Limits on Challenging Expedited Removal Orders for Foreign Nationals Not in U.S. Custody
Smith v. U.S. Customs & Border Protection, 741 F.3d 1016 (9th Cir. 2014).
Summary of the Case Substance and Outcome:
The case examines whether a Canadian citizen subjected to expedited removal at a U.S. border can seek judicial review under habeas corpus laws. Specifically, the court analyzed whether the petitioner, who was not in U.S. custody, could challenge the expedited removal order issued by U.S. Customs and Border Protection (CBP). The legal question hinged on jurisdiction under two statutes: the general habeas statute (28 U.S.C. § 2241) and the limited review provisions for expedited removal (8 U.S.C. § 1252(e)(2)).
The petitioner argued that his removal was unlawful because Canadians are exempt from certain documentary requirements under U.S. immigration laws. He further contended that CBP exceeded its authority in removing him and violated his due process rights.
Outcome of the Case:
- No Jurisdiction Under 28 U.S.C. § 2241:
- The court ruled that habeas corpus relief under § 2241 is unavailable to individuals who are not in U.S. custody.
- Because the petitioner was removed to Canada on the same day and was not detained, he did not meet the “in custody” requirement for habeas jurisdiction.
- Limited Jurisdiction Under 8 U.S.C. § 1252(e)(2):
- The court acknowledged limited jurisdiction to determine whether the petitioner was “ordered removed” under the expedited removal statute.
- However, the court held that the CBP acted within its authority under immigration law, as the petitioner failed to prove he was exempt from the documentary requirements for nonimmigrant status.
- No Broader Review Allowed:
- The court could not review the CBP’s decision to classify the petitioner as an intending immigrant, as 8 U.S.C. § 1252(e)(2) explicitly limits judicial review to narrow questions.
Facts of the Case
The Petitioner:
- A Canadian citizen who sought entry to the U.S. at a border crossing in Washington State.
- He carried substantial undeclared cash, photography equipment, and flyers advertising his services.
CBP’s Determination:
- CBP classified him as an “intending immigrant” because his activities (advertising photography services, selling photos online, and performing services in exchange for goods) went beyond those permitted for temporary visitors.
- Lying during inspection also undermined his credibility.
Expedited Removal:
- CBP determined the petitioner lacked proper documentation and subjected him to expedited removal under 8 U.S.C. § 1225.
- He was removed the same day and barred from reentry for five years.
Analysis by the Court:
Habeas Jurisdiction Under 28 U.S.C. § 2241:
- Habeas relief requires the petitioner to be “in custody” when filing the petition.
- The petitioner, removed to Canada and never detained by U.S. authorities, failed this requirement.
- The court emphasized prior precedent affirming that post-removal individuals are not considered “in custody” for habeas purposes.
Limited Review Under 8 U.S.C. § 1252(e)(2):
- The statute allows review of three narrow issues:
- Whether the individual is an alien.
- Whether they were ordered removed under expedited removal.
- Whether they qualify for lawful permanent residence, refugee status, or asylum.
- The court determined that while jurisdiction existed to review whether the petitioner was properly ordered removed under the statute, the CBP’s actions were lawful.
- The petitioner failed to prove he was exempt from documentation requirements applicable to intending immigrants.
CBP’s Authority and Petitioner’s Burden:
- Under U.S. immigration law, all foreign nationals are presumed to be immigrants unless they prove nonimmigrant status.
- The petitioner’s actions, including carrying promotional flyers and admitting to selling photographs, indicated an intent to work in the U.S., disqualifying him from nonimmigrant status.
- The expedited removal statute explicitly bars courts from questioning CBP’s factual findings or discretionary decisions in such cases.
Conclusion:
The Ninth Circuit upheld the CBP’s expedited removal decision, finding no jurisdiction for broader review. The court emphasized the limited scope of judicial oversight for expedited removal cases under 8 U.S.C. § 1252(e)(2). The decision reaffirmed that individuals not in U.S. custody cannot seek habeas relief and that CBP’s authority to classify and remove noncitizens under expedited procedures is broad and largely insulated from judicial scrutiny.
This case highlights the challenges foreign nationals face in contesting expedited removal orders, especially when they fail to meet the narrow criteria for judicial review.
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