Campillo v. Sullivan

• Citation: 853 F.2d 593
• Decision Date: 04 August 1988
• Docket Number: Nos. 87-5335,87-5490,s. 87-5335
• Parties: Juan Reinaldo CAMPILLO, Appellee, v. John SULLIVAN, Appellant. Victor R. CORPORAN, Appellant, v. John SULLIVAN, Warden, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 593

853 F.2d 593

Juan Reinaldo CAMPILLO, Appellee, v. John SULLIVAN, Appellant.

Victor R. CORPORAN, Appellant, v. John SULLIVAN, Warden, Appellee.

Nos. 87-5335, 87-5490.

United States Court of Appeals Eighth Circuit.

Submitted April 11, 1988.

Decided Aug. 4, 1988.

Rehearing and Rehearing En Banc Denied in No. 87-5335 Nov. 14, 1988.

Alison R. Drucker, Washington, D.C., and Fay Nosow, Minneapolis, Minn., for appellant.

Cecilia M. Michel, Minneapolis, Minn., for appellee.

Before JOHN R. GIBSON and BEAM, Circuit Judges, and DUMBAULD ^*, District Judge.

BEAM, Circuit Judge.

This appeal involves whether incarcerated aliens may compel the Immigration and Naturalization Service (INS), through a petition for writ of habeas corpus, to provide an immediate hearing and disposition of deportation proceedings upon the filing of an INS detainer with the penal facility at which the alien is incarcerated. We find that incarcerated aliens may not maintain such actions, and order that the petitions be dismissed.

BACKGROUND

Juan Reinaldo Campillo, a Marielto Cuban, is presently serving a fifteen year sentence for violations of various narcotics laws. Campillo entered the United States at Miami, Florida, as one of approximately 125,000 Cuban nationals who came to the United States in the spring and summer of 1980 as part of the "Mariel Freedom Flotilla." Campillo lacked the proper documentation entitling him to legally enter the United States, and has, since entering the country, remained excludable from the United States pursuant to 8 U.S.C. Sec. 1182(a)(20).

Following Campillo's arrest, the INS filed an "Immigration Detainer--Notice of Action By Immigration and Naturalization Service" form with the United States Marshal who had custody of Campillo at the time. The detainer was issued "for notification purposes only," and advised that an investigation had been initiated to determine whether Campillo was subject to exclusion or deportation from the United States. It requested that the INS be notified within thirty days of Campillo's release, so that appropriate action could be taken. The detainer neither initiated formal deportation proceedings against Campillo nor did it purport to affect his classification as a federal prisoner. Upon Campillo's conviction and sentence, he was transported to the Sandstone Federal Correctional Institution, Sandstone, Minnesota, where the detainer was received and acknowledged by prison officials.

In December of 1986, Campillo filed a petition for a writ of habeas corpus in the United States District Court for the District of Minnesota, alleging that his security and custody classification had been adversely affected by the detainer. He requested that an immediate hearing and determination be conducted regarding his deportation, or alternatively, that the detainer be expunged. The district court concluded that the INS had failed to perform its statutory duty to begin deportation proceedings On appeal, the government argues that the district court was without jurisdiction to consider Campillo's challenge to the INS detainer. We agree.

"as expeditiously as possible after the date of conviction," 8 U.S.C. Sec. 1252(i), and to conduct such proceedings with such "reasonable dispatch as may be warranted by the particular facts and circumstances," 8 U.S.C. Sec. 1252(a). Accordingly, the court granted the petition and ordered that the detainer be expunged, unless the INS initiated a deportation investigation and subsequent proceedings as necessary within two months. ¹

DISCUSSION

Campillo sets forth two statutory grounds for federal jurisdiction of his claim: the general habeas corpus statute found at 28 U.S.C. Sec. 2241 and the more specific statute involving deportation proceedings found at 8 U.S.C. Sec. 1252. Under either statute, Campillo's claim fails because he is not yet in the custody of the INS.

The writ of habeas corpus functions to grant relief from unlawful custody or imprisonment. Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ. See 28 U.S.C. Sec. 2241(c). See generally 39 C.J.S. Habeas Corpus Secs. 6-7 (1976); Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir.1976) (habeas corpus may not be used to adjudicate matters "foreign to the question of the legality of custody."). In this case, Campillo seeks relief from the consequences of a detainer filed by the INS. The detainer, however, does not purport to effect Campillo's status as a sentenced federal offender, but merely notifies prison officials that a decision regarding his deportation will be made by the INS at some future date. The filing of such a document is insufficient, we believe, to alter Campillo's status as a custodial detainee of the federal prison system. Campillo may not challenge the detainer by way of habeas corpus until he is placed in the custody of the INS, an event which will not occur until Campillo is released from his present term of confinement. The filing of an INS detainer, standing alone, does not cause a sentenced offender to come within the custody of the INS for purposes of a petition for a writ of habeas corpus. See Fernandez-Collado v. I.N.S., 644 F.Supp. 741, 742-44 (D.Conn.1986). ²

Campillo argues, in this regard, that he is in the "technical custody" of the INS and, therefore, has satisfied the custody requirement of the habeas statutes. There have been cases which have applied a theory of technical custody. See Chung Young Chew v. Boyd, 309 F.2d 857, 865 (9th Cir.1962); Slavik v. Miller, 89 F.Supp. 575, 576 (W.D.Pa.), aff'd, 184 F.2d 575 (3d Cir.1950), cert. denied, 340 U.S. 955, 71 S.Ct. 566, 95 L.Ed. 688 (1951). In both Boyd and Slavik, however, the Commissioner or District Director of the INS was a party and the INS had completed deportation proceedings and issued a determination of deportability and a formal deportation order. Boyd, 309 F.2d at 859; Slavik, 89 F.Supp. at 576. See Fernandez-Collado, 644 F.Supp. at 743. These courts acted to ensure that an already existing deportation order would be subject to judicial review. Here, on the other hand, there is no existing deportation order, nor is there a threat that such an order will be issued without the opportunity for a full and fair hearing prior to deportation. We do not believe that the filing of a detainer with prison officials amounts to the taking into custody, technical or otherwise, of the petitioner.

We note further, with regard to Campillo's claim under 8 U.S.C. Sec. 1252(a), that the specific language of the statute supports this result. ³ Section 1252(a) provides a cause of action to review a "determination" of the Attorney General (i.e., the INS) regarding whether to retain an alien in custody, release the alien on bail, or release the alien on conditional parole following his or her arrest upon a properly issued warrant. It is only after the alien is taken into INS custody that the provisions for judicial relief contained in section 1252(a) become available. Here, the INS has not yet taken the initial step of gaining custody of Campillo. Rather, the INS has issued a detainer to the authority who currently has custody of Campillo, informing it of the INS' intent to investigate Campillo's status. Section 1252(a), by its terms, is not yet available as a remedy under the circumstances of this case. See Fernandez-Collado, 644 F.Supp. at 743-44.

Petitioner relies on an alleged violation of 8 U.S.C. Sec. 1252(i), which provides that the Attorney General shall begin deportation proceedings "as expeditiously as possible," as the underlying basis for relief in his habeas petition. Because we find that the district court was without jurisdiction to consider petitioner's claim, we need not address whether section 1252(i) compels the INS to provide an immediate deportation hearing under the facts of this case. ⁴ It is

sufficient for us to hold that Campillo may not seek compliance with section 1252(i) through a petition for a writ of habeas corpus under the circumstances presented here.

CONCLUSION

The decision of the district court granting relief in Campillo is reversed and the case remanded to the district court with instructions to dismiss for lack of jurisdiction. The appeal in Corporan is dismissed as...