Smith v. U.S. Customs & Border Protection

When petitioner has been removed under the expedited removal statute, §1252(e)(2) does not apply, and when the petitioner is not in custody at the time of filing for a writ of habeas corpus, the district court does not have jurisdiction.

John Smith filed a petition for a writ of habeas corpus a year after he was placed in expedited removal proceedings because he was classified as an intended immigrant lacking permitting documentation, therefore inadmissible. The Ninth Circuit held that the district court did not have subject matter jurisdiction under 28 U.S.C.. § 2241 to consider Smith’s claim because the petitioner would have to be in custody at the time of filing to have jurisdiction, and Smith was free in his country. The panel also held that even though the court did have jurisdiction to consider the claim under 8 U.S.C. §1252(e)(2) Smith was not entitled to a hearing before an immigration judge because §1252(e)(2) only permits review of whether a petitioner is an alien, whether petitioner was ordered removed under the expedited removal statute, and whether petitioner can prove he or she is lawfully admitted. Smith was in fact removed under the expedited removal statute so §1252(e)(2) review is not available to him. Petition DENIED.