United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 25, 2023 Decided May 12, 2023 No. 22-5071 I.M., APPELLANT v. UNITED STATES CUSTOMS AND BORDER PROTECTION, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:20-cv-03576) Jeffrey B. Dubner argued the cause for appellant. With him on the briefs were Sean A. Lev, Keren H. Zwick, Mark Fleming, James H. Barker, L. Allison Herzog, Joseph Begun, and Jacob P. Rush. Sabrineh Ardalan was on the brief for amicus curiae Har- vard Immigration and Refugee Clinical Program in support of appellant. Brian C. Ward, Senior Litigation Counsel, U.S. Depart- ment of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant 2 Attorney General, and Erez Reuveni, Assistant Director. Lau- ren C. Bingham, Senior Litigation Counsel, entered an appear- ance. Before: RAO and WALKER, Circuit Judges, and GINSBURG, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge WALKER, with whom Circuit Judge RAO joins except as to Part II.C. WALKER, Circuit Judge: The Government removed IM from the United States. Back in his home country, IM filed a habeas petition, arguing that his removal was unlawful. But habeas proceedings are available only when a petitioner is in government custody. Because IM was out of custody, he could not use habeas to challenge his removal. I. Background A. Statutory Scheme The Illegal Immigration Reform and Immigrant Responsi- bility Act of 1996 created an expedited removal process. It al- lows the government to quickly remove aliens who arrive in the United States without the right paperwork. If an alien ar- rives without a valid visa, or having misrepresented facts to se- cure a visa, an immigration officer may remove him “without further hearing or review” — unless he claims asylum. 8 U.S.C. § 1225(b)(1)(A)(i); id. § 1182(a)(6)(C), (a)(7)(A)(i)(I). If an alien claims asylum, the officer must “refer the alien for an interview by an asylum officer.” 8 U.S.C. § 1225(b)(1)(A)(ii). If that officer determines the alien has a credible fear of persecution, the alien “shall be detained for fur- ther consideration of the application for asylum.” Id. 3 § 1225(b)(1)(B)(ii). If not, the asylum officer “shall order the alien removed.” Id. § 1225(b)(1)(B)(iii)(I); 8 C.F.R. § 1208.30(g)(2)(iv)(A). Because expedited removal is designed to be efficient, Congress tightly restricts judicial review of expedited removal orders. “Judicial review” of expedited removal orders is only “available in habeas corpus proceedings.” 8 U.S.C. § 1252(e)(2); see also id. § 1252(a)(2)(A)(i)-(ii), (iv) (“no court shall have jurisdiction to review” expedited removal or- ders “except as provided in subsection (e)”). B. IM’s Case IM is a farmer with an interest in sustainable agriculture. To further his work, he got a visa and visited America to learn from agriculturalists. His trip went without a hitch. A year later, he returned to the country using the same visa to collab- orate with another agriculturalist. That trip didn’t go so smoothly. …
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