2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 10-6-2004 

# Gop aul v . D i s t D ir B C IS P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4158

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

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w . v i l l a no va . e du/thir dc ir c uit_2004/2481



### NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT
No. 03-4158
DIARAM G OPAUL, Appellant

v. EDWARD MCELR OY, District Direct or, Bureau of Cit

izenshi p & Imm igrati on Services , New Y ork Di str ict ; EDUARD O AGUIRRE, Acting Direct or, Burea u of Citizenship & Immigration Services; TOM RIDGE, Secr

etary U.S. Depar

tment of Homeland Security

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 03-cv-02970 ) District Judge: Honorable Herbert J. Hutton

Submitted un der L.A.R. 4 3.1 Septem ber 23, 2004 Before: McKee , Aldisert and Greenberg , Circuit Judges
. (Filed: October 6, 2004)2 

### OPINION OF THE COURT
ALDISE RT, Circuit

Judge
. This is an appeal fr om the judgment of t he District Court

for the Eas tern Dis tri ct of Pen nsylv ania den ying D iaram Go pau l’s ha bea s pe tition filed pur sua nt to 28 U .S.C . § 2241. Gopaul, a nati ve and citizen of the Republic of Guy ana, contends that the dis tri ct court er red: ( 1) in determining t hat he was not e ntitled to a bond hearing or

relea se from custodybecause hi s ninety dayremoval period has not yet expired and detention of an alie n during t

hat st atutor

y period is mandated by law; (2) in deci ding that request for adjudic ation of

his I- 486 and I-601 appl ications was moot; and (3) hol ding that he was not den ie d ef

fec ti ve a ss is ta nce of c oun se l. We af fi rm. Because we write onl y for the part ies who are fami liar

with the f

acts and t

he proceedi ngs in the dist

rict court, we will dis cuss only the le gal is sues pres ented. I. In de nying the petition for the writ, the cour t expla ined: The writ of habeas corpus i s dismi ssed becaus e Gopaul’s 90 dayremoval period has not yet expired and detention of an alien du ring the statutory perio d i s ma nda te d byla w. Th e Bureau of I mmig ra ti on a nd Cu st oms Enf orcem ent (B ICE ) has sta tutory pow er un der 8 US C § 123 1 (20 03) to de ta in al ie ns who ha ve be en or de re d r emo ve d. Sec ti on 1 231 (a )( 1) (A) requires a 90 day“removal period,” allot ting t he BICE 90 days t o remove the al ien from the United States. Section 1231( a)(2) requires the Attorney General t o detai n the al ien duri ng the removalperiod. The Immigrati on Judge iss ued a removal or der for Gopaul on November 5,3

1996. The removal period for petit ioner began on April 30, 2003, when Gopaul enter ed BICE custody . This c ourt enj oined the government fr om removing Gopaul on May 12, 2003. The removal period i s tol led as of t hat date becaus e of the i njuncti on on removal. Thus, a t otal of only 13 days of the remo val period h ave passe d, leaving 77 days during w hich G opaul’s detention is mandated by stat ute unle ss the removal order its elf i s reopened and defeated. Because Gopaul’s de tenti on is entirel y l egal, his petiti on for Writ of Habeas Corpus i s dismi ssed. App at 2. We agree with the court’ s analy sis which i s appli cable t o the reque st for adjud ication of G opau l’s I-485 and I -601 applic ations, a nd als o to the denia l of his
re qu es t fo r a bo nd he ar in g o r re lea se fr om cu sto dy. II. It is we ll establish ed tha t Article III cou rts are p reclud ed fro m ru ling on wh olly abstr act matters; there must be a li ve, ongoi ng disput e between the parti es at al l st ages of the li tigat ion
. County of Morri s v. Nati onalis t Movement , 273 F.3d 527, 533 (3d Cir. 2001). "I f developments occur duri ng the cours e of adjudi cati on that e limi nate a plaintiff 's person al stake in the o utcom e of a suit or p reven t a cou rt from being able to grant the requested rel ief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp. , 77 F.3d 6 90, 698– 699 (3d Cir. 1996 ). On April 30, 2003, the Department of Homeland Securi ty (“Department ”) denie d Gopaul's applic ations for Adjustment of Stat us and Waiver of I nadmissi bili ty . (Supp. App. 23, 24–27. ) On May 7, 2003, Gopaul file d a peti tion for habeas corpus reli ef seeki ng
an or der fr om the distric t court to requ ire the D epartm ent to im med iately adjud icate h is4

applic ations for Adjustment of Stat us and Waiver of I nadmissi bili ty . Because t he applic ations were adjudi cated bythe Department before Gopaul fi led his petit ion, t he dist rict court was unabl e to grant Gopaul the re lief

he sought, immediate adjudic ation of his applicati ons. The district c ourt cor

rectl y hel d that Gopaul only sought t o compel a deci sion on the Waiver and Adjus tment of St atus appl ications; he did not s eek revi ew of the Department's decisions. Because the Dep artment decided the applicati ons before Gopaul file d his habeas petit

ion, t here was no longer

an issue for the c ourt t o adjudic ate. Consequently , the court cor rectl y di smissed Gopaul' s request s for l ack of subje ct matter juri sdiction. Rul e 12(b)( 1), Feder al Rules of Civil Pr ocedure. Go paul c laims th at the d enial o f his I-4 85 an d I-60 1 app lications did n ot fully resol ve the quest

ion of whether

he was entitled to obt ain an adj ustment of hi s ali en stat us pursuant to INA secti on 245. He is mis taken. Section 245 of the INA sets f

orth t he criteri a necessary for an ali en, such as Gopaul, to obtain Adjustment of Status. To adjust his st atus t o that of

a person admit

ted for pe rmanent re sidence Gopaul must do four things : (1) m ake a pplica tion fo r adjus tmen t using a form I-485 ; (2) ob tain eligib ility to recei ve an immigrant

visa; (3) become admis sibl e for permanent resi dence in the United St at es ; a nd ( 4) obt ai n an immi gr ant vi sawhi ch i s i mmedi at el y ava il abl e t o hi m at th e t ime if his applic ation f

or adjus tment. 8 U.S.C. § 1255(a ). I f Gopaul cannot meet any one of the cri teri a set forth above, he is i neligible for a djustment of status under INA section5

245 (a). See Agy ema n v. INS , 296 F.3d 871, 879 & n. 2 (9th Cir . 2002) ( finding t hat an approved I- 130 applic ation onl y es tabli shes el igibi lit y for adjustment of status; the agency must still decide to acc ord the status). The De partm ent de nied G opau l's applica tion fo r Adjustm ent of Status and h is request for a Waiver of I nadmissi bili ty . (Supp. App. at 24. ) Consequentl y, Gopaul cannot meet the requirement s set f orth i n INA section 245 and i s inel igibl e for Adjustment of Status . Whether t

he Department had r

uled on his wife’s I -130 Relative Applic ation at the time the district court di smissed his Habeas Corpus P etiti on is of no consequence be cause such a rul ing merel y es tabli shes el igibi lit y for Adjustment of St atus, it i s not dete rmin ative
. See id. In sum, Gopaul fi led the petit ion seeki ng adjudic ation of his appl ication for Adjustment of St atus. The Department had alreadyruled on t he Adjustment of

Status applic ation p rior to h is filing th e hab eas p etition. T he co urt, there fore, d id no t err is dism issing th e petition as m oot. III. To advance a succ essful claim for ineffecti ve assistance of counsel, an ali en must dem onstra te preju dice. T he alie n m ust sho w th at he w as pre vente d fro m rea sona bly presenting his case. Gopaul has not met t his burde n. He admits removabil ity and makes no atte mpt to show that his pre vious counse l’s handling of t he habeas corpus proceedi ngs deprived hi m of the opportunity to pres ent his case. Gopaul has not pr esented any6

evidence that provides u s with a ba sis for conclu ding that his prev ious coun cil’s per for ma nce am oun ted to a de priv ation of d ue p roc ess. We have cons idered all con tention s and conc lude th at no f urther discu ssion is
ne ce ss ar y. The judgment of the dist rict court wil l be affi rmed.