Case: 11-20366 Document: 00511686497 Page: 1 Date Filed: 12/06/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 6, 2011
No. 11-20366
Summary Calendar Lyle W. Cayce
Clerk
SIXTOS MERLAN,
Petitioner-Appellant
v.
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-3648
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Sixtos Merlan, a native and citizen of Mexico, appeals the district court’s
dismissal for lack of subject matter jurisdiction of his 28 U.S.C. § 2241 habeas
petition challenging the removal order resulting in his deportation to Mexico.
Merlan argues that he is “in custody” within the meaning of § 2241 because he
is being restrained from returning to the United States despite his wrongful
removal. The respondent argues that Merlan is not “in custody” for habeas
jurisdictional purposes and further that the REAL ID Act precludes the district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-20366 Document: 00511686497 Page: 2 Date Filed: 12/06/2011
No. 11-20366
court from having jurisdiction to address a habeas petition challenging a final
removal order.
Review of an order granting a dismissal under Federal Rule of Civil
Procedure 12(b)(1) is de novo. Taylor v. Acxiom Corp., 612 F.3d 325, 331 (5th
Cir. 2010). Dismissal is mandatory if the district court lacks subject matter
jurisdiction. FED. R. CIV. P. 12(h)(3).
Although an applicant need not be in actual physical custody to pursue a
habeas action, there must be some type of restraint on the liberty of a person.
Jones v. Cunningham, 371 U.S. 236, 238-40; Zolicoffer v. U.S. Dep’t of Justice,
315 F.3d 538, 540 (5th Cir. 2003). We have not previously determined whether
an alien who has been finally removed from the United States could be
considered “in custody” for habeas purposes. However, several other circuits
have determined that a alien who has been deported pursuant to a final removal
order is not “in custody” for habeas purposes. See Kumarasamy v. Attorney
General, 453 F.3d 169, 173 (3rd Cir. 2006); Patel v. U.S. Attorney General, 334
F.3d 1259, 1263 (11th Cir. 2003); Mirando v. Reno, 238 F.3d 1156, 1159 (9th Cir.
2001). We agree with and adopt the reasoning in those cases.
Because Merlan has failed to show that his deportation was the result of
any extreme circumstances or that he is subject to any restraints in Mexico not
experienced by other non-citizens who lack the documentation to enter the
United States, he has not shown that he is “in custody” within the meaning of
§ 2241. Further, the district court did not have jurisdiction to review the final
removal order pursuant to the provisions of the REAL ID Act. See 8 U.S.C.
§ 1252(a)(5); Rosales v. Bureau of Immigration and Customs Enforcement, 426
F.3d 733, 735 (5th Cir. 2005).
Because the district court lacked jurisdiction in this case, it is not
necessary to address Merlan’s argument that the United States Attorney
General is his “custodian” within the meaning of § 2241.
2
Case: 11-20366 Document: 00511686497 Page: 3 Date Filed: 12/06/2011
No. 11-20366
The district court did not err in dismissing the petition for lack of subject
matter jurisdiction. The judgment is AFFIRMED.
3