Lugo-Gonzalez v. People of the United States

Filing 21

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03478-BNB
ANDRES URIEL LUGO-GONZALEZ,
Applicant,
v.
GARY WILSON, DENVER COUNTY SHERIFF,
UNITED STATES BUREAU OF IMMIGRATION AND CUSTOMS, and
DEPARTMENT OF HOMELAND SECURITY,
Respondents.

ORDER OF DISMISSAL

Applicant, Andres Uriel Lugo-Gonzalez, currently is detained at the Denver Van
Cise-Simonet Detention Center in Denver, Colorado. On February 25, 2014, Mr. LugoGonzalez submitted pro se an Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 20). He has been granted leave to proceed
pursuant to 28 U.S.C. § 1915.
I. Background
Applicant alleges that he is a native and citizen of Mexico who currently is
detained at the Denver Van Cise-Simonet Detention Center pending the disposition of
state criminal charges. (ECF No. 20 at 1-4). Applicant contends that after his arrest in
April 2013, the United States Immigration and Customs Enforcement (“ICE”) filed a
detainer against him. (Id. at 2). He asserts that he “is able to make bond on his
pending state charges, however, such action would be vain and futile” because he

would continue to be held in custody pursuant to the ICE detainer. (Id.). Applicant
argues that his detention by Respondents pending the disposition of his state criminal
charges violates his constitutional rights. (Id.). He requests that the Court order
Respondents to provide Applicant with a bond hearing with respect to his ICE detainer.
(Id.).
II. Legal Discussion
Mr. Lugo-Gonalez is proceeding pro se. The Court, therefore, "review[s] his
pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
However, a pro se litigant's "conclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts
that have not been alleged, or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle Mr.
Lugo-Gonzalez to an application of different rules. See Montoya v. Chao, 296 F.3d 952,
957 (10th Cir. 2002). After review of the Amended Application, the Court concludes that
it lacks jurisdiction to hear the § 2241 Application.
An application for habeas corpus pursuant to 28 U.S.C. § 2241 may only be
granted if the Applicant "is in custody in violation of the Constitution, or laws or treaties
of the United States." 28 U.S.C. § 2241(c)(3). Federal courts have habeas jurisdiction
to examine the statutory and constitutional bases for an immigration detention unrelated
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to a final order of removal. Demore v. Kim, 538 U.S. 510, 517–18 (2003). However, the
fact that immigration officials have issued a detainer is not sufficient, by itself, to satisfy
the custody requirement. See Galaviz-Medina, 27 F.3d 487, 493 (10th Cir. 1994). In
Galaviz-Medina, the Tenth Circuit explained that a detainer, as distinguished from other
ICE orders, does not put a “hold” on the noncitizen. Id. Rather, a detainer serves only
as a notice to prison authorities that immigration authorities are going to be making a
decision about the deportability of the noncitizen in the future. Id.; see e.g., Liranzo v.
United States, 690 F.3d 78, 82 (2d Cir.2012) (noting that “ICE issued an immigration
detainer to [jail] officials requesting that they release Liranzo only into ICE's custody” so
that he could be removed from the United States); United States v. Uribe–Rios, 558
F.3d 347, 350 n. 1 (4th Cir.2009) (defining detainers as a “request that another law
enforcement agency temporarily detain an alien” to permit immigration officials to
assume custody (citing 8 C.F.R. § 287.7)); United States v. Female Juvenile, A.F.S.,
377 F.3d 27, 35 (1st Cir.2004) (noting that a “detainer ... serves as a request that
another law enforcement agency notify the INS before releasing an alien from
detention” (citing 8 C.F.R. § 287.7(a))); Giddings v. Chandler, 979 F.2d 1104, 1105 n. 3
(5th Cir.1992) (describing the procedure under § 287.7 as “an informal [one] 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”).
In his Amended Application, Mr. Lubog-Gonzalez alleges that ICE has lodged a
detainer against him. A detainer, however, is not sufficient, by itself, to satisfy the
custody requirement. See Galaviz-Medina, 27 F.3d at 493. Mr. Lugo-Gonzalez does
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not allege that he is subject to a final order of deportation. Nor does he allege that
immigration officials have taken any action with respect to his immigration status other
than to issue a detainer. Therefore, Mr. Lugo-Gonzalez is not in custody pursuant to
the immigration detainer lodged against him; rather he is in the custody of the Denver
Detention Center pending the disposition of state criminal charges. Because Applicant
is not “in custody” for purposes of § 2241, this Court lacks subject-matter jurisdiction to
consider his claim against Respondents.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Lugo-Gonzalez files a notice of appeal he also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, for the foregoing reasons, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 20), filed by Andres Uriel Lugo-Gonzalez, is DISMISSED
without prejudice for lack of jurisdiction. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is

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FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 4th

day of

April

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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