F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 16 2004
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 VICTOR MANUEL SUAREZ-
 TEJEDA,

           Petitioner - Appellant,                      No. 02-6341
                                                   (D.C. No. 01-CV-96-F)
 vs.                                                    (W.D. Okla.)

 UNITED STATES OF AMERICA,

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.


       Petitioner-Appellant Victor Suarez-Tejeda appeals the district court’s

denial of his writ of habeas corpus. Mr. Suarez-Tejeda is a Mariel Cuban who

has been ordered removed from the United States, yet until recently has remained

in the custody of the Immigration and Naturalization Service (“INS”) 1 because

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       On March 1, 2003, the functions of the Immigration and Naturalization
       1

Service were transferred to the newly formed Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. The
INS no longer exists as a separate agency and has been replaced by three separate
bureaus within the Department of Homeland Security: the Bureau of Immigration
Cuba refuses the return of her citizens. Mr. Suarez-Tejeda filed a petition for

habeas relief under 28 U.S.C. § 2241 on November 16, 2000, challenging the

constitutionality of his continued detention.

      In 2001, the Supreme Court construed a provision of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) that

authorizes post-removal-period detention of various groups of aliens, 8 U.S.C. §

1231(a)(6), to include an implicit reasonable time limitation in order to avoid

serious constitutional concerns raised by such indefinite detention. Zadvydas v.

Davis, 

, 682 (2001). Mr. Suarez-Tejeda argues that his detention and

the procedures applied to his parole review are unconstitutional in light of

Zadvydas and Tenth Circuit precedent. The district court denied Mr. Suarez-

Tejeda’s habeas petition, holding that neither his detention nor the procedures

used to evaluate his continued detention violate the constitution. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). See 

; Ho v. Greene, 

, 1051-52 (10th Cir. 2000), overruled on other

grounds by 

. Because Mr. Suarez-Tejeda has been

released on parole and is not presently detained by the INS, his appeal is moot.




and Customs Enforcement (“BICE”), the Bureau of Customs and Border
Protection (“BCBP”), and the Bureau of Citizenship and Immigration Services
(“BCIS”). BICE is the bureau now responsible for the detention and removal of
aliens.

                                         -2-
                                    Background

      Mr. Suarez-Tejeda first arrived in the United States in 1980 as part of the

Mariel boat lift, during which approximately 120,000 Cubans left the Mariel

harbor in Cuba and crossed by boat to the United States. See Rosales-Garcia v.

Holland, 

, 390-91 (6th Cir. 2003); Gisbert v. United States Attorney

Gen., 

, 1440 (5th Cir. 1993), amended, 

(5th Cir.

1993). The INS detained the aliens at the border and decided to exclude them

from entry into the United States. After this initial detention, Mr. Suarez-Tejeda

was granted conditional parole into the United States and released by the INS

under § 212(d)(5) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1182(d)(5)(A), which authorizes the Attorney General in his discretion to parole

into the United States any alien who is applying for admission to the United

States.

      Although Mr. Suarez-Tejeda was paroled into the United States, this parole

is not to be “regarded as an admission,” 8 U.S.C. § 1182(d)(5)(A), and Mr.

Suarez-Tejeda is “legally considered to be detained at the border and hence as

never having effected entry into this country.” Sierra v. INS, 

,

1218 (10th Cir. 2001) (quoting 

). See also 

. He is “treated as if stopped at the border” for purposes of

immigration law. Shaughnessy v. United States ex rel. Mezei, 

, 215


                                        -3-
(1953). Because Mr. Suarez-Tejeda is ineligible for admission to the United

States, he is correctly classified as an inadmissible alien under IIRIRA. 2 See

United States v. Landeros-Mendez, 

, 1355 n.1 (10th Cir. 2000).

      After being paroled into the United States, Mr. Suarez-Tejeda was

convicted of robbery with a deadly weapon in January 1982 and sentenced to

three years imprisonment. R. Doc. 15, Ex. 1 at 1, 3. After several probation

violations and subsequent convictions, 

Mr. Suarez-Tejeda’s parole

was revoked by the INS and he was taken into INS custody, 

at 2-3. Mr.

Suarez-Tejeda was granted a second parole release on February 5, 1988. 

However, in 1993, Mr. Suarez-Tejeda was convicted of possession for sale of

cocaine base, sale and transportation of marijuana, and sale and possession of

marijuana; he was sentenced to three years imprisonment. 

The INS

again revoked his parole in April 1995, and he was taken into INS custody. 

In September 1995, he was ordered excluded and deported from the

United States. 

However, because Cuba has refused the return of her

citizens, and because the United States has allowed the parole of inadmissible

aliens rather than forcing the return of Cuba’s citizens to her shores, Mr. Suarez-


      2
       Prior to IIRIRA, aliens ineligible for admission were referred to as
“excludable” aliens. IIRIRA changed the immigration terminology and now
excludable aliens are referred to as “inadmissible” aliens. See United States v.
Landeros-Mendez, 

, 1355 n.1 (10th Cir. 2000); 

n.1.

                                         -4-
Tejeda remained detained until October 2003 in INS custody at the Federal

Correction Institution in El Reno, Oklahoma.

      Beginning in 1995, Mr. Suarez-Tejeda received regular parole reviews

while in INS custody under the procedures set forth at 8 C.F.R. § 212.12. See R.

Doc. 15, Exs. 14, 16-18, 20-21. These regulations govern the parole and periodic

review of the custody of Mariel Cubans and are commonly referred to as the

“Cuban Review Plan.” See 8 C.F.R. § 212.12. Section 212.12

      applies to any Mariel Cuban, detained under the authority of the
      Immigration and Nationality Act in any facility, who has not been
      approved for release or who is currently awaiting movement to a
      Service or Bureau of Prisons (BOP) facility. In addition, it covers
      the revocation of parole for those Mariel Cubans who have been
      released on parole at any time.

Section 212.12 also discusses release of Mariel Cubans on

parole, stating that “No detainee may be released on parole until suitable

sponsorship or placement has been found for the detainee. The paroled detainee

must abide by the parole conditions specified by the Service in relation to his

sponsorship or placement.” 

The regulations recognize two

suitable placements upon parole–either sponsorship “with a close relative such as

a parent, spouse, child, or sibling who is a lawful permanent resident or a citizen

of the United States,” or placement in an approved halfway house or mental

health/community project. 

      Mr. Suarez-Tejeda’s most recent review before the Cuban Review Panel

                                         -5-
was held in January 2003. Aplt. Br. at 7. In October 2003, while his habeas

appeal was pending before this court, Mr. Suarez-Tejeda was approved for release

on parole and transferred to a halfway house in Fort Worth, Texas. On December

1, 2003, following oral arguments, Mr. Suarez-Tejeda was released from the

halfway house upon placement with a sponsor.



                                    Discussion

      On appeal, Mr. Suarez-Tejeda asserts both statutory and constitutional

claims. Mr. Suarez-Tejeda argues that the Supreme Court’s decision in Zadvydas

v. Davis, 

(2001), “definitely construed the statute under which

aliens subject to orders of deportation are detained by the immigration and

naturalization service” to prohibit indefinite detention of both removable and

inadmissible aliens. Aplt. Br. at 8. Mr. Suarez-Tejeda also asserts a substantive

due process claim, arguing that the indefinite detention of inadmissible aliens is

unconstitutional in light of the Supreme Court’s holding in Zadvydas. Finally,

Mr. Suarez-Tejeda argues that the Cuban Review Plan operates without objective

standards to guide the discretion and judgment of the INS, and that this lack of

standards and deviations from the procedures set forth in the Cuban Review Plan

violate his procedural due process rights. Because we conclude that Mr. Suarez-

Tejeda’s transfer to a halfway house and subsequent release to a sponsor moots


                                        -6-
the appeal, we do not reach the substantive issues.

      Mr. Suarez-Tejeda was released from INS detention and placed in a

halfway house in October 2003. Under 28 U.S.C. § 2241(c)(1), “[t]he writ of

habeas corpus shall not extend to a prisoner unless [h]e is in custody.” However,

“the fact that Appellant is no longer in custody does not automatically moot

Appellant’s petition because he was in custody at the time of filing.” Riley v.

INS, 

, 1256 (10th Cir. 2002); see also Spencer v. Kemna, 

, 7 (1998) (holding the custody requirement in the habeas statute only requires

that the petitioner be “in custody” at the time the petition was filed). Rather, the

“more substantial question” is whether Mr. Suarez-Tejeda’s release moots his

petition because the court is no longer presented with a case or controversy as

required under Article III, § 2, of the Constitution. 

.

      “Mootness is a threshold issue because the existence of a live case or

controversy is a constitutional prerequisite to federal court jurisdiction.”

McClendon v. City of Albuquerque, 

, 867 (10th Cir. 1996). This

requirement must exist at all stages of appellate review, and it is “not enough that

the dispute was alive when the suit was filed.” 

have no

authority to give an opinion upon a question that is moot as a result of events that

occur during the pendency of the action. Church of Scientology v. United States,

, 12 (1992).


                                         -7-
      Because Mr. Suarez-Tejeda is no longer detained and is not currently

subject to regular review by the Cuban Review Panel, we must look beyond the

initial controversy and determine if his appeal is now moot. Several circuits have

addressed this issue, all with slightly different approaches. In Rosales-Garcia v.

Holland, 

, 395-96 (6th Cir. 2003), the Sixth circuit concluded that

release constitutes merely a “reprieve from detention,” and therefore a Mariel

Cuban is still threatened with actual injury. The court also applied two

exceptions to the mootness doctrine, finding the case one of voluntary cessation

and capable of repetition yet evading review. The Fifth Circuit in Gisbert v.

United States Attorney General, 

, 1440 n.5 (5th Cir. 1993),

originally held a petition of a Mariel Cuban moot based on release without any

analysis. The court later amended the opinion to remove the footnote regarding

mootness. Gisbert v. United States Attorney Gen., 

, 1123 (5th Cir.

1993). The Ninth Circuit, however, held such a claim was moot on release where

the government issued a statement it would not revoke parole absent criminal

reinvolvement. See Picrin-Peron v. Rison, 

, 776 (9th Cir. 1991).

After reviewing the various approaches, for the reasons discussed below, we hold

that Mr. Suarez-Tejeda’s release from detention moots his appeal.

      “To invoke the jurisdiction of a federal court, a litigant must have suffered,

or be threatened with, an actual injury traceable to the defendant and likely to be


                                         -8-
redressed by a favorable judicial decision.” Lewis v. Cont’l Bank Corp., 

, 477 (1990). Mr. Suarez-Tejeda brought this action in the form of a habeas

petition and has requested release from indefinite detention. Mr. Suarez-Tejeda

has been released on parole and is no longer indefinitely detained. Under §

212.12, however, the INS may revoke Mr. Suarez-Tejeda’s parole if he “violates

any condition of parole” or if such revocation is “in the public interest.” 8 C.F.R.

§ 212.12. 3 Mr. Suarez-Tejeda attempts to distinguish 

,

based on the unique application of the “Cuban Review Plan,” arguing he is

threatened with future injury and his claim is not moot. However, based on the

record before us, there is no support for Mr. Suarez-Tejeda’s claims that his

parole will again be revoked and this claim is merely speculative. See McAlpine



      3
          Under the Cuban Review Plan,

      The Associate Commissioner for Enforcement shall have authority, in
      the exercise of discretion, to revoke parole in respect to Mariel
      Cubans. A district director may also revoke parole when, in the
      district director’s opinion, revocation is in the public interest and
      circumstances do not reasonably permit referral of the case to the
      Associate Commissioner. Parole may be revoked in the exercise of
      discretion when, in the opinion of the revoking official:
      (1) The purposes of parole have been served;
      (2) The Mariel Cuban violates any condition of parole;
      (3) It is appropriate to enforce an order of exclusion or to commence
      proceedings against a Mariel Cuban; or
      (4) The period of parole has expired without being renewed.

8 C.F.R. § 212.12(h).

                                         -9-
v. Thompson, 

, 1218 (10th Cir. 1999) (noting that speculation that a

defendant will “break the law or otherwise violate the conditions of their release .

. . would undermine our presumption of innocence . . . and the rehabilitative focus

of the parole system”). A “threatened injury must be ‘certainly impending’ to

constitute injury in fact.” Whitmore v. Arkansas, 

, 158 (1990)

(quoting Babbitt v. Farm Workers, 

, 298 (1979)). Mr. Suarez-

Tejeda’s allegations of potential future custody are too attenuated to satisfy the

requirements of Article III. 

appeal thus is rendered moot unless he meets one of

the exceptions to the mootness doctrine. 

. This court will

      not dismiss a petition as moot if (1) secondary or “collateral” injuries
      survive after resolution of the primary injury; (2) the issue is deemed
      a wrong capable of repetition yet evading review; (3) the defendant
      voluntarily ceases an allegedly illegal practice but is free to resume it
      at any time; or (4) it is a properly certified class action suit.

(collecting cases). We find none of the above exceptions to be

applicable in this case.

      Exceptions 1 and 4 are clearly inapplicable. Mr. Suarez-Tejeda argues that

this case is not moot under exception 2 because the case is one that is “capable of

repetition, yet evading review.” See S. Utah Wilderness Alliance v. Smith, 

, 729 (10th Cir. 1997). However, we find this exception inapplicable.

This exception only applies when “(1) the challenged action was in its duration


                                        - 10 -
too short to be fully litigated prior to its cessation or expiration, and (2) there was

a reasonable expectation that the same complaining party would be subjected to

the same action again.” Weinstein v. Bradford, 

, 149 (1975); see

also United States v. Seminole Nation of Okla., 

, 943 (10th Cir.

2002). The first condition is not satisfied in this case. If the INS resumes

detention at some future date, there is no reason to believe detention will be so

short in duration as to deny Mr. Suarez-Tejeda the opportunity to litigate his

claims at that time. See Rio Grande Silvery Minnow v. Keys, No. 02-2254, 02-

2295, 02-2255, 02-2304, 02-2267, 

, at *2 (10th Cir. 2004 Jan. 5,

2004).

         We likewise reject the argument that the narrow exception of voluntary

cessation is applicable. This exception “traces to the principle that a party should

not be able to evade judicial review, or to defeat a judgment, by temporarily

altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha,

, 284 n.1 (2001). It “protects plaintiffs from defendants who seek to

evade sanction by predictable protestations of repentance and reform.” 

marks and citations omitted). There is no suggestion that the

government’s release of Mr. Suarez-Tejeda was the result of an attempt by the

government to evade review. Rather, Mr. Suarez-Tejeda merely happened to be

released on parole while his appeal was pending before this court. See Silvery


                                          - 11 -
Minnow, 

, at *3. We therefore find the exception of voluntary

cessation inapplicable. See 

.

      In this case, the circumstances have changed during the pendency of the

action to make Mr. Suarez-Tejeda’s claim moot. See 

was

initially released to a halfway house and was recently released to a sponsor. Even

Mr. Suarez-Tejeda acknowledges release into society without some type of

sponsorship or placement is not an option. Before the district court, Mr. Suarez-

Tejeda stated that an appropriate remedy incident to the grant of habeas corpus

relief “should be fashioned to reasonably assure Mr. Suarez-Tejeda’s availability

for deportation should removal become possible. In this regard, the release

conditions would be similar to those employed by the federal courts to reasonably

assure a person’s availability for trial and the safety of the community.” R. Doc.

27 at 7. Mr. Suarez-Tejeda has effectively received the relief he has requested.

      Although the INS may resume detention at some future date, Mr. Suarez-

Tejeda would not be without a remedy at that time. “The case or controversy

requirement of Article III admonishes federal courts to avoid premature

adjudication and to abstain from entangling themselves in abstract

disagreements.” U.S. West, Inc. v. Tristani, 

, 1208 (10th Cir. 1999)

(internal quotation marks and citations omitted). Any opinion issued at this time

would be purely advisory in nature. Based on the record before us, therefore, we


                                        - 12 -
hold that Mr. Suarez-Tejeda’s “release from detention moots his challenge to the

legality of his extended detention.” 

. For the same

reasons, Mr. Suarez-Tejeda’s procedural due process claims are now moot.

      For the foregoing reasons, we DISMISS the appeal as moot.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       - 13 -
02-6341 - Suarez-Tejeda v. United States

HARTZ, Circuit Judge, concurring specially:


      I agree that the appeal must be dismissed as moot. Mr. Suarez-Tejeda has

obtained all the relief he sought on appeal. In particular, I do not read his

opening brief on appeal as raising any argument challenging the process for

revoking parole once it is granted.