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,

on the 10th 4 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

4