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.** 

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 10 th** **day of February, two thousand fourteen.** 4
5 **PRESENT: DENNIS JACOBS,** 6 **RAYMOND J. LOHIER, JR.,** 7 **CHRISTOPHER F. DRONEY,** 8 Circuit Judges

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11 **GERMAN LEYBINSKY,** 12 13 **Petitioner-Appellant,** 14 15 **v. 13-762** 16
17 **UNITED STATES IMMIGRATION AND CUSTOMS** 18 **ENFORCEMENT, CHRISTOPHER SHANAHAN,** 19 **DISTRICT DIRECTOR,** 20
21 **Respondents-Appellees.** 22

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24 **FOR APPELLANT: Georgia J. Hinde, New York, NY.** 25 26 **FOR APPELLEES: Patricia L. Buchanan (Emily E. Daughtry,** 27 **on the brief ), for**  **Preet Bharara, United** 28 **States Attorney for the Southern District** 29 **of New York, New York, NY.** 30Appeal from a judgment of the United States District 1 Court for the Southern District of New York (Abrams, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 4 **AND DECREED**that the appeal be **DISMISSED**and the judgment of 5 the district court be **VACATED AND REMANDED**with directions 6 to dismiss the action. 7 8 German Leybinsky appeals the denial of his petition for 9 a writ of habeas corpus. He argues that, in view of his 10 repeated detentions in contemplation of removal and the past 11 refusals of any countries to issue travel documents, any 12 further civil detention by U.S. Immigration and Customs 13 Enforcement (“ICE”), absent a showing that his removal is 14 reasonably foreseeable or that he poses a risk of flight or 15 danger to the community, would cumulatively violate the 16 limits on detention imposed by Zadvydas v. Davis , 533 U.S. 678 17 (2001) . We assume the parties’ familiarity with the 18 underlying facts, the procedural history, and the issues 19 presented for review. 20 21 Our analysis begins--and ends--with whether Leybinsky’s 22 petition is moot given his release from ICE custody on 23 August 30, 2010. “Under Article III of the U.S. 24 Constitution, when a case becomes moot, the federal courts 25 lack subject matter jurisdiction over the action.” Doyle v. 26 Midland Credit Mgmt., Inc. , 722 F.3d 78, 80 (2d Cir. 2013) 27 (internal quotation marks and brackets omitted). To avoid 28 mootness, “throughout the litigation, the plaintiff must 29 have suffered, or be threatened with, an actual injury 30 traceable to the defendant and likely to be redressed by a 31 favorable judicial decision.” Spencer v. Kemna , 523 U.S. 1, 32 7 (1998) (internal quotation marks omitted). 33 34 Following his release from ICE custody, Leybinsky is no 35 longer suffering an “actual injury.” Nor has Leybinsky 36 established any “collateral consequences adequate to meet 37 Article III’s injury-in-fact requirement.” Id. at 14. The 38 only consequence Leybinsky fears--future detention--is a 39 consequence of his final order of removal, not of his most 40 recent detention. 41 42 The district court ruled that Leybinsky’s petition is 43 saved from mootness because the challenged conduct is 44

2capable of repetition yet evading review. See Leybinsky v. 1 U.S. Immigration & Customs Enforcement , 10 Civ. 5137 (RA), 2 2013 WL 132544, at *5-7 (S.D.N.Y. Jan. 8, 2013). “[T]he 3 capable-of-repetition doctrine applies only in exceptional 4 situations.” City of Los Angeles v. Lyons , 461 U.S. 95, 109 5 (1983). “[T]he following two circumstances [must be] 6 simultaneously present: (1) the challenged action is in its 7 duration too short to be fully litigated prior to its 8 cessation or expiration, and (2) there [is] a reasonable 9 expectation that the same complaining party [will] be 10 subjected to the same action again.” Lewis v. Cont’l Bank 11 Corp. , 494 U.S. 472, 481 (1990) (internal quotation marks 12 and brackets omitted). 13 14 Leybinsky has not shown a “reasonable expectation” that 15 he will be subjected to the same action again. In the past, 16 Leybinsky has been detained pursuant onlyto 8 C.F.R. § 17 241.4(l)(1), (2)(ii) for violating the conditions of his 18 release, most recently by engaging in criminal conduct. See 19 App. 47 (June 2010 Notice of Revocation of Release states 20 that release is revoked because of a disorderly conduct 21 conviction and bribery charge). Leybinsky is “able--and 22 indeed required by law--to prevent such a possibility from 23 occurring.” Spencer , 523 U.S. at 13 (internal quotation 24 marks omitted). It cannot be assumed for this purpose that 25 Leybinsky will continue to violate the terms of his release 26 and become subject to renewed detention. 27 28 Other subsections of the regulation do allow ICE to 29 revoke release if, “in the exercise of discretion” and “in 30 the opinion of the revoking official,” “[t]he purposes of 31 release have been served” or “[t]he conduct of the alien, or 32 any other circumstance, indicates that release would no 33 longer be appropriate.” 8 C.F.R. § 241.4(l)(2). But 34 regardless of the broad discretionary authority the 35 regulation grants ICE, this particular petitionerhas been 36 subject to detention only for specific (and most recently, 37 criminal) violations of the terms of his release. Leybinsky 38 has made no showing that he is in foreseeable danger of 39 arbitrary detention under a different regulatory provision. 40 41 We have considered all of Leybinsky’s remaining 42 arguments and conclude that they are without merit. The 43 appeal is hereby DISMISSED and the judgment of the district 44

3court VACATED AND REMANDED with directions to dismiss the 1 action. 2 3 FOR THE COURT: 4 CATHERINE O’HAGAN WOLFE, CLERK 5 6

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