Gittens v. Holder

Filing 13

MEMORANDUM & ORDER: Ryan Gittens, pro se, has petitioned the Court for an order directing the U.S. Attorney General to lift the immigration detainer lodged against him. In reply papers that the Attorney General has not answered, Gittens als o asks for relief in connection with a Form N-400 application for naturalization that was administratively closed for failure to attend an interview and then dismissed when Gittens did not move to reopen the application within one year from the dat e of closure. Gittens wants an order declaring him a United States national. He also wants an order compelling the Attorney General to adjudicate the N-400 application on the merits. The requests for relief are denied. The Clerk of Court is directed to enter judgment and to close this case. SO ORDERED by Chief Judge Carol Bagley Amon, on 7/27/2011. C/mailed. (Forwarded for Judgment) (Latka-Mucha, Wieslawa)

FILED

IN Ol.eFlK'S OFFICI!!
V
U.S. OlSTRICT COURT e.o.N ..

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

JUL 2 7 2011

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BROOKLYN OFFlCE

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RYAN O. GITTENS,
Petitioner,

NOT FOR PUBLICAnON
MEMORANDUM & ORDER
IO-CV-849 (CBA) (LB)

-againstERIC HOLDER, Attorney General,
Respondent.

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AMON, Chief United States District Judge:
Ryan Gittens, pro se, who is currently incarcerated pursuant to a federal criminal
judgment in McRae, Georgia, has petitioned the Court for an order directing the U.S. Attorney
General to lift the immigration detainer lodged against him.
In reply papers that the Attorney General has not answered, Gittens also asks for relief in
connection with a Form N-400 application for naturalization that was administratively closed for
failure to attend an interview and then dismissed when Gittens did not move to reopen the
application within one year from the date of closure. Gittens wants an order declaring him a
United States national. He also wants an order compelling the Attorney General to adjudicate
the N-400 application on the merits.
For the reasons that follow, the requests for relief are denied.
BACKGROUND
Gittens, a native and citizen of Barbados, was admitted to the United States as a lawful
permanent resident in January 1984. From 1984 until sometime before 1999, he lived in
Brooklyn, New York. Gittens alleges that in 1997 he filed an N-400 application for

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naturalization with Immigration and Naturalization Service ("INS"). Gittens provided
fingerprints in connection with that application.
Sometime in 1999, INS asked Gittens to provide a second set of fingerprints, because
apparently the agency had lost the first. Gittens, who had moved to Las Vegas, Nevada, returned
to New York to provide fingerprints. He says that, while in New York, he told INS to continue
sending mail to his grandmother's house in Brooklyn.
Gittens alleges that soon after he returned to Las Vegas, his mother-who was also living
in Las Vegas-officially changed her address with INS. Gittens says that, although nobody told
INS to do so, the agency changed Gittens's address, too. But, for some reason, INS recorded an
address for Gittens at which neither he nor his mother received mail.
Gittens alleges that, as a result of the address change, he stopped receiving mail from
INS. And because he stopped receiving mail, he never received notice of a December 1999 N400 application interview. Consequently, Gittens, allegedly through no fault of his own, missed
that interview.
About one year later, pursuant to INS regulations, the agency administratively closed the
application. A form attached to Gittens's petition indicates that, for one year from the date that it
was closed, he had the ability to move to reopen the closed application. It further notes that
failure to move to reopen within one year results in a finding that the application has been
"abandoned and may not be reopened at all." See 8 C.F.R. § 335.6(c) ("If the applicant does not
request reopening of an administratively closed application within one year from the date the
application was closed, the Service will consider that application to have been abandoned, and
shall dismiss the application without further notice to the applicant."). All indications are that
Gittens's application was deemed abandoned and dismissed.
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Gittens was clearly convicted of a crime at some point after his application was closed
and dismissed, but the motion under consideration does not provide any details. The Attorney
General indicates that Gittens was convicted in March 2004, in the U.S. District Court for the
Northern District of New York, of possession ofa controlled substance with intent to distribute,
in violation of21 U.S.C. § 841. The Attorney General further states that Gittens received a
sentence of imprisonment of 46 months. Although that sentence (which is the only one
mentioned by the Attorney General or Gittens) should have expired by now, it is undisputed that
Gittens is currently incarcerated. According to the Bureau of Prisons inmate locator website,
Gittens will not be released from prison until September 5,2011.
In September 2007, Immigrations and Customs Enforcement (an INS successor, "ICE")
filed a detainer with the Bureau of Prisons, indicating that the agency had begun an investigation
to determine whether Gittens is subject to removal.
On February 1,2010, Gittens filed in this Court a motion styled a "petition pursuant to 8
U.S.C.A. 1252(B)(5)." In it, he asked for an order compelling the Attorney General "to remove
the DHS / INS detainer lodged against the petitioner." Gittens argued that he was a United
States national and thus not subject to removal.
The Court ordered the Attorney General to respond and he did so, by papers dated April
6,2010. The Attorney General construed Gittens's motion as a petition for a writ of habeas
corpus, 28 U.S.C. § 2241, that asked the Court to prevent ICE from taking custody of Gittens,
initiating removal proceedings, and ordering his removal.
The Attorney General argued that the § 2241 petition should be denied for four
independent reasons: (a) Gittens is not in ICE custody for purposes of § 2241; (b) even if Gittens
is in ICE custody, the only proper ICE respondent is located in Pennsylvania, outside the
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jurisdiction ofthe Court; (c) 8 U.S.C. § 1252(g) prevents the Court from blocking ICE from
initiating removal proceedings; and (d) insofar as Gittens is challenging a final order of removal
not yet entered, he needs to exhaust his administrative remedies (i.e. challenge the order before
an immigration judge and then the Board ofImmigration Appeals) before filing suit in federal
court.
Gittens filed reply papers in April 2010 in which he responded to the "opposition to the
habeas corpus." In it he appeared to concede that the Court lacked jurisdiction to grant habeas
relief of any sort and instead asked for a "declaratory judgment" that he is a United States
national.
In June 2011, Gittens filed papers requesting an order compelling the Attorney General to
adjudicate his N-400 application on the merits. The Attorney General has not responded to the
replies.
By letter dated July 1,2011, Gittens informed the Court that ICE had initiated removal
proceedings against him, notifying him of a July 6, 2011 hearing to be held at the institution in
which he is currently incarcerated.

DISCUSSION
The Court considers in turn each of the three forms of relief that Gittens's various filings,
liberally construed, request from the Attorney General: (a) an order lifting the detainer currently
in place; (b) a declaration that Gittens is a United States national; and (c) an order compelling the
Attorney General to adjudicate the dismissed N-400 application.

I. Lift of Detainer
The Court agrees with the Attorney General, and apparently Gittens, that the Court lacks
the authority to enjoin or otherwise act on the detainer that is currently in place.
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As an initial matter, the Court agrees that the motion under consideration is properly
considered a § 2241 petition. See, e.g., Henry v. Chertoff, 317 F. App'x 178, 179 (3d Cir. 2009)
("Construing Henry's complaint [seeking to challenge an immigration detainer on the ground
that he is a United States citizen] liberally, it is best read as a habeas petition challenging the
detainer."); Henriquez v. Ashcroft, 269 F. Supp. 2d 106, 107 (E.D.N.Y. 2003) ("Petitioner is also
challenging his possible future detention and removal upon the execution of an INS detainer, and
the court construes that portion of his petition as seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2241.").
And the Court agrees, as Gittens appears now to concede, that the detainer does not
render Gittens in ICE custody such that he can challenge the detainer via a § 2241 petition.
Neither does the fact that removal proceedings have begun since he filed his petition. See Bell v.
INS, 292 F. Supp. 2d 370, 373-74 (D. Conn. 2003); Henriquez, 269 F. Supp. 2d at 108-09;
Kendall v. INS, 261 F. Supp. 2d 296,300-01 (S.D.N.Y. 2003); Dearmas v. INS, No. 92 Civ.
8615, 1993 WL 213031, at *3 (S.D.N.Y. June 15, 1993) ("The Court agrees with the clear
majority of courts which have found that the filing of a detainer does not constitute 'custody' by
the INS for purposes of habeas jurisdiction.").
II. Declaration

Gittens also asks for a judgment declaring that he is a United States national. He cites 8
U.S.C. § 1252(b)(5) as providing the Court jurisdiction to enter such a judgment. He also
mentions in passing the federal declaratory judgment statute. 28 U .S.C. § 2201.
Section 1252 of Title 8 does not apply here. That section provides for judicial review of
removal orders in the federal courts of appeals. 8 U.S.C. § 1252(a)(l), (5). Section 1252(b)(5)

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specifically authorizes a court of appeals reviewing a final order of removal to decide a
nationality claim in the absence ofa genuine dispute of material fact. 8 U.S.C. § 1252(b)(5)(A).
If, however, a genuine dispute of material fact exists, the court of appeals must transfer
the proceeding to the district court for a determination "as if an action had been brought in the
district court" under 28 U.S.c. § 2201. 8 U.S.C. § 1252(b)(5)(B). Relevant here, the "petitioner
may have such nationality claim decided only as provided in this paragraph." 8 U.S.C.
§ 1252(b)(5)(C).
Gittens cannot use this provision to secure a declaratory judgment. It is undisputed that
Gittens has not been the subject of a final order of removal; that, consequently, he has not
challenged any final order of removal in federal court; and that no court of appeals has
transferred any challenge of a final order to this Court. Section 1252(b)( 5) thus does not permit
this Court to issue an "order declaring [Gittens] to be a 'national' of the United States." Roberts
v. INS, 372 F. App'x 921, 924-25 (11th Cir. 2010).
The Court notes further that, to the extent Gittens relies on the declaratory judgment
statute to support his claim for a declaration, the Court sti11lacks the authority to grant his
application. Gittens must raise his claim in the removal proceeding that has begun. Id. at 925
(declaratory judgment action must await final order of removal), citing McGrath v. Kristensen,
340 U.S. 162, 168-69 & n.10 (1950); Chau v. INS, 247 F.3d 1026, 1028 n.2 (9th Cir. 2001)
("once removal proceedings have been initiated, a petition for review under 8 U.S.C.
§ 1252(b)(5) is the only avenue by which a person may seek a judicial determination of his or her
status as a national of the United States").

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III. Order Compelling Adjudication on the Merits
Finally, and relying upon 8 U.S.C. § 1447(b), Gittens asks for an order compelling the
Attorney General to adjudicate the dismissed N-400 application on its merits.
Section 1447(b) permits an individual who has filed a naturalization application, has been
the subject ofa completed "examination" pursuant to 8 U.S.c. § 1446, and who has not timely
received a determination on his application, to "apply to the United States district court for the
district in which the applicant resides for a hearing on the matter."
Section 1447(b) has no application to this case. First, this is not obviously a case in
which INS has delayed providing a determination on Gittens's application. INS has acted on
Gittens's petition; it administratively closed it for failure to move to reopen after missing a
scheduled interview. And then, one year later, it apparently deemed it abandoned and dismissed
the application. 8 C.F.R. § 335.6. So it is not at all clear that Gittens has an application pending
that the Attorney General can be ordered to adjudicate.
Second, even if the application were still in some sense pending, the statute would not by
its terms apply. This is because INS never completed an examination of Gittens, who never
attended his interview. See Litvin v. Chertoff, 586 F. Supp. 2d 9, 10 (D. Mass. 2008) ("This
court would not have jurisdiction directly under § 1447, therefore, because Plaintiff has not
reached the interview stage of the adjudication process."); cf. Taalebinezhaad v. Chertoff, 581 F.
Supp. 2d 243, 244 (D. Mass. 2008) ("Because USCIS had not determined Taalebinezhaad's N400 application within 120 days of Taalebinezhaad's naturalization interview, Taalebinezhaad
was entitled by statute to apply to the federal district court for a hearing on the matter. ").
Gittens has offered no other theory on which he is at this point entitled to an order
compelling adjudication on the merits of his dismissed application.
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CONCLUSION
For the reasons stated, the requests for relief are denied. The Clerk of Court is directed to
enter judgment and to close this case.
SO ORDERED.
Dated: Brooklyn, New York
July eJ.") ,2011

/S/

W'J

Carol Bdgley
United States Distnct Judge

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