Bani Moreno, a lawful permanent resident, was convicted of federal drug-trafficking crimes and subsequently removed from the United States in September 2022 following an expedited removal process. While in prison, he had unsuccessfully challenged his convictions under 28 U.S.C. § 2255. After his removal, he filed a § 2241 habeas petition in 2025 challenging the removal proceedings, alleging due process violations including lack of counsel, coercion, and unfair hearings. Although he maintained an Oklahoma address for mail, he remained physically in Mexico. The district court dismissed the petition for lack of jurisdiction, finding Moreno was not 'in custody' as required by statute, and denied his subsequent motion for reconsideration.
The Tenth Circuit reviewed the dismissal de novo, focusing first on the jurisdictional 'in custody' requirement of 28 U.S.C. § 2241. The court noted that the statute does not extend to a prisoner unless they are 'in custody' at the time the petition is filed. The court affirmed that Moreno was not in custody because he had been removed from the United States. While acknowledging that 'in custody' can include restraints on liberty beyond physical detention, the court held that Moreno's term of supervised release did not satisfy the requirement for challenging the immigration proceeding. The court cited Maleng v. Cook, explaining that the custody requirement must relate to the specific conviction or sentence under attack. Moreno's supervised release stemmed from his criminal conviction, not the removal order he was challenging. Similarly, the court rejected the argument that a lifetime ban on reentry constituted 'custody,' noting that while such bans may prevent mootness, they do not satisfy the statutory custody requirement. Because the court lacked jurisdiction, it could not address Moreno's merits arguments regarding due process violations. The court also addressed procedural arguments, finding the district court did not fail to conduct a de novo review, did not improperly rely on the government's response, and acted within its inherent authority to warn Moreno about potential filing restrictions for abusive litigation.
This decision reinforces the strict jurisdictional bar on federal habeas petitions filed by non-citizens who have been removed from the United States. It clarifies that collateral consequences like supervised release or reentry bans do not satisfy the 'in custody' requirement for challenging removal proceedings. The ruling leaves open the question of what remedies, if any, are available to individuals in Moreno's position, as the court declined to address the merits of his due process claims or the availability of coram nobis relief. The decision also affirms the district court's authority to issue warnings about filing restrictions without a formal hearing, provided the warning is not an operative sanction.
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