Orozco v. U.S. I.N.S.
| Decision Date | 07 September 1990 |
| Docket Number | No. 89-5800,89-5800 |
| Citation | 911 F.2d 539 |
| Parties | Hector OROZCO, Petitioner-Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Perry A. Rivkind and Kenneth Powers, Respondents-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for respondents-appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
This appeal addresses the issue of whether incarcerated aliens may compel the Immigration and Naturalization Service (INS), through a petition for writ of habeas corpus, to provide an immediate disposition of deportation proceedings upon the filing of an INS detainer with the penal facility where the alien is incarcerated. We hold that incarcerated aliens may not maintain such actions and affirm the dismissal of the petition by the district court.
Appellant Orozco, a state prisoner and Columbian national, petitioned for federal habeas relief pursuant to 28 U.S.C. Sec. 2241. He also invoked 42 U.S.C. Secs. 1985 and 1986, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics Orozco's claims arise out of a detainer lodged against him by the INS. He alleged that, shortly after his arrest, the INS filed a notice of detainer indicating that it had initiated an investigation to determine whether he was subject to deportation from the United States. He further alleged that, during the next five years, he repeatedly asked the INS for information about the proceedings but received no response other than a single letter from a defendant assistant district director stating that the detainer could not be lifted. Orozco claimed that the lack of response from the INS violated his due process rights. For relief, he requested damages and an order compelling the INS to proceed with the filing of a "show cause" order pursuant to 8 C.F.R. Sec. 242.1(a).
03 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., as jurisdictional bases for his petition. Named as respondents were the INS and various INS administrators.
Prior to service on the respondents, a magistrate issued a report in which she found that an INS detainer based upon an investigation to determine deportability cannot be the basis of federal habeas relief by a prisoner presently serving a sentence who contends that he is suffering adverse consequences from the detainer. The magistrate also found that 42 U.S.C. Secs. 1985 and 1986 were "not properly invoked for several reasons, but most cogently because the defendant federal officials do not act under color of state law." The magistrate also found that Orozco could not recover under the Tort Claims Act or in a Bivens action Therefore, the magistrate recommended that the petition be denied.
Orozco filed objections stating that he was not challenging "adverse conditions" created by the detainer, but was challenging denial of due process because the INS did not respond to his inquiries and failed to substantiate the deportation grounds underlying the detainer lodged against him. He reiterated his desire for an order directing the INS to respond to his inquiries, and to issue a show cause order which would properly trigger the deportation proceedings and the consequent specifications forming the basis for the deportation request. He added a jurisdictional claim pursuant to 8 U.S.C. Sec. 1252(a) and emphasized that a recent statutory amendment, specifically 8 U.S.C. Sec. 1252(i), required the INS to begin deportation proceedings promptly after conviction.
The district court issued a final order adopting the magistrate's report and recommendation and dismissing the case. Orozco filed a motion requesting that additional findings of fact be made and that the judgment be amended or altered. The district court found that its previous final order adopted the magistrate's report and recommendation and thus contained sufficient findings of fact and, accordingly, denied the motion.
On appeal Orozco argues that the district court erred in dismissing his petition because the detainer was unlawful. He emphasizes that he is "challenging the appropriateness and lawfulness" of the detainer, not the adverse consequences of the detainer. Orozco argues that the INS failed to issue a show cause order which would set out the essential facts and allegations relative to his alleged violation. Without such an order he contends that he cannot prepare a defense. Orozco contends that the continuance of the detainer without an opportunity to examine and challenge the allegations against him deprives him of due process.
The INS indicates that it will take Orozco into custody after he is released from state prison and then begin deportation proceedings. At such time the requisite show cause order will issue to initiate the deportation proceedings.
Challenges to deportation proceedings are cognizable under 28 U.S.C. Sec. 2241. United States ex rel. Marcello v. District Director of Immigration & Naturalization Service, 634 F.2d 964, 967 (5th Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 421 (1981). Under certain circumstances, challenges to detainers may also be brought under Sec. 2241. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 498, 93 S.Ct. 1123, 1131, 35 L.Ed.2d 443 (1973). Thus, Orozco's reliance upon 42 U.S.C. Secs. 1985 and 1986, Bivens, and the Federal Tort Claims Act is inappropriate for the relief he seeks.
Title 8 U.S.C. Sec. 1252(a) mandates the procedures for the arrest and custody of aliens pending a determination of their deportability. Upon a conclusive showing in habeas proceedings that the Attorney General failed to proceed with "such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability," then "[a]ny court of competent jurisdiction" may review or revise any determination of the Attorney General concerning the alien's status pending a final decision of deportability. 8 U.S.C. Sec. 1252(a). Section 1252(i) provides that, in the case of an alien who is convicted of an offense that makes the alien subject to deportation, the Attorney General shall begin any deportation proceedings as expeditiously...
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