Opinion
No. 3-04-CV-1540-P.
October 5, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Jose Solis Avila, by and through his counsel of record, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be dismissed for lack of subject matter jurisdiction.
I.
Petitioner, a native and citizen of Mexico, entered the United States without inspection in January 1990. (Resp. Ans., Exh. 1). Eleven years later, the Immigration and Naturalization Service ("INS") initiated removal proceedings. ( Id., Exh. 2). At a hearing before an immigration judge, petitioner conceded deportability but sought a cancellation of removal under section 240A(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b). His request for cancellation of removal was denied and petitioner was ordered to voluntarily depart the United States by March 26, 2002. ( Id., Exh. 2).
Petitioner timely appealed this decision to the Board of Immigration Appeals ("BIA"). The BIA dismissed his appeal and ordered petitioner to voluntarily depart the United States "within 30 days from the date of this order or any extension beyond that time as may be granted by the district director." In re Solis-Avila, No. A75-881-004, op. at 2 (BIA Feb. 3, 2004). Petitioner did not comply with the order. Instead, he filed an untimely petition for review with the Fifth Circuit Court of Appeals. His petition was dismissed for lack of jurisdiction. Solis-Avila v. Ashcroft, No. 04-60196 (5th Cir. May 24, 2004).
On July 15, 2004, petitioner filed an application for writ of habeas corpus in federal court. He also asked the Bureau of Immigration and Customs Enforcement ("BICE") to stay his deportation. A stay was granted until January 12, 2005, at which time petitioner will be required to report for removal to Mexico. (Resp. Ans., Exhs. 5 at 2 7). Respondent now moves to dismiss this habeas case for lack of subject matter jurisdiction because petitioner is not "in custody." Petitioner was invited to address this jurisdictional issue in a written response, but has failed to do so. The court will therefore decide the motion to dismiss without the benefit of a response.
Effective March 1, 2003, the INS ceased to exist and its domestic enforcement functions were transferred to the Department of Homeland Security, Bureau of Immigration and Customs Enforcement. See generally, HOMELAND SECURITY ACT, Pub.L. No. 107-296, 116 Stat. 2135, § 101, et seq. (2002).
II.
The sole function of the writ of habeas corpus is to grant relief from unlawful imprisonment or custody. It cannot be used for any other purpose. See Briano-Cruz v. I.N.S., 2002 WL 655532 at *2 (N.D. Tex. Apr. 18, 2002), citing Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976). 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), citing Pack v. Yusuff, 218 F.3d 448, 454 n. 5 (5th Cir. 2000). In immigration cases, the Fifth Circuit has held that the mere existence of a deportation order is insufficient to place an alien "in custody" for purposes of habeas relief. United States ex. rel. Marcello v. District Director, I.N.S., 634 F.2d 964, 970 (5th Cir.), cert. denied, 101 S.Ct. 3052 (1981); See also Rajwany v. Ashcroft, 2004 WL 389098 at *2 (N.D. Tex. Feb. 27, 2004) (holding that petitioner who fails to appear for voluntary departure, but is not in physical custody or under an order of supervision, does not satisfy "in custody" requirement of section 2241). To satisfy the "in custody" requirement, an alien must establish some restriction on his or her liberty resulting from a final order of deportation. See, e.g. Zolicoffer, 315 F.3d at 540, quoting Pack, 218 F.3d at 454 n. 5 ("Usually, `custody' signifies incarceration or supervised release, but in general it encompasses most restrictions on liberty resulting from a criminal conviction.").
At least three other circuits appear to hold otherwise. See, e.g. Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (final order of deportation satisfies the "in custody" requirement of 28 U.S.C. § 2241); Mustata v. United States Dep't of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir. 1999) (same); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995) (same).
Although petitioner has been ordered to voluntarily depart the United States, that order has been stayed until January 12, 2005. Petitioner is not being detained by immigration officials. Nor has he been placed under an order of supervision. Petitioner offers no argument, much less evidence, that he has experienced any significant restriction on his liberty as a result of his impending deportation to Mexico. See Chavez-Coronado v. Cockrell, 2003 WL 21505417 at *5 (N.D. Tex. Apr. 4, 2003) (rejecting argument that mere threat of deportation satisfies "in custody" requirement). Because petitioner was not "in custody" at the time he filed his habeas petition, federal jurisdiction is not proper.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for lack of subject matter jurisdiction.