### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 l ack of subject matter jurisdiction of his 28 U.S.C. § 2241 habeas petition challenging th e r e m oval order resulting in his deportation to Mexico. Merlan argues that he is “in custody” within the meaning of § 2241 because he is being res t r ai n e d from returning to the United States despite his wrongful removal. The respondent argues that Merlan is not “in cu s t o dy” for habeas jurisdictional purposes and further that the REAL ID Act precludes the district U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 6 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20366 Document: 00511686497 Page: 1 Date Filed: 12/06/2011No. 11-20366

court from having jurisdiction to address a habeas petiti o n c hallenging a final removal order. Review o f an order granting a dismissal under Federal Rule of Civil Procedure 12(b)(1) is de n o vo . T aylor v. Acxiom Corp. , 612 F.3d 325, 331 (5th Cir. 2010). Dismissal is mandatory if the district court lacks s ubject matter jurisdiction. F E D . R. C IV . 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 o f a p erson. 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

a n alien who has been finally removed from the United States co u l d b e considered “in custody” for habeas purposes. However, sev e r al 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 Ku m a ras amy 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-citi z ens who lack the documentation to enter the United States, he has not shown th at h e is “in custody” within the meaning of § 2241. Further, the district court did not have jurisdiction to review the final removal order pursuant t o th e 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 th e United States Attorney General is his “custodian” within the meaning of § 2241.

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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