Opinion
Civil Action No. 7:07cv00068.
February 9, 2007
MEMORANDUM OPINION
This is an action by Alex Luma, appearing pro se, for an injunction preventing his deportation by Immigration and Customs Enforcement ("ICE") following his release from prison for drug trafficking. The court finds that Luma's motion is premature because Luma is not in the custody of ICE since ICE has not issued a charge or order of removal, but rather has only lodged a detainer against him. Moreover, the court lacks jurisdiction to hear this claim and does not transfer it to the appropriate U.S. Court of Appeals because his claim is not yet ripe. Accordingly, the court dismisses Luma's motion.
I.
On March 31, 2003, Luma pled guilty to conspiring to distribute fifty (50) grams or more of a substance containing cocaine, in violation of 21 U.S.C. § 846, and the court sentenced him to 108 months incarceration. It also ordered pursuant to 18 U.S.C. § 3583(d) that "the defendant shall be delivered to an authorized immigration official for deportation proceedings". Later, after the United States moved to reduce his sentence based on Luma's substantial assistance, the court reduced his sentence to sixty (60) months. Luma is currently incarcerated at McRae Correctional Institution, in McRae, Georgia and set to be released on March 11, 2007. Luma is a native and citizen of the United Kingdom, in its island territory of Turks and Caicos. Luma filed the instant action requesting this court to "stop or suspend [his] removal proceedings," arguing that his removal would violate the Convention Against Torture because it would subject him to bodily injury or death because of his cooperation and assistance in the government's narcotics trafficking investigation. Yesterday, the court held a teleconference with Luma and counsel for the United States to clarify the status of his removal proceeding and detainer. Luma conceded that there is currently no charge or order of removal against him by ICE and that he has not yet had a removal hearing in the immigration court. Rather, ICE has only lodged a detainer against Luma with the U.S. Bureau of Prisons ("BOP"), requesting that BOP turn him over to ICE upon his release, in order for ICE to investigate whether he is subject to removal under the United States immigration laws.
Typically, in such a case, once a criminal defendant is released from the custody of the BOP, the immigration court will hold a hearing to determine if the defendant is subject to removal. If found to be subject to removal, the defendant would then be able to ask the immigration court for any relief permitted him by the U.S. Immigration laws. Any decision made by the immigration court is subject to review by appeal to the Board of Immigration Appeals. Finally, pursuant to 8 U.S.C. § 1252(b)(2), the defendant may seek review of the order by the U.S. Court of Appeals for the judicial circuit in which the immigration judge completed the proceeding.
II.
Luma seeks to proceed under the court's federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1334. The existence of federal question jurisdiction under those sections in the District Court to enjoin his removal, is at best questionable in light of Congress' passage the Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. The same would also be true of a petition pursuant to 28 U.S.C. § 2241. However, the court finds it unnecessary to enter that legal thicket because, at this juncture with only a detainer having been filed, and no immediate, concrete threat of removal, his claim is purely hypothetical, and federal courts do not have jurisdiction to hear purely hypothetical claims. For similar reasons, a petition pursuant to 28 U.S.C. § 2241 would be premature. It would also be premature because Luma is not in ICE's custody, a prerequisite to any challenge under that section. Accordingly, the court lacks jurisdiction over Luma's claim.III.
For the reasons stated, the court dismisses Luma's motion for lack of jurisdiction.
The clerk is directed to send a certified copy of this Memorandum Opinion and accompanying Order to the petitioner.