I.M. v. United States Customs and Border Protection ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2023 Decided May 12, 2023
No. 22-5071
I.M.,
APPELLANT
v.
UNITED STATES CUSTOMS AND BORDER PROTECTION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03576)
Jeffrey B. Dubner argued the cause for appellant. With
him on the briefs were Sean A. Lev, Keren H. Zwick, Mark
Fleming, James H. Barker, L. Allison Herzog, Joseph Begun,
and Jacob P. Rush.
Sabrineh Ardalan was on the brief for amicus curiae Har-
vard Immigration and Refugee Clinical Program in support of
appellant.
Brian C. Ward, Senior Litigation Counsel, U.S. Depart-
ment of Justice, argued the cause for appellees. With him on
the brief were Brian M. Boynton, Principal Deputy Assistant
2
Attorney General, and Erez Reuveni, Assistant Director. Lau-
ren C. Bingham, Senior Litigation Counsel, entered an appear-
ance.
Before: RAO and WALKER, Circuit Judges, and GINSBURG,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER,
with whom Circuit Judge RAO joins except as to Part II.C.
WALKER, Circuit Judge: The Government removed IM
from the United States. Back in his home country, IM filed a
habeas petition, arguing that his removal was unlawful. But
habeas proceedings are available only when a petitioner is in
government custody. Because IM was out of custody, he could
not use habeas to challenge his removal.
I. Background
A. Statutory Scheme
The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 created an expedited removal process. It al-
lows the government to quickly remove aliens who arrive in
the United States without the right paperwork. If an alien ar-
rives without a valid visa, or having misrepresented facts to se-
cure a visa, an immigration officer may remove him “without
further hearing or review” — unless he claims asylum. 8
U.S.C. § 1225(b)(1)(A)(i); id. § 1182(a)(6)(C), (a)(7)(A)(i)(I).
If an alien claims asylum, the officer must “refer the alien
for an interview by an asylum officer.” 8 U.S.C.
§ 1225(b)(1)(A)(ii). If that officer determines the alien has a
credible fear of persecution, the alien “shall be detained for fur-
ther consideration of the application for asylum.” Id.3
§ 1225(b)(1)(B)(ii). If not, the asylum officer “shall order the
alien removed.” Id. § 1225(b)(1)(B)(iii)(I); 8 C.F.R.
§ 1208.30(g)(2)(iv)(A).
Because expedited removal is designed to be efficient,
Congress tightly restricts judicial review of expedited removal
orders. “Judicial review” of expedited removal orders is only
“available in habeas corpus proceedings.” 8 U.S.C.
§ 1252(e)(2); see also id. § 1252(a)(2)(A)(i)-(ii), (iv) (“no
court shall have jurisdiction to review” expedited removal or-
ders “except as provided in subsection (e)”).
B. IM’s Case
IM is a farmer with an interest in sustainable agriculture.
To further his work, he got a visa and visited America to learn
from agriculturalists. His trip went without a hitch. A year
later, he returned to the country using the same visa to collab-
orate with another agriculturalist. That trip didn’t go so
smoothly.
When IM arrived in America, an immigration officer de-
nied him entry. The officer found that IM planned on getting
paid by a farmer, even though his visa did not allow him to
work. So the officer placed IM in expedited removal proceed-
ings. See 8 U.S.C. § 1225(b)(1).
Unwilling to leave, IM claimed asylum. He said he feared
returning to his home country because he had “twice received
death threats.” JA 20.
4
An immigration officer denied IM’s asylum application.
An immigration judge affirmed, and IM was removed. 1
Back in his home country, IM filed a habeas petition, in-
voking 8 U.S.C. § 1252(e)(2). In it, he claimed that the officer
who ordered him removed was improperly appointed. Accord-
ing to IM, that officer wielded significant power, making him
an inferior officer who should have been appointed by the Pres-
ident or the head of a department. U.S. Const. art. II, § 2, cl. 2.
The district court dismissed IM’s petition. It concluded
that habeas proceedings are available only to those in govern-
ment custody. Because IM did not file his petition until he was
back home and out of custody, the court lacked jurisdiction to
hear his case. 2
IM appealed to this court. We review the district court’s
decision to dismiss IM’s suit de novo. Piersall v. Winter, 435
F.3d 319, 321 (D.C. Cir. 2006). Because a petitioner must be
in government custody to initiate “habeas corpus proceedings,”
we affirm. 8 U.S.C. § 1252(e)(2).
II. Custody Is an Essential Jurisdictional Requirement
Courts may generally review orders removing aliens from
the United States. 8 U.S.C. § 1252(a)(1). But expedited
1
That evening, IM received an incomplete and unsigned removal or-
der. Though he requested a final order, he did not get one until he
was about to board the plane on his way out of the United States.
2
The district court held that IM did not have standing to bring his
Appointments Clause challenge because he was not in custody. Be-
cause we resolve the case on other jurisdictional grounds, we do not
address standing here. McCarthy v. Pelosi, 5 F.4th 34, 38 (D.C. Cir.
2021) (“we can take up jurisdictional issues in any order”).
5
removal orders are different. Id. § 1252(a)(2)(A). An alien
must challenge expedited removal orders through the proce-
dures provided in § 1252(e)(2). Id. And that section provides
a limited avenue for review: “Judicial review [of expedited re-
moval determinations] is available in habeas corpus proceed-
ings.” Id. § 1252(e)(2).
So here, we must interpret the phrase “habeas corpus pro-
ceedings” to decide when such proceedings are available. 3
A. Section 1252 Does Not Grant Jurisdiction
Start with the structure of § 1252. It lays out the circum-
stances in which aliens can seek judicial review of expedited
removal orders. But it does not grant jurisdiction.
Instead, § 1252 acknowledges that existing jurisdictional
statutes allow judicial review of most removal orders. 8 U.S.C.
§ 1252(a)(1). It then strips jurisdiction for review of expedited
removal orders, with one narrow exception: “Notwithstanding
any other provision of law . . . no court shall have jurisdiction
to review” expedited removal orders “except as provided in
subsection (e).” Id. § 1252(a)(2)(A); Patel v. Garland, 142 S.
Ct. 1614, 1621 (2022) (§ 1252(a)(2) “strips courts of jurisdic-
tion”).
Subsection (e)(2) is thus an “except[ion]” to § 1252’s ju-
risdiction-stripping provision. 8 U.S.C. § 1252(a)(2)(A). It
recognizes that “[j]udicial review . . . is available in habeas cor-
pus proceedings,” where those proceedings are made available
3
The Government argues that IM’s Appointments Clause challenge
is not the kind of claim authorized by § 1252(e)(2). We do not decide
that issue because we resolve the case on other jurisdictional
grounds.
6
by existing jurisdictional statutes. Id. § 1252(e)(2). It does not
give a court power to issue a writ of habeas corpus.
Textual clues confirm that reading. Congress’s use of the
present tense — “is available” — suggests that (e)(2) cross-
references other existing grants of habeas jurisdiction. And un-
like jurisdictional statutes, (e)(2) “does not speak to a court’s
authority.” EPA v. EME Homer City Generation, 572 U.S.
489, 512 (2014). That is a stark contrast to statutes that unam-
biguously confer habeas jurisdiction. See 28 U.S.C. § 2241(a)
(“Writs of habeas corpus may be granted by the Supreme
Court . . . the district courts and any circuit judge.”).
In other words, (e)(2) requires an alien to rely on another
jurisdiction-conferring statute to bring habeas proceedings.
Once he has done that, (e)(2) comes into play, letting him make
specific challenges to his expedited removal order.
§ 1252(e)(2)(A)-(C) (listing three kinds of challenges an alien
may make to a removal order once in habeas proceedings).
B. 28 U.S.C. § 2241 Requires Custody
Here, the only grant of habeas jurisdiction that we or the
parties could identify is 28 U.S.C. § 2241. It gives federal
courts the authority to issue “[w]rits of habeas corpus . . .
within their respective jurisdictions.” 28 U.S.C. § 2241(a). 4
4
Other statutes authorize federal courts to consider habeas petitions
from state prisoners, 28 U.S.C. § 2254, and those in “detention by
order of an Indian tribe,” 25 U.S.C. § 1303. But those statutes plainly
do not authorize IM to initiate habeas proceedings. Similarly, we
need not concern ourselves with state habeas proceedings because
state courts cannot use such proceedings “to interfere with the au-
thority of the United States.” Tarble’s Case, 80 U.S. (13 Wall.) 397,
404 (1872).
7
Section 2241 has long regulated federal courts’ habeas ju-
risdiction. Congress enacted an early version of § 2241 in the
Judiciary Act of 1789. 1 Stat. 73, 81-82 (1789). Since then,
“Congress [has] had continual concern for the Great Writ,”
passing a series of amendments to the Judiciary Act that refine
federal court’s authority to issue the writ. Carbo v. United
States, 364 U.S. 611, 615-17 (1961) (discussing that history).
Given Congress’s practice of “tightly regulat[ing]” habeas ju-
risdiction by statute, we must pay careful attention to the limits
in § 2241. DHS v. Thuraissigiam, 140 S. Ct. 1959, 1974 n.20
(2020).
One limit is custody. The text of § 2241 assumes that the
writ would extend to a “prisoner,” and a prisoner must of
course be in “custody.” 28 U.S.C. § 2241(c)(1)-(3). Interpret-
ing that text, the Supreme Court has held that a petitioner must
be “in custody . . . at the time his petition is filed” for a court to
have jurisdiction under § 2241. Maleng v. Cook, 490 U.S. 488,
490-91 (1989) (cleaned up); see also 28 U.S.C. § 2243 (“The
writ . . . shall be directed to the person having custody of the
person detained.”).
So if § 2241 is the only relevant statute authorizing a fed-
eral court to conduct “habeas corpus proceedings” over IM,
then IM must be in custody when his petition is filed to fall
within the court’s jurisdiction.
C. Custody Is Required By § 1252(e)(2)
Even if § 2241 is not the only relevant statute granting ju-
risdiction for “habeas corpus proceedings,” custody still re-
quired by 8 U.S.C. § 1252(e)(2). That subsection carves out
exceptions to the jurisdiction stripping of § 1252(a)(2)(A). To
qualify for those exceptions, a claim must be pursued in “ha-
beas corpus proceedings.” 8 U.S.C. § 1252(e)(2). If a
8
petitioner does not meet the exception’s requirements, then the
jurisdiction-stripping provision applies, and we do not have ju-
risdiction. See M.M.V. v. Garland, 1 F.4th 1100, 1109 (D.C.
Cir. 2021) (“Subsection (a) thus conditions jurisdiction on sat-
isfaction of the requirements of subsection (e)”); Privett v.
Sec’y, Dep’t of Homeland Sec., 865 F.3d 375, 381 (6th Cir.
2017) (court lacked jurisdiction because an exception did not
apply and thus “the general limitation on jurisdiction of §
1252(a)(2)(B)(ii) applies”).
For hundreds of years, the phrase “habeas corpus proceed-
ings” has referred to a mechanism for challenging the govern-
ment’s detention of a person in its custody. So when Congress
used that phrase in (e)(2), it referred to a specific and estab-
lished form of proceeding that requires custody.
1. “Habeas Corpus” Has an Established Meaning
Start with the text. “Habeas corpus” is Latin for “you have
the body.” Webster’s New International Dictionary 1121 (2d
ed. 1945). The writ’s title accurately captures its function. It
is an order directing a custodian to produce (habeas) a pris-
oner’s body (corpus). Cf. Clements v. Florida, 59 F.4th 1204,
1218 (11th Cir. 2023) (Newsom, J., concurring) (“‘habeas cor-
pus’” is “plainly a reference to the subject’s actual, physical
detention”).
The writ’s history confirms that custody is an essential el-
ement. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93-94 (1807)
(“the meaning of the term habeas corpus” in a statute is “un-
questionably” informed by “the common law”). Because other
courts and scholars have detailed that history, we discuss only
a few highlights. See, e.g., Thuraissigiam, 140 S. Ct. at 1971-
81; J. Baker, An Introduction to English Legal History 156-58
(5th ed. 2019).
9
Habeas has its origins in the Assize of Clarendon of 1166,
which planted the seeds of England’s common-law system.
Henry II allowed “Justices” to order local sheriffs to “bring”
men in their custody “before the Justices,” along with “two
lawful men” who could “bear record” as to why the prisoner
was “taken.” Assize of Clarendon § 4. “Over time,” the writ
of habeas corpus “came to be understood both as a right to be
free from arbitrary detention and as a procedural writ.”
Thuraissigiam, 140 S. Ct. at 1983-84 (Thomas, J., concur-
ring). 5
Habeas flourished as a prerogative writ in Stuart England.
It was a crucial procedure to “ensure due process” at a time
when “English monarchs jailed their subjects summarily and
indefinitely.” Brown v. Davenport, 142 S. Ct. 1510, 1520-21
(2022). By issuing the writ, a court would “command[]” the
“person detaining another” to “produce the body of the pris-
oner.” 3 William Blackstone, Commentaries on the Laws of
England 131 (1768). The court could then decide if the gov-
ernment had legal authority to detain the prisoner. Id. at 131-
32. To illustrate the operation of the writ, Blackstone described
the King’s Bench denying a habeas petition filed by a person
“confined by the court of admiralty for piracy,” because there
were “sufficient grounds” to justify his detention. Id. at 132.
5
“By the end of the 16th century, the English connected the
common-law writ of habeas corpus to liberty. Specifically, it was
associated with the guarantee in Magna Carta that ‘[n]o free person
(Nullus liber homo) shall be taken or imprisoned, or disseised or out-
lawed or exiled, or in any way destroyed . . . except by the lawful
judgment of his peers or by the law of the land.’” Id. (quoting Baker,
supra, at 157, n. 76, 506).
10
When Parliament codified some applications of the writ, it
also required custody. To remedy the abuses of the Star Cham-
ber, the Habeas Corpus Act of 1640 allowed anyone “commit-
ted” or “imprison[ed]” by executive order — a “command or
Warrant of the King[]” — to petition the court to determine the
“true cause” of his imprisonment. 16 Car. 1 c 10 § VI. Simi-
larly, when Parliament codified habeas writs challenging pre-
trial detention, it said habeas should be available to give
“speedy Releife” to “all persons imprisoned.” Habeas Corpus
Act of 1679, 31 Cha. 2 c 2 § I. The Act stipulated that habeas
writs should be “directed unto any Sheriffe or Sheriffes Goaler
Minister or other Person whatsoever for any person in his or
their Custody.” Id. And the remedy for a successful petition
was to “discharge” the prisoner from his imprisonment. Id. §§
II, VII.
Custody was also a central feature of habeas in the states.
“Virtually all American habeas corpus legislation had its gen-
esis in the English Habeas Corpus Act of 1679.” Dallin H.
Oaks, Habeas Corpus in the States — 1776-1865, 32 U. Chi.
L. Rev. 243, 251 (1965); see also 3 Joseph Story, Commen-
taries on the Constitution of the United States, §§ 1333, 1335
(Boston, 1833) (the “great and celebrated writ, used in all cases
of illegal confinement” was “incorporated into the jurispru-
dence of every state in the Union”). As shown above, that Act
required custody. Reflecting those English roots, state courts
held that the writ was unavailable “to persons who were not
actually in custody or imprisoned, or who were out on bail.”
State v. Buyck, 2 Bay 563, 564 (S.C. 1804); see also Respublica
v. Arnold, 3 Yeates 263, 266 (Pa. 1801) (opinion of Yeates, J.)
(noting that the writ was available to “a prisoner under
11
commitment” and that it would be “perfectly novel” to allow a
person on bail to invoke it). 6
The understanding that “habeas corpus proceedings” are
available only to those in custody continues to this day. When
§ 1252(e)(2) became law in 1996, the “primary function of the
writ” was to secure “release from unlawful imprisonment.”
Habeas Corpus, Black’s Law Dictionary 709 (6th ed. 1990).
And the Supreme Court recently confirmed that “[h]abeas has
traditionally been a means to secure release from unlawful de-
tention.” Thuraissigiam, 140 S. Ct. at 1963. That makes sense.
Because “the essence of habeas corpus is an attack by a person
in custody,” it cannot be used to challenge “something other
than the fact or length of his confinement.” Preiser v. Rodri-
guez, 411 U.S. 475, 484, 494 (1973). 7
6
See also Wales v. Whitney, 114 U.S. 564, 571-72 (1885) (“Some-
thing more than moral restraint is necessary to make a case for ha-
beas corpus. There must be actual confinement or the present means
of enforcing it.”); Story, supra, §§ 1333-36 (habeas is “the appropri-
ate remedy to ascertain, whether any person is rightfully in confine-
ment or not, and the cause of his confinement”); Rollin C. Hurd,
Treatise on the Right of Personal Liberty, and on the Writ of Habeas
Corpus and the Practice Connected With It 243 (1858) (“The pro-
duction of the body constitutes an essential element of this proceed-
ing.”).
7
There are, of course, “various writs of habeas corpus.” Ex parte
Bollman, 8 U.S. at 97; see also Black’s Law Dictionary 709-10 (6th
ed. 1990) (defining different types of habeas); 3 Blackstone, supra at
130-31 (same). The one clearly at issue here is “habeas corpus ad
subjiciendum,” meant to address “all manner of illegal confinement.”
Black’s Law Dictionary, supra at 709-10. But as a general matter,
the other types of habeas also require custody, as they involve pro-
ducing the body of a “prisoner” to testify, prosecute, deliberate, or
satisfy. See id.; cf. 28 U.S.C. § 2241(c)(5) (“The writ of habeas
12
From the first “habeas corpus proceedings” in 1166 to the
present day, custody has been an essential requirement. So
when Congress used that phrase in § 1252(e)(2), an ordinary
reader would have understood it to have its usual meaning — a
proceeding in which a person in custody challenges his deten-
tion. Sekhar v. United States, 570 U.S. 729, 733 (2013) (when
Congress uses a term with an established meaning, it “brings
the old soil with it”) (cleaned up). 8
If Congress had wanted to depart from hundreds of years
of legal history by allowing an alien who is not in custody to
use habeas proceedings, it would have said so.
2. IM’s Counterarguments Are Unpersuasive
Though IM makes a few counterarguments, they are not
strong enough to show that Congress meant “habeas corpus
proceedings” to bear a novel meaning in § 1252(e)(2).
First, IM suggests that if the phrase “habeas corpus pro-
ceedings” inherently includes a custody requirement, it would
render express custody requirements in other habeas statutes
superfluous. But there is no surplusage. The argument rests
on the false premise that other provisions include an express
corpus shall not extend to a prisoner unless . . . necessary to bring
him into court to testify or for trial.”).
8
Indeed, IM acknowledges that habeas proceedings have “unique”
and long-standing procedures and that those procedures apply to
§ 1252(e)(2). Reply Br. 20 (cleaned up). He thus concedes that the
phrase “habeas corpus proceedings” carries old soil with it. And that
concession gives the game away. IM has no convincing explanation
for why the phrase “habeas corpus proceedings” would carry over
some long-standing limits on habeas but not the custody requirement.
13
custody limitation. It would be more accurate to say those pro-
visions implicitly assume custody is required, just as (e)(2)
does. For example, consistent with the traditional understand-
ing of the writ, § 2241 assumes the petitioner is necessarily a
“prisoner,” and uses the words “in custody” to describe the var-
ious legal authorities for detention that can be challenged. See,
e.g., 28 U.S.C. § 2241(c)(1) (“in custody under or by color of
the authority of the United States”) (emphasis added); id.§ 2241(c)(3) (“in custody in violation of the Constitution or
laws or treaties of the United States”) (emphasis added).
IM’s argument also misunderstands (e)(2)’s role in the
statutory scheme. As we have explained, (e)(2) does not create
“habeas corpus proceedings.” Instead, it relies on other statutes
to do that job. See 28 U.S.C. § 2241. Given that context, it
makes sense that Congress would use a shorthand to describe
habeas proceedings in (e)(2), but spell out the requirements for
such proceedings in jurisdiction-conferring statutes like
§ 2241. 9
Second, IM argues that the predecessor statute to (e)(2) in-
cluded the word “custody,” which Congress removed when it
enacted (e)(2). Cf. 8 U.S.C. § 1105a(a)(10) (1994) (“any alien
held in custody pursuant to an order of deportation may obtain
judicial review thereof by habeas corpus proceedings”). So, he
says, any custody requirement was intentionally repealed by
Congress. That argument, however, is implausible. Congress
repealed that law and replaced it with “a new (and significantly
9
Those requirements presume custody. See 28 U.S.C. § 2254(a) (“a
person in custody pursuant to the judgment of a State court”); Bailey
v. Hill, 599 F.3d 976, 978 (9th Cir. 2010); 25 U.S.C. § 1303 (“to test
the legality of his detention by order of an Indian tribe”); Tavares v.
Whitehouse, 851 F.3d 863, 871 (9th Cir. 2017) (“detention” is an
even narrower custody requirement for Section 1303).
14
more restrictive) one.” Nken v. Holder, 556 U.S. 418, 424-25
(2009). And the old § 1105a dealt with reviews of deportation
orders generally. See Quezada v. I.N.S., 898 F.2d 474, 476 (5th
Cir. 1990). The expedited removal sections at issue here are
new, so nothing was “removed.” And, as just explained, the
very phrase “habeas corpus” in (e)(2), considered together with
the history of the writ, implies custody over the body of a pris-
oner. So Congress did not need to use the magic word “cus-
tody.” Rather, we would need a far clearer textual clue to con-
clude that Congress wanted to depart radically from the writ as
it had been understood for centuries.
Third, IM notes that it would make little sense for (e)(2) to
have a custody requirement because release is not an available
remedy. Instead, a successful petitioner gets a removal hear-
ing. See 8 U.S.C. § 1252(e)(4); id. § 1229a. True enough. But
a removal hearing can result in release. If an alien shows that
he is not removable, the government can no longer detain him.
So a habeas proceeding under (e)(2) is the first step toward re-
lease. That process is not an outlier. Release is not “the exclu-
sive result of every writ” because “it is often appropriate to al-
low the executive to cure defects in a detention.” Thuraissi-
giam, 140 S. Ct. at 1981 (cleaned up).
Finally, IM contends that a custody requirement would all
but prevent judicial review of expedited removal orders. True,
expedited removal is a quick process and aliens are not in cus-
tody for long. See 8 U.S.C. § 1231(c)(1) (immediate removal
where possible). But custody often lasts for a few weeks — IM
was in custody for nearly a month. That is plenty of time to
file a petition. And if an alien is deported before his petition is
resolved, collateral consequences can prevent it from becom-
ing moot. Spencer v. Kemna, 523 U.S. 1, 7-8 (1998). So
though the opportunity for review is limited, it is not illusory.
15
III. IM Was Not In Custody
IM filed his habeas petition after he was removed from the
United States. So he was not in custody. See, e.g., Ku-
marasamy v. Attorney General, 453 F.3d 169, 173 (3d Cir.
2006) (aliens returned to their home country are not in cus-
tody); Samirah v. O’Connell, 335 F.3d 545, 549-51 (7th Cir.
2003) (same).
Rather than contest that point, IM contends that a removed
alien may file a habeas petition if “extreme circumstances” pre-
vented him from filing while he was in custody. We disagree.
Lower federal courts are created by Congress, and they have
only the jurisdiction Congress grants — no more, no less. U.S.
Const. Art. III, § 1.
Of course, the Supreme Court has acknowledged that a ha-
beas petitioner need not be in “physical custody” to seek the
writ. Jones v. Cunningham, 371 U.S. 236, 239 (1963). Other
restraints on his liberty will suffice for constructive custody.
Id. at 239-40. But the Supreme Court has carefully limited the
constructive-custody doctrine. Maleng, 490 U.S. at 492. It has
expressly rejected an approach to habeas jurisdiction in which
a court could “depart[ ] from the jurisdictional rules” by find-
ing that “the circumstances of a given case are ‘exceptional,’
‘special,’ or ‘unusual.’” Rumsfeld v. Padilla, 542 U.S. 426,
450 (2004). As Chief Justice Marshall put it, “the power to
award the writ by any of the courts of the United States, must
16
be given by written law” — it may not be judicially created.
Ex parte Bollman, 8 U.S. at 94. 10
Because an extreme-circumstances exception has no stat-
utory basis, we may not adopt it. Creating exceptions to juris-
dictional rules is a job for Congress, not the courts. 11
* * *
An alien may seek judicial review of an expedited removal
order in “habeas corpus proceedings.” 8 U.S.C. § 1252(e)(2).
10
IM has brought to our attention only one circuit that has granted
relief to a removed alien under an extreme-circumstances exception
in a published opinion. See Singh v. Waters, 87 F.3d 346, 349-50
(9th Cir. 1996); Gutierrez v. Gonzales, 125 F. App’x 406, 414-16 (3d
Cir. 2005) (applying the exception “where strong policy concerns
weigh in favor of doing so”); cf. Merlan v. Holder, 667 F.3d 538, 539
(5th Cir. 2011) (recognizing the exception but holding that it did not
apply to the facts at issue). But when that circuit said that “denial of
entry amounts to a restraint on liberty,” Subias v. Meese, 835 F.2d
1288, 1289 (9th Cir. 1987), it did so “with little analysis,” Samirah,
335 F.3d at 550. In contrast, other federal courts have correctly re-
fused to extend the constructive-custody doctrine to allow removed
aliens to file habeas petitions. See, e.g., id. at 549-50 (“Although the
word ‘custody’ is elastic, all definitions of it incorporate some con-
cept of ongoing control, restraint, or responsibility by the custo-
dian. . . . Samirah is, in some sense, restrained insofar as he cannot
enter the United States. But that restraint, such as it is, only puts him
on par with the billions of other non-U.S. citizens around the globe
who may not come to the United States without the proper documen-
tation.”).
11
IM suggests that failing to adopt the exception could produce harsh
results. He contends that where, as here, an immigrant does not get
a final removal order until he is out of government custody, he cannot
seek judicial review in “habeas corpus proceedings.” But in contrast
17
And habeas corpus proceedings are available only to those in
custody.
IM was not in custody. So the district court lacked juris-
diction to consider his habeas petition. We thus affirm.
So ordered.
to other immigration-review provisions, § 1252(e)(2) does not re-
quire an alien to wait until he has a final order of removal. Compare
8 U.S.C. § 1252(e)(2)(B) (allowing a court to review “whether the
petitioner was ordered removed”), with § 1252(a)(1) (courts may re-
view “final order[s] of removal”). And even if an alien is required
to wait for a final order, he may be able to preemptively file a petition
for habeas corpus and ask the court to stay proceedings until he has
a final order. Plus, where the government flouts a habeas court’s
orders, remedies like mandamus and contempt are available.