Ogunde v. Holder et al
Filing
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MEMORANDUM OPINION in re 10 MOTION to Dismiss for Lack of Jurisdiction. Signed by District Judge James C. Cacheris on 10/01/2013. (paper copy mailed to pro se plaintiff)(jlan) (Main Document 14 replaced on 10/1/2013) (jlan, ).
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
OLUDARE OGUNDE,
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Plaintiff,
v.
ERIC HOLDER, et al.,
Defendants.
M E M O R A N D U M
1:13cv484 (JCC)
O P I N I O N
This matter is before the Court on Defendants’ Motion
to Dismiss Plaintiff’s Amended Complaint (“Motion”).
[Dkt. 10.]
For the following reasons, the Court will grant Defendants’
Motion.
I.
Background
Plaintiff Oludare Ogunde (“Plaintiff”), a citizen of
Nigeria, is presently incarcerated at Deep Meadow Correctional
Center in State Farm, Virginia.
(Am. Compl. [Dkt. 9-1] ¶ 1.)
Plaintiff is serving a twenty-year prison term on account of
state convictions for credit card theft and attempted grand
larceny.
(Am. Compl. ¶¶ 2, 13.)
In December 1999, during Plaintiff’s incarceration,
the former Immigration and Naturalization Services (“INS”)
served Plaintiff with a Notice of Intent to Issue a Final
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Administrative Removal Order.
(Am. Compl. ¶ 6.)
This notice
charged Plaintiff as deportable under 8 U.S.C. § 1101(a)(43)
following his incarceration because he was convicted of an
aggravated felony.
(Am. Compl. ¶ 6.)
Despite the notice, INS
never instituted removal proceedings against Plaintiff.
(Am.
Compl. ¶ 8.)
In October 2011, prison staff notified Plaintiff that
INS had lodged an immigration detainer against him.
¶ 9.)
(Am. Compl.
Consequently, alleges Plaintiff, prison officials raised
his security level and “his opportunity for work assignments
outside the prison . . . was extinguished.”
(Am. Compl. ¶ 9.)
To avoid removal, Plaintiff filed an Application for
Asylum and Withholding of Removal with the United States
Citizenship and Immigration Services (“USCIS”) on July 29, 2012.
(Am. Compl. ¶ 10.)
July 8, 2012.
USCIS dismissed Plaintiff’s application on
(Am. Compl. ¶ 10.)
Plaintiff then instituted this action, seeking to
challenge the disposition of his asylum application.
[Dkt. 1] ¶ 16.)
(Compl.
In his initial complaint, Plaintiff alleged
that he was not subject to removal and USCIS had misapplied
pertinent law in denying his application.
(Compl. ¶¶ 16-18.)
On August 1, 2013, USCIS sua sponte reopened
Plaintiff’s asylum application.
(Am. Compl. ¶ 11.)
To date, no
further action has been taken on Plaintiff’s asylum request.
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(Am. Compl. ¶ 11; Mem. in Supp. of Def.’s Mot. to Dismiss
(“Def.’s Mot.”) [Dkt. 11] at 5.)
Plaintiff filed an Amended Complaint in this matter on
August 23, 2013. 1
No longer contesting the asylum application,
Plaintiff now seeks to compel Defendants to remove the
immigration detainer.
(Am. Compl. ¶¶ 4, 12-15.)
Plaintiff also
asks the Court to declare that he is not an aggravated felon
subject to deportation pursuant to 8 U.S.C. § 1101(a)(43).
(Am.
Compl. ¶ 12.)
Defendants have moved to dismiss the Amended Complaint
on grounds that the Court lacks jurisdiction to adjudicate
Plaintiff’s claims.
(Def.’s Mot. at 1-2.)
opposition on September 27, 2013.
Plaintiff filed an
[Dkt. 13.]
Dedendants’
Motion is now before the Court.
II.
Standard of Review
Federal Rule of Civil Procedure 12(b)(1) governs the
dismissal of an action where the Court lacks subject matter
jurisdiction.
Defendants may attack subject matter jurisdiction
in one of two ways.
First, defendants may contend that the
complaint fails to allege facts upon which subject matter
1
Plaintiff filed a Motion to Amend along with his Amended Complaint. [Dkt.
9.] This motion is unnecessary given Plaintiff filed his amended pleading
within twenty-one days after Defendants’ first motion to dismiss. See
Manship v. Brothers, No. 1:11cv1003 (JCC/JFA), 2011 WL 6779315, at *5 (E.D.
Va. Dec. 27, 2011) (“A party may amend a pleading once as a matter of course
if the party does so . . . within 21 days after service of a responsive
pleading or after the service of a motion under Rule 12(b)[.]”).
Accordingly, the Court will deny Plaintiff’s pending Motion to Amend as moot.
The Amended Complaint is properly before the Court.
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jurisdiction may be based.
See Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982); King v. Riverside Reg'l Med. Ctr., 211 F.
Supp. 2d 779, 780 (E.D. Va. 2002).
In such instances, all facts
alleged in the complaint are presumed true.
Adams, 697 F.2d at
1219; Virginia v. United States, 926 F. Supp. 537, 540 (E.D. Va.
1995).
Alternatively, defendants may argue that the
jurisdictional facts alleged in the complaint are untrue.
Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780.
In that
situation, “the Court may ‘look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’”
Virginia, 926 F. Supp. at 540
(quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th
Cir. 1993)); see also Velasco v. Gov't of Indon., 370 F.3d 393,
398 (4th Cir. 2004) (holding that “the district court may regard
the pleadings as mere evidence on the issue and may consider
evidence outside the pleadings without converting the proceeding
to one for summary judgment” (citations omitted)).
In either circumstance, the burden of proving subject
matter jurisdiction falls on the plaintiff.
McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697
F.2d at 1219; see also Johnson v. Portfolio Recovery Assocs.,
682 F. Supp. 2d 560, 566 (E.D. Va. 2009) (holding that “having
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filed this suit and thereby seeking to invoke the jurisdiction
of the Court, Plaintiff bears the burden of proving that this
Court has subject matter jurisdiction”).
III.
Analysis
Plaintiff’s Amended Complaint, liberally construed,
raises two claims: (1) the immigration detainer is
unconstitutional; and (2) his prior state convictions are not
aggravated felonies under 8 U.S.C. § 1101(a)(43) that subject
him to deportation.
(Am. Compl. ¶¶ 12-15.)
Accordingly,
Plaintiff seeks an order lifting the immigration detainer and
declaring that his prior offenses do not constitute aggravated
felonies.
(Am. Compl. ¶¶ 12-15.)
Plaintiff cites the federal
habeas corpus statute, 28 U.S.C. § 2241, and the Administrative
Procedure Act, 5 U.S.C. § 702, as bases for this Court's
jurisdiction.
(Am. Compl. ¶ 4.)
As set forth below, the Court lacks jurisdiction to
adjudicate Plaintiff’s claims.
A.
Immigration Detainer
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. § 2241(c).
The Supreme Court has
interpreted this language as requiring that the habeas
petitioner be “in custody” under the conviction or sentence
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under attack at the time his petition is filed.
490 U.S. 488, 490-91 (1989).
Maleng v. Cook,
Absent this custody, the Court has
no jurisdiction to grant the writ.
Orozco v. INS, 911 F.2d 539,
541 (11th Cir. 1990).
The prevailing view among courts in the Fourth
Circuit is that a plaintiff raising a habeas claim concerning
the issue of deportability must be in INS custody.
See, e.g.,
Luma v. United States, No. 7:07 CV 00068, 2007 WL 495327, at *1
n.4 (W.D. Va. Feb. 9, 2007).
Moreover, courts in this circuit
have consistently held that an immigration detainer does not
subject a prisoner to INS custody.
See Sewell v. Stephens, No.
5:10–HC–2247–FL, 2011 WL 2746122, at *1 n.* (E.D.N.C. July 13,
2011) (“An ICE detainer, without more, does not satisfy § 2241's
‘in custody’ requirement.”); Richard v. INS, C/A No. 0:11–1508–
JFA–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 § 2241.”).
Since Plaintiff is not subject to a final order of
removal and the only action INS has taken against him is the
filing of a detainer with state prison officials, he is not in
INS custody.
See Sewell, 2007 WL 495327, at *1 n.4 (“An alien
who is confined pursuant to a criminal conviction is not in ICE
custody simply because ICE has lodged a detainer against him
with the prison where he is incarcerated.”).
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Accordingly, this
Court does not have jurisdiction to grant habeas relief
regarding the detainer.
Id.
Despite Plaintiff’s belief otherwise, he has no
private right of action to compel immediate review of his
detainer prior to the completion of his incarceration.
See
Moreno Escobar v. U.S. Dep’t of Justice, No. MISC.05-0048, 2005
WL 1060635, at *1 (E.D. Pa. May 5, 2005) (finding no cause of
action to compel resolution of INS detainer).
B.
Aggravated Felon Status
To the extent Plaintiff seeks review of his status as
an aggravated felon under 8 U.S.C. § 1101(a)(43), his request is
premature.
Plaintiff seeks to circumvent the administrative
process by asking this Court to declare that he is not an
aggravated felon before federal immigration authorities have had
an opportunity to make a final determination on this issue.
Plaintiff cannot point to any agency action that is final or has
conclusively determined his rights.
In fact, as evidenced by
Plaintiff’s pending asylum application, the administrative
process is just beginning.
(Am. Compl. ¶¶ 8, 11.)
Without a
final administrative order regarding removal, this Court is
without authority to adjudicate this claim under the statutes
cited.
See Doe v. Tenenbaum, 900 F. Supp. 2d 572, 581-82 (D.
Md. 2012) (“[C]ourts lack subject matter jurisdiction to resolve
claims that plaintiffs assert under the [Administrative
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Procedure Act’s] general review provisions where the agency
action on which they base such claims lacks finality.” (citation
omitted)); Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001)
(“[Plaintiff] cannot now attempt to bypass the administrative
process by bringing a habeas corpus action in the district
court.
It is well settled that parties must exhaust their
administrative remedies before filing suit in federal court.”
(citations omitted)); see also Sharma v. Mukasey, 280 F. App’x
422, 423 (5th Cir. 2008) (finding review of plaintiff’s
challenge to her removal proceedings premature because there was
no final order of removal).
In sum, Plaintiff’s claim is
premature. 2
IV.
Conclusion
For the foregoing reasons, the Court will grant
Defendants’ Motion.
October 1, 2013
Alexandria, Virginia
An appropriate order will issue.
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
2
Insofar as Plaintiff contests his aggravated felon status by alleging that
his state criminal convictions were obtained in violation of the
Constitution, his claim is improper. (Am. Compl. ¶¶ 14-15.) Courts have
uniformly ruled that this type of collateral attack on state convictions –
i.e., in a federal court reviewing immigration issues - years after they have
become final is impermissible. See Mondragon v. Holder, 706 F.3d 535, 543-44
(4th Cir. 2013). Moreover, Plaintiff previously challenged his state
convictions in a habeas action before this Court. See Ogunde v. Dir., Va.
Dep’t of Corrs., 36 F. App’x 508, 508 (4th Cir. 2002). Consequently,
Plaintiff’s current allegations are proscribed by 28 U.S.C. § 2244(b)’s
jurisdictional ban on successive habeas claims. See Hatcher v. Johnson,
Civil Action Nos. 3:10CV08, 3:12CV270, 2012 WL 1245660, at *1-2 (E.D. Va.
Apr. 11, 2012).
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