                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-2214
                                     _____________

                         GABRIEL MALDONADO VASQUEZ,
                                                  Appellant

                                             v.

     OSCAR AVILES, Director of Corrections, Hudson County Correctional Center;
      CHRISTOPHER SHANAHAN, Field Office Director, New York Office - ICE;
    SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
            ATTORNEY GENERAL UNITED STATES OF AMERICA

                      _____________________________________


                     On Appeal from the United States District Court
                              for the District of New Jersey
                           (District Court No. 2-15-cv-02341)
                       District Judge: Honorable Claire C. Cecchi

                      _____________________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                on November 12, 2015

             Before: CHAGARES, RENDELL and BARRY, Circuit Judges.


                                (Filed: February 24, 2016)
                                      ____________

                                      O P I N I O N*
                                      ____________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge:

       Gabriel Maldonado Vasquez appeals the District Court’s dismissal of his 28

U.S.C. § 2241 habeas corpus petition and its denial of his civil contempt motion. Because

we discern no reversible errors in these rulings, we will affirm the District Court.

I.     BACKGROUND

       Vasquez was born in Guatemala and is a citizen of that country. In 1993, at the

age of six, he immigrated to the United States. In 2005, he pled guilty to two

misdemeanor offenses—reckless endangerment and theft—and the next year he pled

guilty to resisting arrest. Then, in 2007, an immigration judge ordered him to be removed

and deported to Guatemala. Soon thereafter, he pled guilty to possession of marijuana.

Years later, in 2015, U.S. Immigration and Customs Enforcement (“ICE”) agents arrested

him and held him in custody pending his removal.

       While detained by ICE, Vasquez claimed that he should not be removed because

he was eligible for the Deferred Action for Childhood Arrivals (“DACA”) program,

which allows certain undocumented immigrants to temporarily stay in the country. These

immigrants can be considered for the program even if they are “already in removal

proceedings or subject to a final order of removal.” (App. 118.) To be eligible for

DACA, an individual must satisfy several requirements, one of which mandates that the

individual cannot have “been convicted of . . . a significant misdemeanor offense [or]

multiple misdemeanor offenses.” (App. 117.) Significantly, the decision to grant relief

under the program is an “exercise of prosecutorial discretion.” (App. 118.)


                                              2
       To apply for DACA, an individual usually submits an application to U.S.

Citizenship and Immigration Services. But that process is unavailable to individuals who

are currently “in immigration detention.” (App. 299.) Instead, they must contact their

“deportation officer, the relevant ‘Jail Liaison,’ [or] the ICE Field Office Director.” (Id.)

       On April 2, 2015, Vasquez’s counsel was informed by “Deportation Officer

Carey” that Vasquez was “ineligible for DACA due to his misdemeanor convictions.”

(App. 14.) That same day, Vasquez filed a § 2241 habeas petition in the District of New

Jersey. He claimed that his detention violated his due process rights because he was

eligible for DACA relief, and because he was being detained contrary to certain federal

regulations. He also claimed that his detention violated 8 U.S.C. § 1231, which limits

how long one can be detained after a removal order is issued.

       The next day, Christopher Shanahan, an ICE field office director, denied an I-246

application for stay of removal that Vasquez had filed soon after he was detained by ICE.

In that application, Vasquez had asserted, among other things, that he deserved a stay of

removal because he was eligible for DACA. Shanahan rejected the application, finding

“no compelling reason to warrant a favorable exercise of [his] discretion.” (App. 115.)

       Several days later, on April 7, Vasquez filed an emergency motion to stay his

removal. The next day, a judge granted the motion and ordered a temporary stay. But

that order came too late: Vasquez had been deported to Guatemala three hours before it

was issued. Vasquez subsequently filed a motion to hold the appellees in civil contempt,

claiming they had purposefully violated the stay order by deporting him.



                                              3
       On April 24, 2015, the District Court concluded that it lacked subject matter

jurisdiction over Vasquez’s habeas petition because it was grounded in his 2007 removal

order and therefore was not reviewable by a district court. It also held that, given

Vasquez’s removal from the United States, his petition was moot to the extent that it

challenged the legality and length of his detention. Lastly, it denied his contempt motion,

concluding that the appellees could not have violated the stay order because they had

removed Vasquez three hours before the order was issued.

II.    DISCUSSION

       A.     Lack of Subject Matter Jurisdiction1

       Under the REAL ID Act, a district court lacks jurisdiction to consider a § 2241

habeas petition if that petition seeks “judicial review of an order of removal.” 8 U.S.C.

§ 1252(a)(5). A petitioner may request review of such an order only “with an appropriate

court of appeals.” Id. Relying on § 1252(a)(5), the District Court held that it lacked

jurisdiction because Vasquez’s petition was “grounded in” his January 2007 removal

order. (App. 7.) We will affirm the District Court, albeit on a different ground.

       Vasquez argues that the District Court erred because his § 2241 habeas petition

pertained “to his relief from removal, not the removal order itself.” (Vasquez’s Br. 17.)

In effect, he contends that he was challenging not his removal order but the government’s

subsequent failure to grant him discretionary relief under DACA. For support, he draws

on Nnadika v. Attorney General of United States, 484 F.3d 626 (3d Cir. 2007), a case in


1
 We review a district court’s dismissal for lack of subject matter jurisdiction de novo.
Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
                                             4
which an individual subject to an order of removal filed a § 2241 petition challenging the

denial of his application for asylum relief. We held that the district court had jurisdiction

to consider his petition because the petition did not “directly implicate the order of

removal,” as it “point[ed] to no legal error in the final order of removal.” Id. at 632–33.

       But even if we credit Vasquez’s argument, we must still conclude that the District

Court lacked jurisdiction over his § 2241 petition insofar as it pertained to his claim that

he was entitled to relief under DACA. Under 8 U.S.C. § 1252(g), titled “Exclusive

jurisdiction,” “notwithstanding . . . section 2241 of Title 28 . . . no court shall have

jurisdiction to hear any cause or claim by . . . any alien arising from the decision or action

by the Attorney General to commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.” This provision deprives all courts of

jurisdiction to review a denial of DACA relief because that decision involves the exercise

of prosecutorial discretion not to grant a deferred action. See Reno v. American-Arab

Anti-Discrimination Comm., 525 U.S. 471, 485 (1999) (“Section 1252(g) seems clearly

designed to give some measure of protection to ‘no deferred action’ decisions and similar

discretionary determinations . . . .”). The District Court therefore lacked jurisdiction to

consider Vasquez’s challenge to his denial of DACA relief.

       B.     Mootness of Habeas Petition2

       The District Court also held that Vasquez’s arguments in his § 2241 petition as to

the legality and length of his detention itself became moot upon his removal. On appeal,


2
 We review a district court’s dismissal for mootness de novo. See Ne. Women’s Ctr.,
Inc. v. McMonagle, 939 F.2d 57, 61 (3d Cir. 1991).
                                               5
Vasquez argues that his petition did not become moot upon his removal because (1) he

was in custody when he filed it; and (2) he has suffered a collateral consequence from his

removal. Neither argument has merit.

       Under § 2241(c), habeas corpus relief “shall not extend to a prisoner unless [h]e is

in custody.” However, “what matters for the ‘in custody’ requirement is whether the

petitioner was in custody at the time his habeas petition was filed.” Kumarasamy v.

Attorney Gen. of U.S., 453 F.3d 169, 173 n.7 (3d Cir. 2006). Accordingly, “[a]s long as

the petitioner was in custody when he filed his petition, a subsequent release from

custody (e.g. a subsequent removal) will not divest the court of jurisdiction.” Id.

       Vasquez thus contends that “the fact that [he] has been removed does not moot his

petition, since he was in custody when it was filed.” (Vasquez’s Br. 20–21.) But the

District Court never held that Vasquez’s removal caused his petition to become moot

because it no longer satisfied § 2241’s “in custody” requirement. Rather, it correctly held

that his petition was moot insofar as it challenged the legality and length of his detention,

for upon his removal his petition no longer presented a justiciable case or controversy.

       “Under Article III, § 2 of the United States Constitution, the exercise of judicial

power depends upon the existence of a case or controversy.” Chong v. Dist. Dir., I.N.S.,

264 F.3d 378, 383 (3d Cir. 2001). For a case or controversy to exist, a petitioner,

throughout each stage of the litigation, “must have suffered, or be threatened with, an

actual injury traceable to the defendant and likely to be redressed by a favorable judicial

decision.” DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005) (citation omitted).

As a result, “a petition for habeas corpus relief generally becomes moot when a prisoner

                                              6
is released from custody before the court has addressed the merits of the petition.” Id.

       Nevertheless, a habeas petitioner may obtain judicial review of the petition by

showing that “secondary or ‘collateral injuries’ survive after resolution of the primary

injury.” Chong, 264 F.3d at 384. Vasquez thus argues that his petition is not moot

because he has endured a collateral consequence from his removal. Under 8 U.S.C.

§ 1182(a)(9)(A)(ii), an alien “who has been ordered removed . . . and who seeks

admission within 10 years of the date of such alien’s departure or removal . . . is

inadmissible.” Given this ten-year bar to his reentry, Vasquez contends that his removal

has caused him to suffer “a sufficient collateral consequence.” (Vasquez’s Br. 22.)

       We disagree. The only argument that Vasquez makes in his § 2241 petition that

could implicate his alleged collateral consequence is that he is entitled to relief under

DACA. That is, if a court agreed with him that the failure to grant him DACA relief was

error, he could remain in the United States and avoid § 1182’s ten-year bar to reentry.

Yet, as discussed above, no court has jurisdiction to review that decision. See 8 U.S.C.

§ 1252(g). Vasquez’s alleged collateral consequence is therefore incapable of being

redressed by any court and cannot save his petition from mootness. See Abdala v. I.N.S.,

488 F.3d 1061, 1064 (3d Cir. 2007) (“For a habeas petition to continue to present a live

controversy after the petitioner’s release or deportation, . . . there must be some

remaining ‘collateral consequence’ that may be redressed by success on the petition.”).

       C.     Civil Contempt3


3
 We review a district court’s denial of a contempt motion for abuse of discretion. See
Robin Woods Inc. v. Woods, 23 F.3d 396, 399 (3d Cir. 1994).
                                              7
       Lastly, Vasquez argues that the District Court erred when it denied the civil

contempt motion that he filed against the appellees. Specifically, he contends that they

should have been held in contempt because they removed him despite the Court’s order

temporarily staying his removal. But, as the District Court explained, the temporary stay

of removal was not issued until several hours after ICE had removed him. The District

Court therefore did not abuse its discretion in denying his motion. See Roe v. Operations

Rescue, 919 F.2d 857, 871 (3d Cir. 1990) (“[T]o show civil contempt, a plaintiff must

establish the following: ‘(1) that a valid court order existed; (2) that the defendants had

knowledge of the order; and (3) that the defendants disobeyed the order.’”).

III.   CONCLUSION

       For the foregoing reasons, we will affirm the rulings of the District Court.




                                              8
