Opinion
3:01-CV-2618-G
March 28, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the court in implementation thereof, this cause has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 by a state inmate who has been ordered removed by the Immigration and Naturalization Service (INS). Parties: Petitioner is presently confined at the Dolph Brisco Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Dilley, Texas. Respondent is the INS.
In INS v. St. Cyr, 533 U.S. 289, 314 (2001), the Supreme Court held that habeas junsdiction under 28 U.S.C. § 2241 was not repealed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Statement of Case: Petitioner, a Mexican national, entered the United States as an immigrant on December 7, 1985. (Resp.'s Answer at 1). On August 12, 1993, following pleas of guilty, Petitioner was convicted in Criminal District Court No. 5, Dallas County, Texas, of unlawful possession of marijuana, unlawful possession with intent to deliver cocaine, and two cases of attempted capital murder of a police officer. (Resp.'s App. at 006-02 1). He was sentenced to twenty years for the first conviction and twenty-five years for each of the following three convictions. ( Id.).
On November 30, 1992, prior to the above convictions, Petitioner was convicted, under the alias of Juan Villaneuva, of attempted possession of a controlled substance with intent to distribute in Salt Lake County, Utah. (Resp. App. at 001). He was sentenced to a term of imprisonment not to exceed five years. His sentence, however, was stayed and probation was imposed for 36 months with a fine of $750. ( Id.). He was also to be released forthwith to the INS for deportation. ( Id.). The record reflects Petitioner voluntarily returned to Mexico under two separate alien numbers. ( Id. at 005).
On June 14, 1995, the INS issued an Order to Show Cause and Notice of Hearing charging Petitioner with removability because of the above crimes. ( Id. at 022-026). On August 25, 1997, Petitioner was ordered removed to Mexico by an immigration judge because he had been convicted of at least one aggravated felony and a controlled substance violation. ( Id. at 33). Because of his conviction for an aggravated felony, the immigration judge concluded that Petitioner was not eligible for any relief from deportation. ( Id. at 34). On February 10, 1998, the Board of Immigration Appeals (BIA) affirmed the immigration judge's findings that Petitioner was subject to removal and that he was ineligible for relief from deportation. ( Id. at 039-040).
In light of the final order of removal, the court presumes the INS has lodged a detainer with the TDCJ-ID.
In this habeas action, Petitioner alleges he is entitled to a waiver from deportation under former § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182. He relies on the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 326 (2001), which held inter alia that provisions of the AEDPA and IIRIRA, precluding alien who was removable because of conviction for aggravated felony from applying for discretionary relief from deportation, did not apply retroactively to alien who pled guilty to sale of controlled substance prior to the enactment of the AEDPA and IIRIRA.
Respondent has filed a motion to dismiss on the ground that Petitioner is not entitled to § 212(c) relief. In his reply, Petitioner seeks dismissal of this action for lack of jurisdiction because he is presently serving his state sentences within TDCJ and, thus, he is not in INS custody for purposes of habeas jurisdiction.
Findings and Conclusions: "The writ of habeas corpus functions to grant relief from unlawful custody or imprisonment. Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ." Prieto v. Gluch, 913 F.2d 1159, 1162-63 (6th Cir. 1990).
Simply stated, habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose. While it is correctly alluded to as the Great Writ, it cannot be utilized as a base for the review of a refusal to grant collateral administrative relief or as a springboard to adjudicate matters foreign to the question of the legality of custody.Pierre v. United States, 525 F.2d 933, 935-56 (5th Cir. 1976).
Petitioner is not in custody on any immigration charges. Rather, he is incarcerated on a state conviction that is unrelated to his status as an alien. "Filing a detainer is an informal procedure in which the INS informs prison officials that a person is subject to deportation and requests that officials give the INS notice of the person's death, impending release, or transfer to another institution." Giddings v. Chandler, 979 F.2d 1104, 1105 n. 3 (5th Cir. 1992). A detainer filed by the INS does not cause a convicted felon to come within the custody of the INS for purposes of habeas corpus relief. Santana v. Chandler, 961 F.2d 514, 516 (5th Cir. 1992); see also Prieto v. Gluch, 913 F.2d 1159, 1162-64 (6th Cir. 1990); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988). That a final order of deportation has been entered against Petitioner likewise does not mean he is "in custody" for purposes of obtaining federal habeas relief. See United States ex rel. Marcello v. Dist. Director, INS, 634 F.2d 964, 970 (5th Cir. 1981) (holding that a final order of deportation alone does not satisfy the "in custody" requirement within the context of INA appeal and habeas procedures that have since been repealed). Contra Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994) (holding that a detainer and a final order of deportation are sufficient to satisfy the "in custody" requirement).
To meet the in custody requirement in the Fifth Circuit, Petitioner must show more than an INS detainer and a final order of deportation. See Fernandez v. Immigration and Naturalization Service, 2001 WL 435065, 3:01cv317-P (N.D. Tex. April 20, 2001) (Findings, conclusions and Recommendation of the magistrate judge, subsequently adopted by the District Court on May 7, 2001). Therefore, Petitioner is correct in asserting that he is presently not in INS custody for purposes of habeas jurisdiction. (Petitioner's Reply at 1-2). Accordingly, the District Court should dismiss this petition for lack of jurisdiction.
Even if the District Court concludes that Petitioner is in INS custody, it should deny Petitioner's claim that he is entitled to a waiver of deportation under 8 U.S.C. § 1182(c), INA § 212(c). The Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 315-318 (2001), requires that Petitioner's claim be analyzed under the statute as it existed when Petitioner pled guilty. In 1993, § 1182(c) (which was amended by the AEDPA and eventually repealed as part of IIRIRA) provided:
Aliens lawfully admitted for permanent residen[ce] who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) of this section (other than paragraph (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been conviction of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least five years.8 U.S.C. § 1182(c) (1993).
Although this provision was literally applicable only to exclusion proceedings, the BIA has interpreted the section as authorizing permanent resident aliens to apply for a discretionary waiver from deportation.St. Cyr, 533 U.S. at 295. Petitioner, however, is excluded from applying for a discretionary waiver by the terms of the statute. He was convicted of at least one aggravated felony which carries a term of imprisonment of over five years. Therefore, Petitioner had no expectation of relief from deportation at the time he entered his guilty pleas. Consequently, he is not entitled to federal habeas relief.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District court dismiss for lack of jurisdiction the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
A copy of this recommendation will be mailed to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.