Opinion
No. 3:02-CV-2470-R
August 15, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
Parties: Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2241. Respondent is the Department of Homeland Security.
Factual Background: Petitioner is a native and citizen of Mexico. On July 7, 2000, he entered the United States illegally. The Immigration Service at or near Brownsville, Texas, detained him. Petitioner claimed to be a United States citizen and presented the INS with a United States birth certificate that did not belong to him. Petitioner later admitted that the birth certificate did not belong to him and that he was a native and citizen of Mexico.
Petitioner was placed in removal proceedings pursuant to section 240 of the INA, 8 U.S.C. § 1229 and 1229a. Petitioner was charged with being an alien present in the United States without being admitted or paroled under section 212(a)(6)(A)(I) of the INA, 8 U.S.C. § 1182. (Respondent's Ex. 1, 2).
On July 20, 2000, Petitioner posted a five thousand dollar immigration bond and was released from custody. On October 30, 2001, Petitioner received a final hearing from the Immigration court. Petitioner was ordered removed from the United States to Mexico after the denial of his application for adjustment of status under section 245(i) of the INA, 8 U.S.C. § 1255. On September 25, 2002, the Board of Immigration Appeals affirmed the decision. On November 13, 2002, Respondent mailed a request to the bond obligor for surrender of the Petitioner. Petitioner did not appear. (Respondent's Ex. 4-5).
Discussion:
Petitioner argues he is being unlawfully detained and that he is entitled to have his detention reviewed by this Court. (Pet. p. 4). Petitioner states Respondent is detaining him without an opportunity to demonstrate his suitability for release by showing that he is not a danger to others or a risk to abscond. ( Id. at p. 4).
Respondent states that Petitioner is not in custody of the Department of Homeland Security and that he has not been in custody since July 20, 2000. (Resp. p. 5-6). Respondent argues that because Petitioner is not in custody, and was not in custody at the time he filed this petition, he is not entitled to relief under 28 U.S.C. § 2241.
Petitioner filed a response on February 19, 2003, that does not dispute he is not in custody and was not in custody at the time he filed his petition. Petitioner states he has voluntarily appeared before Respondent on November 13, 2002, November 26, 2002, and January 20, 2003. Petitioner also attempts to add the new claim that his Notice to Appear did not afford him due process because he is being removed under § 212(a)(6)(C)(i) of the INA and the Notice to Appear indicates he is being removed under § 212(a)(6)(A)(i).
The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are " in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241(c)(3) (emphasis added); Maleng v. Cook, 490 U.S. 488, 490 (1989); see also Santana v. Chandler, 961 F.2d 514, 516 (5th Cir. 1992) (finding pendency of INS detainer does not satisfy "in custody" requirement); Fernandez v. Immigration and Naturalization Service, 2001 WL 435065, 3:01-CV-317-P (N.D. Tex. April 20, 2001) (finding Petitioner must show more than an ENS detainer and a final order of deportation to meet "in custody" requirement). Further, the United States Supreme Court has construed the "in custody" language to require that the petitioner be in custody at the time the petition is filed. Maleng, 490 U.S. at 490-91 (citing Carafas v. LaValle, 391 U.S. 234, 238 (1968)).
Petitioner is not "in custody" of the Respondent, nor was in "in custody" at the time he filed this petition. The petition should therefore be dismissed for want of subject matter jurisdiction.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2241 be dismissed for lack of subject matter jurisdiction.