Veltmann-Barragan v. Holder

Aliens who are removable, but not yet subject to a removal order, are no longer “in custody” for the purposes of 28 U.S.C. § 2241 and therefore lack jurisdiction for a habeas corpus petition.

Irma Yoland Veltmann-Barragan (“Veltmann”) became a lawful permanent resident of the United States in 1982; however, in 1999 she reentered the United States under a false name and lied to the government about her identity. She was subsequently removed and then reentered the United States under her true identity with her green card. In 2005 she applied for naturalization; however the government discovered her illegal entry and false statements about the 1999 incident. Her petition for naturalization was denied. No appeal or judicial review was sought. Two years later she filed a habeas petition attacking the 1999 removal order. The district court held it had jurisdiction, but denied the petition on the merits. The Ninth Circuit held there was no jurisdiction for the habeas petition since under 28 U.S.C. § 2241, a habeas petition requires that the person be “in custody.” Veltmann was not in custody for the purposes for § 2241, therefore the district court lacked jurisdiction to consider her habeas petition. VACATED and DISMISSED.