                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       October 21, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
GLEN PELLETIER; CARRIE LYNN
PELLETIER; HOBIE MATTHEW
WITT,

             Plaintiffs-Appellants,

v.                                                          No. 14-1078
                                               (D.C. No. 1:11-CV-01377-WJM-CBS)
UNITED STATES OF AMERICA;                                    (D. Colo.)
JOHN LONGSHORE, Field Director,
Immigration and Customs Enforcement,
Denver District; IMMIGRATION AND
CUSTOMS ENFORCEMENT, Denver
District; STEVEN M. BRANCH, Field
Office Director, Salt Lake City Field
Office,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Glen Pelletier, Carrie Lynn Pelletier, and Hobie Matthew Witt appeal the

district court’s judgment against them, entered after the court granted (1) Defendants’

partial motion to dismiss their second amended complaint (“Complaint”) and

(2) Defendants’ subsequent motion for summary judgment. We dismiss Plaintiffs’

appeal to the extent they challenge the district court’s denial of their post-judgment

motion filed under Fed. R. Civ. P. 60(b) because they failed to file a notice appealing

that ruling. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the district

court’s dismissal of Plaintiffs’ application for habeas corpus relief under 28 U.S.C.

§ 2241, and remand for further proceedings on that claim. We otherwise affirm the

district court’s judgment.

I.    Background

      Plaintiffs’ claims relate primarily to Defendants’ failure to issue Mr. Pelletier,

a Canadian citizen, a Form I-94 Arrival Departure Record when he entered the

United States. They claim this failure prevents Mr. Pelletier from establishing that he

was lawfully admitted to the United States, resulting in harm to all three Plaintiffs.

      Mr. Pelletier is married to Ms. Pelletier, and Mr. Witt is her son. Ms. Pelletier

and Mr. Witt are both United States citizens. Plaintiffs asserted in their Complaint

that Mr. Pelletier has been lawfully admitted to the United States several times, most

recently in June 2006. On August 28, 2008, he was detained in the United States by

Immigration and Custom Enforcement agents. The next day he received a Notice to

Appear (“NTA”) on Form I-862, charging him with being an alien present in the


                                          -2-
United States who has not been admitted or paroled. The NTA alleged, inter alia,

that Mr. Pelletier had entered the United States without being admitted on or about

January 2, 1996. Mr. Pelletier was provided with a Record of Deportable Alien on

Form I-213, and a warrant for his arrest was issued on Form I-200. He posted bond

on September 9, 2008, and was released from detention.

      Plaintiffs alleged that Mr. Pelletier appeared at a hearing in Immigration Court

and asked for a record of his most recent entry into the United States. After that

request was denied, he sought disclosure of the same information under the Freedom

of Information Act (“FOIA”). The FOIA response indicated that Mr. Pelletier had

not been issued an I-94 document when he entered the United States. It also

disclosed allegedly false remarks in the reporting system maintained by United States

Customs and Border Protection (“CBP”) concerning his entry into the United States.

Plaintiffs alleged that Defendants relied on these false remarks in preparing the

immigration forms relating to Mr. Pelletier.

      In their Complaint, Plaintiffs first challenged the promulgation and execution

of 8 C.F.R. § 235.1(h) and related policies in CBP’s Inspector’s Field Manual

(“IFM”)1 under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-706.

Section 235.1(h) defines which aliens are issued a Form I-94 Arrival Departure

Record. Plaintiffs also asserted that Defendants had violated their constitutional

1
    The IFM is available at http://shusterman.com/pdf/cbpinspectorsfieldmanual.pdf.



                                         -3-
rights to due process and equal protection. Next, citing Mr. Pelletier’s allegedly

unlawful arrest and detention, Plaintiffs sought a writ of habeas corpus claiming that,

although he had been released from detention, he remained “in custody” pursuant to

his immigration bond. Finally, they sought to “suppress” certain immigration forms

regarding Mr. Pelletier, specifically the NTA, the Record of Deportable Alien, and

the warrant for his arrest, which they claimed contain deliberate and malicious

misrepresentations. Plaintiffs asked for declaratory, injunctive, and equitable relief,

as well as writs of mandamus and habeas corpus.

      The district court granted Defendants’ partial motion to dismiss the Complaint

under Fed. R. Civ. P. 12(b)(1) & (6), dismissing Plaintiffs’ habeas, suppression,

declaratory judgment, and equitable estoppel claims (“Dismissal Order”). After the

parties filed cross motions for summary judgment, the district court granted

Defendants’ motion (“Summary Judgment Order”) and entered a Final Judgment

against Plaintiffs on the remaining claims, including their APA and constitutional

claims. The district court subsequently denied Plaintiffs’ motion to reconsider

seeking relief from the Final Judgment under Fed. R. Civ. P. 60(b)(1).

      On appeal, Plaintiffs challenge the district court’s grant of summary judgment

on their APA and constitutional claims and its dismissal of their suppression and

habeas claims.




                                          -4-
II.   Discussion

      A.     Appellate Jurisdiction

      We initially address the scope of our jurisdiction in this appeal. Appellate

jurisdiction in a civil case depends on the filing of a timely notice of appeal. See

Alva v. Teen Help, 469 F.3d 946, 950 (10th Cir. 2006). The district court entered the

Final Judgment in this case on December 31, 2013. Plaintiffs filed their Rule 60(b)

motion on February 25, 2014. On March 3, 2014, they filed a timely notice

indicating their intent to appeal the Final Judgment, the Dismissal Order, and the

Summary Judgment Order.2 We therefore have jurisdiction to review the Final

Judgment and the preceding orders. See Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d

431, 444 (10th Cir. 1990) (stating “appellate review is limited to final judgments or

parts thereof that are designated in the notice of appeal”).

      Although Plaintiffs had commenced their appeal, the district court retained

jurisdiction to rule on their pending Rule 60(b) motion. See Aldrich Enters., Inc. v.

United States, 938 F.2d 1134, 1143 (10th Cir. 1991). The district court denied the

motion on June 19, 2014, and that order was separately appealable, see Stouffer v.

Reynolds, 168 F.3d 1155, 1172 (10th Cir. 1999), but Plaintiffs did not file a notice of

appeal within 60 days, as required by Fed. R. App. P. 4(a)(1)(B). And their March 3,


2
        Because Plaintiffs’ Rule 60(b) motion was not filed within 28 days of the
Final Judgment, it did not extend the time for filing their notice of appeal. See
Fed. R. App. P. 4(a)(4)(A)(vi). But Plaintiffs’ March 3, 2014, notice of appeal was
still timely as to the district court’s Final Judgment.


                                          -5-
2014, notice appealing the Final Judgment was not sufficient to confer appellate

jurisdiction to review the district court’s later denial of their Rule 60(b) motion. See

Stouffer, 168 F.3d at 1172 (rejecting claim that initial notice of appeal was sufficient

to confer jurisdiction to review denial of Rule 60(b) motion). We therefore lack

jurisdiction to reach Plaintiffs’ claims challenging that post-judgment ruling.

      B.     Grant of Summary Judgment on APA Claim

      Plaintiffs argue that the district court misconstrued 8 C.F.R. § 235.1(h) in

granting summary judgment in Defendants’ favor on their APA claim. But Plaintiffs

raised this contention for the first time in their Rule 60(b) motion, and we do not

have jurisdiction to review the court’s order denying that motion.

      Plaintiffs alleged in their Complaint that 8 C.F.R. § 235.1(h) and the related

IFM policies were promulgated and executed in violation of the APA. Section

235.1(h) provides, in relevant part:

      (h) Form I–94, Arrival Departure Record.

      (1) Unless otherwise exempted, each arriving nonimmigrant who is
      admitted to the United States will be issued a Form I–94 as evidence of
      the terms of admission. . . . Form I–94 is not required by:

      (i) Any nonimmigrant alien described in § 212.1(a) of this chapter and
      22 CFR 41.33 who is admitted as a visitor for business or pleasure or
      admitted to proceed in direct transit through the United States.

8 C.F.R. § 235.1(h)(1)(i) (emphasis added). Section 212.1(a) references “[c]itizens

of Canada or Bermuda, Bahamian nationals or British subjects resident in certain

islands,” and describes the visa and passport requirements for those aliens. 8 C.F.R.


                                          -6-
§ 212.1(a). Section 41.33 addresses Canadian Border Crossing Cards (BCCs).

See 22 C.F.R. § 41.33.

      In its Summary Judgment Order, the district court rejected Plaintiffs’ claim

that Defendants executed § 235.1(h) and the related IFM policies in violation of the

APA. It held that Defendants properly applied the plain meaning of these provisions

to exempt Mr. Pelletier, a Canadian citizen, from the I-94 requirement. The court

also determined that Plaintiffs’ challenge to the promulgation of § 235.1(h) was

barred by the statute of limitations.3 And their challenge to the promulgation of the

IFM policies failed because they are “interpretive” rather than “legislative” rules, and

consequently are not subject to the rulemaking procedures applicable to regulations.

      After entry of the Final Judgment, Plaintiffs contended in their Rule 60(b)

motion that the district court had misconstrued § 235.1(h)(1)(i) by reading the word

“and” in that subsection to mean “or” (hereafter, Plaintiffs’ “and/or” construction

argument). In doing so, they argued, the district court erroneously construed the

regulation as exempting all Canadian citizens from the I-94 requirement. They

maintained that, read correctly, only Canadians who enter the United States with

BCCs are exempted from receiving a Form I-94 under § 235.1(h)(1)(i), because they

are the only aliens referenced both in § 212.1(a) “and” in § 41.33. Thus, Plaintiffs

argued that Defendants misapplied § 235.1(h) by exempting Mr. Pelletier from the



3
      Plaintiffs do not claim any error in this ruling.


                                          -7-
I-94 requirement because he did not enter the United States as a Canadian with a

BCC.4

        In denying Plaintiffs’ Rule 60(b) motion, the district court first rejected their

“and/or” construction argument on the merits. But it also observed that they had not

raised that argument in their summary judgment briefing. The district court held it

could not grant Plaintiffs relief from the Final Judgment under Rule 60(b)(1) based

on an argument that they could have, but failed to raise earlier in the summary

judgment proceedings. See Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577

(10th Cir. 1996).

        Plaintiffs do not indicate in their Opening Brief on appeal, as required by

10th Cir. R. 28.2(C)(2), where they raised their “and/or” construction argument in the

district court or when that court ruled on it. And the record citations they include

in their Reply Brief fail to show that they made the argument in their summary

judgment briefing. We agree with the district court that they raised it for the

first time in their Rule 60(b) motion.5 Because we lack jurisdiction to




4
       Relatedly, Plaintiffs also argued that an IFM policy erroneously construes the
“and” in § 235.1(h)(1)(i) as if it read “or.” They maintained that the IFM provision is
therefore a “legislative” rather than an “interpretive” rule, and that Defendants
violated applicable rulemaking procedures in promulgating it.
5
       We note also the district court’s statement in the Summary Judgment Order
that Plaintiffs had not contested Defendants’ characterization of the IFM policies as
“interpretative.” Aplt. App. at 207.


                                            -8-
review the district court’s denial of that motion, we dismiss this portion of Plaintiffs’

appeal.6

       C.     Grant of Summary Judgment on Constitutional Claims

       Plaintiffs asserted in their Complaint that § 235.1(h) and the related IFM

policies violate the Equal Protection Clause by exempting Canadian citizens from the

I-94 requirement. The district court held this claim could not withstand rational-basis

review. Plaintiffs also alleged that Defendants’ application of these provisions to

Mr. Pelletier violated the Due Process Clause. The court rejected that claim because

Defendants had complied with the plain meaning of the applicable provisions. In

challenging these rulings on appeal, Plaintiffs again argue that the district court

misconstrued § 235.1(h). But we lack jurisdiction to reach this contention of error,

which hinges entirely on their “and/or” construction argument that the district court

rejected in denying their Rule 60(b) motion. We therefore dismiss this portion of

Plaintiffs’ appeal as well.

       Plaintiffs also argued in the district court that they were entitled to summary

judgment on their claim that Mr. Pelletier was arrested without probable cause in
6
       Plaintiffs also argue that, in entering summary judgment on their APA claim,
the district court erred by determining that Defendants complied with a different
regulation: 8 C.F.R. § 103.2(b)(16)(i). But they fail to show that they raised this
issue in their summary judgment briefing or that the district court made any
determination on it in the Summary Judgment Order or otherwise. Moreover,
Plaintiffs’ argument is not sufficiently developed to allow for meaningful review.
See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have
declined to consider arguments that . . . are inadequately presented[] in an appellant’s
opening brief.”). For these reasons, we decline to address this contention.


                                          -9-
violation of the Fourth Amendment. The district court held that they failed to plead

this claim. It observed that Plaintiffs only alleged an unlawful arrest in support of

their application for a writ of habeas corpus. In that claim, they asserted that

Mr. Pelletier’s arrest violated certain statutory and regulatory provisions. See Aplt.

App. at 89. The court therefore denied Plaintiffs’ summary judgment motion with

respect to a Fourth Amendment violation and entered judgment in favor of

Defendants. We affirm the district court’s decision because Plaintiffs’ citations to

the Complaint do not support their assertion that they pled a Fourth Amendment

claim.

         D.    Dismissal of Suppression Claim for Lack of Jurisdiction

         In their Complaint, Plaintiffs sought “suppression” of certain immigration

forms relating to Mr. Pelletier, specifically the NTA, the Record of Deportable Alien,

and the warrant for his arrest (Forms I-862, I-213, and I-200, respectively). They

alleged that these forms were not supported by substantial evidence, are inadmissible,

and are otherwise unlawful. Plaintiffs further asserted that these forms violated

Mr. Pelletier’s due process and equal protection interests in lawfully applying for

adjustment of status based on his marriage to a United States citizen.

         Defendants argued that Plaintiffs’ suppression claim should be dismissed for

lack of jurisdiction. They asserted that, because the immigration forms Plaintiffs

challenge are used solely in Mr. Pelletier’s removal proceedings, 8 U.S.C. § 1252(g)

bars the district court from exercising jurisdiction over the claim. That section states


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that, “[e]xcept as provided in [§ 1252,] . . . no court shall have jurisdiction to hear

any cause or claim by or on behalf of any alien arising from the decision or action by

the Attorney General to commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.” Id.

       In response to Defendants’ contention, Plaintiffs asserted only “that the forms

they challenge ‘preceded Defendants’ filing the NTA . . . [and] removal proceedings

do not commence until the NTA is filed,’ suggesting that the forms could not have

arisen from the removal proceedings.” Aplt. App. at 122 (Dismissal Order, quoting

Plaintiffs’ opposition to Defendants’ motion to dismiss) (internal quotation marks

and brackets omitted).7 The district court held it lacked jurisdiction over Plaintiffs’

suppression claim because the challenged forms were “directly and immediately

connected with the Attorney General’s decision to commence [removal] proceedings

[against Mr. Pelletier].” Id. at 122-23 (internal quotation marks omitted).

       Plaintiffs now argue that their suppression claim does not arise from the

Attorney General’s decisions or actions delineated in § 1252(g) because the Record

of Deportable Alien form could be used outside of Mr. Pelletier’s removal


7
       Plaintiffs did not include in the Appellants’ Appendix their filing in
opposition to Defendants’ motion to dismiss. But we can take judicial notice
of that filing on the district court’s docket. See Pelletier v. United States,
No. 1:11-CV-01377-WJM-CBS (D. Colo. June 1, 2012) (Plaintiffs’ opposition to
Defendants’ motion to strike and motion to dismiss Complaint), ECF No. 87 at 6;
see also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (court has
discretion to take judicial notice of publicly filed records concerning matters bearing
directly on disposition of case at hand).


                                          - 11 -
proceedings to deny him adjustment of status and other benefits. Plaintiffs assert that

they “have a right to be heard on [this] issue.” Aplt. Opening Br. at 35. But their

opportunity to advance this contention was in response to Defendants’ motion to

dismiss. Yet they did not raise the argument, and the district court did not consider

or make any ruling on it. “An issue is preserved for appeal if a party alerts the

district court to the issue and seeks a ruling.” Somerlott v. Cherokee Nation

Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012) (internal quotation marks

omitted). “[A]nd we generally do not consider new theories on appeal—even those

that fall under the same general category as one that was presented in the district

court.” Utah Animal Rights Coal. v. Salt Lake Cnty., 566 F.3d 1236, 1244 (10th Cir.

2009). Accordingly, we decline to reach Plaintiffs’ argument concerning the district

court’s dismissal of their suppression claim, and we affirm the judgment on that

claim in Defendants’ favor.8

      E.     Dismissal of Habeas Claim for Lack of Jurisdiction

      An alien may challenge his detention pending a decision in his removal

proceedings through a habeas corpus application under to 28 U.S.C. § 2241. See

Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008). Plaintiffs alleged in their

Complaint that Mr. Pelletier was unlawfully arrested and detained on August 28,

2009. They asserted that he remains in custody pursuant to the terms of his


8
      Plaintiffs do not ask us to review this issue for plain error, and they make no
attempt to meet that standard. See Somerlott, 686 F.3d at 1151.


                                         - 12 -
immigration bond, which severely restrict his liberty interests by precluding him

from traveling to Canada and by requiring him to appear at Immigration Court

hearings. Defendants argued that the district court lacked jurisdiction over this claim

because Mr. Pelletier was released from detention, and “the writ of habeas corpus

shall not extend to a prisoner unless . . . [h]e is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The

“in custody” requirement for habeas relief is jurisdictional. Dry v. CFR Court of

Indian Offenses for Choctaw Nation, 168 F.3d 1207, 1208 (10th Cir. 1999).

       The district court agreed with Defendants and dismissed Plaintiffs’ habeas

application for lack of jurisdiction. It acknowledged that, consistent with this court’s

holding in Dry, “[a] petitioner need not show actual, physical custody to obtain

relief” under § 2241(c)(3). 168 F.3d at 1208. But it concluded that Dry is

distinguishable.

       We held in Dry that appellants who had been released on their own

recognizance pending trial remained “in custody” for purposes of their habeas

application. Id. We stated that, “[a]lthough Appellants are ostensibly free to come

and go as they please, they remain obligated to appear for trial at the court’s

discretion. This is sufficient to meet the ‘in custody’ requirement of the habeas

statute.” Id. We therefore reversed the district court’s dismissal of the appellants’

habeas application. Id. at 1209.




                                           - 13 -
       In attempting to distinguish Mr. Pelletier’s circumstances, the district court

reasoned that the appellants in Dry remained in custody because they “could be

ordered to appear for trial at any time at the discretion of the court.” Aplt. App. at

120-21 (emphasis added). Defendants likewise suggest our decision in Dry was

based on the appellants’ lack of notice in that case regarding when they would be

required to appear. But the decision says nothing more than that the appellants were

“obligated to appear for trial at the court’s discretion.” Dry, 168 F.3d at 1208.

Mr. Pelletier also must appear at immigration hearings scheduled at the discretion of

the Immigration Court. We hold that, under Dry, Mr. Pelletier alleged sufficient

facts to satisfy the “in custody” requirement in § 2241(c)(3). We therefore reverse

the district court’s dismissal of Plaintiffs’ habeas application for lack of jurisdiction.

III.   Conclusion

       We dismiss for lack of jurisdiction Plaintiffs’ appeal of the district court’s

order denying their Rule 60(b) motion. We reverse the district court’s dismissal of

their application for a writ of habeas corpus and remand that claim for further

proceedings. We otherwise affirm the district court’s judgment in favor of

Defendants.

                                                   Entered for the Court


                                                   Gregory A. Phillips
                                                   Circuit Judge




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