crimmigration.com

The intersection of criminal law and immigration law

Archive

After regularly updating crimmigration.com from January 2009 until November 2022, I have stopped doing so. I hope you continue to benefit from the blog as an archive. For up-to-date information about my work, visit ccgarciahernandez.com. – César

  • Home
  • About César
  • Articles
  • Books
  • Talks & Media

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 (per curiam) (unpublished).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Because the Fifth Circuit issued an unpublished opinion, it’s sparsely worded.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.

  • Share via Facebook
  • Share via LinkedIn
  • Share via Twitter
  • Share via Email

Share this:

  • Facebook
  • X

Posted by César on March 1, 2012 on 9:00 am 2 Comments
Filed Under: 5th Circuit Court of Appeals, habeas

Comments

  1. Pradeep Parashar says

    March 5, 2012 at 8:12 am

    During removal proceedings if custody is denied by the IJ, It is after all custody regardless of state or the federal(INS) custody. If the state custody was an unconstitutional one then the INS custody and removal thereon was also unconstitutional and subject to review under habeas.

    Reply
  2. http://www.paydayday.co.uk/ says

    January 14, 2013 at 12:06 pm

    http://www.paydayday.co.uk/

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

    Reply

Leave a Comment Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Subscribe


Recent Posts

  • Pelosi attacker reportedly Canadian overstayer
  • Biden marijuana pardon meets immigration law & fizzles
  • California private prison ban is illegal, 9th Circuit says
  • Citizenship is complicated
  • Supreme Court says Biden can end MPP
  • Uvalde massacre & immigration law aid

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.