Ferris v. I.N.S.

• Court: U.S. District Court — District of Connecticut
• Writing for the Court: Hall
• Citation: Ferris v. I.N.S., 303 F.Supp.2d 103 (D. Conn. 2004)
• Decision Date: 03 February 2004
• Docket Number: No. CIV.A. 3-03-CV-483(JCH).,CIV.A. 3-03-CV-483(JCH).
• Parties: Abdalla Gowan FERRIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

303 F.Supp.2d 103

Abdalla Gowan FERRIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. CIV.A. 3-03-CV-483(JCH).

United States District Court, D. Connecticut.

February 3, 2004.

COPYRIGHT MATERIAL OMITTED

Abdalla Gowan Ferris, Uncasville, CT, pro se.

Douglas P. Morabito, U.S. Attorney's Office, New Haven, CT, for Defendant.

RULING DENYING PETITION FOR WRIT OF HABEAS CORPUS [Dkt. No. 1]

HALL, District Judge.

Pro se petitioner Abdalla Gowan Ferris requests that this court grant his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 and for a writ of mandamus [Dkt. No. 1].¹ Ferris argues that the detainer lodged against him by the Respondent, the Immigration and Naturalization Service ("INS"),² has prevented him from being released on parole and therefore seeks to have the detainer lifted. To the extent that Ferris' pleading can be considered a petition for a writ of mandamus, the court denies the petition because Ferris has no right to an immediate hearing, release from state custody, or dismissal of the detainer. Under the Second Circuit's recent decision in Simmonds v. INS, 326 F.3d 351 (2d Cir.2003), this court determines that, because the custody requirement of § 2241 is satisfied, it would otherwise have jurisdiction to hear Ferris' habeas corpus petition. However, to the extent that Ferris has failed to exhaust his administrative remedies with respect to his substantive claims, the court is without jurisdiction and therefore dismisses the habeas corpus petition.

I. FACTS AND PROCEDURAL HISTORY

Petitioner Abdalla Gowan Ferris, a 29-year-old citizen of Antigua, entered the United States at Christensted, St. Croix, V.I., as a legal permanent resident in September of 1980, not long after his sixth birthday. Ferris' family, including his mother, father, grandmother, three sisters, and his five children, live in the United States. See Petitioner's Response to Order to Show Cause ("Ferris Response"), at 2 [Dkt. 13]. His five children, ranging in age from two to ten years of age, also live here in the United States and receive financial support from Ferris. See id.; see also Petition for Writ of Mandamus, at 1 [Dkt. 1].

Ferris pled guilty to and, on July 10, 2001, was convicted of possession of narcotics (marijuana) with intent to sell, in violation of Connecticut General Statutes 21a-277(a). Based on this "aggravated felony" conviction, on January 20, 2001, the INS initiated removal proceedings against Ferris.³ At the deportation hearing, Ferris challenged this state drug conviction as the basis for his removal. However, the immigration judge (IJ) orally concluded that Ferris was removable based on clear and convincing evidence that he had committed this "aggravated felony" as defined by the INA, determined that he was not eligible for any other relief from removal, and ordered him removed to Antigua. See INS Response to Order to Show Cause ("Response") [Dkt. 12], Ex. B: Oral Decision of the IJ. Ferris, who was represented by counsel, did not apply for any relief from removal during these proceedings before the IJ. Id. at 2. Ferris now claims that he was not aware of the possibility of applying for such relief.

Acting pro se, Ferris appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), and the BIA affirmed without issuing an opinion. See Response, Ex. C: BIA Order, dated March 10, 2003. As a result of this final agency determination, on March 21, 2003, the INS lodged a detainer against the petitioner as a result of his aggravated felony conviction, and Ferris is now subject to a final order of removal. See Response, Ex. D: "Immigration Detainer-Notice of Action."

Ferris filed this pro se petition for the writ of habeas corpus on March 18, 2003. In light of Ferris' pro se status, on January 26, 2004, this court held a hearing on Ferris' petition. He is currently serving his state sentence at Radgowski Correctional Institution in Uncasville, Connecticut. Although this sentence does not expire until June 4, 2005, Ferris was "voted to parole"⁴ by the Connecticut Board of Parole ("Parole Board") beginning on January 15, 2005. Ferris concedes that, in accordance with the policy and procedures of the Connecticut Department of Correction, the Parole Board may "consider an INS detainer in making [its] determination whether to release an alien prior to the expiration of his or he sentence." Bell v. INS, 292 F.Supp.2d 370, 373 (D.Conn. 2003). According to Ferris, however, the fact that he has an INS detainer lodged against him has adversely affected his parole eligibility date, such that he is eligible for parole only after he has served 85 percent of his sentence, in 2005, rather than in June of 2003, when he will have completed 50 percent of his sentence. In addition, Ferris' petition requests that this court "lift his detainer with a cash bond or cancellation of deportation, with special probation period of a number of years, in which the petitioner could apply for his citizenship," or, absent such relief, grant him "a one-year pardon" to allow him to allow him to return to the U.S. in order to visit his family.⁵ Ferris Response, at 2.

II. DISCUSSION

A. Writ of Mandamus

Although Ferris petitions for a writ of mandamus, he does not name the person who should be the subject of the mandamus order, nor does he state any legal grounds for such an order to issue. However, construing the petition liberally in favor of Ferris, the court will interpret the petition as demanding that he be released from state custody, that he receive an immediate hearing before an IJ, and that the INS detainer lodged against him be dismissed.

A writ of mandamus is a petition to a court requesting an order to compel an officer or employee of the United States to perform a duty owed to the petitioner. See Deutsch v. United States, 943 F.Supp. 276, 279 (W.D.N.Y.1996). "The Second Circuit has held that a writ of mandamus may issue only when there is: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and preemptory duty on the defendant's part to do the act in question; and (3) lack of another available, adequate remedy." Id. (internal quotation marks omitted).

Ferris has no clear right to the remedies he seeks. Neither the federal procedures governing removal procedures for aliens convicted of aggravated felonies, nor state parole procedures provide petitioner with a clear right to a hearing or release from state custody. The statute governing INS procedures does not mandate or even authorize an immediate hearing in front of an immigration judge after a detainer has been filed against an alien. See 8 U.S.C. § 1228. The government is not required to institute removal proceedings for an alien prior to the expiration of the alien's sentence in a correctional facility. See 8 U.S.C. § 1228(a)(3)(B). "Although removal proceedings should be conducted in a manner that minimizes the need for additional detention after an alien's incarceration for the underlying offense, an alien may be detained by INS officials after a state or federal sentence has expired." Bell, 292 F.Supp.2d 370, 372 (citing 8 U.S.C. § 1228(a)(1)). As the District Court for the District of Connecticut (Underhill, J.) observed in Bell:

In fact, an inmate ordinarily remains in the custody of the correctional institution until his or her sentence is complete, Deutsch, 943 F.Supp. at 279, because an inmate cannot be deported while imprisoned by the state. Fernandez-Collado v. INS, 644 F.Supp. 741, 744 (1986). Thus, petitioner does not have a clear right to release from state custody or to an immediate hearing regarding the INS detainer and potential deportation proceedings.

Connecticut statutes relating to and governing the Connecticut Board of Parole do not provide a clear right to demand or apply for parole and vest broad discretion with the Board to determine whether an inmate should be released on parole. Vincenzo v. Warden, 26 Conn.App. 132, 141, 599 A.2d 31 (1991). The parole board is allowed to consider an INS detainer in making their determination whether to release an alien prior to the expiration of his or her sentence. Moreover, prisoners generally do not have a protected interest in obtaining access to particular prison programs. Deutsch, 943 F.Supp. at 280. Therefore, [the petitioner] has no clear right to release from state custody, regardless of whether he had been voted to parole.

Id. at 372-73. Because Ferris has no right to an immediate hearing, release from state custody, or dismissal of the detainer, his petition for a writ of mandamus is denied.

B. Writ of Habeas Corpus

This court has jurisdiction to hear Ferris' habeas corpus petition. Section 2241 of Title 28 of the United State Code provides in relevant part: "The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). Thus, "[a] jurisdictional prerequisite for the granting of a writ of habeas corpus under 28 U.S.C. § 2241 is that the petitioner be `in custody.' ... [C]ourts have long recognized that the writ is available to those who, although not actually imprisoned, suffer such a curtailment of liberty as to render them `in custody.'" Simmonds v. INS, 326 F.3d 351, 359 (2d Cir. 2003).

Although "[t]he majority of circuits has held that the filing of a detainer, alone, does not create custody in the INS," id., and the overwhelming majority of district courts in this circuit has followed this line of authority, see Bell, 292 F.Supp.2d 370, 373-74 ("[C]ourts in this circuit have consistently held that an INS detainer does not subject a prisoner to the custody of the INS.") (citing cases), the Second Circuit Court of Appeals has yet to rule squarely on the issue, see Simmonds, 326 F.3d at 354 ("Our circuit has not yet resolved the issue."). Notwithstanding, in Simmonds, the Second...