Opinion
3:04-CV-0524-M.
November 18, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a habeas corpus action brought pursuant to 28 U.S.C. §§ 2241, et seq.
Parties: Petitioners Damian Romo-Briones (Romo), Jose Salas-Veloz (Salas), and Jose Resendiz (Resendiz), through retained counsel, filed this petition for writ of habeas corpus. Respondents are Tom Ridge, Secretary of the Department of Homeland Security; Nuria Prendes, Field Officer in charge, Bureau of Immigration and Customs Enforcement (BICE); and John Ashcroft, Attorney General of the United States. The court issued process in this case. Statement of Case: Petitioners, citizens of Mexico, seek reinstatement of their lawful permanent resident (LPR) status following their 1999 deportations/removals for felony driving while intoxicated (DWI). Relying on the Fifth Circuit decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) (direct criminal appeal), which held that DWI is not a "crime of violence" and, thus, not an aggravated felony under the United States Sentencing Guidelines, they argue that their first orders of deportation are voidable because they were based on an erroneous interpretation of the law. (Petition (Pet.) at 19).
Although Petitioners name these individuals as Respondents, there is some question as to whether they are the proper respondents in this action. 28 U.S.C. § 2242 requires an application for writ of habeas corpus to name the petitioner's custodian as respondent. Nevertheless, because the identity of the Respondents does not affect the resolution of this action, the magistrate judge leaves the Respondents as named by Petitioner for purposes of this action.
A. Procedural History of Petitioner's Immigration Cases: All three Petitioners concede reentering the United States following their first removals "without the effective consent of the U.S. Attorney General." (Pets.' Suppl. Brief at 2). The procedural history of their respective cases follows:
Romo, a citizen of Mexico, became a LPR in 1990. On April 17, 1996, Romo was convicted of felony DWI and was sentenced to seven years imprisonment. On the basis of this conviction, BICE placed Romo in removal proceedings for the commission of an aggravated felony. On March 9, 1999, an immigration judge (IJ) ordered Romo removed as an aggravated felon. Romo waived his right to appeal the removal order to the Board of Immigration Appeals (BIA), and was removed on March 19, 1999.
Romo reentered the United States only two months following his first removal. He was arrested in 2002 because of a vehicular accident. Although Romo was subject to removal on the basis of his prior removal order, BICE agreed, as part of a stipulation of dismissal in Romo-Briones v. Ashcroft, 3:02cv2321-M (N.D. Tex.) (a prior habeas action), not to reinstate the prior removal order. As a result, BICE initiated new removal proceedings, and on February 28, 2003, released Romo on a $5,000 cash bond. On November 18, 2003, an IJ terminated the new removal proceeding, concluding that BICE must seek Romo's removal only through reinstatement of the March 1999 removal order. BICE neither appealed nor sought reinstatement of the prior removal order.
Salas also became a LPR in 1990. On January 28, 1999, he was convicted of felony DWI for which he was sentenced to two years confinement in state prison. On the basis of that conviction, BICE placed him in removal proceedings on April 20, 1999. On June 24, 1999, an IJ ordered Salas removed as an aggravated felon. Salas did not file an appeal with the BIA and on September 15, 2000, he was removed to Mexico.
He was arrested on August 20, 2002, in Dallas, Texas, while attempting to renew his driver's license. BICE placed Salas in removal proceedings on the same date, charging him as an alien who had unlawfully entered the United States without inspection under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien who was not in possession of a valid entry document under section 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I). He was released on a $5,000 cash bond the next day. On November 20, 2002, an IJ ordered him removed as an alien who unlawfully entered without inspection. The BIA affirmed the IJ's decision on February 25, 2004. Resendiz entered the United States as a LPR in 1969. In 1991 and 1997, Resendiz was convicted of felony DWI. On the basis of those convictions as well as a prior firearm conviction, an IJ ordered him removed to Mexico as an aggravated felon on June 25, 1998. The BIA affirmed the removal order on February 8, 2000, and Resendiz was removed to Mexico on March 28, 2000.
Following his illegal reentry, Resendiz was prosecuted in federal court for reentry of a removed alien. See United States v. Resendiz, DR 00-cr-361 (W.D. Tex.). That conviction was subsequently vacated by a writ of coram nobis, based on United States v. Chapa-Garza, supra. On August 17, 2001, Resendiz was convicted once again of felony DWI, and sentenced to five years imprisonment in the Texas Department of Criminal Justice, where BICE encountered him.
Resendiz moved to reopen his immigration proceedings. The BIA denied his motion because it lacked jurisdiction to reopen under 8 C.F.R. § 1003.2(d). BICE then instituted new removal proceedings, charging him as an alien who had unlawfully entered the United States without inspection under section 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). On October 15, 2003, an IJ ordered Resendiz removed. On February 25, 2004, the BIA affirmed, and on March 13, 2004, the day after the filing of the petition in this case, Resendiz was removed to Mexico for the second time.
B. Procedural History in this Court: In response to this court's order to show cause, Respondents filed a response and motion to dismiss. They allege the court lacks habeas jurisdiction because Romo and Salas were not "in custody" at the time the habeas petition was filed, and Salas and Resendiz should have presented their claims to the Court of Appeals by way of a petition for review from their second removals. Respondents further allege that Romo and Salas failed to exhaust administrative remedies with respect to their first removals, and that the claims of all three Petitioners cannot be remedied by habeas relief.
The magistrate judge set this case for a hearing on September 9, 2004, and ordered the parties to file supplemental briefs addressing the jurisdictional and in custody issues in this case. Respondents' supplemental brief reiterates the arguments raised in their motion to dismiss. Petitioners supplemental brief disputes both the "in custody" and jurisdictional challenges. (See Petitioner's Suppl. Brief filed on September 7, 2004). Alternatively Petitioners Salas and Resendiz request that their claims be transferred to the Fifth Circuit to be addressed as petitions for review. (Pets.' Suppl. Brief at 14). Petitioner Romo requests that his case be remanded to the BIA with instructions that the Board exercise its discretion under 8 C.F.R. § 1003.2(a) and reopen or reconsider his initial removal for felony DWI. (Id. at 17).
Findings and Conclusions:
Petitioners seek to invoke this court's habeas jurisdiction under 28 U.S.C. § 2241. At the September 9, 2004 hearing, as well as in their Supplemental Brief, Petitioners abandoned the additional jurisdictional bases for their petition — i.e., the All Writs Act, 28 U.S.C. § 1651, and federal question jurisdiction, 28 U.S.C. § 1331. See also Alvarez-Zavala, No. 3:02cv2724-N, 2004 WL 420030, *1-2 (N.D. Tex. Feb. 19, 2004), adopted 2004 WL 925365 (N.D. Tex., Mar. 12, 2004) (rejecting reliance on 28 U.S.C. §§ 1331 and 1651 as independent bases for jurisdiction in immigration cases).
Before reviewing Petitioners' claims on the merits, the magistrate judge must determine the availability and scope of habeas jurisdiction, and whether Petitioners are "in custody" for purposes of habeas jurisdiction.
Whether Petitioners exhausted their administrative remedies with respect to their first removal orders under 8 U.S.C. § 1252(d)(1) may raise an additional jurisdictional question insofar as they seek to collaterally challenge their first removal orders. See Roy v. Ashcroft, ___ F.3d ___, 2004 WL 2352110, at *3 (5th Cir. Oct. 20, 2004) (holding, in the context of a petition for review in the Fifth Circuit, that exhaustion of administrative remedies under § 1252(d)(1) creates a jurisdictional bar); see also Sayyah v. Farquharson, 382 F.3d 20, 24 (1st Cir. 2004) (extending § 1252(d)(1) to habeas cases in the district court); Sun v. Ashcroft, 370 F.3d 932, 936-44 (9th Cir. 2004) (same);Theodoropoulos v. INS, 358 F.3d 162, 169-74 (2d Cir. 2004) (same),superseding 313 F.3d 732 (2d Cir. 2002), cert. denied, 125 S.Ct. 37 (2004) (same); Duvall v. Elwood, 336 F.3d 228, 231-32 (3d Cir. 2003) (same);Sundar v. INS, 328 F.3d 1320, 1323 and 1324-26 (11th Cir.) (same and addressing jurisdictional aspect of administrative exhaustion requirement), cert. denied, ___ U.S. ___, 124 S.Ct. 531, 157 L.Ed.2d 412 (2003). Because the court ultimately finds, as set out more fully below, that it lacks subject matter jurisdiction over Petitioners' claims for other reasons, it need not address the administrative exhaustion requirement.
A. Availability and Scope of Habeas Jurisdiction
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, codified at 8 U.S.C. § 1101, et seq., governs federal habeas jurisdiction in cases involving aliens. See Perez v. Reno, 227 F.3d 294, 294 (5th Cir. 2000). IIRIRA's permanent rules apply in deportation proceedings, such as the ones at issue in this case, which commenced after April 1, 1997. IIRIRA's transitional rules govern deportation proceedings that commenced before April 1, 1997, and concluded more than thirty days after September 30, 1986.Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03 (5th Cir. 1999).
Respondents contend that habeas relief is unavailable because "jurisdiction to review removal orders is vested exclusively in the circuit courts of appeals by way of a petition for review." They rely on 8 U.S.C. § 1252(a)(1), which provides that "[j]udicial review of a final order of removal . . . is governed only by" the Hobbs Act's procedures for review of agency orders in the courts of appeals, and 8 U.S.C. § 1252(b)(9), which addresses the "[c]onsolidation of questions for judicial review" in the courts of appeals.
Judge David C. Godbey of this court recently addressed the availability and scope of habeas jurisdiction in the immigration context. See Noorani v. Ashcroft, et al., 3:03-cv-2746-N, 2004 WL 2049308 (N.D. Tex. Dallas Div., Sept. 14, 2004) (findings, conclusions and recommendation of Magistrate Judge Irma C. Ramirez),adopted 2004 WL 2203252 (N.D. Tex., Dallas Div., Sep. 29, 2004) (Godbey, J.). Noorani held that while habeas jurisdiction is technically available following INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), its scope does not encompass claims that could be raised to the court of appeals in a petition for review. Noorani, 2004 WL 2049308 at *8. In so holding, the court in Noorani noted that the Supreme Court inSt. Cyr, specifically held that § 1252(b)(9) and §§ 1252(a)(1) and (a)(2)(C) did not repeal federal habeas jurisdiction in the district courts, and that St. Cyr should not be limited to its narrow facts — namely that of a criminal alien who could not bring a challenge to the final order of removal in a petition for review. Id. at *3-4. Despite the technical availability of habeas jurisdiction, the Noorani court found, relying on 8 U.S.C. § 1252(d)(2) and transitional rules cases interpreting a similar provision, that the scope of habeas jurisdiction provided for by St. Cyr does not encompass claims that a petitioner could have raised in a petition for review filed with the appropriate court of appeals. Id. at *4-6. Such a limitation on the scope of habeas review is consistent with post-St. Cyr decisions in this District. Id. at *7 (collecting cases).
Until the Supreme Court definitively addresses § 1252(d), or the Fifth Circuit changes course with respect to the scope of habeas jurisdiction in immigration cases, this court follows St Cyr and Noorami to conclude that notwithstanding the technical availability of habeas jurisdiction, the scope of habeas jurisdiction does not encompass claims that could be raised to the court of appeals in a petition for review.
The court turns next to the individual facts of Petitioners' claims.
1. Salas and Resendiz:
Respondents argue that Petitioners Salas and Resendiz failed to petition for review following the BIA affirmance of their second removal orders. According to Respondents this failure justifies a finding of want of jurisdiction.
Petitioners Salas and Resendiz could have raised the claims which they seek to bring in this action in the Fifth Circuit Court of Appeals in petitions for review from their respective second removal orders. As a matter of fact, they raised the very claims at issue in this case before the IJ in the second removal proceedings, as well as before the BIA on appeal of their second removal orders. (Mot. to Dism. at 19). Because the scope of habeas jurisdiction does not encompass claims that could be raised to the court of appeals in a petition for review, this court concludes that it lacks habeas jurisdiction over Salas and Resendiz's habeas claims.
"When a court determines it lacks jurisdiction over an action, it must either dismiss the action or, in the interests of justice, transfer it to a court of proper jurisdiction." 28 U.S.C. § 1631 (West 1994) (permitting transfers to cure want of jurisdiction); Fed.R.Civ.P. 12(h)(3) (directing the court dismiss actions over which it lacks jurisdiction); Dorival v. Ashcroft, 2004 WL 1368920 (5th Cir. Jun 18, 2004) (unpublished per curiam) (holding that § 1631 permits a transfer if the Fifth Circuit "would have been able to exercise jurisdiction on the date the case was filed in the district court, the district court lacked jurisdiction over the case, and the transfer is in the interest of justice); Noorani, 2004 WL2049308, *8 (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (mentioning both the dismissal and transfer options).
Salas and Resendiz request that their claims be transferred to the Fifth Circuit in lieu of dismissal. They correctly note that their habeas petition was filed in this court within the thirty-day period for filing a petition for review in the Fifth Circuit from the BIA's affirmance of their second removal orders. (Petitioners' Suppl. Brief at 14-15). It is clear, the Fifth Circuit would have exercised jurisdiction over the petition on the date it was filed in this court. They also correctly note that a transfer would be in the interests of justice. (Id.). In fact Petitioners would lose recourse to the court of appeals through a petition for review were this court to simply dismiss this action. Accordingly, this court finds that the interests of justice favor transferring Salas and Resendiz's claims to the Fifth Circuit as a petition for review.
Whether their petition should be jointly filed or whether it should be severed and considered separately is an issue reserved for the Fifth Circuit.
2. Romo:
Unlike Salas and Resendiz, Romo's second removal proceeding was terminated in his favor by the immigration judge. As a result, he had no need to petition for review in the Fifth Circuit, and his failure to do so cannot be a basis for dismissal of the present petition on jurisdictional grounds.
In the supplemental brief, Petitioner Romo argues that BICE's failure to appeal to the BIA following the dismissal of his second removal proceeding, amounts to a failure to exhaust. (Pets' Suppl. Brief at 16-17). In this respect, he requests this court to grant his "habeas petition and remand the case to the BIA with instructions that the Board exercise its discretion under 8 C.F.R. § 1003.2(a)." (Id. at 17). This request should be rejected. A deported alien may not file a motion to reopen or reconsider with the BIA under 8 C.F.R. § 3.2(d), nor may the BIA reopen or reconsider on its own motion a deported alien's removal case under 8 C.F.R. § 3.(a). In Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675-676 (5th Cir. 2003), the Fifth Circuit held that the BIA's interpretation of its power to reopen removal proceedings on its own motion as being subject to the requirement that the alien not have been deported was "a reasonable agency interpretation" of the subject regulations.
B. The "In Custody" Requirement:
Custody is a necessary pre-requisite to habeas jurisdiction under 28 U.S.C. § 2241. Respondents argue that Romo fails to satisfy the "in custody" requirement of § 2241. (Mot. to Dism. at 9-11). They premise their argument on the fact that Romo was not in Respondents' custody on March 12, 2004, the date on which the instant petition was filed, and that his status has not changed. (Id. at 11, and Respondents' Suppl. Resp. at 3). Romo responds that he was arrested and detained by BICE and released upon payment of agreed bail on February 28, 2003, in connection with the second removal proceeding. (Petitioner's Suppl. Brief at 7). He claims that Respondents have him "under bond, still treaten[ing] to deport him at any moment (presumably if they are fortunate enough to get this lawsuit dismissed). . . ." (Id. at 17).
Respondents allege Salas also fails to satisfy the "in custody" requirement. Because the court has found that it lacks jurisdiction over Salas' claims under § 2241 for other reason, it only needs to address the issue of whether Romo is "in custody" for purposes of habeas jurisdiction.
The sole function of the writ of habeas corpus is to grant relief from unlawful imprisonment or custody. "Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ." Prieto v. Gluch, 913 F.2d 1159, 1162-63 (6th Cir. 1990) (quoting Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988)). Thus, a person seeking a writ of habeas corpus must be "in custody" at the time the habeas petition is filed. See 28 U.S.C. § 2241; Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 540 (5th Cir. 2003).
In immigration cases, the Fifth Circuit has held that the mere existence of a deportation order or an INS detainer is insufficient to place an alien "in custody" for purposes of habeas relief. Zolicoffer, 315 F.3d at 541 (INS detainer); United States ex rel. Marcello v. District Director, I.N.S., 634 F.2d 964, 970 (5th Cir.) (deportation order). See also Rajwany v. Ashcroft, No. 3:03cv1586-BD(K), 2004 WL 389098, at *2 (N.D. Tex. Feb. 27, 2004) (alien subject to a final order of voluntary departure, who was neither detained nor otherwise restrained, was not "in custody" for purposes of habeas jurisdiction); Briano-Cruz v. I.N.S., No. 3:01cv2618-G, 2002 WL 655532 at *2 (N.D. Tex. Apr. 18, 2002) (holding that state prisoner subject to a deportation order and an INS detainer is not in immigration "custody"); Fernandez v. I.N.S., No. 3:01cv0317-P, 2001 WL 435065 at *1-2 (N.D. Tex. Apr. 20, 2001), adopted by 2001 WL 493142 (N.D. Tex. May 7, 2001) (same).
St. Cyr and Zollicoffer appear to cast some doubt on the continued viability of Marcello's finding that a final order of deportation alone does not suffice for invoking habeas jurisdiction. See St Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271 (finding jurisdiction proper when the petition was "subject to a federal removal order."); Zollicoffer, 315 F.3d at 541 (noting that while a prisoner is "in custody" for purposes of § 2241 "simply because the INS has lodged a detainer" against him, the petitioner before it "does not contend that the INS actually ordered his deportation or that there is some other reason that he should be considered to be in the custody of the INS."). Either opinion, however, is simply too indefinite to overcome the definite precedent ofMarcello.
The Fifth Circuit has also held that once the government deports or removes a petitioner, "his removal proceedings [a]re complete and final." See Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003) (citing Stone v. INS, 514 U.S. 386, 398 (1995)). Although the Fifth Circuit has not addressed the matter, Judge Sam A. Lindsay of this court found, following Ninth Circuit precedent, that individuals "cannot avail [themselves] of habeas corpus jurisdiction" once they have been removed from the United States because they are "no longer `in custody.'"Chavez-Coronado, No. 3:02cv0797-L, 2003 WL 21505417 (N.D. Tex. Apr. 4, 2003) (adopting findings, conclusions and recommendation of Magistrate Judge Irma C. Ramirez) (holding that an alien, who had previously been deported for felony DWI, and who subsequently returned to the United States illegally to reopen his deportation case and to challenge the unlawfulness of his prior deportation in light of Chapa-Garza, was not in custody for habeas purposes).
The recommendation in Chavez-Coronado relies on the following cases: Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir.) (finding that "[petitioner] cannot avail himself of habeas corpus jurisdiction because he has already been removed and is therefore no longer `in custody'"); see also, Chavez v. Superior Ct., 194 F.Supp.2d 1037, 1039 (C.D. Cal. 2002) (holding that once an individual has "been removed to Mexico . . . he is no longer in the custody of either the State of California or the Immigration and Naturalization Service); Macias v. Greene, 28 F.Supp.2d 635, 638 (D. Co. 1998) (holding that where it was undisputed that petitioner was deported approximately three weeks before his petition was filed, he was not "in custody" as required by § 2241).
Upon his deportation in 1999, Romo's first removal proceeding came to a close exactly like in Chavez-Coronado, hence he was no longer subject to the 1998 removal order. See Navarro-Miranda, 330 F.3d at 675; United States v. Nava-Perez, 242 F.3d 277, 279 (5th Cir. 2001) (recognizing that 8 U.S.C. § 1231(a)(5) contemplates, "a second removal, under the reinstated prior order" and holding that, "[a]lthough both removals are based on the same 1997 order, with the second being based on the order's reinstatement, they are, nevertheless, separate removals").
Respondents have not yet sought the reinstatement of Romo's 1999 removal order. While Respondents initiated a new removal proceeding in 2003, that has terminated in Petitioner's favor. As a result, Romo is not subject to any removal order. Rather, he is presently at large in Tyler, Texas. Moreover, it appears he will not be subject to any removal order related to his 1999 deportation until the government commences reinstatement proceedings against him. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 294-95 (5th Cir. 2002) (recognizing that a reinstatement order is essentially an order of removal). In the event the 1999 removal order is reinstated and affirmed by the BIA, Romo may then raise any alleged errors in a petition for review in the Fifth Circuit. See id. (the courts of appeals have "jurisdiction to hear [the] petition for review of the reinstatement order.").
The court need not address in this action whether Respondents will seek to reinstate Romo's first removal order despite the stipulation of dismissal in Romo-Briones v. Ashcroft, 3:02cv2321-M (N.D. Tex.), see supra at 3, in which BICE agreed not to reinstate Romo's first removal order.
Romo contends that the mere threat of deportation is sufficient to confer jurisdiction. He notes Respondents previously arrested him and detained him in connection with the second attempt to remove him. (Petitioner's Suppl. Brief at 5-7, and 15-16). While he was thereafter released on temporary bail pendente lite in connection with a prior habeas proceeding, see supra at 3, he contends that he is in danger of being re-arrested and detained for purposes of removal in the event this habeas petition is dismissed or denied. (Petitioner's Suppl. Brief at 6).
While the "in custody" language of the habeas statute does not require a petitioner to be in physical custody, it requires him to establish some additional restriction on his or her liberty. See Hensley v. Municipal Court, San Jose Milpitas Judicial Dist., Santa Clara County, Cal., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (holding that a petitioner enlarged on his own recognizance pending execution of sentence was in custody within the meaning of 28 U.S.C. §§ 2241(c)(3) and 2254(a)); Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (the custody requirement for habeas purposes is satisfied when the petitioner is still subject to severe and immediate restraints on his liberty that are not shared by the public in general). This interpretation of the habeas statute has been applied in the immigration context. See Zollicofer, 315 F.3d at 540 (quoting Pack v. Yusuff, 218 F.3d 448, 454 n. 5 (5th Cir. 2000) ("Usually `custody' signifies incarceration or supervised release, but in general it encompasses most restrictions on liberty resulting from a criminal conviction.").
Petitioner Romo is not being detained by immigration officials. Nor can he established that he experiences any restrictions on his liberty. While Romo was released on a $5,000 cash bond in connection with the 2003 removal proceedings, he concedes that bond was "temporary" in nature and issued only to secure his release "pendente lite" (Petitioner's Suppl. Brief at 6-7) — i.e., during the actual progress of that suit. See Blacks Law Dictionary.
Under the facts of this case, the magistrate judge concludes that Romo is not "in custody" within the meaning of 28 U.S.C. § 2241. Accordingly, the Court should dismiss Romo's claims for lack of jurisdiction.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court find with respect to Petitioners Jose Salas-Veloz and Jose Resendiz that the scope of habeas review does not encompass claims that these Petitioners could have raised in a petition for review filed with the appropriate court of appeals. Rather than dismissing such claims for lack of jurisdiction, it is recommended that the Court order that the same be transferred to the Fifth Circuit Court of Appeals as a petition for review.
It is further recommended that the District Court find with respect to Petitioner Damian Romo-Briones that he is not "in custody" for purposes of habeas corpus jurisdiction, and order that his claims be dismissed for lack of jurisdiction.
Respondents' motion to dismiss should be granted only in part as noted above.
A copy of this recommendation will be transmitted to counsel for Petitioners and counsel for Respondents.