                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2006

Kumarasamy v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-2323




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                                             PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 05-2323


             YOGESWARAN KUMARASAMY,
                            Appellant

                               v.

       ATTORNEY GENERAL OF UNITED STATES;
     SECRETARY OF DEPARTMENT OF HOMELAND
    SECURITY; JOHN CARBONE, Field Office Director,
   Immigration & Customs Enforcement; VENSON DAVID,
      Agent, Immigration & Customs Enforcement; BOB,
        Agent, Immigration & Customs Enforcement


APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE DISTRICT OF NEW JERSEY
                D.C. Civil No. 04-cv-02341
    District Judge: The Honorable William G. Bassler


          Submitted Under Third Circuit LAR 34.1(a)
                       May 11, 2006


   Before: BARRY, SMITH and TASHIMA,* Circuit Judges


                (Opinion Filed: June 23, 2006)




      *
         The Honorable A. Wallace Tashima, Senior Circuit
Judge, United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Visuvanathan Rudrakumaran, Esq.
Suite 2309
875 Avenue of the Americas
New York, NY 10001

Counsel for Appellant


Leah A. Bynon, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Counsel for Appellee




                   OPINION OF THE COURT



BARRY, Circuit Judge

       Yogeswaran Kumarasamy appeals from the District
Court’s dismissal for lack of jurisdiction of his petition for a writ
of habeas corpus in which he challenged his removal from the
United States. We will affirm.

                        I. BACKGROUND

        Kumarasamy is a native and citizen of Sri Lanka, as well
as a citizen of Canada, who entered the United States on a
student visa in 1984. In 1991, he applied for asylum in the
United States and for protection under the Convention Against
Torture (“CAT”). Eight years later, in 1999, his application for
asylum was still pending, and the Immigration and
Naturalization Service (“INS”) (now the Bureau of Immigration
and Customs Enforcement (“BICE”)) served him with a Notice
to Appear. The Notice charged him with being subject to
removal under 8 U.S.C. § 1227(a)(1)(B) as an alien admitted to

                                 2
the United States as a non-immigrant who remained in the
United States for a period longer than that which was authorized.
At the master calendar hearing, Kumarasamy sought asylum,
protection under CAT, withholding of removal to Sri Lanka, and
withholding of removal to Canada. The Immigration Judge
(“IJ”) scheduled an individual hearing for January 12, 2000.

        Kumarasamy appeared at his individual hearing with
counsel. According to Kumarasamy, the IJ summoned his
attorney and the INS attorney for an informal conference prior to
the commencement of the hearing. When his attorney emerged
from the meeting, he informed Kumarasamy that the IJ said the
Court would not grant Kumarasamy’s asylum application
because of his Canadian citizenship, but that it would grant his
application for withholding of removal to Sri Lanka—if he
withdrew all of his other claims. His attorney also told him that
the IJ said he would be able to stay in the United States and work
indefinitely under the grant of withholding of removal.1
Kumarasamy agreed to this arrangement and withdrew all his
claims other than withholding of removal to Sri Lanka. The IJ
granted withholding of removal to Sri Lanka. For the next four
years, Kumarasamy remained in the United States and received
yearly employment authorization.

        In December 2003, the Department of Homeland Security
(“DHS”) notified the IJ that he had failed to include an order
removing Kumarasamy from the United States, as required when
granting withholding of removal to a specific country. A DHS
attorney filed a motion with the IJ to amend the original order to
reflect an underlying order of removal from the United States.
The IJ granted the motion and amended the order. On January
29, 2004, BICE agents took Kumarasamy into custody.


       1
          Although withholding of removal (a.k.a. restriction on
removal) only prevents removal to the specified country and
does not preclude removal to a third country, commentators have
noted that “[i]n practice, however, non-citizens who are granted
restrictions on removal are almost never removed from the U.S.”
Weissbrodt, David & Laura Danielson, Immigration Law and
Procedure 303 (5th ed. 2005).
                                3
Kumarasamy contends that his attorney filed a motion for a bond
hearing the next day, and a hearing was held before the IJ on
February 5, 2004. At the bond hearing, the IJ asked the BICE
attorney why Kumarasamy was being detained when he had
been granted withholding of removal. The BICE attorney
explained that Kumarasamy was being deported to Canada. The
IJ told Kumarasamy’s attorney to file a motion to stay the
deportation, which he promised to sign.2 At 9:00 the next
morning, BICE agents put Kumarasamy on a plane at the airport
in Newark and deported him to Canada.3 His attorney filed a
motion for a stay two hours later at 11:00 am.

       Kumarasamy and his attorney claim that they were never
notified of the December 2003 motion to amend the order, or the
subsequent amendment. Accordingly, on May 19, 2004,
Kumarasamy filed a petition for habeas corpus in the United
States District Court for the District of New Jersey, alleging that
the deportation was illegal as there was no order of removal.
The government filed a response and attached a copy of the
amended order. The District Court held that an alien seeking
reentry into the United States is not “in custody” for purposes of
28 U.S.C. § 2241, and dismissed the petition for lack of
jurisdiction. Kumarasamy timely appealed.

   II. JURISDICTION AND STANDARD OF REVIEW

        On May 11, 2005, while this appeal was pending, the
REAL ID Act of 2005, Pub L. No. 109-13, 119 Stat. 231, took
effect. Under the Act, a petition for review is “the sole and
exclusive means for judicial review of an order of removal.” 8
U.S.C. § 1252(a)(5). Accordingly, habeas petitions challenging
orders of removal that were pending before a district court, or on
appeal to a court of appeals, on the effective date of the Act are


       2
         The transcript of the hearing is not in the record. The
government neither confirms nor denies Kumarasamy’s
description of what occurred and what was said.
       3
        Kumarasamy claims that he was not allowed to call his
attorney or his wife prior to his deportation.
                                4
converted to petitions for review. REAL ID Act § 106(c);
Bonhometre v. Gonzalez, 414 F.3d 442, 446 (3d Cir. 2005).4
Because Kumarasamy’s appeal from the dismissal of his habeas
petition was pending before this Court on the effective date of
the Act, the government argues that the REAL ID Act applies,
and that we must treat the appeal as a petition for review. We
disagree.

        Kumarasamy is not seeking review of an order of
removal. Rather, he claims that his deportation was illegal
because there was no order of removal. Even after receiving a
copy of the amended order, Kumarasamy continues to assert that
“[t]he heart of [his] Habeas Petition is that there was no such
order of removal.” (Appellant’s Reply Br. at 2.) He contends
that this assertion insulates his appeal from the purview of the
REAL ID Act, under which a petition for review is “the sole and
exclusive means for judicial review of an order of removal.” 8
U.S.C. § 1252(a)(5) (emphasis added). This, we note, is one of
those cases in which examination of the jurisdictional element
requires us to determine whether, and to what extent, review is
sought of the merits. See Patel v. Ashcroft, 294 F.3d 465, 468
(3d Cir. 2002) (describing the judicial inquiry as a “back-door
merits inquiry because the former supplies the answer for the
later”), superseded by statute on other grounds. The REAL ID
Act applies, by its own terms, only to cases in which the
petitioner seeks review of a final order of removal. Here,
Kumarasamay is not arguing that if the removal order in his case
was validly issued, that order does not lawfully authorize his
removal from the United States – he is not, in other words,
seeking review of a removal order. Instead, Kumarasamy is
arguing that his removal was improper because there was no
removal order at all (even though, of course, one was issued,
albeit belatedly).



       4
          In such cases, we “vacate and disregard the District
Court’s opinion and address the claims raised in [the
petitioner’s] habeas petition as if they were presented before us
in the first instance as a petition for review.” Kamara v.
Attorney General, 420 F.3d 202, 210 (3d Cir. 2005).
                                5
       Accordingly, given the unusual circumstances of this
case, we will not convert this appeal into a petition for review.
“In reviewing [on appeal] a federal habeas judgment, we
exercise plenary review over the district court’s legal
conclusions and apply a clearly erroneous standard to its
findings of fact.” Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.
2002) (internal quotation marks and citation omitted).

                       III. DISCUSSION

       For a court to have jurisdiction over an immigration-
related habeas corpus claim, the petitioner must be in the
“custody” of the federal immigration agency. See 28 U.S.C. §
2241(c); Gordon, Charles, Stanley Mailman & Stephen
Yale-Loehr, Immigration Law and Procedure § 104.04 (2005).
The District Court determined that exclusion from the United
States did not constitute “custody” for the purposes of § 2241,
and dismissed the petition for lack of jurisdiction. We agree that
the District Court lacked jurisdiction.

        We agree with the District Court that Kumarasamy was
not in custody when he filed his petition. An individual need not
be incarcerated to be considered in custody for purposes of §
2241. See Jones v. Cunningham, 371 U.S. 236 (1963); Jordon v.
Attorney General, 424 F.3d 320, 325 n.6 (3d Cir. 2005). Indeed,
in the criminal context, an individual who is on parole or
released on his or her own recognizance is deemed in custody
because of the significant restrictions imposed on his or her
freedom. See Jones, 371 U.S. 236; Hensley v. Municipal Court,
411 U.S. 345 (1973). In the immigration context, several of our
sister circuits have held that an individual subject to a final
deportation order issued by the INS or its successor agency is in
custody for § 2241 purposes. See Simmonds v. INS, 326 F.3d
351, 356 (2d Cir. 2003); Aguilera v. Kirkpatrick, 241 F.3d 1286,
1291 (10th Cir. 2001); Mustata v. United States 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). The question
presented in this case, however, is slightly different: Whether an
individual who has already been removed from the United States
at the time he files a habeas petition meets the custody
requirement. We find that he does not.

                                6
       A petitioner who has been removed from the country is
“not subject to restraints not shared by the public generally that
significantly confine and restrain his freedom. [He] is subject to
no greater restraint than any other non-citizen living outside
American borders.” Miranda v. Reno, 238 F.3d 1156, 1159 (9th
Cir. 2001). See also Patel v. U.S. Attorney General, 334 F.3d
1259, 1263 (11th Cir. 2003). As the Ninth Circuit explained in
Miranda, “[n]o interpretation of § 2241 that is not utterly at war
with its plain language permits us to exercise habeas corpus
jurisdiction” when the petitioner has already been removed from
the country. Id.5 Accordingly, we hold that petitioners who
have already been removed from the country do not satisfy the
“in custody” requirement for habeas corpus jurisdiction.
Because Kumarasamy had already been removed from the
country when he filed his habeas petition, the District Court
lacked jurisdiction to consider it.6




       5
         In Miranda, the Ninth Circuit preserved an “exceptional
circumstances” exception to the general rule that district courts
do not have jurisdiction over petitioners who have already been
removed. Miranda, 238 F.3d at 1159. While we do not rule out
the possibility that a district court could potentially exercise
jurisdiction in a situation where exceptional circumstances
would otherwise effect a miscarriage of justice, we do not
believe such circumstances exist in this case.
       6
         Importantly, what matters for the “in custody”
requirement is whether the petitioner was in custody at the time
his habeas petition was filed. See Lee v. Stickman, 357 F.3d
338, 342 (3d Cir. 2004) (citing Spencer v. Kemna, 523 U.S. 1, 7
(1998)). As long as the petitioner was in custody when he filed
his petition, a subsequent release from custody (e.g. a subsequent
removal) will not divest the court of jurisdiction.
                                7
                      IV. CONCLUSION

        For the foregoing reasons, we will affirm the order of the
District Court dismissing Kumarasamy’s habeas petition for lack
of jurisdiction.7




       7
        We note, however, that the IJ has discretionary authority
to reopen a case upon his own motion at any time pursuant to 8
C.F.R. § 1003.23(b)(1), and may choose to do so here. If
Kumarasamy’s version of the events is accurate, the course of
action pursued by BICE appears harsh and somewhat disturbing.
                                8
