Hilario Rivas-Melend v. Janet A. Na, 689 F.3d 732

Rivas-Melendrez, a Mexican native, entered the U.S. in 1970 as a lawful permanent resident;
He has deep U.S. ties: served in the U.S. Navy, was married to a lawful permanent resident, and has four U.S.-citizen children.
In 1980, a California court convicted him of unlawful sexual intercourse with a person under 18 (statutory rape).
In 2009, DHS charged removability based on the 1980 conviction as an aggravated felony;
An immigration judge found removability and denied discretionary relief; Rivas was removed on August 17, 2010.
Rivas filed a 28 U.S.C. §2241 habeas petition in the Northern District of Illinois challenging ICE’s execution of the removal order; the district court dismissed for lack of subject-matter jurisdiction due to §1252(g) and because he was not in custody; the Seventh Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court had jurisdiction to review execution of removal order.	Rivas asserts district court can review execution under §1252(f)(2).	Government argues §1252(g) bars review of the execution of removal orders; §1252(f)(2) is not independent jurisdiction.	No; §1252(g) bars such review and §1252(f)(2) does not create independent jurisdiction.
Whether §1252(f)(2) creates a jurisdictional exception.	§1252(f)(2) allows injunctions by showing order execution is prohibited as a matter of law.	§1252(f)(2) is limited to injunctive relief and does not grant jurisdiction.	No; §1252(f)(2) is a limit on injunctive relief, not an independent grant of jurisdiction.
Whether Rivas was 'in custody' for §2241 habeas jurisdiction.	Removal and separation from family constitute unique restraint creating custody.	Exclusion from entry is not custody; Rivas is abroad and not under U.S. control.	Not in custody; §2241 jurisdiction unavailable.

Samirah v. O'Connell, 335 F.3d 545 (7th Cir. 2003) (alien abroad not in custody; exclusion is not custody)
Samirah v. Holder, 627 F.3d 652 (7th Cir. 2010) (reaffirms that exclusionary effect does not constitute custody)
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (1252(f) is a limit on injunctive relief, not an independent grant of jurisdiction)
In re Bulnes-Nolasco, 25 I. & N. Dec. 57 (BIA 2009) (in absentia order issued without notice is voidable from inception)
Madu v. U.S. Attorney Gen., 470 F.3d 1362 (11th Cir. 2006) (distinguishes challenge to removal order from challenge that no order exists)
Kumarasamy v. Attorney Gen. of U.S., 453 F.3d 169 (3d Cir. 2006) (no order existence argument framed as removal legality)
Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786 (7th Cir. 2002) (explains §1252(g) review scope)