Irma Veltmann-Barragan v. Eric Holder, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRMA YOLANDA VELTMANN - No. 11-56370
BARRAGAN , Irma Yolanda Beltran,
Petitioner-Appellant, D.C. No.
3:10-cv-00991-
v. W-WVG
ERIC H. HOLDER, JR., Attorney OPINION
General; JANET A. NAPOLITANO ,
Secretary of Department of
Homeland Security; PAUL PIERRE ,
District Director, U.S. Citizenship
and Immigration Services; PAUL
MORRIS, Field Operations Director,
U.S. Customs and Border Protection,
San Diego, California,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted
May 7, 2013—Pasadena, California
Filed June 19, 2013
2 VELTMANN -BARRAGAN V . HOLDER
Before: Richard A. Paez and Sandra S. Ikuta,
Circuit Judges, and David A. Ezra, District Judge.*
Opinion by Judge Ikuta
SUMMARY**
Immigration
The panel vacated and dismissed the district court’s order
denying on the merits Irma Veltmann-Barragan’s 28 U.S.C.
§ 2241 habeas petition challenging her 1999 expedited
removal order.
The panel concluded that the district court lacked
jurisdiction to hear Veltmann’s case, because she ceased to be
in custody once her removal was accomplished. The panel
also held that aliens who are removable but not yet subject to
a removal order are not “in custody” for purposes of 28
U.S.C. § 2241.
*
The H onorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VELTMANN -BARRAGAN V . HOLDER 3
COUNSEL
Nicole A. Leon (argued) and Jan Joseph Bejar, San Diego,
California, for Petitioner-Appellant.
Samuel W. Bettwy (argued), Assistant United States
Attorney, Laura E. Duffy, United States Attorney, Tom Stahl,
Assistant United States Attorney, San Diego, California, for
Respondents-Appellees.
OPINION
IKUTA, Circuit Judge:
This case presents the question whether aliens who are
removable, but not yet subject to a removal order, are “in
custody” for purposes of 28 U.S.C. § 2241. We hold that
they are not.
I
Irma Yolanda Veltmann-Barragan became a lawful
permanent resident of the United States on December 15,
1982. In February 1999, border patrol officials stopped her
when she was trying to transport aliens across the border at
the San Ysidro port of entry. During secondary inspection,
she told authorities that her name was Jovita Beltran-Lopez,
and stated under oath that she had never possessed any
documents entitling her to enter the United States. The
government credited Veltmann’s statements, and removed her
to Mexico pursuant to the expedited removal process. See
8 U.S.C. § 1225(b)(1). Had Veltmann disclosed her true
identity, she could not have been removed under this
4 VELTMANN -BARRAGAN V . HOLDER
expedited process. See 8 U.S.C. § 1225(b)(1)(C); 8 C.F.R.
§ 1235.3(b)(5)(ii) (“If the claim to lawful permanent resident
status is verified, and such status has not been terminated in
exclusion, deportation, or removal proceedings, the
examining immigration officer shall not order the alien
removed pursuant to” § 1225(b)(1)).
Veltmann alleges that she reentered the United States
shortly after being removed, this time using her green card
and true name. In 2005, Veltmann applied for naturalization.1
At her naturalization interview Veltmann stated under oath
that she had never been removed from the United States.
Nevertheless, the government discovered Veltmann’s 1999
removal under the assumed name Jovita Beltran-Lopez. On
this basis, the government denied her application for
naturalization and terminated her lawful permanent resident
status. Veltmann did not appeal the denial of her
naturalization application or seek judicial review.
Two years later, Veltmann filed a habeas petition
pursuant to 28 U.S.C. § 2241 in district court, collaterally
attacking the 1999 removal order. The district court held that
it had jurisdiction over the habeas petition and denied it on
the merits. We have jurisdiction over the district court’s final
order under 28 U.S.C. § 1291.
1
Veltmann previously applied for naturalization in February 1997, but
withdrew her application following a July 1997 arrest, and subsequent
conviction, for possession of a stolen vehicle and transportation of
marijuana.
VELTMANN -BARRAGAN V . HOLDER 5
II
We conclude that the district court lacked jurisdiction to
hear this case. The statute that authorizes federal courts to
grant a writ of habeas corpus, 28 U.S.C. § 2241, in relevant
part, gives courts jurisdiction only over habeas petitioners
who are “in custody.” Id. at (c)(1)–(4);2 Maleng v. Cook,
490 U.S. 488, 490 (1989). The Supreme Court has defined
the phrase “in custody” to include both physical detention and
“other restraints on a man’s liberty, restraints not shared by
2
28 U.S.C. § 2241(c) states:
The writ of habeas corpus shall not extend to a prisoner
unless—
(1) He is in custody under or by color of the authority
of the United States or is committed for trial before
some court thereof; or
(2) He is in custody for an act done or omitted in
pursuance of an Act of Congress, or an order, process,
judgment or decree of a court or judge of the United
States; or
(3) He is in custody in violation of the Constitution or
laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled
therein is in custody for an act done or omitted under
any alleged right, title, authority, privilege, protection,
or exemption claimed under the commission, order or
sanction of any foreign state, or under color thereof, the
validity and effect of which depend upon the law of
nations; or
(5) It is necessary to bring him into court to testify or
for trial.
6 VELTMANN -BARRAGAN V . HOLDER
the public generally.” Jones v. Cunningham, 371 U.S. 236,
240 (1963). For example, individuals are “in custody” for
purposes of § 2241 if they are “subject to a final order of
deportation.” Nakaranurack v. United States, 68 F.3d 290,
293 (9th Cir. 1995).
While Veltmann was at one point subject to the 1999
removal order, she ceased to be “in custody” once her
removal to Mexico was accomplished. See Miranda v. Reno,
238 F.3d 1156, 1158 (9th Cir. 2001) (“Miranda cannot avail
himself of habeas corpus jurisdiction because he has already
been removed and therefore is no longer ‘in custody.’”); see
also Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th
Cir. 2007) (en banc) (“When an alien subject to removal
leaves the country, the removal order is deemed to be
executed.”). She argues, however, that upon her return to the
United States she was once again in custody, because the
government could have reinstated the removal order at any
time. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8.
We disagree. Our case law makes clear that
“[r]einstatement of a prior order of removal is not automatic.”
Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir. 2009). Under
the applicable regulations, the government must take various
affirmative steps before it can reinstate a removal order. See
8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. Among other things,
the government must: “(1) obtain the prior order related to the
alien, (2) confirm that the alien under consideration is the
same alien who was previously removed or voluntarily
departed, and (3) confirm that the alien unlawfully reentered
the United States.” Lin v. Gonzales, 473 F.3d 979, 983 (9th
Cir. 2007) (citing 8 C.F.R. § 241.8). After these requirements
are met, the officer must “provide the alien with written
notice of his or her determination,” and “advise the alien that
VELTMANN -BARRAGAN V . HOLDER 7
he or she may make a written or oral statement contesting the
determination.” 8 C.F.R. § 241.8(b).
Here, the government never reinstated the 1999 expedited
removal order, and so Veltmann has not been subject to that
order since her 1999 removal. Nor is she subject to any other
removal order. Although Veltmann is potentially removable,
the government has not yet initiated removal proceedings.
Therefore, Veltmann is not in custody for purposes of § 2241.
Cf. Maleng, 490 U.S. at 492 (“While we have very liberally
construed the ‘in custody’ requirement for purposes of federal
habeas, we have never extended it to the situation where a
habeas petitioner suffers no present restraint from a
conviction.”).3
III
Because Veltmann is not in custody for purposes of
§ 2241, the district court lacked jurisdiction to consider her
habeas petition. We therefore vacate its order denying
Veltmann’s petition and dismiss this case.
VACATED AND DISMISSED.
3
Veltmann argues that even if she cannot satisfy the “in custody”
requirement of § 2241, the district court still had jurisdiction over her
petition pursuant to Singh v. Waters, 87 F.3d 346, 349 (9th Cir. 1996). In
Singh, we asserted jurisdiction over the habeas petition of an immigrant
removed “in violation of the immigration judge’s order and after
interference with his right to counsel.” Id. at 349. Because this exception
applies only in “extreme circumstances,” Miranda, 238 F.3d at 1159, and
because no such circumstances are present here, the Singh exception is not
applicable to this case.