Moreno v. Attorney General

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 4, 2026
• Docket: 25-6077
• Status: Unpublished

Opinion

Appellate Case: 25-6077 Document: 20-1 Date Filed: 03/04/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 4, 2026 _________________________________ Christopher M. Wolpert Clerk of Court BANI MORENO,

Petitioner - Appellant,

v. No. 25-6077 (D.C. No. 5:25-CV-00052-R) ATTORNEY GENERAL, DHS/ICE/DOJ, (W.D. Okla.)

Respondent - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________

Bani Moreno was removed from the United States in 2022. In 2025 he filed an

application under 28 U.S.C. § 2241 challenging the removal proceeding. The district

court determined that it lacked jurisdiction to consider the § 2241 application because

Mr. Moreno was not “in custody” when he filed it, and then it denied his motion for

reconsideration under Fed. R. Civ. P. 59(e). Mr. Moreno appeals from the dismissal

After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-6077 Document: 20-1 Date Filed: 03/04/2026 Page: 2

of his application and the denial of his motion. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm. 1

BACKGROUND

A jury convicted Mr. Moreno of several federal drug-trafficking crimes, and

this court affirmed. United States v. Moreno, 607 F. App’x 775, 775-76, 779

(10th Cir. 2015). Mr. Moreno then filed an unsuccessful motion under 28 U.S.C.

§ 2255. United States v. Moreno, 655 F. App’x 708, 710 (10th Cir. 2016).

Mr. Moreno was a lawful permanent resident of the United States. But his

convictions made him eligible for removal, and once he was released from prison, he

was transferred to the custody of United States Immigration and Customs

Enforcement (ICE). After an expedited removal process, in September 2022 ICE

removed him from the United States. Although he uses an Oklahoma address for

mail, Mr. Moreno avers that he has not returned to the United States and instead

remains in Mexico.

In January 2025 Mr. Moreno filed a § 2241 application challenging his

expedited removal proceedings. He alleged that the removal process violated his

right to due process because he was denied a fair hearing, was denied the opportunity

to challenge his removal before he was removed, had limited to no access to counsel

1 Mr. Moreno does not require a certificate of appealability to appeal the dismissal of his § 2241 application because he challenges federal proceedings. See Hunnicutt v. Hawk, 229 F.3d 997, 998 (10th Cir. 2000) (per curiam). 2 Appellate Case: 25-6077 Document: 20-1 Date Filed: 03/04/2026 Page: 3

and legal resources, was coerced into submitting his fingerprints, and was coerced

into signing documents he did not understand.

A magistrate judge directed the government to respond. After the case was

reassigned, however, the newly assigned magistrate judge vacated the orders to

respond because she had “determined that a response from Respondents is no longer

necessary.” R. vol. I at 46. Recognizing that § 2241 requires an applicant to be “in

custody,” she recommended that the district court dismiss the habeas application for

lack of jurisdiction because Mr. Moreno “no longer was ‘in custody’ upon his

removal from the United States.” Id. at 57. She also recommended the district court

impose filing restrictions.

Mr. Moreno filed objections, and the government responded. Mr. Moreno then

moved to strike the response, asserting that the government had violated the court’s

prior directive not to respond.

The district court took up together the report and recommendation, the

objections, and the motion. It denied the motion to strike, stating that Mr. Moreno’s

“arguments are misplaced” and “[i]n any event, the Court would reach the same

result even without considering” the response. Id. at 83 n.1. It rejected

Mr. Moreno’s objections, adopted the report and recommendation (except the

recommendation to impose filing restrictions), and dismissed the § 2241 application

for lack of jurisdiction. Although it declined to impose filing restrictions, the court

warned Mr. Moreno that “abusive or repetitive filings may result in future filing

restrictions.” Id. at 85.

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Mr. Moreno filed a Rule 59(e) motion requesting reconsideration because the

court had not addressed several of his “key objections.” Id. at 87. He asserted that

the court had not conducted a de novo review, but instead had merely rubber-stamped

the report and recommendation. In addition to arguments regarding his custody

status and alleged due-process violations by ICE, he asserted that the court

improperly relied on the government’s response to his objections. He also stated that

recent contacts from a probation officer suggested retaliatory enforcement in

violation of the First Amendment, and he requested coram nobis relief as an

alternative remedy.

The district court denied the motion, stating that “[t]he Court is well aware of

its duty to make a de novo determination and did so in this matter,” and “[t]he fact

that the Court ultimately agreed with the Report’s analysis and conclusions, and did

not find [Mr. Moreno’s] objections persuasive, does not suggest that the Court did

not conduct an independent review.” Id. at 97. It rejected the merits arguments as

inappropriate attempts to rehash arguments Mr. Moreno had already made. As for

Mr. Moreno’s challenge to the government’s response to his objections, it noted that

the magistrate judge’s “order addressed the need for [the government] to file a

response or answer to the habeas Petition, not its ability to file a response to

[Mr. Moreno’s] Objection” but “[i]n any event, the issue is irrelevant because, as

noted in the order adopting the Report and Recommendation, the Court would reach

the same conclusions even without consideration of the [government’s] filing.” Id.

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at 98. Finally, the court determined that neither First Amendment retaliation nor

coram nobis is “appropriately raised in a request for relief under § 2241.” Id.

DISCUSSION

We review the dismissal of a § 2241 application de novo. See Brace v. United

States, 634 F.3d 1167, 1169 (10th Cir. 2011). We review the denial of a Rule 59(e)

motion for abuse of discretion. See Nelson v. City of Albuquerque, 921 F.3d 925, 929

(10th Cir. 2019).

I. Mr. Moreno was not “in custody” with regard to the immigration proceedings when he filed his § 2241 application.

As relevant here, § 2241(c) provides that “[t]he writ of habeas corpus shall not

extend to a prisoner unless . . . [h]e is in custody.” The “in custody” requirement of

§ 2241 is jurisdictional. See Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam);

Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005). Hence, it is Mr. Moreno’s

burden to establish he was in custody when he filed his § 2241 application.

See Green v. Napolitano, 627 F.3d 1341, 1344 (10th Cir. 2010) (“The party invoking

a court’s jurisdiction bears the burden of establishing it.”).

It is undisputed that Mr. Moreno filed his § 2241 application well after he was

removed from the United States. We have held in an unpublished opinion that an

applicant is not “in custody” when he or she files a habeas application after being

removed or deported from the country, see United States v. Camick, No. 17–3006,

2017 WL 11811332, at *2 (10th Cir. May 22, 2017), and numerous other circuit

courts have held the same, see I.M. v. U.S. Customs & Border Prot., 67 F.4th 436,

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444 (D.C. Cir. 2023); Merlan v. Holder, 667 F.3d 538, 539 (5th Cir. 2011)

(per curiam); Kumarasamy v. Att’y Gen., 453 F.3d 169, 173 (3d Cir. 2006); Samirah

v. O’Connell, 335 F.3d 545, 549-51 (7th Cir. 2003); Patel v. U.S. Att’y Gen.,

334 F.3d 1259, 1263 (11th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1158-59

(9th Cir. 2001).

The Supreme Court has defined in custody to include not only physical

detention, but also “other restraints on a man’s liberty, restraints not shared by the

public generally.” Jones v. Cunningham, 371 U.S. 236, 240 (1963). Mr. Moreno

argues that despite being outside the United States, he remains in custody because he

is subject to a term of supervised release on his underlying convictions. See, e.g.,

United States v. Cervini, 379 F.3d 987, 989 n.1 (10th Cir. 2004) (unexpired term of

supervised release satisfies the custody requirement). He points out that after he filed

his § 2241 application, he received communications from a probation officer trying to

verify whether he was in Mexico.

We accept for the sake of argument Mr. Moreno’s premise that removal did

not terminate his term of supervised release. See, e.g., United States v. Brown,

54 F.3d 234, 238 (5th Cir. 1995) (“[T]he courts recognize that a term of supervised

release remains intact after an alien’s deportation.”). Even so, he has not shown that

serving supervised release for the criminal convictions would mean that he is “in

custody” for the purpose of challenging the immigration proceeding. See Maleng,

490 U.S. at 490-91 (“We have interpreted the statutory language as requiring that the

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habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the

time his petition is filed.” (emphasis added)).

Mr. Moreno also states he is subject to a lifetime ban on reentering the United

States under 8 U.S.C. § 1326. But although the collateral consequence of reentry

restrictions may keep an already-filed habeas application from becoming moot upon

the applicant’s removal, cf., e.g., Tapia Garcia v. I.N.S., 237 F.3d 1216, 1218

(10th Cir. 2001), courts have not been persuaded that a reentry restriction satisfies

the “in custody” requirement, see Samirah, 335 F.3d at 550-51; Patel, 334 F.3d at

1263; Miranda, 238 F.3d at 1159.

For these reasons, the district court did not err in concluding that Mr. Moreno

had not demonstrated he was “in custody” for purpose of challenging the immigration

proceeding, and therefore it lacked jurisdiction to hear the § 2241 application. And

because it lacked jurisdiction, it could not reach the merits of Mr. Moreno’s

arguments. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)

(“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist, the only function remaining to

the court is that of announcing the fact and dismissing the cause.” (internal quotation

marks omitted)). Likewise, we cannot and do not reach the merits arguments.

II. Mr. Moreno has not shown that the district court failed to conduct a de novo review.

Mr. Moreno asserts that the district court did not conduct a meaningful de

novo review, instead merely rubber-stamping the magistrate judge’s report and

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recommendation. The district court, however, explicitly stated that it had conducted

a de novo review, and it reiterated that point in denying the Rule 59(e) motion. We

take the court at its word, see Kellogg v. Watts Guerra LLP, 41 F.4th 1246, 1258

(10th Cir. 2022), since Mr. Moreno gives us no reason not to do so here. Contrary to

Mr. Moreno’s assertions that the district court ignored his objections, the district

court discussed the most salient objections—e.g., whether he satisfied the custody

requirement because he remains under supervised release and suffers collateral

consequences. Although Mr. Moreno believes that the district court also should have

addressed merits issues such as his due-process allegations, the court lacked

jurisdiction to do so.

III. The district court did not improperly rely on the government response.

Mr. Moreno also argues that the district court improperly relied on the

government’s response to his objections to the magistrate judge’s report and

recommendation because (1) the court had prohibited the government from

responding, and (2) he was unable to file a reply to the response. The court,

however, merely relieved the government of an obligation to respond to Mr.

Moreno’s motion; it did not prohibit the government from responding to anything,

much less Mr. Moreno’s objections. Further, although Mr. Moreno filed a motion to

strike before the district court decided the matter, he has not shown he ever sought to

file a reply.

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IV. The district court did not violate Mr. Moreno’s rights by warning him about potential future filing restrictions.

Mr. Moreno challenges the district court’s warning that it might, in the future,

subject him to filing restrictions. While admitting the warning is “not an operative

sanction,” he asserts the warning “carries potential legal and reputational

consequences and was issued without notice or an opportunity to be heard.” Aplt.

Opening Br. at 22. He also contends that the warning “contributes to a chilling effect

on the exercise of constitutional rights, including access to the courts and First

Amendment petitioning activity.” Id. It is well-established, however, that “[f]ederal

courts have the inherent power to regulate the activities of abusive litigants by

imposing carefully tailored restrictions under appropriate circumstances.” Ysais v.

Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). The magistrate judge’s

recommendation to impose filing restrictions gave Mr. Moreno notice and an

opportunity to respond, and he was successful in persuading the district court not to

adopt that portion of the recommendation. The district court was within its authority

to issue the warning without any further procedures.

V. The district court did not err in concluding that Mr. Moreno’s invocation of the First Amendment and coram nobis was misplaced.

Mr. Moreno states that the “sudden and unusual contact” from the probation

officer raises First Amendment concerns. Aplt. Opening Br. at 21. He also “wishes

to preserve the argument for coram nobis relief as an alternative remedy.” Id. at 22.

But his First Amendment argument would not cure the failure to establish the custody

requirement. And the district court did not err in holding that his coram nobis

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argument was not properly part of this § 2241 proceeding. See, e.g., United States v.

Morgan, 346 U.S. 502, 505 n.4 (1954) (a motion for a writ of coram nobis “is a step

in the criminal case and not, like habeas corpus where relief is sought in a separate

case and record, the beginning of a separate civil Proceeding”). We decline Mr.

Moreno’s invitation to issue an advisory opinion regarding the availability of coram

nobis.

CONCLUSION

We affirm the district court’s judgment. We grant Mr. Moreno’s motion to

proceed without prepayment of costs and fees.

Entered for the Court

Harris L Hartz Circuit Judge