dissenting.

My colleagues, in a rush to correct what they perceive as an injustice, implicitly decide what has yet to be determined— Rivera’s citizenship — and, reasoning backward from that determination, create jurisdiction in the district court where none had previously existed. I dissent because their approach conflicts with our prior opinions and is not sound.

Whatever the shortcomings of the Immigration and Naturalization Service (“INS”) and the Immigration Judge (“IJ”), Rivera’s predicament is of his own making. Rivera, by his own admissions, at the age of eighteen decided to develop an alias. He purchased a Mexican birth certificate and used that to apply for a Washington State driver’s license and identification card. When he was arrested in January 1998, by a Border Patrol agent, rather than face jail or imprisonment due to his outstanding warrants, he presented himself as a Mexican citizen and accepted deportation to Mexico. When he was again arrested in the United States in December 2000, Rivera changed his tune and told the Border Patrol agents that he was a United States citizen.

The government, understandably leery of his representations, commenced removal proceedings against Rivera. The IJ con *1141 ducted an evidentiary hearing and determined that Rivera had not rebutted the evidence that he was a native and citizen of Mexico and had not provided sufficient evidence that he was a United States citizen.

I agree with my colleagues that the IJ’s conduct at the hearings and her approach leave much to be desired. Nonetheless, the IJ’s decision was a decision on the merits of Rivera’s claim of citizenship. Moreover, Rivera allowed the IJ’s decision to become final, and that decision is not before this court. It became final because Rivera, although having initially determined to appeal the IJ’s decision, a week later waived his appeal. As a result of the waiver of his appeal, Rivera was deported to Mexico. 1

Although Rivera was apparently deported to Mexico in February 2001, he did not file his petition for a writ of habeas corpus in the district court until March 2003.

The majority, in its efforts to relieve Rivera of the consequences of waiving his appeal and thereby consenting to deportation, disregards Taniguchi v. Schultz, 303 F.3d 950 (9th Cir.2002), and Miranda v. Reno, 238 F.3d 1156 (9th Cir.2001), and creates an improper and unworkable basis for jurisdiction in the district court.

In Tanigtichi, the alien, like Rivera, did not file an appeal from the IJ’s initial decision that she was removable. Instead she filed a motion to reopen with the IJ. Taniguchi, 303 F.3d at 954 . The IJ denied the motion as untimely, the Board of Immigration Appeals (“BIA”) denied her appeal holding that the motion was untimely, and Taniguchi filed a petition for review with this court. Id. Meanwhile, Taniguchi filed a petition for writ of habeas corpus in the district court alleging that she was a United States citizen. Id. The district court dismissed the citizenship claim for lack of jurisdiction as such claims must be brought in the court of appeals. Id. Tani-guchi appealed to this court.

We considered the petition for review and appeal together. We dismissed the petition for review explaining that “Tani-guchi’s claim of citizenship fails because she has not exhausted her administrative remedies as required by statute.” Id. at 955 . We then affirmed the district court’s dismissal for lack of jurisdiction explaining: “[i]f an alien in a removal proceeding is ordered removed, but contends that she is a United States citizen, [8 U.S.C.] § 1252(b)(5) is the exclusive statutory method of determining the claim of citizenship, and it is brought as a petition for review of a final order of removal.” Id. at 956. Thus, we affirmed the district court’s dismissal for lack of jurisdiction, even though we had already determined that Taniguchi could not seek relief under § 1252(b)(5) because she had failed to appeal the IJ’s initial decision.

The majority attempts to distinguish Taniguchi on the ground that Taniguchi’s claim to citizenship was “patently frivolous,” but this will not do. A district court must determine its jurisdiction on the basis of the allegations in the complaint. If we hold that a district court has jurisdiction over non-frivolous claims of citizenship, we are in essence requiring that district courts entertain all petitions until such time as the courts can determine whether they are factually frivolous. In other words, district courts will have to entertain the cases until such time as they have developed records which are suffi *1142 cient to allow'the courts to rule on the merits of the petitioners’ allegations.

I agree with the majority that United States citizenship should not be easily shed and that a citizen keeps it “unless he voluntarily relinquishes it.” Afroyim v. Rusk, 387 U.S. 253, 262 , 87 S.Ct. 1660 , 18 L.Ed.2d 757 (1967). I part company with the majority in that I find in this record sufficient indicia of voluntary relinquishment to justify Rivera’s current predicament. Even accepting Rivera’s presentation as true, he chose to adopt an alias to avoid his warrants, he chose to represent himself to the government as a Mexican citizen, he chose to be removed to Mexico rather than face his warrants, and he chose to waive his appeal from the IJ’s decision and again accept removal to Mexico. Reasonable minds may find that this constitutes a voluntary relinquishment. In any event, Rivera is not entitled to any greater, or lesser, rights than any other person who petitions a district court claiming to be a United States citizen.

Even if the district court were not compelled to dismiss Rivera’s'petition under Taniguehi it nonetheless properly dismissed the petition pursuant to our decision in Miranda . An IJ there found that Miranda was an aggravated felon and ordered him removed. Miranda, 238 F.3d at 1158 . Miranda waived his right to appeal to the BIA and was removed to Mexico. Id. He then sought review in the district court, which held it lacked subject matter jurisdiction. Id. at 1157 . On appeal, we held that although the district court had general jurisdiction to consider a habeas petition challenging a final order of removal, Miranda’s petition had to be dismissed. We stated: “[b]ut Miranda cannot avail himself of habeas corpus jurisdiction because he has already been removed and therefore is no longer ‘in custody.’ See 28 U.S.C. § 2241 ; see also Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (‘[T]he “in custody” requirement is jurisdictional.’).” Miranda, 238 F.3d at 1158 . The district court had no jurisdiction over Rivera because he was not in the Western District of Washington when the habeas petition was filed. In fact, he had not been in that district for over two years at the time the petition was filed.

The majority’s attempt to circumvent our holding in Miranda by arguing that Rivera’s case presents an “extreme circumstance,” citing Singh v. Waters, 87 F.3d 346 (9th Cir.1996), converts a checkpoint into a freeway. Singh was removed from the country after the immigration judge had granted a stay of deportation. Id.' at 347. We determined that he had been unlawfully removed because (1) “the Service proceeded with his deportation after a stay of deportation had been issued by the immigration judge,” and (2) “by having the file of Singh and failing to inform his counsel ... that it had the file prior to the handcuffing and arrest on December 2, 1993, the Service effectively scuttled the right to counsel guaranteed to Singh by statute.” Id. at 349 . We concluded:

Id. at 349-50 (citations omitted).

A moment’s reflection reveals that Rivera does not present an extreme circum *1143 stance as defined by Singh . There was no order staying Rivera’s removal, or even any pending proceeding in which such an order might have been sought. Rather, he had waived his appeal to the BIA and requested removal to Mexico “as soon as possible” (as he had previously in 1998). Accordingly, the government agents would have been derelict in their duties if they had not promptly removed Rivera.

The majority, however, opines that Rivera’s acquiescence in his removal is of no moment because it “was not made knowingly or voluntarily.” With all due respect, there is little before us to support this “finding.” It does not appear that Rivera ever submitted an affidavit to the district court. Rather, his counsel argued that the IJ did not adequately advise Rivera of his right to appeal. But Rivera did not waive his right to appeal before the IJ. When he left the IJ he still had his right to appeal. Six days later he chose to abandon that right. There is nothing in the record from Rivera indicating why he abandoned his appeal.

Ultimately, the majority’s reasoning falls back upon its assumption that Rivera is a citizen. As previously noted, however, the district court’s jurisdiction cannot turn on the under-lying merits of an allegation of citizenship. Otherwise, any person who was removed from the United States (and remains outside the United States) could invoke a district court’s jurisdiction, particularly if the individual did not have counsel at the time of removal, 2 simply by alleging that he or she is a United States citizen.

Although Rivera may be a United States citizen, this court does not have the jurisdiction to so decide on this appeal. Rivera, for not the first time, allowed himself to be removed to Mexico. His removal does not, as the majority claims, render Rivera stateless. It does, however, require that he resort to other remedies. 3 Pursuant to our opinion in Miranda , Rivera should not be allowed to invoke the district court’s jurisdiction by filing a petition for writ of habeas corpus in a district court some two years after his removal to Mexico. I would affirm the district court’s dismissal of Rivera’s petition for lack of jurisdiction.

. Rivera preferred to be deported to Mexico in 1998, rather than face possible incarceration due to his outstanding warrants. Similarly, in 2001, he preferred deportation to Mexico to the possibility of being in INS custody in this country while his appeal was pending.

. The majority stresses that Rivera did not have counsel, but does not point to anything in the record that suggests that Rivera was denied counsel or was not aware that he could have counsel. The fact that he made an arguably poor decision in abandoning his appeal does not establish that either that decision or his decision not to employ counsel was not freely made. Similarly, the possibility that Rivera is a United States citizen is not, in itself, a basis for challenging his decisions. Hundreds of thousands of people go through immigration processes every year without counsel. There is no basis in fact for presuming that un-counseled immigration decisions should be open to judicial review (when counseled decisions are not). Such a presumption would seriously undermine the country's immigration policies.

. For example, 8 U.S.C. § 1503 (b) sets forth a procedure for a person outside the United States, who claims to be a United States citizen, to obtain a certificate of identity from a United States diplomatic or consular officer.