IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20366

Summary Calendar

SIXTOS MERLAN,

Petitioner-Appellant

v.

ERIC H. HOLDER, JR., U.S. Attorney General,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-3648

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Sixtos Merlan, a native and citizen of Mexico, appeals the district court’s

dismissal for lack of subject matter jurisdiction of his 28 U.S.C. § 2241 habeas

petition challenging the removal order resulting in his deportation to Mexico.

Merlan argues that he is “in custody” within the meaning of § 2241 because he

is being restrained from returning to the United States despite his wrongful

removal. The respondent argues that Merlan is not “in custody” for habeas

jurisdictional purposes and further that the REAL ID Act precludes the district

United States Court of Appeals

Fifth Circuit

F I L E D

December 6, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-20366 Document: 00511686497 Page: 1 Date Filed: 12/06/2011
No. 11-20366

court from having jurisdiction to address a habeas petition challenging a final

removal order.

Review of an order granting a dismissal under Federal Rule of Civil

Procedure 12(b)(1) is de novo. Taylor v. Acxiom Corp., 612 F.3d 325, 331 (5th

Cir. 2010). Dismissal is mandatory if the district court lacks subject matter

jurisdiction. FED. R. CIV. P. 12(h)(3).

Although an applicant need not be in actual physical custody to pursue a

habeas action, there must be some type of restraint on the liberty of a person. 

Jones v. Cunningham, 371 U.S. 236, 238-40; Zolicoffer v. U.S. Dep’t of Justice,

315 F.3d 538, 540 (5th Cir. 2003). We have not previously determined whether

an alien who has been finally removed from the United States could be

considered “in custody” for habeas purposes. However, several other circuits

have determined that a alien who has been deported pursuant to a final removal

order is not “in custody” for habeas purposes. See Kumarasamy v. Attorney

General, 453 F.3d 169, 173 (3rd Cir. 2006); Patel v. U.S. Attorney General, 334

F.3d 1259, 1263 (11th Cir. 2003); Mirando v. Reno, 238 F.3d 1156, 1159 (9th Cir.

2001). We agree with and adopt the reasoning in those cases.

Because Merlan has failed to show that his deportation was the result of

any extreme circumstances or that he is subject to any restraints in Mexico not

experienced by other non-citizens who lack the documentation to enter the

United States, he has not shown that he is “in custody” within the meaning of

§ 2241. Further, the district court did not have jurisdiction to review the final

removal order pursuant to the provisions of the REAL ID Act. See 8 U.S.C.

§ 1252(a)(5); Rosales v. Bureau of Immigration and Customs Enforcement, 426

F.3d 733, 735 (5th Cir. 2005).

Because the district court lacked jurisdiction in this case, it is not

necessary to address Merlan’s argument that the United States Attorney

General is his “custodian” within the meaning of § 2241.

2

Case: 11-20366 Document: 00511686497 Page: 2 Date Filed: 12/06/2011
No. 11-20366

The district court did not err in dismissing the petition for lack of subject

matter jurisdiction. The judgment is AFFIRMED.

3

Case: 11-20366 Document: 00511686497 Page: 3 Date Filed: 12/06/2011