[ PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 20

- 13073

____________________
GOGA DJADJU,

Petitioner

- Appellant,

versus JUAN A. LOPEZ VEGA, Assistant Field Office Director, ICE Officer in Charge of Broward Transitional Center, FIELD OFFICE DIR. JIM MARTIN, Field Office Director, Miami Field Office, Immigration Customs Enforcement, ACTING DIRECTOR, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ACTING SECRETARY OF HOMELAND SECURITY, USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 1 of 132 Opinion of the Court 20

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Respondents

- Appellees.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:20

- cv

- 61060

- WPD

____________________
Before N EWSOM and M ARCUS , Circuit Judges, and L AWSON , * District Judge.

M ARCUS , Circuit Judge : Goga Djadju , a native and citizen of North Macedonia, appeals the dismissal or, alternatively, the denial of his 28 U.S.C. § 2241 habeas petition seeking release from an alleged “unlawful and indefinite” detention by Immigration and Customs Enforcement (“ICE”). Djad ju claims that his detention by ICE officials violated the Due Process Clause of the Fifth Amendment, because it exceeded the “presumptively reasonable” 180

- day period established
in Zadvydas v. Davis , 533 U.S. 678 (2001). The district court denied Djadju relief
, concluding, among other things, that the delay in hi s removal did not violate Zadvydas because Djadju had sought and obtained an administrative stay of his removal proceedings

. Djadju

* Honorable Roger H. Lawson, Jr., United States District Judge, for the Middle District of Georgia, sitting by designation. USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 2 of 1320

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asks us to decide whether the district court properly determin ed that the administrative stay of removal affect ed his Zadvydas claim. However, certain critical events have taken place since Djadju commenced this habeas petition and since the district court decided the matter that have rendered his Zadvydas claim moot.
In November 2019 , the Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s denial of Djadju’s application s for withholding of removal and other im migration relief
, and his administrative removal order became final. Shortly thereafter, the BIA granted Djadju’s motion to reopen his removal proceedings, based on his marriage to a n American citizen, and granted him an administrative stay of removal pen ding the resolution of that motion. Several weeks later, ICE conducted a post

order custody review and concluded that Djadju sh ould remain in custody because he did not establish that his release would not pose a danger to the community or that he was not a significant flight risk pending removal. Nevertheless, in November 2020, ICE officials conditionally released Djadju from detention under an order of supervision . H e was placed on an electronic monitoring system
, where he remains a s of the writing of this opinion. Meanwhile, in a separate appeal resolved in January 2021, a panel of this Court denied Djadju’s petition for review of the agency’s original denial of immigration relief and final administrative removal order. See G.D. v. U.S. Att’y Gen. , 8 43 F. App’x 156 (11th Cir. 2021) (unpublished). USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 3 of 134 Opinion of the Court 20

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Upon learning of Djadju’s conditional release, we ordered the parties to file supplemental briefs addressing the impact, if any, of his release from detention. After reviewing the full record and holding o ral argument, we dismiss th is appeal and vacate the district court’s judgment because the case has become moot.

We review de novo the denial of a § 2241 petition. Singh v. U.S. Att’y Gen. , 945 F.3d 1310, 1313 (11th Cir. 2019). Although ourjurisdiction to consider challenges under § 2241 to an alien’s detention is limited, we have jurisdiction to address a challenge to the legal basis of the detention, including constitutional challenges. Madu v. U.S. Att’y Gen. , 470 F.3d 1362, 1368 (11th Cir. 2006).
Section 241 of the Immigration and Nationality Act (“INA”) governs the detention and post

- release supervision of aliens subject to final orders of removal. 8 U.S.C. § 1231(a). The statute provides that when an alien receives a removal order, the Attorney General has 90 days to remove him from the United States. Id . § 1231(a)(1)(A). This “removal period” begins on the latest of three dates: “[t]he date the order of removal becomes administratively final”; “[i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court ’ s final order”; and “[i]f the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.” Id

. § 1231(a)(1)(B). The removal period is extended beyond 90 days if the alien fails to make good

- faith efforts to obtain necessary travel documents or otherwise “acts to prevent [his] removal.” Id . § 1231(a)(1)(C); see also 8 C.F.R. § 241.4(g)(5)( i i) USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 4 of 1320

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(prov iding the same). In that case, the removal period is extended until the alien complies with the statutory obligations . 8 C.F.R. § 241.4(g)(1)(ii). If he does , ICE has a reasonable period of time to

e ffect the alien’s removal. Id

. An alien may use the habeas corpus provision found in 28 U.S.C. § 2241 to challenge his post removal

period detention. Zadvydas , 533 U.S. at 688. That is the route Djadju travels here.However, Article III of the Constitution “limits the jurisdiction of federal courts to ‘ca ses’ and ‘controversies,’” and the justiciability doctrine ’ s main components include mootness. See Christian Coal. of Fla., Inc. v. United States , 662 F.3d 1182, 1189 (11th Cir. 2011) (quotation marks omitted) . A cause of action becomes moot “when it no longer presents a live controversy with respect to which the court can give meaningful relief.” See id

. (quotation marks omitted)

. Because mootness is jurisdictional, we are required to resolve any question implicating the doctrine before we assume juri sdiction over an appeal. United States v. Al

- Arian , 514 F.3d 1184, 1189 (11th Cir. 2008). “[I]f an event occurs while a case is pendingon appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the app eal must be dismissed.” Brooks v. Ga. State Bd. of Elections , 59 F.3d 1114, 1118 (11th Cir. 1995) (quotation marks omitted). When we dismiss a

case as moot on appeal, we also must vacate the district court’s order

-- a practice that “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 5 of 136 Opinion of the Court 20

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which was prevented through happenstance.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1340 (11th Cir. 2001) (quotation marks omitte d). In consider ing mootness, we look at the events at the present time, not at the time the complaint was filed or when the federal order on review was issued. Dow Jones & Co. v. Kaye , 256 F.3d 1251, 1254 (11th Cir. 2001). “As a general rule, a habeas p etition presents a live case or controversy only when a petitioner is in custody.” Salmeron

-Salmeron v. Spivey , 926 F.3d 1283, 1289 (11th Cir. 2019); see also 28U.S.C. § 2241(c)(3)). The Supreme Court has held that the “in custody” requirement of § 2241 is satisfied if restrictions have been placed on a petitioner’s freedom of action or movement. See Jones v. Cunningham , 371 U.S. 236, 243 (1963) . This means that once a petitioner’s custodial sentence has expired, “some concrete and continuing injury . . . some ‘collateral consequence’ . . . must exist if the suit is to be maintained .” Spencer v. Kemna , 523 U.S. 1, 7 (1998); Salmeron

- Salmeron, 926 F.3d at 1290 (extending the “collateral consequences” doctrine to habeas petitions brought in the immigrati on context). Ultimately, the burden remains on the petitioner to establish that his case still presents a live “case or controversy” by demonstrating that a collateral consequence of his imprisonment persists after his release. See Mattern v. Sec’y for Dep’t of Corrs. , 494 F.3d 1282, 1285 (11th Cir. 2007). So where a habeas petitioner has been released from detention

-- when, for example, he is removed from the country

-- and he has not raise d a challenge to a “collateral USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 6 of 1320

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consequence,” we’ve held that h is appeal of the denial of his habeas petition has become moot

. See Soliman v. U.S. ex rel. INS , 296 F.3d 1237, 1243 (11th Cir. 2002) (“Soliman ’ s appeal [ of an order denying his release from his detention] is now moot because there exists no active case or controversy . . . [s]ince he was removed from the United States to Egypt on June 11, 2001 [and] is no longer being detained by the INS”); Salmeron

- Salmeron , 926 F.3d at 1290 (citing Soliman and holding that a habeas petition filed by a subsequently deported alien who challenged only his detention, not his final order of removal, was moot); Sopo v. U.S. Att ’ y Gen. , 890 F.3d 952, 953 (11th Cir. 2018) (vacating prior opinion concern ing whether § 1226(c) detainees must be afforded bond hearings and dism issing as moot based on petitioner ’ s removal)

. The fundamental question is whether events have occurred that deprive us of the ability to give the appellant meaningful relief. Al

- Arian , 514 F.3d at 1189. Here, Djadju has asked the federal courts for only one form of relief : to be immediately released from custody as a result of his “ongoing prolonged detention.” 1 Since

1 The prayer for relief in his habeas petition stated in full reads this way : WHEREFORE, Petitioner prays that the C ourt grant the following relief: (1) Assume jurisdiction over this matter; (2) Pursuant to 28 U.S.C. § 2243 issue an order directing Respondents to show cause why the writ of habeas corpus should not be granted; (3) Order a hearing on the Petition as soon as is possible; USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 7 of 138 Opinion of the Court 20

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Djadju already has been released from custody , his prayer for relief has been satisfied. Notably
, even in his briefing to us, Djadju h as not argued that the order of supervision is a form of custody for habeas purposes
, n or that he is suffering any collateral consequences resulting from the order . N or has he even told us what his conditions of release are

. Without any challenge to a collateral
consequence

-- indeed, without any suggestion from the petitioner that he is suffering from any constitutional harm, other than the detention itself

-- we are unable to provide him with a ny re medy pursuant to § 2241

. See Troiano
, 382 F.3d at 1282.

Since we can offer Djadju no relief, w e find ourselves with a classic case of mootness : “If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to

(4) Grant Mr. Djadju a writ of habeas corpus directing the Respondents to immediately release Mr. Djadju from custody;(5) Enjoin Respondents from transferring Mr. Djadju out of the jurisdiction of the ICE Miami Field Office during the pend ency of these proceedings and while Mr. Djadju remains in Respondents’ custody; and (6) Award Mr. Djadju attorney’s fees and costs under the Equal Access to Justice Act (EAJA), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justifi ed under law; and (7) Grant any other and further relief as the Court deems just and proper. In substance, these seven clauses only asked for Djadju to be released fromcustody, which has already happened. His petition did not seek any relief concerning h is conditions of release. USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 8 of 1320

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give the plaintiff or appellant meanin gful relief, then the case is moot and must be dismissed. [In these circumstances] , dismissal is required because mootness is jurisdictional. Any decision on the merits of a moot case or issue would be an impermissible advisory opinion.” Id

. (quotation m arks omitted). The mootness requirement

-- as derived from the Constitution’s case

- or

- controversy limitation

-- “ goes to the heart of our constitutional doctrine of the separation of powers and the proper role of the judiciary. ” Id

. We cannot wade into any question the petitioner has raised. Thus, i f we were to opine about whether Djadju could be re

- detained, whether the government is prepared to remove him immediately,

or whether the administrative stay of his removal proceedings affect s his claim s

-- all the while he is released from custody and he is not claiming any collateral consequence arising from his order of release

-- we would be offering a wholly advisory opinion. The Constitution has prohibited us from doing this

. Anticipating this, Djadju argues that his release from custody was merely the result of the government’s “voluntary cessation” of illegal conduct
, and, thus, that his release should not bar his appeal from proceeding on mootness grounds . Ordinarily, a party’s “voluntary cessation” of conduct challenged in a lawsuit does not moot a case; in those instances, the party responsible for the allegedly illegal conduct bears the burden of showing that it is absolutely clear the allegedly wrongful behavior cou ld not reasonably be expected to recur. Keohane v. Fla. Dep’t of Corr. Sec’y , 952 USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 9 of 1310 Opinion of the Court 20

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F.3d 1257, 1267 (11th Cir. 2020), pet

. for cert. denied , (U.S. Oct. 4, 2021) (No. 20

- 1553).
But we take a somewhat different approach when a governmental entity voluntaril y ceases the challenged action. Because “there is a presumption that the government will not later resumethe action,” the opposing party must show a reasonable expectation that the government will reverse course. Walker v. City of Calhoun , 901 F.3d 1245 , 1270 (11th Cir. 2018); Troiano v. Supervisor of Elections in Palm Beach Cty., Fla. , 382 F.3d 1276, 1283 (11thCir. 2004) (“[W]hen the defendant is not a private citizen but a government actor, there is a rebuttable presumption that the objectionable beha vior will not recur. . . [C]essation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties. . . Courts are more apt to trust public officials than private defenda nts to desist from future violations” (quotation mark s and internal citations omitted)); Coral Springs St. Sys., Inc. v. City of Sunrise , 371 F.3d 1320, 1328

– 29 (11th Cir. 2004) (“[G]overnmental entities and officials have been given considerably more leew ay than private parties in the presumption that they are unlikely to resume illegal activities.”). Notably, however, we have never addressed the “voluntary

- cessation” doctrine in the habeas immigration context, and USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 10 of 1320

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it is not clear that it would apply to a claim like this, which is tied to a petitioner’s custody. 2
W here the “voluntary

- cessation” exception to mootnessdoes apply, we examine three factors to determine whether a reasonable expectation that the government will reverse course exists
, including whether : (i) the change in conduct resulted from substantial deliberation or is merely an attempt to manipulate jurisdiction; (ii) the government’s decision to terminate the challenged conduct was unambiguous, i.e., permanent and complete; and (iii) the go vernment has consistently maintained its commitment to the new policy or legislative scheme. Walker , 901 F.3d at 1270. Those considerations are not to “ be viewed as exclusive nor should any single factor be viewed as dispositive,” so a court should find a case moot “when the totality of the circumstances persuades the court that there is no reasonable expectation that the government entity will reenact the challenged policy.” Keohane, 952 F.3d at 1268 (quotation mark s omitted and alteration accepted). Mo reover, “[t]he

2 This remains an open question for some of our sister circuits as well

. See, e.g. , Riley v. I.N.S. , 310 F.3d 1253, 1257 (10th Cir. 2002) (suggesting that the “exception of voluntary cessation may be applicable” where an alien has been released from INS custody, but avoiding the issue); Picrin

- Peron v. Rison , 930 F.2d 773, 776 (9th Cir. 1991) (noting th at Supreme Court has never applied the voluntary

- cessation exception in a habeas case, and suggesting, without deciding, that the “voluntary

- cessation” exception is more appropriate in other contexts, where “a type of judgment with continuing force, such a s an injunction, is sought”) (quotation marks omitted)

. USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 11 of 1312 Opinion of the Court 20

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remote possibility that an event might recur is not enough to overcome mootness.” Al Najjar , 273 F.3d at 1336.
Here, we need not and do not decide whether the voluntary

cessation doctrine appl ies in the habeas immigration context because even if it did, it has not been satisfied. For starters, the government released Djadju from custody under an order of supervision, following the procedures set forth in 8 C.F.R. § 241.4
, after the district court denied his habeas petition , sugge sting that there was no link between this lawsuit and its action. Further
, the government has described Djadju’s detention as having “ceased,” and,

a s of now
, more than fif teen months have passed since Djadju ’s release in November 2020. See Walker , 901 F .3d at 1270

. The government also conced ed at oral argument that before it could re

detain Djadju, it would need to overcome various administrative hurdles

-- showing , for example, that Djadju violated the order of supervision, or that he would likely be r emov ed in the reasonably foreseeable future

-- making it unlikely that he would be re

- detained while the administrative stay is in place. See Honig v. Doe , 484 U.S. 305, 320 (1988) (recognizing unwillingness to assume that a party seeking relief from injury inflicted by authorities will engage in conduct that will place him at risk of that injury)

. Thus, a s we see it, there’s no reasonable basis for us to believe that Djadju will be re

- detained unlawfully upon termination of this suit. See Troiano
, 382 F.3d at 1284. Moreover , the government conceded at oral argument that if he is re

- detained, Djadju

c ould bring a new habeas action, at which time his claims would USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 12 of 1320

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be fully vetted. But until that point, a ny opinion concerning Djadju ’ s challenge to his detention “would be purely advisory. ” See Soliman , 296 F.3d at 1243 (quotation marks omitted) . “ Quite simply, there is nothing for us to remedy, even if we were disposed to do so.” Id. (quotation marks omitted).
Thus , we lack jurisdiction to consider the merits of this appeal, and we dismiss the case as moot. W e also vacate the district court’s order dismissing, or alternatively denying, his petition. See Al Najjar , 273 F.3d at 1336

. DISMISSED; DISTRICT COURT JUDGME NT VACATED. USCA11 Case: 20-13073 Date Filed: 04/28/2022 Page: 13 of 13