Thomas v. Enforcement

• Decision Date: 28 August 2015
• Docket Number: CIVIL ACTION NO.: 5:13-cv-126
• Court: U.S. District Court — Southern District of Georgia
• Parties: EMMANUEL A. N. THOMAS, Plaintiff, v. IMMIGRATION AND CUSTOMS ENFORCEMENT; and D. RAY JAMES CORRECTIONAL FACILITY, Defendants.

EMMANUEL A. N. THOMAS, Plaintiff, v. IMMIGRATION AND CUSTOMS ENFORCEMENT; andD. RAY JAMES CORRECTIONAL FACILITY, Defendants.

CIVIL ACTION NO.: 5:13-cv-126

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION

August 28, 2015

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner Emmanuel A. N. Thomas ("Thomas")¹, who is currently incarcerated at D. Ray James Correctional Facility in Folkston, Georgia, filed a Petition for Mandamus and a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.² (Doc. 1.) Respondents filed a Response. For the reasons which follow, it is my RECOMMENDATION that Thomas' Petition be DISMISSED and this case be CLOSED. I also RECOMMEND Thomas be DENIED a Certificate of Appealability and be DENIED in forma pauperis status on appeal.

BACKGROUND

Thomas is serving a 181-month sentence based on his convictions obtained in the Southern District of Florida for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). (Doc. 14-2, p. 10.) Thomas has a projected release date from the Bureau ofPrisons' ("BOP") custody of April 28, 2020. (Id.) The Bureau of Immigration and Customs Enforcement ("ICE"), formerly the Immigration and Naturalization Service ("INS"), issued a detainer against Thomas on April 25, 2012. (Id. at p. 16.)

DISCUSSION

Thomas asserts he is a native and citizen of Haiti by birth, but he is entitled to United States' citizenship by virtue of his status as a stepchild to a United States citizen prior to attaining the age of eighteen (18). (Doc. 1, pp. 1-2.) Thomas seeks an order terminating the removal proceedings and the ICE detainer. (Id. at p. 3.) Thomas maintains the ICE detainer affects his public safety factor, which will prevent him from being released to a halfway house and from gaining entry into the early release program in the future. Thomas contends the ICE detainer results in him having to serve more time and a harsher sentence than he would ordinarily have to serve without the detainer being issued against him. (Id. at pp. 6-7.)

Respondents set forth several reasons why Thomas' Petition should be dismissed, which the undersigned addresses in turn.³

I. Failure to Exhaust Administrative Remedies

Respondents assert that, to the extent Thomas asserts the detainer is precluding him from receiving certain benefits at D. Ray James Correctional Facility, those claims should be dismissed because Thomas failed to follow the Bureau of Prisons' grievance procedures. Respondents' assertion requires the Court to examine exhaustion principles under Section 2241.

"[P]risoners seeking habeas relief, including relief pursuant to [28 U.S.C.] § 2241," must exhaust all available administrative remedies. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004). If a petitioner fails to exhaust his administrative remedies before seeking redress in the federal courts, the court should dismiss the case for want of jurisdiction. Winck v. England, 327 F.3d 1296, 1300 n.1 (11th Cir. 2003) (citing Simpson v. United States, 959 F.2d 211, 212 (11th Cir. 1992)). "Also jurisdictional is '[t]he general rule . . . that a challenge to agency actions in the courts must occur after available administrative remedies have been pursued.'" Id. (quoting Boz v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001)).

In Porter v. Nussle, the United States Supreme Court held that exhaustion of available administrative remedies is mandatory. 534 U.S. 516, 523 (2002). The Supreme Court has noted exhaustion must be "proper." Woodford v. Ngo, 548 U .S. 81, 92 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91.⁴ In other words, an institution's requirements define what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). It is not the role of the court to consider the adequacy or futility of the administrative remedies afforded to the inmate. Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th Cir. 2000). The court's focus should be on what remedies are available and whether the inmate pursued these remedies prior to filing suit. Id.

Inmates at D. Ray James must exhaust administrative remedies, beginning their grievance process locally with the Warden by using the contractor's grievance procedures.⁵ (Doc. No. 14, p. 4.) This involves an attempt at informal resolution, which, if unsuccessful, is followed by a formal complaint via a Step 1 administrative remedy form. (Doc. 14-1, p. 4.) If the inmate is not satisfied with the resolution of the formal complaint, the inmate may appeal to the BOP's Administrator of the Privatization Management Branch, so long as the appeal involves BOP related matters.⁶ (Id. at p. 5.) If the inmate is not satisfied with the Privatization Administrator's response, the inmate may make a final appeal to the BOP's Office of General Counsel. (Id.). If an inmate files an administrative remedy concerning a BOP related matter, the administrative remedies will be recorded in the BOP's SENTRY computer database. Pichardo, CV511-69, 2011 WL 5102814, at *2.

In this Petition, Thomas asserts that the ICE detainer is preventing him from participating in certain programs, such as potential release to a halfway house and an early release program. (Doc. 1, p. 7.) Thus, this assertion concerns a BOP-related matter, which must be addressed through the BOP's grievance procedures before it can be brought in this Court. A review of Thomas' administrative history reveals he has only filed one administrative remedy, which was filed on February 18, 2011, and in which Thomas requested dental care. (Doc. 14-2, p. 24.) Thomas failed to raise his claim that he is being denied access to certain programs as a result of the ICE detainer through the BOP grievance procedure. Therefore, Thomas' contention that heis being denied access to certain programs is due to be DISMISSED, without prejudice, based on Thomas' failure to exhaust his administrative remedies.

II. Whether the ICE Detainer Constitutes Custody for Section 2241 Purposes

Respondents assert removal proceedings have not been initiated against Thomas, and the ICE detainer does not constitute "custody" for Section 2241 purposes. As a result, Respondents maintain, Thomas' Petition should be dismissed because this Court lacks jurisdiction pursuant to Section 2241. (Doc. 14, p. 7.)

"Under certain circumstances, challenges to detainers may . . . be brought under § 2241."⁷ Roberts v. INS, 372 F. App'x 921, 924 (11th Cir. 2010) (alteration in original) (internal citation omitted). The Eleventh Circuit Court of Appeals has held that the filing of a detainer, standing alone, does not cause a prisoner to come within the custody of the Department of Homeland Security ("DHS") or ICE. Oguejiofor v. Attorney Gen. of the United States, 277 F.3d 1305, 1308 n.2 (11th Cir. 2002); Orozco v. United States Immigration & Naturalization Serv., 911 F.2d 539, 541 (11th Cir.1990);. This position is in accord with several other Courts of Appeals. See e.g., Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 539 (5th Cir. 2003); Garcia v. Taylor, 40 F.3d 299, 303-04 (9th Cir. 1994); Santana v. Chandler, 961 F.2d 514, 516 (5th Cir. 1992); Prieto v. Gulch, 913 F.2d 1159, 1162 (6th Cir. 1990); Mohammed v. Sullivan, 866 F.2d 258, 260 (8th Cir. 1989). "The underlying rationale of these courts is that a detainer, as distinguished from other [ICE] orders, does not put a 'hold' on" the individual. Ryan v. Dep't of Homeland Sec., No. 3:09cv399/LAC/MD, 2010 WL 1433166, at *1 (N.D. Fla.Mar. 8, 2010); accord Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994) (noting that, the lodging of a detainer, without more, is insufficient to render the alien "in custody").

Generally, a detainer is viewed as "an informal process advising prison officials that a prisoner is wanted on other pending charges and requesting notification prior to the prisoner's release." Id. (internal citation omitted). "In the immigration context, a detainer usually serves only as a notice to prison authorities that . . . ICE is going to be making a decision about the deportability of the alien in the future." Id. (citing Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988)). "The reasoning follows that the detainer does not serve to establish conclusively either present or future restraints on the prisoner's liberty." Id. "Because there is no actual claim to the individual following the completion of his criminal sentence, there is no custody." Id.

The Court concludes that Thomas is not "in custody" of ICE for purposes of Section 2241 simply by way of the detainer ICE lodged against him before the time he filed his petition. The undersigned notes Thomas does not contend that ICE served him with an order to show cause or a final deportation order or that there was some other reason he should be considered to be in the custody of ICE. See Alanis-Bustamonte v. Reno, 201 F.3d 1303, 1309 (11th Cir. 2000) (a show cause order, in combination with a warrant on a detainer, are prerequisites to formal commencement of removal proceedings). Because Thomas is not "in custody" of ICE by virtue of the detainer, this court lacks subject matter jurisdiction under 28 U.S.C. § 2241 to address his claim. Consequently, this portion of Thomas' Petition should be DISMISSED.

III. Citizenship Claims

Respondents aver Thomas has not exhausted his request seeking a declaration of citizenship through the appropriate agency and he is not in removal proceedings, and, therefore,he cannot raise a claim that he is entitled to derivative citizenship by virtue of his stepfather being a United States citizen. Respondents note Thomas has filed a Form N-600, Application for...