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PAYO v. HAYES

January 7, 1991

BLANCA N. PAYO, Petitioner,
v.
LLOYD HAYES et al., Respondents



The opinion of the court was delivered by: VUKASIN

 J. P. VUKASIN, JR., UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 The Immigration and Naturalization Service ("INS") has allegedly filed a detainer against petitioner, a federal prisoner subject to deportation as a felon. Petitioner seeks to compel the INS either to remove the detainer or conduct a deportation hearing.

 DISCUSSION

 I. Writ of Habeas Corpus

 A writ of habeas corpus shall not extend to a prisoner unless he is in custody. 28 U.S.C. § 2241(c). INS regulations suggest that custody does not begin until the prison sentence on the underlying felony has been served.

 
No detainer . . . shall incur any fiscal obligation on the part of the Service, until actual assumption of custody by the Service.

 8 C.F.R. § 242.2(a)(5) emphasis added.

 The clear inference to be drawn from this language is that, while the INS may issue a detainer during the term of the underlying sentence, such a detainer does not ripen into actual INS custody until the conclusion of the underlying sentence.

 This reading is bolstered by the holdings in Campillo v. Sullivan, 853 F.2d 593 (8th Cir. 1988) and Prieto v. Gluch, 913 F.2d 1159 (6th Cir. 1990). The latter court considered the doctrine of "future custody" as it affected INS detainer notices, concluding that a "detainer notice does not claim the right to take a petitioner into custody in the future nor does it ask the warden to hold a petitioner for that purpose." Prieto, 913 F.2d at 1164. Thus, where petitioner has not established either present custody or future custody, it follows that the habeas corpus action against the INS cannot meet the threshold test.

 However, the Ninth Circuit's decision in Guti v. U.S. INS, 908 F.2d 495 (9th Cir. 1990) may compel a different result. While the court in Guti did not reach a conclusion as to the custodial effect of INS detainer notices, it did note that the circuits were split on the issue. Thus, the court concluded that a habeas corpus petition may not be dismissed as frivolous when there is no controlling authority foreclosing facts which establish an arguable claim. While this court is impressed with the analysis of this issue in Prieto, the 6th Circuit is not controlling authority here, and therefore the petition may not be dismissed as frivolous if the facts here warrant a different conclusion. ...


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