Simmonds v. I.N.S.

• Citation: 326 F.3d 351
• Decision Date: 21 April 2003
• Docket Number: Docket No. 02-2135.
• Parties: Anthony SIMMONDS, a/k/a Anthony Simmons, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

326 F.3d 351

Anthony SIMMONDS, a/k/a Anthony Simmons, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

Docket No. 02-2135.

United States Court of Appeals, Second Circuit.

Argued: March 4, 2003.

Decided: April 21, 2003.

Randolph Z. Volkell, Merrick, New York, for Appellant.

Kristen Chapman, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Steven J. Kim, Varuni Nelson, Assistant United States Attorneys, of counsel), Brooklyn, New York, for Appellee.

Before: CALABRESI, POOLER, and SOTOMAYOR, Circuit Judges.

CALABRESI, Circuit Judge.

Anthony Simmonds, a prisoner serving an indeterminate life sentence in the State of New York, filed a habeas corpus petition in the United States District Court for the Eastern District of New York (Ross, J.) seeking to overturn an order that he be deported for his drug and weapon possession convictions. The INS obtained the disputed removal order as a result of proceedings held after Simmonds had begun serving his state sentence. Despite the fact that the INS itself had commenced Simmonds' removal proceedings,¹ the INS now argues that Simmonds' claims that the removal order is improper are not ripe and that, in any event, Simmonds is not in the custody of the INS. Although we find that Simmonds is in INS custody within the meaning of 28 U.S.C. § 2241, considerations of prudence lead us to order that his petition be dismissed as not ripe.

Background

Simmonds became a lawful permanent resident of the United States in 1982 at the age of 24 after marrying a United States citizen. Nine years later, he was convicted, following a jury trial in state court in New York, on an array of drug and weapon possession charges. The conviction resulted in concurrent sentences of imprisonment, with the longest being from twenty-three years to life. Under existing law, Simmonds will not be considered for parole until 2013.

In 1998, while Simmonds was in state prison serving his sentence, the INS began removal proceedings against him, based on his commission of an aggravated felony and his controlled substance violation. After failing, during the two-month continuance granted by the Immigration Judge ("IJ") for the purpose, to find an attorney to represent him, Simmonds defended himself at the removal hearing. At that hearing, Simmonds raised several issues: he challenged the retroactive effect of the repeal by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") of 8 U.S.C. § 1182(c); he pointed out that the Jamaican consulate had not been notified of the proceedings; and he expressed his concerns about the list of legal aid organizations that he had been given. The IJ, nonetheless, found him removable, ineligible for cancellation of removal, and ineligible for discretionary relief under former § 1182(c), and ordered him removed. The Board of Immigration Appeals dismissed Simmonds' administrative appeal of the IJ's decision.

Two years later, while still incarcerated in New York state prison, Simmonds filed a pro se § 2241 petition in district court. Simmonds contended that he was unconstitutionally denied an opportunity for § 1182(c) relief, that he was not provided with an up-to-date list of pro bono legal service organizations, and that, contrary to INS regulations, the Jamaican consulate was not notified of his removal proceedings. The district court dismissed the petition for want of jurisdiction. It held that Simmonds was not in the custody of the INS, because (a) Simmonds was not in the physical custody of the INS, and (b) the filing of a detainer by the INS with the state prison did not create custody. The district judge wrote, "This court adopts the majority view and finds that the INS detainer served merely a notice function such that petitioner is not in respondent's custody at this time." The court made no mention of the fact that Simmonds was under a final order of removal.

On appeal, we appointed counsel and asked the parties to address two questions. First, was the petition ripe for review in light of Simmonds' sentence of imprisonment in New York? Second, is Simmonds in the custody of the INS by virtue of his being under a final order of removal?

Custody

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."² The provision relevant to this case states that 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)(3). Although Simmonds is not, literally, a prisoner of the INS, courts 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." See Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

The actions taken by the INS that may be argued to restrict Simmonds' liberty include the filing of a "detainer" with state prison officials and the imposition of a final order of removal. The majority of circuits has held that the filing of a detainer, alone, does not create custody in the INS. See Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 540-41 (5th Cir.2003) (collecting cases and agreeing with the majority of circuits that, where there was no contention "that the INS actually has ordered [the alien's] deportation," the existence of an immigration detainer does not amount to custody). But this view has not been adopted unanimously. See Vargas v. Swan, 854 F.2d 1028 (7th Cir.1988).

Our circuit has not yet resolved the issue. See Roldan v. Racette, 984 F.2d 85, 88-89 (2d Cir.1993) (noting the majority and minority views but not reaching the question because the petitioner had failed to object to the magistrate's recommendation below); see also Waldron v. INS, 17 F.3d 511, 516 (2d Cir.1994). Nor should we in this case, because Simmonds' final order of removal is sufficient, by itself, to establish the requisite custody.³

Were it not for the fact that Simmonds is now being held in state prison, this conclusion would be a simple one. In cases in which the aliens ordered removed were not incarcerated, various courts of appeals have agreed that subjecting an alien to a final order of removal is to place that alien in custody within the meaning of the habeas statute. See, e.g., Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001); Mustata v. United States Dep't of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999); Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). And we have held that an alien who has been released on bail from INS detention but is subject to a final order of removal is in INS custody. See Henderson v. INS, 157 F.3d 106 (2d Cir.1998).

The government insists, however, that Simmonds is not "subject to" the outstanding removal order, because that order cannot be executed while Simmonds remains in state prison. See 8 U.S.C. § 1231(a)(4)(A) (forbidding the Attorney General from removing an alien who is serving a sentence of imprisonment until after the alien is released, while allowing the removal of aliens who are on parole or on supervised release). But in this respect, Simmonds' position is the same as that of an ordinary habeas petitioner who seeks to attack a sentence of incarceration, in one jurisdiction, when that sentence was made consecutive to the one the petitioner is then serving in another jurisdiction. In such circumstances, it is well established that custody exists in both jurisdictions and hence that habeas may lie to attack the future sentence in such circumstances.

In Frazier v. Wilkinson, 842 F.2d 42 (2d Cir.1988), we reviewed the history of the Supreme Court's break from its previous rigid rule that habeas petitions may only be directed to the legality of a prisoner's current confinement. Compare McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), overruled by Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), with Maleng v. Cook, 490 U.S. 488, 493-94, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam) (holding that a federal prisoner was in the custody of the State of Washington after Washington had lodged a detainer with federal authorities to ensure that, at the end of his federal sentence, the prisoner would be handed over to state authorities to serve a state sentence). Whereas the Supreme Court, to date, had recognized custody in a future jailor only where the immediate custodian, through the lodging of a detainer, was acting as an agent for the future jailor by holding the prisoner pursuant to the detainer, Frazier dispensed with the requirement that a detainer be in place. It stated:

We think that habeas corpus may be used as long as there is a reasonable basis to apprehend that the jurisdiction that obtained the consecutive sentence will seek its enforcement. As the Supreme Court pointed out in Peyton, the interests of both the petitioner and the state are served by permitting habeas challenges to consecutive sentences prior to the commencement of their service. The policies of the Great Writ are surely not served by permitting a state to postpone, perhaps for many years, a challenge to its consecutive sentence by the simple expedient of deferring the filing of a detainer until close to the end of the initial sentence.

Frazier, 842 F.2d at 45.

The Frazier court went on to illustrate the "reasonable basis" standard by distinguishing consecutive sentencing cases from those in which future incarceration in state A could result from the violation of the terms of a prisoner's state A parole, when that violation occurred by virtue of the prisoner's conviction in state B, the jurisdiction that was currently jailing him. While the latter provides a basis on which a state might ultimately take custody, ...