Asemani v. Department of Homeland Security et al

Filing 4

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 3/31/2017. (c/m 4/3/17)(kr2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BILL Y G. ASEMANI, #339-096
a1k/a Ghafour Asemani
Petitioner,
v
DEPARTMENT OF HOMELAND
SECURITY, IMMIGRATION AND
CUSTOMS ENFORCEMENT,
JOHN WOLFE,
Respondents

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Civil Action No. RDB-16-4065

MEMORANDUM OPINION

On December 22, 2016, selt:represented Petitioner Billy G Asemani filed this Petition for
Writ of Habeas Corpus pursuant to 28 U.S.c. 11 2241, challenging the 2007 Immigration Detainer
filed against him by the Department

of Homeland

Security,

Immigration

and Customs

Enforcement ("ICE") pursuant to a June I, 2004 order of removal issued by an Immigration
Judge. (ECF I). For reasons to follow, the Petition will be DISMISSED with prejudice for lack
of jurisdiction.

I

BACKGROUND
Asemani is a native and citizen of Iran.

On April 26, 2006, he pleaded guilty to

attempted second-degree murder in the Circuit Court for Howard County and was later sentenced
to thirty years of incarceration. Asemani is a Maryland state inmate presently incarcerated at
Eastern Correctional Institution in Westover, Maryland. His lengthy litigation history concerning
his nationality and immigration status has been exhaustively examined in prior cases in this and
I On March 22 2017, Asemani filed a Motion for Timely Disposition of the Petition. (ECF No.3).
apparent herein, it will be denied as moot.

For reasons

other courts.

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In the Petition, Asemani asserts the Immigration Detainer inaccurately states that an
investigation has been initiated to determine whether he is subject to removal from the United
States, when if fact he has been ordered deported or removed. (ECF I, ECF I-I).

Asemani

claims this distinction is critical to his ability to challenge the removal order against him in
collateral proceedings.

Id. He avers the sole purpose of the Petition "is for the detainer against

him to portray the true nature of where he stands with respect to the long-concluded removal
proceedings."

(ECF No. I at p. 3).

JURISDICTION
Federal courts have jurisdiction

to entertain an application for habeas relief only if a

petitioner is "in custody" in violation of the Constitution or laws or treaties of the United States.
28 U.S.C.

S 224I(c).

Asemani's Petition fails to satisfy these requirements.

First, Asemani does

not claim the detainer violates a constitutional provision, federal law, or treaty, so as to state
claim for habeas relief.

Second, the habeas petitioner be "in custody" under the conviction or

sentence under attack at the time his petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91
(1989). Absent this custody, the court has no jurisdiction to grant the "'Tit. Orozco v. INS, 91 I
F.2d 539, 541 (I Ith Cir. 1990). The burden of proving subject matter jurisdiction

falls on the

plaintiff: McNutl v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
, See e.g. Asemani v. u.s. Citizenship and Immigration Services. 797 F.3d 1069 (D.C. Cir. 2015); Asemani v.
Government of Islamic Republic of Iran, 299 Fed. Appx. 291 (4th. Cir. 2008); In Re Asemani, 455 F.3rd 296 (D.C.
Cir. 2006); Asemani v AI/orne)' General, 292 Fed. Appx. 248 (4th Cir. 2008); Asemani ,. AI/orne)' General. 140 Fed.
Appx. 368 (3rd. Cir. 2005); Asemani v. Wolfe. Civil Action No. RDB-16-3729, 2016 WL 7031519 (D. Md.
November 30,2016); Asemani v. Napolitano, Civil Action No. RDB-10-1029, 2010 WL 8813521 (D. Md. May 4,
20 I0). Asemani is a frequent pro se litigator in this and other federal and state courts. The United States Supreme
Court has restricted Asemani's access to the Court for repeatedly abusing its process. Asemani v. Chronister, 561
U.S. 1003 (2010) ("As petitioner has repeatedly abused this Coun's process, the Clerk is directed not to accept any
funher petitions in noncriminal matters rrom petitioner unless the docketing fee required by Rule 38(a) is paid and
petition submitted in compliance with Rule 33.1."). Asemani continues to file suit in the District of Maryland, other
federal courts, and in state court. See e.g. https:/lpcl.uscouns.gov/view
(listing 102 federal actions filed by
Asemani); http://casesearch.courts.state.md.us/casesearch/inquirySearch.jis
(listing 74 Maryland state cases filed by
Asemani).

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697 F.2d 1213, 1219 (4th Cir. 1982), and if the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3).
Courts in this Circuit have held that an immigration detainer does not subject a prisoner
serving a criminal sentence to ICE custody. See e.g. Ogunde v. Holder, No. I: 13cv484 (JCC),
2013 WL5504417 at *2-3 (E.D. Va. October 31, 2013); see Sewell v. Stephens, No. 5:10-HC2247-FL, 2011 WL 2746122, at *1 n. (E.D.N.C. July 13,2011)

C'An ICE detainer, without

more, does not satisfy {l2241's 'in custody' requirement."); Richard v. INS, CIA No. 0:11-1508JFA-PJG, 2011 WL 5876916, at *1 (D.S.C. Nov.22, 2011) ("[T]he lodging of a detainer does
not render a petitioner 'in custody' for purposes of {l2241."). In this case, Asemani is in custody
of the Division of Correction of the State of Maryland, and fails to meet his burden to show that
he is in ICE custody. As Asemani is undoubtedly aware, ifhis objective is to challenge the 2004
final order of removal, he must file a "a petition for review filed with an appropriate court of
appeals in accordance with [8 U.S.c. {l1252(a)(2)(d) (2005) ]." See Jordon v. A/lorney General.
424 F.3d 320, 326-27 (3d Cir. 2005).
CERTIFICATE OF APPEALABILITY
The Petition does not satisfy the standard for a Certificate of Appealabilty, which may
issue only if there is a substantial showing of the denial of a constitutional right, see 28 U.S.C.
{l2253(c).
CONCLUSION
For these reasons, the Petition shall be DISMISSED

with prejudice

for lack of

jurisdiction and a Certificate of Appealability SHALL NOT ISSUE. A separate Order follows.

/uc.[)

March 3l 2017

.PAA1::'

RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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