Vimos Atupana v. SanchezVimos Atupana v. Sanchez
MARY KAY VYSKOCIL, United States District Judge:
Petitioner, a three-year-old child, was encountered by U.S. Customs and Border Protection (“CBP”) in Texas on November 22, 2025. That day, CBP determined that Petitioner was an unaccompanied alien child (“UAC”) and transferred him to the custody of the Office of Refugee Resettlement (“ORR”) pursuant to
On March 18, 2026, Petitioner initiated this action by filing a petition for a writ of habeas corpus by his next friend Luis Edgar Vimos Rivera (“Rivera”) under Title 28 United States Code Section 2241. [ECF No. 1]. In the Petition, the next friend principally seeks immediate release of the child and argues, among other things, that ORR lacks statutory authority to continue to hold him as an UAC. The next friend argues that Petitioner cannot be classified as an UAC subject to ORR’s custody given that Rivera, his father, is present in the United States and has complied with all requirements in submitting a sponsor application with ORR to take custody of Petitioner.
Thereafter, both parties submitted letters advising that Petitioner had been released from ORR custody and been reunited with Rivera on March 27, 2026. [ECF Nos. 11, 12]. However, the parties disputed whether the case was moot as a result. [ECF Nos. 11, 12]. In turn, with leave of Court, the Government filed a letter arguing that the Court should dismiss the Petition as moot. [ECF No. 14 (“Mootness Mem.”)]. Petitioner filed a letter in opposition, [ECF No. 15 (“Mootness Opp’n”)], with an attached Declaration of Luis Edgar Vimos Rivera (“Rivera Declaration” or “Rivera Decl.”) [ECF No. 15-1].
For the reasons set forth below, the Petition is dismissed as moot.
BACKGROUND
The day after Petitioner was transferred into ORR custody as an UAC, ORR identified Petitioner’s uncle as a potential sponsor who could assume custody of Petitioner and attempted to contact him. Biswas Decl. ¶¶ 28-29. On November 26, 2025, ORR learned that Rivera was in the United States and living with Petitioner’s uncle. Biswas Decl. ¶ 29. On December 4, 2025,
On February 8, 2026, ORR received Rivera’s sponsor application and authorization to conduct required background checks. Biswas Decl. ¶ 35. As part of ORR’s vetting process, Rivera attended his fingerprint appointment and provided proof of address in February 2026. Biswas Decl. ¶¶ 36-38. On March 4, 2026, Rivera’s child abuse/neglect check came back “clear.” Biswas Decl. ¶ 41. At some point, Rivera’s in-person ID check and DNA testing were scheduled for March 23, 2026. Biswas Decl. ¶ 42.
The sponsor application remained pending on March 18, 2026 when Rivera, as next friend, filed this habeas Petition. See generally Pet. In response, the Government advised that ORR would expedite the DNA testing and promptly make a decision on Rivera’s sponsor application once it obtained the DNA testing results. Opp’n at 1; see also Biswas Decl. ¶¶ 43-44 (noting that ORR expects to receive the DNA results by March 27, 2026 and will make a determination on the sponsor application within 48 hours thereafter).
On March 27, 2026, ORR, after completing the final step of its vetting process, approved Rivera’s sponsor application and released Petitioner to him. [ECF Nos. 11, 12].
DISCUSSION
Under Article III of the U.S. Constitution, the judicial power is limited to the adjudication of cases or controversies. Uzuegbunam v. Preczewski, 592 U.S. 279, 285 (2021). Consistent with this principle, a court lacks jurisdiction to consider the merits of a moot case given it is no longer a case or controversy within the meaning of Article III. Chevron Corp. v. Donziger, 833 F.3d 74, 120 (2d Cir. 2016). A case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome” no matter how intensely the parties continue to litigate the lawfulness of the conduct that precipitated the lawsuit. Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). To avoid mootness, the plaintiff, throughout the litigation, “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998).
I. The Case is Moot.
The Second Circuit has made clear that a habeas corpus petition seeking release from immigration custody is generally mooted upon release. Pierrilus v. U.S. Immigration and Customs Enforcement, 293 F. App‘x 78, 79 (2d Cir. 2008) (finding release mooted habeas challenge to length of detention and noting that under
Here, the Petition seeks “immediate[] release” or, alternatively, “an individualized custody determination.” Pet. at 12. Petitioner’s release—the precise relief he sought—has rendered the Petition moot; he “is no longer suffering an ‘actual injury’” that could be redressed by a favorable
Petitioner argues that a live controversy exists because he seeks declaratory relief that the Government acted outside its statutory authority in keeping Petitioner in ORR custody. See Mootness Opp’n at 4 (citing Kemna, 523 U.S. at 7). However, the only cited authority merely held that a case is not moot where a party establishes continuing collateral consequences, which Petitioner has not done here. Kemna, 523 U.S. at 7. In any event, declaratory judgment does not provide a basis for jurisdiction and is not a cause of action, but rather provides a form of relief that
As numerous courts have held, requesting declaratory judgment that prior detention was unlawful does not transform a habeas petition otherwise moot by reason of release into a live controversy. See Chocho v. Shanahan, 308 F. Supp. 3d 772, 774–75 (S.D.N.Y. 2018) (holding that habeas petition was moot despite claim for declaratory judgment that prior detention violated petitioner’s rights given petitioner was released); Jackson v. Holder, 893 F. Supp. 2d 629, 631 (S.D.N.Y. 2012) (finding that a habeas petitioner’s request for declaratory judgment that “his continued detention was not authorized by the INA and/or violated the Fifth Amendment” was moot after the petitioner was removed and no longer in custody); see also Velvet Underground v. Andy Warhol Found. for the Visual Arts, Inc., 890 F. Supp. 2d 398, 403 (S.D.N.Y. 2012) (“As with any federal action, courts may not entertain actions for declaratory judgment when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”) (citation omitted).
II. No Mootness Exception Applies
Petitioner also argues that the case is not moot because it falls under two exceptions: (1) the voluntary cessation exception and (2) the “capable of repetition, yet evading review” exception. See Pet. Moot Opp’n at 1-7. However, neither exception is applicable.
It is well established that a court is not necessarily deprived of jurisdiction to determine the legality of a challenged practice where defendant voluntarily ceases that practice. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Nonetheless, voluntary cessation will render a case moot where the defendant can demonstrate “(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Mhany Mgmt., Inc. v. Cnty of Nassau, 819 F.3d 581, 603 (2d Cir. 2016) (quoting Granite State Outdoor Advert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2d Cir. 2002)). The exception is rooted in the principle that a defendant should not be able to evade review “by temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1 (2001). A party “claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190.
This exception is unavailing here. Courts have routinely rejected the application of the voluntary cessation exception in the habeas context where, as here, the complaining party—i.e., the petitioner—has been released from custody and there is no reasonable non-speculative expectation the alleged violation would recur. See Paul v. Decker, No. 20-cv-2425 (PKF), 2021 WL 1947776, at *5 (S.D.N.Y. May 14, 2021) (finding voluntary cessation exception inapplicable where petitioner was released and there is no reasonable expectation he will suffer the same violation of allegedly unconstitutional conditions of confinement); Pierre-Paul, 293 F. Supp. 3d at 493 (finding voluntary cessation exception inapplicable because release “eradicated the alleged
Petitioner, relying on Mhany Management, argues that it is irrelevant whether Petitioner will face a recurrence of the alleged violation but rather the proper inquiry is whether the Government will continue the challenged conduct writ large. See Mootness Opp’n at 3-4. However, Mhany Management does not stand for such a proposition. There, the Second Circuit held that a challenge to discriminatory zoning rules that prevented plaintiff’s ability to construct affordable multi-family housing at a designated site was not rendered moot by defendants’ decision to build a courthouse on that site instead of proceeding with a private single-family developer. Mhany Mgmt., 819 F.3d at 597-98, 603-05. The defendants argued the case was moot because the plaintiff’s injury could no longer be traced to the allegedly discriminatory zoning laws but rather to the intervening decision to construct a courthouse. Id. at 603. In applying the voluntary cessation exception, the Second Circuit held defendants’ action did not moot the case because they failed to show it was “absolutely clear” the site will never be used for housing and that the defendants would not return to the specific challenged discriminatory conduct that had impacted the plaintiff. Id. at 603-05.
Further, as the Government points out, this is not a case of strategic mooting where the Government has voluntarily ceased the challenged process by simply short-circuiting it and releasing Petitioner in response to litigation. Mootness Mem. at 3. Rather, the Government released Petitioner only after the entire vetting process of Rivera’s sponsor application was completed. See Doe v. Decker, No. 18-cv-3573 (GBD) (KNF), 2019 WL 2517091, at *4 (S.D.N.Y. Apr. 4, 2019), report and recommendation adopted, No. 18-cv-3573 (GBD) (KNF), 2019 WL 2513838 (S.D.N.Y. June 18, 2019) (finding voluntary cessation inapplicable where the Government did not cease the complained-of conduct but instead released petitioner due to a
B. Capable of Repetition Yet Evading Review
The “capable of repetition, yet evading review” exception to mootness applies where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration,” and (2) in the absence of a class action, “there is a reasonable expectation that the same complaining party will be subject to the same action again.” Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016) (cleaned up); Van Wie v. Patakai, 267 F.3d 109, 114 (2d Cir. 2001) (noting that in the absence of a class action the inquiry must focus on “the same complaining party”) (emphasis in original). Mere speculation that the same complaining party might be subject to the same challenged conduct is insufficient to show a reasonable probability of recurrence. See Town of Newburgh, v. Newburgh EOM LLC, 151 F.4th 96, 102 (2d Cir. 2025); Dennin v. Conn. Interscholastic Athletic Conference, Inc., 94 F.3d 96, 101
The Court need not reach whether the challenged action is too short in duration to be fully litigated because Petitioner has failed to establish that there is a reasonable non-speculative expectation that he will be subject to the same challenged conduct. As is obvious, the situation has changed in that Petitioner has now been released to the individual whom vetting confirmed to be his father and is no longer an UAC.
Nonetheless, Petitioner appears to argue there is a risk of re-detention by pointing to Rivera’s Declaration. Mootness Opp’n at 6 (“After reading Petitioner’s father’s affidavit, it will be self-understood to the Court, that there is a reasonable risk that the Petitioner would be re-detained by ORR.”). But nowhere in the Rivera Declaration does he ever assert that Petitioner is likely to be placed back in ORR custody, much less provide a credible basis to support such a contention. See Rivera Decl. Indeed, the Rivera Declaration exclusively focuses on the negative impact that ORR custody has caused Petitioner. Id. Petitioner essentially concedes as much and appears to rest entirely on a speculative fear that he might be re-detained by ORR. See Mootness Opp’n at 6 (“[A]lthough Petitioner’s father did not overtly state that his son is at risk of being detained again . . . it is obvious that Petitioner’s father does contend and feel that his son is at risk of being re-detained by ORR.”). Such speculation is plainly insufficient to meet this mootness exception. See Pierre-Paul, 293 F. Supp. 3d at 492-93 (finding risk of re-detention speculative in light of cancellation of removal despite three previous detentions because petitioner could “point to no facts indicating that . . . ICE is likely to exercise its discretion to detain her again and re-start her removal”); Leybinsky, 553 F. App‘x at 110 (finding case moot and explaining that “[i]t cannot be assumed . . . that Leybinsky will continue to violate the terms of his release and become subject
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that this action is dismissed as moot without prejudice to Petitioner’s ability to seek habeas relief from the appropriate court should he be re-detained.
The Clerk of Court is respectfully requested to close the case.
SO ORDERED.
Date: August 5, 2026
New York, NY
MARY KAY VYSKOCIL
United States District Judge