Oyelude v. Chertoff

United States Court of Appeals
Fifth Circuit
F I L E D
March 16, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Oyekunmi Oyelude, appeals, pro se,1 the
dismissal, as moot, of his petition for writ of
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
(continued...)
*(...continued)
cumstances set forth in 5TH CIR. R. 47.5.4.
1 The briefs Oyelude has filed are of a quality
well beyond what we usually expect of a pro se
litigant untrained in the law.

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habeas corpus. We affirm.
In September 2002, the Immigration and
Naturalization Service charged Oyelude, a na-
tive of Nigeria, with remaining in the United
States without authorization and detained him
pursuant to 8 U.S.C. § 1226 pending a final
decision on his removal from the country.2 In
April 2003, Oyelude filed a 28 U.S.C. § 2241
petition for writ of habeas corpus challenging
his continued custody. While the habeas peti-
tion was pending, the Board of Immigration
Appeals issued a final order of removal in June
2004.
In September 2004, Oyelude was released
from custody on an order of supervision pur-
suant to 8 U.S.C. § 1231(a)(3).3 He filed a pe-
tition for review of the final removal order,
which we dismissed for want of jurisdiction.
See Oyelude v. Ashcroft, No. 04-60595 (5th
Cir. Feb. 1, 2005) (per curiam) (unpublished).
In March 2005, we vacated the district court’s
denial of Oyelude’s habeas petition and re-
manded for further proceedings, explicitly de-
clining to rule on the ultimate merits. Oyelude
v. Chertoff, 125 Fed. Appx. 542, 547 (5th Cir.
2005). On remand, and after learning that
Oyelude had been released from custody, the
district court dismissed his habeas petition as
moot on June 14, 2005. On June 22, 2005,
Oyelude was detained for violation of the
terms of the order of supervision, and he re-
mains in custody.
Although Oleyude makes many arguments
in his brief, only those touching on the moot-
ness issue are relevant here. His position on
the mootness issue is that although he was
temporarily released from custody, his case is
not moot because he finds himself incarcerated
once again and remains subject to removal.
Oyelude’s habeas petition challenges the
government’s right to hold him in custody pur-
suant to 8 U.S.C. § 1226, pending a final
decision on removal. He asks that the court
use its habeas jurisdiction over that claim to
review all the circumstances surrounding his
removal. Each aspect of his removal proceed-
ings implicates different jurisdictional rules,
however, and this court does not necessarily
have jurisdiction to decide his case in full
merely because we may hear part of it.
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,
would be the propriety of Oyelude’s present
detention under § 1231. That statute automat-
ically places aliens in the custody of the Attor-
ney General after issuance of a removal order.
Thus, Oyelude’s present detention flows dir-
2 Title 8 U.S.C. § 1226(a) provides that, subject
to certain restrictions, “an alien may be arrested
and detained pending a decision on whether the
alien is to be removed from the United States.”
3 Title 8 U.S.C. § 1231(a) requires the Attorney
General to detain an alien who is subject to a final
order of removal. Subpart (3) provides that if the
alien has not been deported after the initial 90-day
removal period, he “shall be subject to supervision
under regulations provided by the Attorney Gen-
eral.” Because the government was unable to
remove Oyelude within the 90-day period, it re-
leased him from custody pending later removal,
subject to a variety of restrictions on his activities.
4 Oyelude’s challenge to his § 1226 detention
was mooted on June 23, 2004 when his final re-
moval order was entered and the Attorney Gen-
eral’s authority to detain him shifted to § 1231. As
a technical matter, the issue was not mooted by his
later release from custody, because it had already
been mooted by the BIA’s final removal order,
from which Oyelude may not seek habeas relief.

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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 finalremovalorders.
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 byOyelude’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.

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