John Smith v. United States Customs and Bord, et al

Filing

FILED OPINION (MICHAEL DALY HAWKINS, M. MARGARET MCKEOWN and RICHARD R. CLIFTON) DENIED; : MDH , Judge: MMM Authoring, Judge: RRC . FILED AND ENTERED JUDGMENT. [8930741]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN R.G. SMITH,
Petitioner-Appellant,
v.

No. 11-35556
D.C. No.
2:10-cv-02036JLR

UNITED STATES CUSTOMS AND
BORDER PROTECTION; U.S.
DEPARTMENT OF HOMELAND
SECURITY; ALAN BERSIN,
Commissioner of US Customs and
Border Protection; MICHELE JAMES,
Seattle Field Office Director US
Customs and Border Protection;
JANET A. NAPOLITANO, Secretary of
Department of Homeland Security,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
August 26, 2013—Seattle, Washington
Filed January 9, 2014
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown

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SUMMARY*

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.

COUNSEL
Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington; Lee Gelernt (argued) and Dror Ladin, American
Civil Liberties Union Immigrants’ Rights Project, New York,
New York, for Plaintiff-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Erez Reuveni (argued), Trial Attorney, United States
Department of Justice, Office of Immigration Litigation;
Tony West, Assistant Attorney General, Civil Division;
William H. Orrick, III, Deputy Assistant Attorney General;
David J. Kline, Director, Office of Immigration Litigation,
District Court Section, Washington, D.C., for RespondentsAppellees.
Greg Boos, Cascadia Cross-Border Law, Bellingham,
Washington, for Amici Curiae Bellingham/Whatcom
Chamber of Commerce, British Columbia Chamber of
Commerce, Northwest Economic Council, and Pacific
Corridor Enterprise Council.

OPINION
McKEOWN, Circuit Judge:
This case asks us to consider whether a Canadian arriving
at the border and subjected to expedited removal but never
detained is 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). John Smith was ordered removed
when customs officials determined that he planned to work in
the United States without documentation. Smith petitioned
the court in habeas, contending that, as a Canadian, he was
exempt from documentary requirements, and that customs
officials therefore exceeded their statutory authority in
subjecting him to expedited removal without a hearing.
Because Smith was never in custody, we lack jurisdiction to
consider his claims under the traditional habeas statute,
28 U.S.C. § 2241. We agree with Smith, however, that we

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have jurisdiction under the limited review provisions of
8 U.S.C. § 1252(e)(2) to consider whether Smith was
“ordered removed” under the expedited removal statute. We
nevertheless hold that Smith is not entitled to the relief he
seeks, because as applied to the narrow facts of Smith’s case,
§ 1252(e)(2) does not permit us to consider any further
collateral challenge.
BACKGROUND
On October 12, 2009, John Smith, a citizen of Canada,
drove his motor home to the Port of Entry at Oroville,
Washington, and sought entry to the United States. Smith
stated, when asked, that he was traveling with $8,000, and
that he had no items to declare. He was referred to secondary
inspection, where he filled out a form declaring $8,630 in
cash. When officers from United States Customs and Border
Protection (“CBP”) searched Smith’s motor home, they found
nine cartons of cigarettes, and confronted Smith, who told
them that he had an additional $20,000 in a safe under the
bed. The officers found $25,000 in the safe, in cash and
traveler’s checks, together with flyers advertising Smith’s
work as a photographer. The flyers, some headlined
“Photographer/Cameraman Available,” advertised Smith’s
availability from October 2009 to April 2010 from “Tucson
to Ph[oe]nix & all points between,” his “flexible rates &
schedule,” and his expertise photographing “skydiving,
motorcycle events, aircraft, and nudes.” The flyers listed
Smith’s name and his website address, www.skydyv.com.
Believing that Smith intended to operate a business within
the United States, a CBP officer took a sworn statement from
him. Smith conceded that he had lied during the primary
inspection process, and that he had purposefully chosen not

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to report the currency he was carrying. Smith stated that he
wished to enter the United States, destination Skydive,
Arizona, to “skydive[,] take pictures, video and have fun.” He
claimed that he was “not paid to do this service,” and denied
that he was advertising to take pictures for commercial
purposes while in the United States. In the same interview,
Smith conceded that he was compensated with jump tickets
and the “occasional glass of scotch,” and that he sold
photographs via his website. Smith said that he had been
filming jumps in the United States since 2000, and did
“roughly 150 jumps” over the course of a trip. When asked
whether he considered “taking pictures of people in the [U.S.]
that [he] may sell later [to be] a form of work,” Smith
conceded that he did.
The CBP determined that Smith was seeking to enter the
United States to work as a “Photographer and/or Cameraman
for [his] own website,” by “advertising and running a
photography business in Sky Dive, AZ.” The CBP therefore
classified Smith as an intending immigrant under
§ 212(a)(7)(A)(i)(I) of the Immigration and Nationality
Act (“INA”). INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Because Smith lacked documentation
permitting him to work in the United States, the CBP found
him inadmissible under the same provision, and placed him
in expedited removal proceedings as mandated by 8 U.S.C.
§ 1225(b)(1)(A)(i). Smith never gained entry to the United
States, and was removed to Canada the same day. In
accordance with the expedited removal statute, he was
prohibited from entering the United States for five years.
Smith filed a petition for a writ of habeas corpus
approximately one year later, arguing that the CBP exceeded
its authority under the expedited removal statute, 8 U.S.C.

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§ 1225(b)(1)(A)(i), and its corresponding regulations,
8 C.F.R. § 253.3. He alleged that the CBP unlawfully applied
the statute to him, on the grounds that documentary
requirements for entry into the United States are waived for
Canadians, and that the CBP violated his due process rights
in issuing the expedited removal order. Smith further alleged
that the provision limiting judicial review of expedited
removal orders, codified at 8 U.S.C. § 1252(e)(2), violates the
Due Process and Suspension Clauses of the Constitution.
Smith sought an order declaring that the expedited removal
order was unlawful and without legal effect, and enjoining the
government from finding him inadmissible on the basis of the
order.
The district court, adopting the recommendations of the
magistrate judge, dismissed Smith’s suit for lack of subject
matter jurisdiction, on the ground that 8 U.S.C. § 1252(e)(2)
deprived it of jurisdiction to consider Smith’s claims
regarding the expedited removal order.
ANALYSIS
I. CLAIMS UNDER 28 U.S.C. § 2241
We first address the threshold issue of jurisdiction under
28 U.S.C. § 2241.1 Smith’s claim for habeas relief fails
because Smith was not in the custody of the United States at
the time he filed his habeas petition. On the day of the
encounter, the CBP removed Smith to Canada and left him to
roam freely in his own country. Although his petition makes
a passing reference to his being “in custody,” he offers not a
1

Neither the magistrate judge nor the district court addressed
jurisdiction under 28 U.S.C. § 2241.

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single fact to support that claim. When Smith filed his
petition more than a year after his removal, he without
question was not “in custody.”
Section § 2241 requires the petitioner to be “in custody”
at the time of filing for the federal courts to have jurisdiction
over a habeas petition. See, e.g., Abdala v. INS, 488 F.3d
1061, 1063–64 (9th Cir. 2007). Smith falls squarely within
our precedent: a non-citizen who has “already been removed”
prior to filing a habeas petition “do[es] not satisfy the ‘in
custody’ requirement of habeas corpus jurisdiction.” Miranda
v. Reno, 238 F.3d 1156, 1159 (9th Cir. 2001); cf.
Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003)
(providing that habeas relief is available, in certain
circumstances, to those who have been deported but filed
their petitions while in custody).
In the fourteen months between his removal and the filing
of his petition, Smith was at liberty in Canada, and was never
detained by the United States. Smith nonetheless claimed in
his petition that he was in custody by virtue of having been
removed and/or being subject to the five-year bar to reentry.
Neither status constitutes “custody” for habeas purposes.
We have long held that a petitioner “cannot avail himself
of habeas corpus jurisdiction” once he has been removed,
because once removed, he is “no longer in custody.”
Miranda, 238 F.3d at 1158–59 (internal quotation marks
omitted). Being subjected to the five-year bar is a collateral
consequence of removal, see Puga v. Chertoff, 488 F.3d 812,
814 n.2 (9th Cir. 2007), but is not “custody” for habeas
purposes. Cf. Miranda, 238 F.3d at 1159 (holding that the bar
on petitioner’s return to the United States because of an
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sufficient to allow the federal courts to exercise habeas
jurisdiction over his claims). Accordingly, Smith has failed to
establish that the district court had subject matter jurisdiction
to hear his claims under § 2241.2
II. CLAIMS UNDER 8 U.S.C. § 1252(E)(2)
Despite the jurisdictional barriers posed by 28 U.S.C.
§ 2241, Smith argues that we have jurisdiction to consider his
claims under the separate system of habeas review established
by 8 U.S.C. § 1252(e)(2). According to Smith, his case
should have been “referred to an immigration judge for a
determination of whether he is admissible.” Assuming,
without deciding, that there is no custody requirement under
§ 1252(e)(2)3, we agree with Smith that there is limited

2
We decline to consider Smith’s alternate claim, raised for the first time
in his reply brief on appeal, that he was “in custody” on the day he filed
his petition because on that day, he drove to the port of entry in Blaine,
Washington, to request admission into the United States, and was referred
to secondary inspection. Not only do we generally decline to consider new
arguments raised for the first time on appeal, Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999), especially when they are raised for the first
time in the reply brief, Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738
(9th Cir. 1986), but this claim also rests on facts and documents that were
never before the district court. See Kirshner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988) (stating that “[p]apers not filed with
the district court or admitted into evidence by that court are not part of the
clerk’s record and cannot be part of the record on appeal.”). We therefore
deny as moot the government’s motion to strike Appendix A to Smith’s
reply brief. Respondents’ Motion to Strike the Whole of Appendix A [. . .
], Appellate Dkt. No. 24.
3

Although the government took the contrary position at oral argument,
the government argued, before the district court, that there is no “in
custody” requirement for the limited review provisions of § 1252(e)(2),
and did not argue differently in its briefing on appeal. See Respondents’

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jurisdiction to consider his case under § 1252(e)(2)(B). We
nevertheless hold that Smith is not entitled to the hearing he
seeks, because as applied to the limited facts of Smith’s case,
§ 1252(e)(2) does not allow review beyond the confines of
the statute.
Section 1252(e)(2) permits review of only three issues:
“(A) whether the petitioner is an alien; (B) whether the
petitioner was ordered removed under [the expedited removal
statute, 8 U.S.C. § 1225], and (C) whether the petitioner can
prove by a preponderance of the evidence that the petitioner
is an alien lawfully admitted for permanent residence, has
been admitted as a refugee . . . , or has been granted
asylum[.]” Where a petitioner fails to establish “any of the
three permissible bases for habeas review,” we lack
jurisdiction to consider a collateral challenge to an expedited
removal order. Garcia de Rincon v. Dep’t of Homeland Sec.,
539 F.3d 1133, 1140 (9th Cir. 2008).
Smith concedes that he is an alien, and does not argue that
he falls within the third category for lawful admittees and
asylees. He contends, however, that the question on which he
seeks review is a version of the second permissible basis,
namely that he was not “ordered removed under [8 U.S.C.
§ 1225].” Smith’s argument, in effect, is that he was a

Response to Petitioner’s Objections to the Magistrate [Judge’s] Report and
Recommendation, District Ct. Dkt. No. 26 at 12 n.7 (noting that
“[a]lthough section 1252(e) refers to ‘habeas,’ it does not refer to
full-blown habeas review of executive detention. As the court in Li
observed, ‘there is no ‘in custody’ requirement for the limited review
provisions of section 1252(e)[.]’”) (citing Li v. Eddy, 259 F.3d 1132, 1135
(9th Cir. 2001), vacated on reh'g as moot, 324 F.3d 1109 (9th Cir. 2003)).
We note that the government cited an opinion that had been vacated as
moot.

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Canadian to whom the documentary requirements for
admission did not apply, and that since he was exempt from
the requirements, the CBP exceeded its authority. In other
words, Smith argues that he was not “ordered removed under
[8 U.S.C. § 1225]” because the CBP could not lawfully
remove him under that statute. Accepting his theory at face
value, Smith nonetheless cannot prevail because he was in
fact removed under § 1225.
Under immigration law, a noncitizen seeking entry at the
border is “presumed to be an immigrant until he establishes
to the satisfaction of the . . . immigration officers, at the time
of application for admission, that he is entitled to a
nonimmigrant status[.]” 8 U.S.C. § 1184(b) (citing 8 U.S.C.
§ 1101(a)(15) (defining “immigrant” and listing classes of
“nonimmigrant aliens”)). Certain Canadian citizens who have
established their nonimmigrant status are exempt from the
documentary requirements to which other arriving aliens are
subject, see 8 C.F.R. § 212.1(a), and are, in turn, not subject
to the expedited removal statute. 8 C.F.R. § 235.3(b)(2)(i).
But these exceptions apply only to nonimmigrants. See
8 C.F.R. § 212.1 (listing “Documentary Requirements for
Nonimmigrants”). Foreign citizens, including Canadians,
who are deemed to be intending immigrants are subject
to documentary requirements under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), and are removable under the expedited
removal statute, 8 U.S.C. § 1225. Whereas noncitizens
planning to travel to the United States “temporarily for
business or temporarily for pleasure” may be entitled to
nonimmigrant status, noncitizens “coming [to the United
States] for the purpose . . . of performing skilled or unskilled
labor,” with certain exceptions not relevant here, are
presumed immigrants. See 8 U.S.C. § 1101(a)(15)(B) et seq.;

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see also §§ 1101(a)(15)(G), (H), (I), (L), (V) (defining
exceptions); 8 U.S.C. § 1184(b).
Smith failed to defeat the presumption that he should have
been classified as an intending immigrant. The photographic
equipment he carried, along with large quantities of
undeclared cash and flyers advertising his business in
Arizona, convinced the CBP that Smith intended to “work[]
in the United States advertising and running a photography
business,” activities that surpass those permitted under the
temporary visitor categories. The CBP therefore categorized
Smith as an intending immigrant under § 1182(a)(7)(A)(i)(I).
Under § 1184(b), Smith bore the burden of proving that his
undertakings in the United States entitled him to
nonimmigrant status, but Smith, who admitted that he lied
at several points during the inspection process, failed to do
so. 4 The CBP found Smith inadmissible under
§ 1182(a)(7)(A)(i)(I), and placed him in expedited removal
proceedings as mandated by § 1225(b)(1)(A)(i).
Smith was “ordered removed” under § 1225. The
jurisdiction-stripping statute, § 1252(e)(2) and related

4

We do not evaluate the merits of the CBP’s decision to classify Smith
as an intending immigrant, see 8 U.S.C. § 1252(e)(5) (barring judicial
review of “whether the alien is actually inadmissible or entitled to any
relief from removal”), nor do we inquire as to whether, had Smith made
an honest request to enter for business purposes, as a temporary visitor or
otherwise, he might have been granted a visa to do so. See, e.g., Matter of
Hira, 11 I&N Dec. 824 (BIA 1966); but see In the Matter of M., 6 I&N
Dec. 533 (BIA 1955).

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regulations, at least as applied to the narrow facts of Smith’s
case, permit us to go no further.5
PETITION DENIED.6

5

We recognize that Canada is a valuable trading partner of the United
States, and that there is a free flow of visitors to the United States from
Canada. See Brief Amici Curiae of Bellingham/Whatcom Chamber of
Commerce et al. (pointing to the importance of Canada to U.S. economic
and foreign relations). We are not persuaded by the argument of Smith and
amici that denying relief in this case will undermine transborder relations.
This opinion is limited to the specific circumstances of Smith’s
presentation at the border: lying to customs officers, carrying cash in
excess of $10,000, and intending to work in the United States. We do not
opine on the circumstances of Canadians who fall in the nonimmigrant
categories and are exempt from documentary requirements, see 8 C.F.R.
§ 212.1, or on other circumstances involving Canadians seeking to enter
the United States.
6

Because we are reviewing Smith’s petition under § 1252(e)(2), we
need not reach the question whether and under what circumstances a
petitioner who establishes none of the permissible bases under
§ 1252(e)(2) might still have claims under the Suspension Clause, U.S.
CONST. ART. I § 9 cl. 2, or INS v. St. Cyr, 533 U.S. 289 (2001). Smith’s
claim that the procedures at issue here violate the Due Process Clause are
foreclosed by United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,
544 (1950) (holding that “[w]hatever the procedure authorized by
Congress is, it is due process as far as an alien denied entry is
concerned”).

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