The opinion of the court was delivered by: JEFFREY MILLER, District Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF
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
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 ¶
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
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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