* 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should not be published and is not precedent except under the limited circumstances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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-10306

Summary Calendar

_______________

ALEXANDER TITO HUMPHRIES,

Petitioner-Appellant,

VERSUS

UNITED STATES OF AMERICA,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:96-CV-453-T)

_________________________

January 7, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Alexander Tito Humphries appeals the denial of his habeas

corpus petition challenging the validity of an exclusion and

deportation order under 8 U.S.C. § 1105a(a)(10). Finding no error,

we affirm.
2 The petition was styled originally as a 28 U.S.C. § 2255 motion to

vacate, set aside, or correct sentence.

2

I.

Humphries, a Kenyan citizen and national and United States

immigration parolee, pled guilty to lacking a valid immigration

visa under 8 U.S.C. § 1182(a)(7)(A)(i)(I), at a hearing before an

immigration judge (“IJ”) in September 1995. Humphries, who was

represented by counsel at the hearing, was notified that the IJ’s

decision would become final if he failed to appeal timely to the

Board of Immigration Appeals (“BIA”). Humphries did not appeal,

and, after his motions to reopen the hearing and stay deportation

were denied by the IJ, and by the BIA on appeal, he was ordered to

report for deportation proceedings on March 12, 1996.

Pursuant to 8 U.S.C. § 1105a(a)(10),2 Humphries filed the

instant petition for writ of habeas corpus on February 15, 1996,

alleging various defects in the IJ’s original exclusion and

deportation order. Although he had been incarcerated prior to

filing his petition, Humphries indicated, in response to a

questionnaire from the magistrate judge, that he had been released

under $5,000 bond pending deportation. In a subsequent pleading,

Humphries also indicated that he had failed to appear as instructed

for his March 12, 1996, deportation proceeding. The district court

thereafter dismissed, without prejudice, Humphries’s petition for

lack of subject matter jurisdiction, finding that Humphries, by

failing to appear for his scheduled deportation, had released
3

himself constructively from custody of the Immigration and

Naturalization Service (“INS”).

II.

Section 1105a(a)(10) provides that “any alien held in custody

pursuant to an order of deportation may obtain judicial review

thereof by habeas corpus proceedings.” This does not require that

one be physically confined in order to file a habeas petition, but

is satisfied where one has been released from physical confinement

and placed on parole under an unexpired sentence. See Maleng v.

Cook, 490 U.S. 488, 491 (1989) (per curiam). “[T]he mere existence

of an outstanding deportation order against an alien . . . [does

not] place him in the status of 'held in custody.'” United States

ex rel. Marcello v. District Dir. of the INS, 634 F.2d 964, 970

(5th Cir.), cert. denied, 452 U.S. 917 (1981).

Because we may affirm on any legal ground apparent from the

record, see Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir.

1992), cert. denied, 507 U.S. 972 (1993), we need not determine

whether the district court decided correctly that it lacked subject

matter jurisdiction. Rather, because Humphries has failed to

appear for his deportation proceeding, we refuse to permit him to

“call upon the resources of [this] Court for determination of his

claims.” Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per

curiam); see also Arana v. United States INS, 673 F.2d 75, 77 (3d
4

Cir. 1982) (per curiam); United States v. Jake H. Davis, 625 F.2d

79, 79 (5th Cir. 1980) (per curiam); Quarles v. Alabama, 578 F.2d

1148, 1149 (5th Cir. 1978); Matter of Barocio, 19 I&N Dec. 255, 258

(BIA 1985).

AFFIRMED.