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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

YVES MICHEL VICTOR, : 

Petitioner :

:

v. : No. 02-CV-04100(MMB)

: 

:

KENNETH J. ELWOOD, :

DISTRICT DIRECTOR, :

INS, :

Respondent :

:

:

GOVERNMENT’S RESPONSE TO PETITION 

 FOR WRIT OF HABEAS CORPUS 

I. INTRODUCTION

This is an alien habeas corpus case. The

petitioner, Yves Michel Victor (“Victor”), is a native and

citizen of Haiti. The immigration file (or “A”) number, A40

135 330, on the face of the petition suggests that Victor

was once a lawful resident alien of the United States.

Victor’s petition alleges that he was convicted of

larceny in New York in 2000. Subsequent to that conviction

he departed the United States. Upon attempting to reenter,

Victor was detained by inspectors of the Immigration &

Naturalization Service (INS) as an alien not “clearly

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1 Subsection 235(b)(2)(A) of the Immigration &

Nationality Act (INA) provides:

(2) Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C), in the

case of an alien who is an applicant for

admission, if the examining immigration

officer determines that an alien seeking

admission is not clearly and beyond a doubt

entitled to be admitted, the alien shall be

detained for a proceeding under section 1229a

of this title.

8 U.S.C. § 1225(b)(2)(A)(West 2000).

2 Prior to the 1996 amendments to the INA, an

alien like Victor would be “deportable”

following convictions if he were in the

United States, but “excludable” if he

departed and was seeking reentry. The 1996

amendments changed that distinction to

“deportable” and “inadmissible,” and

redefined the terms in ways which are not

relevant here. The terms are interchangeable

in the context of detention during removal

proceedings, and the Supreme Court has

reaffirmed (in June 2001) that the

“deportable” alien has a substantive liberty

interest superior to that of the

“excludable/inadmissible” alien. See Patel v.

Zemski, 275 F.3d 299, 309 (3d Cir. 2001)

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entitled” to enter; see 8 U.S.C. § 1225(b)(2).1 This was

because of Victor’s convictions, which are grounds of

inadmissibility. See 8 U.S.C. § 1182(a)(2)(A)(providing that

aliens convicted of “crimes involving moral turpitude” are

inadmissible to the United States). This ground of

inadmissibility applies whether the alien is a first-time

applicant for admission, or a returning permanent resident

like Victor.2

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(acknowledging that in the detention paradigm

“excludable aliens have traditionally been

afforded less constitutional protection than

deportable aliens”). Although the

inadmissible alien’s liberty interest is not

yet precisely defined, Victor’s departure

moots the argument so far as he is concerned.

3 8 U.S.C. § 1225(a)(4) provides that "[a]n

alien applying for admission may, in the

discretion of the Attorney General and at any

time, be permitted to withdraw the

application for admission and depart

immediately from the United States."

4 The facts surrounding Victor’s withdrawal of

his application are taken from the affidavit

of INS Attorney Maureen Gaffney, which

affidavit must be submitted separately by

praecipe under the new electronic filing

system.

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Victor was placed in removal proceedings pursuant

to 8 U.S.C. § 1229a; he was at all times represented by a

lawyer. In a hearing before the Immigration Judge on July

19, 2002, Victor (through counsel) asked to withdraw his

application for admission, and return to Haiti at his own

expense; see 8 U.S.C. § 1225(a)(4).3 The application was

granted. This withdrawal has the effect of obviating a final

order of removal, and is essentially a grant of voluntary

departure. The Immigration Judge granted the application;

Victor departed the United States on August 8, 2002.4

Victor filed the instant habeas petition on June

26, 2002. The petition complains solely of his “mandatory

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detention” under 8 U.S.C. § 1226(c). (Curiously, the filing

is a pro forma “prisoner petition” and was not drafted nor

submitted by his attorney.) Because Victor’s departure

constitutes complete relief for Victor’s petition, there is

no longer a “controversy” and this Court must dismiss it for

lack of subject-matter jurisdiction. 

II. ARGUMENT

Absent a "live" case or controversy, this Court

should dismiss the petition pursuant to Fed.R.Civ.P.

12(b)(1) for lack of subject-matter jurisdiction. See

U.S.Const. Art. 3, § 2, cl. 1; North Carolina v. Rice, 404

U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971); Ruocchio

v. United Transp. Union, Local 60, 181 F.3d 376, 382 n.8 (3d

Cir. 1999). An alien whose petition challenges physical

detention is afforded complete relief when he is deported. 

Article III courts are precluded from ruling on wholly

abstract matters, and there must be a live, ongoing dispute

between the parties at all stages of the litigation. County

of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d

Cir. 2001). Absent a live dispute, the Court can grant no

effective relief, and this power to grant effective relief

is the touchstone of a case or controversy, and thus a

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requisite for jurisdiction under Article III. "If

developments occur during the course of adjudication that

eliminate a plaintiff's personal stake in the outcome of a

suit or prevent a court from being able to grant the

requested relief, the case must be dismissed as moot."

Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d

Cir. 1996)). 

III. CONCLUSION

For the foregoing reasons, the petition should be

dismissed.

Respectfully,

PATRICK L. MEEHAN

United States Attorney 

 

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

________________________________

STEPHEN J. BRITT

Assistant United States Attorney

Dated: August 12, 2002

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Certificate of Service 

I certify hereby that on the 12th day of August, 2002, I personally served

a copy of the attached Government’s Response To Petition for Writ of Habeas Corpus,

addressed to: 

Yves Michel Victor A40 135 330

c/o Kent J. Frederick, District Counsel

USINS

1600 Callowhill Street

Philadelphia PA 19130-4195

by first class mail service upon petitioner. 

__________________________________

STEPHEN J. BRITT

Assistant United States Attorney 

Suite 1250, 615 Chestnut Street

Philadelphia, PA 19106-4476

(215) 861-8443

(215) 861-8642 telecopier

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