Duamutef v. I.N.S.
| Citation | 386 F.3d 172 |
| Decision Date | 23 September 2004 |
| Docket Number | Docket No. 03-2450. |
| Parties | Duaut A. DUAMUTEF, Plaintiff-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the Eastern District of New York, David G. Trager, J Duaut A. Duamutef, pro se, Woodbourne, NY, for Plaintiff-Appellant.
Dione M. Enea, Special Assistant United States Attorney for the Eastern District of New York (Varuni Nelson, Assistant United States Attorney, of counsel; Roslynn R. Mauskopf, United States Attorney, on the brief), Brooklyn, NY., for Defendant-Appellee.
Before: WINTER, JACOBS, and STRAUB, Circuit Judges.
Plaintiff-Appellant Duaut Duamutef, pro se, appeals from a judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge) entered May 21, 2003, dismissing Duamutef's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and for a writ of mandamus pursuant to 28 U.S.C. § 1361.
Duamutef, a native and citizen of Jamaica, entered the United States in 1980. Four years later, in the Supreme Court of New York, New York County, Duamutef was convicted after a jury trial of murder in the second degree, in violation of section 125.25 of the New York Penal Law. He was sentenced to a term of 15 years to life imprisonment.
As a result of that conviction, in 1993, while Duamutef was serving his sentence, the Immigration and Naturalization Service ("INS")1 initiated deportation proceedings against him by serving him with an order to show cause. The INS alleged that Duamutef was deportable pursuant to sections 241(a)(1)(B) and 241(a)(2)(A)(i) of the Immigration and Nationality Act of 1952 ("INA"), then codified at 8 U.S.C. § 1251(a)(1)(B), (a)(2)(A)(i), for entering the United States without inspection and for having been convicted of "a crime involving moral turpitude committed within five years of entry and sentenced to confinement or hav[ing] been confined therefor in a prison or correctional institution for one year or longer."
On June 16, 1994, based on the INS's charges (which were not contested by Duamutef), an immigration judge ("IJ") ordered Duamutef deported to Jamaica. The IJ's order indicates that Duamutef waived his right to file an appeal with the Board of Immigration Appeals ("BIA"). As a result, the deportation order became final when it was issued on June 16. The INS filed a detainer with the state authorities in the event that Duamutef is granted a discretionary release.2
In 1997, Duamutef completed the minimum term of his state sentence and became eligible for parole. The New York State Parole Board (the "Parole Board") denied Duamutef's request for parole, stating that his release would be "incompatible with the interest of society" in light of "the severity of the instant offense." The Parole Board did, however, grant Duamutef Conditional Parole for Deportation Only ("CPDO") on or after June 3, 1997, but not later than June 1999.
Under New York state law, once an inmate who is subject to deportation by the INS has served his minimum period of incarceration, the Parole Board "may consider, as a factor warranting earlier release, the fact that such inmate will be deported, and may grant parole to such inmate conditioned specifically on his prompt deportation." N.Y. EXEC. LAW § 259-i(2)(d)(i) (McKinney 2004). A CPDO is not to be issued unless the Parole Board has received assurance from the INS that (i) upon the inmate's release from state custody, "an order of deportation will be executed" or deportation proceedings "will promptly be commenced" and (ii) the inmate will not be released from INS custody, except as a result of his deportation, "without providing the board a reasonable opportunity to arrange for execution of its warrant for the retaking of such parolee." Id. An inmate who is granted a CPDO is not released to parole supervision; rather, he is to be "delivered to the custody" of the INS. Id. § 259-i(2)(d)(ii). In practice, according to the New York State Division of Parole, there is no INS holding facility to which inmates like Duamutef are delivered upon the issuance of a CPDO. Instead, once the Division of Parole informs the INS that an inmate is available to be transferred into INS custody, "it is ... the responsibility of the INS to come to the facility" and take the inmate into custody.
Despite having been alerted to Duamutef's CPDO status, the INS did not take him into custody. As a result, the Parole Board revoked Duamutef's CPDO when he reappeared before it in June 1999. Two years later, the Parole Board reinstated the CPDO but again denied Duamutef discretionary release. In a decision dated July 2, 2001, the Parole Board advised Duamutef of its specific reasons for denying him parole:
Your crime of conviction ... involved you shooting a man 6 to 8 time[s] causing his death. Your actions demonstrate how you value human life. During the interview[,] you never answered the board[']s questions about what you have learned from your prison experience nor showed any remorse for the victim. You refused to accept responsibility for the crime for which you were convicted. This panel is aware of your positive programming and your clean disciplinary record, but the cold blooded nature of the instant offense and your inability to demonstrate how you have changed ... lead[ ] this panel to conclude you are not ready for community reentry.
According to Duamutef, he appeared before the Parole Board for a fourth time on July 16, 2003 and was again granted a CPDO.
Although the INS is aware of Duamutef's status, it has not yet accepted custody of him under the terms of the CPDO. The government explains that, as a matter of standard policy, the INS will not "accept custody of a deportable alien from the state until the alien is under a final order of deportation and it is possible to immediately execute the deportation order." In this case, the INS is not prepared to immediately deport Duamutef because it is still in the process of obtaining a necessary travel document for him. According to the government, without that document, Jamaica will not accept Duamutef for repatriation. As a result, Duamutef remains in the physical custody of the New York State Department of Corrections, serving his prison sentence.
Prior to filing the instant petition in federal court, Duamutef made several unsuccessful efforts to obtain relief in other fora. He has filed inmate grievance reports and written letters to, inter alia, the New York State Governor, his United States Senator, the United States Attorney General, the INS regional office, and the Jamaican Consulate. He also filed a habeas petition in New York Supreme Court, Dutchess County, seeking an order directing the respondents, state prison and parole officials, to deliver him into INS custody. That court denied Duamutef's petition, holding that the respondents satisfied their statutory obligations by promptly notifying the INS of Duamutef's CPDO status (and availability for deportation) and explaining that the INS "has the sole authority to determine whether and when an inmate who has a deportation order filed against him will actually be deported."
In February 2002, Duamutef, pro se, initiated the instant action against the INS, challenging his continued confinement by state authorities and seeking an order compelling the INS to execute the final order of deportation issued against him. The District Court construed Duamutef's petition, originally styled as a 28 U.S.C. § 2254 habeas petition, as both a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and a petition for a writ of mandamus under 28 U.S.C. § 1361.3 See Duamutef v. INS, No. CV-02-1345, 2003 WL 21087984, at *1 .
In an order dated May 14, 2003, the District Court dismissed the petition, holding that (i) it lacked jurisdiction to review Duamutef's § 2241 habeas claim because he was not in the custody of the INS, and (ii) Duamutef was not entitled to mandamus relief under § 1361. As to its habeas jurisdiction, the District Court acknowledged that in Simmonds v. INS, 326 F.3d 351, 356 (2d Cir.2003), we held that when a petitioner is subject to a final order of removal,4 the § 2241 custody requirement is met. See Duamutef, 2003 WL 21087984, at *2. The court distinguished Simmonds, however, by noting that the petitioner in that case was challenging his final order of removal:
Here, Duamutef is subject to a final order of removal as well as a detainer, and, as in Simmonds, his subsequent confinement by the INS is required by statute. However, even under Simmonds, constructive custody is only available insofar that a petitioner is challenging the future confinement; jurisdiction would, therefore, exist to review Duamutef's petition only to the extent it challenges the prospective INS custody. However, Duamutef is neither challenging his final order of removal nor his eventual INS confinement. He is challenging his current confinement — by the state authorities — claiming that his current confinement is the result of INS inaction.
The court disposed of Duamutef's mandamus petition because it found that he had not established a "clear right to the relief sought," namely, his immediate deportation by the INS. Id. (internal quotation marks omitted). Indeed, the court observed that under 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'" and, in any event, that § 1231(a)(4)(D) "specifically disallows a private cause of action to compel the Attorney General to deport a convicted alien prior to completion of the sentence." Duamutef, 2003...
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