07-1426-pr
Xue v. Holder


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

R ULINGS BY SUM M ARY ORD ER DO NO T HAVE PRECEDENTIAL EFFECT . C ITATIO N TO SU M M ARY O RD ERS FILED AFTER
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GOVERNED BY THIS COU RT ’S L O CAL R U LE 0.23 AN D F ED ERAL R U LE O F A PPELLATE
P RO CED U RE 32.1. I N A BRIEF O R O THER PAPER IN W H ICH A LITIGAN T CITES A SUM M ARY O RD ER , IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS , AT LEAST O N E CITATIO N M U ST EITHER B E TO THE F ED ERAL A PPEN D IX O R BE ACC O M PAN IED
BY TH E N O TATIO N : “( SU M M ARY O RD ER ).” U N LESS THE SU M M ARY O RD ER IS AVAILABLE IN AN ELECTRO N IC D ATABASE
W H ICH IS PUB LICLY ACCESSIBLE W ITHO U T PA Y M EN T OF FEE ( SUCH AS THE DATABASE AVAILABLE AT
H TTP ://W W W . CA 2. U SCO U RTS . GO V /), THE PARTY CITING THE SUM M ARY ORD ER M UST FILE AND SERVE A CO PY OF THAT
SU M M ARY O RD ER TOGETH ER W ITH TH E PAPER IN W H ICH THE SU M M ARY O RD ER IS CITED . I F N O CO PY IS SERVED BY REASO N
O F THE AVAILABILITY OF THE ORD ER O N SU CH A D ATABASE , THE CITATIO N M U ST IN CLU D E R EFERENC E TO THAT D ATABASE
AN D THE D O CKET NU M BER O F THE CASE IN W H ICH THE O RD ER W AS ENTERED .



       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 3rd
day of December, two thousand and nine.

PRESENT:
                     AMALYA L. KEARSE,
                     ROBERT D. SACK,
                     PAUL J. KELLY,*
                                 Circuit Judges.

_______________________________________________

Shiqi Xue,

                                      Petitioner-Appellant,

                     v.                                                               No. 07-1426-pr


Eric H. Holder, Jr., Attorney General of the United States, Janet Napolitano, Secretary of
Homeland Security, Alejandro Mayorkas, Director of the U.S. Citizenship and Immigration
Services,** Edward J. McElroy, District Director, The U.S. Immigration and Customs
Enforcement Agency,

                        Respondents-Appellees.***
______________________________________________


          *
         The Honorable Paul J. Kelly, Jr., of the United States Court of Appeals for the Tenth
Circuit, sitting by designation.
          **
         Attorney General Eric H. Holder, Jr., Secretary of Homeland Security Janet Napolitano,
and Director of the U.S. Citizenship and Immigration Services Alejandro Mayorkas are
substituted for their predecessors as respondents in this case. See Fed. R. App. P. 43(c)(2).
          ***
                The Clerk of the Court is directed to amend the caption as set forth above.
For Appellant:                                           VLAD KUZMIN, for Kuzmin &
                                                         Associates, New York, NY


For Appellees:                                           DAVID BOBER, for Michael
                                                         Garcia, Former United States
                                                         Attorney for the Southern District of
                                                         New York, and Preet Bharara,
                                                         United States Attorney for the
                                                         Southern District of New York, New
                                                         York, NY


       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the appeal be DISMISSED, the district court judgment be VACATED, and the

cause be REMANDED with instructions to DISMISS the petition as moot.

       Petitioner-Appellant Shiqi Xue appeals from a judgment of the United States District

Court for the Southern District of New York (Victor M. Marrero, Judge), denying Xue's petition

for a writ of habeas corpus. The petition sought relief from a decision by the Board of

Immigration Appeals (the "BIA") denying Xue's request for bond during the pendency of his

removal proceedings. The district court found that it did not have subject matter jurisdiction

over the petition, because, in its estimation, the challenged decision by the BIA was

discretionary. See, e.g., Sol v. I.N.S., 

, 651 (2d Cir. 2001) (per curiam) ("[F]ederal

jurisdiction over    § 2241 petitions does not extend to review of discretionary determinations by

the [Immigration Judge] and the BIA."). Xue argues on appeal that the district court's decision

was in fact based on a legal error, namely a misinterpretation of the Attorney General's decision,

In re D-J-, 23 I. & N. Dec. 572 (Op. Att'y Gen. Apr. 17, 2003) ("D-J-"). See, e.g., Khan v.

Gonzales, 

, 35 (2d Cir. 2007) ("[W]here, as here, . . . the petitioner raises a question

of law, [] we have jurisdiction to review [it].").

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       While this appeal was pending, Xue became subject to a final order of removal. Because

his removal proceedings are no longer pending, Xue's petition for relief from the BIA's decision

not to grant him bond during the pendency of his removal proceedings is moot. See Wang v.

Ashcroft, 

, 147 (2d Cir. 2003) ("[A] challenge to pre-final order detention [is] moot

once the final order has been entered.") (parentheses omitted); see also United States ex rel.

Spinella v. Savoretti, 

, 364 (5th Cir. 1953) ("We think it clear . . . that the

deportation order is now final; that the question raised by [the petitioner's] appeal, whether the

court erred in denying him bond pending the deportation proceedings, has become moot; and that

the appeal should be dismissed.").

       Xue appears to concede that the underlying petition is moot, but seems to argue that the

Court should not dismiss the appeal because "regardless of whether this petition is moot . . . the

Court has subject matter jurisdiction over this petition." Nov. 9, 2009 Supp. Br. 1. However, "if

a claim becomes moot between the entry of final judgment and the completion of appellate

review, the appellate court usually must either dismiss the appeal or vacate so much of the

district court's judgment as adjudicated that claim and remand for entry of a judgment dismissing

that claim." Altman v. Bedford Cent. School Dist., 

, 70-71 (2d Cir. 2001) (internal

citations omitted); see also Steffel v. Thompson, 

, 459 n.10 (1974) ("The rule in

federal cases is that an actual controversy must be extant at all stages of review, not merely at the

time the complaint is filed."); Dennin v. Connecticut Interscholastic Athletic Conference, Inc., 

, 100 (2d Cir. 1996) ("[W]hen it becomes impossible for an appellate court, through the

exercise of its remedial powers, to do anything to redress the injury, the court is without power to




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review the district court's judgment and the appeal must be dismissed.") (internal quotation

marks, citation, and alterations omitted).

       Here, the issues raised in the underlying habeas petition and on appeal, and the relief

requested therein, pertain solely to the pendency of Xue's removal proceedings. Because those

removal proceedings are no longer pending, the underlying habeas petition, and this appeal, are

moot. We therefore dismiss the appeal, vacate the district court judgment, and remand with

instructions to dismiss the petition as moot. See, e.g., Perez v. Greiner, 

, 126-27

(2d Cir. 2002); Russman v. Bd. of Educ. of Enlarged City School Dist. of City of Watervliet, 

, 121 (2d Cir. 2001) (observing that "the established practice is to reverse or vacate the

judgment below and remand with a direction to dismiss") (internal quotation marks, alterations,

and ellipses omitted).

       For the foregoing reasons, it is ordered that the appeal be hereby DISMISSED, the

district court judgment hereby VACATED, and the cause hereby REMANDED to the district

court with instructions to DISMISS the petition as moot.



                                                             FOR THE COURT:
                                                             Catherine O’Hagan Wolfe, Clerk

                                                             By:___________________________




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