         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   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




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