ILW.COM - the immigration portal Immigration Daily

Home Page

Advanced search

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network


Chinese Immig. Daily


Connect to us

Make us Homepage



The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Use ILW.COM's Case Tracking System

< Back to current issue of Immigration Daily                        < Back to current issue of Immigrant's Weekly

Case Name:
Case Number: Date Filed: 
99-56359 02/07/01 



AMADO MIRANDA, an individual;
ESPERANZA MIRANDA, an individual,
Plaintiffs-Appellants,                                No. 99-56359

v.                                                    D.C. No.
JANET RENO, Attorney General of
the United States of America;                         OPINION
DOES 1-100,

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding

Argued and Submitted
October 12, 2000--Pasadena, California

Filed February 7, 2001

Before: Robert Boochever, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

Jose C. Rojo, Rojo Williams Schlegel & Moyers, San Diego,
California, for the plaintiffs-appellants.

Samuel W. Bettwy, Special Assistant United States Attorney,
San Diego, California, for the defendants-appellees.

TALLMAN, Circuit Judge:

Amado Miranda sought judicial review by the district court
of a final order of removal, invoking 28 U.S.C.S 2241
(habeas corpus) and 28 U.S.C. S 1331 (federal question) as
alternative grounds for jurisdiction. The district court dis-
missed Miranda's case for lack of jurisdiction, finding that
recent changes in immigration law precluded judicial review
of his claims. We must determine whether the district court
retains jurisdiction to review Miranda's claims under either
S 2241 or S 1331. We hold it does not.


Miranda was admitted to the United States as a legal per-
manent resident in 1970. He lived in the United States with

his wife, a United States citizen, until he was removed in

In 1983, Miranda was charged in California state court with
committing a lewd act upon a minor, a felony violation of
California Penal Code S 288. He alleges that he pled guilty
after both the prosecutor and the court assured him that con-
viction on the charge would not adversely affect his immigra-
tion status.1 He served a short sentence in a county jail.

In 1996, Congress passed an amendment to the Immigra-
tion and Nationality Act entitled the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA). See Pub.
L. No. 104-208, 110 Stat. 3009 (1996). IIRIRA amended the
definition of "aggravated felony" to include "sexual abuse of
a minor." 8 U.S.C. S 1101(a)(43)(A) (2000). Congress pro-
vided that the new definition applied retroactively to crimes
committed before IIRIRA was enacted. Id. Accordingly, the
crime to which Miranda pled guilty in 1983 became an aggra-
vated felony and, thirteen years after he pled guilty, Miranda
became subject to expedited removal. See 8 U.S.C.
SS 1101(a)(43)(A), 1227(a)(2)(A)(iii) (2000).

On October 6, 1998, INS agents arrested Miranda at his
home on the grounds that he was an aggravated felon subject
to removal under IIRIRA. Miranda requested a hearing to
determine whether or not he could remain in the United

At the hearing, the immigration judge found that Miranda
was a removable alien by virtue of his 1983 guilty plea and
ordered him removed from the United States. Miranda's
counsel waived his right to appeal the order to the Board of
1 For the purpose of reviewing the district court's dismissal of Miranda's
claims for lack of subject matter jurisdiction, we must presume that each
of his allegations is true. See United States v. One 1997 Mercedes, E420,
175 F.3d 1129, 1130 n.1 (9th Cir. 1999).

Immigration Appeals. That day, the INS removed Miranda to

Miranda hired new counsel following his removal and
sought review in federal district court, invoking federal ques-
tion and habeas corpus jurisdiction. He claimed that he was
deprived of due process and that, as applied to him, IIRIRA
had an unconstitutional retroactive effect. Specifically, the
INS applied IIRIRA thirteen years later to remove him for a
guilty plea that Miranda alleges he made in reliance on assur-
ances by the prosecutor and the court that he could not be
deported as a result.

IIRIRA streamlined removal procedures in part by preclud-
ing judicial review of final removal orders for legal aliens
who have committed aggravated felonies. Specifically,
IIRIRA repealed the provision pursuant to which most depor-
tation orders (the pre-IIRIRA analog of removal orders) were
subject to direct review by federal appellate courts, see 8
U.S.C. S 1105(a) (repealed 1996), and purported to deprive
federal courts of "jurisdiction to review any final order of
removal against an alien who is removable by reason of hav-
ing committed" an aggravated felony. 8 U.S.C.
S 1252(a)(2)(C) (2000). The district court dismissed Miran-
da's action. The district court held that it lacked subject mat-
ter jurisdiction over Miranda's claims for three reasons: (1)
the Act eliminated habeas corpus jurisdiction for resident
aliens challenging final orders of removal; (2) Miranda could
not invoke habeas corpus jurisdiction because he was no lon-
ger "in custody;" and (3) the court lacked authority to review
the order since it had already been executed.


We review de novo a district court order dismissing an
action for lack of subject matter jurisdiction. Milne v. Hill-
blom, 165 F.3d 733, 735 (9th Cir. 1999).


[1] The district court did not have the benefit of our recent
decision in Flores-Miramontes v. INS, 212 F.3d 1133 (9th
Cir. 2000), in which we held that IIRIRA did not eliminate
habeas corpus jurisdiction over removal orders. We disagree
with the district court's conclusion that habeas corpus is, as
a general matter, unavailable under IIRIRA. Under IRRIRA,
an immigrant still in United States custody may seek habeas
corpus review of a final order of removal.


[2] But Miranda cannot avail himself of habeas corpus
jurisdiction because he has already been removed and there-
fore is no longer "in custody." See 28 U.S.C. S 2241; see also
Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)
("[T]he `in custody' requirement is jurisdictional."). Habeas
corpus jurisdiction "has been extended beyond that which the
most literal reading of the statute might require, " Lehman v.
Lycoming County Children's Services Agency, 458 U.S. 502,
510 (1982), to individuals who, though not subject to "imme-
diate physical imprisonment," are subject to "restraints not
shared by the public generally" that "significantly confine and
restrain [their] freedom." Jones v. Cunningham, 371 U.S. 236,
240, 243 (1963). Thus, federal courts have exercised habeas
corpus jurisdiction over a state prisoner released on parole,
id., a convict released on his own recognizance pending exe-
cution of his sentence, Hensley v. Municipal Court, 411 U.S.
345, 351 (1973), an individual sentenced to attend an alcohol
rehabilitation program for fourteen hours, Dow v. Circuit
Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993),
and an individual who, though not in physical custody, was
subject to a final order of deportation. Williams v. INS, 795
F.2d 738, 744-45 (9th Cir. 1986). Recently, we held that
under extreme circumstances - when the INS removed an
immigrant "in violation of the immigration judge's order and
after interference with his right to counsel" - the district court
had habeas corpus jurisdiction over an immigrant who had

already been removed. Singh v. Waters, 87 F.3d 346, 349 (9th
Cir. 1996).

[3] Such extreme circumstances do not exist here. Miranda
was removed pursuant to an immigration judge's order after
a hearing at which he was represented by counsel. His counsel
waived Miranda's right to appeal that order to the Board of
Immigration Appeals. Miranda is also not subject to restraints
not shared by the public generally that significantly confine
and restrain his freedom. Miranda is subject to no greater
restraint than any other non-citizen living outside American
borders. He cannot, however, return to the United States
because he has been convicted of an aggravated felony.

[4] No interpretation of S 2241 that is not utterly at war
with its plain language permits us to exercise habeas corpus
jurisdiction over Miranda's claims. Immigrants who have
already been removed, such as Miranda, do not satisfy the "in
custody" requirement of habeas corpus jurisdiction. We
affirm the district court's holding that it lacked habeas corpus
jurisdiction to hear Miranda's claims because he was no lon-
ger in custody.


Miranda argues in the alternative that the district court must
exercise federal question jurisdiction over his constitutional
claims under the general federal question statute. See 28
U.S.C. S 1331. In IIRIRA, however, Congress expressly
stripped the federal courts of jurisdiction to review final
orders of removal such as Miranda's. See 8 U.S.C.
S 1252(a)(2)(C). We affirm the district court's holding that it
lacked federal question jurisdiction to hear Miranda's claims
under S 1331.


The district court properly dismissed Miranda's case for
lack of jurisdiction.



• Attorney Membership    • Case Tracking   
• Immigration Daily    • Citizenship Materials   

Share this page with a friend Share this page