If the immigrant faces no further criminal penalty based on a conviction, but has been arrested by the immigration authorities, taken into immigration custody, released on immigration bond, and embroiled in deportation proceedings, that immigration custody arguably should be considered sufficient custody to confer jurisdiction in a habeas corpus proceeding.  Both state and federal courts, however, have rejected this proposition.

 

            The Ninth Circuit has held that federal habeas corpus may not be used against the immigration authorities as custodian to challenge the constitutionality of a state criminal conviction.[130]  The Ninth Circuit cited Custis v. United States,[131] which held that a criminal defendant cannot collaterally attack in federal sentencing proceedings the constitutionality of a prior conviction being used to enhance a second sentence.  The Ninth Circuit found that allowing a collateral attack on the conviction that provided the underlying basis of the deportation proceedings was conceptually identical to the situation in Custis.  The Ninth Circuit held that while immigration custody was a basis for habeas jurisdiction under 28 U.S.C. § 2241, petitioner’s continued detention by the INS was lawful based on the facial validity of the conviction.  Finally, the court noted that the validity of the conviction should be tested in state court, which has the greatest interest in preserving its judgment or correcting it.  It does not appear that any other federal circuit courts have addressed this question or followed the Ninth Circuit on this point.

            Even if immigration custody does not constitute a sufficient custodial basis for habeas jurisdiction in federal court, a foreign national could argue that actual immigration incarceration as the result of an invalid state conviction gives rise to constructive custody sufficient to confer state habeas jurisdiction, since, as Contreras suggested, the challenge should be brought in state court and the state has the greatest interest in defending the validity of the conviction. 

 

            Obviously, decisions from both the state and federal courts finding a lack of custody on the basis of INS detention gives rise to an unconscionable dilemma.  Both state and federal courts “pass the buck” to the other with the unjust result that relief from unlawful immigration custody based on an unconstitutional state conviction is available nowhere.  The foreign national has no relief from the disastrous immigration effects of unconstitutional state convictions after state probation or parole has expired, even though there is no barrier to the immigration authorities waiting many years after the criminal conviction has occurred before initiating removal proceedings.

 

            There are several strong arguments, however, that the Contreras case was wrongly decided and that federal habeas corpus pursuant to 28 U.S.C. § 2241 should lie to correct constitutional errors in the underlying conviction.  First, the Contreras court assumed that the conviction could be challenged in state court, which is at least sometimes proving incorrect, leaving the petitioner without any forum in which to challenge the constitutionality of the state conviction.  For the federal court to say that the state court is where noncitizens must vindicate their rights before being deported by a federal agency is an illogical attempt to avoid responsibility for the federal government’s ultimate act of deportation.

 

            That the immigration authorities were entitled to rely on the challenged prior conviction (at least until it has been set aside) does not excuse them from defending their illegal custody in court, just as a prison warden must, who is equally entitled to keep the prisoner in custody until the conviction has been vacated.  Indeed, the custodian is invariably required to come forward to defend the constitutionality of the custody.

 

            Aside from policy concerns, the Contreras court simply erred when it found an absence of jurisdiction.  The court relied upon Custis for the proposition that a noncitizen may not collaterally challenge his conviction in a deportation proceeding.  Custis dealt with the situation where the defendant was attacking the prior conviction in the current sentencing proceeding.  Where immigration custody is at issue, the immigration authorities are taking action based solely on what would be the prior conviction in the Custis context.  In this context, however, it is not a mere prior conviction enhancing sentence for another offense, it is the sole basis for current federal immigration jurisdiction.  Custis does not apply because this is not a matter of a prior conviction; it is the sole current basis for federal action.

 

            Moreover, the Ninth Circuit decision attempted to distinguish Garlotte v. Fordice[132] on the basis that in Garlotte, both convictions occurred in the same jurisdiction, whereas here, the prior conviction occurred in state court, whereas the current immigration custody was federal.  No reason was given why this difference should lead to a result different than the Supreme Court reached in Garlotte.  Moreover, a number of decisions have followed the Garlotte rule even where the convictions occurred in different jurisdictions.[133]  Another panel of the Ninth Circuit has also held that an expired state sentence may be attacked on federal habeas if it enhances a current federal sentence.[134]  In Maleng v. Cook,[135] itself, the prior conviction under attack had been rendered by a different “sovereign” than had imposed the current sentence.[136]  The Supreme Court, however, did not reach the issue whether Cook could challenge his 1959 expired state conviction on the ground it had been used to enhance his current federal sentence.[137]

 

            While the federal immigration law may properly limit the immigration court inquiry into the existence of conviction, the Contreras court did not consider that a federal statute cannot limit the scope of availability of the writ of habeas corpus under Article One, Section Nine of the United States Constitution.  It is quite clear that when a person is being held by the immigration authorities, that person is in fact in custody.  Where the basis of that custody is the result of constitutional error, federal habeas corpus should be available to test the legality of the immigration custody. 

 

            Counsel may be able — despite Contreras — to persuade a state judge that actual or constructive immigration custody, based on an illegal state conviction, constitutes sufficient government restraint to support habeas corpus proceedings in the criminal court of conviction. 

 

            Federal law supports the rule that habeas corpus will lie when the conviction results in enhanced custody in a different jurisdiction or under another conviction.  Under federal law, a petitioner incarcerated under a conviction may by habeas corpus challenge a second conviction so long as the challenged conviction adds in some way to the “aggregate of the . . . sentences” the petitioner eventually must serve.[138]  As Professor Liebman has written:

 

The challenged conviction has sufficient adverse consequences to establish custody if it (i) does or may affect the length or conditions of the current incarceration under another conviction, (ii) subjects the petitioner to future incarceration in the same penal system in which the petitioner now is incarcerated, or (iii) subjects the petitioner to future incarceration in another jurisdiction at least so long as the second jurisdiction has lodged a detainer with the officials currently incarcerating the petitioner.[139]

 

            Habeas corpus may be used while petitioner is in custody on the second of two sentences, although the petition challenges the validity of the first sentence or conviction, so long as the earlier conviction may affect the length or conditions of the present incarceration.[140]

 

            In United States ex rel. Zegarski v. Moyer,[141] the court held that the federal habeas corpus custody requirement was satisfied by immigration custody pursuant to a deportation order that was issued as a collateral consequence of a Florida criminal conviction for which the immigrant had served the entire sentence and was no longer in state custody.  The court reasoned that habeas could be used to challenge the constitutionality of conviction A, even though the petitioner was no longer in custody on that conviction, when it has been used to augment the sentence for conviction B, as to which the petitioner is still in custody.[142]

 

            The prosecution may point out that the client is facing civil detention and deportation by the INS, not further criminal penalties in another jurisdiction based upon the conviction.  Finally, federal law recognizes that deportation as a result of a criminal conviction is “the equivalent of punishment,”[143] the “loss of property or life or all that makes life worthwhile.”[144]  Banishing an immigrant forever, away from home and family, never to return, is a consequence that should be avoided, “a sentence to a life in exile.”[145]  This would be “exile, a dreadful punishment.”[146]

 

Finally, the federal courts have held that a noncitizen who has been deported is no longer “in custody” for purposes of habeas corpus jurisdiction under 28 U.S.C. § 2241.[147]  Remember, however, that the relevant inquiry is whether the petitioner is “in custody” on the day the petition is filed.  Thus, if the petitioner is deported during the pendency of the habeas corpus proceedings, the court still retains jurisdiction to complete the adjudication of the habeas proceeding so long as sufficient collateral consequences continue to hinge on the outcome of the action to create a case or controversy.  Where the petitioner suffers continuing immigration consequences, such as inadmissibility, as a result of the conviction whose constitutionality is being challenged, the action is not moot.  See § 5.38, infra.  Because the BIA can under some circumstances reopen removal proceedings once the conviction has been vacated, the post-conviction court can nonetheless grant effective relief even after the client has been deported.  See § 10.15, et seq., infra.

 

            PRACTICE POINTER:  Neither coram nobis relief nor a non-statutory or statutory motion to vacate generally requires a showing of custody as a prerequisite to relief.  These other vehicles may therefore be used as alternatives in the event that a habeas corpus petition is dismissed for lack of custody.

 

[130] Contreras v. Schiltgen, 122 F.3d 30 (9th Cir. 1997) (dismissing habeas action challenging lawfulness of state conviction brought against custodial INS District Director by petitioner who had finished serving his state sentence).

[131] Custis v. United States, 511 U.S. 485 (1994).

[132] Garlotte v. Fordice, 115 S.Ct. 1948, 1952 (1995).  The Supreme Court held habeas jurisdiction existed to attack conviction No. 2 (in which the petitioner is currently in custody) on the basis that that custody was enhanced on the basis of conviction No. 1, which was alleged to be unconstitutional.

[133] E.g., Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990) (expired state prior conviction, current federal custody); Mills v. Jordan, 979 F.2d 1273 (7th Cir. 1992) (current Indiana habitual offender sentence enhanced by expired Florida prior); Lowery v. Young, 887 F.2d 1309 (7th Cir. 1989) (current Wisconsin sentence enhanced by expired Georgia priors).

[134] Allen v. State of Oregon, 153 F.3d 1046 (9th Cir. 1998).

[135] Maleng v. Cook, 490 U.S. 488 (1989).

[136] Id., 109 S.Ct. 1923, 1925 n.*.

[137] Ibid.

[138] Peyton v. Rowe, 391 U.S. 54, 64‑65 (1968).

[139] I J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure 87‑88 (1988), citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 n.4 (1973); United States ex rel. Meadows v. New York, 426 F.2d 1176, 1179 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971).

[140] E.g., Young v. Lynaugh, 821 F.2d 1133, 1137 (5th Cir.), cert. denied, 108 S.Ct. 503 (1987); Sammons v. Rodgers, 785 F.2d 1343, 1345‑1346 (5th Cir. 1986); Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir. 1979) (dictum) (custody established on challenge to earlier conviction if  “there is a positive, demonstrable relationship between the prior conviction and the petitioner’s present incarceration”; sufficient if vacating the conviction would give the petitioner “time served” credit against his present sentence); Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir. 1969); United States ex rel. Urbano v. Yeager, 323 F. Supp. 774 (D.N.J. 1971) (conviction for which sentence was served remained an impediment to the petitioner’s parole from incarceration for a later conviction).

[141] United States ex rel. Zegarski v. Moyer, 1992 U.S. Dist. LEXIS 11575 (N.D. Ill. 1992).

[142] Lowery v. Young, 887 F.2d 1309 (7th Cir. 1989); Crank v. Duckworth, 905 F.2d 1090, 1091 (7th Cir. 1990), cert. denied, 111 S.Ct. 712 (1991).

[143] Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).

[144] Ng Fung Ho v. White, 259 U.S. 276 (1922). 

[145] Jordan v. DeGeorge, 341 U.S. 223 (1951).

[146] Klonis v. Davis, 13 F.2d 630, 630-631 (2d Cir. 1926).

[147] Macias v. Greene, 28 F.Supp.2d 635 (D. Colo. 1998).

Second Circuit

POST CON RELIEF - FEDERAL - HABEAS - CUSTODY - IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY UNDER 28 USC 2254
United States v. Ogunwomoju, 512 F.3d 69 (2d Cir. Jan. 7, 2008) (a petitioner in immigration custody or under an order of removal as a consequence of his criminal conviction is not "in custody" within the meaning of 28 U.S.C. 2254 for purposes of habeas corpus jurisdiction).

Fifth Circuit

POST-CON RELIEF " VEHICLES " HABEAS " CUSTODY " DEPORTED
Merlan v. Holder, 667 F.3d 538 (5th Cir. Dec. 6, 2011) (Noncitizen who has been deported to Mexico following a final order of removal is not "in custody" for purposes of 28 U.S.C. 2241).

Sixth Circuit

POST-CONVICTION RELIEF " FEDERAL " HABEAS CORPUS " STANDING " IMMIGRATION CONSEQUENCES AS LASTING COLLATERAL CONSEQUENCES SUFFICIENT FOR STANDING
Pola v. United States, ___ F.3d ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (petitioner has standing to pursue a motion under 28 USC 2255, because he continues to suffer from an injury in fact because we may presume collateral consequences, he was removed from the United States, and he is now inadmissible to reenter the United States).

Ninth Circuit

POST CON RELIEF " FEDERAL " VEHICLES " HABEAS CORPUS " CUSTODY REQUIREMENT " IMMIGRATION CUSTODY
Veltmann Barragan v. Holder, __ F.3d __ (9th Cir. Jun. 19, 2013) (noncitizens who are removable but not yet subject to a removal order are not "in custody" for purposes of 28 U.S.C. 2241).

POST CONVICTION RELIEF - HABEAS - FEDERAL - CUSTODY - IMMIGRATION CUSTODY DOES NOT CONSTITUTE CUSTODY SUFFICIENT TO GRANT FEDERAL HABEAS JURISDICTION SUFFICIENT TO CHALLENGE LEGAL VALIDITY OF CONVICTION UNDERLYING DEPORTATION PROCEEDINGS
Resendiz v. Kovensky, ___ F.3d ___, 2005 WL 1501495 (9th Cir. June 27, 2005) (immigration custody does not constitute custody sufficient to grant federal habeas jurisdiction sufficient to challenge legal validity of conviction underlying deportation proceedings, after AEDPA and IIRAIRA, so a petitioner may not collaterally attack his state court conviction in a 28 U.S.C. 2241 petition against the INS).
http://caselaw.lp.findlaw.com/data2/circs/9th/0355136p.pdf