12-2685-pr
Portillo v. Bharara



                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York the 3rd
day of June, two thousand thirteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
_____________________________________________________

ALFONSO PORTILLO,
                              Petitioner-Appellant,

                        -v-                                                12-2685-pr

PREET BHARARA, UNITED STATES ATTORNEY FOR
THE SOUTHERN DISTRICT OF NEW YORK,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:      Andrew J. Frisch (Jeremy B. Sporn, on the brief), The Law Offices
                              of Andrew J. Frisch, New York, N.Y., Glenn W. MacTaggart,
                              Prichard Hawkins McFarland & Young LLP, San Antonio, T.X.

Appearing for Appellee:       Rachel P. Kovner (Jennifer G. Rodgers, on the brief), Assistant
                              United States Attorneys, for Preet Bharara, United States Attorney
                              for the Southern District of New York, New York, N.Y.
        Appeal from the United States District Court for the Southern District of New York
(Patterson, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        Petitioner-Appellant, Alfonso Portillo appeals from the district court’s order entered on
May 11, 2012 dismissing Portillo’s writ of habeas corpus petition pursuant to 28 U.S.C. § 2241
for lack of jurisdiction. In its order, the district court found Petitioner, a Guatemalan citizen, had
failed to establish that Respondent-Appellee, Preet Bharara the United States Attorney for the
Southern District had constructive custody over Portillo. We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.

        This Court reviews rulings on jurisdictional issues de novo. See Lopez v. Terrell, 654
F.3d 176, 180 (2d Cir. 2011). The federal district courts, as courts of limited jurisdiction,
possess only such authority as is conferred by an act of Congress. See Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 2241, a federal court is
authorized to grant a habeas petition where a prisoner has established that he is “in custody
under or by color of the authority of the United States” or “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1), (3).

        That the petitioner be “in custody” is a “jurisdictional prerequisite” for the granting of a
habeas petition, Simmonds v. INS, 326 F.3d 351, 354 (2d Cir. 2003). However, habeas
jurisdiction is not limited “to situations in which the applicant is in actual physical custody.” See
Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 295 (1984). Instead, constructive custody
may be sufficient. See Jones v. Cunningham, 371 U.S. 236, 239-40 (1963). To establish
constructive custody, a petitioner must show that his movements are “restrained by authority of
the United States.” Shaughnessey v. United States ex. rel. Mezei, 345 U.S. 206, 213 (1953).
This requires more than a showing that the foreign country has acted favorably on an extradition
request from the United States pursuant to its own domestic laws. Cf. Kiyemba v. Obama, 561
F.3d 509, 515 n.7 (D.C. Cir. 2009) (observing that a foreign sovereign cannot be viewed as an
agent of the United States merely because we “engage[] in dialogue to ascertain or establish
what measures the receiving government intends to take pursuant to its own domestic laws”
while making “independent determinations” to ensure detainee will not pose continued threat to
United States) (citation and quotation marks omitted), cert denied, 130 S. Ct. 1880 (2010).

        In its opinion, the district court dismissed the petition for lack of jurisdiction finding
Petitioner was not in constructive custody of the United States. On appeal, Petitioner contends
that he established constructive custody because Guatemalan authorities are acting on behalf of
and at the direction of the United States. To establish this claim, Petitioner cites to statements
allegedly made in 2008 by the United States Ambassador to Guatemala representing that he
would “not rest” until Portillo was imprisoned. Portillo also quotes from a leaked diplomatic
cable in which the Ambassador called Portillo’s arrest in Guatemala a “major victory” for the
United States. Further, Portillo analogizes his situation to that of the American citizen whose
detention in Saudi Arabia prompted jurisdictional discovery in Abu Ali v. Ashcroft, 350 F. Supp.

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2d 28, 67-68 (D.D.C. 2004) (stating that jurisdictional discovery could establish constructive
custody by enquiring into several factors including whether “(i) Abu Ali was detained at the
behest of United States officials; (ii) his ongoing detention is at the direction of the United States
enlisting a foreign state as an agent or intermediary who is indifferent to the detention of the
prisoner; (iii) he is being detained in the foreign state to deny him an opportunity to assert his
rights in a United States tribunal; and (iv) he would be released upon nothing more than a
request by the United States”).

        Neither the proffered statements nor the cited cases plausibly support Portillo’s claim that
he is in the constructive custody of the United States while detained in Guatemala awaiting
extradition. Unlike the petitioner in Abu Ali, Portillo is a Guatemalan citizen and was arrested
by Guatemalan authorities in Guatemala where he continues to be detained. Although Portillo’s
alien status and detention outside the United States do not necessarily preclude a finding of
constructive custody, see Rasul v. Bush, 542 U.S. 466 (2004), Petitioner did not present clear
evidence of substantial United States control over his detention. Rather, Guatemalan courts have
reviewed and continually upheld Petitioner’s extradition and Guatemalan authorities have not yet
allowed him to be extradited to the United States, actions that all bespeak Guatemalan control,
rather than the constructive custody of the United States. Indeed, insofar as Portillo faults the
United States for not disclosing in its extradition request that it does not view money laundering
as an extraditable offense under the applicable treaty—a dubious assertion in light of the
governing documents’ plain language—any such omission is immaterial in light of Portillo’s
concession at oral argument that Guatemalan law calls for officials to review extradition requests
only for facial validity. Cf. Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000) (describing
our own “narrow” review of extradition orders issued by United States).1

        Moreover, the United States is not keeping Portillo in Guatemala to “avoid constitutional
scrutiny by American courts”– in fact extradition is an attempt to have the opposite effect. Abu
Ali, 350 F. Supp. 2d at 67. Therefore this case is also distinguishable from situations where
jurisdiction over a habeas petition arises to protect the fundamental right of a citizen to be free
from involuntary, indefinite confinement by the government without due process. See Hamdi v.
Rumsfeld, 542 U.S. 507 (2004). Instead, Portillo may obtain process both currently in the courts
of Guatemala and subsequently in the courts of the United States if he is extradited. Thus, where
Petitioner is a foreign citizen in a foreign state, cf. Jones, 371 U.S. at 239 (stating jurisdiction is
available to aliens seeking entry into the United States); see also Braden v. 30th Judicial Circuit
Ct. of Ky, 410 U.S. 484, 498 (1973) (stating American citizens confined overseas may not face a
jurisdictional obstacle) and where Petitioner fails to present sufficient evidence of United States
involvement in his arrest and subsequent imprisonment, cf. Abu Ali, 350 F. Supp. 2d at 67-68, we
conclude the district court correctly found no constructive custody.


       1
          Portillo says that the United States did not have the authority to seek his extradition
under the relevant treaties. The United States counters that the interpretation of our extradition
treaty is a political question over which we have no jurisdiction. We are inclined to doubt the
validity of both arguments. But for the reasons stated in the text, we do not believe that we need
to decide those issues in order to rule on whether habeas currently lies.

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      We have considered Appellant’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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