IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-10306
Summary Calendar
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ALEXANDER TITO HUMPHRIES,
Petitioner-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-453-T)
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January 7, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Alexander Tito Humphries appeals the denial of his habeas
corpus petition challenging the validity of an exclusion and
deportation order under 8 U.S.C. § 1105a(a)(10). Finding no error,
we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
I.
Humphries, a Kenyan citizen and national and United States
immigration parolee, pled guilty to lacking a valid immigration
visa under 8 U.S.C. § 1182(a)(7)(A)(i)(I), at a hearing before an
immigration judge (“IJ”) in September 1995. Humphries, who was
represented by counsel at the hearing, was notified that the IJ’s
decision would become final if he failed to appeal timely to the
Board of Immigration Appeals (“BIA”). Humphries did not appeal,
and, after his motions to reopen the hearing and stay deportation
were denied by the IJ, and by the BIA on appeal, he was ordered to
report for deportation proceedings on March 12, 1996.
Pursuant to 8 U.S.C. § 1105a(a)(10),2 Humphries filed the
instant petition for writ of habeas corpus on February 15, 1996,
alleging various defects in the IJ’s original exclusion and
deportation order. Although he had been incarcerated prior to
filing his petition, Humphries indicated, in response to a
questionnaire from the magistrate judge, that he had been released
under $5,000 bond pending deportation. In a subsequent pleading,
Humphries also indicated that he had failed to appear as instructed
for his March 12, 1996, deportation proceeding. The district court
thereafter dismissed, without prejudice, Humphries’s petition for
lack of subject matter jurisdiction, finding that Humphries, by
failing to appear for his scheduled deportation, had released
2
The petition was styled originally as a 28 U.S.C. § 2255 motion to
vacate, set aside, or correct sentence.
2
himself constructively from custody of the Immigration and
Naturalization Service (“INS”).
II.
Section 1105a(a)(10) provides that “any alien held in custody
pursuant to an order of deportation may obtain judicial review
thereof by habeas corpus proceedings.” This does not require that
one be physically confined in order to file a habeas petition, but
is satisfied where one has been released from physical confinement
and placed on parole under an unexpired sentence. See Maleng v.
Cook, 490 U.S. 488, 491 (1989) (per curiam). “[T]he mere existence
of an outstanding deportation order against an alien . . . [does
not] place him in the status of 'held in custody.'” United States
ex rel. Marcello v. District Dir. of the INS, 634 F.2d 964, 970
(5th Cir.), cert. denied, 452 U.S. 917 (1981).
Because we may affirm on any legal ground apparent from the
record, see Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992), cert. denied, 507 U.S. 972 (1993), we need not determine
whether the district court decided correctly that it lacked subject
matter jurisdiction. Rather, because Humphries has failed to
appear for his deportation proceeding, we refuse to permit him to
“call upon the resources of [this] Court for determination of his
claims.” Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per
curiam); see also Arana v. United States INS, 673 F.2d 75, 77 (3d
3
Cir. 1982) (per curiam); United States v. Jake H. Davis, 625 F.2d
79, 79 (5th Cir. 1980) (per curiam); Quarles v. Alabama, 578 F.2d
1148, 1149 (5th Cir. 1978); Matter of Barocio, 19 I&N Dec. 255, 258
(BIA 1985).
AFFIRMED.
4