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[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,
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2 Opinion of the Court 20-13073
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 NEWSOM and MARCUS, Circuit Judges, and LAWSON, * Dis-
trict Judge.
MARCUS, Circuit Judge:
Goga Djadju, a native and citizen of North Macedonia, ap-
peals 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”). Djadju claims that his detention by ICE officials violated
the Due Process Clause of the Fifth Amendment, because it ex-
ceeded 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 his
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.
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20-13073 Opinion of the Court 3
asks us to decide whether the district court properly determined
that the administrative stay of removal affected his Zadvydas claim.
However, certain critical events have taken place since Djadju
commenced this habeas petition and since the district court de-
cided 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 appli-
cations for withholding of removal and other immigration relief,
and his administrative removal order became final. Shortly there-
after, the BIA granted Djadju’s motion to reopen his removal pro-
ceedings, based on his marriage to an American citizen, and
granted him an administrative stay of removal pending the resolu-
tion of that motion. Several weeks later, ICE conducted a post-
order custody review and concluded that Djadju should 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 offi-
cials conditionally released Djadju from detention under an order
of supervision. He was placed on an electronic monitoring system,
where he remains as 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., 843 F. App’x 156 (11th Cir. 2021) (un-
published).
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4 Opinion of the Court 20-13073
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 oral argument, we dismiss this appeal and vacate the dis-
trict 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 our
jurisdiction to consider challenges under § 2241 to an alien’s deten-
tion 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 ex-
tended 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)(ii)
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20-13073 Opinion of the Court 5
(providing 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
effect 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 jurisdic-
tion of federal courts to ‘cases’ and ‘controversies,’” and the justici-
ability doctrine’s main components include mootness. See Chris-
tian 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 re-
solve any question implicating the doctrine before we assume ju-
risdiction 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 pending
on appeal that makes it impossible for the court to grant any effec-
tual relief whatever to a prevailing party, the appeal must be dis-
missed.” 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 or-
der -- a practice that “clears the path for future relitigation of the
issues between the parties and eliminates a judgment, review of
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6 Opinion of the Court 20-13073
which was prevented through happenstance.” Al Najjar v. Ash-
croft,
273 F.3d 1330, 1340 (11th Cir. 2001) (quotation marks omit-
ted). In considering 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 petition presents a live case or
controversy only when a petitioner is in custody.” Salmeron-Salm-
eron v. Spivey,
926 F.3d 1283, 1289 (11th Cir. 2019); see also
28
U.S.C. § 2241(c)(3)). The Supreme Court has held that the “in cus-
tody” 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 “col-
lateral consequences” doctrine to habeas petitions brought in the
immigration context).
Ultimately, the burden remains on the petitioner to establish
that his case still presents a live “case or controversy” by demon-
strating 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 raised a challenge to a “collateral
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20-13073 Opinion of the Court 7
consequence,” we’ve held that his 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 subse-
quently 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 concerning
whether § 1226(c) detainees must be afforded bond hearings and
dismissing 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 Court grant the following re-
lief:
(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;
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8 Opinion of the Court 20-13073
Djadju already has been released from custody, his prayer for relief
has been satisfied. Notably, even in his briefing to us, Djadju has
not argued that the order of supervision is a form of custody for
habeas purposes, nor that he is suffering any collateral conse-
quences resulting from the order. Nor 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 any remedy
pursuant to § 2241. See Troiano, 382 F.3d at 1282.
Since we can offer Djadju no relief, we 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 juris-
diction of the ICE Miami Field Office during the pendency 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 justified 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 from
custody, which has already happened. His petition did not seek any relief con-
cerning his conditions of release.
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20-13073 Opinion of the Court 9
give the plaintiff or appellant meaningful 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 marks omitted). The mootness require-
ment -- as derived from the Constitution’s case-or-controversy lim-
itation -- “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, if
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 af-
fects his claims -- 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 cus-
tody was merely the result of the government’s “voluntary cessa-
tion” 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 could not reason-
ably be expected to recur. Keohane v. Fla. Dep’t of Corr. Sec’y, 952
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10 Opinion of the Court 20-
13073
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 govern-
mental entity voluntarily ceases the challenged action. Because
“there is a presumption that the government will not later resume
the action,” the opposing party must show a reasonable expecta-
tion that the government will reverse course. Walker v. City of
Calhoun,
901 F.3d 1245, 1270 (11th Cir. 2018); Troiano v. Supervi-
sor of Elections in Palm Beach Cty., Fla.,
382 F.3d 1276, 1283 (11th
Cir. 2004) (“[W]hen the defendant is not a private citizen but a gov-
ernment actor, there is a rebuttable presumption that the objec-
tionable behavior will not recur. . . [C]essation of the allegedly ille-
gal 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 defendants
to desist from future violations” (quotation marks and internal ci-
tations 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 leeway than private
parties in the presumption that they are unlikely to resume illegal
activities.”). Notably, however, we have never addressed the “vol-
untary-cessation” doctrine in the habeas immigration context, and
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20-13073 Opinion of the Court 11
it is not clear that it would apply to a claim like this, which is tied
to a petitioner’s custody. 2
Where the “voluntary-cessation” exception to mootness
does apply, we examine three factors to determine whether a rea-
sonable expectation that the government will reverse course exists,
including whether: (i) the change in conduct resulted from substan-
tial 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 gov-
ernment has consistently maintained its commitment to the new
policy or legislative scheme. Walker, 901 F.3d at 1270. Those con-
siderations 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 (quota-
tion marks omitted and alteration accepted). Moreover, “[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 that Supreme Court has never applied the
voluntary-cessation exception in a habeas case, and suggesting, without decid-
ing, that the “voluntary-cessation” exception is more appropriate in other con-
texts, where “a type of judgment with continuing force, such as an injunction,
is sought”) (quotation marks omitted).
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12 Opinion of the Court 20-13073
remote possibility that an event might recur is not enough to over-
come mootness.” Al Najjar,
273 F.3d at 1336.
Here, we need not and do not decide whether the voluntary-
cessation doctrine applies in the habeas immigration context be-
cause even if it did, it has not been satisfied. For starters, the gov-
ernment released Djadju from custody under an order of supervi-
sion, following the procedures set forth in
8 C.F.R. § 241.4, after
the district court denied his habeas petition, suggesting that there
was no link between this lawsuit and its action. Further, the gov-
ernment has described Djadju’s detention as having “ceased,” and,
as of now, more than fifteen months have passed since Djadju’s re-
lease in November 2020. See Walker, 901 F.3d at 1270. The gov-
ernment also conceded 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 removed in the reasonably
foreseeable future -- making it unlikely that he would be re-de-
tained 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 en-
gage in conduct that will place him at risk of that injury).
Thus, as we see it, there’s no reasonable basis for us to be-
lieve that Djadju will be re-detained unlawfully upon termination
of this suit. See Troiano,
382 F.3d at 1284. Moreover, the govern-
ment conceded at oral argument that if he is re-detained, Djadju
could bring a new habeas action, at which time his claims would
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20-13073 Opinion of the Court 13
be fully vetted. But until that point, any 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 ap-
peal, and we dismiss the case as moot. We also vacate the district
court’s order dismissing, or alternatively denying, his petition. See
Al Najjar,
273 F.3d at 1336.
DISMISSED; DISTRICT COURT JUDGMENT
VACATED.
