2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-24-2008

Kurtishi v. Cicchi

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4595

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Recommended Citation

"Kurtishi v. Cicchi" (2008). 2008 Decisions. Paper 1397.

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ALD-145 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-4595

___________

MUSHTEBA KURTISHI,

 Appellant

 v.

EDMOND CICCHI, Warden, Middlesex County Jail;

CHRISTOPHER SHANAHAN, New York City Field Office

Director, Department of Homeland Security,

Immigration and Customs Enforcement;

DEPARTMENT OF HOMELAND SECURITY;

IMMIGRATION & CUSTOMS ENFORCEMENT

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 07-cv-05169)

District Judge: Honorable Freda L. Wolfson

____________________________________

Submitted for Summary Action Pursuant to

Third Circuit LAR 27.4 and I.O.P. 10.6

February 28, 2008

Before: SLOVITER, FISHER and HARDIMAN, CIRCUIT JUDGES.

(Filed: March 24, 2008)

_________

OPINION

_________
Although Edmond Cicchi, warden of the Middlesex County Jail, was named as a 1

party in Kurtishi’s amended habeas petition, it appears from the District Court docket that

he did not participate in the proceedings before that court. In any event, for the reasons

explained below, any claims with respect to Cicchi’s detention of Kurtishi are moot.

The final hearing in Kurtishi’s deportation proceedings apparently took place in 2

New York.

2

PER CURIAM

Appellant Mushteba Kurtishi appeals from the District Court’s order denying his

petition for a writ of habeas corpus. Appellees Christopher Shanahan, Department of

Homeland Security, and Immigration and Customs Enforcement have moved for a

summary affirmance of the District Court’s order entered on November 29, 2007. For 1

the reasons discussed below, we will grant the Appellees’ motion to the extent Kurtishi

seeks to appeal the District Court’s denial of his challenge to the order of removal for

lack of jurisdiction. To the extent Kurtishi seeks to appeal the District Court’s rejection

of his petition for relief under 28 U.S.C. § 2241, we will dismiss the appeal as moot.

In 1997, Kurtishi was ordered removed from the United States to Macedonia after

an immigration judge denied his application for asylum and withholding of deportation. 

Kurtishi filed an unsuccessful appeal to the Board of Immigration Appeals, as well as

three subsequent unsuccessful motions to reopen his asylum proceedings. Kurtishi also

filed a petition for review with the United States Court of Appeals for the Second

Circuit, which denied it on February 15, 2006. Kurtishi was then taken into custody by 2
3

the Department of Homeland Security and Immigration and Customs Enforcement and

held at Middlesex County Jail in New Jersey.

While he was in custody, Kurtishi filed a petition for writ of habeas corpus. After

filing that petition, Kurtishi was deported. A few hours before this deportation, Kurtishi

filed an emergency motion for a temporary restraining order with the District Court. 

After a teleconference, the District Court granted a temporary restraining order enjoining

Kurtishi’s removal based on the exigent circumstances created by Kurtishi’s eleventh

hour application. At that time, the District Court did not make any findings regarding

Kurtishi’s right to relief. Apparently, Kurtishi was deported during the teleconference,

before the order granting a temporary restraining order was entered. Accordingly, the

District Court modified its order to state that Kurtishi should be returned to the United

States and held in custody until further order of the District Court. The District Court

also granted Kurtishi permission to file an amended habeas petition.

Kurtishi subsequently filed an amended habeas petition conceding that the REAL

ID Act divested federal district courts of jurisdiction to review final orders of deportation,

but nonetheless seeking to challenge his “continued restraint by DHS-ICE” under 28

U.S.C. § 2241. Kurtishi also argued that his enforced departure from the United States

was unlawful “as the DHS-ICE continued the process of removing him even after a

federal judge had granted his request for a temporary restraining order.” Appellees filed a

response opposing the amended habeas petition.
4

The District Court issued an opinion and order denying both the original and

amended habeas petitions and vacating its prior temporary restraining order as

improvidently granted. The District Court reasoned that its prior temporary restraining

order had been improvidently granted because it lacked jurisdiction under the Real ID

Act, Publ. L. 109-13m 119 Stat. 231, to review the order of removal that had been entered

against petitioner. The District Court also observed that the United States Court of

Appeals for the Second Circuit had already reviewed a petition for review from Kurtishi. 

However, the District Court went on to conclude that it did have jurisdiction to entertain

Kurtishi’s challenge to the legality of his detention under § 2241. The District Court

stated that it had jurisdiction to hear this challenge even though Kurtishi had already been

deported because Kurtishi’s original habeas petition was filed when he was still in

custody. The District Court further concluded the petition was not moot because the

court’s prior order directed that Kurtishi be returned to the United States pending the

resolution of his amended petition.

The District Court then rejected Kurtishi’s challenge to his deportation on the

merits because Kurtishi had provided no rationale for his argument that his five-week

detention was unlawful. The District Court further reasoned that his enforced departure

was lawful because, inter alia, DHS had no knowledge the TRO was granted until after

the plane had left the gate. The District Court also explained that because the TRO had

now been vacated as improvidently granted, it could no longer serve as a basis for an
No transfer of Kurtishi’s habeas petition was necessary given that the Second 3

Circuit had already ruled on a petition for review from Kurtishi.

5

argument that Kurtishi had been unlawfully detained. Moreover, the District Court

rejected Kurtishi’s petition to the extent he sought to rely on 8 U.S.C. § 1231(a),

concluding that a five-week detention was presumptively reasonable under Zadvydas v.

Davis, 533 U.S. 678 (2001). Kurtishi timely appealed and, as noted above, the Appellees

seek summary affirmance of the District Court’s order. Kurtishi has not filed a response

to the Appellees’ motion for summary affirmance.

For substantially the reasons stated by the District Court, we agree that the District

Court was without jurisdiction to consider Kurtishi’s challenge to his order of removal

and will summarily affirm this part of the District court’s order. See Bonhomretre v.

Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005) (Real ID Act effectively limits “all aliens

to one bite of the apple with regard to challenging an order of removal”).3

To the extent Kurtishi seeks to appeal the District Court’s rejection of his

challenge to the legality of his five-week detention under 28 U.S.C. § 2241, we will

dismiss the appeal as moot. Regardless of whether an Article III, § 2 case or controversy

continued to exist during the District Court proceedings, Kurtishi must show the

subsistence of a case or controversy in this Court. Chong v. District Director, I.N.S., 264

F.3d 378, 383 (3d Cir. 2001). Kurtishi cannot make this showing. In view of Kurtishi’s

deportation, there are no remaining collateral consequences that may be redressed by
6

success on Kurtishi’s challenge under § 2241 to his “continued restraint by DHS-ICE.” 

See Abdala v. Immigration and Naturalization Service, 488 F.3d 1061, 1065 (9th Cir.

2007) (petition complaining of the length of detention at an INS facility mooted by

petitioner’s subsequent deportation six weeks later). Further, to the extent Kurtishi

attempts to premise a request for relief on the fact that he was allegedly deported after the

District Court granted his request for a temporary restraining order, such a claim is moot

given that the District Court vacated the order in question as improvidently granted.

For these reasons, we will grant the Appellees’ motion for summary affirmance in

part, and dismiss Kurtishi’s challenge under § 2241 to his detention and deportation as

moot.