CHICAGO (CN) – No relief is available to a Mexican man – a lawful permanent resident for 40 years – who was forcibly removed from the U.S. based on a 30-year-old statutory rape conviction, the 7th Circuit ruled.
Hilario Rivas-Melendrez moved to the United States in 1970. Ten years later, he was convicted of statutory rape under California law.
It was another 30 years before federal immigration authorities sought removal on the basis of the conviction. “In the meantime, Rivas served in the United States Navy; married his wife, who is now a lawful permanent resident as well; fathered four children, all of whom are United States citizens; and established stable residency and steady employment in Chicago,” 7th Circuit Judge Diane Sykes summarized.
Rivas-Melendrez was arrested in November 2009 and held in custody for two months in Georgia before receiving a hearing.
Before an immigration judge, Rivas-Melendrez argued that the statutory rape conviction was not an aggravated felony. Though 9th Circuit case law supported Rivas-Melendrez’s contention, the immigration judge disagreed and ordered removal.
Thirty days later, in August 2010, Rivas-Melendrez was removed to Mexico and banned from returning to the U.S. He had not motioned to stay his removal nor appealed the removal order to the Board of Immigration appeals during the three week period.
Rivas-Melendrez subsequently petitioned the U.S. District Court for the Northern District of Illinois for habeas relief. Despite expressing sympathy for his plight, Judge James Holderman denied the petition on jurisdictional grounds.
The 7th Circuit reluctantly affirmed.
Though Rivas-Melendrez would be entitled to review in “the appropriate court of appeals,” here the Eleventh Circuit, other jurisdictional barriers prevent reopening of his case.
Federal courts cannot hear challenges to execution of removal orders under 8 U.S.C. § 1252(g), the three-judge panel determined.
Additionally, Sykes wrote, “Rivas faces a separate jurisdictional obstacle under the general habeas statute itself. A person must be ‘in custody’ of the United States at the time he files his habeas petition for a district court to acquire jurisdiction over the action.”
Forcible removal from the United States does not meet the “in custody” requirement for a habeas petition.
“We do not doubt the severe hardships that Rivas’s removal impose upon him and his family. To remove a lawful permanent resident after 40 years of residency … and to separate him from his wife and four children in the process, is indeed a unique kind of hardship … But this unique hardship simply does not translate into the kind of unique restraint needed to meet the ‘in custody’ requirement as it has been understood in our caselaw.”
Sykes expressed concern that jurisdictional limits effectively eliminate any remedy for procedural violations committed by immigration authorities once removal has occurred.
“What occurred here hardly inspires confidence in our immigration authorities. This is especially so where DHS’s removal efforts are directed at a long-time permanent resident, husband, and father of four who has served in the military and remained gainfully employed,” she wrote.