Cruz v. Immigration and Customs Enforcement

Filing 3

ORDER. IT IS ORDERED that the petition shall be DISMISSED without prejudice for lack of jurisdiction. IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find the Courts dismissal of the action for l ack of jurisdiction to be debatable or wrong. The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge Andrew P. Gordon on 11/13/2017. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ISRAEL CRUZ,

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Case No. 2:17-cv-01396-APG-VCF
Petitioner,

ORDER

vs.
IMMIGRATION AND CUSTOMS
ENFORCEMENT,

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Respondent.

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This immigration habeas matter under 28 U.S.C. § 2241 comes before the Court for initial
review. The filing fee has been paid.

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Petitioner was in local custody at the time that he filed the petition on a municipal court

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conviction. The sole relief requested in the petition is that an immigration detainer or “hold” be

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removed, with petitioner explicitly stating that “nothing more” is requested. (ECF No. 1, at 9.) A bare

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immigration detainer or hold alone does not place an alien in the custody of federal immigration

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authorities for purposes of federal habeas jurisdiction. See, e.g., Campos v. Immigration and

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Naturalization Service, 62 F.3d 311, 314 (9th Cir. 1995); Bederian v. Apker, 2017 WL 880416, at *1

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(E.D. Cal., March 6, 2017); Bone v. Holder, 2015 WL 2345545, at *2 (E.D. Cal., May 14,

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2015)(collecting cases); Montalvo v. United States, 2010 WL 1418193 (D. Nev., April 6,

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2010)(denying a COA on the issue). This action accordingly will be dismissed for lack of jurisdiction.1

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IT THEREFORE IS ORDERED that the petition shall be DISMISSED without prejudice for

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lack of jurisdiction.
IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason
would not find the Court’s dismissal of the action for lack of jurisdiction to be debatable or wrong.

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Nothing herein suggests that the petition is not subject to other deficiencies. Inter alia, it does not appear that
petitioner has named a proper respondent, and the factual allegations presented further do not appear to state a claim for
relief under the Due Process Clause. The Court does not reach any such issues given that the matter is being dismissed
for lack of jurisdiction.

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The Clerk of Court shall enter final judgment accordingly, dismissing this action without
prejudice.
Dated: November 13, 2017.

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_______________________________
ANDREW P. GORDON
United States District Judge

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