2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/1233NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No

. 10

- 3296

___________

RAMI SHAL H OUB , Appellant v. ATTORNEY GENERAL OF THE UNITED STATES; SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY; SECRETARY, U.S . IMMIGRATION

AND CUSTOMS ENFORCEMENT; PHILADELPHIA FIELD OFFICE DIRECTOR FOR DETENTION; WARDEN, YORK COUNTY PRISON, YORK, PENNSYLVANIA

On Appeal from the United States District Court f

or the Middle District of Pennsylvania (D.C. No. 1

- 09

- cv - 00976 ) District Judg e: Honorable William W. Caldwell

Submitted u nder Third Circuit LAR 34.1(a) On October 27, 2011

Before: FISHER, VANASKIE and ROTH, Circuit Judges
(Opinion filed: March 30, 2012 )

O P I N I O N2 ROTH, Circuit Judge : R ami Shal h oub appea ls the District Court’s order denying his petition fo r a writ of habeas corpus. At the time Shalhoub filed his petition, United States Immigration and Customs Enforcement (ICE) was holding him in custody pending his removal from the

coun tr y . H e argued that this detention , because it was prolonged and imposed without a bond hearing , was both statutorily unauthorized and a violation o f his constitutional right to due process. He h as since been released, however , and we find that there is no reasonable expectation that he wil l again be detained . We concl ude therefore that his petition is moot and we will dismiss it.
I. BACKGROUND Shal h oub is a native and citizen of Palestine. On December 3, 2005, he gained entry into the United States t hrough the use of a fraudulent pa ssport. His illegal entry was eventually detected, and on November 13, 2006 , he was apprehended by a New Jersey police officer and detained by ICE. Removal proceed ings were immediately commenced, in which Shalhoub was cha rged with unlawfully entering the United States with a visa obtained by using another individual’s identity. 1 Separately from his removal pr oceedings, Shalhoub was criminally charged with (1) fraud and misuse of visas, permits, and other documents, in vio lation of 18 U.S.C. §§ 1546(a) and 2, and (2) aggravated identity theft during and in relation to that fraud and misuse, in violation of 18 U.S.C. §§ 1028A(a)(1) and (2). On December 11, 2007,

1 Shalhou b obtained the visa to enter the United States by using a Jordanian passport bearing his photograph but the name of his cousin, a Jordanian citizen.3 Shalhoub pleaded guilty to these charges, was convicted, and w as sentenced to twenty

five months in prison.
O n account of these convictions , ICE added an additiona l charge to Shalhoub’s removal proceedings: that h e was an alien who had been convicted of an “ aggravated felony. ” 2 See 8 U.S.C. § 1227(a)(2)(A)(iii). On August 11, 2008, an immigration judge (IJ) issued a final order directing that Shalhoub be removed from the United St ates. However, because the judge found that Shalhoub fa ced a risk of being tortured in Jordan,
the order prohibited IC E from removing him through Jordan and specified that he be removed through Israel. 3 On November 7, 2008, Shalhoub was releas ed from criminal custody and immediately taken into ICE custody. ICE began the process of removing Shal h oub through Israel, but its efforts were frustrated by the Israeli government ’s refusal to grant the necessary permission for him to transit its borders. On September 1, 2009, ICE therefore filed a motion to reopen Shalhoub’s immigration proceedings in order to obtain authority to remove him in stead through Jordan. On September 16, 2009, the proceedings were reopened, and Shalhoub filed for protection from removal through Jordan. The (IJ) ultimately issued an order grant ing Shalhoub withholding of removal to Jordan, which ICE appealed to the B oard of Immigration Appeals (BIA)

.

2 An offense of passport fraud for which the term of imprisonment is at least twelve months constitutes an aggravated felony. See 8 U.S.C. § 1101(a)(43)(P).

3 Shalhoub’s removal to Palestine could be completed only by transit through one of these two countries.4 Shalhoub remained in ICE custody throughout this process. O n January 12, 2010, he filed an amended petition for a writ of habeas corpus, in which he requested that the Distric t Court order either that he be released or t hat he be given a bond hearing. On June 1, 2010, t he Court denied this request. It found that Shal h oub was not subject to a final order of removal because , in light of ICE’s then pending appeal to the BIA , his

remov al proceedings had not yet been complet ed. And because of Shal h oub’s visa fraud conviction , t he court also held that , pursuant to 8 U.S.C. § 1226(c)(1)(B) , detention during the entire pendency of hi s removal proceedings was mandatory

. Finally, the c ourt held that, considering the complication s that arose in completing Shalhoub’s removal, hi s detention was not unreasonably long and thus did not violate his right to due process. On July 29, 2010, Shalhoub filed this appeal

. He argues that , when removable aliens detained pre - final order , detent ion may last for only a “bri ef period,” not for a period as prolonged as his own detention

. 4

4 At the time he filed his amended habeas petition, Shalhoub had been in ICE custody for approxim ately fourteen months. He claims that , by statute, ICE can keep him in custody for a prolonged period only if it shows at a bond hearing that it has a strong justifica tion for doing so. Shalhoub contends in the alternative that prolonged detention without this procedural safeguard violates his right to due process . On these bases, he asks for either his “immediate release under reasonable conditions of supe rvision” or
“that he immediate ly be provided a constitutionally adequate hearing where the government bears the burden of demonstrating that his continued detention is justified.”5 O n February 28 , 2011, ICE’s appeal of the withholding of removal to Jordan was resolved a fter multiple pr oceedings before both the BIA and the IJ when Shalhoub was again granted withholding o f removal to Jordan. On May 27, Shalhoub was released
from detention under an Order of Supervision. On July 26, ICE filed a motion with the immigration court to identif y Israel as his country of removal. On August 25, 2011, the
IJ issued an amended removal order directing that Shalhoub be removed to Israel, which ICE did not appeal. ICE argues that these events have rendered Shalhoub’s habeas petition moot and has move d to dismiss the petition.
II. DISCUSSION Article III of the United States Constitution empowers federal courts to exercise
their judicial power only over actual cases and controversies. North Carolina v. Rice , 404 U.S. 244, 246 (1971). Federal courts therefore have no authority “to decide questions that cannot affect the rights of litigants in the case before them.” Id. This limitation “subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp

. , 494 U.S. 472, 477 (1990). For this reason, any time
that the parties to a case come to “lack a legally cognizable interest in [its] outcome,” the case is deemed moot and must be dismissed for lack of jurisdiction

. Murphy v. Hunt , 455 U.S. 478, 481, 48 4 (1982) . If there is no meaningful relief that can be granted to a plaintiff in satisfaction of his claims, he lacks th is requisite interest

. See Calderon v.
Moore , 518 U.S. 149, 150 (1996); Abdul

- Akbar v. Watson , 4 F.3d 195, 206

- 07 (3d Cir. 1993).6 In his habeas petitio n, Shalhoub requests only that he be granted either supervised release or a bond hearing through which he could obtain such release. However, becaus e ICE has now released him , there is no meaningful relief that he can obtain on his habea s petition . As a result, that petition is moot. Shalhoub urges that, notwithstandi ng his release, our jurisdiction persists because
his detention is “capable of repetition while evading review.” See Turner v. Rogers , 564
U.S.

— , 131 S. Ct. 2507, 2515 (2 011) (citation and internal quotation marks omitted)

. Under this excep tion to the mootness doctr ine, federal courts possess jurisdiction over a dispute if “(1) the challenged action [ is ] in its duration too short to be fully litigated prior to its cessati on or expiration, and (2) there is a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Id. (citation and internal
quo tation marks omitted). We find, though, that there is no reasonable expectation that Shalhoub will again be subject ed to immigration detention. We reach this conclusion because, now that there is a final order of removal in his case, Shalhoub is ineligible for
pre - final order detention. That type of detention could be imposed only if ICE successfully reopened Shalhoub’s immigration proceedings

. However, given that ICE obtained its desired result in the most recent round of proceedings

– an order identifying Israel as his country of removal

– we find that there is no reasonable expectation that this will occur. Although ICE can hold removable aliens in custody after the entry of a final order of removal, it ordinarily can do so only for a ninety day removal period , see 8
U.S.C. § 1231(a) (1)

- (3), which , in Shalhoub’s case , has already expir ed

. While this
detention can be extended in certain exceptional circumstanc es, see id. at §§7 1231(a)(1)(C), (6), Shalhoub’s release at t he approximate conclusion of the removal period and the statement in his Order of Supervision that he was being release d because that period had expired lead us to conclude that there is no reasonable expectation that
I CE will attempt to d o so. Shalhoub argues that h is petition is not moot under our decision in Diop v. ICE , 656 F.3d 221 (3d Cir. 2011), but that case is di stinguishable. In Diop , we did find that a removable alien’s challenge to his p re - final order detention was not mooted by his release because his detention was capable of repetitio n while evading review

. In that case, the alien wa s release d as a result o f the vacatur of the criminal convict ion that mandated his
pre - final order de tention

. B ecause the Gov ernment’s position implied that the reinstatement of the conviction on a then

- p ending appeal would require the alien to go back into custody , we held that there was a reasonab le expectation that he would once again be detained. Howeve r, no similar circumstances are present in this case. Shal houb additionally claims that our decision in United States v. Frumento , 552 F.2d 534 (3d Cir. 1977), requires us to adjudicate his appeal. We disagree. In Frumento ,

we exercised jurisdiction over a challenge to an order of contempt and confinement imposed on a witness who refused to testify at a criminal trial even after the trial had
ended and t he witness had been r eleased. But we did so on the basis of our finding that the witness’s confinement was “capable of repetit ion,” because he “ probably ” would be called to testify again at the trials of other defendants in related criminal proceedings. Id.
at 537

- 40; 540 n. 9. A s we have already explained, however , in Shaloub’s case , there is no reasonable expectation of further detention

. W hile we stated in dict um in Frumento8 that we would have exercised jurisdiction even if we hypothetically “could not [have] construct[ed ] or project[ed] any ‘capability of repetition’” in that case, id. at 540, we explained that that was be cause review of an order of confinement that is effective only for the duration of a criminal trial, “as a practical matter is [otherwise] not available .” Id.
at 541. The same is not true for review of immigration detention that is allegedly prolonged and indefinite

. Frumento thus fails to establish that Shaloub’s habeas petition is not moot.
III. CONCLUSION
Because Shalhoub’s habeas petition is moo t , we lack j urisdiction to resolve hi s appeal. We will accordingly vaca te the District Court’s order and remand the case with directions to dismiss the petition

. See N.J. Tpk. Auth. v. Jersey Cent. Power & Light , 772 F.2d 25, 34 (3d Cir. 1985).