I.M. v. U.S Customs & Border Protection

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

I.M.,

Petitioner-Plaintiff,

v.
No. 20-cv-3576 (DLF)
U.S. CUSTOMS & BORDER PROTECTION
et al.,

Respondents-Defendants.

MEMORANDUM OPINION

In this action, petitioner-plaintiff I.M. challenges his expedited order of removal to his

native country of Before the Court is the respondents-defendants’ Motion to Dismiss

for Lack of Jurisdiction, Dkt. 23. Because this Court lacks jurisdiction to hear this case, the

Court will grant the respondents-defendants’ motion.

I. BACKGROUND

A. Legal Background

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered

sections of 8 U.S.C.), which amended the Immigration and Nationality Act (INA) and created an

expedited removal scheme. Under the INA, as amended, aliens “arriving in the United States”

are subject to expedited removal if an immigration officer determines they are inadmissible due

to misrepresentation or lack of immigration papers. See 8 U.S.C. § 1225(b)(1)(A)(i). If such an

alien indicates to the immigration officer that he fears persecution or torture if returned to his

country, the officer “shall refer the alien for an interview by an asylum officer,” id.
§ 1225(b)(1)(A)(ii), to determine whether he “has a credible fear of persecution [or torture],” id.

§ 1225(b)(1)(B)(ii). If the interviewing asylum officer determines that the alien does not have a

credible fear of persecution, the officer makes a “negative credible fear determination” and

orders the removal of the alien “without further hearing or review,” except by an immigration

judge. Id. § 1225(b)(1)(B)(iii)(I). An alien may request that an immigration judge conduct a de

novo review of the officer’s negative credible fear determination, see id.

§ 1225(b)(1)(B)(iii)(III), but if the immigration judge upholds the asylum officer’s negative

credible fear determination, the determination is final and the alien is subject to removal, 8

C.F.R. § 1208.30(g)(2)(iv)(A).

Federal district courts have limited review of orders of removal under § 1225. Except as

provided in § 1252(e), the INA strips courts of jurisdiction to review: (1) “any individual

determination or to entertain any other cause or claim arising from or relating to the

implementation or operation of an [expedited removal] order,” 8 U.S.C. § 1252(a)(2)(A)(i); (2)

“a decision by the Attorney General to invoke” the expedited removal regime, id.

§ 1252(a)(2)(A)(ii); and (3) the “procedures and policies adopted by the Attorney General to

implement the provisions of [§ 1225(b)(1)],” id. § 1252(a)(2)(A)(iv).

Section 1252(e), however, preserves judicial review for a small subset of issues relating

to individual expedited removal orders:

Judicial review of any determination made under [§ 1225(b)(1)] is available in
habeas corpus proceedings, but shall be limited to determinations of—
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under [§ 1225(b)(1)], and
(C) whether the petitioner can prove . . . that the petitioner is [a lawful permanent
resident], has been admitted as a refugee . . . , or has been granted asylum . . . .

Id. § 1252(e)(2). In reviewing a determination under subpart (B) above—i.e., in deciding

“whether the petitioner was ordered removed under [§ 1225(b)(1)]”—“the court’s inquiry shall

2
be limited to whether such an order in fact was issued and whether it relates to the petitioner.

There shall be no review of whether the alien is actually inadmissible or entitled to any relief

from removal.” Id. § 1252(e)(5).

Section 1252(e) also provides jurisdiction to the district court for the District of Columbia

to review “[c]hallenges [to the] validity of the [expedited removal] system.” Id. § 1252(e)(3)(A).

Such systemic challenges include challenges to the constitutionality of any provision of the

expedited removal statute or its implementing regulations, as well as challenges claiming that a

given regulation is inconsistent with law. See id. § 1252(e)(3)(A)(i), (ii). Any such systemic

challenge must be brought within sixty days after implementation of the challenged statute or

regulation. Id. § 1252(e)(3)(B). “[T]he 60–day requirement is jurisdictional rather than a

traditional limitations period.” Am. Immigr. Laws. Ass’n v. Reno, 18 F. Supp. 2d 38, 47 (D.D.C.

1998), aff’d, 199 F.3d 1352 (D.C. Cir. 2000).

B. Factual Background1

Petitioner-plaintiff I.M. is a citizen of who works in education and sustainable

farming. Pet. for Habeas Corpus & Compl. ¶¶ 20–21, Dkt. 3. In August 2019, I.M. obtained a

B1/B2 business/tourism visa. Pet. ¶ 24. He first visited the United States in September and

October of 2019 to learn about sustainable agriculture before returning to Pet. ¶¶ 23,

25. On the same visa, he again flew back to the United States on October 29, 2020. Pet. ¶¶ 27–

28. Upon his arrival at O’Hare International Airport, a Customs and Border Protection (CBP)

officer stopped I.M. for a secondary inspection. Pet. ¶ 29. The CBP officer who interrogated

1
Considering a motion to dismiss, the Court treats a plaintiff’s “factual allegations as true” and
“grant[s] [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.”
Ctr. for Responsible Sci. v. Gottlieb, 311 F. Supp. 3d 5, 8 (D.D.C. 2018) (internal quotation
marks omitted). Accordingly, these facts are drawn solely from petitioner-plaintiff’s Petition-
Complaint and supplemental declaration.

3
him “concluded that I.M. was being paid by” an American farm, and “then determined I.M. to be

inadmissible.” Pet. ¶ 31. The CBP officer ordered I.M.’s removal, barred him from reentry, and

notified him that his visa would be cancelled. Pet. ¶ 33.

After this occurred, I.M. “expressed his fear of return to Pet. ¶ 35, because

there was an and “he had twice received death threats” based on his

with the , Pet. ¶ 34. On November 6, 2020, a U.S.

Citizenship and Immigration Services (USCIS) asylum officer found I.M. “credible” but

nonetheless found “that he did not demonstrate a significant possibility of establishing eligibility

for asylum.” Pet. ¶ 35; I.M.’s Suppl. Decl. ¶ 5, Dkt. 26. An immigration judge affirmed this

decision on November 19. I.M.’s Suppl. Decl. ¶ 6. That evening, I.M. received an incomplete

and unsigned expedited removal order. Id. ¶ 7. After requesting a completed and signed order of

removal to Immigration and Customs Enforcement (ICE), he was notified that CBP would return

his paperwork and serve the form on him at the airport upon his departure. Id. ¶ 9–10. An

unknown CBP agent also revoked his visa sometime between October 29 and November 27,

2020. See Pet. ¶¶ 28–38. On November 27, I.M. was placed on a plane and returned to

Pet. ¶ 39.

C. Procedural History

On December 8, 2020, after his return to I.M. filed a joint petition for writ of

habeas corpus and complaint. See Dkt. 3. First, he seeks a writ of habeas corpus under 8 U.S.C.

§ 1252(e)(2) on the grounds that the CBP officers were not lawfully appointed and thus were not

vested with legal authority to determine his admissibility and issue an order of removal.

Pet. ¶ 95; see Pet. ¶¶ 90–95. He therefore requests that the Court (1) “[d]eclare that the

determination of inadmissibility and order of removal purportedly issued against I.M. violated

4
the Appointments Clause;” (2) “[d]eclare the determination of inadmissibility and order of

removal purportedly issued against I.M. invalid and void ab initio;” and (3) “order Respondents

to place I.M. into removal proceedings before a properly appointed Immigration Judge,” “[i]f

Respondents choose to seek I.M.’s removal upon his return.” Pet. at 24. Second, I.M. brings a

claim under the Administrative Procedure Act (APA), seeking to have his visa revocation held

unlawful and set aside as “not in accordance with law” and “in excess of statutory authority”

under the APA. Pet. ¶¶ 98–99; see 5 U.S.C. § 706(2)(A), (C). He further requests this Court to

“[o]rder Respondents to reinstate [his] visa.” Pet. at 24.

Before the Court is the respondents-defendants’ motion to dismiss for lack of subject-

matter jurisdiction on three separate grounds. The government argues that (1) 8 U.S.C.

§ 1252(e)(3) precludes this systemic challenge, see Resp’ts’-Defs.’ Mem. in Supp. of Mot. to

Dismiss at 9–11, Dkt. 23; (2) petitioner is not in custody and thus his claims are not cognizable

in a habeas action, see id. at 11–14; and (3) 8 U.S.C. § 1252(a) removes this Court’s jurisdiction

under 28 U.S.C. § 1331, see id. at 14–22.

II. LEGAL STANDARD

Under Rule 12(b)(1), a party may move to dismiss an action or claim when the court

lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for dismissal under Rule

12(b)(1) “presents a threshold challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d

902, 906 (D.C. Cir. 1987). “Federal courts are courts of limited jurisdiction,” Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and it is “presumed that a cause lies outside

this limited jurisdiction,” id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799)).

Thus, to survive a Rule 12(b)(1) motion, a plaintiff must demonstrate that the court has

jurisdiction by a preponderance of the evidence. Moran v. U.S. Capitol Police Bd., 820 F. Supp.

5
2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). A court

that lacks jurisdiction must dismiss the action. Fed. R. Civ. P. 12(b)(1), (h)(3).

III. ANALYSIS

I.M. supplies two jurisdictional hooks to support his joint complaint and petition for a

writ of habeas corpus. He brings his complaint for APA relief under the federal question statute,

28 U.S.C. § 1331, see Pet. ¶ 10, and his petition for a writ of habeas corpus under 28 U.S.C.

§ 1331 and 8 U.S.C. § 1252(e)(2)(B), see Pet. ¶¶ 8–9. The Court will address each in turn.

A. Federal Question Jurisdiction Is Not Available as to I.M.’s APA Claim

I.M. seeks to have his visa revocation, which occurred along with his order of removal

under 8 U.S.C. § 1225(b)(1), set aside as not in accordance with law and in excess of statutory

authority, in violation of the APA, 5 U.S.C. § 706(2)(A), (C). See Pet’r’s Opp’n to

Resp’ts/Defs.’ Mot. to Dismiss at 23, Dkt. 25; Pet. ¶¶ 37–38. As noted above, the INA—the

statute that governs judicial review of orders of removal—provides that certain matters are not

subject to judicial review, including challenges related to an expedited order of removal pursuant

to 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(2)(A)(i). Because I.M.’s APA claim relates to

his order of removal, this Court lacks jurisdiction under 28 U.S.C. § 1331 to hear the claim.

The Court begins, as always, with the text of the relevant statute. Ross v. Blake, 136 S.

Ct. 1850, 1856 (2016). Section 1252(a)(2)(A) provides in relevant part:

Notwithstanding any other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus provision, and sections 1361
and 1651 of such title, no court shall have jurisdiction to review—
(i) except as provided in subsection (e), any individual determination or to
entertain any other cause or claim arising from or relating to the
implementation or operation of an order of removal pursuant to section
1225(b)(1) of this title,
(ii) except as provided in subsection (e), a decision by the Attorney General to
invoke the provisions of such section,

6
 (iii) the application of such section to individual aliens, including the
determination made under section 1225(b)(1)(B) of this title, or
(iv) except as provided in subsection (e), procedures and policies adopted by the
Attorney General to implement the provisions of section 1225(b)(1) of this
title.

8 U.S.C. § 1252(a)(2)(A) (emphasis added). This statute “clearly evince[s] Congress’ intent to

narrowly circumscribe judicial review of issues relating to expedited removal orders.” Castro v.

U.S. Dep’t of Homeland Sec., 835 F.3d 422, 431 (3d Cir. 2016). The first clause—the

notwithstanding clause—forecloses judicial review under any other jurisdictional grant of “an

order of removal pursuant to section 1225(b)(1),” “except as provided in subsection (e)” of

§ 1252. 8 U.S.C. § 1252(a)(2)(A); see also Patchak v. Zinke, 138 S. Ct. 897, 905 (2018)

(plurality opinion) (explaining that the “[n]otwithstanding any other provision of law” clause of

the jurisdiction-stripping provision of the Gun Lake Trust Land Reaffirmation Act precluded any

federal question jurisdiction under § 1331). “Thus, the statute makes abundantly clear that

whatever jurisdiction courts have to review issues relating to expedited removal orders arises

under § 1252(e).” Castro, 835 F.3d at 426–27.

This Court lacks jurisdiction to review I.M.’s APA claim relating to his visa revocation

because it is a “cause or claim arising from or relating to the implementation or operation of an

order of removal.” 8 U.S.C. § 1252(a)(2)(A)(i). As this Court has explained, § 1252(a)(2)(A)

“gives the government virtually unreviewable authority to decide whether and when to

implement the petitioners’ removal orders, but the Court retains jurisdiction to hear claims

challenging the constitutionality of the manner in which the government physically carries out

the removals during the deportation process.” D.A.M. v. Barr, 474 F. Supp. 3d 45, 59 (D.D.C.

2020). This stems from the Supreme Court’s recent ruling in Jennings v. Rodriguez, 138 S. Ct.

830 (2018), which interpreted “arising from” in a different subsection of the same statute. See

id. at 839–41 (plurality opinion) (discussing 8 U.S.C. § 1252(b)(9)). This “capacious phrase[],”

7
id. at 840, is not boundless but rather withholds jurisdiction for review of executive action

related to (1) “review of an order of removal”; (2) “the decision to detain . . . in the first place or

to seek removal”; and (3) “any part of the process by which . . . removability will be

determined,” id. at 841.

Here, I.M.’s visa revocation occurred during the same time period that his removal was

being considered, see Pet. ¶¶ 28–38, and it was revoked by one of the same officers who ordered

his removal, see Pet. ¶ 38. His visa revocation is thus closer to the “fact of detention” than the

“circumstances that ar[o]se during detention,” D.A.M., 474 F. Supp. 3d at 59, and is the kind of

“executive[] discretionary decision[] to implement or execute a removal order” contemplated in

D.A.M., id.; see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999)

(explaining that the jurisdiction-removing provisions of § 1252 “[we]re aimed at protecting the

Executive’s discretion from the courts”); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

(“[W]e have recognized that judicial deference to the Executive Branch is especially appropriate

in the immigration context where officials ‘exercise especially sensitive political functions that

implicate questions of foreign relations.’” (quoting INS v. Abudu, 485 U.S. 94, 110 (1988))).

I.M.’s argument—that the revocation was unlawful because no regulation allowed it

without a valid order of removal, see Pet’r’s Opp’n at 25—is irrelevant to resolving the

jurisdictional question. And even if I.M.’s Appointment Clause argument is correct—which the

Court does not address here—his visa revocation was nonetheless sufficiently bound up in his

removal process that it falls within the ambit of the jurisdiction strip of 8 U.S.C.

§ 1252(a)(2)(A)(i). Because I.M.’s visa revocation was a “discretionary decision[]” as

contemplated in D.A.M., 474 F. Supp. 3d at 59, related to a purported removal order,

8
§ 1252(a)(2)(A)(i) precludes this Court from exercising general federal question jurisdiction

under § 1331.

B. Petitioner Does Not Have Standing for Habeas Corpus Relief

I.M.’s petition for a writ of habeas corpus requests that the Court (1) “[d]eclare that the

determination of inadmissibility and order of removal purportedly issued against I.M. violated

the Appointments Clause”; (2) “[d]eclare the determination of inadmissibility and order of

removal purportedly against I.M. invalid and void ab initio”; and (3) “order Respondents to place

I.M. into removal proceedings before a properly appointed Immigration Judge” should the

government “choose to seek I.M.’s removal upon his return.” Pet. at 24. But the writ of habeas

corpus serves to test the legality of detention. And because I.M. is not in custody, the writ

cannot grant him any relief. He thus lacks standing to file a petition, and the Court lacks

jurisdiction to adjudicate his petition.

1. Custody in habeas goes to the petitioner’s standing

Standing’s “irreducible constitutional minimum” contains three requirements. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) (quoting Defs. of Wildlife, 504 U.S. at 560).

First, a plaintiff must plead an injury that is “concrete, particularized, and actual or

imminent.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto v.

Geertson Seed Farms, 561 U.S. 139, 149 (2010)). “Second, there must be causation—a fairly

traceable connection between the plaintiff’s injury and the complained-of conduct of the

defendant.” Steel Co., 523 U.S. at 103. “And third, there must be redressability—a likelihood

that the requested relief will redress the alleged injury.” Id. “This triad of injury in fact,

causation, and redressability constitutes the core of Article III’s case-or-controversy requirement,

9
and the party invoking federal jurisdiction bears the burden of establishing its existence.” Id. at

103–04 (footnote omitted).

Relevant here is redressability, which “examines whether the relief sought, assuming that

the court chooses to grant it, will likely alleviate the particularized injury alleged by the

plaintiff.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663–64 (D.C. Cir. 1996) (footnote

omitted). The obligation is on the plaintiff to show that the “injury will be redressed by a

favorable decision.” US Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000)

(internal quotation marks omitted) (quoting Defs. of Wildlife, 504 U.S. at 561). Whether there is

a custody requirement for habeas relief under 8 U.S.C. § 1252(e)(2) goes to redressability

because the function of the writ of habeas corpus is to release someone from custody.

As the D.C. Circuit has explained, a “petitioner must demonstrate that he was in custody

at the time he filed the petition” for there to be a live case or controversy. Qassim v. Bush, 466

F.3d 1073, 1078 (D.C. Cir. 2006) (per curiam) (internal quotation marks omitted). Although that

case dealt with a change in custodial status between initiation of the action and the appeal, and

thus spoke in terms of mootness, the same logic applies under a standing analysis. Cf. Arizonans

for Off. English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (“Mootness has been described as ‘the

doctrine of standing set in a time frame: The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue throughout its existence (mootness).’”

(quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980))). Indeed, this Court has

already found that the custody requirement is jurisdictional. See Sadhvani v. Chertoff, 460 F.

Supp. 2d 114, 118 (D.D.C. 2006). Because custody is required for habeas relief and I.M. is not

10
currently in custody, he lacks standing to file a habeas petition. 2 Cf. Qassim, 466 F.3d at 1078

(explaining “the independent requirement that the petition must involve a live case or

controversy at all stages of review”).

2. Custody is required for relief in the nature of habeas corpus

The provision for judicial review in § 1252(e)(2) limits “[j]udicial review of orders under

section 1225(b)(1)” to habeas corpus proceedings. See 8 U.S.C. § 1252(e)(1)–(2). And habeas

review is “limited to determinations of—(A) whether the petitioner is an alien, (B) whether the

petitioner was ordered removed under such section, and (C) whether the petitioner can prove by

a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent

residence, has been admitted as a refugee under section 1157 of this title, or has been granted

asylum under section 1158 of this title, such status not having been terminated, and is entitled to

such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of

this title.” Id. § 1252(e)(2). Section 1252(e) also limits relief to a hearing before an immigration

judge. Id. § 1252(e)(4). And only after the hearing before an immigration judge may an alien

“obtain judicial review of any resulting final order of removal pursuant to subsection (a)(1).” Id.

By making “habeas corpus . . . the sole remedy” for judicial review of exclusion orders,

“Congress ensured that only aliens in custody could challenge exclusion orders.” Saavedra

2
The fact that 8 U.S.C. § 1252(e)(4) prohibits the court from ordering any “remedy or relief
other than to require that the petitioner be provided a hearing” before an immigration judge, see
Pet’r’s Opp’n at 16, does not alter the fact that release from custody is the ultimate remedy
available. Section 1252(e)(4) merely provides that any such hearing must occur before an
immigration judge in the United States. Although the government has suggested in its briefing
that I.M. might have standing to request a hearing before an immigration judge, see Resp’ts’
Mem. at 22–26, the Court disagrees. The sole purpose of any hearing before an immigration
judge would be to determine whether I.M. is entitled to a hearing before a district court judge,
and if he is entitled to such a hearing, the ultimate purpose of that hearing would be to determine
whether I.M. should be released from custody. As explained infra section III.B.2, I.M. is not
currently in custody, and thus habeas relief cannot be granted.

11
Bruno v. Albright, 197 F.3d 1153, 1161 (D.C. Cir. 1999) (emphasis added). “And where

Congress borrows terms of art in which are accumulated the legal tradition and meaning of

centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to

each borrowed word in the body of learning from which it was taken and the meaning its use will

convey to the judicial mind unless otherwise instructed.” Morissette v. United States, 342 U.S.

246, 250 (1952); see also Antonin Scalia & Bryan A. Garner, Reading Law 320 (2012) (“A

statute that uses a common-law term, without defining it, adopts its common-meaning.”). Given

its ancient lineage in Anglo-American legal history, there can be no doubt that “habeas corpus

proceedings” is such a common-law term. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484

(1973) (documenting briefly “the common-law history of the writ”); Ex parte Bollman, 8 U.S. (4

Cranch) 75, 80 (1807) (explaining that the meaning of the term “habeas corpus” is “[b]y . . .

reference to the common law”). As the Supreme Court has explained, “the essence of habeas

corpus is an attack by a person in custody upon the legality of that custody, and . . . the

traditional function of the writ is to secure release from illegal custody.” Rodriguez, 411 U.S. at

484; see also Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1969 (2020)

(“Blackstone wrote that habeas was a means to ‘remov[e] the injury of unjust and illegal

confinement.’” (quoting 3 William Blackstone, Commentaries on the Laws of England *137

(emphasis deleted))). Although there have been some changes from the early nineteenth century

to the present in the scope of the writ, “in each case [the petitioner’s] grievance is that he is being

unlawfully subjected to physical restraint.” Rodriguez, 411 U.S. at 486. This custody

requirement is also codified in statute. See 28 U.S.C. § 2241(c). To meet the custody

“requirement, a petitioner must have been in custody at the time the habeas petition was filed.”

12
Banks v. Gonzales, 496 F. Supp. 2d 146, 149 (D.D.C. 2007) (citing Neville v. Cavanagh, 611 F.

2d 673, 675 (7th Cir. 1979)).

The petitioner’s arguments to the contrary are not availing. First, he misreads the

notwithstanding clause in 8 U.S.C. § 1252(a)(2)(A). See Pet’r’s Opp’n at 10. That clause deals

only with jurisdiction and does not speak to the nature of the proceedings for review pursuant to

section 1252(e)(2). See 8 U.S.C. § 1252(a)(2)(A) (explaining what courts “shall have [no]

jurisdiction to review”). As such, the Court is not “prohibit[ed],” Pet’r’s Opp’n at 10, from

discerning general habeas principles from 28 U.S.C. § 2241.

Second, the fact that Congress removed the “in custody” language from § 1252(e)(2) and

instead used the phrase “habeas corpus proceedings” does not mean that the Court can ignore the

deep-rooted principles associated with that common-law term. See Sekhar v. United States, 570

U.S. 729, 733 (2013) (“[I]f a word is obviously transplanted from another legal source, whether

the common law or other legislation, it brings the old soil with it.” (quoting Felix Frankfurter,

Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947))); see also

NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981) (“Where Congress uses terms that have

accumulated settled meaning under either equity or the common law, a court must infer, unless

the statute otherwise dictates, that Congress means to incorporate the established meaning of

these terms.”). The phrase “habeas corpus proceeding” is such an “obviously transplanted” term.

While it is true that the Supreme Court has “‘consistently applied’ the presumption of

reviewability” of administrative action, Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020)

(quoting Kucana v. Holder, 558 U.S. 233, 251 (2010)), a presumption “may be overcome by

specific language,” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). Here the specific

language is the use of “habeas corpus proceedings” in 8 U.S.C. § 1252(e)(2). And § 1252 as a

13
whole tightly cabins judicial review. See M.M.V. v. Garland, 1 F.4th 1100, 1107 (D.C. Cir.

2021) (explaining that the presumption had been overcome in the context of § 1252).3

3. Petitioner is not in any kind of custody

Lastly, this Court turns to the question of whether I.M. is in custody. The burden to

establish custody falls on I.M. Gul v. Obama, 652 F.3d 12, 21 (D.C. Cir. 2011). At a minimum,

he must show that he is in constructive custody such that his liberty is restrained. See, e.g., In re

Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay

(Guantanamo Petitioners), 700 F. Supp. 2d 119, 127–37 (D.D.C. 2010) (rejecting four collateral

consequences as insufficient to consider petitioners released to foreign countries to be “in

custody” for habeas purposes); Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 46–48 (D.D.C. 2004)

(petitioner who alleged being in a Saudi prison “at the behest and ongoing supervision of the

United States” satisfied the requirement of constructive custody, id. at 30). “Although the word

‘custody’ is elastic, all definitions of it incorporate some concept of ongoing control, restraint, or

responsibility by the custodian.” Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir. 2003)

(citing Black’s Law Dictionary 384 (6th ed. 1990)).

The “collateral consequences doctrine” allows for review in habeas corpus even after

release from custody so long as there are concrete consequences of the underlying conviction.

Gul, 652 F.3d at 15–17. But “[t]he Supreme Court has cautioned against extension of the

presumption of collateral consequences.” Id. at 16 (citing Spencer v. Kemna, 523 U.S. 1 (1998)).

3
The cases the petitioner cites in support of his argument that custody is not required for habeas
corpus review for aliens, see Pet’r’s Opp’n at 12, are not instructive because these cases either
(1) “[a]ssum[ed], without deciding, that there [wa]s no custody requirement under § 1252(e)(2),”
Smith v. U.S. Customs & Border Prot., 741 F.3d 1016, 1020 (9th Cir. 2014), in violation of Steel
Co., see 523 U.S. at 91; (2) did not address the custody issue, see Dugdale v. U.S. Customs &
Border Prot., 88 F. Supp. 3d 1 (D.D.C. 2015); or (3) were vacated as moot, see Li v. Eddy, 259
F.3d 1132 (9th Cir. 2001), vacated as moot by 324 F.3d 1109 (9th Cir. 2003).

14
And the D.C. Circuit has found that detainees transferred to foreign countries were not burdened

by sufficiently concrete collateral consequences so as to be in custody as needed to present a

justiciable habeas petition. See id. at 14, 17–21. As this Court has already explained in the

context of an alien who had been removed at the time of filing his petition, “[t]he controlling

limit in this case is the consistent holding of federal courts that an alien who has already been

removed from the United States and who files a habeas petition after his removal cannot satisfy

the custody requirement.” Sadhvani, 460 F. Supp. 2d at 119 (collecting cases from the Third,

Seventh, Ninth, and Eleventh Circuits); see also Guantanamo Petitioners, 700 F. Supp. 2d at

127–37 (considering and rejecting as collateral consequences (1) conditions imposed by foreign

governments; (2) stigma; (3) a prohibition of travel to the United States; and (4) an inability to

bring a damages action).

The Seventh Circuit has addressed circumstances nearly identical to those here. In

Samirah, that court held that a petitioner in a foreign country who filed a petition for a writ of

habeas corpus was not in constructive custody because “the United States [wa]s exercising no

ongoing control, restraint or responsibility over him.” 335 F.3d at 549. The petitioner was, “in

some sense, restrained insofar as he c[ould] not enter the United States. But that restraint, such

as it is, only put[] him on par with the billions of other non-U.S. citizens around the globe who

may not come to the United States without proper documentation.” Id. at 549–50. As the court

explained, to consider Samirah, “a Jordanian citizen (apparently) living in Jordan,” who was

“free to travel the world” to be “in federal custody” “stretche[d] the word ‘custody’ beyond what

the English language or logic w[ould] bear” and was unsupported by legal authority. Id. at 551.

This Court has found the same. In El-Hadad v. United States, 377 F. Supp. 2d 42

(D.D.C. 2005), for example, this Court recognized that “habeas corpus relief [wa]s unavailable to

15
aliens living freely abroad,” id. at 48, and therefore rejected the petitioner’s attempt to challenge

his visa denial from Egypt, see id. at 44–45. The El-Hadad Court explained that Jones v.

Cunningham, 371 U.S. 236 (1963), which expanded the conception of custody, was “only

intended to extend habeas jurisdiction to aliens held at a point of entry into the United States,”

El-Hadad, 377 F. Supp. 2d at 47 (citing Jones, 371 U.S. at 239 n.9). Similarly, in Sadhvani, this

Court concluded that habeas relief was not available to a petitioner who “readily acknowledge[d]

that he ha[d] been removed from the United States and that he” was then “moving in and out of

Togo stealthily to avoid the Togolese authorities.” 460 F. Supp. 2d at 119 (internal quotation

marks omitted). “The controlling limit” in Sadhvani was “the consistent holding of federal

courts that an alien who has already been removed from the United States and who files a habeas

petition after his removal cannot satisfy the custody requirement.”4 Id. (citing Kumarasamy v.

Att’y Gen. of U.S., 453 F.3d 169, 173 (3d Cir. 2006); Patel v. U.S. Att’y Gen., 334 F.3d 1259,

1263 (11th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir. 2001)).

That is the case here. I.M. filed his habeas petition in December 2020, after he had been

removed to in November 2020. Like the petitioners in El-Hadad and Sadhvani, he

cannot satisfy the custody requirement. Therefore, his habeas petition is barred.

4
It is true that in some cases in which aliens have filed habeas petitions before their removal,
courts have found “the bar on readmission” to be “a legally cognizable collateral consequence
that preserves a live controversy even after deportation of the petitioner.” Zalawadia v. Ashcroft,
371 F.3d 292, 297 (5th Cir. 2004) (collecting cases from the First, Third, Fourth, and Ninth
Circuits). But the instant case is distinguishable from those cases because I.M. did not file his
petition until after he was removed to

16
 CONCLUSION

For the above stated reasons, the respondents-defendants’ Motion to Dismiss, Dkt. 23, is

granted. A separate order consistent with this decision accompanies this memorandum opinion.

________________________
DABNEY L. FRIEDRICH
United States District Judge
January 21, 2022

17