Coronel et al v. Decker et al

Filing 90

MEMORANDUM OPINION & ORDER re: 86 MOTION to Dismiss for Lack of Jurisdiction filed by William Anderson, Carl E. Dubois, William P. Barr, Chad Wolf, Steven Ahrendt, Thomas Decker, Ronald P. Edwards. For the foregoing reasons, the Court GRANTS Respondents' motion to dismiss Otero's claims as moot. This dismissal is without prejudice to Otero's ability to seek any available habeas relief from the appropriate court should he be re-detained by federal immi gration authorities. The Clerk of Court is respectfully directed to terminate Dkt. No. 86 and to close this case. SO ORDERED. (Signed by United States Circuit Judge, sitting by designation Alison J. Nathan on 1/17/2023) (vfr) Transmission to Orders and Judgments Clerk for processing.

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 1 of 9

1/17/23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Josefina Coronel, et al.,
Petitioners-Plaintiffs,
20-cv-2472 (AJN)
–v–
MEMORANDUM
OPINION & ORDER

Thomas Decker, et al.,
Respondents-Defendants.

ALISON J. NATHAN, Circuit Judge, sitting by designation:
Petitioner Jose Otero brought this writ of habeas corpus and complaint raising substantive
and procedural due process challenges to his custody by Immigration and Customs Enforcement
(“ICE”). Otero was released by ICE in 2020 pursuant to preliminary relief ordered by the Court.
Arguing that Otero’s claims are now moot, Respondents move to dismiss for lack of subject
matter jurisdiction. For the reasons that follow, the Court concludes that the claims are moot and
therefore GRANTS Respondents’ motion.
BACKGROUND
Otero, a native and citizen of El Salvador, was arrested by ICE in November 2019 for the
purposes of placing him in removal proceedings pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) on the
ground that he was a foreign national present in the United States without being admitted or
paroled. Otero was detained at the Essex County Jail in Essex, New Jersey. See Dkt. No. 1
(“Pet.”), ¶ 66; Dkt. No. 45 ¶ 3(b).
Otero, along with several other Petitioners, filed a “petition for writ of habeas corpus and
complaint for injunctive relief” on March 20, 2020, pursuant to 28 U.S.C. § 2241, Pet., followed
1

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 2 of 9

by a request for emergency relief five days later, Dkt. No. 20. 1 Otero alleged that he faced
uniquely serious medical risks from COVID-19 due to his underlying health conditions, and he
argued that the Government had violated both his substantive due process rights through
deliberate indifference to his medical needs and his procedural due process rights by failing to
provide him with an adequate bond hearing.
The Court conducted oral argument on March 26, 2020, and the next day issued an
opinion and order granting Otero’s request for a temporary restraining order (“TRO”) directing
his immediate release from immigration detention on reasonable conditions. See Coronel v.
Decker, 449 F. Supp. 3d 274 (S.D.N.Y. 2020) (Dkt. No. 26). Among other things, the Court
found that “Otero was the victim of a violent assault that forced him to have a nephrectomy
(removal of left kidney), partial liver resection, and left lung resection. As a result of having
major organs of his body partially removed, his immune system is significantly compromised,”
in turn “rendering him especially vulnerable to the respiratory illness and distress caused by
COVID-19.” Id. at 279, 283 (cleaned up). The Court also found that the Government was
“aware of [Otero’s] medical conditions and the serious harm that COVID-19 posed to” him. Id.
at 284. The Court concluded that Otero had demonstrated irreparable harm absent injunctive
relief, id. at 281–82; a likelihood of success on both the substantive, id. at 282–86, and
procedural due process claims, id. at 286–87; and that the balance of equities and public interest
weighed in Otero’s favor, id. at 287–88. Accordingly, the Court held that a TRO directing
Otero’s immediate release was warranted. Id. at 288–90. Otero was released from detention
later that same day. Dkt. No. 28.

1

Otero’s petition was joined by Juan Morocho Sumba, Josefina Coronel, Ramon Garcia Ponce, Florencio Moristica,
Jose Madrid, and Miguel Miranda as well. But each of those petitioners has since voluntarily dismissed their claims
following their release from detention. See Dkt. Nos. 73, 80.

2

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 3 of 9

Pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure, the parties agreed to
extend the TRO through the resolution of Petitioners’ request for an injunction. Dkt. No. 43. In
the meantime, the immigration court administratively closed Otero’s removal proceedings on
April 5, 2022. See Dkt. 88-1 ¶ 17. Otero was, at that time, in New York state custody on state
criminal charges. See Dkt. No. 87-1 at 5. The parties report that Otero’s state criminal
proceedings remain ongoing, See Dkt. No. 87 (“Gov’t Mem.”), at 3; Dkt. No. 88 (“Otero
Opp’n”), at 3–4, and that the Government has placed an immigration detainer on Otero. Dkt.
No. 88-2 ¶ 5. 2
On March 11, 2022, the Court directed the parties to confer and file a joint letter
“indicating whether any additional relief is being sought in this matter.” Dkt. No. 60. After
several extensions, Dkt. Nos. 63, 65, 67, 71, 74, all of the Petitioners except for Otero voluntarily
dismissed their claims, Dkt. Nos. 73, 80. As for Otero, Respondents explained that their position
is that Otero’s habeas claims were “moot in light of the fact that Mr. Otero has not been in ICE
custody (or Orange County Jail) for more than two years”; Otero disagreed. Dkt. No. 84.
Accordingly, the court set a briefing schedule for Respondents to move to dismiss Otero’s claims
for lack of jurisdiction as moot. Id. The motion became fully briefed on December 23, 2022,
when Respondents filed their reply. Dkt. No. 89 (“Gov’t Reply”).

2

“An immigration detainer is the instrument by which federal authorities formally advise another law enforcement
agency that they seek custody of an alien presently in the custody of that agency, for the purpose of arresting and
removing the alien. . . . [T]he detainer generally requests the agency then having custody of the alien to provide
federal authorities with advance notice of the alien’s intended release date or to detain the alien for a brief time to
allow federal authorities to assume custody.” New York v. U.S. Dep’t of Just., 951 F.3d 84, 97 n.10 (2d Cir. 2020)
(cleaned up).

3

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 4 of 9

DISCUSSION
I.

Legal Standards
A motion brought under Federal Rule of Civil Procedure 12(b)(1) challenges the Court’s

subject matter jurisdiction to hear the case. Pursuant to Rule 12(b)(1), dismissal for lack of
subject matter jurisdiction is appropriate if the Court determines that it lacks the constitutional or
statutory power to adjudicate the case. See Fed. R. Civ. P. 12(b)(1). In resolving a motion to
dismiss for lack of subject matter jurisdiction, the Court “may refer to evidence outside the
pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.’” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). “In order to
satisfy the case-or-controversy requirement [of Article III], a party must, at all stages of the
litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.”
United States v. Williams, 475 F.3d 468, 478–79 (2d Cir. 2007) (quoting United States v.
Mercurris, 192 F.3d 290, 293 (2d Cir. 1999)). “A case becomes moot . . . when the issues
presented are no longer live or the parties lack a legally cognizable interest in the outcome. No
matter how vehemently the parties continue to dispute the lawfulness of the conduct that
precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.” Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (cleaned up).
II.

Otero’s Petition Is Moot
Respondents contend that the Court lacks jurisdiction over Otero’s claims because they

are now moot. The Court agrees.
Here, “[t]he petition for habeas corpus requests that Respondents release Petitioner or
provide him with a bond hearing. Since the filing of the petition, Petitioner has been released.

4

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 5 of 9

Following his release from custody, Petitioner ‘is no longer suffering an “actual injury.”’”
Chocho v. Shanahan, 308 F. Supp. 3d 772, 774 (S.D.N.Y. 2018) (citation omitted) (quoting
Leybinsky v. U.S. Immigr. & Customs Enf’t, 553 F. App’x 108, 109 (2d Cir. 2014) (summary
order)). And because “[t]he hallmark of a moot case or controversy is that the relief sought can
no longer be given or is no longer needed,” given that Otero “has received the relief that was
sought in h[is] habeas proceeding, . . . the action is now moot.” Pierre-Paul v. Sessions, 293 F.
Supp. 3d 489, 492 (S.D.N.Y. 2018) (quoting Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.
1983)); see also Abzerazzak v. Feeley, No. 21-CV-6443 (FPG), 2022 WL 170404, at *1
(W.D.N.Y. Jan. 18, 2022) (“As a general matter, ‘district courts in this Circuit to have considered
the issue have found that where an alien challenging his detention under 28 U.S.C. § 2241 is
released during the pendency of his Petition under an order of supervision, the Petition is
rendered moot.’” (quoting Jangmo v. Barr, No. 20-CV-256 (JLS), 2020 WL 1891762, at *2
(W.D.N.Y. Apr. 16, 2020)); Berrezueta v. Decker, No. 20-CV-10688 (MKV), 2021 WL 601649,
at *1 (S.D.N.Y. Jan. 11, 2021) (“Release from custody generally renders a habeas petition moot
. . . .”); Sokolov v. Holder, No. 13-CV-947 (PAE), 2013 WL 12377011, at *2 (S.D.N.Y. Aug. 13,
2013) (“Courts in this Circuit have held that a petitioner’s release from custody generally moots
a habeas petition challenging that custody.” (collecting cases)).
Otero distinguishes these and similar authorities because here the Government was
directed to release Otero pursuant to preliminary relief ordered by the Court in this proceeding,
rather than voluntarily released. But that fact alone does not preclude a determination that a live
case or controversy no longer exists. See, e.g., Juan E. M. v. Decker, No. 20-CV-4594 (KM),
2022 WL 17340669, at *1, 3–5 (D.N.J. Nov. 30, 2022); De Melo v. Decker, No. 20-CV-2643
(ALC), 2021 WL 4460970, at *4 (S.D.N.Y. Sept. 28, 2021). It is true that the release of an

5

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 6 of 9

immigration detainee pursuant to a preliminary order does not automatically render the case
nonjusticiable. See, e.g., Xiu Qing You v. Nielsen, No. 18-CV-5392 (GBD) (SN), 2020 WL
2837022, at *5 (S.D.N.Y. June 1, 2020); Basank v. Decker, — F. Supp. 3d —, No. 20-CV-2518
(AT), 2020 WL 1953847, at *4 (S.D.N.Y. Apr. 23, 2020). But on this record, the Court
concludes that a live controversy no longer exists, substantially for the reasons stated by the
Government. See Got’t Mem. 8–14; Gov’t Reply 2–10.
Otero’s petition was predicated on allegations about the conditions at Essex County Jail
in early 2020, at the onset of the COVID-19 pandemic. But Otero is no longer in custody in
Essex County Jail—nor in the custody of federal immigration authorities at all—having been
released nearly three years ago. The risks posed by COVID-19 today, both at Essex County Jail
and more generally, are no longer the same. See Paul v. Decker, No. 20-CV-2425 (KPF), 2021
WL 1947776, at *6 (S.D.N.Y. May 14, 2021) (“[C]onditions in immigration detention have
changed since the pandemic’s outbreak in early 2020, leading a number of courts in this District
to reject claims regarding the conditions of confinement at these facilities based on the practices
and precautions now taken by ICE, as well as the now-tangible prospect of widespread
vaccination rollouts.” (collecting cases)). While Otero is currently in custody, he is being held
by New York state authorities on state charges wholly unrelated to the detention that was the
basis for his claims in this litigation.
Otero argues that “Respondents are overwhelmingly likely to redetain” him, pointing to
the immigration detainer placed by the Government, the absence of a representation by the
Government that they will not re-detain him, and the Government’s opposition to administrative
closure of his immigration proceedings. Otero Opp’n 8–9. Accordingly, he argues, “the highly
predictable nature of Mr. Otero’s redetention, his merely paused and unfinished removal

6

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 7 of 9

proceedings, and his extreme mental and physical health conditions . . . mean that there is both
an ‘actual injury’ and ‘collateral consequences’ worthy of this Court’s review.” Id. at 11.
But the Government notes that “[a]t this point, if and when Mr. Otero may ever be redetained by ICE depend on the outcome of his ongoing criminal proceedings,” both the timing
and resolution of which remain unknown. Gov’t Reply 1. In the event Otero is found guilty on
the state criminal charges pending against him, and the Government were to reopen removal
proceedings and again seek immigration detention, the applicable detention authority may be 8
U.S.C. § 1226(c)—an entirely different provision than the one, § 1226(a), that Otero was
previously held under and that is the subject of his petition. And the Government represents that
“Essex County Jail no longer accepts immigration detainees—rendering it implausible that Mr.
Otero will again face the circumstances that led to his habeas petition.” Gov’t Reply 6. In this
regard, the Court finds Judge McNulty’s analysis in Juan E. M. instructive. There, an
immigration detainee had alleged unconstitutional conditions of confinement and inadequate
medical care arising from Essex County Correctional Facility’s response to the COVID-19
pandemic, and had been released pursuant to a preliminary injunction entered by the court. 2022
WL 17340669, at *1. Over two years later, the court dismissed the petition as moot.
[E]ven assuming petitioner were reasonably likely to be re-detained, the petition focuses
on the conditions at ECCF. But (1) ECCF no longer accepts immigration detainees; thus,
petitioner would not be subjected to any conditions there, let alone the conditions he
describes in his petition; and (2) not only do the claims arise out of petitioner’s detention
at ECCF, they arise out of the conditions at ECCF in April 2020. It is now 2.5 years later
and conditions have changed since the initial weeks of the pandemic; to state only the
most obvious, vaccines have been developed and rates of death or hospitalization have
declined. In short, petitioner, if he were to be re-detained, could not reasonably expect
that he would return to the conditions described in his petition and the violations alleged
in the petition would recur.
Id. at *4. For the same reasons here, Otero’s petition is now moot. See, e.g., De Melo, 2021 WL
4460970, at *4 (“[E]ven if ICE re-arrested [the petitioner], it is unknown where he would be

7

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 8 of 9

detained and whether the conditions at that facility would be the same specific conditions
challenged in the Petition.”); Paul, 2021 WL 1947776, at *5 (“[T]he state of the COVID-19
pandemic has changed substantially. . . . [T]he Court cannot find a reasonable expectation that
Petitioner will be subject to the same conditions again, even if re-detained in the near future.”).
III.

The Capable of Repetition, Yet Evading Review Exception Does Not Apply
Otero invokes the “capable of repetition, yet evading review” exception to mootness. See

Otero Opp’n 12–13. 3 This exception applies “only in exceptional situations” where “(1) the
challenged action is in its duration too short to be fully litigated prior to cessation or expiration,
and (2) there is a reasonable expectation that the same complaining party will be subject to the
same action again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (cleaned up). Otero bears the
burden of demonstrating that this exception applies. See Video Tutorial Servs., Inc. v. MCI
Telecomms. Corp., 79 F.3d 3, 6 (2d Cir. 1996).
Otero does not meet that burden here. He argues that “[r]edetention is not just a
theoretical possibility for Mr. Otero but overwhelmingly likely in light of the immigration
detainer.” Otero Opp’n 12. But this argument falls short for the reasons already discussed.
“[T]he circumstances are now substantially changed” from those underlying Otero’s petition.
Pierre-Paul, 293 F. Supp. 3d at 492. Even accepting Otero’s contention that the Government is
likely to seek immigration detention following the resolution of his state criminal proceedings,
“the Court’s conclusion that the conditions of confinement are reasonably likely to be
substantively different were Petitioner ever to be re-detained[] ensur[es] that Petitioner cannot
satisfy the second element of the capable-of-repetition test.” Paul, 2021 WL 1947776, at *6–7

3

Although the Government addresses the voluntary cessation exception to mootness, Otero does not press it,
correctly observing that Respondents “were compelled to release Mr. Otero by order of this Court” rather than
through voluntary action. Otero Opp’n 14.

8

Case 1:20-cv-02472-AJN Document 90 Filed 01/17/23 Page 9 of 9

(rejecting capable-of-repetition exception “given the changes in conditions of confinement with
respect to the COVID-19 pandemic” because asking “the court to evaluate COVID-19 conditions
of detention at an indeterminate time in the future, in an unspecified facility, [i]s an
impermissible speculative inquiry about the hypothetical conditions of some hypothetical future
detention” (cleaned up)); see Ojo v. Wolf, No. 20-CV-6296 (EAW), 2021 WL 795320, at *2
(W.D.N.Y. Mar. 2, 2021) (“[T]he existence of a chance of re-detention does not satisfy this
exception . . . .”). “Moreover, if []he were re-detained, [Otero] may again file a petition for
habeas in the appropriate federal court.” Pierre-Paul, 293 F. Supp. 3d at 493. 4
CONCLUSION
For the foregoing reasons, the Court GRANTS Respondents’ motion to dismiss Otero’s
claims as moot. 5 This dismissal is without prejudice to Otero’s ability to seek any available
habeas relief from the appropriate court should he be re-detained by federal immigration
authorities.
The Clerk of Court is respectfully directed to terminate Dkt. No. 86 and to close this case.
SO ORDERED.
Dated: January 17, 2023
New York, New York

____________________________________
ALISON J. NATHAN
United States Circuit Judge,
sitting by designation

4

In light of this conclusion, the Court need not reach Respondents’ alternative argument that Otero’s claims are not
ripe. See Gov’t Mem. 14–19.

5

Accordingly, the Court need not, and does not, reach Respondents’ argument that Otero’s due process claims under
the Fourteenth Amendment are meritless because that amendment’s Due Process Clause does not apply to the
federal government. Gov’t Mem. 4 n.2.

9