Barcena v. Immigration & Naturalization Service

Filing 3

ORDER DENYING Barcena's motion for an order that would entitle him to invoke the Interstate Agreement on Detainers. Signed by Judge Howard D. McKibben on 11/18/2010. (Copies have been distributed pursuant to the NEF - DRM) Modified on 11/18/2010 for punctuation (DRM).

Barcena v. Immigration & Naturalization Service

Doc. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 Petitioner, 14 vs. 15 16 17 18 Prisoner Esteban Barcena (Esteban Barcena Angeles) was 19 convicted of attempted lewdness with a child under 14 years, a 20 felony/gross misdemeanor, in 2008. 21 Case No. 08C246526. 22 revoked in April 2009. 23 prison sentence at Lovelock. 24 release date is February 28, 2013. Id. 25 States Immigration and Naturalization Service has a detainer for 26 deportation against him. Id. 27 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

ESTEBAN BARCENA ANGELES, also known as, ESTEBAN BARCENA,

IMMIGRATION AND NATURALIZATION SERVICE, Defendant. _________________________________

) ) ) ) ) ) ) ) ) )

3:10-cv-00640-HDM-RAM

ORDER

See Clark County District Court

He was sentenced to probation, which was Id. He is now serving a 48 to 144 month See Docket # 1-1. His projected

He claims that the United

Presumably, he is subject to

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deportation under 8 U.S.C. § 1227(a)(2).1

Barcena moves this court

for an order that would entitle him to invoke the Interstate Agreement on Detainers, 18 U.S.C. Appendix, and obtain a speedy deportation hearing.2 Id. "The Sixth Amendment provides that `in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...' The Interstate Agreement on Detainers ... [is a] statutory means for effectuating this right. The Agreement provides for the speedy disposition of detainers based on `untried indictments, informations, or complaints.'" Argiz v. United States Immigration, 704 F.2d 384 (7th Cir. 1983). A detainer is

understood to be "a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face criminal charges in another jurisdiction." Id.; see also Senate Report No. 91-1356, U.S. Code Cong. & Adm. News, 1970, Vol.

1

Barcena is listed as an "alien-detainee." See Docket Case No. He has been convicted of a felony/gross

3:10-cv-640-HDM-RAM.

misdemeanor that would qualify as a deportable criminal offense under 8 U.S.C. § 1227(a)(2). See also INA § 237(a)(2)(I); INA § 101(a)(43); 8 U.S.C. § 1101(a)(43)(A); INA § 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).
2

The docket lists the nature of suit as "Habeas Corpus ­ Alien This motion

Detainee" and "2254 Petition for Writ of Habeas Corpus." should not be construed as a habeas petition.

See Argiz v. United

States Immigration, 704 F.2d 384 (7th Cir. 1983)(Petitioner-appellant filed similar motion under Interstate Agreement on Detainers, district court erroneously construed it as a petition for habeas corpus.) 2

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3 at 4864-65. Immigration deportation proceedings are not criminal proceedings. Id. They are civil in nature and are not conducted

by a court of the United States. Id.; see also Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 285 (1966). Therefore, an immigration charge cannot be classified as an "untried indictment, information, or complaint" within the meaning of the Agreement. Id. Accordingly, there is no relief available to

Barcena under the Interstate Agreement on Detainers. Even if Barcena was entitled to relief, this court does not have the authority to grant it. Only the Attorney General of the

United States has the authority to remove an alien. 8 U.S.C. § 1231(a)(4)(A), (B). It is within the sole discretion of the

Attorney General to remove an alien prior to the completion of his prison sentence. 8 U.S.C. § 1231(a)(4)(A)(the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment); 8 U.S.C. § 1231(a)(4)(B)(the Attorney General is authorized to remove an alien, if the Attorney General determines that the alien is confined pursuant to a conviction for a nonviolent offense,3 or the alien's removal is appropriate and in the best interest of the United States); Tamayo

3

Barcena was not convicted of a nonviolent offense.

Lewdness

with a child under 14 would be considered an aggravated felony under INA § 101(a)(43) and 8 U.S.C. § 1101(a)(43)(A). It is also a crime

a of moral turpitude. See INA § 212(a)(2)(A)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I); INA § 237(a)(2)(I); 8 U.S.C. § 1227(a)(2)(A). Both subject aliens to removal. Id. 3

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v. Holder, 2009 WL 2488032 (C.D.Cal. 2009)(court lacked authority to initiate deportation order); United States v. Tinoso, 327 F.3d 864, 866 (9th Cir. 2003)(determination of whether an alien is subject to deportation resides in the Executive Branch). Furthermore, "a district court cannot sua sponte issue a deportation order without a request from the United States Attorney." United States v. Marin-Castaneda, 134 F.3d 551, 556 (3d Cir. 1998)(district court lacked authority to depart downward in sentence because of Attorney General's statutory power to deport alien before completion of prison term). Thus, this court does not have the authority to expedite Barcena's removal proceedings. Lastly, 8 U.S.C. § 1231(a)(4)(D) states that imprisoned aliens have no private right to speedy removal. Specifically, aliens

"imprisoned, arrested, or on parole, supervised release, or probation" cannot assert a cause or claim "under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien." 8 U.S.C. § 1231(a)(4)(D); United States v. Aispuro, 127 F.3d 1133, 1134 (9th Cir. 1997)(an alien has no private right of action to compel the Attorney General to remove him from the United States prior to the completion of his sentence); Tamayo, 2009 WL 2488032 (no private right of action to compel deportation). Barcena's motion is DENIED. It is so ORDERED. DATED: This 18th day of November, 2010.

____________________________ UNITED STATES DISTRICT JUDGE

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