Filed: Mar. 16, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the March 16, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 05-10916 Summary Calendar _ OYEKUNMI OYELUDE, Petitioner-Appellant, VERSUS MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Texas m 1:03-CV-95 _ Before SMITH, GARZA, and PRADO, Oyekunmi Oyelude, appeals, pro se,1 the Circuit J
Summary: United States Court of Appeals Fifth Circuit F I L E D In the March 16, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 05-10916 Summary Calendar _ OYEKUNMI OYELUDE, Petitioner-Appellant, VERSUS MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Texas m 1:03-CV-95 _ Before SMITH, GARZA, and PRADO, Oyekunmi Oyelude, appeals, pro se,1 the Circuit Ju..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the March 16, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-10916
Summary Calendar
_______________
OYEKUNMI OYELUDE,
Petitioner-Appellant,
VERSUS
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 1:03-CV-95
______________________________
Before SMITH, GARZA, and PRADO, Oyekunmi Oyelude, appeals, pro se,1 the
Circuit Judges. dismissal, as moot, of his petition for writ of
JERRY E. SMITH, Circuit Judge:*
*
(...continued)
cumstances set forth in 5TH CIR. R. 47.5.4.
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
1
termined that this opinion should not be published The briefs Oyelude has filed are of a quality
and is not precedent except under the limited cir- well beyond what we usually expect of a pro se
(continued...) litigant untrained in the law.
habeas corpus. We affirm. Oyelude had been released from custody, the
district court dismissed his habeas petition as
In September 2002, the Immigration and moot on June 14, 2005. On June 22, 2005,
Naturalization Service charged Oyelude, a na- Oyelude was detained for violation of the
tive of Nigeria, with remaining in the United terms of the order of supervision, and he re-
States without authorization and detained him mains in custody.
pursuant to 8 U.S.C. § 1226 pending a final
decision on his removal from the country.2 In Although Oleyude makes many arguments
April 2003, Oyelude filed a 28 U.S.C. § 2241 in his brief, only those touching on the moot-
petition for writ of habeas corpus challenging ness issue are relevant here. His position on
his continued custody. While the habeas peti- the mootness issue is that although he was
tion was pending, the Board of Immigration temporarily released from custody, his case is
Appeals issued a final order of removal in June not moot because he finds himself incarcerated
2004. once again and remains subject to removal.
In September 2004, Oyelude was released Oyelude’s habeas petition challenges the
from custody on an order of supervision pur- government’s right to hold him in custody pur-
suant to 8 U.S.C. § 1231(a)(3).3 He filed a pe- suant to 8 U.S.C. § 1226, pending a final
tition for review of the final removal order, decision on removal. He asks that the court
which we dismissed for want of jurisdiction. use its habeas jurisdiction over that claim to
See Oyelude v. Ashcroft, No. 04-60595 (5th review all the circumstances surrounding his
Cir. Feb. 1, 2005) (per curiam) (unpublished). removal. Each aspect of his removal proceed-
In March 2005, we vacated the district court’s ings implicates different jurisdictional rules,
denial of Oyelude’s habeas petition and re- however, and this court does not necessarily
manded for further proceedings, explicitly de- have jurisdiction to decide his case in full
clining to rule on the ultimate merits. Oyelude merely because we may hear part of it.
v. Chertoff, 125 Fed. Appx. 542, 547 (5th Cir.
2005). On remand, and after learning that Oyelude’s challenge to the § 1226 custody
is now moot.4 The only issue for the district
court to consider, if this case were to continue,
2
Title 8 U.S.C. § 1226(a) provides that, subject would be the propriety of Oyelude’s present
to certain restrictions, “an alien may be arrested detention under § 1231. That statute automat-
and detained pending a decision on whether the ically places aliens in the custody of the Attor-
alien is to be removed from the United States.” ney General after issuance of a removal order.
Thus, Oyelude’s present detention flows dir-
3
Title 8 U.S.C. § 1231(a) requires the Attorney
General to detain an alien who is subject to a final
4
order of removal. Subpart (3) provides that if the Oyelude’s challenge to his § 1226 detention
alien has not been deported after the initial 90-day was mooted on June 23, 2004 when his final re-
removal period, he “shall be subject to supervision moval order was entered and the Attorney Gen-
under regulations provided by the Attorney Gen- eral’s authority to detain him shifted to § 1231. As
eral.” Because the government was unable to a technical matter, the issue was not mooted by his
remove Oyelude within the 90-day period, it re- later release from custody, because it had already
leased him from custody pending later removal, been mooted by the BIA’s final removal order,
subject to a variety of restrictions on his activities. from which Oyelude may not seek habeas relief.
2
ectly from his removal order. He cannot chal-
lenge that detention without also challenging
the validity of the removal order.
Though Oyelude could challenge his initial
§ 1226 detention using a habeas petition, he
may not use habeas proceedings to attack a fi-
nal removal order. Under the Real ID Act, the
federal courts lack jurisdiction to entertain ha-
beas petitions challenging final removal orders.
See Pub.L. No. 109-13, 119 Stat. 231, 310, §
106(a)(1)(B). Such orders may be brought to
the federal courts solely by means of a petition
for review. Ramirez-Molina v. Ziglar, ___
F.3d ___, 2006 WL 62862, at *3 (5th Cir.
2006). As we have noted, this court denied
Oyelude’s petition for review.
The district court lacked jurisdiction to en-
tertain Oyelude’s arguments challenging the
basis for his removal order. The only issue
raised by Oyelude’s petition over which federal
habeas jurisdiction existed is the validity of his
prior detention pending a final decision on re-
moval, under § 1226. That issue is now moot.
Accordingly, the judgment dismissing the
petition is AFFIRMED.
3
