United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO FILE AMENDED APPLICATION IN PART
LEWIS T. BABCOCK, Senior District Judge.
Applicant initiated this action on January 29, 2015 by filing, pro se, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 challenging the ICE's threat of arrest and deportation based on Applicant's failure to attend an asylum proceeding that was held without her and her counsel being noticed. Applicant paid the $5.00 filing fee. Within six days, Applicant filed an Amended Application that appears to assert the same claims.
On February 12, 2015, Magistrate Judge Gordon P. Gallagher ordered Respondent to file a Preliminary Response to the Application addressing any jurisdictional issues, and the affirmative defense of exhaustion of administrative remedies. ECF No. 4. Respondent filed a Preliminary Response on March 5, 2015. ECF No. 9. On March 26, 2015, counsel made an appearance on behalf of Applicant, and requested an extension of time to file a Reply. The Court granted the extension and allowed counsel thirty days to reply. The time now has run, and counsel has failed to reply. The Court, therefore, will proceed to review the Preliminary Response.
In the § 2241 Application, Applicant asserts that the ICE has violated her due process and equal protections rights, international laws, the Supremacy Clause of the Constitution, and the UN Declaration on Rights of Indigenous People, the United States Indian Child Welfare Act in failing to notify her or her attorney of the asylum hearing and then threatening arrest and confinement within twenty days, the taking of her children, and deportation. Applicant seeks no further "face-to-face" with the ICE until further order of the Court and the dissolution of "unlawful prior orders where juris allows."
Respondents assert that, when Applicant failed to appear for the hearing on her reasonable fear proceeding, the immigration judge terminated the proceeding without prejudice. ECF No. 9 at 2. Because Applicant has not sought to reopen or reinstate the proceedings, nor request another hearing, the order of removal is now enforceable. Id.
III. The "In Custody" Requirement
An individual may seek habeas relief under § 2241 only if he or she is "in custody" under federal authority or for violation of federal law. 28 U.S.C. § 2241(c). A final order of removal subjects an alien to a restrain on liberty sufficient to place the alien in "custody." See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) ("Although the petitioners in this case are not being detained, ' they are in custody' for habeas purposes because they are subject to final deportation orders"); Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir.1994) ("[T]here is general consensus that an alien whose liberty is restricted pursuant to an order emanating from the INS is in custody' for purposes of satisfying the prerequisites for habeas review."). Accord Jones v. Cunningham, 371 U.S. 236 (1963) (parolee still "in custody" of the parole board for purposes of habeas corpus relief because the parole order imposed conditions that "significantly confine[d] and restrain[ed] his freedom").
Besides the asserted threats of a final order of removal, the taking of her children, and arrest, Applicant is subject to an order of supervision, which requires a "check-in" with her assigned deportation officer. See Am. Application, ECF No. 3, at 6. Applicant's current status appears to satisfy the "in custody" requirement of § 2241.
IV. Challenges to a Removal Order
To the extent that Applicant may be subject to a removal order and is asserting the removal order violates due process, international laws, the Supremacy Clause of the Constitution, and the UN Declaration on Rights of Indigenous People, the United States Indian Child Welfare Act, none of these allegations may be pursued in a § 2241 proceeding. Under the Real ID Act, petitions for review filed with the court of appeals are "the sole and exclusive means" of review of most administrative orders of removal, deportation, or exclusion. 8 U.S.C. § 1252(a)(5).
The statute defines "order of removal" as an administrative order concluding that an alien is removable or ordering removal. 8 U.S.C. § 1101(a)(47)(A). The Real ID Act, however, did not eliminate a district court's jurisdiction to review habeas petitions challenging an alien's detention. 8 U.S.C. § 1252(a)(1). Accordingly, if Applicant is subject to a removal ...