Opinion
C. A. 9:22-cv-00885-SAL-MHC
06-20-2023
Antonio Montero, Petitioner, v. Bureau of Immigration & Custom Enforcement, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Pro se Petitioner Antonio Montero (“Petitioner”), a federal inmate currently incarcerated at Federal Correctional Institution (“FCI”) Williamsburg, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2241. See ECF Nos. 1, 28. Respondent Bureau of Immigration and Custom Enforcement (“ICE”) filed a Motion to Dismiss (“Motion”). ECF No. 34. Petitioner filed a Response in Opposition, ECF No. 40, and the time for Respondent to file a Reply has now expired. The Motion is ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), all pretrial proceedings in this matter have been assigned to the undersigned. Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends that Respondent ICE's Motion be denied.
I. BACKGROUND
In September 2019, Petitioner pled guilty to the offense of conspiracy to distribute and possess with intent to distribute controlled substances (methamphetamine). In January 2020, he was sentenced to 120 months' imprisonment followed by a term of five years supervised release. See United States v. Montero, No. 21-30767, 2023 WL 2400746, at *1 (5th Cir. Mar. 8, 2023). He is currently serving his sentence at FCI Williamsburg in Salters, South Carolina. ECF No. 26-1 at 1. According to the Federal Bureau of Prisons (“BOP”) inmate locator site, his estimated release date is November 19, 2027. See Federal Bureau of Prisons Inmate Locator, https://www.bop.gov/inmateloc/ (last visited June 20, 2023).
After his January 2020 sentencing, ICE sent BOP an Immigration Detainer - Notice of Action (“Detainer”). ECF No. 34-2. In the Detainer, ICE states that it has determined there is probable cause to believe Petitioner is a removable alien. Id. ICE requests that BOP notify ICE before Petitioner is released from prison and that BOP maintain custody of him for up to 48 hours past his release so the Department of Homeland Security can have time to take custody of him. Id. In the Detainer, ICE states its request is not intended to impact BOP decisions about Petitioner's rehabilitation, release, custody classification, work, quarter assignments, or other matters. Id.
The Detainer indicates that probable cause exists because of “the pendency of ongoing removal proceedings against [Petitioner.]” ECF No. 34-2. Although there is an option to indicate on the Detainer that there is “[a] final order of removal against [Petitioner],” ICE did not check that box. Id. However, Petitioner attached to his Amended Complaint a copy of a May 11, 1999, Order of Removal from an Immigration Judge, which he did not appeal. ECF Nos. 28-2 at 2-3; 28 at 4. ICE acknowledges the Order of Removal in its Response, stating that “[i]n 1998, in [sic] immigration court ordered [Petitioner] subject to removal.” ECF No. 34-1 at 1.
In his § 2241 petition, Petitioner asserts that the Detainer is improper and requests that this Court order Respondent “to show cause and demonstrate . . . a likelihood that [Petitioner] would be deported to Cuba [] in the reasonably foreseeable future or to remove the [D]etainer.” ECF No. 28 at 7. As grounds for relief, Petitioner asserts that (1) ICE erred by failing to comply with the procedure outlined in its own policy regarding the Detainer (by allegedly lodging the Detainer against Petitioner's BOP records without an administrative warrant in violation of ICE's own policies), and (2) ICE improperly filed the Detainer without first showing cause and demonstrating that Petitioner will be immediately removed from the United States upon termination of the sentence he is serving in the BOP. ECF No. 28 at 6.
II. LEGAL STANDARDS
A. Motion to Dismiss pursuant to Rule 12(b)(1)
Respondent ICE moves for dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). Pursuant to Rule 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “Lack of subject-matter jurisdiction may be raised at any time by a party or the court.” Hoblick, 526 F.Supp. at 132-33. “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Id. at 133 (citing Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).
B. Habeas Corpus
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attacking] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam); see also Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A § 2241 petition challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention[,] and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A § 2241 petition must be brought against the warden of the facility where the prisoner is being held, Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490. See also 28 U.S.C. § 2242.
III. DISCUSSION
Respondent ICE argues this Court lacks subject matter jurisdiction to entertain the § 2241 petition. ECF No. 34-1 at 2-5. Specifically, Respondent argues that the lodging of an immigration detainer does not satisfy § 2241's “in custody” requirement. Respondent maintains that “an ICE detainer usually serves only as a notice to federal prison authorities that ICE is going to be making a decision about the deportability of the alien in the future,” and argues that the Detainer lodged against Petitioner is “just a request for BOP to keep ICE informed, and if needed, to hold him for no more than 48 hours.” ECF No. 34-1 at 4.
Petitioner argues he meets the § 2241 “in custody” requirement because there is a final order of removal against him. ECF No. 40 at 3. He points to an attachment to his Amended Petition (ECF No. 28), which is titled “Order of the Immigration Judge.” ECF No. 28-2 at 2. Petitioner argues that the Immigration Judge checked the box stating Petitioner “was ordered removed from the United States to Cuba,” and no other alternative. ECF No. 40 at 3; ECF No. 28-2 at 2. He argues that since ICE is required to detain him at the start of his ninety-day removal period-which begins the moment he is released from BOP custody-he is “in custody” for purposes of § 2241. ECF No. 40 at 3-4 (citing 8 U.S.C. § 1231(a)(1)(B)(iii) and (a)(2)). The Court is constrained to agree with Petitioner.
Federal habeas statutes give the United States District Courts jurisdiction to entertain petitions for writs of habeas corpus only from individuals who are “in custody” in violation of the Constitution or laws or treaties of the United States. Maleng v. Cook, 490 U.S. 488, 490 (1989) (citing 28 U.S.C. §§ 2241(c)(3), 2254(a)). An individual seeking a writ of habeas corpus must be “in custody” at the time the petition is filed. Harris v. Ingram, 683 F.2d 97, 98 (4th Cir. 1982) (citing Carafas v. La Vallee, 391 U.S. 234, 238 (1968)). However, this “in custody” requirement has been interpreted liberally, such that a petitioner need not be “physically detained to pursue habeas relief.” Ortiz v. Mayorkas, No. 20-7028, 2022 WL 595147, at *2 (4th Cir. Feb. 28, 2022).
Noncitizens may file a § 2241 petition challenging their removal proceedings. See Id. Generally, a noncitizen who is confined pursuant to criminal charges is not in ICE custody for purposes of § 2241 simply because ICE has lodged a detainer against him with the prison where he is incarcerated. See Garcia-Echaverria v. United States, 376 F.3d 507, 510-11 (6th Cir. 2004) (“While an alien may file a § 2241 petition challenging his removal proceedings, an alien is not ‘in custody' for removal purposes if he is detained pursuant to a sentence for a criminal conviction, even if the INS has filed a detainer order with the prison where the petitioner is incarcerated.”). Similarly, “[t]he prevailing view among courts in the Fourth Circuit is that a plaintiff raising a habeas claim concerning the issue of deportability must be in [ICE] custody” and “an immigration detainer does not subject a prisoner to [ICE] custody.” Ogunde v. Holder, C/A No. 1:13cv484 (JCC), 2013 WL 5504417, at *2 (E.D. Va. Oct. 1, 2013).
In 2002, Congress enacted the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135, that abolished the INS and transferred most of its immigration functions to the DHS, of which ICE is a part. See Flores v. Lynch, 828 F.3d 898, 904 (9th Cir. 2016).
Although a detainer, without more, is insufficient to render a noncitizen “in custody,” a “noncitizen petitioner subject to final removal proceedings is ‘in custody' for habeas purposes, whether or not he is detained.” Ortiz, No. 20-7028, 2022 WL 595147, at *2-3 (quoting Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003)); see also Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994) (“Almost all the circuit courts considering the issue have determined that the lodging of a detainer, without more, is insufficient to render the alien in custody.” (emphasis added)).
Here, the record reflects that the Detainer was lodged against Petitioner, and a final order of removal was issued against him. ECF No. 28-2 at 2-3; ECF No. 34-2. As Petitioner argues (ECF No. 40 at 3-4), the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) requires ICE to detain him at the start of his 90-day removal period-which begins the moment of his release from BOP. See 8 U.S.C. §§ 1231(a)(1)(B)(iii), 1231(a)(2) (mandating detention when the ground for removal is the commission of an aggravated felony or a crime relating to a controlled substance). Thus, it appears this Court has subject matter jurisdiction to entertain his petition. See Galaviz-Medina, 27 F.3d at 493 (“Since Appellant has a detainer plus a final order of deportation against him, we must conclude that he is ‘in custody' of the INS for purposes of habeas review.”); see also Garcia-Echaverria, 376 F.3d at 511 (noting the “IIRIRA requires the INS to take custody of and commence procedures to execute the removal of an alien who is subject to a final order of removal based upon a conviction for an ‘aggravated felony'” and finding the petitioner was “in custody” for purposes of § 2241); Simmonds, 326 F.3d at 356 (noting same and finding petitioner “in custody” for purposes of § 2241).
Respondent concedes that “an alien subject to a final order of removal satisfies the incustody requirement, even if he is not detained in DHS custody.” ECF No. 34-1 at 5 (citing Ortiz, No. 20-7028, 2022 WL 595147, at *3). Respondent further appears to acknowledge that there is an immigration court order for removal of Petitioner. See ECF No. 34-1 at 1.
Respondent argues, however, that Petitioner's Detainer provides that probable cause is based upon “the pendency of ongoing removal proceedings against [Petitioner]” and not on the basis that there is a final order of removal. ECF No. 34-2. Specifically, Respondent argues:
Notably, ICE did not check that box. Instead, it checked the box for “[t]he pendency of ongoing removal proceedings against the alien.” Id. What ICE did-and did not-select indicates no final removal order has been issued. Consequently, it does not appear that the alternative means of acquiring jurisdiction Ortiz mentions exists
here.ECF No. 34-1 at 5 (emphasis added). Thus, it appears that Respondent is arguing that what is indicated on the ICE Detainer ultimately dictates whether Petitioner is “in custody”- rather than the order by the immigration court. However, the Court is unpersuaded by this argument. Petitioner attached a copy of a May 11, 1999, Order of Removal from an Immigration Judge to his Amended Complaint, which he did not appeal. ECF Nos. 28-2 at 2-3; 28 at 4. ICE acknowledges the Order of Removal in its Response, stating that “[i]n 1998, in [sic] immigration court ordered [Petitioner] subject to removal.” ECF No. 34-1 at 1. There is no evidence or argument before the Court that the May 11, 1999, Order of Removal is not a final order of removal for Petitioner. At this stage, the undersigned finds that Petitioner has met his burden of establishing this Court has subject matter jurisdiction over this matter. See Galaviz-Medina, 27 F.3d at 493 (“Since Appellant has a detainer plus a final order of deportation against him, we must conclude that he is ‘in custody' of the INS for purposes of habeas review.”).
Petitioner suggests that ICE made a typographical error in checking the box for “[t]he pendency of ongoing removal proceedings against the alien” in the detainer. ECF No. 40 at 3.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion be DENIED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).