Suarez v. Rooney

OPINION PER CURIAM. Luis Suarez appeals the district court’s procedural dismissal of his 28 U.S.C.A. § 2241 (West 1994) petition in which he sought to challenge his removal from the United States by the Immigration and Naturalization Service, claiming that he is a United States citizen. The merits of Suarez’s case are currently before this court in a separate proceeding, see Suarez v. INS, No. 02-1813, in which Suarez advances the same challenge under 8 U.S.C.A. § 1252(b)(5) (West 1999) and which is presently in the briefing stage. Suarez’s petition for review on the merits renders moot the jurisdictional issue in the current appeal by causing it to lose “ ‘its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.’” Maryland Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1249 (4th Cir.1991) (quoting Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972)). Accordingly, we dismiss this appeal without prejudice to the right of either party to move the district court, under Federal Rule of Civil Procedure 60(b), to vacate its judgment. See Pressley Ridge Schools v. Shimer, 134 F.3d 1218, 1222 (4th Cir.1998) (dismissing an appeal without vacatur because the parties were not cognizant of, nor briefed the court on, whether vacatur was proper); see also Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir.2000) (holding that district courts should consider the same factors of voluntariness and extraordinary circumstances in considering vacatur as courts of appeals). DISMISSED.