Suarez-Tejeda v. United States ( 2004 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 16 2004
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    VICTOR MANUEL SUAREZ-
    TEJEDA,
    Petitioner - Appellant,                      No. 02-6341
    (D.C. No. 01-CV-96-F)
    vs.                                                    (W.D. Okla.)
    UNITED STATES OF AMERICA,
    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.
    Petitioner-Appellant Victor Suarez-Tejeda appeals the district court’s
    denial of his writ of habeas corpus. Mr. Suarez-Tejeda is a Mariel Cuban who
    has been ordered removed from the United States, yet until recently has remained
    in the custody of the Immigration and Naturalization Service (“INS”) 1 because
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    On March 1, 2003, the functions of the Immigration and Naturalization
    1
    Service were transferred to the newly formed Department of Homeland Security.
    See Homeland Security Act of 2002, Pub. L. No. 107-296, 
    116 Stat. 2135
    . The
    INS no longer exists as a separate agency and has been replaced by three separate
    bureaus within the Department of Homeland Security: the Bureau of Immigration
    Cuba refuses the return of her citizens. Mr. Suarez-Tejeda filed a petition for
    habeas relief under 
    28 U.S.C. § 2241
     on November 16, 2000, challenging the
    constitutionality of his continued detention.
    In 2001, the Supreme Court construed a provision of the Illegal
    Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) that
    authorizes post-removal-period detention of various groups of aliens, 
    8 U.S.C. § 1231
    (a)(6), to include an implicit reasonable time limitation in order to avoid
    serious constitutional concerns raised by such indefinite detention. Zadvydas v.
    Davis, 
    533 U.S. 678
    , 682 (2001). Mr. Suarez-Tejeda argues that his detention and
    the procedures applied to his parole review are unconstitutional in light of
    Zadvydas and Tenth Circuit precedent. The district court denied Mr. Suarez-
    Tejeda’s habeas petition, holding that neither his detention nor the procedures
    used to evaluate his continued detention violate the constitution. We have
    jurisdiction under 
    28 U.S.C. §§ 1291
     and 2253(a). See Zadvydas, 
    533 U.S. at 687
    ; Ho v. Greene, 
    204 F.3d 1045
    , 1051-52 (10th Cir. 2000), overruled on other
    grounds by Zadvydas, 
    533 U.S. at 682
    . Because Mr. Suarez-Tejeda has been
    released on parole and is not presently detained by the INS, his appeal is moot.
    and Customs Enforcement (“BICE”), the Bureau of Customs and Border
    Protection (“BCBP”), and the Bureau of Citizenship and Immigration Services
    (“BCIS”). BICE is the bureau now responsible for the detention and removal of
    aliens.
    -2-
    Background
    Mr. Suarez-Tejeda first arrived in the United States in 1980 as part of the
    Mariel boat lift, during which approximately 120,000 Cubans left the Mariel
    harbor in Cuba and crossed by boat to the United States. See Rosales-Garcia v.
    Holland, 
    322 F.3d 386
    , 390-91 (6th Cir. 2003); Gisbert v. United States Attorney
    Gen., 
    988 F.2d 1437
    , 1440 (5th Cir. 1993), amended, 
    997 F.2d 1122
     (5th Cir.
    1993). The INS detained the aliens at the border and decided to exclude them
    from entry into the United States. After this initial detention, Mr. Suarez-Tejeda
    was granted conditional parole into the United States and released by the INS
    under § 212(d)(5) of the Immigration and Nationality Act (“INA”), 
    8 U.S.C. § 1182
    (d)(5)(A), which authorizes the Attorney General in his discretion to parole
    into the United States any alien who is applying for admission to the United
    States.
    Although Mr. Suarez-Tejeda was paroled into the United States, this parole
    is not to be “regarded as an admission,” 
    8 U.S.C. § 1182
    (d)(5)(A), and Mr.
    Suarez-Tejeda is “legally considered to be detained at the border and hence as
    never having effected entry into this country.” Sierra v. INS, 
    258 F.3d 1213
    ,
    1218 (10th Cir. 2001) (quoting Gisbert, 
    988 F.2d at 1440
    ). See also Zadvydas,
    
    533 U.S. at 693
    . He is “treated as if stopped at the border” for purposes of
    immigration law. Shaughnessy v. United States ex rel. Mezei, 
    345 U.S. 206
    , 215
    -3-
    (1953). Because Mr. Suarez-Tejeda is ineligible for admission to the United
    States, he is correctly classified as an inadmissible alien under IIRIRA. 2 See
    United States v. Landeros-Mendez, 
    206 F.3d 1354
    , 1355 n.1 (10th Cir. 2000).
    After being paroled into the United States, Mr. Suarez-Tejeda was
    convicted of robbery with a deadly weapon in January 1982 and sentenced to
    three years imprisonment. R. Doc. 15, Ex. 1 at 1, 3. After several probation
    violations and subsequent convictions, 
    id.,
     Exs. 3-6, Mr. Suarez-Tejeda’s parole
    was revoked by the INS and he was taken into INS custody, 
    id.,
     Ex. 1 at 2-3. Mr.
    Suarez-Tejeda was granted a second parole release on February 5, 1988. 
    Id.,
     Ex.
    7. However, in 1993, Mr. Suarez-Tejeda was convicted of possession for sale of
    cocaine base, sale and transportation of marijuana, and sale and possession of
    marijuana; he was sentenced to three years imprisonment. 
    Id.,
     Ex. 10. The INS
    again revoked his parole in April 1995, and he was taken into INS custody. 
    Id.,
    Ex. 11. In September 1995, he was ordered excluded and deported from the
    United States. 
    Id.,
     Ex. 14. However, because Cuba has refused the return of her
    citizens, and because the United States has allowed the parole of inadmissible
    aliens rather than forcing the return of Cuba’s citizens to her shores, Mr. Suarez-
    2
    Prior to IIRIRA, aliens ineligible for admission were referred to as
    “excludable” aliens. IIRIRA changed the immigration terminology and now
    excludable aliens are referred to as “inadmissible” aliens. See United States v.
    Landeros-Mendez, 
    206 F.3d 1354
    , 1355 n.1 (10th Cir. 2000); Sierra, 
    258 F.3d at
    1215 n.1.
    -4-
    Tejeda remained detained until October 2003 in INS custody at the Federal
    Correction Institution in El Reno, Oklahoma.
    Beginning in 1995, Mr. Suarez-Tejeda received regular parole reviews
    while in INS custody under the procedures set forth at 
    8 C.F.R. § 212.12
    . See R.
    Doc. 15, Exs. 14, 16-18, 20-21. These regulations govern the parole and periodic
    review of the custody of Mariel Cubans and are commonly referred to as the
    “Cuban Review Plan.” See 
    8 C.F.R. § 212.12
    . Section 212.12
    applies to any Mariel Cuban, detained under the authority of the
    Immigration and Nationality Act in any facility, who has not been
    approved for release or who is currently awaiting movement to a
    Service or Bureau of Prisons (BOP) facility. In addition, it covers
    the revocation of parole for those Mariel Cubans who have been
    released on parole at any time.
    
    Id.
     § 212.12(a). Section 212.12 also discusses release of Mariel Cubans on
    parole, stating that “No detainee may be released on parole until suitable
    sponsorship or placement has been found for the detainee. The paroled detainee
    must abide by the parole conditions specified by the Service in relation to his
    sponsorship or placement.” Id. § 212.12(f). The regulations recognize two
    suitable placements upon parole–either sponsorship “with a close relative such as
    a parent, spouse, child, or sibling who is a lawful permanent resident or a citizen
    of the United States,” or placement in an approved halfway house or mental
    health/community project. Id. § 212.12(f)(1)-(3).
    Mr. Suarez-Tejeda’s most recent review before the Cuban Review Panel
    -5-
    was held in January 2003. Aplt. Br. at 7. In October 2003, while his habeas
    appeal was pending before this court, Mr. Suarez-Tejeda was approved for release
    on parole and transferred to a halfway house in Fort Worth, Texas. On December
    1, 2003, following oral arguments, Mr. Suarez-Tejeda was released from the
    halfway house upon placement with a sponsor.
    Discussion
    On appeal, Mr. Suarez-Tejeda asserts both statutory and constitutional
    claims. Mr. Suarez-Tejeda argues that the Supreme Court’s decision in Zadvydas
    v. Davis, 
    533 U.S. 678
     (2001), “definitely construed the statute under which
    aliens subject to orders of deportation are detained by the immigration and
    naturalization service” to prohibit indefinite detention of both removable and
    inadmissible aliens. Aplt. Br. at 8. Mr. Suarez-Tejeda also asserts a substantive
    due process claim, arguing that the indefinite detention of inadmissible aliens is
    unconstitutional in light of the Supreme Court’s holding in Zadvydas. Finally,
    Mr. Suarez-Tejeda argues that the Cuban Review Plan operates without objective
    standards to guide the discretion and judgment of the INS, and that this lack of
    standards and deviations from the procedures set forth in the Cuban Review Plan
    violate his procedural due process rights. Because we conclude that Mr. Suarez-
    Tejeda’s transfer to a halfway house and subsequent release to a sponsor moots
    -6-
    the appeal, we do not reach the substantive issues.
    Mr. Suarez-Tejeda was released from INS detention and placed in a
    halfway house in October 2003. Under 
    28 U.S.C. § 2241
    (c)(1), “[t]he writ of
    habeas corpus shall not extend to a prisoner unless [h]e is in custody.” However,
    “the fact that Appellant is no longer in custody does not automatically moot
    Appellant’s petition because he was in custody at the time of filing.” Riley v.
    INS, 
    310 F.3d 1253
    , 1256 (10th Cir. 2002); see also Spencer v. Kemna, 
    523 U.S. 1
    , 7 (1998) (holding the custody requirement in the habeas statute only requires
    that the petitioner be “in custody” at the time the petition was filed). Rather, the
    “more substantial question” is whether Mr. Suarez-Tejeda’s release moots his
    petition because the court is no longer presented with a case or controversy as
    required under Article III, § 2, of the Constitution. Spencer, 
    523 U.S. at 7
    .
    “Mootness is a threshold issue because the existence of a live case or
    controversy is a constitutional prerequisite to federal court jurisdiction.”
    McClendon v. City of Albuquerque, 
    100 F.3d 863
    , 867 (10th Cir. 1996). This
    requirement must exist at all stages of appellate review, and it is “not enough that
    the dispute was alive when the suit was filed.” 
    Id.
     Federal courts have no
    authority to give an opinion upon a question that is moot as a result of events that
    occur during the pendency of the action. Church of Scientology v. United States,
    
    506 U.S. 9
    , 12 (1992).
    -7-
    Because Mr. Suarez-Tejeda is no longer detained and is not currently
    subject to regular review by the Cuban Review Panel, we must look beyond the
    initial controversy and determine if his appeal is now moot. Several circuits have
    addressed this issue, all with slightly different approaches. In Rosales-Garcia v.
    Holland, 
    322 F.3d 386
    , 395-96 (6th Cir. 2003), the Sixth circuit concluded that
    release constitutes merely a “reprieve from detention,” and therefore a Mariel
    Cuban is still threatened with actual injury. The court also applied two
    exceptions to the mootness doctrine, finding the case one of voluntary cessation
    and capable of repetition yet evading review. The Fifth Circuit in Gisbert v.
    United States Attorney General, 
    988 F.2d 1437
    , 1440 n.5 (5th Cir. 1993),
    originally held a petition of a Mariel Cuban moot based on release without any
    analysis. The court later amended the opinion to remove the footnote regarding
    mootness. Gisbert v. United States Attorney Gen., 
    997 F.2d 1122
    , 1123 (5th Cir.
    1993). The Ninth Circuit, however, held such a claim was moot on release where
    the government issued a statement it would not revoke parole absent criminal
    reinvolvement. See Picrin-Peron v. Rison, 
    930 F.2d 773
    , 776 (9th Cir. 1991).
    After reviewing the various approaches, for the reasons discussed below, we hold
    that Mr. Suarez-Tejeda’s release from detention moots his appeal.
    “To invoke the jurisdiction of a federal court, a litigant must have suffered,
    or be threatened with, an actual injury traceable to the defendant and likely to be
    -8-
    redressed by a favorable judicial decision.” Lewis v. Cont’l Bank Corp., 
    494 U.S. 472
    , 477 (1990). Mr. Suarez-Tejeda brought this action in the form of a habeas
    petition and has requested release from indefinite detention. Mr. Suarez-Tejeda
    has been released on parole and is no longer indefinitely detained. Under §
    212.12, however, the INS may revoke Mr. Suarez-Tejeda’s parole if he “violates
    any condition of parole” or if such revocation is “in the public interest.” 
    8 C.F.R. § 212.12
    . 3 Mr. Suarez-Tejeda attempts to distinguish Riley, 
    310 F.3d at 1257
    ,
    based on the unique application of the “Cuban Review Plan,” arguing he is
    threatened with future injury and his claim is not moot. However, based on the
    record before us, there is no support for Mr. Suarez-Tejeda’s claims that his
    parole will again be revoked and this claim is merely speculative. See McAlpine
    3
    Under the Cuban Review Plan,
    The Associate Commissioner for Enforcement shall have authority, in
    the exercise of discretion, to revoke parole in respect to Mariel
    Cubans. A district director may also revoke parole when, in the
    district director’s opinion, revocation is in the public interest and
    circumstances do not reasonably permit referral of the case to the
    Associate Commissioner. Parole may be revoked in the exercise of
    discretion when, in the opinion of the revoking official:
    (1) The purposes of parole have been served;
    (2) The Mariel Cuban violates any condition of parole;
    (3) It is appropriate to enforce an order of exclusion or to commence
    proceedings against a Mariel Cuban; or
    (4) The period of parole has expired without being renewed.
    
    8 C.F.R. § 212.12
    (h).
    -9-
    v. Thompson, 
    187 F.3d 1213
    , 1218 (10th Cir. 1999) (noting that speculation that a
    defendant will “break the law or otherwise violate the conditions of their release .
    . . would undermine our presumption of innocence . . . and the rehabilitative focus
    of the parole system”). A “threatened injury must be ‘certainly impending’ to
    constitute injury in fact.” Whitmore v. Arkansas, 
    495 U.S. 149
    , 158 (1990)
    (quoting Babbitt v. Farm Workers, 
    442 U.S. 289
    , 298 (1979)). Mr. Suarez-
    Tejeda’s allegations of potential future custody are too attenuated to satisfy the
    requirements of Article III. 
    Id.
    Mr. Suarez-Tejeda’s appeal thus is rendered moot unless he meets one of
    the exceptions to the mootness doctrine. Riley, 
    310 F.3d at 1256
    . This court will
    not dismiss a petition as moot if (1) secondary or “collateral” injuries
    survive after resolution of the primary injury; (2) the issue is deemed
    a wrong capable of repetition yet evading review; (3) the defendant
    voluntarily ceases an allegedly illegal practice but is free to resume it
    at any time; or (4) it is a properly certified class action suit.
    
    Id. at 1257
     (collecting cases). We find none of the above exceptions to be
    applicable in this case.
    Exceptions 1 and 4 are clearly inapplicable. Mr. Suarez-Tejeda argues that
    this case is not moot under exception 2 because the case is one that is “capable of
    repetition, yet evading review.” See S. Utah Wilderness Alliance v. Smith, 
    110 F.3d 724
    , 729 (10th Cir. 1997). However, we find this exception inapplicable.
    This exception only applies when “(1) the challenged action was in its duration
    - 10 -
    too short to be fully litigated prior to its cessation or expiration, and (2) there was
    a reasonable expectation that the same complaining party would be subjected to
    the same action again.” Weinstein v. Bradford, 
    423 U.S. 147
    , 149 (1975); see
    also United States v. Seminole Nation of Okla., 
    321 F.3d 939
    , 943 (10th Cir.
    2002). The first condition is not satisfied in this case. If the INS resumes
    detention at some future date, there is no reason to believe detention will be so
    short in duration as to deny Mr. Suarez-Tejeda the opportunity to litigate his
    claims at that time. See Rio Grande Silvery Minnow v. Keys, No. 02-2254, 02-
    2295, 02-2255, 02-2304, 02-2267, 
    2004 WL 25310
    , at *2 (10th Cir. 2004 Jan. 5,
    2004).
    We likewise reject the argument that the narrow exception of voluntary
    cessation is applicable. This exception “traces to the principle that a party should
    not be able to evade judicial review, or to defeat a judgment, by temporarily
    altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha,
    
    531 U.S. 278
    , 284 n.1 (2001). It “protects plaintiffs from defendants who seek to
    evade sanction by predictable protestations of repentance and reform.” 
    Id.
    (internal quotation marks and citations omitted). There is no suggestion that the
    government’s release of Mr. Suarez-Tejeda was the result of an attempt by the
    government to evade review. Rather, Mr. Suarez-Tejeda merely happened to be
    released on parole while his appeal was pending before this court. See Silvery
    - 11 -
    Minnow, 
    2004 WL 25310
    , at *3. We therefore find the exception of voluntary
    cessation inapplicable. See Riley, 
    310 F.3d at 1257
    .
    In this case, the circumstances have changed during the pendency of the
    action to make Mr. Suarez-Tejeda’s claim moot. See 
    id.
     Mr. Suarez-Tejeda was
    initially released to a halfway house and was recently released to a sponsor. Even
    Mr. Suarez-Tejeda acknowledges release into society without some type of
    sponsorship or placement is not an option. Before the district court, Mr. Suarez-
    Tejeda stated that an appropriate remedy incident to the grant of habeas corpus
    relief “should be fashioned to reasonably assure Mr. Suarez-Tejeda’s availability
    for deportation should removal become possible. In this regard, the release
    conditions would be similar to those employed by the federal courts to reasonably
    assure a person’s availability for trial and the safety of the community.” R. Doc.
    27 at 7. Mr. Suarez-Tejeda has effectively received the relief he has requested.
    Although the INS may resume detention at some future date, Mr. Suarez-
    Tejeda would not be without a remedy at that time. “The case or controversy
    requirement of Article III admonishes federal courts to avoid premature
    adjudication and to abstain from entangling themselves in abstract
    disagreements.” U.S. West, Inc. v. Tristani, 
    182 F.3d 1202
    , 1208 (10th Cir. 1999)
    (internal quotation marks and citations omitted). Any opinion issued at this time
    would be purely advisory in nature. Based on the record before us, therefore, we
    - 12 -
    hold that Mr. Suarez-Tejeda’s “release from detention moots his challenge to the
    legality of his extended detention.” Riley, 
    310 F.3d at 1257
    . For the same
    reasons, Mr. Suarez-Tejeda’s procedural due process claims are now moot.
    For the foregoing reasons, we DISMISS the appeal as moot.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    - 13 -
    02-6341 - Suarez-Tejeda v. United States
    HARTZ, Circuit Judge, concurring specially:
    I agree that the appeal must be dismissed as moot. Mr. Suarez-Tejeda has
    obtained all the relief he sought on appeal. In particular, I do not read his
    opening brief on appeal as raising any argument challenging the process for
    revoking parole once it is granted.