Bacilio-Sabastian, et al v. Barr, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-50168

Sebastian Domingo Bacilio-Sabastian; Raul Us Castro;
Wilder Xitumul-Garcia; Manuel Santiago-Laines,

Petitioners—Appellants,

versus

William P. Barr, Attorney General of the United
States; Rose Thompson, Warden of the Karnes County
Residential Center; Budd Ratliff, Acting Assistant
Field Office Director for the San Antonio District of
ICE; Daniel Bible, Field Office Director for the San
Antonio District Office of ICE; Ronald D. Vitiello,
Deputy Director and Acting Director of ICE; Chad F.
Wolf, Acting Secretary, U.S. Department of Homeland
Security; The GEO Group, Incorporated,

Respondents—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-793

Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Haynes, Circuit Judge:
United States Court of Appeals
Fifth Circuit
FILED
November 13, 2020

Lyle W. Cayce
Clerk
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Petitioners Sebastian Domingo Bacilio-Sabastian, Raul Us Castro,
Wilder Xitumul-Garcia, and Manuel Santiago-Laines appeal the dismissal of
their petitions for habeas corpus. For the following reasons, we AFFIRM.
I. Background
Petitioners, each with his minor son, fled persecution in their home
country of Guatemala. When they arrived in the United States, each
Petitioner was detained by Immigrations and Customs Enforcement
(“ICE”) and separated from his son during detention. While detained and
separated from their sons, each received written notice that they would be
paroled into the United States. Petitioners were neither released from
detention nor given notice that parole had been revoked. Instead, they were
transferred to various locations before being detained at the Karnes County
Residential Center in Karnes City, Texas. Two had their parole notices
confiscated.
In August 2018, Petitioners filed their habeas petition in federal
district court seeking habeas corpus relief, a writ of mandamus, and a
declaratory judgment. More specifically, Petitioners claimed that their due
process rights had been violated by failure to honor the parole notice, that
federal statutes and regulations created a right to parole based on the parole
notices they had received, that the parole notices should be honored under
customary international law, and that a legitimate expectation of parole had
been created.
Within two weeks after the petition was filed, ICE released Petitioners
from custody but not on parole. The government then moved for dismissal,
arguing that the district court lacked jurisdiction because the matter was
moot. Petitioners opposed the motion to dismiss. Petitioners argued that the
case was not moot since, having not been released on parole and thus being
unable to accept employment, they continued to suffer adverse
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consequences. They also asserted that the district court had jurisdiction to
address whether the revocation of parole had been in accordance with the
Administrative Procedure Act (“APA”).
Among other things, the district court determined that Petitioners’
release from detention rendered the habeas petition moot. The district court
ordered that the government provide Petitioners or their attorneys with
written notice that their parole had been terminated. Upon receipt of
compliance, it would grant the motion to dismiss. In compliance with the
order, the Assistant United States Attorney on this case sent a letter to
Petitioners’ attorneys, which purported to serve as notice of termination of
parole. The district court then dismissed the habeas petition. Petitioners
now appeal.
II. Discussion
We review de novo a district court’s determination that a case is moot.
Bayou Liberty Ass’n v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 396 (5th Cir.
2000).
Mootness doctrine requires that, to show a case or controversy under
Article III of the Constitution, “through all stages of federal judicial
proceedings, trial and appellate[,] . . . parties must continue to have a
personal stake in the outcome of the lawsuit.” Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477–48 (1990) (internal quotation marks and citation omitted).
To maintain a habeas case after release from incarceration, petitioners must
show that they continue to suffer “collateral consequences.” See Carafas v.
LaVallee, 391 U.S. 234, 237 (1968). In the criminal context, collateral
consequences exist when, “[b]ecause of . . . disabilities or burdens which may
flow from [a] petitioner’s conviction, he has a substantial stake in the
judgment of conviction which survives the satisfaction of the sentence
imposed on him.” Id. (cleaned up).
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Petitioners argue that their inability to seek work authorization—
which they could do if released on parole—is a collateral consequence that
should allow them to maintain their petition. We disagree for two reasons:
First, we are not convinced that aliens who are released from ICE custody
can maintain a habeas petition by showing collateral consequences. Second,
even if they could demonstrate collateral consequences, they have not done
so here because any work authorization is subject to U.S. Citizenship and
Immigration Services (“USCIS”) discretion. Since we hold that Petitioners’
habeas petition has become moot, we affirm.
1

We do not think that the collateral consequences analysis used in the
criminal context necessarily applies with the same force in the immigration
context. When an alien is released from ICE custody pending further
immigration proceedings, no conviction exists to disable or burden that
petitioner. See Carafas, 391 U.S. at 237 (defining collateral consequences as
“disabilities or burdens which may flow from [a] petitioner’s conviction”
(cleaned up) (emphasis added)). To be sure, an alien awaiting immigration
proceedings has fewer rights then a citizen or lawful resident: for example,
like Petitioners here, the alien might not be able to seek work. But the
limitation on employment is based on their undocumented status, not, like a
criminal case, on an underlying conviction that might be attacked in a habeas
petition. Since neither actual confinement nor an underlying conviction are
the basis for Petitioners’ employment obstacles, it appears that maintaining
a habeas petition is not a viable means to obtain the relief that Petitioners
seek. Indeed, the Supreme Court has recently taken a narrow view of habeas

1
During argument, counsel for Petitioners argued that, even if their habeas claim
cannot proceed, they had raised viable APA and mandamus claims on appeal. Petitioners’
briefing focused solely on the habeas claim. Because any other claims were inadequately
briefed, they are waived. See Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 653
(5th Cir. 2004).
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relief in the immigration context, which supports our reluctance to extend
habeas relief to aliens who are released from detention. See Dep’t of
Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1963 (2020) (describing
habeas in the immigration context as “a means to secure release from
unlawful detention”).
Even if habeas relief were available for collateral consequences on
employment in an immigration context, it does not apply here. In the
criminal context, limitations on employment have been held to be collateral
consequences when a person’s underlying criminal conviction bars him from
certain employment. See Carafas, 391 U.S. at 237. Not all possible impacts
on employment prospects count, though: “nonstatutory consequences”—
like those “dependent upon the discretionary decisions made by an employer
or a sentencing judge”—are generally not actionable collateral
consequences. Spencer v. Kemna, 523 U.S. 1, 13 (1998) (cleaned up). Here,
aliens on parole may apply for employment authorization, but approval of
such authorization is subject to USCIS discretion. See 8 C.F.R. § 274a.12(c).
Therefore, after a parolee gains the ability to seek work authorization,
obtaining authorization remains dependent upon a USCIS determination.
Any collateral consequence, then, is too attenuated for habeas relief.
For these reasons, therefore, we conclude that Petitioners’ habeas
claim is moot. Since their habeas claim is moot, and because Petitioners did
not properly raise any other claim on appeal, we AFFIRM the judgment of
the district court.
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Patrick E. Higginbotham, Circuit Judge, dissenting:
As a result of the government’s revocation of their parole, Petitioners
are prevented from applying for employment authorization.
1
This renders
them unable to seek employment. Because this adverse consequence is
specific, concrete, and flows directly as a matter of law from the challenged
government action,
2
I would hold that Petitioners’ case is not moot. I would
further hold that the district court is not prevented from reviewing the
government’s revocation of parole under 8 U.S.C. §§ 1226(e) and
1252(a)(2)(B)(ii) because its purported failure to comply with mandatory
regulations was not a discretionary act.
I must disagree with the majority’s view of the reach of habeas corpus.
The Supreme Court did not speak to the scope of immigration habeas relief
in Department of Homeland Security v. Thuraissigiam, focusing only on the
Suspension Clause.
3
The habeas statute itself “does not limit the relief that
may be granted to discharge of the applicant from physical custody. Its
mandate is broad with respect to the relief that may be granted.”
4

The majority holds that Petitioners’ inability to seek employment is a
consequence of their undocumented status, not “an underlying conviction
that might be attacked in a habeas petition.” But this misunderstands the
cause of Petitioners’ inability to seek employment. It is not Petitioners’
undocumented status itself but rather the underlying reason Petitioners
remain undocumented—the government’s revocation of their parole.

1
8 C.F.R. § 274a.12(c).
2
Spencer v. Kemna, 523 U.S. 1, 9 (1998) (citing Carafas v. LaVallee, 391 U.S. 234,
237 (1968)).
3
140 S. Ct. 1959 (2020).
4
Carafas, 391 U.S. at 239.
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Because this revocation can be challenged in a habeas petition, I conclude
that Petitioners’ habeas action is a viable means for the relief they seek and
find no reason to limit the collateral consequences doctrine within the
immigration context.
The majority concludes that because Petitioners’ work authorization
is subject to USCIS discretion, its consequence is “too attenuated for habeas
relief.” Yet, its impact on Petitioners’ employment prospects differs little
from cases where the Supreme Court has found an adverse effect on
employment to be a collateral consequence. In Carafas v. LaVallee, the Court
found that the petitioner’s inability to engage in certain businesses was a
collateral consequence flowing from his conviction.
5
One of those businesses
was trafficking in alcoholic beverages.
6
Reversing the petitioner’s conviction
only removed the prohibition, permitting the petitioner to apply for a liquor
license, but he still needed the license to be approved before being able to
engage in that business. Despite this attenuation, the Court found a collateral
consequence. Likewise, in Ginsberg, the Court found it sufficient for
collateral consequence purposes that the petitioner’s conviction “might
result in the revocation of [his] license” required to run his luncheonette
business because a town ordinance provided that the Commissioner of
Buildings “may suspend or revoke any license issued, in his discretion, for []
conviction of any crime.”
7
In both cases, the Court found a collateral
consequence although the petitioner’s enjoyment of employment depended

5
Id. at 237-38; see also Fiswick v. United States, 329 U.S. 211, 222 (1946) (finding
that a non-citizen petitioner faced collateral consequences because his conviction may
impede his ability to become a citizen “if [he] seeks naturalization” and, if naturalized, his
conviction might result in the loss of certain civil rights).
6
Carafas, 391 U.S. at 237 n.4 (citing New York Alcoholic Beverage Control Law,
McKinney’s Consol. Laws, c. 3—B, § 126).
7
Ginsberg v. State of NY, 390 U.S. 629, 633 n.2 (1968) (emphasis added).
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on the discretion of a third party. It follows that Petitioners’ inability to seek
work authorization from USCIS is a collateral consequence resulting from
the revocation of parole status, and their petition is not moot.
There is no other jurisdictional obstacle to reaching the merits of
Petitioners’ case. The district court found that 8 U.S.C. §§ 1226(e) and
1252(a)(2)(B)(ii) foreclose jurisdiction to review the government’s actions.
8

This was error. Challenges to “the extent of the Attorney General’s
authority” are outside the scope of these jurisdiction stripping provisions.
9

While the government has discretion to revoke Petitioners’ status, it must
abide the regulations controlling its exercise.
10
The government’s “extent of
that authority is not a matter of discretion.”
11
Therefore, Petitioners do not
challenge discretionary government action, and the district court can
properly reach the merits of their case.
I respectfully dissent.

8
Section § 1226(e) provides that “[t]he Attorney General’s discretionary
judgment regarding the [apprehension and detention of aliens] shall not be subject to
review.” 8 U.S.C. § 1226(e). Section § 1252(a)(2)(B)(ii) provides that “no court shall have
jurisdiction to review . . . any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified . . . to be in the
discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C.
§ 1252(a)(2)(B)(ii).
9
Zadvydas v. Davis, 533 U.S. 678, 688 (2001); see also Jennings v. Rodriguez, 138
S. Ct. 830, 841 (2018).
10
8 C.F.R. § 212.5(e)(2)(i); see also United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260, 267 (1954), superseded in part by statute on other grounds as recognized in
Thuraissigiam, 140 S. Ct. 1959 (“[A]s long as the regulations remain operative, the
Attorney General denies himself the right to sidestep” those regulations.).
11
Zadvydas, 533 U.S. at 688.
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