LALL v. ORTIZ
Filing
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MEMORANDUM OPINION. Signed by Judge Robert B. Kugler on 7/2/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
GARY LALL,
:
:
Civ. No. 18-2793 (RBK)
Petitioner,
:
:
v.
:
MEMORANDUM OPINION
:
DAVID ORTIZ,
:
:
Respondent.
:
__________________________________________:
ROBERT B. KUGLER, U.S.D.J.
Petitioner, an inmate confined at FCI Fort Dix, in Fort Dix, New Jersey, filed a petition
under 28 U.S.C. § 2241, purporting to challenge his immigration detention. (See ECF No. 1). The
Court has examined the Petition in accordance with Rule 4 of the Rules Governing Section 2254
Cases, applicable to § 2241 cases through Rule 1(b).1 For the reasons discussed below, the petition
will be dismissed for lack of jurisdiction.
I.
BACKGROUND
Petitioner is a native of Trinidad who entered the United States on September 5, 1988. (See
ECF No. 1 at p. 12). On July 5, 1991, Petitioner took the oath of allegiance, and on July 26, 1991
he received his certificate of citizenship. (See ECF No. 1 at Ex. B).
Following a trial in the Eastern District of New York, Petitioner was convicted of
conspiring to import five or more kilograms of cocaine, conspiring to possess with intent to
distribute five kilograms or more of cocaine, and conspiring to import and conspiring to possess
with intent to distribute fifty kilograms or more of marijuana. See United States v. Adams, 316 F.
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Pursuant to Rule 4, if it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief, the judge must dismiss the petition and direct the Clerk of Court
to notify the petitioner.
App’x 60, 61-62 (2d Cir. 2009). On April 11, 2006, Petitioner was sentenced to 210 months
imprisonment. (See ECF No. 1 at p. 1). Petitioner is currently serving his sentence at FCI Fort
Dix. (See id.).
On or about December 6, 2012, Petitioner received a notice of intent to cancel his certificate
of citizenship. (See ECF No. 1 at p. 11). On January 29, 2013, United States Citizenship and
Immigration Services (“USCIS”) issued a final decision cancelling Petitioner’s certificate of
citizenship. (See ECF No. 1 at Ex. I). Petitioner filed an appeal to the Administrative Appeals
Office (“AAO”), which was denied on August 28, 2015. (See ECF No. 1 at p. 11). Petitioner filed
a motion for reconsideration in September 2015, which Petitioner claims is still pending. (See id.).
On February 26, 2018, Petitioner filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 challenging USCIS’s decision to cancel his certificate of citizenship.
II.
DISCUSSION
Section 2241 of Title 28 of the United States Code permits a federal court to grant a writ
of habeas corpus to a prisoner who is in custody in violation of the Constitution, laws, or treaties
of the United States. See 28 U.S.C. § 2241(c)(3). Section 2241 confers jurisdiction upon federal
courts to hear petitions challenging pre-removal immigration detentions during the course of
removal proceedings. See Demore v. Kim, 538 U.S. 510, 517 (2003); Zadvydas v. Davis, 533 U.S.
678, 687 (2001). However, a district court has jurisdiction to hear a petition filed pursuant to
§ 2241 only if the petitioner is “in custody.” James v. Dist. Attorney York Cnty., 594 F. App’x 66,
67 (3d Cir. 2015) (citing Maleng v. Cook, 490 U.S. 488, 490 (1989); Verde–Rodriguez v. Att'y
Gen., 734 F.3d 198, 204 n.4 (3d Cir. 2013)). A prisoner who is serving a federal criminal sentence
is not “in custody” for purposes of § 2241 merely because an immigration detainer has been lodged
against him or her. Adams v. Apker, 148 F. App’x 93, 95 (3d Cir. 2005).
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Moreover, though federal district courts have jurisdiction to hear habeas challenges to
immigration detentions, that jurisdiction is strictly limited.
The REAL ID ACT of 2005
“eliminated the availability of habeas corpus relief in the district courts for aliens seeking to
challenge orders of removal.” Kolkevich v. Att'y Gen. of U.S., 501 F.3d 323, 326 (3d Cir. 2007).
Under the REAL ID Act, a petition for review filed with an appropriate court of appeals in
accordance with the Act is the sole and exclusive means for judicial review of an order of removal
and matters dependent thereon. 8 U.S.C. § 1252(a)(5).
The Petition on its face reveals that Petitioner is not entitled to habeas relief. First,
Petitioner is currently confined because he is serving a sentence of incarceration arising from a
federal criminal conviction. Even if an immigration detainer has been lodged against him,
Petitioner is not “in custody” for purposes of § 2241. See James, 594 F. Appx. at 67; Adams, 148
F. App’x at 95. Moreover, Petitioner asks this Court to reverse the USCIS’s decision cancelling
his certificate of citizenship and to remove the detainer placed on him. Pursuant to the REAL ID
Act, this Court does not have the authority to grant such a request. For the foregoing reasons, this
Court does not have jurisdiction to consider the Petition.
III.
CONCLUSION
For the reasons set forth above, the Court dismisses the Petition for lack of jurisdiction.
An appropriate order follows.
Dated: July 2 , 2018
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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