                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2005

Wang v. Cicci
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2851




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Recommended Citation
"Wang v. Cicci" (2005). 2005 Decisions. Paper 1311.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1311


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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 04-2851


                   YU QING WANG,
                         Appellant

                            v.

   EDMUND CICCI, Deputy Warden, Middlesex County,
                  Adult Correction Center;
  DAVID VENTURELLA, Director, Post-Order Detention
  Unit, Bureau of Immigration and Customs Enforcement;
    ANDREA J. QUARANTILLO, District Director, US
           Citizenship and Immigration Services;
 JOHN ASHCROFT, Attorney General of the United States


       Appeal from the United States District Court
                for the District of New Jersey
                (D.C. Civil No. 04-cv-01163)
      District Judge: Honorable Katherine S. Hayden


       Submitted Under Third Circuit LAR 34.1(a)
                   March 10, 2005

Before: NYGAARD, McKEE and RENDELL, Circuit Judges.

                (Filed:   April 26, 2005)


               OPINION OF THE COURT
RENDELL, Circuit Judge.

                           I. Factual and Procedural Background

       As we write only for the parties, we include only such factual and procedural

events as are necessary to our decision. Appellant, Yu Qing Wang, a permanent resident

alien from China, pled guilty in July 1990 to a violation of 18 U.S.C. §§ 371 and 1324

(a)(1)(B), conspiracy to transport or move aliens within the United States, knowing that

these aliens entered the country in violation of law. In 1996, Wang was detained on

return from a trip to China and placed into deportation proceedings. Wang failed to

appear at his deportation hearing and was ordered deported to China in absentia in 1997.

In March 1997, Wang filed a motion to reopen with the Immigration Judge (IJ), which

was denied. Wang then filed a motion to reconsider the Immigration Judge’s decision,

but this was also denied. Wang did not appeal either of these denials to the Board of

Immigration Appeals (BIA).

       After the passage of almost six years, in November 2003, Wang filed a second

motion to reopen with the IJ, alleging ineffective assistance of counsel, which was

denied. He appealed this denial to the BIA and the BIA affirmed the denial.

       In March 2004, while in detention, Wang filed a petition for Habeas Corpus relief.

The District Court dismissed this petition, on the grounds that it was moot because he had

been released and, therefore, no longer fulfilled the “in custody” jurisdictional

requirement for habeas under 28 U.S.C. § 2241.



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       Wang now appeals to this Court and argues that his claim of unlawful detention is

not moot despite his release from prison and that the District Court erred by failing to

consider his deportation challenge based on the retroactivity of the Illegal Immigrant

Reform and Immigrant Responsibility Act (IRRIRA) and the Antiterrorism and Effective

Death Penalty Act (AEDPA). We will affirm the order of the District Court.

                          II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2241. We

have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

       “In reviewing a federal habeas judgment, we exercise plenary review over the

district court's legal conclusions and apply a clearly erroneous standard to its findings of

fact.” Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002) (citations omitted).

                                       III. Discussion

       The District Court held that Wang’s petition for habeas relief was moot because he

was no longer in custody, as required by 28 U.S.C. § 2241, having viewed his petition as

objecting only to custody, not his deportation. However, we believe the “in custody”

requirement of § 2241 exists where, as here, burdensome collateral consequences

continue to flow from Appellant’s conviction, and his petition can be read to complain of

one such consequence, namely his deportation. See United States v. Romero-Vilca, 850

F.2d 177, 179 (3d Cir. 1988) (holding that prisoner’s motion to vacate his conviction was

not mooted when he was released from custody, where he faced potential deportation as a



                                              3
collateral consequence of his conviction). In this case, Wang faces deportation if his

habeas petition is rejected and, therefore, the petition is not moot.

       Although the District Court incorrectly concluded the case was moot, it was still

without power to grant Wang the relief he seeks because of Wang’s failure to timely

appeal the 1997 denials of his motions to reopen and reconsider the IJ’s deportation order

to the BIA. Thus, Wang failed to exhaust his administrative remedies before the BIA on

the underlying issue of deportation and his appeal of the denial of his second motion to

reopen does not revive this issue. Accordingly, the District Court is now without

jurisdiction to review the deportation order. We will, therefore, affirm the order of the

District Court.




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