Rodney v. I.N.S., Civil No. 3:05CV479 (PCD).

• Court: U.S. District Court — District of Connecticut
• Writing for the Court: Dorsey
• Citation: Rodney v. I.N.S., 462 F.Supp.2d 285 (D. Conn. 2006)
• Decision Date: 20 November 2006
• Docket Number: Civil No. 3:05CV479 (PCD).
• Parties: Wesley RODNEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

462 F.Supp.2d 285

Wesley RODNEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civil No. 3:05CV479 (PCD).

United States District Court, D. Connecticut.

November 20, 2006.

Michael J. Boyle, North Haven, CT, for Petitioner.

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

RULING ON PETITION FOR WRIT OF MANDAMUS

DORSEY, District Judge.

This case involves a petition for a writ of mandamus to be issued to the United States Immigration and Naturalization Service ("INS")¹ ordering them to deport Petitioner, Wesley Rodney,² to his native country of Guyana. For the reasons that follow, the Petition for Writ of Mandamus [Doc. No. 3] is dismissed.

I. BACKGROUND

Petitioner is a citizen and native of Guyana. (See INS Order to Show Cause, Ex. A to Resp't Resp. to Order to Show Cause.) Petitioner entered the United States at or near New York, New York on or about December 22, 1987 as an immigrant. (Id.) On February 5, 1993, Petitioner was convicted of possession of narcotics in violation of Connecticut General Statutes § 21a-279(a). (Id.) On June 16, 1995, an Immigration Judge ("IJ") ordered Petitioner deported to Guyana based on his failure to appear at his deportation hearing. (See IJ Order, Ex. B to Resp't Resp. to Order to Show Cause.) The IJ's order indicates that Petitioner waived his right to file an appeal with the Board of Immigration Appeals and as a result, the deportation order became final when it was issued on June 16.(Id.)

On July 26, 1999, Petitioner was sentenced to fifteen years in state prison based on his conviction for sale of narcotics. (See Connecticut Dep't of Corrections Inmate Information, Ex. C to Resp't Resp. to Order to Show Cause.) Thereafter, on November 23, 1999, the INS placed a detainer on Petitioner because he was subject to removal from the United States. (See Immigration Detainer, Ex. D to Resp't Resp. to Order to Show Cause.) Currently, however, Petitioner is continuing to serve his state prison sentence, which does not expire until May 18, 2014. (See Connecticut Dep't of Corrections Inmate Information.) According to the INS, when Petitioner completes his state prison sentence, he will be taken into BICE custody and immediately deported. (Resp't Resp. to Order to Show Cause 2.)

On March 17, 2005, while still in state custody, Petitioner filed the instant Petition for Writ of Mandamus seeking to be deported to Guyana immediately. This Court issued an Order to Show Cause on April 6, 2005. The INS filed its response on April 25, 2005, and Petitioner filed his response on August 26, 2005.

II. DISCUSSION

A. Mandamus Jurisdiction

"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 [respondent's] part to do the act in question; and (3) lack of another available, adequate remedy.'" Deutsch v. United States, 943 F.Supp. 276, 279 (W.D.N.Y.1996) (quoting Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir.1976)). In Duamutef v. INS, 386 F.3d 172 (2d Cir.2004), the Second Circuit emphasized that "jurisdiction under the mandamus statute is limited to actions seeking to compel the performance of a nondiscretionary duty." Id. at 180.

The INS, citing Immigration and Nationality Act ("INA") § 238(a)(3)(B), codified at 8 U.S.C. § 1228(a)(3)(B), argues that Petitioner has no clear right to be deported prior to his release from state custody, nor does BICE have a duty to deport him prior to the termination of his state sentence. (Resp't Resp. to Order to Show Cause 3-4.) Petitioner argues that mandamus is proper, and asserts that during his sentencing, the state court judge stated that if deportation proceedings were "commenced and imminent," the state court would entertain motions to vacate the plea on condition of deportation. Moreover, Petitioner claims that the state court judge stated that if deportation proceedings were commenced, there would be no reason for the state court to keep Petitioner in state custody, and therefore, he would be deported to Guyana. (Pet'r Resp. to Order to Show Cause 1.)³

Petitioner has no clear right to deportation prior to the expiration of his term of incarceration, and the INS has no obligation to remove him prior to his release from state custody. According to 8 U.S.C. § 1228, which governs the removal of aliens convicted of committing aggravated felonies, "the Attorney General shall provide for the initiation and to the extent possible, the completion of deportation proceedings ... prior to the alien's release from incarceration." 8 U.S.C. § 1228(a)(3)(A) (emphasis added). The section that immediately follows, however, provides that nothing in the law "shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined." Id. § 1228(a)(3)(B). Section 1228, although it purports to "assure[] expeditious removal following the end of the alien's incarceration for the underlying sentence," gives Petitioner no right to petition for an order of mandamus compelling the United States or the INS to remove him prior to his release from state prison. See Bell v. INS, 292 F.Supp.2d 370, 372 (D.Conn.2003) (noting that "an inmate ordinarily remains in the custody of the correctional institution until his or her sentence is complete ... because an inmate cannot be deported while imprisoned by the state") (internal citations omitted).

Petitioner in this case is still serving his state sentence, which does not expire until May 18, 2014. Even though the state court indicated that it would entertain a motion to release Petitioner for purposes of deportation, the INS does not accept custody of a deportable alien from the state until the alien is under a final order of deportation and the INS is prepared to immediately deport the alien. According to the INS, BICE will take custody of Petitioner and immediately deport him upon completion of his state prison sentence.

District courts within this Circuit have denied mandamus as well as habeas corpus relief to aliens in similar cases. In Andriianov v. Meisner, No. 97-CV-781, 1998 U.S. Dist. LEXIS 2746, 1998 WL 106239 (N.D.N.Y. Mar.3, 1998), for example, the petitioner, a New York state prisoner who had been ordered deported by an IJ, petitioned for a writ of mandamus and habeas corpus requiring his immediate deportation. Id. at *1. The state parole board authorized the petitioner's conditional parole for purposes of deportation, however, the INS could not immediately deport him due to a delay in obtaining travel documents because the IJ had designated Czechoslovakia (which no longer exists) instead of the Czech Republic in his removal order. Id. at *2. The district court rejected the petitioner's claim that his grant of parole entitled him to immediate INS custody and deportation. Id. at *3-4. In denying mandamus relief, the district court relief on former INA § 242A (renumbered in INA § 238), which provided that the Attorney General is not required "to effect the deportation of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined." Id. at *4 (quoting INA § 242A(a)(3)(B), codified at 8 U.S.C. § 1252a(a)(3)(B), renumbered INA § 238(a)(3)(B), codified at 8 U.S.C. § 1228(a)(3)(B))). Similarly, in Santana v. Giambruno, No. 97-CV-850, 1998 U.S. Dist. LEXIS 23435, *6-8, 1998 WL 295666, at *3 (N.D.N.Y. May 28, 1998), the petitioner was also a state prisoner who was ordered deported and the New York State Parole Board had panted the petitioner a Conditional Parole for Deportation Only. The court denied the petitioner's request for writ of mandamus or habeas corpus while he was still in state custody on the grounds that the INS had no affirmative duty to deport Petitioner prior to the expiration of his sentence and Petitioner no absolute right either to be released from state custody or to be immediately deported, even though he had been paroled for deportation purposes. Two district courts in this District have reached similar results. See Bell, 292 F.Supp.2d at 372 (denying mandamus relief on the ground that "[the petitioner] has no clear right to release from state custody, regardless of whether he had been voted to parole"); Ferwis v. INS, 303 F.Supp.2d 103, 107-108 (D.Conn.2004) (same).

Accordingly, because Petitioner has no clear right to be released from state custody or to be immediately deported, his petition for a writ of mandamus is denied.

B. Habeas Jurisdiction

Given the liberality with which pro se pleadings are treated, the Court could also interpret this petition as one for habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from state custody in order to be deported.

The Second Circuit has held that "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.'" Simmonds v. INS, 326 F.3d 351, 354 (2d Cir.2003); see also 28 U.S.C. § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless ... he is in custody in violation of the Constitution or laws or treaties of the United States."). As such, the writ must be sought against the authority or person that has custody of the petitioner. See Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) ("the proper respondent to a habeas petition is the person who has custody over the petitioner") (internal quotation marks and citation omitted).

In the typical case, a detainee's "custodian," for purposes of habeas jurisdiction, "is the warden of the prison or facility where the detainee is held[,] ... because it is the warden that has day-to-day control over the prisoner and who can produce the actual body." Yi v....