United States District Court, N.D. California
November 23, 2005.
JOAQUIN BANALES, Petitioner,
DON HORSLEY, Sheriff, Respondent.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER OF DISMISSAL
Joaquin Banales is a pretrial detainee at the San Mateo County
Jail facing state criminal drug charges. He is also an alien
subject to an INS hold or detainer on his release from state
Banales has filed a petition for a writ of habeas corpus
seeking to have the INS set bail and permit him to stay in the
United States pending any deportation proceedings.
The petition is construed as a petition for a writ of habeas
corpus under 28 U.S.C. § 2241 and is DISMISSED without prejudice
because it is premature. See Garcia v. Taylor, 40 F.3d 299,
303 (9th Cir. 1994) (hold or detainer letter alone does not
sufficiently place an alien in INS custody to make habeas corpus
The clerk shall close the file and terminate all pending
motions as moot.
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