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United States District Court, S.D. California

November 22, 2005.

IRMA CALDERON, Petitioner,

The opinion of the court was delivered by: JEFFREY MILLER, District Judge

Petitioner Irma Calderon (a.k.a. Mercedes Munoz Nunez), a national of Ecuador, moves for habeas relief pursuant to 28 U.S.C. § 2241 (the "Petition"). Petitioner contends that the Department of Homeland Security ("DHS") failed to adequately investigate whether she had a fear of persecution prior to her expedited removal. The Government opposes the Petition. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the petition for writ of habeas corpus is dismissed for lack of habeas jurisdiction.


  On or about September 10, 2005 Petitioner was detained when she attempted to enter the United States at the Otay Mesa Port of Entry without travel documents. Petitioner was placed in expedited removal proceedings pursuant to 8 U.S.C. § 1225(b)(1)(A)(i) and removed to Ecuador on October 17, 2005. Petitioner commenced the present action by filing the Petition on October 18, 2005, one day after she was removed from the United States. Petitioner, a 58 year old woman, alleges that in August 2005 she was traveling from Ecuador to New Jersey via Puerto Rico with unspecified travel documents. Upon her arrival in Puerto Rico, "a demand of ten thousand dollars ("$10,000") was made to her and her family and she was threatened with physical harm unless the demands were met." (Petition ¶ 3). Petitioner was then allegedly forced to leave the United States for Mexico so she could reenter the United States illegally from Mexico. Petitioner traveled from Puerto Rico to Cozumel, Mexico by small plane. She was allegedly held in Mexico against her will for three weeks before "she was forced against her will to attempt to enter the United States by car, driven by trafficker(s)." (Petition ¶ 7). During this period of time Petitioner allegedly suffered "great physical and emotional distress at the hands of criminal traffickers, including an attempted rape." (Petition ¶ 9).

  Petitioner contends that DHS failed to follow established procedures to investigate her "fear of persecution" before placing her in expedited removal proceedings. The Government opposes the Petition.


  The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (the "in custody" requirement is jurisdictional). In Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001), the Ninth Circuit held that a petitioner who had already been removed generally "cannot avail himself of habeas corpus jurisdiction." 238 F.3d at 1158. The Ninth Circuit concluded that a removed individual who waived his appellate rights was no longer in custody for purposes of 28 U.S.C. § 2241. However, there is a narrow exception to this rule: the district court may entertain a § 2241 petition "under extreme circumstances." Sing v. Waters, 87 F.3d 346, 349 (9th Cir. 1996). For example, the INS had removed petitioner Singh in violation of a stay of deportation order entered by the immigration court. Under such extreme circumstances, the Ninth Circuit concluded that "Singh could not be considered to have `departed' the United States and was thus still in custody." Id.

  Here, Petitioner was removed from the United States to Ecuador on October 17, 2005, one day before she filed her petition for writ of habeas corpus. Facially, Petitioner was not in custody at the time she filed the Petition. However, in an attempt to demonstrate extreme and unusual circumstances, Petitioner contends that she "could not have deplaned in transit," (Reply at p. 6:9), and that she was subject to a more rigorous customs inspection in Ecuador "related to her status as a deportee of one in custody of the U.S. Government." (Reply at p. 6:14-15). The court notes that such relatively minor burdens do not constitute extreme and unusual circumstances warranting relief from the "custody" requirement of 28 U.S.C. § 2241. Moreover, Petitioner cannot demonstrate restraints "not shared by the public generally. . . . [and] is subject to no greater restraint than any other non-citizen living outside American borders." Miranda, 238 F.3d at 1159. Petitioner was not in custody at the time she commenced the Petition and she fails to adequately demonstrate the type of extreme and unusual circumstances warranted for the exercise of habeas jurisdiction.

  In her reply brief, Petitioner contends that she was still in custody at the time of filing the Petition because, as of the precise time the airplane landed in Ecuador, 1:00 p.m on October 18, 2005, she had filed her petition earlier in the day at 11:11 a.m in San Diego, California. Based upon these facts Petitioner concludes that the custody requirement is satisfied because she was in transit to Ecuador and "not free at the time that the motion was filed." This argument is not persuasive.

  The focus of the "custody" requirement is not on whether the individual is "not free" as argued by Petitioner but whether the custodian continues to exercise restraint and control over the individual. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973), the Supreme Court held that an individual's presence within the territorial jurisdiction of the district court is not "an invariable prerequisite" to the exercise of district court jurisdiction under the federal habeas statute. Id. at 494. Here, once Petitioner departed United States territory she was no longer under an official custodial restraint. Petitioner's restraint was no different than that of any other passenger, citizen and non-citizen alike, flying at 30,000 feet. The restraint — her inability to depart the aircraft — cannot fairly be characterized as a custodial restraint attributable to Respondent.

  In sum, the court does not reach the merits of the Petition as Petitioner fails to establish that this court has habeas jurisdiction over the Petition. The Petition is dismissed for lack of subject matter jurisdiction.



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