5 Cir: Unable to return to USA after removal isn’t habeas “custody”

The U.S. Court of Appeals for the Fifth Circuit held that an individual who sought habeas relief on the basis of an allegedly wrongful removal could not satisfy the “custody” necessary for habeas jurisdiction. Merlan v. Holder, No. 11-20366, slip op. (5th Cir. Dec. 6, 2011) (Higginbotham, Davis, and Elrod, JJ.) (per curiam) (unpublished).

Merlan was an LPR who was removed after conceding that a conviction for “organized criminal activity in connection with the commission of auto theft” constituted an aggravated felony. Merlan v. Holder, 2011 WL 1376778, *1 (S.D. Tex. Apr. 12, 2011) (Atlas, J.). From México, Merlan sought habeas relief on the basis of an ineffective assistance of counsel claim during the underlying state court criminal proceeding. Merlan, 2011 WL 1376778 at *1.

Because the Fifth Circuit issued an unpublished opinion, it’s sparsely worded. The gist, however, is that the court followed the Third, Ninth, and Eleventh Circuits in holding that “an alien who has been deported pursuant to a final removal order is not ‘in custody’ for habeas purposes.” Merlan, No. 11-20366, slip op. at 2. The district court, therefore, “did not have jurisdiction to review the final removal order….” Merlan, No. 11-20366, slip op. at 2.