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