Luevano v. Bureau of Immigration & Customs Enforcement , 78 F. App'x 343 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 15, 2003
Charles R. Fulbruge III
Clerk
No. 03-20418
Summary Calendar
EUGENIO VELA LUEVANO,
Petitioner-Appellant,
versus
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-01-CV-4315)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Eugenio Vela Luevano, federal prisoner number 80990-079,
appeals the dismissal of his 28 U.S.C. § 2241 petition by which he
challenged a 1998 removal order. Luevano is serving a 78-month
sentence for illegal reentry after deportation, for which he was
convicted on 10 April 2000.
The district court held that it lacked subject matter
jurisdiction for Luevano's § 2241 petition because: (1) Luevano is
not under order of removal and therefore is not in custody of the
*
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this opinion should not be published and is not precedent except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.
Immigration and Naturalization Service; and (2) Luevano did not
exhaust his administrative remedies. We review de novo a district
court’s rulings on jurisdiction. E.g., Zolicoffer v. United States
Dep’t of Justice, 315 F.3d 538, 540 (5th Cir. 2003).
Leuvano insists that he is in custody pursuant to a prior
deportation order because the INS may reinstate the order of
removal. Leuvano has not demonstrated error in the district
court's determination that he failed to meet the "in custody"
requirement for purposes of 28 U.S.C. § 2241 jurisdiction. Our
court has held: “For a court to have habeas jurisdiction under
section 2241, the prisoner must be ‘in custody’ at the time he
files his petition for the conviction or sentence he wishes to
challenge”. Zolicoffer, 315 F.3d at 540. Luevano is in custody
for the conviction on illegal reentry; he is not in custody of the
INS for the purposes of challenging the order of deportation.
Finally, Luevano has abandoned the exhaustion issue by failing
to adequately brief his claim that he exhausted his administrative
remedies. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993);
FED. R. APP. P. 28(a)(9).
AFFIRMED
2