FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT FLORES-TORRES, Agency
No. A44-284-242,
Petitioner-Appellant,
v.
MICHAEL B. MUKASEY, Attorney No. 08-16484
General; MICHAEL CHERTOFF, D.C. No.
Secretary of the Department of 3:08-cv-01037-
Homeland Security; NANCY WHA
ALCANTAR, ICE Detention and
OPINION
Removal Operations Field Office
Director; EDWARD FLORES, Chief of
Corrections, Santa Clara County
Jail,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
October 20, 2008—San Francisco, California
Filed November 10, 2008
Before: Mary M. Schroeder, Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Reinhardt
15495
FLORES-TORRES v. MUKASEY 15497
COUNSEL
Holly S. Cooper, Esq., Supervising Attorney, U.C. Davis
Immigration Law Clinic, Davis, California, for the petitioner-
appellant.
15498 FLORES-TORRES v. MUKASEY
Joseph P. Russoniello, Esq., United States Attorney, Joann M.
Swanson, Esq., Chief, Civil Division, Melanie L. Proctor,
Esq., Assistant United States Attorney, San Francisco, Cali-
fornia, for the respondents-appellees.
OPINION
REINHARDT, Circuit Judge:
For over two years, since October 10, 2006, the Bureau of
Immigration and Customs Enforcement (ICE) has detained
Herbert Alexander Flores-Torres in immigration custody dur-
ing his ongoing removal proceedings. ICE claims it has the
authority to do so under the Immigration and Nationality Act
(INA), which permits the detention of an “alien” who is in
removal proceedings. Torres, however, contends that he is not
an “alien,” that he became a United States citizen at the age
of seventeen when his mother was naturalized, and that ICE
is therefore without authority to detain him. We reverse the
district court’s dismissal for lack of jurisdiction of Torres’s
habeas petition challenging his continued confinement, and
remand for a determination whether he is a citizen and thus
immune from detention under the INA.
I. FACTUAL & PROCEDURAL BACKGROUND
Torres was born out of wedlock in El Salvador in 1978. In
1986, he came to the United States to join his mother, who
had already moved here. He obtained lawful permanent resi-
dent status in 1993, and his mother became a naturalized
United States citizen in 1995 when he was seventeen years
old.
In 2005, Torres was convicted of possession of a firearm by
a felon with two priors, in violation of California Penal Code
§ 12021(a)(1).1 The government then charged Torres with
1
Torres was convicted of two prior felonies in 2002 and placed in
removal proceedings, but was granted cancellation of removal.
FLORES-TORRES v. MUKASEY 15499
being removable as an alien with a conviction for an aggra-
vated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and placed
him in immigration custody under the mandatory detention
statute, 8 U.S.C. § 1226(c). Section 1226(c) requires the
Attorney General to detain “any alien” who is inadmissible or
deportable for having committed certain offenses.2
Torres filed a motion to terminate proceedings, arguing that
under the former 8 U.S.C. § 1432, he automatically derived
citizenship from his mother when she was naturalized. Under
United States law, his claim appears to depend ultimately on
whether or not his father’s paternity has been established by
legitimization under El Salvadoran law. The immigration
judge (“IJ”) denied Torres’s citizenship claim, and the Board
of Immigration Appeals (“BIA”) dismissed the appeal, but
subsequently reopened the proceedings at Torres’s request.
The BIA then vacated its decision and remanded to the IJ for
another hearing. On August 1, 2008, the IJ again denied Tor-
res’s citizenship claim.
Torres filed the underlying petition for a writ of habeas cor-
pus in the Northern District of California on February 21,
2008, seeking release from continued custody. The district
court dismissed the habeas petition in part, holding that it
lacked jurisdiction to determine whether Torres is a citizen
who cannot be held in immigration detention, and denied it in
part, rejecting Torres’s challenge to the length of his detention
without an individualized custody hearing. Torres timely
appealed. We have jurisdiction under 28 U.S.C. § 1291, and
we review de novo the district court’s dismissal of his habeas
petition. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.
2000). The second part of Torres’s petition regarding deten-
tion without an individualized custody hearing is now moot,3
2
Aliens detained under 8 U.S.C. § 1226(c) may be held without an indi-
vidualized bond hearing. In contrast, the general detention provision, 8
U.S.C. § 1226(a), provides for such a hearing. See Casas-Castrillon v.
Dept. of Homeland Security, 535 F.3d 942, 950 (9th Cir. 2008).
3
Since the district court’s decision, the IJ has held an individualized
bond determination hearing pursuant to our decision in Casas-Castrillon,
15500 FLORES-TORRES v. MUKASEY
but his essential complaint that he may not be held in deten-
tion by ICE because he is a United States citizen, and that he
is therefore entitled to a habeas hearing, is not.
II. ANALYSIS
[1] Section 1226 of the INA vests the Attorney General
with authority to detain an “alien” during removal proceed-
ings. See 8 U.S.C. § 1226(a); id. § 1226(c). Torres, however,
asserts that the Attorney General is without authority to detain
him because he is not an “alien,” but a United States citizen.
There is no dispute that if Torres is a citizen the government
has no authority under the INA to detain him, as well as no
interest in doing so, and that his detention would be unlawful
under the Constitution and under the Non-Detention Act, 18
U.S.C. § 4001.4 The parties dispute only whether § 1252 of
the INAprecludes the district court from exercising jurisdic-
tion over Torres’s habeas petition. We hold that it does not.
[2] Section 1252 of the INA, as amended by the REAL ID
Act, Pub. L. No. 109-13, Div. B, 199 Stat. § 231 (2005), pro-
vides that the exclusive method for obtaining judicial review
of “a final order of removal” is through filing a petition for
review in the court of appeals. 8 U.S.C. § 1252(a)(2),
§ 1252(a)(5), § 1252(b)(9). The same section of the INA,
under 8 U.S.C. § 1252(b), explains that:
“With respect to review of an order of removal . . .
the following requirements apply:
535 F.3d 942. The IJ denied the motion for release from custody, finding
that Torres was both a flight risk and a danger to the community. Torres
is now being held under the general detention statute, 8 U.S.C. § 1226(a).
4
The Non-Detention Act provides that “[n]o citizen shall be imprisoned
or otherwise detained by the United States except pursuant to an Act of
Congress.” 18 U.S.C. § 4001.
FLORES-TORRES v. MUKASEY 15501
....
(5) Treatment of nationality claims
(A) Court determination if no issue of
fact
If the petitioner claims to be a national of
the United States and the court of appeals
finds from the pleadings and affidavits
that no genuine issue of material fact
about the petitioner’s nationality is pre-
sented, the court shall decide the nation-
ality claim.
(B) Transfer if issue of fact
If the petitioner claims to be a national of
the United States and the court of appeals
finds that a genuine issue of material fact
about the petitioner’s nationality is pre-
sented, the court shall transfer the pro-
ceeding to the district court of the United
States for the judicial district in which
the petitioner resides for a new hearing
on the nationality claim and a decision
on that claim as if an action had been
brought in the district court under section
2201 of Title 28.
(C) Limitation on determination
The petitioner may have such nationality
claim decided only as provided in this
paragraph.”
8 U.S.C. § 1252(b) (emphasis added). Recently, we inter-
preted these provisions as requiring that challenges to
15502 FLORES-TORRES v. MUKASEY
removal orders, based on a claim to citizenship, be brought in
a petition for review. Iasu v. Smith, 511 F.3d 881, 889 (9th
Cir. 2007).
[3] The government argues, and the district court held, that
Iasu’s interpretation of § 1252(b) forecloses the exercise of
jurisdiction in Torres’s case. Section 1252(b) by its terms,
however, applies only to citizenship claims raised in connec-
tion with “review of an order of removal.” 8 U.S.C.
§ 1252(b). Such challenges, we said, must be brought in a
petition for review of the removal order. Section 1252(b) does
not, and is not intended to, prescribe the exclusive method of
determining nationality claims in all circumstances, but only
in cases in which the petitioner challenges a final order of
removal — an order that is subject to immediate review by an
Article III court, either a court of appeals or, if there is a dis-
puted issue of fact regarding citizenship, a district court, by
transfer from the court of appeals. 8 U.S.C. § 1252(b)(5)(B).
[4] Torres’s habeas petition, unlike Iasu’s, does not chal-
lenge any final order of removal, but challenges his detention
prior to the issuance of any such order. Two recent cases
explain why this difference is critical. First, we have held that
“the jurisdiction-stripping provision [of the REAL ID Act]
does not apply to federal habeas corpus petitions that do not
involve final orders of removal.” Nadarajah v. Gonzales, 443
F.3d 1069, 1075 (9th Cir. 2006). Second, as we concluded
recently, “[e]ven post-[REAL ID Act], aliens may continue to
bring collateral legal challenges to the Attorney General’s
detention authority . . . through a petition for habeas corpus.”
Casas-Castrillon v. Dept. of Homeland Security, 535 F.3d
942, 946 (9th Cir. 2008).5
5
Although the parties do not contest this point, 8 U.S.C. § 1226(e) does
not bar jurisdiction in this case either. Torres challenges the government’s
statutory authority to hold him, not the “Attorney General’s discretionary
judgment” or an “action or decision by the Attorney General . . . regarding
the detention or release of any alien or the grant, revocation, or denial of
bond or parole.” 8 U.S.C. § 1226(e) (emphasis added). The Supreme Court
has held that § 1226(e) does not bar such challenges. See Demore v. Kim,
538 U.S. 510, 516-17 (2003) (finding jurisdiction where petitioner chal-
lenged “the statutory framework that permits his detention without bail”).
FLORES-TORRES v. MUKASEY 15503
The government argues that, because the question of its
authority to detain Torres is intertwined with the citizenship
claim at issue in his removal proceedings, Torres must wait
until the conclusion of those proceedings before receiving a
judicial determination as to whether he is a citizen and as to
whether his detention by ICE is lawful. Then, the government
says, he must challenge any citizenship determination by
means of a petition for review of a final order of removal.
This argument conflicts not only with the plain language of
§ 1252 but with the well-established principle that we require
“a particularly clear statement” of intent from Congress
before we find habeas review foreclosed. Demore v. Kim, 538
U.S. 510, 517 (2003); I.N.S. v. St. Cyr, 533 U.S. 289, 298-99
(2001).6 The government’s argument is also precluded by
Theagene v. Gonzales, 411 F.3d 1107, 1110 (9th Cir. 2005),
which holds that a nationality claim need not be exhausted
because only an “alien” is required to exhaust administrative
remedies under the INA. See also Minasyan v. Gonzales, 401
F.3d 1069, 1075 (9th Cir. 2005) (“Because Minasyan’s claim
to citizenship is not patently frivolous, we have jurisdiction to
review it, irrespective of whether he has exhausted his claim
before the agency.”). We must remember that we are here
dealing with the detention of an individual who claims to be
a United States citizen. If his claim is true, his detention under
the INA violates the Non-Detention Act as well as the Due
Process Clause of the Constitution. Finally, Congress has
never enacted any statute that would deprive a citizen of his
right to a judicial determination of the legality of his detention
6
Although the government does not raise 8 U.S.C. § 1252(b)(9) in its
argument, we hold that this section does not provide a “clear statement”
foreclosing habeas review in this circumstance. We have previously held
that § 1252(b)(9) does not preclude habeas petitions that challenge deten-
tion or do not otherwise involve final orders of removal. See Casas-
Castrillon, 535 F.3d at 946; Nadarajah, 443 F.3d at 1075. Furthermore,
the section applies only to questions arising from “any action taken or pro-
ceeding brought to remove an alien from the United States.” 8 U.S.C.
§ 1252(b)(9) (emphasis added). It does not bar an action by Torres, who
challenges his detention and raises a non-frivolous claim of citizenship.
15504 FLORES-TORRES v. MUKASEY
simply because his case is pending before an administrative
agency.
There are also serious questions concerning the govern-
ment’s position that an individual who asserts a non-frivolous
claim of citizenship can be detained during immigration pro-
ceedings — which, for Torres, has already lasted over two
years — without habeas review. Cf. Iasu, 511 F.3d at 891
(“[A] nonfrivolous claim to U.S. citizenship gives a person a
constitutional right to judicial review . . . .”) (internal quota-
tion marks omitted).7 “In our society liberty is the norm, and
detention prior to trial or without trial is the carefully limited
exception.” United States v. Salerno, 481 U.S. 739, 755
(1987). The Supreme Court has recognized such exceptions
only in “certain special and narrow nonpunitive circumstances
where a special justification . . . outweighs the individual’s
constitutionally protected interest in avoiding physical
restraint.” Zadvydas v. Davis, 533 U.S. 678, 690, 692 (2001)
(internal citations and quotation marks omitted).8 The Court
recently explained that “[w]here a person is detained by exec-
utive order . . . the need for collateral review is most pressing”
and “the need for habeas corpus is more urgent.” Boumediene
v. Bush, 128 S.Ct. 2229, 2269 (2008).
[5] Torres asserts that his detention is unlawful because he
is a citizen — that he automatically derived citizenship from
7
We have held, however, that the elimination of habeas jurisdiction to
challenge a final order of removal is not an unconstitutional suspension
of the writ because the INA “provides an adequate substitute by allowing
judicial review of the final order of removal through the courts of
appeals.” See Iasu, 511 F.3d at 888 (internal quotation marks omitted).
Such a challenge can be expedited at the petitioner’s request.
8
In Demore v. Kim, the Supreme Court upheld mandatory detention of
aliens for a brief period during removal proceedings, but that holding was
specifically limited to persons who concede their alienage, and, even
more, their deportability. See 538 U.S. at 522-26, 523 n.6. The Court
noted that “Congress may make rules as to aliens that would be unaccept-
able if applied to citizens.” Id. at 522.
FLORES-TORRES v. MUKASEY 15505
his mother under the former 8 U.S.C. § 1432 when he was
seventeen because he was born out of wedlock and was not
legitimated by his father. His claim is non-frivolous on its
face. The government’s authority to detain Torres appears to
depend on the question of whether he was legitimated by his
father under El Salvadoran law. The district court is the
appropriate forum to resolve such a claim. We hold that Tor-
res does not have to wait until his removal proceedings are
completed and a final removal order is issued before he can
secure habeas review of his citizenship claim and of his con-
tention that he may not be detained under the INA.
[6] For the reasons stated above, the district court has juris-
diction over Torres’s habeas petition challenging his deten-
tion. We therefore remand to the district court to hear the
merits of his habeas petition. Because we do not consider the
merits of his claim and we assume that the district court will
act promptly, we deny Torres’s request for immediate release.
REVERSED AND REMANDED.