717 F.3d 1086
9th Cir.2013Background
- Veltmann-Barragan became a lawful permanent resident in 1982 and was removed in 1999 via expedited removal under 8 U.S.C. § 1225(b)(1) after giving false identity at the border.
- Her removal relied on an assumed name; if her true identity had been disclosed, expedited removal would not apply.
- She later reentered the U.S. using her green card and true name and sought naturalization in 2005.
- During naturalization, she admitted she had never been removed, but the government later discovered the 1999 removal under the assumed name.
- She filed a 28 U.S.C. § 2241 habeas petition two years after the naturalization denial, challenging the 1999 removal order.
- The district court ruled it had jurisdiction and denied relief; on appeal, the Ninth Circuit held lack of custody deprives the court of § 2241 jurisdiction and vacated and dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner is 'in custody' for § 2241 purposes | Veltmann contends residual custody exists due to potential reinstatement. | Holder argues no custody once removal completed and no active order. | Not in custody; § 2241 lacks jurisdiction. |
| Whether reinstatement authority creates custody upon return | Reinstatement could revive custody and permit habeas review. | Reinstatement is not automatic and requires steps; no reinstatement occurred. | Reinstatement not automatic; no custody. |
| Whether government steps to reinstate were satisfied | Continued eligibility for removal implies potential custody. | Reinstatement requires multiple affirmative steps; none were taken. | Steps not satisfied; no custody. |
| Whether Singh v. Waters exception applies | Singh exception could confer jurisdiction in extreme circumstances. | Singh exception does not apply here; circumstances not extreme. | Singh exception inapplicable. |
Key Cases Cited
- Jones v. Cunningham, 371 F.2d 236 (1963) (defines 'in custody' for habeas purposes)
- Nakaranurack v. United States, 68 F.3d 290 (9th Cir. 1995) (final deportation order as custody indicator)
- Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001) (removal executed; no habeas when abroad)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc; removal leaves custody status)
- Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009) (reinstatement of removal order requires steps)
- Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) (procedural requirements for reinstatement of removal order)
- Singh v. Waters, 87 F.3d 346 (9th Cir. 1996) (extreme circumstances exception to jurisdiction)