.S. Attys., Chicago, Ill., for respondent-appellee.

Before BAUER, Chief Judge, and WOOD and EASTERBROOK, Circuit Judges.

PER CURIAM.

Belinda Terrado, unlawfully in the United States, was ordered to leave. She neither sought judicial review of the order of deportation nor took advantage of the privilege of voluntary departure. A warrant was issued for her deportation. On May 29, 1986, she surrendered and filed both a request to reopen the proceedings and an application for an administrative stay pending reopening under the terms of 8 C.F.R. Sec. 243.4. This regulation provides both (a) that if officials deny the request they shall give "specific reasons", and (b) that "neither the making of the request nor the failure to receive notice of disposition of the request shall relieve the alien from strict compliance with any outstanding notice to surrender for deportation". On May 30 the district director of the Immigration and Naturalization Service informed Terrado's attorney that the application would be denied. She was deported the same day.

Terrado's attorney, apparently unaware that his client was no longer in the country, filed on June 2 a petition for a writ of habeas corpus under 8 U.S.C. Sec. 1105a(a)(9), which states that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." See also Bothyo v. Moyer, 772 F.2d 353 (7th Cir.1985). The petition maintained that Terrado was entitled to stay in the United States until she received the "specific reasons" required by the regulation--reasons that were not forthcoming until June 12. When counsel discovered that Terrado was gone, he asked that she be returned to the United States so that she could contest the process that led to her deportation in advance of the statement of reasons.

His problem is that the district court never acquired jurisdiction. On June 2 district director Moyer, the respondent, did not have custody of Terrado. Custody is an essential ingredient of a case under Sec. 1105a(a)(9). See Umanzor v. Lambert, 782 F.2d 1299 (5th Cir.1986); United States ex rel. Marcello v. District Director, 634 F.2d 964, 969 (5th Cir.1981). This did not faze the district judge, who recognized that he lacked jurisdiction but decided the case anyway, holding that the INS need not defer deportation while writing up the reasons for denying the application for a stay. The court explained its decision to decide the merits this way:

At the outset the court notes that the pleading before it seeks only Terrado's release from the custody of the INS and cancellation of her deportation order. Terrado's deportation renders both of these issues moot.

Because the government has failed to raise the question of mootness, however, and because both parties have briefed the merits of Terrado's request for an order returning her to the United States, the court likewise addresses the merits of that request.

642 F.Supp. 1136, 1137 (N.D.Ill.1986). Yet the parties' failure to address a jurisdictional problem--a performance the government repeated on appeal despite its obligation to assist the court in ascertaining its jurisdiction, see Azeez v. Fairman, 795 F.2d 1296, 1297 (7th Cir.1986)--hardly allows a court to decide the merits.

Both the statute and the Constitution interpose obstacles. The statute because Sec. 1105a(a)(9) limits the district court's power to an alien "held in custody pursuant to an order of deportation". By the time Terrado filed this case, she was no longer "held in custody pursuant to an order of deportation". The Constitution because there must be a "case or controversy" within the meaning of Article III. This case was never alive. A moot case must be dismissed. If a district judge nonetheless enters a judgment, the appellate court must vacate it. E.g., Department of the Treasury v. Galioto, --- U.S. ----, 106 S.Ct. 2683, 91 L.Ed.2d 459 (1986); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); United States v. 203 Paper Bags, 818 F.2d 569 (7th Cir.1987).

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