Opinion
NO. 3-02-CV-0088-N
August 19, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Uyi King Osayande, appearing pro Se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be denied.
I.
Petitioner is a native and citizen of Nigeria. (Resp. App. at 006). He entered the United States as a visitor in 1987 and became a permanent resident alien on November 26, 1991. (Id. at 010; Hab. Pet. at 3). Thereafter, petitioner was indicted on federal drug charges. He was convicted by a jury and sentenced to 136 months confinement followed by supervised release for a period of five years. (Resp. App. at 001-002). Petitioner is subject to deportation upon completion of his sentence. (Id. at 014).
II.
Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241. In two grounds, petitioner argues: (1) he is entitled a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA"); and (2) his detention in a private correctional facility while in immigration custody is unconstitutional. As relief, petitioner seeks a declaration that he is not deportable and a transfer to another prison where he can enroll in a drug treatment program and become eligible for placement in a halfway house or "boot camp.
A.
Petitioner first contends that he is entitled to a discretionary waiver of deportation under section 212(c) of the INA. This statute, which was in effect at the time petitioner was convicted and sentenced, provided:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General8 U.S.C. § 1182 (c), repealed (Sept. 30, 1996). Despite its repeal, section 212(c) relief remains available for those aliens "whose convictions were obtained through plea agreement and who, notwithstanding those convictions, would have been eligible for section 212(c) relief at the time of their plea under the law then in effect" I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001).
Although the statute applied literally only to exclusion proceedings, it had been interpreted by the INS to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation. See INS. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276, 150 L.Ed.2d 347 (2001), citing Matter of L, 1 I. N. Dec. 1, 2, 1940 WL 7544 (1940).
The court initially observes that the INS has not yet commenced removal proceedings against petitioner. Nonetheless, it appears that petitioner is not eligible for a section 212(c) waiver. Significantly, petitioner did not plead guilty to the charges against him. Instead, he was convicted following a jury trial. Under these circumstances, the provisions of section 212(c) as interpreted by St. Cyr do not apply. See, e.g. Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1122 (9th Cir. 2002) (St. Cyr not applicable to aliens who elect to go to trial); Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002) (rational basis for denying section 212(c) relief to aliens convicted following a trial). Moreover, at the time of petitioner's conviction, an aggravated felon who had served more than five years in prison was not eligible for a discretionary waiver. See 8 U.S.C. § 1182 (c) (repealed). Petitioner had been incarcerated for more than seven years at the time he filed this action. Accordingly, this ground for relief should be overruled.
Section 212(c) provided, in relevant part, that "[t]he first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years." 8 U.S.C. § 1182 (c) (repealed).
B.
Petitioner also challenges his detention in a private correctional institution while in immigration custody. According to petitioner, the terms of his confinement violate section 236(c) of the INA as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
Petitioner is currently incarcerated at FCI-Big Spring, a facility operated by Cornell Corrections Corporation under a contract with the Bureau of Prisons.
Section 236(c) of the INA provides, in relevant part:
The Attorney General shall take into custody any alien who —
(A) is inadmissible by reason of having committed any offense covered m section 1182(a)(2) of this title;
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title;
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.8 U.S.C. § 1226 (c)(1) (emphasis added). Ordinarily, an alien must be deported within 90 days after a removal order is entered. Id. § 1231(a)(1)(A). In Zadvydas, the Supreme Court held that aliens can be detained beyond the statutory 90-day removal period only for "a period reasonably necessary to bring about that alien's removal from the United States." Zadvydas, 121 S.Ct. at 2498.
Once again, petitioner ignores the fact that he is not in immigration custody. He has not yet been ordered removed to Nigeria and deportation proceedings have not been initiated against him. Therefore, section 236(c) and the protections afforded by Zadvydas do not apply. While in the custody of the Bureau of Prisons, petitioner does not have a constitutional right to incarceration in a particular place or at a particular institution. See Olim v. Wakinekona, 461 U.S. 238, 245-46, 103 S.Ct. 1741, 1745-56, 75 L.Ed.2d 813 (1983); Yates v. Stalder, 217 F.3d 332, 334 (5th Cir. 2000). This is an administrative decision left to prison officials and is not actionable under 28 U.S.C. § 2241. See Beck v. Wilkes, 589 F.2d 901, 907 (5th Cir.), cert. denied, 100 S.Ct. 90 (1979); Hutchens v. Alabama, 466 F.2d 507, 508 (5th Cir. 1972).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.
SO ORDERED.