Rosales v. Bureau of Immigration and Customs, 04-10630.

Citation426 F.3d 733
Decision Date21 September 2005
Docket NumberNo. 04-10630.,04-10630.
PartiesAdrian ROSALES, Petitioner-Appellant, v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 733

426 F.3d 733
Adrian ROSALES, Petitioner-Appellant,
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent-Appellee.
No. 04-10630.
United States Court of Appeals, Fifth Circuit.
September 21, 2005.

Page 734

Adrian Rosales, Beaumont, TX, pro se.

Mattie Nell Peterson Compton, Fort Worth, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:


Adrian Rosales petitioned for writ of habeas corpus under 28 U.S.C. § 2241 to challenge his final order of deportation on due process grounds. The district court concluded that it lacked jurisdiction because Rosales was not "in custody" under § 2241 and dismissed his suit. We affirmed in an unpublished opinion. Rosales v. Bureau of Immigration and Customs Enforcement, 115 Fed.Appx. 306 (5th Cir.2004) (per curiam). The Supreme Court vacated the opinion after the government conceded in its brief to the Court that Rosales should be considered "in custody" according to the prevailing view in our sister circuits. Rosales v. Bureau of Immigration and Customs Enforcement, ___ U.S. ___, 125 S.Ct. 2541, 162 L.Ed.2d 271 (2005). Reconsidering the case in light of the government's concession, we join the Second, Sixth, Ninth, and Tenth Circuits and hold that an alien who is subject to a final order of deportation, like Rosales, is "in custody" under § 2241. Because Rosales has not established that the immigration judge's alleged due process violation has prejudiced him, however, we deny the petition.1

I. Background

Rosales is a Mexican citizen who became a permanent resident of the United States in 1989. In 2000, he was convicted in Texas state court of aggravated kidnaping and sentenced to 65 years' incarceration. In February 2001, the INS served Rosales with a Notice of Rights and Request for Disposition. The Notice informed Rosales that the INS believed him to be in the country illegally, that he was entitled to a hearing on whether he could remain in the U.S., that he had a right to seek legal representation and to communicate with his consulate, and that he could use a telephone to contact an attorney or the consulate at any time before his departure from the U.S. Rosales signed, initialed, and dated the Notice in the presence of an INS officer. The officer signed a certificate of service reflecting that Rosales had read the Notice.

Page 735

The INS charged Rosales with removability as an aggravated felon under 8 U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) in November 2001, while he was serving time on the Texas conviction. It filed an immigration detainer concerning Rosales with the Texas Department of Criminal Justice in March 2002. At Rosales's immigration hearing in July 2002, the immigration judge ("IJ") advised Rosales of his right to legal representation. Rosales waived that right, said he wished to be removed to Mexico, and elected to proceed with his hearing that day. He conceded the grounds for his removal, that he had been convicted of an aggravated felony. The IJ found Rosales ineligible for relief from removal and ordered him deported.

Rosales appealed to the BIA, arguing that his hearing did not afford him due process because the IJ did not inform him of his right to contact his consulate under the Vienna Convention on Consular Relations, Dec. 24, 1969, art. 36, 21 U.S.T. 77. The BIA dismissed the appeal because it lacked jurisdiction to consider Rosales's constitutional claim. Rosales then filed the present habeas suit.

II. Analysis
A. Rosales Is "In Custody" Under § 2241

An individual may seek habeas relief under § 2241 if he is "in custody" under federal authority or for violation of federal law. 28 U.S.C. § 2241(c). As the Supreme Court recently noted, physical detention (or here, physical detention by federal, rather than state, authority) is no longer required for a petitioner to meet the custody requirement and obtain habeas relief. Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 2719, 159 L.Ed.2d 513 (2004) ("[O]ur understanding of custody has broadened to include restraints short of physical confinement[.]"); see also Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (recognizing that restraints on liberty other than physical confinement may constitute custody for habeas purposes).

At least four circuits have held that a final deportation order subjects an alien to a restraint on liberty sufficient to place the alien "in custody." Simmonds v. INS, 326 F.3d 351, 354 (2d Cir.2003); Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. U.S. Dep't of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995); cf. Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538, 541 (5th Cir.2003) (holding that, where the INS had not ordered the alien deported, an immigration detainer alone did not place him "in custody" under § 2241). We agree. The federal government has placed a significant restraint on Rosales's liberty by issuing a final order of deportation against him. It must detain him once his removal period begins at his release from state prison. 8 U.S.C. § 1231(a)(1)(B)(iii), (a)(2). He is therefore "in custody" under § 2241. Simmonds, 326 F.3d at 354-55; cf. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (holding that a prisoner under the authority of State A may file an immediate habeas petition to attack future confinement by State B where State B has filed a detainer against the prisoner with State A). However, § 2241 is no longer the appropriate avenue for Rosales's challenge.

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