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Soukchanh v. Zuniga

United States District Court, E.D. California

March 30, 2017

RAFAEL ZUNIGA, Warden, et al., Respondents.



         Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges a detainer filed against him by the Immigration and Customs Enforcement (“ICE”). Because the Court is without jurisdiction to entertain his claims, the Court will recommend the petition be DISMISSED.


         Petitioner is incarcerated at the Federal Correctional Institution located in Mendota, California. He is currently serving a sentence for conviction of possession of methamphetamine and possession of a firearm in furtherance of a drug crime.

         Petitioner is a citizen of Laos. In February or March of 2006, ICE lodged a detainer against him claiming he is an alien subject to removal from the United States. Petitioner disagrees and alleges the detainer is improper because he is a national from Laos, and Laos does not maintain formal diplomatic relations with the United States. Therefore, he argues, the detainer is frivolous because removal cannot be accomplished. He further claims his detainer status prevents him from gaining access to federally-designated programs. He seeks an order directing that the detainer be removed.


         A. Preliminary Review of Petition

         Rule 4 of the Rules Governing Section 2254 Cases[1] requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8.

         B. No Jurisdiction to Consider ICE Detainer

         A prisoner may not challenge an ICE detainer in a petition for writ of habeas corpus under 28 U.S.C. § 2241. Federal jurisdiction over a petition for writ of habeas corpus exists only for persons “in custody” at the time the petition is filed. See 28 U.S.C. § 2241(c). An ICE detainer “does not sufficiently place an alien in [ICE] custody to make habeas corpus available.” Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995) (quoting Garcia v. Taylor, 40 F.3d 299, 303 (9th Cir. 1994), superseded by statute on other grounds). The Ninth Circuit has recognized one exception to this rule, i.e., where an alien is “subject to a final order of deportation, ” the alien is “‘in custody' for purposes of the [Immigration and Nationality Act (‘INA')], and therefore may petition a district court for habeas review of that deportation order.” See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995); see also Veltmann-Barragan v. Holder, 717 F.3d 1086, 1088 (9th Cir. 2013). Under the INA, an “order of deportation” determines that an alien is deportable and orders deportation. See 8 U.S.C. § 1101(a)(47). Such an order becomes final upon the earlier of a determination by the Board of Immigration Appeals (“BIA”) affirming the order, or the expiration of the time to seek BIA review.

         Petitioner has not alleged that he is subject to a final removal or deportation order. Petitioner alleges only that there is an ICE detainer in his file but has provided no information regarding the detainer, or whether he had been subject to deportation proceedings. From these allegations, it appears that Petitioner is challenging an ICE detainer without a final removal order. Petitioner has not alleged sufficient facts to establish he is in custody based on the detainer as to confer habeas jurisdiction. Campos, 62 F.3d at 314; Garcia v. Taylor, 40 F.3d at 303.

         C. Challenge to Exclusion from Federal Programs

         Petitioner argues that his immigration detainee status prohibits him from access to federal designated “early release” programs available under 18 U.S.C. §§ 3621 and 3624. Section 3621(e) provides for residential drug abuse treatment (“RDAP”) and incentives for completion of the treatment, including sentence reduction. See Section 3621(e)(2)(B) (“The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve.”) However, immigration detainees are not eligible for early release under Section 3621(e). See 28 C.F.R. § 550.55(b)(1).

         The Administrative Procedures Act, 5 U.S.C. §§ 701-706 (“APA”), specifically denies the Court the authority to review the Bureau of Prison's (“BOP”) decisions under 18 U.S.C. § 3621. In Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011), the Ninth Circuit held that 18 U.S.C. ยง 3625 precludes judicial ...

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