Flores v. U.S. Immigration and Naturalization Service, 74-1769
| Decision Date | 17 October 1975 |
| Docket Number | No. 74-1769,74-1769 |
| Citation | 524 F.2d 627 |
| Parties | In the Matter of the Petition of Jesus FLORES and Maria Gamboa Flores, Petitioners-Appellees, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before TRASK and CHOY, Circuit Judges, and VON DER HEYDT, * District Judge.
This is an appeal from the district court's judgment and order granting appellees' petition for habeas corpus relief.
The appellees, Jesus Flores and Maria Gamboa Flores, are natives and citizens of Mexico who were illegally smuggled into the United States. They have been found deportable as they were excludable under 8 U.S.C. § 1251(a)(1) at the time of entry since they did not possess immigrant visas as required by 8 U.S.C. § 1182(a)(10). Deportation orders were entered against appellees on May 3, 1973. However, the deportation orders were not effective if appellees voluntarily departed from this country by August 3, 1973. The Flores subsequently applied for extension of their voluntary departure date until such time as their pending visa applications could be acted upon. Their applications were denied without specific reasons except for the insertion of the words, "Children 4 Illegal" at the bottom of the application. However, appellees were granted an extension of the voluntary departure date until August 12, 1973. The habeas corpus action, now under review, was instituted on August 3. The district court granted the relief requested on September 28, 1973, finding that the District Director of the Immigration and Naturalization Service abused his discretion in denying the applications for an extension of the voluntary departure date.
The INS raises three principal contentions in this appeal.
The service first contends that insufficient "custody" exists to invoke jurisdiction under 28 U.S.C. § 2241. It is well settled that custody required for jurisdiction pursuant to 28 U.S.C. § 2241 does not necessarily mean physical custody. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). In Bustos-Ovalle v. Landon, 225 F.2d 878 (9th Cir. 1955) this court held that the petitioner could not avail himself of judicial relief from an order allowing voluntary departure on the dual grounds of failure to exhaust administrative remedies and lack of sufficient custody to support habeas corpus jurisdiction. In the instant case, however, no contention has been raised concerning failure to exhaust administrative remedies. Additionally, no deportation order was in effect in Bustos-Ovalle. In the present case the appellees are under deportation orders although, admittedly, they will not...
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