Gittens v. Holder
| Decision Date | 27 July 2011 |
| Docket Number | 10-CV-849 (CBA) (LB) |
| Parties | RYAN O. GITTENS, Petitioner, v. ERIC HOLDER, Attorney General, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
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.
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 fornaturalization 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 N-400 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) (). All indications are that Gittens's application was deemed abandoned and dismissed.
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 of a controlled substance with intent to distribute, in violation of 21 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 thejurisdiction of the 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 of Immigration 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.
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.
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.
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) (); Henriquez v. Ashcroft 269 F. Supp. 2d 106, 107 (E.D.N.Y. 2003) ().
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) ().
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)(1), (5). Section 1252(b)(5)specifically authorizes a court of appeals reviewing a final order of removal to decide a nationality claim in the absence of a 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...
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