Not Precedential
Not Precedential
Not Precedential
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OPINION
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CHAGARES, Circuit Judge.
This is one of several appeals filed in this Court by Fabian Banton, a citizen of
Jamaica who was erroneously removed from the United States on March 7, 2005.
Bantons current appeal challenges the denial of his petition for a writ of mandamus,
through which he sought to compel the Government to send him back to the United
States or, in the alternative, to pay for the cost of his return trip. Because Banton has
since returned to the United States and the other relief he seeks does not justify the
issuance of a writ of mandamus, we will dismiss this appeal in part and affirm the District
Courts judgment in part.
I.
Insofar as we write exclusively for the parties, we provide only an abbreviated
summary of the facts essential to our disposition. Banton entered the United States in
1978 as an agricultural worker and was convicted of drug and firearms charges in 1991
and 1993, respectively. Based on these convictions, the United States Immigration and
Customs Enforcement (ICE) began removal proceedings in 1995. On October 11,
1996, Banton failed to appear for a hearing and an Immigration Judge (IJ) entered an in
absentia order of removal against him. Banton later filed a motion to reopen his removal
proceedings, which an IJ denied. In March 2005, while Bantons appeal of the IJs denial
of his motion to reopen was pending before the Board of Immigration Appeals (BIA),
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Banton was removed. In light of Bantons absence from the United States, the BIA
dismissed his appeal on July 22, 2005.
Banton appealed and we found that the BIA had violated the automatic-stay
provisions of 8 C.F.R. 1003.23(b)(4)(iii)(C), 1003.6, by removing Banton during the
pendency of his appeal. We remanded the case so that the BIA could consider the merits
of Bantons motion to reopen. Appendix (App.) 14. After the BIA upheld the denial
of Bantons motion to reopen on the merits and Banton filed a second appeal, we
remanded this matter on the basis that the BIA had not properly considered whether the
IJs 1996 order of removal was supported by clear and convincing evidence. App. 13.
We instructed the BIA to consider this issue and stated that [t]he BIA may . . . remand
the matter to an [IJ] if it concludes that a hearing is appropriate. Id. We also denied
Bantons motion to compel his return to the United States, but noted the Acting
Attorney Generals representation that the Department of Homeland Security will permit
[Banton]s return to the United States to attend any hearing before an [IJ]. Id.
The BIA elected to remand the case to an IJ, who scheduled a hearing despite
Bantons absence from the country. When Banton did not appear, the IJ continued the
hearing to November 2, 2010. When Banton requested a second continuance, the IJ
agreed but ordered Banton to pay the cost of his transport to the United States.
On October 22, 2010, Banton filed a complaint seeking a writ of mandamus to
compel his return to the United States at the Governments expense so that he could
participate in his immigration hearing. The District Court dismissed the case on February
22, 2011, finding that mandamus was not warranted because the Government did not
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have a clear duty to return Banton to the United States. Banton then filed the instant
appeal.
While this appeal was pending, on November 3, 2011, Banton was able to return
to the United States at his own expense. He is currently being held in Pike County,
Pennsylvania.
II.
At our request, the parties filed letter briefs to clarify the issue of what relief
Banton may obtain in light of his recent return to this country. In his letter brief, Banton
stated that he sought the grant of this appeal and a determination that he was entitled to
prevail in the District Court proceedings. Banton further requested reimbursement for
the cost of his travel to the United States and his release from custody on the basis that
the Government wrongly classified him as a parolee. We will address each claim in turn.
A.
We first must consider whether we have appellate jurisdiction over this matter
given the change in circumstances since Banton filed his complaint. See Lorillard
Tobacco Co. v. Bisan Food Corp., 377 F.3d 313, 318 (3d Cir. 2004) (We have an
independent obligation at the threshold to examine whether we have appellate
jurisdiction.). In particular, we must inquire as to whether this case presents a
justiciable case or controversy so that we have Article III jurisdiction, or whether
changed circumstances have rendered this case moot.1 [T]he central question of all
Our review of whether a claim has been rendered moot is plenary. Intl Bhd. of
Boilermakers v. Kelly, 815 F.3d 912, 914 (3d Cir. 1987).
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We review the District Courts denial of a writ of mandamus for an abuse of discretion,
but our review of whether the requirements for mandamus have been satisfied as a matter
of law is plenary. Arnold v. Blast Intermediate Unit 17, 843 F.2d 122, 125 (3d Cir.
1988).
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telephone conference. Id. 1229a(b)(2)(A).3 Because Banton failed to show that the
Government had a clear, nondiscretionary duty to cover the cost of his transportation, the
District Court properly dismissed this claim.
C.
Finally, Banton seeks a writ of mandamus to compel the Government to release
him from custody during the pendency of his immigration proceedings.4 Banton cites no
law in support of this argument, but instead simply states that as an alien in deportation
proceedings, [he] is not subject to mandatory detention. Banton Br. 61. Because
Banton is an arriving alien who has been paroled into the United States, his
detention is mandatory under the INA. 8 U.S.C. 1225(b)(1)(B)(iii)(IV). Thus, this
contention is also meritless.
III.
For the foregoing reasons, we will dismiss the appeal in part and affirm the
judgment of the District Court in part.
In support of his contention that his presence was required at his hearing, Banton
argues that the INA provides that an alien shall have reasonable opportunity to be
present at his hearing. This language, however, comes from a an older version of
section 242(b) of the INA which has since been modified to allow for video and
telephone conferencing in lieu of an in-person hearing.
4
Because his detention occurred after the District Courts dismissal of this case, Banton
did not make this argument to the District Court.
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