Inoue v. Enforcement

Decision Date17 January 2018
Docket NumberCase No. 2:17-cv-03134-JAD-PAL
CourtU.S. District Court — District of Nevada

(Receipt of Initiating Docs. - ECF No. 1)

This matter is before the court on Petitioner Raymond Inoue's initiating document (ECF No. 1), which he calls "Petitioners Request for a Writ of Stay." Inoue names Immigration and Customs Enforcement ("ICE") as the respondent. This proceeding is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice. The court has addressed the petition on an expedited basis because Mr. Inoue, who is currently in custody at Southern Desert Correctional Center in Indian Springs, Nevada, states he has an ICE detainer and is about to be taken into ICE custody on his parole date of January 26, 2018.

Mr. Inoue is proceeding in this action pro se, which means that he is not represented by an attorney. See LSR 2-1. He filed his petition but did not pay the standard filing fee or submit an application to proceed in forma pauperis ("IFP") in this case. Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a $400 filing fee is required to commence a civil action in a federal district court. The court may authorize a prisoner to begin an action without prepaying fees and costs when a prisoner submits an IFP application on the court's form along with the appropriate supporting documentation. See 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2.1

In general, when a district court grants a prisoner IFP status, federal law states that "the prisoner shall be required to pay the full amount of the filing fee." 28 U.S.C. § 1915(b)(1). Prisoners must pay an initial partial filing fee of the greater of twenty percent (20%) of the average monthly deposits or twenty percent (20%) of the average monthly balance of his account for the six months immediately preceding the start of this action. 28 U.S.C. § 1915(b)(1). After the initial partial filing fee is paid, the facility having custody of the prisoner will forward payments from the prisoner's account each month. See 28 U.S.C. § 1915(b)(2). Plaintiff is therefore advised that even if this action is dismissed, he must still pay the full filing fee pursuant to § 1915(b) and the monthly payments from his inmate account will continue until the balance is paid. Washington v. L.A. Cnty. Sheriff's Dep't, 833 F.3d 1048, 1051-52 (9th Cir. 2016); Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007). A prisoner's failure to pay the initial partial filing fee before the deadline stated in the court's order, which typically allow 30 days, "shall be cause for cause for dismissal of the case." LSR 1-3(c).

LSR 1-2 and § 1915 specifically require three items be submitted to this court with a prisoner's IFP application: (1) a financial certificate signed by an authorized officer of the institution in which he or she is incarcerated, (2) a copy of his or her inmate trust account statement for the six-month period prior to filing, and (3) a signed affidavit showing an inability to prepay fees and costs or give security for them. Additionally, LSR 1-1 states that a prisoner's IFP "application shall be made on the form provided by the court."

Here, Mr. Inoue submitted a petition as part of his initiating documents (ECF No. 1), but he did not pay the $400 filing fee or submit an IFP application along with the appropriate supporting documentation. The matter of the filing fee or request to proceed in forma pauperis without prepaying the fee could easily be addressed and remedied. However, from reviewing the petition, it appears that the court lacks subject matter jurisdiction to grant the relief requested. See Nevada v. Bank of America Corp., 672 F.3d 661, 673 (9th Cir. 2012) (district courts "may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of theaction"). The court would ordinarily defer review of the petition until Inoue had either paid the filing fee or filed a completed IFP application establishing that he qualifies to proceed without prepayment of the filing fee. However, as explained above, if he qualifies to proceed IFP and the case is dismissed after screening, he will still owe the entire $350 filing fee, which will be withdrawn from his inmate account until paid in full. If he pays the filing fee, it will not be refunded. The court will therefore give Inoue an opportunity to pay the filing fee, file a completed IFP application, or withdraw his petition.


Inoue alleges he has an ICE detainer placed on him. He has been in the United States for over 20 years, has children born in the United States, and he is non-violent. He seeks a stay or political asylum in the United States because he alleges he will face certain death if he returns to the Philippines. He claims that on May 24, 2017, his only relative in the Philippines, his brother, was assassinated by the Church of Christ. If given the opportunity to remain in this country, Inoue states he will no longer be a threat to society but a productive member. He has an upcoming parole date of January 26, 2018, when he will be transported to federal custody based on the ICE detainer. He believes this is unconstitutional. For the reasons discussed below, the court finds that the petition fails to state a proper basis for the court to exercise subject matter jurisdiction.


Federal courts are courts of limited jurisdiction, which means they may only adjudicate certain cases as authorized by the Constitution and by Congress. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). "A federal district court is obligated to ensure it has jurisdiction over an action, and once it determines it lacks jurisdiction, it has no further power to act." Guerra v. Hertz Corp., 504 F. Supp. 2d 1014, 1017-18 (D. Nev. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)). A court is "presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). The plaintiff bears the burden of proving that the case is properly in federal court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001). A district court may raise the issue of subject matter jurisdiction on its ownaccord and must dismiss a case if no subject matter jurisdiction exists. Fed. R. Civ. P. 12(h). Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981, 984-85 (9th Cir. 2008).

An immigration detainer issued by ICE, an agency of the Department of Homeland Security ("DHS"), is the principal mechanism for ICE officials to obtain custody of a suspected immigration violator in the custody of any other federal, state, or local law enforcement agency. See 8 C.F.R. § 287.7. When ICE learns that a suspected immigration violator is in a state or federal prison or local jail, an "Immigration Detainer-Notice of Action" is lodged with the law enforcement agency holding the non-citizen in custody. A detainer serves to advise another law enforcement agency that DHS seeks custody of a non-citizen presently in the custody of that agency, "for the purpose of arresting and removing" that individual. 8 C.F.R. § 287.7(a). The detainer is a request that the agency advise DHS, prior to the individual's release, so DHS may arrange to assume custody. If law enforcement informs ICE that a non-citizen is in custody on non-immigration related charges, ICE may issue a detainer requesting that the law enforcement agency hold the individual for up to 48 hours beyond the time the individual would otherwise be released in order to allow ICE to assume custody, if officials choose to do so. An ICE detainer is not a mandatory command to detain a non-citizen but instead is a request to detain a non-citizen for a period not to exceed 48 hours. Galarza v. Szalczyk, 745 F.3d 634, 640-42 (3d Cir. 2014). ICE may or may not take a non-citizen into custody for the purpose of starting proceedings to remove (i.e., deport) that individual from the United States. Cf. United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1179 (D. Or. 2012).

Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., DHS can seek to remove non-citizens from the United States through several different means. See Gomez-Velazco v. Sessions, -- F.3d ---, 2018 WL 343752, at *1 (9th Cir. Jan. 10, 2018). The most formal process involves a hearing in immigration court before an immigration judge, during which the individual to be removed can contest the charges against him or her and request various forms ofrelief from removal. See 8 U.S.C. § 1229a. However, most non-citizens are ordered removed through streamlined administrative proceedings that do not involve a hearing before an immigration judge. Gomez-Velazco, 2018 WL 343752, at *1 (citation omitted). The Ninth Circuit recently provided a summary of how administrative removal proceedings work in Gomez-Velazco. 2018 WL 343752, at *2 (discussing 8 U.S.C. § 1228(b)). The administrative proceedings are conducted by immigration enforcement officers. Id. at *2. Although such proceedings are summary in nature, they afford non-citizens due process. Id.; see also Zadvydas v. Davis, 533 U.S. 678, 688 (2001) ("[T]he Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."). In addition, administrative proceedings provide a non-citizen an opportunity to request cancelation of removal or asylum if he or she has a reasonable fear of...

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