Samirah, Sabri I. v. O'Connell, Cynthia J

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1786
SABRI I. SAMIRAH,
Plaintiff-Appellee,
v.
CYNTHIA J. O’CONNELL, INTERIM
DISTRICT DIRECTOR FOR INTERIOR
ENFORCEMENT, BUREAU OF IMMIGRATION
AND CUSTOMS ENFORCEMENT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1298—James B. Moran, Judge.
____________
ARGUED JUNE 5, 2003—DECIDED JULY 2, 2003
____________
Before FLAUM, Chief Judge, and COFFEY and MANION,
Circuit Judges.
MANION, Circuit Judge. After the government revoked
the advance parole of Sabri Samirah, an alien, the district
court ordered advance parole to be reinstated. Because
that order exceeded the district court’s jurisdiction, we
reverse.
I.
Sabri Samirah is a Jordanian citizen who first entered the
United States in September 1987 on a student visa. Accord-
2 No. 03-1786
ing to the government, however, Samirah did not com-
ply with the terms of his visa. At some point he dropped
out of school and out of lawful immigration status for
more than two years. Years of legal battles between
Samirah and the government ensued. We examine that
long legal history only insofar as it is relevant to the nar-
row issue before us.
In 2002, Samirah, who was still classified as an alien, filed
a request for advance parole, stating that he intended to
travel abroad for approximately two weeks in May 2003.
(Advance parole, as we shall explain in detail later, is
basically permission for a resident alien to reenter the
United States after departing for some stated purpose.) The
1
Immigration and Naturalization Service (INS) approved
this application, pursuant to 8 U.S.C. § 1182(d)(5), in
December 2002. Samirah then departed the United States
on December 28, 2002, which was about four months
earlier than he had represented to the INS. On January 17,
2003, while Samirah was abroad, the District Director of
the Chicago INS Office, acting on behalf of the Attorney
General, revoked his advance parole because the INS had
received information that he was a “security risk to the
United States.” On January 18, 2003, the INS served this
revocation on Samirah at its pre-inspection station in
Shannon International Airport, Ireland. It also concluded
that, because Samirah had more than one year of un-
lawful presence in the United States and lacked a valid
1
On March 1, 2003, the INS ceased to exist as an independent
agency within the United States Department of Justice, and its
functions were transferred to the newly-formed Department of
Homeland Security. See 79 Interpreter Releases 1777, 1777 (2002). The
transition is irrelevant for our purposes and, for ease of use, we
shall refer to the INS throughout this opinion.
No. 03-1786 3
travel document, he was inadmissible under 8 U.S.C.
§ 1182(a)(7)(A)(i). With no advance parole and no docu-
ments (e.g., a visa) that would allow his entry into the
United States, Samirah returned to Jordan. Although it is
not clear from the record where Samirah resides at the
moment, one thing is certain: he is not in the United States.
This is particularly disturbing to Samirah because his
children are all citizens of the United States who reside
in this country, and his wife is a non-citizen who also
resides here.
On February 20, 2003, Samirah’s attorney filed an ac-
tion in the district court seeking, among other things,
injunctive relief requiring the government to allow his
return to the United States. He asserted jurisdiction under
Article I, § 9 of the Constitution and various federal stat-
utes, including 28 U.S.C. § 2241, which provides to federal
courts the general power to grant the writ of habeas
corpus. The district court issued an injunction requiring
the government to allow Samirah’s return, reasoning
that “the only thing we conclude is that the govern-
ment cannot short-circuit the rights of an alien who has
long lived in the United States by revoking his parole
and then treating him as if he had never been here at all.”
The government appeals, asserting, among other arguments,
that the district court lacked jurisdiction.
II.
To understand this case, we first need to examine the
function that parole plays in our system of immigration
2
law. The Attorney General has the discretion to “parole”
2
During the period when Samirah’s advance parole was revoked,
the Attorney General had delegated his parole authority to his
(continued...)
4 No. 03-1786
aliens into the United States. 8 U.S.C. § 1182(d)(5)(A) (2000).
Parole allows an alien temporarily to remain in the United
States pending a decision on his application for admission.
Id. § 1182(d)(5). Although a paroled alien has “liberty to
roam the country,” the law considers him legally detained
at the border within the government’s custody until his
immigration status is determined. Chavez-Rivas v. Olsen,
207 F. Supp. 2d 326, 328 (D.N.J. 2002). In some cases (this
is one of them), the Attorney General grants advance
parole to an alien who is already in the United States but
who also wants the assurance that he will be allowed to
leave and return. Assa’ad v. United States Atty. Gen., ___ F.3d
___, 2003 WL 21282457, at *3 (11th Cir. June 5, 2003);
5 Charles Gordon, et al., Immigration Law and Procedure
§ 62.02[2], at 62-13 (Rev. ed. 2003). The Attorney General
also has the discretion to revoke advance parole after
it has been granted. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R.
§ 212.5(e)(2)(i). After determining that Samirah was a
security risk, the Attorney General exercised that discre-
tion and revoked his advance parole.
The district court, however, reversed the decision to
revoke parole and candidly determined that a parole
2
(...continued)
INS district directors. See 8 C.F.R § 212.5 (2002). In this case, as
discussed above, the actual decision to revoke parole was made
by the District Director of the Chicago INS Office, Brian R. Perryman.
We nonetheless refer to the “Attorney General” as exercising this
discretionary authority because, as far as the law is concerned,
district directors act as the Attorney General’s surrogate when
exercising the discretionary authority that he has delegated to them.
See Parra v. Perryman, 172 F.3d 954, 957-58 (7th Cir. 1999) (discuss-
ing the “Attorney General’s” discretionary decision to detain an
alien pending removal, even though District Director Perryman
was the named respondent).
No. 03-1786 5
revocation could not have the legal effect of destroying
whatever rights Samirah had to contest removal. The dis-
trict court thought it a “judicial responsibility” to require
the executive branch to adhere to its obligations. It thus
concluded that “the government cannot short-circuit the
rights of an alien who has long lived in the United States
by revoking his parole and then treating him as if he had
never been here at all,” (emphasis added) and it then
ordered the government to allow Samirah’s return.
We must determine whether federal courts have subj-
ect matter jurisdiction to review discretionary decisions
of the Attorney General, such as the decision to revoke
parole. We review de novo the existence of subject matter
jurisdiction. Iddir v. INS, 301 F.3d 492, 496 (7th Cir.
2002). First, we examine Congress’s jurisdictional grant in
the non-habeas context. The government cites 8 U.S.C.
§ 1252(a)(2)(B)(ii) for the proposition that Congress has
divested federal courts of such jurisdiction. Section
1252(a)(2)(B)(ii) provides as follows:
(B) Denials of discretionary relief
Notwithstanding any other provision of law, no court
shall have jurisdiction to review— . . .
(ii) any other decision or action of the Attorney General
the authority for which is specified under this sub-
chapter to be in the discretion of the Attorney General,
other than the granting of relief under section 1158(a)
of this title.
The authority for the Attorney General to grant and
3
revoke parole stems from § 1182(d)(5), a provision that
3
8 U.S.C. § 1226 also allows the Attorney General to grant or revoke
parole in cases in which an alien has been detained, but that
(continued...)
6 No. 03-1786
is “specified under” the “subchapter” mentioned in
§ 1252(a)(2)(B)(ii) . (Subchapter II of Chapter 12 of Title 8,
includes §§ 1151-1378.) The exercise of that authority is,
as we mentioned earlier, a matter of the Attorney Gen-
eral’s discretion. Hence, argues the government, the plain
language of § 1252(a)(2)(B)(ii) precludes jurisdiction.
Samirah, apparently relying on the fact that § 1252 is
titled “Judicial review of orders of removal,” argues that
the provision is inapplicable because “there is neither a
removal order nor [are there] removal proceedings in
this case.” Some district courts have taken this position,
holding that § 1252(a)(2)(B)(ii) is limited to discretionary
decisions made within the context of removal proceedings.
See, e.g., Talwar v. INS, 94 F. Supp. 2d 1120, 1124 (D. Or.
2000); Shanti v. Reno, 36 F. Supp. 2d 1151, 1159 (D. Minn.
1999).
We, however, disagree. “[T]he heading of a section
cannot limit the plain meaning of the text.” Brotherhood
of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519,
528-29 (1947). The plain meaning of § 1252(a)(2)(B)(ii)’s
text is that “no court shall have jurisdiction to review” any
decision of the Attorney General to deny discretionary
relief “specified under this subchapter.” We therefore
join two of our sister circuits and a number of district
courts in holding that § “1252(a)(2)(B)(ii) is not limited
to discretionary decisions made within the context of
removal proceedings.” CDI Information Servs. Inc. v. Reno,
278 F.3d 616, 620 (6th Cir. 2002); accord Van Dinh v. Reno, 197
F.3d 427, 434 (10th Cir. 1999); El-Khader v. Perryman, No. 02
C 984, 2003 WL 1790862, at *3 (N.D. Ill. Apr. 2, 2003);
3
(...continued)
is irrelevant to this case because the INS expressly relied on
§ 1182(d)(5) and because it did not detain Samirah.
No. 03-1786 7
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 11 (D. D.C. 2001);
Avramenkov v. INS, 99 F. Supp. 2d 210, 214 (D. Conn.
2000). Because the Attorney General’s decision to grant
or revoke parole is squarely within the ambit of
§ 1252(a)(2)(B)(ii), we hold that the district court lacked
jurisdiction to review, much less reverse, the revocation
of Samirah’s parole—at least outside the context of a
habeas proceeding.
Samirah alleges habeas jurisdiction under 28 U.S.C.
§ 2241, and contends that § 1252(a)(2)(B)(ii) does not
preclude a court from granting the writ. There is author-
ity for the proposition that, pursuant to INS v. St. Cyr,
533 U.S. 289 (2001), § 1252(a)(2)(B)(ii) should not be con-
strued as stripping federal courts of habeas jurisdiction
over challenges to the INS’s parole determinations. See
Sierra v. INS, 258 F.3d 1213, 1217 (10th Cir. 2001); Jeanty
v. Bulger, 204 F. Supp. 2d 1366, 1374 (S.D. Fla. 2002). But
see Curri v. Reno, 86 F. Supp. 2d 413, 421 (D. N.J. 2000)
(holding, without the benefit of the Supreme Court’s
opinion in St. Cyr, that § 1252(a)(2)(B)(ii) repeals habeas
jurisdiction). Nevertheless, § 1252(a)(2)(B)(ii)’s effect on
habeas jurisdiction is an issue that we need not ad-
dress today. The district court lacked jurisdiction under
§ 2241 for at least two reasons, neither of which involves
§ 1252(a)(2)(B)(ii). The first reason is that Samirah was
not in custody when he filed this case. The second is
that, even if he could somehow be considered to have
been in custody, the district court would still have lacked
jurisdiction over his custodian.
Federal courts have jurisdiction to issue writs of habeas
corpus under § 2241 only where the petitioner is “in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c); Williams v. Chrans, 894
F.2d 928, 937 (7th Cir. 1990). Although the word “custody”
8 No. 03-1786
is elastic, all definitions of it incorporate some concept
of ongoing control, restraint, or responsibility by the
custodian. See Black’s Law Dictionary 384 (6th ed. 1990). In
the context of Miranda warnings, for example, a suspect is
in custody only if a reasonable person in his position
would not believe that he was free to leave. United States
v. Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998). Samirah’s
problem is not that he lacks freedom to leave; Samirah’s
problem is that, by dint of the government’s revocation
of his parole and his lack of the proper documents, he is
not free to return. But the United States is exercising
no ongoing control, restraint or responsibility over him.
As far as the government is concerned, Samirah may
wander the earth, so long as his wanderings do not lead
him to the United States. Samirah is, in some sense, re-
strained 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
4
the proper documentation. Nevertheless, Samirah does
point to one authority that could be read as construing
§ 2241 jurisdiction to encompass such people.
Samirah quotes Jones v. Cunningham, 371 U.S. 236 (1962),
to the effect that the Supreme Court “has repeatedly held
that habeas corpus is available to an alien seeking entry into
4
We recognize that Samirah, like many aliens seeking entry to
this country, has family in the United States. Although we are
sympathetic as to why that raises the stakes for him, we know of
no authority for the idea that having family in the United States
changes the analysis of custody. We also note, moreover, that
he finds himself in that position because he lived here for many
years, often with dubious authority. During that time he made
what was, at best, a series of half-hearted attempts to improve
his immigration status.
No. 03-1786 9
the United States, although in those cases each alien was
free to go anywhere else in the world.” Id. at 239. Taking
that statement out of context, it would be reasonable to
infer that all aliens seeking entry into the United States,
regardless of their otherwise unfettered mobility outside
of this country, are in United States custody. The Ninth
Circuit, albeit with little analysis, has interpreted Jones
as standing for the proposition that, by itself, “denial of
entry amounts to a restraint on liberty” sufficient to con-
stitute custody for purposes of § 2241. See Subias v. Meese,
5
835 F.2d 1288, 1289 (9th Cir. 1987).
We disagree with the Ninth Circuit’s construction of Jones
because, when interpreted as a whole, Jones does not
6
support such a broad conclusion. The Jones Court quali-
fied the sweeping statement that Samirah quotes by not-
ing that “custody” requires at least some restraint that is
“not shared by the public generally” and that such re-
straints had “been thought sufficient in the English-speak-
ing world to support the issuance of habeas corpus.” Jones,
371 U.S. at 240. Thus, a proper reading of Jones leads to the
conclusion that an alien abroad who seeks entry into the
5
Subias involved a fugitive from United States prosecution who
claimed to be “in custody” in his native Mexico and, because he
was denied entry to the United States, also claimed that he was
entitled to habeas relief. Based on Jones, the Ninth Circuit acknowl-
edged that custody is broadly construed to include restriction
from entry into the United States, but denied habeas relief on the
ground that there was no jurisdiction over any custodian.
6
Because this opinion creates a split between circuits, we cir-
culated it in advance of publication to the judges of the court in
regular active service, pursuant to Seventh Circuit Rule 40(e). None
voted to hear the case en banc.
10 No. 03-1786
7
United States must, at the very least, suffer some unique
restraint that would, in light of historical precedent, consti-
tute custody for the purposes of habeas jurisdiction. See id.
Samirah does not clear that hurdle. Neither of the two
cases he cites is precedent for a court to exercise habeas
jurisdiction over an undocumented alien merely because
that alien was refused entry into the United States. In
Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir. 1982), we
held that an alien released on bond pending deportation
proceedings was in custody, and in Flores v. INS, 524 F.2d
627, 629 (9th Cir. 1975), the Ninth Circuit held that an
alien released on his own recognizance during a depar-
ture period was likewise in custody. There is, of course,
substantial authority for the idea that a person released
on bond, or on his own recognizance, is “in custody”
for purposes of habeas jurisdiction. 26 A.L.R. 4th 455,
§ 3(a) (1983). But Samirah is not released on bond, or his
own recognizance, and so his case is easily distinguished
from both Arias and Flores.
We further note that Jones himself was a United States
citizen, and that not one of the four cases the Jones Court
7
Although we need not address the issue today, we note that it
is not clear that federal courts may exercise extraterritorial juris-
diction over an alien bringing a habeas petition. Compare Johnson
v. Eisentrager, 339 U.S. 763, 771 (1950) (observing that “in extending
constitutional protections beyond the citizenry the Court has been
at pains to point out that it was the alien’s presence within its
territorial jurisdiction that gave the Judiciary the power to act”), and
Gherebi v. Bush, ___ F. Supp. 2d ___, 2003 WL 21180433 (C.D. Cal.
2003) (holding that a district court lacks habeas jurisdiction over
aliens detained outside U.S. territory), with Ahmed v. Department of
Homeland Sec., 328 F.3d 383, 385-87 (7th Cir. 2003) (holding that
the district court had jurisdiction over the petition for the writ
of mandamus of an alien abroad).
No. 03-1786 11
cited for the proposition that it had “repeatedly held
that habeas corpus is available to an alien seeking entry
into the United States, although in those cases each alien
was free to go anywhere else in the world” proves analo-
gous to Samirah’s situation or supports the proposition
that there may be habeas jurisdiction over an alien
abroad merely because he was refused entry. See Jones, 371
U.S. at 239 (citing Brownnell v. Shung, 352 U.S. 180, 183
(1956); Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621,
626 (1888)). In Brownell, the alien brought a declaratory
action under the Administrative Procedure Act in order
to challenge an order of deportation; he did not bring a
habeas action. Brownell, 352 U.S. at 182-86. In Mezei, the
alien was detained by the government, and effectively
imprisoned on Ellis Island, because the United States
had permanently excluded him on security grounds and
no other country was willing to accept him. Mezei, 345
U.S. at 207. In Knauff, a case in which the Court did not
discuss jurisdiction, the alien was likewise “detained at
Ellis Island.” Id. at 539. In Jung Ah Lung, the alien was
detained by the master of a steamship under color of
federal law (the Chinese Restriction Act), and was there-
fore considered to be in federal custody for purposes
of habeas jurisdiction. Jung Ah Lung, 124 U.S. at 626. None
of these cases even remotely supports the idea that an
alien abroad who is denied entry is, for that reason alone,
in United States custody.
Samirah is a Jordanian citizen (apparently) living in
Jordan. He is also a person over whom the United States
exercises no control or responsibility, and who (as far as
the government is concerned) is free to travel the
world. Nevertheless, Samirah contends that he is in fed-
eral custody. We disagree with Samirah’s argument be-
12 No. 03-1786
cause (1) it stretches the word “custody” beyond what the
English language or logic will bear, and (2) legal author-
ities do not support it. We therefore hold that the dis-
trict court lacked jurisdiction over Samirah’s § 2241 petition.
There is an also an alternate ground for our holding
that the district court lacked § 2241 jurisdiction. If Samirah
is to proceed under § 2241, he must name his custodian
as respondent and file the petition in a district court that
has jurisdiction over his custodian; otherwise, the dis-
trict court would lack jurisdiction. Montenegro v. United
States, 248 F.3d 585, 594 (7th Cir. 2001), overruled on other
grounds by Ashley v. United States, 266 F.3d 671, 674-75 (7th
Cir. 2001). The custodian, in most cases, “is the person
having a day-to-day control” over the petitioner, because
he “is the only one who can produce ‘the body’ of the
petitioner.” Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir.
1986) (holding that the Parole Commission was not the
custodian despite its power to release the petitioner).
Samirah has named Cynthia J. O’Connell, Interim Di-
rector for Interior Enforcement at the Bureau of Immigra-
tion and Customs Enforcement, as the respondent. Yet it
is clear that neither she, nor any other governmental offi-
cial, has “day-to-day” control over, or can produce,
Samirah. Samirah is free, we emphasize once again, to
travel the world at his leisure. Because O’Connell lacked
control over Samirah at the time his § 2241 action was
filed, she was not his custodian.
We note that there may be limited circumstances in
which the United States holds a prisoner abroad (and
there is thus no domestic forum where the custodian is
present) in which a petitioner may be allowed to file a
habeas action in a district where someone with control
over his body is located. For example, in Ex Parte Hayes,
414 U.S. 1327 (1973), a soldier on active duty in Germany
No. 03-1786 13
filed a petition for a writ of habeas corpus directly with
Justice Douglas. Id. at 1328-29. Justice Douglas reasoned
that, although the serviceman’s immediate command-
ing officer was outside the territorial limits of any district
court, others in his chain of command were not. Id. The
Secretary of the Army, for example, was located within
the jurisdiction of the District Court for the District of
Columbia. Justice Douglas therefore transferred the case
to that court. Id. In the unusual circumstances of that case,
an extraterritorially-detained petitioner had access to the
writ in the District of Columba.
Even in Hayes, however, the “custodian” located in the
District of Columbia could physically produce the body to
the district court. That is not so in this case. Here, neither
the named respondent, nor anyone else in the federal
government (much less someone physically present in the
Northern District of Illinois), could produce the body. We
hold that no custodian was within the district court’s
territorial limits when this case was filed, and that court
therefore lacked habeas jurisdiction. See Subias, 835 F.2d
at 1289 (holding that jurisdiction did not exist because
the petitioner’s location abroad and custodian were un-
known and, therefore, no governmental official could
produce the body).
III.
The district court lacked jurisdiction over Samirah’s
§ 2241 petition because he was not in custody and because
it lacked jurisdiction over his putative custodian. Sec-
tion 1252(a)(2)(B)(ii) bars jurisdiction over of the rest of
Samirah’s action. The latter holding once again drives
home the point that federal courts are courts of finite
jurisdiction, jurisdiction that Congress delineates. See
14 No. 03-1786
Aldinger v. Howard, 427 U.S. 1, 15 (1976). Section 1252(a)(2)
(B)(ii) makes clear that one of the subjects beyond any
statutory grant of jurisdiction, at least outside the context
of a habeas proceeding, is review of the Attorney Gen-
eral’s discretionary decision to revoke parole. Because the
district court lacked the jurisdiction to reinstate Samirah’s
advance parole, we reverse.
REVERSED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-2-03