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DELCARPIO v. ABODE

May 9, 2005.

ROBERT AARON DELCARPIO, Petitioner,
v.
MICHAEL ABODE, et al., Respondents.



The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge

OPINION

Petitioner, Robert Aaron Delcarpio ("Delcarpio"), filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in October 2002, alleging that he was being held in the custody of the Immigration and Naturalization Service ("INS")*fn1 unlawfully on an INS detainer. Delcarpio was in INS custody at the time he filed his habeas petition. He was released from INS custody shortly after filing the § 2241 petition. The petition also challenges Delcarpio's removal from the United States based on a claim of citizenship.

  The named respondents are Michael Abode, Warden of the Middlesex County Jail, and the INS. Respondents filed an Answer to the petition on April 4, 2005, asserting that Delcarpio's petition should be dismissed for failure to exhaust administrative remedies.

  BACKGROUND

  In May 2001, Delcarpio received a Notice to Appear for Removal Proceedings on the grounds that he is an illegal alien and a native and citizen of Peru. Delcarpio challenges his removal, alleging that he was born in Puerto Rico, and therefore, is a citizen of the United States. Pending his removal proceedings, Delcarpio was detained at the Middlesex County Jail.

  Delcarpio filed this § 2241 habeas petition in October 2002. In addition to challenging his removal, he also sought to be released from INS custody. He was released from INS custody in December 3, 2002, and this Court promptly dismissed the petition, by Order dated December 9, 2002, on the grounds that it was rendered moot by his release from INS custody. Delcarpio filed an appeal to the United States Court of Appeals for the Third Circuit on or about January 8, 2003. By Order dated April 7, 2004, the Third Circuit remanded the matter back to this Court for disposition of Delcarpio's claim that he is a U.S. citizen not subject to removal. The Third Circuit found that Delcarpio had satisfied the "in custody" requirement to bring his habeas action because Delcarpio was in INS custody at the time he filed his petition.

  On April 4, 2005, respondents filed an answer to the petition, with a motion to dismiss, seeking to dismiss the petition for failure to exhaust administrative remedies. Respondents state that the issue of Delcarpio's citizenship is pending in the Immigration Court, with the next hearing to be held on May 4, 2005. Further, there is no final order of removal.

  Delcarpio did not respond to the Government's motion to dismiss.

  DISCUSSION

  A. Standard of Review

  Delcarpio seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). That section states that the writ will not be extended to a prisoner unless "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Here, petitioner challenges his removal proceedings on the ground that he is a citizen of the United States. He also challenged his detention by the INS as unlawful because he is a U.S. citizen. Because he was in INS custody at the time he filed his § 2241 petition, he satisfies the "in custody" requirement. However, the unlawful detention claim was rendered moot by his release from INS custody in December 2002. Thus, only his claim of citizenship remains at issue.

  A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).

  Respondents contend that the petition should be dismissed because Delcarpio has failed to exhaust ...


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