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Lieng v. United States

United States District Court, C.D. California, Western Division

April 23, 2014

XI A. LIENG, Petitioner,
UNITED STATES OF AMERICA et al., Respondent.


JOHN A. KRONSTADT, District Judge.



Xi A. Lieng ("Petitioner") is a federal prisoner incarcerated at the Federal Correctional Institution at Lompoc, California. He is serving a 121-month sentence imposed by the United States District Court for the Eastern District of California in United States v. Xi Andy Lieng et al., Case No. 1:07-CR-00316-LJO-SKO. According to the Bureau of Prisons, he is projected to be released on January 29, 2021.[1]

On April 9, 2014, Petitioner filed in this Court a Notice of Motion and Motion to Cancel an Immigration Detainer Upon a § 2241 Habeas Corpus Motion for Relief ("Motion") and accompanying Memorandum of Points and Authorities to Support a Habeas Corpus Petition Upon a § 2241 Motion to Cancel an Immigration Detainer ("Memorandum"). Petitioner challenges the legality of an immigration detainer that the United States Immigration and Customs Enforcement ("ICE") has apparently filed against him for his removal once his present sentence has been completed. He argues that no deportation action has been taken within the proper statutory time frame. Petitioner also claims that prison officials are using the detainer to prevent him from participation in BOP's residential drug abuse program ("RDAP").

For the reasons discussed below, this action should be dismissed for lack of jurisdiction.



"Federal courts are always under an independent obligation to examine their own jurisdiction, ... and a federal court may not entertain an action over which it has no jurisdiction." Hernandez v. Campbell , 204 F.3d 861, 865 (9th Cir.2000) (citations and quotation marks omitted); see also Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Here, the Court lacks jurisdiction to consider Petitioner's claims.

Federal habeas corpus jurisdiction is limited to petitions from persons who are "in custody in violation of the Constitution and laws of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook , 490 U.S. 488, 490 (1989). The Supreme Court has interpreted this statutory language to mean "in custody" pursuant to the conviction or sentence under attack at the time the petition is filed. Maleng , 490 U.S. at 490-91. The only exception is where a petitioner can show adverse legal collateral consequences that give rise to an injury-in-fact sufficient to satisfy the case-or-controversy requirement of Article III, § 2. Spencer v. Kemna , 523 U.S. 1, 7 (1998). Consequently, an ICE detainer does not place a petitioner "in custody" for purposes of eligibility to seek habeas corpus relief. Garcia v. Taylor , 40 F.3d 299, 303 (9th Cir.1994) ("[T]he bare detainer letter alone does not sufficiently place an alien in [ICE] custody to make habeas corpus available."), superseded by statute on other grounds as stated in Campos v. Immigration & Naturalization Serv. , 62 F.3d 311, 314 (9th Cir.1995).

The Ninth Circuit has recognized one exception to this rule, which it describes as follows:

We have broadly construed "in custody" to apply to situations in which an alien is not suffering any actual physical detention; i.e., so long as he is subject to a final order of deportation, an alien is deemed to be "in custody" for purposes of the [Immigration and Nationality Act], and therefore may petition a district court for habeas review of that deportation order.

Nakaranurack v. United States , 68 F.3d 290, 293 (9th Cir.1995).

Here, it appears from the Motion and the Memorandum that Petitioner is challenging a bare ICE detainer. There is no showing or suggestion that Petitioner is subject to a final deportation order; in fact, the root of Petitioner's claim is that he has not received a deportation hearing. See, e.g., Memorandum at 5 ("In this case at bar the petitioner claims that he was harmed through the due process violations incurred during the origination of the immigration detainer... the so called process of deportation has not concluded as required by the Supreme Court... that requires immigration orders to conclude or be heard by an immigration judge within 6 months."). Because Petitioner is challenging only a bare ICE detainer, this Court is without jurisdiction to consider his action. Maleng , 490 U.S. at 490; Garcia , 40 F.3d at 303-04.

Petitioner's claim that BOP is improperly denying him of the ability to participate in RDAP or other rehabilitative programs as a result of the ICE detainer or pending removal proceedings fares no better. The Ninth Circuit has held that this Court does not have subject matter jurisdiction to address such claims. See Reeb v. Thomas , 636 F.3d 1224, 1227 (9th Cir.2011) ("[A]ny substantive decision by the BOP to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for completion of the program, is not reviewable by the district court. The BOP's substantive decisions to remove particular inmates from the RDAP program are likewise not subject to judicial review.").



This Court lacks jurisdiction to decide the merits of Petitioner's challenge to the ICE detainer as well as any BOP decision to preclude his participation in a rehabilitation program. IT IS THEREFORE ORDERED that judgment be entered summarily dismissing this action without prejudice for lack of jurisdiction. All pending motions are denied as moot.

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