Opinion
No. 3:02-CV-2305-K.
April 28, 2004.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is an action filed pursuant to 28 U.S.C. § 2241 to challenge petitioner's allegedly unlawful detention by respondents. ( See Pet. for Writ of Habeas Corpus, hereinafter Pet.)
B. Parties : At the time he filed this action, petitioner was a detainee of the relevant immigration authorities of the United States. Petitioner names the Immigration and Naturalization Service (INS); Anne M. Estrada, Dallas, Texas District Director of the INS; and John Ashcroft, United States Attorney General as respondents. The Court will collectively refer to the respondents as the government or immigration authority.
As more fully explained below, petitioner's status has changed while this case has been pending.
C. Factual and Procedural Background : Petitioner, a native and citizen of Cuba, was detained by federal immigration authorities in Seagoville, Texas, when he filed this action pursuant to 28 U.S.C. § 2241 to challenge a July 22, 2002 decision of the Cuban Review Panel to deny him parole. The following summarized version of the relevant facts were gleaned from the petition filed in this action and a district court decision that resolved petitioner's earlier habeas petition seeking relief from final order of exclusion and deportation issued by Board of Immigration Appeal (BIA), Cepero v. Board of Immigration Appeals, 882 F. Supp. 1575 (D. Kan. 1995).
Petitioner arrived in the United States in 1980 during the Mariel boatlift. Shortly after his arrival, he was released on immigration parole. While on immigration parole, petitioner was convicted of, and sentenced for, aiding and abetting a bank robbery in Maryland in 1982. Upon his release from federal prison, immigration authorities detained petitioner, and his immigration parole was revoked. A final order of exclusion was entered against him. When he filed the instant action, petitioner had been in immigration custody in federal prison for over thirteen years, awaiting his return to Cuba.
The Cubans who arrived in the boatlift are known as Mariel Cubans because they departed from the Mariel Harbor in Cuba. For a full discussion of these events see Gisbert v. United States Attorney General, 988 F.2d 1437, 1439 ns. 3-4 (5th Cir.), amended by 997 F.2d 1123 (5th Cir. 1993).
Petitioner filed the instant action through counsel on October 21, 2002, to challenge a July 22, 2002 decision of the Cuban Review Panel that denied him parole. (Pet. at 1, 6-7; Reply Brief at 2, 5.) On January 24, 2003, the government filed a response. ( See Resp. at 1-39.) On February 24, 2003, petitioner filed a reply brief. (Reply Brief.)
On August 20, 2003, the government filed a "Status Report and Additional Authorities" informing the Court that petitioner had been re-interviewed by the Cuban Review Panel on June 25, 2003. (Status Report at 1-2.) In a response filed on September 8, 2003, petitioner argued that the June 25, 2003 hearing changed nothing with respect to his claims. ( See Resp. to Status Report at 1-3.) On September 24, 2003, the government notified the Court that petitioner "has been approved for discretionary immigration parole." (Notice of Information at 1.) On October 2, 2003, petitioner urged the Court to review his habeas petition, and asserted that his petition was "not moot." (Resp. to Notice of Information at 1-2.)
On December 9, 2003, the Court ordered "the government to update the status of petitioner's approval for discretionary immigration parole." (Order of Dec. 9, 2003, at 2.) On December 12, 2003, the government submitted the affidavit of Thomas Strezishar, a Supervisory Detention and Deportation Officer assigned to the Detention and Removals Branch of the United States Immigration and Customs Enforcement division of the Department of Homeland Security. ( See Resp. to Dec. 9, 2003 Order and attached Aff. filed Dec. 12, 2003.) In the affidavit, Mr. Strezishar averred that petitioner "has been reconsidered for immigration parole under 8 C.F.R. § 212.12" and has been notified that "his parole into the community is conditioned upon his initial release to the sponsorship of a halfway house program." (Aff. ¶ 4.) It further averred that petitioner was scheduled to commence a halfway house program on December 18, 2003, in Tyler, Texas. ( Id. ¶ 5.)
On December 23, 2003, petitioner responded to that affidavit, again asserting that this case is not moot and requesting that the Court stay consideration of the instant petition until the Tenth Circuit Court of Appeals rules upon a pending motion to dismiss in an action raising similar claims in that court. (Resp. to Strezishar Decl. at 1-5.) On January 13, 2004, the government filed a reply to the December 23, 2003 response urging the Court to dismiss the instant action as moot and to deny the requested stay. ( See Reply to Resp. to Strezishar Decl. at 1-4.) On March 3, 2004, the government advised the Court that petitioner had been released from his halfway house placement on February 6, 2004, and was then residing in Alto, Texas. ( See Status Report Request that Court Dismiss Pet.) It again requested dismissal of this action. ( Id.) On March 11, 2004, petitioner reasserted that the instant action is not moot and again requested a stay of this action until the Tenth Circuit makes its ruling. (Resp. to Status Report Request that Court Dismiss Pet.)
D. Substantive Claims : Petitioner claims that respondents have denied him parole pursuant to 8 C.F.R. § 212.12 in violation of his due process rights. (Pet. at 7-9.) He contends that the relevant immigration authority abused its discretion when it denied him parole based solely on his dated criminal record. ( Id. at 9-12.) He further contends that his substantive due process rights continue to be violated by his continued detention. ( Id. at 12.) He asserts that he is entitled to release pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001). ( Id. at 13-14.)
E. Requested Relief : Petitioner seeks release from immigration custody. (Pet. at 14.) More specifically, he wants the Court to "overturn" the July 22, 2002 parole decision, "or at the very least, order a new Cuban Review Panel to convene immediately to reevaluate [his] eligibility for immigration parole." (Reply Brief at 11.) He wants "a legitimate parole hearing pursuant to 8 C.F.R. § 212.12," and to be granted parole. ( Id. at 9-10.)
F. Procedural Issue : The government argues that the release of petitioner subject to supervision renders this action moot and that petitioner has received all the relief that he has sought in this action. ( See Status Report Request that Court Dismiss Pet.; Reply to Resp. to Strezishar Decl. at 2-3.) It further argues that "[t]he threat that the petitioner may violate the law or otherwise fail to abide by the conditions of his immigration parole cannot serve to preserve a case or controversy." ( Id. at 3-4.)
Petitioner maintains that the action is not moot. ( See Resp. to Notice of Information at 1-2; Resp. to Strezishar Decl. at 1-5; Resp. to Status Report.) He argues that his transfer to "a halfway house facility in Tyler, Texas does not moot his claims . . . [and his] case continues to present a live case or controversy requiring the attention of the Court." (Resp. to Strezishar Decl. at 1.) He argues that the government continued to unlawfully detain him while he completed the halfway house program. ( Id. at 2.) He further argues that release from that program would also not moot his constitutional claim under Zadvydas. ( Id.) He asserts that his release on parole under the Cuban Review Plan does not change his custody status because he would still be in custody of the government, and this Court would therefore retain jurisdiction over the instant petition. ( Id. at 3.) He further asserts that a live controversy still exists because the government could revoke his parole at any time. ( Id.) He also argues that the voluntary cessation of a challenged practice does not moot his case. ( Id. at 4.)
II. JURISDICTION
"Article III of the Constitution limits federal `Judicial Power,' that is, federal-court jurisdiction, to `Cases' and `Controversies.'" United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395 (1980). Not only must there be a live "case or controversy at the time the complaint is filed" but "the general principles of Art. III jurisdiction require that the plaintiff's personal stake in the litigation continue throughout the entirety of the litigation." Sosna v. Iowa, 419 U.S. 393, 402 (1975); see also, Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (recognizing that "[t]o qualify as a case fit for federal-court adjudication, `an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed'").
The case-and-controversy requirement encompasses the interrelated principles of standing and mootness. See Arizonans for Official English, 520 U.S. at 64-67. "One commentator has defined mootness as `the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).'" Geraghty, 445 U.S. at 397 (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)); but see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (recognizing that this description of mootness "is not comprehensive").
The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The `gist of the question of standing' is whether the party seeking relief has `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.Flast v. Cohen, 392 U.S. 83, 99-100 (1968) (citation omitted). Whether the issue is one of standing or of mootness, the relevant inquiry is whether the plaintiff (or in this case the petitioner) has a legally cognizable interest in the outcome. Differences between the two issues nevertheless arise when dealing with exceptions to the mootness doctrine and when determining who has the burden of persuasion. See Friends of the Earth, Inc., 528 U.S. at 190-91.
In this case, the government argues that this action is moot because petitioner has obtained all the relief that he sought in the instant action. By this action, petitioner challenges a July 22, 2002 decision of the Cuban Review Panel to deny him parole. (Pet. at 6-7; Reply Brief at 2, 5.) He seeks release from immigration custody pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001). (Pet. at 13-14.) Specifically, he wants the Court to "overturn" the July 22, 2002 parole decision, "or at the very least, order a new Cuban Review Panel to convene immediately to reevaluate [his] eligibility for immigration parole." (Reply Brief at 11.) He wants "a legitimate parole hearing pursuant to 8 C.F.R. § 212.12," and to be granted parole. ( Id. at 9-10.) However, the government has now reevaluated petitioner's eligibility for immigration parole and granted petitioner such parole. It has released him from immigration detention subject to typical conditions of supervised release. ( See Conditions of Parole attached to Status Report filed on Dec. 24, 2003.)
As a preliminary matter, petitioner's assertion that his release does not change his custody status, ( see Resp. to Strezishar Decl. at 1.), confuses two distinct issues — custody and mootness. That he remains in custody for purposes of filing a petition for writ of habeas corpus does not mean that events have not rendered the instant action moot or that he remains in immigration detention. Because jurisdiction is determined at the time a petition is filed and is not necessarily defeated by a subsequent release from custody while the petition is pending, the jurisdictional issue is one of mootness, not custody, when petitioners are released or deported after the filing of their petitions. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
With regard to whether the instant action remains a live case or controversy, petitioner relies on Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) to support his position. In Rosales-Garcia, the Sixth Circuit concluded that the release of a Mariel Cuban detainee did not moot his application for habeas relief because such release merely constituted a "reprieve from detention," rather than a termination of detention. 322 F.3d at 396. It also found that the case was one of voluntary cessation and fell within an exception to the mootness doctrine in that it was capable of repetition yet evading review. Id.
The Tenth Circuit recently examined different approaches taken by different circuits with respect to the mootness issue, including the one in Rosales-Garcia. See Suarez-Tejeda v. United States, 85 Fed. Appx. 711, No. 02-6341, 2004 WL 68758, at *3 (10th Cir. Jan. 16, 2004). Suarez-Tejeda also involved a similarly-situated Mariel Cuban who was (1) ordered to be excluded and deported after the revocation of his immigration parole for an armed robbery conviction and parole violations, (2) detained thereafter in immigration custody, (3) refused parol under the Cuban Review Plan, and (4) released from immigration custody prior to the federal court's determination of his habeas petition. Id. at *1-2. Declining to follow the approach taken in Rosales-Garcia, the Tenth Circuit found that petitioner's threatened future injury of parole revocation was too attenuated to satisfy Article III's case and controversy requirements. See id. at *3-5. Because petitioner had been released from indefinite immigration detention, the Tenth Circuit found the petition before it moot. Id. at *4. It further found no recognized exception to the mootness doctrine applicable. Id.
Although citation of unpublished decisions of the Tenth Circuit is disfavored, such decisions may be cited when they have "persuasive value with respect to a material issue that has not been addressed in a published opinion" and when such citation will "assist the court in its disposition." See 10th Cir.R. 36.3. The Court finds these requirements met in this instance.
There is no binding opinion from the Fifth Circuit Court of Appeals that addresses the mootness issue in the precise context now before the Court. In the absence of such authority, the Court finds the reasoning in Suarez-Tejeda persuasive. Because the government has reevaluated petitioner's eligibility for immigration parole, granted him such parole, and released him from immigration detention subject to conditions of supervised release, petitioner has already obtained all the relief that he sought in the instant action. In fact, he has obtained all the relief to which he would have been entitled had he succeeded on the instant petition for writ of habeas corpus. As such, he no longer has a legally cognizable interest in the outcome. See Ibrahim v. INS, No. 3:02-CV-0770-M, 2003 WL 292172, at *1 (N.D. Tex. Feb. 7, 2003) (finding petition moot when the petitioner had "obtained all the relief to which he [wa]s entitled"). Additionally, when a petitioner merely contests the imposition and duration of his confinement, the case becomes moot when he is no longer confined. See Lane v. Williams, 455 U.S. 624, 631 (1982). When "a dispute has been resolved or if it has evanesced because of changed circumstances, including the passage of time, it is considered moot." American Med. Ass'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988).
In Gisbert v. United States Attorney General, 988 F.2d 1437, 1440 n. 5 (5th Cir. 1993) the Fifth Circuit held without analysis that a petition of a Mariel Cuban was mooted by the petitioner's release. Because the Fifth Circuit later amended the opinion to omit the footnote regarding mootness, see Gisbert v. United States Attorney Gen., 997 F.2d 1122, 1123 (5th Cir. 1993), the original Gisbert has no precedential value related to the mootness issue.
The Supreme Court has never denied "the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions." Zadvydas v. Davis, 533 U.S. 678, 695 (2001). Zadvydas addressed "whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States." Id.
There are exceptions to the mootness doctrine, however. Courts 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.See Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002) (quoting Chong v. District Director, INS, 264 F.3d 378, 384 (3d Cir. 2001) and collecting cases).
Petitioner further argues that this case fits within the second exception, i.e., the wrongs which he has alleged are capable of repetition yet evading review. To satisfy this exception to the mootness doctrine, petitioner "must show either a `demonstrated probability' or a `reasonable expectation'" that he would find himself back in immigration detention. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)); see also Benavides v. Housing Authority, 238 F.3d 667, 671 (5th Cir. 2001) (recognizing that the party asserting this exception carries the burden). This "standard is not `mathematically precise' but "requires only a `reasonable likelihood' of repetition." Oliver, 276 F.3d at 741 (quoting Honig v. Doe, 484 U.S. 305, 318-19 (1988)). Petitioner has not made that showing.
Moreover, such exception only applies when "(1) the challenged action was in its duration 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); accord Spencer v. Kemna, 523 U.S. 1, 17 (1998); Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990); United States v. Brown, 250 F.3d 907, 913 n. 8 (5th Cir. 2001). The instant case does not satisfy the first prong of that test. Nothing reasonably suggests that, if petitioner finds himself back in immigration detention, his detention will be of such short duration that he cannot fully litigate his issues then.
Petitioner also argues that the voluntary cessation of the wrongful conduct by the government does not render this action moot under the third exception to the doctrine. Such 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 parties from litigation opponents "who seek to evade sanction by predictable `protestations of repentance and reform.'" Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 66-67 (1987) (quoting United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952)). The party asserting mootness "must demonstrate that it is `absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Id. at 66 (quoting United States v. Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)).
Petitioner argues that because the government can revoke his parole at any time, "it is far from being `absolutely clear' that the potentially indefinite detention . . . by the Government cannot be reasonably expected to recur." (Resp. to Strezishar Decl. at 4.) The government, on the other hand, argues that "the risk that the petitioner may again be subject to prolonged detention . . . is uniquely within his own control." ( See Reply to Resp. to Strezishar Decl. at 3-4.) It states that "petitioner's parole may be revoked if he violates its conditions, when its purpose has been served or expired without renewal, or when it is appropriate to commence proceedings or enforce an order of exclusion." ( Id. at 3 n. 2.)
Although the government must show that it is "absolutely clear" that further detention is not reasonably expected to occur, it need not show that it is absolutely certain that further detention will not occur. For the alleged wrong to recur, petitioner would have to return to immigration detention. Based upon information from the government, the Court finds that it is absolutely clear that further detention is not reasonably expected to recur. See Calhoun v. Cockrell, No. 3:00-CV-2571-G, 2002 WL 108348, at *4 (N.D. Tex. Jan. 22, 2002) (declining to find alleged unlawful activity of respondent reasonably likely to resume where petitioner who had been released on discretionary mandatory supervision would have to return to prison for such recurrence). Furthermore, nothing suggests that petitioner's release was the result of any attempt by the government to evade review. It merely appears that petitioner happened to be released on parole before this Court ruled on his pending petition. In such circumstances, the narrow exception of voluntary cessation is inapplicable. See Suarez-Tejeda v. United States, 85 Fed. Appx. 711, No. 02-6341, 2004 WL 68758, at *3 (10th Cir. Jan. 16, 2004).
For all of these reasons, the Court finds the instant action moot. Petitioner has obtained all the relief that he sought in his application for writ of habeas corpus. Federal courts, moreover, 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. See Church of Scientology v. United States, 506 U.S. 9, 12 (1992).
Fed.R.Civ.P. 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter." Because this action is moot, the Court should dismiss this action for lack of jurisdiction and deny the requested stay. Although the government may resume detention of petitioner at some future date, such possibility is not reasonably expected to occur, and if it does, petitioner would have the writ of habeas corpus available to him again at that time.