Puma Bravo v. Wolf ( 2020 )

19-953
Puma Bravo v. Wolf
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of March, two thousand twenty.
PRESENT:
PIERRE N. LEVAL,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
IVAN LIZANDRO PUMA BRAVO, ANA CECILIA
DURAN GUAMAN, SHERLYN IVONNE PUMA DURAN,
by her mother and Guardian Ana Cecilia Duran
Guaman, NICOLE CECILIA PUMA DURAN, by her
mother and Guardian, Ana Cecilia Duran Guaman,
MOISES GUERRERO RAMOS, and their 3 USC
children, MAURILIA DURAN LUNA, and their 3 USC
children, GRISELDA BALTAZAR TREJO, and their 4
USC children, FRANCISCO ESCAMILLA GONZALEZ,
and their 4 USC children, CONSTANTINO SALAS
BURGUA, and their 3 USC children, MARIA RAFAEL
ALVAREZ, and their 3 USC children,
Plaintiffs-Appellants,
v. 19-953
CHAD F. WOLF, Acting Secretary for the U.S.
Department of Homeland Security, WILLIAM
BIERMAN, Field Office Director, New York, NY
U.S Citizenship and Immigration Services, U.S.
Department of Homeland Security, MARY BETH
KELLER, Chief Immigration Judge Executive Office
of Immigration Review, L. FRANCIS CISSNA,
Director U.S. Citizenship and Immigration Services,
WILLIAM P. BARR, Attorney General of the United
States, FRANK JAMES LOPREST, JR., Chief
Immigration Judge, New York District, Executive
Office of Immigration Review, New York NY,
THOMAS CIOPPA, District Director New York
District Office, US Citizenship and Immigration
Services, US Department of Homeland Security,
Defendants-Appellees.1
_____________________________________
FOR PLAINTIFFS/APPELLANTS: SAUL BERNARD SCHWARZ, Law Office of S.
Bernard Schwarz, Esq., PLLC, New York,
NY.
FOR DEFENDANTS/APPELLEES: KIRTI VAIDYA REDDY, Assistant United
States Attorney (Benjamin H. Torrance,
Assistant United States Attorney, on the
brief), for Geoffrey S. Berman, United
States Attorney for the Southern District of
New York, New York, NY.
Appeal from an order of the United States District Court for the Southern District of New
York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellants challenge the district court’s order dismissing as moot their challenge to a 2017
Department of Homeland Security (“DHS”) memorandum which, they allege, foreclosed DHS
attorneys’ ability to exercise prosecutorial discretion to recommend administrative closure in their
removal proceedings. The district court concluded that the challenge was moot because an
intervening decision of the Attorney General, Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G.
2018), stripped immigration judges (“IJs”) of the authority to administratively close removal
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The Clerk of Court of is respectfully directed to amend the caption as set forth above.
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proceedings, even when DHS recommends closure. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review the district court’s dismissal for lack of subject matter jurisdiction de novo.
Fed. R. Civ. P. 12(b)(1); Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79–
80 (2d Cir. 2005). A case remains live “as long as the parties have a concrete interest, however
small, in the outcome of the litigation” and a court may be able “to grant any effectual relief
whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,
307–308 (2012) (internal quotation marks and alteration omitted). A case becomes moot, and
federal courts lack subject matter jurisdiction, when the parties no longer have a “legally
cognizable interest” in the outcome of the litigation, rendering the court incapable of granting a
judgment that will affect the parties’ legal rights. Los Angeles County v. Davis, 440 U.S. 625,
631 (1979). We conclude that Appellants’ challenge to the 2017 DHS memorandum is moot.
The primary injury for which Appellants seek redress is the denial of administrative
closure. While the intermediate relief they seek in this case is judicial rescission of the DHS
memorandum, that outcome is desirable only in the event that IJs may administratively close
removal proceeding. And here, even if the district court agreed with Appellants and enjoined the
DHS memo, and DHS prosecutors thereafter decided to recommend closure, plaintiffs would still
be stymied by Castro-Tum. In other words, Appellants would have to bring—and win—another
legal challenge after this one to obtain “effectual” relief. See Knox, 567 U.S. at 307.
Appellants’ contention that Castro-Tum and the DHS memorandum mutually insulate each
other from review is without merit. Under Castro-Tum, IJs lack authority to administratively
close cases. See 27 I. & N. Dec. at 292. That has nothing to do with whether DHS recommends
administrative closure. As the district court correctly concluded, moreover, Appellants have a
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proper avenue to challenge Castro-Tum: They may request administrative closure directly from
an IJ, who, stripped of his power to assess whether closure is warranted as a matter of discretion,
will be bound to deny. See Castro-Tum, 27 I. & N. Dec. at 272–73. They can then appeal to the
Board of Immigration Appeals to argue that Castro-Tum was wrongly decided and petition this
Court for review. See Romero v. Barr, 937 F.3d 282 (4th Cir. 2019). Indeed, another litigant
before this Court is pursuing that course of action. See Benitez Marquez v. Barr, No. 18-3460 (2d
Cir.).
We recognize that, if the petitioner in Benitez Marquez is successful, Appellants’ challenge
to the 2017 DHS memorandum may no longer be moot. Because the district court’s dismissal
was without prejudice, Appellants may refile if this Court ultimately overturns Castro-Tum. We
express no opinion on the viability or merits of such a future case. We likewise express no views
regarding either the merits of any defense available to the defendants, or as to whether all of the
particular plaintiffs in this action would have standing to challenge the 2017 DHS memorandum
in such a future case. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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