Leybinsky v. United States Immigration & Customs Enforcement ( 2014 )

13-762
Leybinsky v. U.S. Immigration & Customs Enforcement
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 10th day of February, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10 _____________________________________
11
12 GERMAN LEYBINSKY,
13
14 Petitioner-Appellant,
15
16 v. 13-762
17
18 UNITED STATES IMMIGRATION AND CUSTOMS
19 ENFORCEMENT, CHRISTOPHER SHANAHAN,
20 DISTRICT DIRECTOR,
21
22 Respondents-Appellees.
23 _____________________________________
24
25 FOR APPELLANT: Georgia J. Hinde, New York, NY.
26
27 FOR APPELLEES: Patricia L. Buchanan (Emily E. Daughtry,
28 on the brief), for Preet Bharara, United
29 States Attorney for the Southern District
30 of New York, New York, NY.
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Abrams, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the appeal be DISMISSED and the judgment of
6 the district court be VACATED AND REMANDED with directions
7 to dismiss the action.
8
9 German Leybinsky appeals the denial of his petition for
10 a writ of habeas corpus. He argues that, in view of his
11 repeated detentions in contemplation of removal and the past
12 refusals of any countries to issue travel documents, any
13 further civil detention by U.S. Immigration and Customs
14 Enforcement (“ICE”), absent a showing that his removal is
15 reasonably foreseeable or that he poses a risk of flight or
16 danger to the community, would cumulatively violate the
17 limits on detention imposed by Zadvydas v. Davis, 533 U.S. 678
18 (2001). We assume the parties’ familiarity with the
19 underlying facts, the procedural history, and the issues
20 presented for review.
21
22 Our analysis begins--and ends--with whether Leybinsky’s
23 petition is moot given his release from ICE custody on
24 August 30, 2010. “Under Article III of the U.S.
25 Constitution, when a case becomes moot, the federal courts
26 lack subject matter jurisdiction over the action.” Doyle v.
27 Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013)
28 (internal quotation marks and brackets omitted). To avoid
29 mootness, “throughout the litigation, the plaintiff must
30 have suffered, or be threatened with, an actual injury
31 traceable to the defendant and likely to be redressed by a
32 favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1,
33 7 (1998) (internal quotation marks omitted).
34
35 Following his release from ICE custody, Leybinsky is no
36 longer suffering an “actual injury.” Nor has Leybinsky
37 established any “collateral consequences adequate to meet
38 Article III’s injury-in-fact requirement.” Id. at 14. The
39 only consequence Leybinsky fears--future detention--is a
40 consequence of his final order of removal, not of his most
41 recent detention.
42
43 The district court ruled that Leybinsky’s petition is
44 saved from mootness because the challenged conduct is
2
1 capable of repetition yet evading review. See Leybinsky v.
2 U.S. Immigration & Customs Enforcement, 10 Civ. 5137 (RA),
3 2013 WL 132544, at *5-7 (S.D.N.Y. Jan. 8, 2013). “[T]he
4 capable-of-repetition doctrine applies only in exceptional
5 situations.” City of Los Angeles v. Lyons, 461 U.S. 95, 109
6 (1983). “[T]he following two circumstances [must be]
7 simultaneously present: (1) the challenged action is in its
8 duration too short to be fully litigated prior to its
9 cessation or expiration, and (2) there [is] a reasonable
10 expectation that the same complaining party [will] be
11 subjected to the same action again.” Lewis v. Cont’l Bank
12 Corp., 494 U.S. 472, 481 (1990) (internal quotation marks
13 and brackets omitted).
14
15 Leybinsky has not shown a “reasonable expectation” that
16 he will be subjected to the same action again. In the past,
17 Leybinsky has been detained pursuant only to 8 C.F.R. §
18 241.4(l)(1), (2)(ii) for violating the conditions of his
19 release, most recently by engaging in criminal conduct. See
20 Ohio App. 47 (June 2010 Notice of Revocation of Release states
21 that release is revoked because of a disorderly conduct
22 conviction and bribery charge). Leybinsky is “able--and
23 indeed required by law--to prevent such a possibility from
24 occurring.” Spencer, 523 U.S. at 13 (internal quotation
25 marks omitted). It cannot be assumed for this purpose that
26 Leybinsky will continue to violate the terms of his release
27 and become subject to renewed detention.
28
29 Other subsections of the regulation do allow ICE to
30 revoke release if, “in the exercise of discretion” and “in
31 the opinion of the revoking official,” “[t]he purposes of
32 release have been served” or “[t]he conduct of the alien, or
33 any other circumstance, indicates that release would no
34 longer be appropriate.” 8 C.F.R. § 241.4(l)(2). But
35 regardless of the broad discretionary authority the
36 regulation grants ICE, this particular petitioner has been
37 subject to detention only for specific (and most recently,
38 criminal) violations of the terms of his release. Leybinsky
39 has made no showing that he is in foreseeable danger of
40 arbitrary detention under a different regulatory provision.
41
42 We have considered all of Leybinsky’s remaining
43 arguments and conclude that they are without merit. The
44 appeal is hereby DISMISSED and the judgment of the district
3
1 court VACATED AND REMANDED with directions to dismiss the
2 action.
3
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, CLERK
6
4