Vargas v. Swan, 87-1769

• Decision Date: 04 November 1988
• Docket Number: No. 87-1769,87-1769
• Parties: Gregorio F. VARGAS, Petitioner-Appellant, v. Ronald B. SWAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1028

854 F.2d 1028

Gregorio F. VARGAS, Petitioner-Appellant, v. Ronald B. SWAN, Respondent-Appellee.

No. 87-1769.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1988.

Decided Aug. 12, 1988.

Rehearing Denied Nov. 4, 1988.

Charles G. Curtis, Jr., Foley & Lardner, Madison, Wis., for petitioner-appellant.

Alison R. Drucker, U.S. Dept. of Justice, Office of Immigration Civil Div., Washington, D.C., for respondent-appellee.

Before WOOD, Jr. and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Vargas, an alien incarcerated within the Wisconsin state penal system, seeks an expedited determination from the United States Immigration and Naturalization Service of whether he will be excluded from the United States upon his release from state prison. To reach the merits of this issue the district court assumed that Vargas was sufficiently within federal custody to support the court's habeas jurisdiction, and denied the writ. However, we must decide whether the INS's filing of a "detainer" with Wisconsin or its granting of "parole" status constitutes sufficient custody to establish habeas jurisdiction under 28 U.S.C. Sec. 2241.

I. BACKGROUND

Gregorio Vargas left Cuba and landed in Key West, Florida on June 4, 1980, along with many of his countrymen. Generally referred to as the Mariel Freedom Flotilla, or Mariel Cubans, their significant numbers strained the Immigration and Naturalization Service's ability to make the necessary immigration determinations. Aliens entering the country for the first time, such as Vargas, typically are subject to exclusion from the United States, whereas aliens having already entered and who establish the necessary presence in this country typically are subject to deportation. In order to assure that Mariel Cubans awaiting immigration determinations were still subject to exclusion, and not to deportation because of their prolonged presence in the United States, the INS placed these individuals on "parole." The effect of the parole was to maintain a fiction that Vargas and others had never technically entered the country and were therefore still subject to exclusion, and not deportation. Thus, after he was detained first in Florida and then at Ft. McCoy, Wisconsin, Vargas was paroled into the United States in 1980. Apparently the parole was set to expire sometime in 1981. The INS states that it was automatically renewed and continues in effect until this very day. The record is bereft of any evidence of this renewal.

On October 29, 1985, Vargas was convicted of attempted first degree murder in the Grant County, Wisconsin Circuit Court and sentenced to an indeterminate sentence of no more than twenty years, to be served in the Waupun County Correctional Facility. The Wisconsin Court of Appeals affirmed the conviction, and the Wisconsin Supreme Court denied review. The INS sent what it labelled a "detainer" to Waupun, asking that the INS be notified of Vargas's pending release at least thirty days before it occurred. Eleven months later Vargas wrote the INS asking that the INS "either process the detainer and hold a hearing to determine whether I am an excludable alien

                or to drop the detainer altogether."    His request was denied;  subsequently he repeated his request in this habeas petition
                

II. DISCUSSION

We must decide if the INS has sufficient custody of Vargas to support habeas jurisdiction. The applicable habeas section states that "[t]he 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. Sec. 2241(c)(3). Vargas is in the physical custody of Wisconsin, not the INS, but he asserts that the INS's "parole" and "detainer" sufficiently restrain him so as to constitute custody supporting federal habeas jurisdiction. On its face the statute does not require actual physical restraint to establish custody, and case law reaches the same conclusion: "History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus." Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963); accord Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300, 104 S.Ct. 1805, 1809, 80 L.Ed.2d 311 (1984); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 1126, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968); Harts v. Indiana, 732 F.2d 95, 96 (7th Cir.1984) (per curiam); Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir.1982); United States ex rel. Grundset v. Franzen, 675 F.2d 870, 872 (7th Cir.1982); Burris v. Ryan, 397 F.2d 553, 555 (7th Cir.1968).

"Whether someone who is not under physical constraint can be considered in custody depends on the amount of restriction placed on his or her individual liberty." Harts, 732 F.2d at 96 (citing Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S.Ct. 1571, 1573, 36 L.Ed.2d 294 (1973)). The restriction must amount to a "severe[ ] restraint on individual liberty" before it is deemed custody. Hensley, 411 U.S. at 351, 93 S.Ct. at 1574.

Detainer

The INS argues that the "detainer" here really is not a detainer but merely serves to advise the Waupun correctional facility that the INS may find Vargas excludable and requests that the institution inform the INS of Vargas's expected release date thirty days beforehand. The INS notes that the face of the detainer states that it is "for notification purposes only and does not limit your discretion in any decision affecting the offender's classification, work and quarters assignments or other treatment which he would otherwise receive." It is nothing more than "an internal administrative mechanism," according to the INS, emphasizing that it is accompanied by neither a warrant of arrest nor by an order to show cause.

Vargas takes the approach that this is a detainer, and in general ordinary detainers have been found sufficiently restrictive to demonstrate custody; therefore, Vargas is in custody. Vargas notes that the "detainer" is labelled "Immigration Detainer--Notice of Action By Immigration and Naturalization Service" and that Waupun is asked to "Accept this notice as a detainer."

In order to reach our conclusion, we will not simply take the detainer label affixed here and rotely match it up with cases labelled detainer cases. Definitionally detainer or detainer plus something else, such as a warrant, is sufficiently broad in the immigration context to counsel against such a simplistic approach. Instead we will consider the effect of the INS's action and whether it restrains Vargas to the extent found sufficient to establish custody in other detainer cases.

What Vargas challenges here is future INS action regarding his immigration status. The INS contends that the very uncertainty of conduct that may or may not occur in the future counsels against finding sufficient custody to establish jurisdiction here, the implication being that at the time Vargas ultimately is released from state custody the INS may decline to exert any control at all over him. Realistically we Defining a detainer for the immigration context can be an elusive undertaking, as there is scant case law on the issue. One case that did arise in an immigration context found a detainer filed on the basis of a warrant sufficient to establish "technical custody ... until the individual is released from the institution at which time actual custody is obtained." Chung Young Chew v. Boyd, 309 F.2d 857, 865 (9th Cir.1962). The warrant in Chung Young Chew was an important factor in deciding that the defendant was in custody. Cases that have found a detainer sufficient to establish custody in other contexts have not always involved a warrant, nevertheless in such cases there was some indication or it was otherwise understood by the institution that it should detain the inmate for the agency filing the detainer. In several of these cases a direction to "hold" an inmate gave the detainer the necessary force. Such a case is this circuit's Orito v. Powers, where the court found a state detainer, apparently without a warrant, filed with federal officials sufficient to constitute custody for purposes of section 2241: " 'Although the Wisconsin authorities have not filed a formal detainer with the federal correctional institution at Sandstone, it is clear that the federal authorities have been notified of the state conviction and consider that notice to constitute a "hold" upon Mr. Orito.' " 479 F.2d 435, 437 (7th Cir.1973) (quoting 347 F.Supp. 150, 151 (E.D.Wis.1972)). The "hold" had an effect analogous to that of the warrant in Chung Young Chew. Similarly the Supreme Court in Braden decided that because "the Alabama warden acts ... as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, we have no difficulty concluding that petitioner is 'in custody' for purposes of Sec. 2241(c)(3)." 410 U.S. at 489 n. 4, 93 S.Ct. at 1127 n. 4 (emphasis added). See Moody v. Daggett, 429 U.S. 78, 80-81 n. 2, 97 S.Ct. 274, 275 n. 2, 50 L.Ed.2d 236 (1976) (The Court described a detainer, unaccompanied by a warrant, as "an internal administrative mechanism to assure that an inmate subject to an unexpired term of confinement will not be released from custody until the jurisdiction asserting a parole violation has had an opportunity to act--in this case by taking the inmate into custody or by making a parole revocation determination."); Rose v. Morris, 619 F.2d 42, 44 (9th Cir.1980) ("[A] detainer in the form of a communication from the Washington State Board of Prison Terms and Paroles requesting that it be notified before Rose was to be...