Wednesday, June 19, 2013

Veltmann-Barragan v. Holder, No. 11-56370 (Ikuta, author; Paez and Ezra (D. Haw.) also on panel)

The Ninth Circuit held that an alien who (1) has previously been deported, (2) subsequently returns to the United States, and (3) fears reinstatement of the prior removal order is not "in custody" for purposes of invoking a district court's habeas jurisdiction under 28 U.S.C. § 2241.

The petitioner became a lawful permanent resident in 1982. In 1999, when she was returning from Mexico, she gave a false name at the port of entry, which led the Border Patrol to deport her under the "expedited removal" procedure. She then returned to the United States using her green card. In 2005, when she applied for naturalization, the government discovered her 1999 attempt to enter under a false name, terminated her legal permanent resident status, and denied her application for naturalization. She did not seek either administrative or judicial review of those decisions. In 2007, she filed a habeas petition under § 2241 attacking the 1999 removal order. The district court denied the petition on the merits, but the Ninth Circuit held that the district court lacked jurisdiction in the first instance and should have dismissed the petition instead. The petitioner did not satisfy the "in custody" requirement of § 2241(a) -- she did not allege that she was physically in custody or subject to any removal order. Although she feared that the government would once again reinstate the 1999 removal order, reinstatement is not automatic, and without the government taking affirmative steps to reinstate, the petitioner was not subject to restraints not shared by the public generally, which is the legal definition of being "in custody" for this purpose.

The decision is here:


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