Ikunin (ID 103159) v. United States of America

Filing 2

ORDER ENTERED: Petitioner is granted thirty (30) days in which to satisfy the filing fee requirement by either paying the fee of $5.00 or submitting a properly completed and supported motion for leave to proceed in forma pauperis on court-provi ded forms. Within the same thirty (30) day period, petitioner is required to allege additional facts sufficent to state a claim under 28 U.S.C. 2241. Signed by Senior District Judge Richard D. Rogers on 6/7/2013. (Mailed to pro se party Sabin Ikunin by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SABIN IKUNIN,
Petitioner,
v.

CASE NO.

13-3072-RDR

UNITED STATES,
Respondent.
O R D E R
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the Norton Correctional Facility,
Norton Kansas (NCF).

Mr. Ikunin seeks to challenge a detainer lodged

against him at the NCF by the United States Immigration and Customs
Enforcement Agency (ICE).
prerequisite.

He has not satisfied the filing fee

In addition, the court finds that he fails to state

a claim under § 2241.

He is required to satisfy the fee and given

time to allege additional facts to support a § 2241 claim.

FILING FEE
The statutory fee for filing a habeas corpus petition in federal
court is $5.00.

Petitioner has neither paid the fee nor submitted

a motion to proceed in forma pauperis.

This action may not proceed

until the filing fee is satisfied in one of these two ways.
Petitioner is given time to satisfy the fee.

He is warned that if

he fails to satisfy the fee within the prescribed time, this action

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may be dismissed without prejudice and without further notice.

ALLEGATIONS AND CLAIMS
In his petition, Mr. Ikunin alleges that he was born in the
Soviet Socialist Republic, that he “immigrated” to the United States
in the late 1970’s, and that “about 1990” he became a citizen of the
United States.

In an attached affidavit on the other hand, he

alleges different information.

In his petition and affidavit, he

alleges the following other background facts.
most of his life.

He has lived in Oregon

He was convicted of burglary and theft in the State

of Oregon and has been in prison for 12 years originally in the Oregon
Department of Corrections.

In 2012, he was transferred “under the

Interstate Compact” to the Kansas Department of Corrections.

His

mandatory release date is January 26, 2014.

On August 28, 2012, ICE

lodged a detainer against him at the NCF.

He has never had an ICE

detainer lodged against him before because he is a U.S. citizen.

He

only found out about the detainer because it was listed on his August
Program Classification Review; he has not been served with a copy
of a detainer having a case number or the identity of the office or
agents involved in its issuance; and respondent has failed or refused
to identify the basis, authority, and reasons for the detainer.
Petitioner alleges that KDOC will not let him have “any programs”
until he takes care of the ICE detainer.

The court is asked to order

ICE to serve petitioner with all documents used to prepare the
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detainer and with a report on the legal basis for the detainer so
that he can respond to it.
“dismissed and rendered void.”

He also asks that the detainer be
In addition, he requests appointment

of counsel to assist him in responding to the detainer.

FAILURE TO STATE CLAIM
The general habeas corpus statute, 28 U.S.C. § 2241, provides
a federal court with authority to grant a writ of habeas corpus to
a person held in custody “in violation of the Constitution or law
and treaties of the United States.”

28 U.S.C. § 2241(c)(3).

A state

prisoner’s challenge to a detainer lodged by a sovereign other than
the one currently holding him in custody, whether it be another State
or federal authorities, is normally raised in a petition for writ
of habeas corpus filed pursuant to 28 U.S.C. § 2241.

See e.g.,

Galaviz–Medina v. Wooten, 27 F.3d 487, 488 (10th Cir. 1994);
Soberanes v. Comfort, 388 F.3d 1305 (10th Cir. 2004).

However, an

inmate seeking to challenge an ICE detainer under § 2241 may do so
only when he is actually in custody pursuant to the ICE detainer.
The mere lodging of a detainer by an ICE agent does not constitute
custody where no formal deportation proceedings have been commenced
and no final deportation order has issued, since the detainer may
be only a request that KDOC authorities notify ICE prior to inmate’s
release.

Nasious v. Two Unknown B.I.C.E. Agents, 657 F.Supp.2d

1218, 1229–30 (D.Colo. 2009), aff’d 366 Fed.Appx. 894 (10th Cir.
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2010)(“Almost all of the circuit courts considering the issue have
determined that the lodging of an immigration detainer, without more,
is insufficient to render someone in custody.”)(and cases cited
therein); see also Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th
Cir. 2001)(custody requirement satisfied by final deportation
order).

Nasious is similar to petitioner’s case.

There, the

plaintiff initiated a federal action against defendants pursuant to
Bivens, “alleging violations of his constitutional rights stemming
from the filing of a federal immigration detainer” in 2005 against
him while he was being held on forgery charges.
Fed.Appx. at 896.1

Nasious, 366

Nasious claimed his federal due process rights

were violated because he was a U.S. Citizen at the time and not an
illegal alien.

The district court held that “the lodging of the

detainer had no effect on Nasious’s detention because he was already
in custody at the Denver County Jail awaiting the disposition of his
state criminal case,” and that “the detainer was nothing more than
a request that Denver County authorities notify ICE prior to
Nasious’s release.”

Id. at 896.

Here, Mr. Ikunin does not allege that he has been ordered removed
or that he has appealed any removal order to the Board of Immigration
Appeals (BIA).

The facts that he does allege, that he is serving

s state sentence for burglary and theft, indicate that he is in
custody serving a state sentence rather than due to a deportation
1

Unpublished cases are cited herein as persuasive rather than as controlling
authority.

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detainer or order.

That immigration officials have issued a

detainer is simply not sufficient, by itself, to satisfy the custody
requirement.

See Galaviz–Medina, 27 F.3d at 493.

It follows that

this action filed as a § 2241 petition challenging the immigration
detainer, is subject to dismissal because Mr. Ikunin is not “in
custody” pursuant to the detainer for purposes of § 2241.
Moreover, petitioner does not allege that the ICE detainer has
affected the duration of his detention in the NCF.
F.Supp.2d at 1222–23.

See Nasious, 657

Nor does he allege facts suggesting that the

detainer amounts to a restraint on or a deprivation of life, liberty,
or property protected by the U.S. Constitution.

Id.

His allegation

that he is being denied programs due to the detainer is completely
conclusory.2

His own exhibits indicate the contrary - that he is

being encouraged to participate in programs.

Consequently, the

court finds that petitioner has alleged no facts showing that his
current detention is “in violation of the Constitution or law and
treaties of the United States” as would entitle him to relief under
§ 2241.
Furthermore, even if Mr. Ikunin is subject to a final order of
2

If petitioner seeks to challenge conditions of his confinement including
a denial of rehabilitative programs, such a claim must be brought in a civil rights
complaint rather than a habeas corpus petition.
Cabrera v. Trammell, 488
Fed.Appx. 294, 295 (10th Cir. 2012). The statutory fee for a civil complaint is
$350.00. In addition, a civil complaint must be filed against the individual
federal employee(s) responsible for the alleged denial of the plaintiff’s
constitutional rights. Id. Furthermore, the United States Constitution does not
create a protected liberty interest in a prisoner’s ability to participate in
rehabilitation programs, and Mr. Ikunin has not alleged facts showing any “atypical
and significant hardship . . . in relation to the ordinary incidents of prison
life.” Sandin, 515 U.S. at 484.

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deportation,

the

federal

district

courts

were

divested

of

jurisdiction over § 2241 challenges to such orders, and his sole means
of judicial review would be a petition for review filed with the
appropriate court of appeals.

Cabrera, 488 Fed.Appx. at 296 (citing

see Zamarripa–Torres v. B.I.C.E., 347 Fed.Appx. 47, 48 (5th Cir.
2009) (unpublished)).
Finally, the court notes that to proceed under § 2241, the
petitioner

must

show

that

he

has

exhausted

the

available

administrative remedies prior to filing suit in federal court.
Soberanes, 388 F.3d at 1309.

See

If plaintiff is claiming that the ICE

detainer is invalid because he is a U.S. citizen, he fails to allege
that he has taken the appropriate steps to contest the detainer on
this or any grounds or that he has provided ICE with proof that he
is

not

subject

to

an

immigration

detainer.

His

conclusory

allegations that he has “repeatedly contacted” ICE and “sent letters
to the proper offices” are not sufficient to show full exhaustion
of proper procedures.

He must describe his efforts in detail

including dates and persons contacted in order to show that the
available administrative remedies are futile.

He also alleges no

facts indicating that he has made any effort to challenge the detainer
through the prison grievance process.
In sum, the court finds that petitioner has failed to allege
facts showing that he is in custody under the ICE detainer and a
violation of a federal constitutional right, which is a necessary
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element of a claim under § 2241.

Mr. Ikunin is given the opportunity

to amend his petition to allege additional facts that are sufficient
to show he is in custody or to state a federal constitutional
violation.

If Mr. Ikunin fails to satisfy the appropriate filing

fee and allege sufficient additional facts within the time provided,
this action may be dismissed without further notice.
A request for appointment of counsel should be made by separate
motion.

If there were a proper motion before the court, it would

find that appointment of counsel is not warranted in this case as
it appears likely to be dismissed.
IT IS THEREFORE ORDERED that petitioner is granted thirty (30)
days in which to satisfy the filing fee requirement by either paying
the fee of $5.00 or submitting a properly completed and supported
motion for leave to proceed in forma pauperis on court-provided
forms.
IT IS FURTHER ORDERED that within the same thirty (30) day
period,

petitioner

is

required

to

allege

additional

facts

sufficient to state a claim under 28 U.S.C. § 2241.
The clerk is directed to send § 2241 and IFP forms to petitioner.
IT IS SO ORDERED.
DATED:

This 7th day of June, 2013, at Topeka, Kansas.

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s/RICHARD D. ROGERS
United States District Judge

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