                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 5 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    QUIRINO OLIVAS RODELA;
    ANGELA CAMPAGNA RODELA,

                Petitioners-Appellants,
                                                         No. 03-1270
    v.                                            (D.C. No. 02-N-2009 (OES))
                                                           (D. Colo.)
    MICHAEL COMFORT, District
    Director, Immigration and
    Naturalization Service; JAMES W.
    ZIGLAR, Commissioner, Immigration
    and Naturalization Service; JOHN
    ASHCROFT, Attorney General of the
    United States,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before McCONNELL , HOLLOWAY , and PORFILIO , 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


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Quirino Olivas Rodela and his wife, Angela Campagna Rodela (“Campagna

Rodela”), filed a habeas corpus petition after Rodela was removed from the

United States. The district court dismissed the petition for lack of jurisdiction.

We affirm.

      Rodela, a native of Mexico, was denied admission to the United States in

2000, after he presented false evidence of American citizenship.   1
                                                                       He later

attained entry into the United States; when his presence was discovered, however,

he was taken into custody and the original order of removal was reinstated.

      During his incarceration prior to his removal, Rodela and Campagna

Rodela–an American citizen–filed a pleading in the district court captioned

“Motion for a Temporary Restraining Order, Declaratory and Injunctive Relief

(Stay and Release).” The district court denied a temporary restraining order on

the basis that the motion was not supported by an affidavit or verified complaint.

The court further noted that “it does not appear that the petitioners have filed any

petition, complaint, or similar pleading.” R., Doc. 6 at 1.




1
      Rodela alleges that he originally entered the United States in 1992. The
record does not indicate when he returned to Mexico prior to being stopped at the
border in 2000.

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      One week after the court entered this order, Rodela and Campagna Rodela

filed a new pleading titled “Petition for Habeas Corpus, Temporary Restraining

Order, Declaratory and Injunctive Relief.” On the same day this document was

filed, the government transported Rodela to Mexico and released him from

custody. At a subsequent hearing, the district court dismissed the habeas petition

for want of jurisdiction.

      On appeal, Rodela and Campagna Rodela contend that it was error to

dismiss the habeas petition as moot, as they continue to face collateral

consequences arising from the removal order. The basis for the dismissal was not

mootness, however; instead, the court found that it lacked jurisdiction at the

inception of the litigation because Rodela was not in custody at the time he filed

his habeas petition. If Rodela had been in custody at the time he filed his habeas

petition, his deportation after the petition was filed–and the concomitant release

from custody–might not have rendered the petition moot.     See Zalawadia v.

Ashcroft , 371 F.3d 292, 297-98 (5th Cir. 2004);   cf. Spencer v. Kemna , 523 U.S.

1, 7-8 (1998) (discussing “in custody” requirement and mootness doctrine in

context of criminal defendant who was released from incarceration after habeas

petition was filed). So far as the record reveals, however, Rodela was discharged

from custody before his petition reached the courthouse. Because Rodela was not

in custody at the moment his habeas petition was filed, the district court properly


                                           -3-
dismissed the petition for lack of jurisdiction.    See Dry v. CFR Court of Indian

Offenses , 168 F.3d 1207, 1208 (10th Cir. 1999).

       For the foregoing reasons, the judgment of the district court is

AFFIRMED.     2




                                                        Entered for the Court



                                                        Michael W. McConnell
                                                        Circuit Judge




2
       The government has suggested that we treat Rodela’s habeas petition and
notice of appeal as a petition for review of the reinstatement order. It is not clear
that we would have jurisdiction to review that order, as Rodela declined to
exercise his right to contest the restatement order,     see 8 C.F.R. § 241.8(b);
arguably, therefore, he failed to exhaust administrative remedies,      compare
Castro-Cortez v. INS , 239 F.3d 1037, 1045 (9th Cir. 2001) (stating that the right
to contest reinstatement order is, at most, a discretionary form of review that need
not be exhausted; relying on analogy to motions to reopen Board of Immigration
Board of Appeal proceedings) with Akinwunmi v. INS , 194 F.3d 1340, 1341
(10th Cir. 1999) (per curiam) (requiring motion to reopen Board of Immigration
Appeals proceedings as necessary stage of exhaustion). We need not resolve this
question, however; instead, in the exercise of our discretion, we decline to treat
Rodela’s habeas petition and notice of appeal as a petition for review.

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