FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBERT FLORES-TORRES, Agency 

No. A44-284-242,

Petitioner-Appellant,

v.

MICHAEL B. MUKASEY, Attorney No. 08-16484

General; MICHAEL CHERTOFF, D.C. No.

Secretary of the Department of  3:08-cv-01037-

Homeland Security; NANCY WHA

ALCANTAR, ICE Detention and OPINION Removal Operations Field Office

Director; EDWARD FLORES, Chief of

Corrections, Santa Clara County

Jail,

Respondents-Appellees. 

Appeal from the United States District Court

for the Northern District of California

William H. Alsup, District Judge, Presiding

Argued and Submitted

October 20, 2008—San Francisco, California

Filed November 10, 2008

Before: Mary M. Schroeder, Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

Opinion by Judge Reinhardt

15495
COUNSEL

Holly S. Cooper, Esq., Supervising Attorney, U.C. Davis

Immigration Law Clinic, Davis, California, for the petitionerappellant. 

FLORES-TORRES v. MUKASEY 15497
Joseph P. Russoniello, Esq., United States Attorney, Joann M.

Swanson, Esq., Chief, Civil Division, Melanie L. Proctor,

Esq., Assistant United States Attorney, San Francisco, California, for the respondents-appellees. 

OPINION

REINHARDT, Circuit Judge: 

For over two years, since October 10, 2006, the Bureau of

Immigration and Customs Enforcement (ICE) has detained

Herbert Alexander Flores-Torres in immigration custody during his ongoing removal proceedings. ICE claims it has the

authority to do so under the Immigration and Nationality Act

(INA), which permits the detention of an “alien” who is in

removal proceedings. Torres, however, contends that he is not

an “alien,” that he became a United States citizen at the age

of seventeen when his mother was naturalized, and that ICE

is therefore without authority to detain him. We reverse the

district court’s dismissal for lack of jurisdiction of Torres’s

habeas petition challenging his continued confinement, and

remand for a determination whether he is a citizen and thus

immune from detention under the INA. 

I. FACTUAL & PROCEDURAL BACKGROUND

Torres was born out of wedlock in El Salvador in 1978. In

1986, he came to the United States to join his mother, who

had already moved here. He obtained lawful permanent resident status in 1993, and his mother became a naturalized

United States citizen in 1995 when he was seventeen years

old. 

In 2005, Torres was convicted of possession of a firearm by

a felon with two priors, in violation of California Penal Code

§ 12021(a)(1).1 The government then charged Torres with

1Torres was convicted of two prior felonies in 2002 and placed in

removal proceedings, but was granted cancellation of removal. 

15498 FLORES-TORRES v. MUKASEY
being removable as an alien with a conviction for an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and placed

him in immigration custody under the mandatory detention

statute, 8 U.S.C. § 1226(c). Section 1226(c) requires the

Attorney General to detain “any alien” who is inadmissible or

deportable for having committed certain offenses.2

Torres filed a motion to terminate proceedings, arguing that

under the former 8 U.S.C. § 1432, he automatically derived

citizenship from his mother when she was naturalized. Under

United States law, his claim appears to depend ultimately on

whether or not his father’s paternity has been established by

legitimization under El Salvadoran law. The immigration

judge (“IJ”) denied Torres’s citizenship claim, and the Board

of Immigration Appeals (“BIA”) dismissed the appeal, but

subsequently reopened the proceedings at Torres’s request.

The BIA then vacated its decision and remanded to the IJ for

another hearing. On August 1, 2008, the IJ again denied Torres’s citizenship claim. 

Torres filed the underlying petition for a writ of habeas corpus in the Northern District of California on February 21,

2008, seeking release from continued custody. The district

court dismissed the habeas petition in part, holding that it

lacked jurisdiction to determine whether Torres is a citizen

who cannot be held in immigration detention, and denied it in

part, rejecting Torres’s challenge to the length of his detention

without an individualized custody hearing. Torres timely

appealed. We have jurisdiction under 28 U.S.C. § 1291, and

we review de novo the district court’s dismissal of his habeas

petition. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.

2000). The second part of Torres’s petition regarding detention without an individualized custody hearing is now moot,3

2Aliens detained under 8 U.S.C. § 1226(c) may be held without an individualized bond hearing. In contrast, the general detention provision, 8

U.S.C. § 1226(a), provides for such a hearing. See Casas-Castrillon v.

Dept. of Homeland Security, 535 F.3d 942, 950 (9th Cir. 2008). 

3Since the district court’s decision, the IJ has held an individualized

bond determination hearing pursuant to our decision in Casas-Castrillon,

FLORES-TORRES v. MUKASEY 15499
but his essential complaint that he may not be held in detention by ICE because he is a United States citizen, and that he

is therefore entitled to a habeas hearing, is not. 

II. ANALYSIS

[1] Section 1226 of the INA vests the Attorney General

with authority to detain an “alien” during removal proceedings. See 8 U.S.C. § 1226(a); id. § 1226(c). Torres, however,

asserts that the Attorney General is without authority to detain

him because he is not an “alien,” but a United States citizen.

There is no dispute that if Torres is a citizen the government

has no authority under the INA to detain him, as well as no

interest in doing so, and that his detention would be unlawful

under the Constitution and under the Non-Detention Act, 18

U.S.C. § 4001.4 The parties dispute only whether § 1252 of

the INAprecludes the district court from exercising jurisdiction over Torres’s habeas petition. We hold that it does not.

[2] Section 1252 of the INA, as amended by the REAL ID

Act, Pub. L. No. 109-13, Div. B, 199 Stat. § 231 (2005), provides that the exclusive method for obtaining judicial review

of “a final order of removal” is through filing a petition for

review in the court of appeals. 8 U.S.C. § 1252(a)(2),

§ 1252(a)(5), § 1252(b)(9). The same section of the INA,

under 8 U.S.C. § 1252(b), explains that:

“With respect to review of an order of removal . . .

the following requirements apply: 

535 F.3d 942. The IJ denied the motion for release from custody, finding

that Torres was both a flight risk and a danger to the community. Torres

is now being held under the general detention statute, 8 U.S.C. § 1226(a).

4The Non-Detention Act provides that “[n]o citizen shall be imprisoned

or otherwise detained by the United States except pursuant to an Act of

Congress.” 18 U.S.C. § 4001. 

15500 FLORES-TORRES v. MUKASEY
. . . . 

(5) Treatment of nationality claims 

(A) Court determination if no issue of

fact 

If the petitioner claims to be a national of

the United States and the court of appeals

finds from the pleadings and affidavits

that no genuine issue of material fact

about the petitioner’s nationality is presented, the court shall decide the nationality claim. 

(B) Transfer if issue of fact 

If the petitioner claims to be a national of

the United States and the court of appeals

finds that a genuine issue of material fact

about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court of the United

States for the judicial district in which

the petitioner resides for a new hearing

on the nationality claim and a decision

on that claim as if an action had been

brought in the district court under section

2201 of Title 28. 

(C) Limitation on determination 

The petitioner may have such nationality

claim decided only as provided in this

paragraph.” 

8 U.S.C. § 1252(b) (emphasis added). Recently, we interpreted these provisions as requiring that challenges to

FLORES-TORRES v. MUKASEY 15501
removal orders, based on a claim to citizenship, be brought in

a petition for review. Iasu v. Smith, 511 F.3d 881, 889 (9th

Cir. 2007). 

[3] The government argues, and the district court held, that

Iasu’s interpretation of § 1252(b) forecloses the exercise of

jurisdiction in Torres’s case. Section 1252(b) by its terms,

however, applies only to citizenship claims raised in connection with “review of an order of removal.” 8 U.S.C.

§ 1252(b). Such challenges, we said, must be brought in a

petition for review of the removal order. Section 1252(b) does

not, and is not intended to, prescribe the exclusive method of

determining nationality claims in all circumstances, but only

in cases in which the petitioner challenges a final order of

removal — an order that is subject to immediate review by an

Article III court, either a court of appeals or, if there is a disputed issue of fact regarding citizenship, a district court, by

transfer from the court of appeals. 8 U.S.C. § 1252(b)(5)(B).

[4] Torres’s habeas petition, unlike Iasu’s, does not challenge any final order of removal, but challenges his detention

prior to the issuance of any such order. Two recent cases

explain why this difference is critical. First, we have held that

“the jurisdiction-stripping provision [of the REAL ID Act]

does not apply to federal habeas corpus petitions that do not

involve final orders of removal.” Nadarajah v. Gonzales, 443

F.3d 1069, 1075 (9th Cir. 2006). Second, as we concluded

recently, “[e]ven post-[REAL ID Act], aliens may continue to

bring collateral legal challenges to the Attorney General’s

detention authority . . . through a petition for habeas corpus.”

Casas-Castrillon v. Dept. of Homeland Security, 535 F.3d

942, 946 (9th Cir. 2008).

5

5Although the parties do not contest this point, 8 U.S.C. § 1226(e) does

not bar jurisdiction in this case either. Torres challenges the government’s

statutory authority to hold him, not the “Attorney General’s discretionary

judgment” or an “action or decision by the Attorney General . . . regarding

the detention or release of any alien or the grant, revocation, or denial of

bond or parole.” 8 U.S.C. § 1226(e) (emphasis added). The Supreme Court

has held that § 1226(e) does not bar such challenges. See Demore v. Kim,

538 U.S. 510, 516-17 (2003) (finding jurisdiction where petitioner challenged “the statutory framework that permits his detention without bail”).

15502 FLORES-TORRES v. MUKASEY
The government argues that, because the question of its

authority to detain Torres is intertwined with the citizenship

claim at issue in his removal proceedings, Torres must wait

until the conclusion of those proceedings before receiving a

judicial determination as to whether he is a citizen and as to

whether his detention by ICE is lawful. Then, the government

says, he must challenge any citizenship determination by

means of a petition for review of a final order of removal.

This argument conflicts not only with the plain language of

§ 1252 but with the well-established principle that we require

“a particularly clear statement” of intent from Congress

before we find habeas review foreclosed. Demore v. Kim, 538

U.S. 510, 517 (2003); I.N.S. v. St. Cyr, 533 U.S. 289, 298-99

(2001).6 The government’s argument is also precluded by

Theagene v. Gonzales, 411 F.3d 1107, 1110 (9th Cir. 2005),

which holds that a nationality claim need not be exhausted

because only an “alien” is required to exhaust administrative

remedies under the INA. See also Minasyan v. Gonzales, 401

F.3d 1069, 1075 (9th Cir. 2005) (“Because Minasyan’s claim

to citizenship is not patently frivolous, we have jurisdiction to

review it, irrespective of whether he has exhausted his claim

before the agency.”). We must remember that we are here

dealing with the detention of an individual who claims to be

a United States citizen. If his claim is true, his detention under

the INA violates the Non-Detention Act as well as the Due

Process Clause of the Constitution. Finally, Congress has

never enacted any statute that would deprive a citizen of his

right to a judicial determination of the legality of his detention

6Although the government does not raise 8 U.S.C. § 1252(b)(9) in its

argument, we hold that this section does not provide a “clear statement”

foreclosing habeas review in this circumstance. We have previously held

that § 1252(b)(9) does not preclude habeas petitions that challenge detention or do not otherwise involve final orders of removal. See CasasCastrillon, 535 F.3d at 946; Nadarajah, 443 F.3d at 1075. Furthermore,

the section applies only to questions arising from “any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C.

§ 1252(b)(9) (emphasis added). It does not bar an action by Torres, who

challenges his detention and raises a non-frivolous claim of citizenship. 

FLORES-TORRES v. MUKASEY 15503
simply because his case is pending before an administrative

agency. 

There are also serious questions concerning the government’s position that an individual who asserts a non-frivolous

claim of citizenship can be detained during immigration proceedings — which, for Torres, has already lasted over two

years — without habeas review. Cf. Iasu, 511 F.3d at 891

(“[A] nonfrivolous claim to U.S. citizenship gives a person a

constitutional right to judicial review . . . .”) (internal quotation marks omitted).7

“In our society liberty is the norm, and

detention prior to trial or without trial is the carefully limited

exception.” United States v. Salerno, 481 U.S. 739, 755

(1987). The Supreme Court has recognized such exceptions

only in “certain special and narrow nonpunitive circumstances

where a special justification . . . outweighs the individual’s

constitutionally protected interest in avoiding physical

restraint.” Zadvydas v. Davis, 533 U.S. 678, 690, 692 (2001)

(internal citations and quotation marks omitted).8 The Court

recently explained that “[w]here a person is detained by executive order . . . the need for collateral review is most pressing”

and “the need for habeas corpus is more urgent.” Boumediene

v. Bush, 128 S.Ct. 2229, 2269 (2008).

[5] Torres asserts that his detention is unlawful because he

is a citizen — that he automatically derived citizenship from

7We have held, however, that the elimination of habeas jurisdiction to

challenge a final order of removal is not an unconstitutional suspension

of the writ because the INA “provides an adequate substitute by allowing

judicial review of the final order of removal through the courts of

appeals.” See Iasu, 511 F.3d at 888 (internal quotation marks omitted).

Such a challenge can be expedited at the petitioner’s request. 

8

In Demore v. Kim, the Supreme Court upheld mandatory detention of

aliens for a brief period during removal proceedings, but that holding was

specifically limited to persons who concede their alienage, and, even

more, their deportability. See 538 U.S. at 522-26, 523 n.6. The Court

noted that “Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Id. at 522. 

15504 FLORES-TORRES v. MUKASEY
his mother under the former 8 U.S.C. § 1432 when he was

seventeen because he was born out of wedlock and was not

legitimated by his father. His claim is non-frivolous on its

face. The government’s authority to detain Torres appears to

depend on the question of whether he was legitimated by his

father under El Salvadoran law. The district court is the

appropriate forum to resolve such a claim. We hold that Torres does not have to wait until his removal proceedings are

completed and a final removal order is issued before he can

secure habeas review of his citizenship claim and of his contention that he may not be detained under the INA. 

[6] For the reasons stated above, the district court has jurisdiction over Torres’s habeas petition challenging his detention. We therefore remand to the district court to hear the

merits of his habeas petition. Because we do not consider the

merits of his claim and we assume that the district court will

act promptly, we deny Torres’s request for immediate release.

REVERSED AND REMANDED. 

FLORES-TORRES v. MUKASEY 15505