Post-Removal § 2241 Habeas Jurisdiction: Supervised Release and Collateral Consequences Do Not Satisfy “In Custody” for Immigration-Process Challenges

Precedents Cited

1) “In custody” is jurisdictional and must attach to the judgment/proceeding being attacked

• Maleng v. Cook, 490 U.S. 488 (1989) (per curiam): The court relied on Maleng for two critical propositions: (i) the “in custody” requirement is jurisdictional, and (ii) a petitioner must be “in custody” under the conviction or sentence under attack at filing. This controlled Moreno’s attempt to use supervised release (criminal custody) to challenge an immigration proceeding (civil custody/consequence).
• Jones v. Cunningham, 371 U.S. 236 (1963): Cited for the broader understanding that custody includes significant restraints on liberty beyond physical detention. The court accepted the concept but concluded the restraint must still be tied to the challenged proceeding.
• Davis v. Roberts, 425 F.3d 830 (10th Cir. 2005): Reinforced that the “in custody” requirement is jurisdictional in the Tenth Circuit.
• Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010): Used to place the burden of proving jurisdiction on the party invoking it—here, Moreno.

2) Post-removal/deportation petitioners are not “in custody” for § 2241 based on the removal alone

• United States v. Camick, No. 17-3006, 2017 WL 11811332 (10th Cir. May 22, 2017) (unpublished): The panel cited this prior Tenth Circuit disposition as persuasive support for the proposition that a petitioner removed/deported before filing is not “in custody” for habeas purposes.
• The court also aligned with a broad, cross-circuit consensus: I.M. v. U.S. Customs & Border Prot., 67 F.4th 436 (D.C. Cir. 2023); Merlan v. Holder, 667 F.3d 538 (5th Cir. 2011) (per curiam); Kumarasamy v. Att'y Gen., 453 F.3d 169 (3d Cir. 2006); Samirah v. O'Connell, 335 F.3d 545 (7th Cir. 2003); Patel v. U.S. Att'y Gen., 334 F.3d 1259 (11th Cir. 2003); Miranda v. Reno, 238 F.3d 1156 (9th Cir. 2001). These cases collectively support a bright practical line: once the noncitizen is outside the United States and not subject to current U.S. detention or comparable restraints attributable to the challenged immigration action, § 2241 jurisdiction fails.

3) Supervised release is custody—but only for attacking the criminal sentence

• United States v. Cervini, 379 F.3d 987 (10th Cir. 2004): The panel accepted the familiar rule that an unexpired term of supervised release satisfies “custody.” But it treated that rule as irrelevant unless the habeas attack is directed at the criminal judgment that imposes supervised release.
• United States v. Brown, 54 F.3d 234 (5th Cir. 1995): Cited for the proposition that supervised release may remain intact after deportation/removal. The court assumed this premise arguendo, but held it still did not connect Moreno’s custody to the immigration proceeding he challenged.

4) Collateral consequences can defeat mootness but do not create custody

• Tapia Garcia v. I.N.S., 237 F.3d 1216 (10th Cir. 2001): The court used this as a contrast. Collateral consequences (e.g., reentry bars) may keep a properly filed case from becoming moot after removal, but they do not substitute for the threshold “in custody” requirement at filing.
• Samirah v. O'Connell, Patel v. U.S. Att'y Gen., and Miranda v. Reno were cited for rejecting the argument that reentry restrictions alone constitute custody.

5) No merits without jurisdiction; de novo review; procedural points

• Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998): Anchored the court’s refusal to reach due-process merits once jurisdiction was absent.
• Kellogg v. Watts Guerra LLP, 41 F.4th 1246 (10th Cir. 2022): Supported the panel’s acceptance of the district court’s representation that it conducted de novo review of the magistrate judge’s recommendation.
• Ysais v. Richardson, 603 F.3d 1175 (10th Cir. 2010): Supported the district court’s inherent authority to regulate abusive litigation and validated the permissibility of a warning about potential future filing restrictions.

6) Coram nobis is not part of a § 2241 civil habeas case

• United States v. Morgan, 346 U.S. 502 (1954): Cited to emphasize that coram nobis is a step in the criminal case, not a separate civil proceeding like habeas; thus it was misplaced in Moreno’s § 2241 action.

Legal Reasoning

1. Jurisdiction turns on “in custody” at the time of filing. The panel treated § 2241(c)’s custody requirement as a gatekeeping jurisdictional fact. Because Moreno filed in 2025 and had been removed in 2022, he had to show some present restraint amounting to “custody” attributable to the immigration proceeding he attacked.
2. Custody must be tied to the challenged proceeding. Even if Moreno was still on supervised release (a recognized form of custody), that restraint flowed from the criminal sentence, not from ICE’s expedited removal. Under Maleng v. Cook, custody “under” the challenged judgment/proceeding is required. Moreno’s petition challenged removal procedure, not the criminal judgment.
3. Collateral consequences are insufficient to create custody. Moreno’s reliance on reentry restrictions was rejected because they are collateral legal consequences, not a present restraint equivalent to custody for § 2241 jurisdiction. The court distinguished mootness doctrine (which can be satisfied by collateral consequences after a case is properly filed) from the threshold custody requirement (which must exist when the petition is filed).
4. No merits without jurisdiction. Because the district court lacked jurisdiction, it properly did not decide due-process claims about the expedited removal process.
5. Procedural challenges did not undermine the judgment. The court accepted the district court’s statement that it conducted de novo review, found no improper reliance on the government’s filing, and upheld a warning about possible future filing restrictions as within the court’s inherent authority.
6. First Amendment retaliation and coram nobis were out of place. Retaliation allegations did not cure the absence of immigration “custody,” and coram nobis is not properly appended to a § 2241 civil action.

Impact

Although designated “not binding precedent,” the decision consolidates several practical jurisdictional guardrails for post-removal litigation in the Tenth Circuit:

• Post-removal timing is often jurisdiction-dispositive in § 2241 immigration challenges. Petitioners who wait to file until after removal face a steep—and usually fatal—jurisdictional obstacle unless they can show a present restraint amounting to custody attributable to the immigration action itself.
• Supervised release does not serve as a universal “custody hook.” Even when supervised release is “custody,” it does not provide jurisdiction to challenge a different legal regime (here, removal proceedings). Future litigants will need to match the custody source to the challenged action.
• Collateral immigration consequences do not create habeas custody. Reentry bars and similar consequences may matter for mootness, but they do not establish initial habeas jurisdiction.
• Procedural discipline in magistrate-judge review and docket control. The opinion signals appellate deference to district courts’ statements that they conducted de novo review and confirms courts may warn about filing restrictions without imposing them, particularly where notice and opportunity to be heard were already provided through a recommendation process.
• Channeling of remedies. By rejecting coram nobis within § 2241 and refusing to opine advisory, the decision reinforces remedy “fit”: immigration habeas, criminal post-conviction remedies, and constitutional tort-type allegations have distinct procedural homes.