Opinion
NO. 3-01-CV-2878-D
October 3, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Alfredo Cervantes has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be dismissed for lack of subject matter jurisdiction.
I.
Petitioner is a native and citizen of Mexico. He entered the United States as an immigrant in 1971 and has resided in this country since that time. On April 6, 1994, petitioner was indicted by a federal grand jury for conspiracy to possess with intent to distribute more than five kilograms of cocaine. He pled guilty and was sentenced to 121 months confinement followed by supervised release for a period of five years. Petitioner is subject to deportation upon completion of his sentence and a detainer has been placed against him by the Immigration and Naturalization Service.
On December 28, 2001, petitioner filed a pleading entitled "Application for Excludability Waiver of Extradition § 212C" in federal district court. Liberally construed, it appears that petitioner is challenging his deportation to Mexico and seeking a discretionary waiver under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c). By order dated February 1, 2002, respondent was directed to answer the petition within 60 days. See SHOW CAUSE ORDER, 2/1/02. When no answer was filed by the April 2, 2002 deadline, the court issued a second order requiring respondent to answer the habeas petition by April 26, 2002. See ORDER, 4/12/02. This deadline came and went without any word from respondent. Finally, on May 7, 2002, a default was entered by the district clerk.
Section 212(c) of the INA, which was repealed effective September 30, 1996, provided:
Aliens lawfully admitted for permanent residence 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 . . .8 U.S.C. § 1182 (c), repealed (Sept. 30, 1996) Although the statute applied literally only to exclusion proceedings, it had been interpreted by the INS to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276, 150 L.Ed.2d 347 (2001), citing Matter of L, 1 I. N. Dec. 1, 2, 1940 WL 7544 (1940).
Unable to determine whether petitioner had ever been ordered removed by an immigration judge or, if so, whether he appealed the order to the Board of Immigration Appeals, the court set the matter for an evidentiary hearing and appointed counsel to represent petitioner. This hearing was held on October 3, 2002 before U.S. Magistrate Judge Jeff Kaplan. Petitioner appeared in person and through his counsel of record, Robert J. Herrington of the Federal Public Defender's office. Assistant United States Attorney Aaron Wiley appeared for the government. After considering the pleadings, evidence and argument of counsel, the court sua sponte determines that this case should be dismissed for lack of subject matter jurisdiction.
II.
A federal court has habeas jurisdiction to review a final order of removal. I. N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2286-87, 150 L.Ed.2d 347 (2001); see also Brumme v. Immigration and Naturalization Service, 275 F.3d 443, 446-47 (5th Cir. 2001) (declining to extend St. Cyr to habeas review of expedited removal orders). Here, all parties acknowledge that petitioner has never been ordered removed. In fact, deportation proceedings have not yet been initiated against him. The only action taken by the INS with respect to petitioner is the filing of a detainer with federal prison officials. Under these circumstances, federal habeas jurisdiction is not proper. See also Payo v. Hayes, 754 F. Supp. 164, 165-66 (N.D. Cal. 1991) (federal court lacks habeas jurisdiction to review INS detainer placed against prisoner).
The Attorney General is authorized to "provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony before the alien's release from incarceration for the underlying aggravated felony." 8 U.S.C. § 1228(a)(3)(A). However, the Attorney General is not required to initiate such proceedings before the alien is released from prison. Id. § 1228(a)(3)(B); see also Sjogreen v. Reno, 943 F. Supp. 29, 30 (D.D.C. 1996).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for lack of subject matter jurisdiction.
SO ORDERED.