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Immigration detention is not custody within the meaning of the federal courts’ habeas statute, the 2d U.S. Circuit Court of Appeals has ruled in a case of first impression. Ogunwomoju v. U.S., No. 06-3734-pr. The court said that, as Nigerian immigrant Adeniyi Ogunwomoju is in custody solely for immigration reasons, he can’t challenge his state convictions and try to remain in the United States. The court said a district court lacked jurisdiction to consider Ogunwomoju’s habeas petition because he was no longer in state custody for his criminal offense. Ogunwomoju filed his habeas petition in the U.S. District Court for the Southern District of New York after several criminal convictions led to removal proceedings against him. He claimed that a 2000 drug conviction should be undone because his guilty plea was involuntary or unlawfully induced, trial counsel was ineffective, and evidence was seized from him in violation of the Fourth Amendment to the U.S. Constitution. Then-Judge Michael Mukasey dismissed the petition, finding no basis for relief under 28 U.S.C. 2254. Mukasey found that Ogunwomoju was not in custody pursuant to his criminal conviction, as he had already served his sentence, but was instead in immigration custody. Therefore, the judge found he lacked jurisdiction over the petition. On appeal, the issue was the meaning of Section 2554(a), which requires as a prerequisite to a district court entertaining a habeas petition that the application be made “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” The U.S. Supreme Court, in Carafas v. LaVallee, 391 U.S. 234 (1968), said custody is “required not only by the repeated references in the statute but also by the history of the great writ. Its province, shaped to guarantee the most fundamental of all rights, is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of the person.” Writing on behalf of the 2d Circuit, Judge Roger Miner said that the justices in Carafas had rejected an argument by the state that the petitioner’s release from state custody during the pendency of his appeal rendered the petition moot. The justices said the “collateral consequences” of the conviction, such as loss of employment opportunities, justified continuing to hear the petition. Ogunwomoju cited Carafas, but to no avail, because the high court later said, in Maleng v. Cook, 490 U.S. 488 (1989), that it did not rest its holding in Carafas on collateral consequences “but on the fact that the petitioner had been in physical custody under the challenged conviction at the time the petition was filed.” Miner said, “Although Ogunwomoju was in immigration detention at the time he filed the habeas petition to challenge his New York conviction, he was not in custody pursuant to a judgment of the state court.” Miner said the circuit had never determined “whether a petitioner in immigration detention or under an order of removal as the result of a criminal conviction is ‘in custody’ for the purpose of a �2254 challenge to that criminal conviction. We do so now, and join our sister circuits that have determined that one held in immigration detention is not ‘in custody’ for the purpose of challenging a state conviction under �2254.” Miner went on: “Removal proceedings are at best a collateral consequence of conviction, and we must bear in mind that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purpose of a habeas attack upon it. That is precisely the situation in which Ogunwomoju now finds himself.”

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