Smith v. U.S. Customs & Border Protection, No. 11-35556 (9th Cir. 2014)
Annotate this CasePetitioner, a Canadian, was ordered removed when customs officials determined that he planned to work in the United States as a photographer/cameraman without documentation. At issue was whether a Canadian arriving at the border and subjected to expedited removal but never detained was entitled to habeas relief, under either the traditional habeas structure, 28 U.S.C. 2241, or the more limited regime applicable to expedited removal orders, 8 U.S.C. 1252(e)(2). The court concluded that it lacked jurisdiction to consider petitioner's claims under the traditional habeas statute because petitioner was never in custody. Determining that it had jurisdiction under the limited review provisions of section 1252(e)(2), the court held that petitioner was not entitled to relief because, as applied to the narrow facts of this case, section 1252(e)(2) did not permit the court to consider any further collateral damage.
Court Description: Habeas Corpus. The panel denied John Smith’s habeas corpus petition alleging that Customs and Border Protection unlawfully issued an expedited removal order preventing him, a Canadian, from entering the United States and imposing a five-year bar to reentry. The panel held that because Smith was never in custody, this court lacked jurisdiction to consider his claims under 28 U.S.C. § 2241, but that it did have limited jurisdiction under 8 U.S.C. § 1252(e)(2)(B) to consider whether he was “ordered removed” under the expedited removal statute. On the merits, the panel held that Smith was not entitled to the relief he sought—a finding that the expedited removal order was unlawful. The panel held that on the narrow facts of Smith’s case, this court had no jurisdiction under 8 U.S.C. § 1252(e)(2) to consider his collateral challenge.
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