Opinion
Case No. CIV-19-326-R
05-14-2019
JUAN HERNANDEZ, Plaintiff, v. IMMIGRATION CUSTOMS ENFORCEMENT, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a state inmate appearing pro se and proceeding in forma pauperis, has filed this action pursuant to 28 U.S.C. § 1331, seeking to compel government action on a detainer which has been filed against him. (ECF No. 1). United States District Judge David L. Russell has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). A review of the case has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, it is recommended that the Court DISMISS the action for failure to state a claim.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b); 1915(e)(2)(B).
II. STANDARD OF REVIEW
To survive preliminary review, Mr. Hernandez must plead "enough facts to state a claim that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying this standard, the court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).
Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), the court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-1174 (10th Cir. 1997). See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (court reviewing pro se complaint does not "assume the role of advocate") (quotations and citation omitted). Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact" or is "based on an indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. PROCEDURAL HISTORY/PLAINTIFF'S ARGUMENTS
Mr. Hernandez was convicted of child sexual abuse in 2013 and has been incarcerated in the Oklahoma Department of Corrections (DOC) for over 6 years. (ECF No. 1:1). According to Plaintiff, upon his conviction, officials at United States Immigration and Customs Enforcement (ICE) immediately lodged a detainer against him. (ECF No. 1:1). Plaintiff states that he has been waiting 5 years for ICE "to take action on his detainer," and has, therefore, filed the instant lawsuit requesting the Court to compel such action. (ECF No. 1:1-3). See ECF No. 1:2 (stating that ICE officials are "required to complete agency action by bringing the Plaintiff before an Immigration Judge to conclude agency action."). As support for his claim, Plaintiff states that he is "deportable" under 8 U.S.C. § 1228 and ICE officials may be compelled to act 5 U.S.C. § 706(1) (ECF No. 1).
Plaintiff states that he was "convicted of Rape in the First Degree in 2012" and also that he "was convicted in 2014 of an aggravated felony." (ECF No. 1:1). But based on the information provided by Mr. Hernandez, a public records search reveals that he is currently incarcerated in Lexington Correctional Center in Lexington, Oklahoma, with the only conviction having been in Oklahoma County District Court Case No. CF-2012-4577. See https://okoffender.doc.ok.gov/. A review of that case shows that Mr. Hernandez pled guilty to 10 counts of child sexual abuse. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-2012 4577&cmid=2890481. The Court may take judicial notice of this information. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion "to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand") (citation omitted).
IV. PLAINTIFF IS NOT "DEPORTABLE" UNDER 8 U.S.C. § 1228
Mr. Hernandez states that he is "deportable under 8 U.S.C. § 1228." (ECF No. 1:1). Presumably, Plaintiff is relying on subsection (a) of the statute, which provides for the removal of aliens who have been convicted of certain crimes—including crimes of moral turpitude and aggravated felonies. See 8 U.S.C. §§ 1227(a)(2)(A)(i) and (iii) & 1228(a). Mr. Hernandez was convicted of child sexual abuse, which arguably fits the definition of a "crime of moral turpitude" under Oklahoma law. Even so, although the Attorney General is directed to initiate removal proceedings as expeditiously as possible, see 8 U.S.C. §§ 1228(a)(3)(A) & 1229(d)(1), the Attorney General cannot be compelled to effect removal of any incarcerated alien prior to his release, and a private right of action for enforcement of the removal statutes is explicitly prohibited. 8 U.S.C. §§ 1228(a)(3)(B) & 1229(d)(2).
The Oklahoma Court of Criminal Appeals has defined a crime of moral turpitude as one involving an "offense or a crime that is illegal but also shows a person's baseness and depravity," including "conduct contrary to justice, honesty, or morality; it encompasses departures from ordinary standards of honesty, good morals, justice or ethics, as to shock the moral sense of the community; it includes conduct that is base, vile, or depraved." Tucker v. State, 2016 OK CR 29, ¶ 10, 395 P.3d 1, 5.
One exception exists, however, for aliens convicted of nonviolent offenses, but this exception applies only when the Attorney General determines that removal is "appropriate and in the best interest of the United States." 8 U.S.C. § 1231(a)(4)(B)(i). But in this case, a determination of whether this exception exists is unnecessary, because again, the statute precludes a private right of action to force any state or federal official "to compel the release, removal, or consideration for release or removal of any alien." 8 U.S.C. § 1231(a)(4)(D); see Earle v. Immigration & Naturalization Serv., No. CIV 01-158 JP/LFG, 2001 WL 37125387, at *2 (D.N.M. Aug. 27, 2001) (citing cases), subsequently dismissed sub nom. Earle v. I.N.S, 50 F. App'x 393 (10th Cir. 2002). Based on the forgoing, the Court should conclude that Plaintiff has insufficiently alleged that he is "deportable" under 8 U.S.C. § 1228.
V. PLAINTIFF HAS NOT STATED A CLAIM TO COMPEL GOVERNMENT ACTION UNDER 5 U.S.C. §706(1)
Next, Mr. Hernandez asks the Court to order ICE officials to "conclude the agency action" against him—i.e.—his removal proceedings—under 5 U.S.C. §706(1) of the Administrative Procedure Act which allows a court to compel agency action which has been "unreasonably delayed." 5 U.S.C. § 706(1); (ECF No. 1:1-3). According to Plaintiff, ICE officials have not acted on his detainer within a "reasonable amount of time" because the detainer was lodged in 2013. See ECF No. 1:2 (Plaintiff's statement that he "has been waiting 5 years for the Immigration and Customs Enforcement to take agency action on his detainer.").
"[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). But here, because Plaintiff neither "deportable", see supra, nor in ICE custody, ICE officials have no mandatory duty to act on the detainer, precluding relief under § 706(1).
In Pedrosa v. Smelser, the District of Colorado considered similar circumstances. There, an inmate filed a habeas petition under 28 U.S.C. § 2241, challenging a detainer which ICE officials had placed on him one year prior, and arguing, like Mr. Hernandez, that he had yet to appear before a court on the detainer. Pedrosa, 2009 WL 2474637, at *1. The District Court denied relief, noting that "[a]lthough there is no question that Mr. Pedrosa is in custody, he is not in ICE custody." Id. Because the inmate was not in ICE custody, the District Court denied relief. Id. Here, although Mr. Hernandez is not seeking habeas relief, Pedrosa is instructive because like the inmate there, Mr. Hernandez is not yet in ICE custody. See id. ("the detainer simply indicates that he is 'wanted' by the ICE."); Cabrera v. Trammell, 488 F. App'x 294, 295-296 (10th Cir. 2012) (noting that without evidence of a final deportation order, inmate is not deemed in the custody of ICE officials); 8 U.S.C. § 1226(1) (stating that the Attorney General does not gain "custody" of an alien until he is released from incarceration, either on parole, supervised release, or probation.").
No. 09-CV-01464-BNB, 2009 WL 2474637, at *1 (D. Colo. Aug. 12, 2009)
VI. SUMMARY
Mr. Hernandez is not "deportable" under 8 U.S.C. § 1228 and is not in ICE custody because he is currently incarcerated. As a result, ICE officials have no mandatory duty to act on the detainer—a prerequisite for relief under 5 U.S.C. § 706(1). See Norton, supra. Thus, the Court should conclude that Plaintiff has failed to state a claim for relief under the Administrative Procedure Act.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Court dismiss this cause of action pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by May 31, 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on May 14, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE