Habeas petition challenging reinstatement

Alvarez-Lopez v. Adducci, 2012 WL 2407702, No. 12-11952 (E.D. Mich. June 26, 2012).

This Mexican citizen was granted voluntary departure and returned to Mexico.  He then reentered the U.S. without inspection.  Later, he was caught by ICE, which wanted to reinstate a prior removal order.  The alien filed a habeas petition alleging that there was no prior order because he complied with the voluntary departure order.

Because the habeas petition was filed while the alien was in ICE custody, his subsequent removal did not divest the court of jurisdiction.

The court found that the REAL ID Act did not divest it of jurisdiction because he was challenging the "existence" of the order, not the removal order itself.

On the merits, though, the court denied the petition because there was insufficient proof that he complied with the voluntary departure order.