2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-2012

Rami Shalhoub v. U.S. Atty Gen, et al.

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3296

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NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 10-3296

___________

RAMI SHALHOUB, 

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

for the Middle District of Pennsylvania

(D.C. No. 1-09-cv-00976)

District Judge: Honorable William W. Caldwell

Submitted under 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 N 
2

ROTH, Circuit Judge:

Rami Shalhoub appeals the District Court’s order denying his petition for 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 

country. He argued that this detention, because it was prolonged and imposed without a 

bond hearing, was both statutorily unauthorized and a violation of his constitutional right 

to due process. He has since been released, however, and we find that there is no 

reasonable expectation that he will again be detained. We conclude therefore that his 

petition is moot and we will dismiss it.

I. BACKGROUND

Shalhoub is a native and citizen of Palestine. On December 3, 2005, he gained 

entry into the United States through the use of a fraudulent passport. 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 proceedings were immediately 

commenced, in which Shalhoub was charged with unlawfully entering the United States 

with a visa obtained by using another individual’s identity.1

Separately from his removal proceedings, Shalhoub was criminally charged with

(1) fraud and misuse of visas, permits, and other documents, in violation 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 Shalhoub 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 was sentenced to twentyfive months in prison. 

On account of these convictions, ICE added an additional charge to Shalhoub’s

removal proceedings: that he 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 States. 

However, because the judge found that Shalhoub faced a risk of being tortured in Jordan, 

the order prohibited ICE from removing him through Jordan and specified that he be 

removed through Israel.3

On November 7, 2008, Shalhoub was released from criminal custody and

immediately taken into ICE custody. ICE began the process of removing Shalhoub 

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 instead 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 granting Shalhoub withholding of removal to 

Jordan, which ICE appealed to the Board 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. On January 12, 2010, 

he filed an amended petition for a writ of habeas corpus, in which he requested that the 

District Court order either that he be released or that he be given a bond hearing. On 

June 1, 2010, the Court denied this request. It found that Shalhoub was not subject to a 

final order of removal because, in light of ICE’s then pending appeal to the BIA, his

removal proceedings had not yet been completed. And because of Shalhoub’s visa fraud

conviction, the court also held that, pursuant to 8 U.S.C. § 1226(c)(1)(B), detention

during the entire pendency of his removal proceedings was mandatory. Finally, the court 

held that, considering the complications that arose in completing Shalhoub’s removal, his

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, detention may last for only a “brief 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 

approximately 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 

justification 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 supervision” or

“that he immediately be provided a constitutionally adequate hearing where the 

government bears the burden of demonstrating that his continued detention is justified.”
5

On February 28, 2011, ICE’s appeal of the withholding of removal to Jordan was 

resolved after multiple proceedings before both the BIA and the IJ when Shalhoub was 

again granted withholding of 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 identify 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 moved 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, 484 (1982). If there is no meaningful relief that can be granted to a 

plaintiff in satisfaction of his claims, he lacks this 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 petition, Shalhoub requests only that he be granted either supervised 

release or a bond hearing through which he could obtain such release. However, because 

ICE has now released him, there is no meaningful relief that he can obtain on his habeas 

petition. As a result, that petition is moot.

Shalhoub urges that, notwithstanding 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 (2011) (citation and internal quotation marks omitted). 

Under this exception to the mootness doctrine, 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 cessation 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 

quotation marks omitted). We find, though, that there is no reasonable expectation that 

Shalhoub will again be subjected 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 expired. While this 

detention can be extended in certain exceptional circumstances, see id. at §§ 
7

1231(a)(1)(C), (6), Shalhoub’s release at the approximate conclusion of the removal 

period and the statement in his Order of Supervision that he was being released because 

that period had expired lead us to conclude that there is no reasonable expectation that 

ICE will attempt to do so.

Shalhoub argues that his petition is not moot under our decision in Diop v. ICE,

656 F.3d 221 (3d Cir. 2011), but that case is distinguishable. In Diop, we did find that a 

removable alien’s challenge to his pre-final order detention was not mooted by his release 

because his detention was capable of repetition while evading review. In that case, the 

alien was released as a result of the vacatur of the criminal conviction that mandated his 

pre-final order detention. Because the Government’s position implied that the 

reinstatement of the conviction on a then-pending appeal would require the alien to go 

back into custody, we held that there was a reasonable expectation that he would once 

again be detained. However, no similar circumstances are present in this case.

Shalhoub 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 the witness had been released. But we did so on the basis of our finding that 

the witness’s confinement was “capable of repetition,” 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. As we have already explained, however, in Shaloub’s case, there is 

no reasonable expectation of further detention. While we stated in dictum in Frumento
8

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 because 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 moot, we lack jurisdiction to resolve his

appeal. We will accordingly vacate 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).