20 F.4th 1374
11th Cir.2021Background:
- Romero, a Guatemalan national, entered the U.S. unlawfully, applied for asylum, and received a hearing notice in Jan. 1995; she voluntarily departed before the hearing and an immigration judge ordered her deported in absentia in April 1995.
- About a decade later Romero reentered unlawfully; in 2016 she sought a stay of removal and was placed in a supervised-release program with reporting, travel, residency/employment-notice, and detention-for-violation conditions.
- In 2019 the government denied her stay and issued a Plan of Action to remove her pursuant to the 1995 removal order, treating that order as still effective because Romero had left before it was issued.
- Romero filed a § 2241 habeas petition and APA claim, arguing her pre-order voluntary departure had “self-executed” the 1995 order (so the government must seek reinstatement before removal) and that ongoing supervision constituted custody.
- The district court denied relief; the Eleventh Circuit reviewed de novo whether Romero was “in custody” for § 2241 jurisdiction, whether §1252 barred habeas, and whether 8 U.S.C. § 1101(g) meant her 1995 departure self-executed the order.
Issues:
| Issue | Romero's Argument | Government's Argument | Held |
|---|---|---|---|
| Was Romero "in custody" under 28 U.S.C. § 2241? | Supervision conditions (reporting, travel limits, notification, potential detention) impose significant restraints and thus constitute custody. | Supervision did not amount to custody for habeas jurisdiction. | Held: Romero was "in custody"; district court had § 2241 jurisdiction. |
| Does 8 U.S.C. § 1252(a)(5) bar Romero's habeas challenge? | Her claim attacks the existence/effectiveness of an operative removal order (not review of an order) and thus is cognizable under habeas (cf. Madu). | Judicial review of removal orders is limited to a petition for review under § 1252. | Held: § 1252(a)(5) does not bar the habeas petition because Romero contests the existence/effect of an operative order. |
| Did Romero validly "self-execute" the 1995 removal order under 8 U.S.C. § 1101(g) by leaving before the order issued? | § 1101(g) requires only (1) an order having been entered at some point and (2) that the alien left the U.S.; the temporal order of the two conditions is irrelevant, so her pre-order departure self-executed the order. | § 1101(g)'s conditions are successive: the alien must depart while a removal order is outstanding; because Romero left before the order, she was not "deported or removed" under § 1101(g). | Held: The conditions are successive. Romero did not self-execute the 1995 order; the government may deport under that still-operative order. |
Key Cases Cited
- Jones v. Cunningham, 371 U.S. 236 (1963) (parole-like restraints can satisfy "in custody" for habeas)
- United States ex rel. Marcello v. Dist. Dir., INS, 634 F.2d 964 (5th Cir. 1981) (pre-deportation supervision can constitute custody)
- Madu v. U.S. Att'y Gen., 470 F.3d 1362 (11th Cir. 2006) (distinguishing challenge to existence of removal order from review barred by §1252)
- Howard v. Warden, 776 F.3d 772 (11th Cir. 2015) ("in custody" requirement construed liberally)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (requirement to interpret statutes consistently when they have criminal and noncriminal applications)
- United States v. Bass, 404 U.S. 336 (1971) (rule of lenity: penal statutes construed narrowly)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency interpretations deserve deference when statute ambiguous)
- Preiser v. Rodriguez, 411 U.S. 475 (1973) (habeas traditionally designed to secure release from unlawful custody)