Rodriguez v. Denver Field Office (ICE)

Filing 7

ORDER of Dismissal. The Application is denied and the action is dismissed. Leave to proceed in forma paupers on appeal is denied. By Judge Lewis T. Babcock on 5/1/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00929-BNB
JOSE RODRIGUEZ,
Applicant,
v.
DENVER FIELD OFFICE, ICE
Respondent.

ORDER OF DISMISSAL

Applicant, Jose Rodriguez, is a prisoner in the custody of the Colorado
Department of Corrections at the Limon Correctional Facility in Limon, Colorado.
Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. The Court must construe the Application liberally
because Applicant is not represented by an attorney. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at
1110. For the reasons stated below, the Court will deny the Application and dismiss the
action.
Applicant is challenging an immigration detainer filed against him by the Bureau
of Immigration and Customs Enforcement (ICE). Applicant relies on the IAD and Colo.
Rev. Stat. §§ 24-60-501(VI)(a) and 18-1-405 for disposition of the detainer. Applicant
contends that the United States is bound by the provisions of the IAD when it activates
the IAD provisions, and because he is requesting disposition of charges against him the
detainer must be dismissed of or disposed of within 180 days. Applicant further

contends that the detainer also should be dismissed because the United States did not
commence a trial within 120 days of his arrival in federal court. Applicant asks that he
be brought before the Court for a determination of the legality of the detainer.
The Court has reviewed the Detainer Notice attached to the Application. The
Detainer was acknowledged by the DOC on August 12, 2013 and was signed by
Applicant on August 22, 2013. Application, ECF No. 4, at 8. The Detainer notes that
Applicant is wanted by the Bureau of Immigration and Customs Enforcement because
he is subject to deportation from the United States. Applicant’s reliance on the IAD is
misplaced.
The IAD is an interstate compact entered into by the forty-eight states, the
federal government, and the District of Columbia. See 18 U.S.C. App. 2, § 2. The
purpose of the compact is to create uniform procedures for resolving one State’s
pending charges against an individual imprisoned by another State. See Alabama v.
Bozeman, 533 U.S. 146, 148 (2001); United States v. Mauro, 436 U.S. 340, 343-44,
349-53 (1978). Under the IAD a “State” means a “State of the United States; a “ ‘State’
shall mean a State of the United States; the United States of America; a territory or
possession of the United States; the District of Columbia; the Commonwealth of Puerto
Rico.” See id., at Art. II(a). According to the detainer, Applicant is not subject to
pending charges in another State or criminal charges by the federal government.
Pursuant to 28 U.S.C. § 2241(c), Applicant may challenge the immigration
detainer only if he is in custody pursuant to the detainer. The fact that immigration
officials have issued a detainer is not sufficient, by itself, to satisfy the custody
requirement. See Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994).

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Applicant does not allege that immigration officials have taken any action with respect to
his immigration status other than to issue a detainer. The Court, therefore, finds that
Applicant is not in custody pursuant to the immigration detainer lodged against him and,
as a result, his claim challenging the immigration detainer must be dismissed.
Even if Applicant could show that he is subject to a final order of deportation, the
REAL ID Act divested federal district court of jurisdiction over § 2241 challenges to such
orders, and Applicant’s sole means of judicial review would be to petition the proper
court of appeals. Cabrera v. Trammel, 488 F. App’x 294, 296 (10th Cir. 2012) (citing
Zamarripa-Torres v. B.I.C.E., 347 F. App’x 47, 48 (5th Cir. 2009)).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not 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 Applicant files a notice of appeal he must pay the full $505 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, it is
ORDERED that the Application is denied and the action is dismissed. It is
FURTHER ORDERED that leave to proceed in forma paupers on appeal is
denied.
DATED at Denver, Colorado, this

1st day of

May

, 2014.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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