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Immigration – removal — habeas corpus

United States Court of Appeals For the Seventh Circuit


Immigration – removal — habeas corpus

An alien who has already been removed cannot challenge removal via a habeas corpus petition.

“We do not doubt the severe hardships that Rivas’s removal impose upon him and his family. To remove a lawful permanent resident after 40 years of residency for a 30-year-old statutory-rape conviction, and to separate him from his wife and four children in the process, is indeed a unique kind of hardship not shared by the public at large, and perhaps not shared even by most removed aliens. But this unique hardship simply does not translate into the kind of unique restraint needed to meet the ‘in custody’ requirement as it has been understood in our caselaw. In Samirah v. O’Connell, 335 F.3d 545, 551 (7th Cir. 2003) (‘Samirah I’), we held that an alien living abroad ‘over whom the United States exercises no control or responsibility’ is not in custody merely because he was ‘denied entry’ into the United States. We later reaffirmed this holding, stating that ‘[h]abeas corpus is a remedy for people in custody; exclusion from the United States is not custody.’ Samirah

v. Holder, 627 F.3d 652, 661 (7th Cir. 2010) (‘Samirah II’).”


11-2246 Rivas-Melendrez v. Napolitano

Appeal from the United States District Court for the Northern District of Illinois, Holderman, J., Sykes, J.

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