Christopher I. Onyejekwe, Petitioner-appellant, v. Immigration and Naturalization Service, Respondent-appellee, 99 F.3d 1139 (6th Cir. 1996)

Before: MARTIN and DAUGHTREY, Circuit Judges; BECKWITH, District Judge.^* 

ORDER

Christopher I. Onyejekwe, a native of Nigeria, appeals pro se the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Onyejekwe filed this petition to challenge a detainer placed against him while he was in the custody of the Federal Correctional Institution at Ashland, Kentucky, due to his conviction of fraudulent use of an access device. Onyejekwe stated in his petition that deportation proceedings were already in process before the Board of Immigration Appeals and that he had been on bond from the INS prior to his incarceration. The matter was referred to a magistrate judge, who recommended that the petition be dismissed. Over Onyejekwe's objections, the district court adopted this recommendation and dismissed the petition without prejudice pursuant to 28 U.S.C. § 1915(d). This appeal followed.

Upon review, we conclude that the district court did not abuse its discretion in dismissing this petition as frivolous. See Denton v. Hernandez, 504 U.S. 25, 33-34 (1992). The filing of a detainer does not place an alien in the custody of the INS; habeas corpus relief is therefore not available. See Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995). Accordingly, the district court's order of dismissal is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.