Hernandez v. Immigration
Filing
17
OPINION AND ORDER granting to the extent that Petitioner's claims challenging his order of removal and/or future detention are dismissed for lack of jurisdiction re: 11 MOTION to dismiss for lack of jurisdiction. Petitioner's due process and equal protection claims are denied; and With no remaining claims, the Clerk of Court is directed to terminate any pending motions, close this case, and enter judgment accordingly. Signed by Judge Sheri Polster Chappell on 8/20/2014. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LAZARO HERNANDEZ,
Petitioner,
v.
Case No: 2:13-cv-807-FtM-38DNF
IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Respondent.
/
OPINION AND ORDER1
This matter comes before the Court upon a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241 by Petitioner Lazaro Hernandez (“Petitioner”) (Doc. 1, filed
November 14, 2013). Petitioner, a prisoner at the DeSoto Correctional Institute in Arcadia,
Florida, asserts that his constitutional rights have been violated because of an Immigration
and Customs Enforcement (“ICE”) detainer filed against him. Id. Respondent filed a motion
to dismiss the petition (Doc. 11, filed February 13, 2014). Petitioner filed a response to the
motion (Doc. 15, filed April 29, 2014), and it is now ripe for review.
For the reasons set forth in this Order, Respondent’s motion to dismiss is granted to
the extent that the challenges to Petitioner's future detention or to his removal order are
dismissed for lack of jurisdiction. Otherwise, the petition is denied on the merits.
1
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I.
Background
Petitioner, a native and citizen of Cuba, was paroled into the United States in 2003
and adjusted to lawful permanent status in 2008 (Doc. 11-2 at 3). On October 17, 2012,
Petitioner was convicted in the Seventeenth Judicial Circuit Court in and for Broward County,
Florida for trafficking in cocaine and for conspiracy to traffic in cocaine (Doc. 11-2 at 4; Doc.
11-3 at 2-3).
He was sentenced to six years in prison (Doc. 11-2 at 4; Doc. 11-3).
Petitioner is currently in custody of the Florida Department of Corrections (Doc. 11-4).
On November 1, 2012, ICE issued a detainer to the Florida Department of
Corrections, requesting that the Department hold Petitioner after his incarceration is
complete and transfer him within 48 hours into ICE custody (Doc. 11-5 at 2). On the same
day, Petitioner was served with a Notice to Appear (“NTA”) initiating removal proceedings
against him (Doc. 11-6). On February 27, 2013, an immigration judge ordered Petitioner
removed to Cuba based upon his criminal convictions (Doc. 11-7). Petitioner did not appeal
the order of removal.
Petitioner filed the instant petition on November 14, 2013 (Doc. 1). He raises due
process and equal protection challenges to the ICE detainer (Doc. 1 at 3). He contends
that the detainer is precluding him from obtaining minimum or community custody status and
rendering him unqualified for early release programs and work release (Doc. 1 at 4; Doc. 11). Petitioner expressly states that he is not challenging the removal order (Doc. 1 at 4).
He additionally appears to challenge his future ICE detention on the ground that he will not
be immediately removable upon his release from the FDOC, because he is Cuban, and
Cuba does not have an “immigration/deportation agreement” with the United States. Id. at
3.
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In the motion to dismiss, Respondent contends that the ICE detainer does not confer
federal habeas corpus jurisdiction; that Petitioner has not stated a constitutional violation;
and that the Court lacks jurisdiction to review Petitioner's claim regarding the likelihood of
his removal to Cuba, because such claim is not ripe (Doc. 11 at 4-14).
II.
Analysis
a.
This Court has jurisdiction to consider Petitioner's due process and
equal protection claims under § 2241
Because a writ of habeas corpus functions to grant relief from unlawful custody,
jurisdiction does not lie where the authority against whom relief is sought does not have
custody of the petitioner. See 28 U.S.C. § 2241(c) (“The writ of habeas corpus shall not
extend to a prisoner unless -- (1) [h]e is in custody under or by color of the authority of the
United States or is committed for trial before some court thereof[.]”). Respondent asserts
that Petitioner is not in custody of ICE, and therefore, he cannot proceed against ICE in this
action (Doc. 11 at 5-6).
It is well settled in the Eleventh Circuit that the placement of an ICE detainer, alone,
does not cause a petitioner to come within ICE's custody for purposes of § 2241. See Orozco
v. INS, 911 F.2d 539, 541 (11th Cir. 1990).
The Eleventh Circuit has not expressly
determined whether the placement of a detainer coupled with the existence of a removal
order constitutes ICE “custody” for habeas purposes. However, the Eleventh Circuit has
implied that the co-existence of a removal order may confer habeas jurisdiction. See
Gonzales-Corrales v. ICE, 522 F. App’x 619, 623 (11th Cir. 2013) (unpublished) (rejecting a
petitioner’s claim that he was in ICE custody because Petitioner “did not allege that removal
proceedings had commenced or that he had been taken into ICE custody.”) (emphasis
added). Moreover, the weight of authority supports a conclusion that the placement of a
detainer coupled with the existence of a final order of removal or deportation constitutes
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immigration “custody” for purposes of federal habeas review. See Kumarasamy v. Attorney
Gen. of U.S., 453 F.3d 169, 172–73 (3d Cir. 2006) (individual does not have to be in ICE's
physical custody to satisfy “in custody” requirement; rather “in custody” requirement is
satisfied when individual is subject to final order of removal); Simmonds v. I.N.S., 326 F.3d
351, 354 (2d Cir. 2003) (alien in state prison challenging final removal order was in
“constructive custody” for purpose of allowing habeas review of subsequent immigration
detention); Garcia–Echaverria v. United States, 376 F.3d 507, 511 (6th Cir. 2004) (federal
prisoner was in I.N.S. custody when he filed habeas petition challenging constitutionality of
confinement, where final order of removal was in place); Aguilera v. Kirkpatrick, 241 F.3d
1286, 1291 (10th Cir. 2001) (even though alien habeas petitioners were not being “detained,”
they were “in custody” for habeas purposes because they were subject to final deportation
orders); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995) (so long as alien
petitioner is subject to a final order of deportation, he is deemed to be “in custody” for
purposes of the Immigration and Nationality Act). Under this authority, the Court concludes
that the ICE detainer, coupled with the final removal order, renders Petitioner in the custody
of ICE for purposes of § 2241(c), despite the fact that he is not in ICE’s physical custody.
Respondent also asserts that the Court lacks jurisdiction over Petitioner's claims
under 8 U.S.C. § 1252(g) (Doc. 11 at 6-8). This provision provides that “no court shall have
jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision
or action by the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders against any alien under this chapter.” Id. This provision bars courts from
reviewing certain exercises of discretion by the attorney general. Madu v. United States Att’y
Gen., 470 F.3d 1362, 1368 (11th Cir. 2006). The provision is to be construed narrowly, and
does not apply where the petition does not challenge the attorney general's exercise of
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discretion. Id.
To the extent that Petitioner challenges his removal order or ICE’s decision to issue
a detainer, Respondent is correct that the Court is without jurisdiction to entertain such
challenges. The gravamen of Petitioner's claim, however, is that the detainer is prohibiting
him from participating in certain prison programs (Doc. 1 at 4).2 According to Petitioner,
this constitutes a violation of due process and equal protection. Id. at 3. As relief, he
appears to seek removal of the detainer so that he may participate in certain prison
programs, and so that he may be treated as other inmates. Id. Even assuming, arguendo,
that the lodging of the detainer in this case constituted a discretionary decision or action by
the attorney general within the meaning of § 1252(g), Petitioner's due process and equal
protection claims do not challenge the exercise of that discretion. Again, these claims
challenge only the effect of the immigration detainer on Petitioner's current conditions of
confinement. Accordingly, § 1252(g) does not apply.
The Court has jurisdiction to review Petitioner's due process and equal protection
claims.
b.
Petitioner has not stated a constitutional claim
Petitioner claims that the ICE detainer is precluding him from obtaining minimum or
community custody status and rendering him unqualified for early release programs and
work release, in violation of his due process and equal protection rights (Doc. 1 at 3-4).
Respondent counters that Petitioner's due process and equal protection challenges to the
effects of the ICE detainer are without merit (Doc. 11 at 10-13). The Court agrees with
Respondent.
2
Petitioner specifically asserts that he does not challenge the final order of removal (Doc. 1 at 4).
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A prisoner's liberty interest protected by the Due Process clause is generally limited
to freedom from restraint that “imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515 U.S. 472, 472
(1995). Petitioner argues that the ICE detainer makes him ineligible for work release or
early release (Doc. 1 at 4). In support of these claims, Petitioner has attached documents
showing that he is in close custody because of the detainer and that his custody level would
be lower if no detainer existed (Doc. 1-1 at 1; Doc. 15-1 at 1-2). Courts have long held that
changes in custody status, classification levels, and even denials of certain privileges are
not atypical deprivations implicating constitutionally-protected liberty interests for due
process purposes. See e.g. Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976) (noting generally
that prison transfers and changes in classification status do not require due process
protections); Murdock v. Washington, 193 F.3d 510, 513 (7th Cir. 1999) (inmates have no
protected liberty interest in attending rehabilitation program); Wishon v. Gammon, 978 F.2d
446, 450 (8th Cir. 1992) (inmates have no constitutional right to educational or vocational
opportunities); Canterino v. Wilson, 869 F.2d 948, 952–54 (6th Cir. 1989) (inmates have no
constitutionally protected liberty interest in study and work-release programs or custody
classification); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (inmates have
no federal right to particular inmate classification or eligibility for rehabilitative programs);
Puqliese v. Nelson, 617 F.2d 916, 923 (2d Cir. 1980) (same); Marchesani v. McCune, 531
F.2d 459 (10th Cir. 1976) (inmates have no protected liberty interest in particular custodial
classification, even if classification affects eligibility for preferred job assignments, transfers
to less restrictive institutions, social furloughs, or early parole); see also Lopez v. Holder,
Case No. 12-229910CIV, 2013 WL 3762456, at *4 (S.D. Fla. July 16, 2013) (the petitioner
“failed to allege facts showing that the immigration detainer impose[d] a significant or atypical
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hardship on him in relation to ordinary incidents of prison life.”); Banks v. Ellis, Case No.
3:09cv425/WS/EMT, 2010 WL 1459742, at *3 (N.D. Fla. Mar. 12, 2010), Report and
Recommendation Adopted by 2010 WL 1459770 (N.D. Fla. Apr. 12, 2010) (plaintiff failed to
allege facts showing that placement on “heightened security status” imposed significant
hardship on him in relation to ordinary incidents of prison life prior to such placement;
therefore, he failed to show he had constitutionally protected liberty interest in remaining on
former custody status); Powell v. Ellis, Case No. 3:07cvl 60/MCR/EMT, 2007 WL 2669432,
at *4 (N.D. Fla. Sept. 7, 2007) (prisoner had no liberty interest in particular job assignment
or custody classification). Petitioner has failed to allege facts that would establish that he
has a liberty interest protected by the Due Process clause.
Additionally, a penal institution's use of detainers in deciding prisoners' eligibility for
prison programs and early release does not offend equal protection principles. See McLean
v. Crabtree, 173 F.3d 1176, 1186 (9th Cir. 1999) (exclusion of prisoners with detainers from
community-based treatment programs and sentence reduction eligibility does not offend
equal protection); Gallegos-Hernandez v. United States, 688 F.3d 190, 196 (5th Cir. 2012)
(“[T]he determination that ICE detainees are ineligible to participate in prerelease halfway
house confinement is rationally related to preventing those detainees from fleeing during the
community-based portion of those programs.”). Petitioner is not entitled to relief on his due
process and equal protection claims.
c.
Any challenge to future ICE detention is not ripe
Petitioner states that there is no “immigration/deportation agreement” between the
United States and Cuba (Doc. 1 at 3). Liberally construed, this appears to be a challenge
to his future immigration detention.
This Court lacks jurisdiction to consider such a
challenge.
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In order for the court to take jurisdiction over an action, an actual case or controversy
must be present. Rizzo v. Goode, 423 U.S. 362, 372 (1976); O'Shea v. Littleton, 414 U.S.
488, 493–95 (1974); Johnson v. Sikes, 730 F.2d 644, 647 (11th Cir. 1984).
Some
“threatened or actual injury” must exist as a result of the allegedly wrongful actions of the
defendant. O'Shea, 414 U.S. at 493 (citing Linda R.S. v. Richard P., 410 U.S. 614, 617
(1973)). This is because “[t]here must be a personal stake in the outcome such as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.” Id. at 494. “Abstract
injury is not enough. It must be alleged that the plaintiff has sustained or is immediately in
danger of sustaining some direct injury as the result of the challenged statute or official
conduct.” Id. (internal quotations omitted).
Also to be considered are “prudential
considerations” which require the court to abstain from rendering decisions that are
premature or abstract or that “anticipate a question of constitutional law in advance of the
necessity of deciding it.” Sikes, 730 F.2d at 648–49 (quoting Ashwander v. TVA, 297 U.S.
288, 346 (1936)).
Here, Petitioner's removal period has not yet begun, and it will not begin until he is
released from confinement in the Florida Department of Corrections.3 Therefore, the issue
of whether he will be removable to Cuba is not yet ripe for adjudication. Consequently, this
claim is due to be dismissed. See Lopez, 2013 WL 3762456 at *4-5 (rejecting incarcerated
petitioner’s challenge to immigration detention because he was still in custody of the Florida
Department of Corrections); Galiana v. ICE, Case No. 5:11cv255/MMP/EMT, 2012 WL
3
Respondent asserts that, because Petitioner was credited with three years on his sentence, “it
appears that [he] will be released from criminal incarceration no later than sometime in 2015.” (Doc. 11 at 2)
(citing Doc. 11-3 at 2, 5).
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425910, at *3-4 (N.D. Fla. Jan. 11, 2012) (noting that Petitioner's removal period would not
begin until he was released from confinement in the FDOC); Jean–Henriquez v. Dep't of
Homeland Sec., Case No. 4:05cv304/MMP/WCS, 2006 WL 1687853, at *3 (N.D. Fla. June
15, 2006) (habeas petitioner’s claim under Zadvydas was not ripe, because 90-day removal
period had not yet begun).
III.
Conclusion
Based upon the foregoing, any claims by Petitioner that challenge his order of
removal, ICE’s decision to lodge a detainer against him, or his future detention are dismissed
for lack of jurisdiction, the petition for writ of habeas corpus is otherwise denied.
Accordingly, it is ORDERED:
1.
Respondent’s motion to dismiss (Doc. 11) is GRANTED to the extent that
Petitioner's claims challenging his order of removal and/or future detention are DISMISSED
for lack of jurisdiction;
2.
Petitioner's due process and equal protection claims are DENIED; and
3.
With no remaining claims, the Clerk of Court is directed to terminate any
pending motions, close this case, and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida on this 20th day of August, 2014.
SA: OrlP-4
Copies: Lazaro Hernandez
Counsel of Record
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