19-953 Puma Bravo v. Wolf

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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of March, two thousand twenty.

PRESENT: PIERRE N. LEVAL, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

IVAN LIZANDRO PUMA BRAVO, ANA CECILIA DURAN GUAMAN, SHERLYN IVONNE PUMA DURAN, by her mother and Guardian Ana Cecilia Duran Guaman, NICOLE CECILIA PUMA DURAN, by her mother and Guardian, Ana Cecilia Duran Guaman, MOISES GUERRERO RAMOS, and their 3 USC children, MAURILIA DURAN LUNA, and their 3 USC children, GRISELDA BALTAZAR TREJO, and their 4 USC children, FRANCISCO ESCAMILLA GONZALEZ, and their 4 USC children, CONSTANTINO SALAS BURGUA, and their 3 USC children, MARIA RAFAEL ALVAREZ, and their 3 USC children,

Plaintiffs-Appellants,

v. 19-953

CHAD F. WOLF, Acting Secretary for the U.S. Department of Homeland Security, WILLIAM BIERMAN, Field Office Director, New York, NY U.S Citizenship and Immigration Services, U.S. Department of Homeland Security, MARY BETH KELLER, Chief Immigration Judge Executive Office of Immigration Review, L. FRANCIS CISSNA, Director U.S. Citizenship and Immigration Services, WILLIAM P. BARR, Attorney General of the United States, FRANK JAMES LOPREST, JR., Chief Immigration Judge, New York District, Executive Office of Immigration Review, New York NY, THOMAS CIOPPA, District Director New York District Office, US Citizenship and Immigration Services, US Department of Homeland Security,

Defendants-Appellees.1

_____________________________________

FOR PLAINTIFFS/APPELLANTS: SAUL BERNARD SCHWARZ, Law Office of S. Bernard Schwarz, Esq., PLLC, New York, NY.

FOR DEFENDANTS/APPELLEES: KIRTI VAIDYA REDDY, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

Appeal from an order of the United States District Court for the Southern District of New

York (Caproni, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

Appellants challenge the district court’s order dismissing as moot their challenge to a 2017

Department of Homeland Security (“DHS”) memorandum which, they allege, foreclosed DHS

attorneys’ ability to exercise prosecutorial discretion to recommend administrative closure in their

removal proceedings. The district court concluded that the challenge was moot because an

intervening decision of the Attorney General, Matter of Castro-Tum,

(A.G.

2018), stripped immigration judges (“IJs”) of the authority to administratively close removal

1 The Clerk of Court of is respectfully directed to amend the caption as set forth above.

2 proceedings, even when DHS recommends closure. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

We review the district court’s dismissal for lack of subject matter jurisdiction de novo.

Fed. R. Civ. P. 12(b)(1); Celestine v. Mount Vernon Neighborhood Health Ctr.,

, 79–

80 (2d Cir. 2005). A case remains live “as long as the parties have a concrete interest, however

small, in the outcome of the litigation” and a court may be able “to grant any effectual relief

whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000,

,

307–308 (2012) (internal quotation marks and alteration omitted). A case becomes moot, and

federal courts lack subject matter jurisdiction, when the parties no longer have a “legally

cognizable interest” in the outcome of the litigation, rendering the court incapable of granting a

judgment that will affect the parties’ legal rights. Los Angeles County v. Davis,

(1979). We conclude that Appellants’ challenge to the 2017 DHS memorandum is moot.

The primary injury for which Appellants seek redress is the denial of administrative

closure. While the intermediate relief they seek in this case is judicial rescission of the DHS

memorandum, that outcome is desirable only in the event that IJs may administratively close

removal proceeding. And here, even if the district court agreed with Appellants and enjoined the

DHS memo, and DHS prosecutors thereafter decided to recommend closure, plaintiffs would still

be stymied by Castro-Tum. In other words, Appellants would have to bring—and win—another

legal challenge after this one to obtain “effectual” relief. See Knox,

.

Appellants’ contention that Castro-Tum and the DHS memorandum mutually insulate each

other from review is without merit. Under Castro-Tum, IJs lack authority to administratively

close cases. See

. That has nothing to do with whether DHS recommends

administrative closure. As the district court correctly concluded, moreover, Appellants have a

3 proper avenue to challenge Castro-Tum: They may request administrative closure directly from

an IJ, who, stripped of his power to assess whether closure is warranted as a matter of discretion,

will be bound to deny. See Castro-Tum, 27 I. & N. Dec. at 272–73. They can then appeal to the

Board of Immigration Appeals to argue that Castro-Tum was wrongly decided and petition this

Court for review. See Romero v. Barr,

(4th Cir. 2019). Indeed, another litigant

before this Court is pursuing that course of action. See Benitez Marquez v. Barr, No. 18-3460 (2d

Cir.).

We recognize that, if the petitioner in Benitez Marquez is successful, Appellants’ challenge

to the 2017 DHS memorandum may no longer be moot. Because the district court’s dismissal

was without prejudice, Appellants may refile if this Court ultimately overturns Castro-Tum. We

express no opinion on the viability or merits of such a future case. We likewise express no views

regarding either the merits of any defense available to the defendants, or as to whether all of the

particular plaintiffs in this action would have standing to challenge the 2017 DHS memorandum

in such a future case. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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