Hassoun v. Searls

976 F.3d 121

Adham Amin HASSOUN, Petitioner-Appellee,

v.Jeffrey SEARLS, in his official capacity as Acting Assistant Field Office Director and Administrator of the Buffalo Federal Detention Facility, Respondent-Appellant.

No. 20-2056-cv

August Term 2020

United States Court of Appeals, Second Circuit.

Submitted: September 4, 2020

Decided: September 22, 2020

Jonathan Hafetz (Brett Max Kaufman, Charles Hogle, Judy Rabinovitz, Celso Perez, for the American Civil Liberties Union Foundation, New York, NY; Scott Michelman, Arthur B. Spitzer, for the American Civil Liberties Union Foundation of the District of Columbia, Washington, DC; A. Nicole Hallett, for the Mandel Legal Aid Clinic, University of Chicago Law School, Chicago, IL; Jonathan Manes, for the Roderick & Solange MacArthur Justice Center, Chicago, IL, on the brief), for Petitioner-Appellee.

Steven A. Platt, Counsel for National Security (Ethan P. Davis, Acting Assistant Attorney General; William C. Peachey, Director; Timothy M. Belsan, Chief; John J.W. Inkeles, Counsel for National Security, for the Office of Immigration Litigation, United States Department of Justice, Washington, DC; Daniel B. Moar, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, on the brief), for Respondent-Appellant.

Stephen I. Vladeck, Austin, TX, for amicus curiae Stephen I. Vladeck.

Before: Cabranes, Sullivan, and Menashi, Circuit Judges.

Menashi, Circuit Judge:

On June 29, 2020, the U.S. District Court for the Western District of New York ordered the government to release Adham Amin Hassoun from immigration detention. Hassoun v. Searls , No. 19-CV-370, ––– F.Supp.3d ––––, ––––, 2020 WL 3496302, at *19 (W.D.N.Y. June 29, 2020). While the government's appeal of that order was pending, the government "successfully removed Hassoun pursuant to his final order of removal from the United States to a third county." Appellant's Notice of Removal, Hassoun v. Searls , 968 F.3d 190 (2d Cir. 2020), ECF No. 72.

The government now moves to dismiss this appeal as moot and requests vacatur of the district court's decisions related to 8 C.F.R. § 241.14(d), a regulation that the government had invoked as authority for Hassoun's continued detention. See, e.g. , Hassoun v. Searls , 427 F. Supp. 3d 357 (W.D.N.Y. 2019). Hassoun does not oppose the government's motion to dismiss the appeal as moot but opposes vacatur of the district court's decisions related to 8 C.F.R. § 241.14(d). In addition, Hassoun requests vacatur of this court's opinion granting the government's motion for a stay pending appeal.

"When a civil case becomes moot pending appellate adjudication, ‘the established practice in the federal system is to reverse or vacate the judgment below and remand with a direction to dismiss.’ " Arizonans for Off. English v. Arizona , 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (alterations omitted). Federal courts follow this practice "to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences." United States v. Munsingwear, Inc. , 340 U.S. 36, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Because the district court's decisions related to 8 C.F.R. § 241.14(d) could have legal consequences in future litigation between the parties, those decisions should be vacated so that "the rights of all parties are preserved." Id . at 40, 71 S.Ct. 104.

In contrast, this court's opinion granting the government's motion for a stay pending appeal does not warrant vacatur because it does not have legal consequences for the parties. A decision concerning a stay is not a final adjudication on the merits of an appeal and lacks preclusive effect. We therefore deny Hassoun's motion to vacate this court's opinion granting the government's motion for a stay pending appeal, and we grant the government's motion to vacate the district court's decisions related to 8 C.F.R. § 241.14(d), dismiss the appeal as moot, and remand to the district court with instructions to dismiss Hassoun's challenge to his detention under 8 C.F.R. § 241.14(d) as moot.

BACKGROUND

In 2003, Hassoun was ordered removed from the United States for violating the terms of his non-immigrant visa. Before he could be deported, Hassoun was taken into custody on federal criminal charges of conspiracy to murder, kidnap, and maim persons overseas; of conspiracy to provide material support to terrorists; and of providing material support to terrorists. He was convicted of those charges and sentenced principally to a 188-month term of imprisonment.

Upon his release from prison in October 2017, Hassoun was placed in immigration detention under 8 U.S.C. § 1231(a)(6), pending his removal from the United States. He then petitioned for a writ of habeas corpus. The district court granted Hassoun's petition and ruled that the government could not continue detaining Hassoun under 8 U.S.C. § 1231(a)(6) because there was not a significant likelihood that the government would remove him from the United States in the reasonably foreseeable future. Hassoun v. Sessions , No. 18-CV-586, 2019 WL 78984, at *1, *6 (W.D.N.Y. Jan. 2, 2019) (applying the framework of Zadvydas v. Davis , 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ). Subsequently, the government invoked 8 C.F.R. § 241.14(d) and 8 U.S.C. § 1226a as additional authorities to allow it to continue detaining Hassoun.

In March 2019, Hassoun filed another petition for a writ of habeas corpus, challenging his continued detention under 8 C.F.R. § 241.14(d) and 8 U.S.C. § 1226a. In December 2019, the district court held that " 8 C.F.R. § 241.14(d) is ... a legal nullity that cannot authorize" Hassoun's continued detention, Hassoun , 427 F. Supp. 3d at 372, and subsequently ordered the government to release him, Hassoun, ––– F.Supp.3d at ––––, 2020 WL 3496302, at *19. The district court also denied the government's request for a stay pending appeal. Id .

The government appealed the district court's decisions related to 8 C.F.R. § 241.14(d) to this court and moved for an administrative stay and a stay pending appeal. See Emergency Mot. for Stay Pending Appeal, Hassoun , 968 F.3d 190, ECF No. 9. This court entered an administrative stay until July 15, so that the government's motion for a stay pending appeal could be considered by a three-judge panel. Order, Hassoun , 968 F.3d 190, ECF No. 16. On July 13, before the administrative stay expired, the court entered a temporary extension of the administrative stay to ensure that it had adequate time to consider the government's motion. Order, Hassoun , 968 F.3d 190, ECF No. 41. On July 16, after due consideration, the court granted the government's motion for a stay pending appeal and noted that "[a]n opinion will be forthcoming." Order, Hassoun , 968 F.3d 190, ECF No. 60. That opinion was published on July 30. Hassoun , 968 F.3d 190.

During the court's consideration of the government's motion, the government periodically updated the court on the status of its attempts to remove Hassoun. On July 13, the government filed a notice claiming "material progress in achieving [Hassoun's] removal from the United States" and that "[a]bsent an extraordinary or unforeseen circumstance, the government intends to remove [Hassoun] from the United States by July 27, 2020." Consented Mot. to Extend Administrative Stay, Hassoun , 968 F.3d 190, ECF No. 43. On July 20, the government again notified the court that "U.S. Immigration and Customs Enforcement (ICE) intends to remove ... Hassoun from the United States to a third country during the week of July 20, 2020," and, for the first time, that "[t]he U.S. government has reached an agreement with a third country to accept Petitioner upon his removal from the United States." Appellant's Notice of Intent to Remove, Hassoun , 968 F.3d 190, ECF No. 67. Finally, on July 22, the government filed a notice that Hassoun had been removed from the United States the previous day. Appellant's Notice of Removal, Hassoun , 968 F.3d 190, ECF No. 72; see also Pet'r-Appellee's Notice of Removal, Hassoun , 968 F.3d 190, ECF No. 71.

On August 5, following Hassoun's removal, the government moved to dismiss this appeal as moot and requested that we vacate the district court's decisions related to 8 C.F.R. § 241.14(d). Appellant's Mot. to Dismiss and to Vacate, Hassoun , 968 F.3d 190, ECF No. 82 ("Gov't Mot."). Though Hassoun agrees with the government that the appeal is now moot, he opposes vacatur of the district court's decisions. Pet'r-Appellee's Opp'n to Resp't's Mot. to Vacate, Hassoun , 968 F.3d 190, ECF No. 86 ("Hassoun Opp'n"). In addition, Hassoun filed his own motion, requesting that the court vacate its opinion granting the government's motion for a stay pending appeal. Pet'r-Appellee's Mot. to Vacate, Hassoun , 968 F.3d 190, ECF No. 87 ("Hassoun Mot.").

We have jurisdiction to consider the parties' motions to dismiss and for vacatur for the reasons set out in our opinion granting the government's motion for a stay pending appeal. See Hassoun , 968 F.3d at 195-98. Both parties' motions raise the question of mootness. "[W]hen a case becomes moot, the federal courts lack subject matter jurisdiction over the action." Doyle v. Midland Credit Mgmt., Inc. , 722 F.3d 78, 80 (2d Cir. 2013) (quoting Fox v. Bd. of Trs. of State Univ. of N.Y. , 42 F.3d 135, 140 (2d Cir. 1994) ). Thus, "[w]henever mootness occurs, the court ... loses jurisdiction over the suit, which therefore must be dismissed." Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of Watervliet , 260 F.3d 114, 118-19 (2d Cir. 2001). Of course, we have jurisdiction to resolve questions about our jurisdiction. United States v. Shipp , 203 U.S. 563, 573, 27 S.Ct. 165, 51 L.Ed. 319 (1906) ; Roth v. McAllister Bros. , 316 F.2d 143, 145 (2d Cir. 1963) ("[A] tribunal always possesses jurisdiction to determine its jurisdiction.").

DISCUSSION

No one disputes that this case has become moot, given that...