Pham Huu Duc v. United States of America et al, No. 2:2014cv01273 - Document 22 (C.D. Cal. 2014)

Court Description: MEMORANDUM DECISION AND ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR LACK OF JURISDICTION by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment shall be entered dismissing this action without prejudice for lack of jurisdiction. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PHAM HUU DUC, Petitioner, 12 MEMORANDUM DECISION AND ORDER v. 13 14 Case No. CV 14-1273 SS DISMISSING ACTION WITHOUT UNITED STATES OF AMERICA, et al., PREJUDICE FOR LACK OF JURISDICTION 15 Respondents. 16 17 18 I. 19 INTRODUCTION 20 21 On February 19, 2014, Petitioner Pham Huu Duc, a federal 22 prisoner proceeding pro se, filed a document captioned Notice of 23 Motion and Motion under [28 U.S.C.] § 2241 for a Habeas Petition 24 to Cancel an Illegal Immigration Detainer that is abrogating the 25 Petitioner s 26 Dkt. 27 authorities. 28 No. 1) Due and Process an Constitutional accompanying ( Memo., Dkt. No. 2). Rights, memorandum of ( Petition, points and On April 11, Respondents 1 filed a Motion to Dismiss for Lack of Jurisdiction. 1 ( Motion, 2 1 3 4 5 6 7 8 9 The Petition named (1) the United States of America, (2) Department of Homeland Security Secretary, (3) Immigration and Customs Enforcement Agency at Lompoc, (4) Federal Bureau of Prisons, and (5) Federal Correctional Institution Lompoc as respondents. In habeas actions, the prisoner s immediate custodian, i.e., the warden of the prison where the petitioner is housed, is generally the proper respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004) (in section 2241 habeas action challenging physical confinement, the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent ); Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) (section 2241 petitioner properly named as respondent the warden of the institution where he was imprisoned ). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, as immigration detainees are often housed in state, local, and even private facilities, some courts have noted that the immediate custodian rule makes little sense and may not apply because the immediate custodian does not have authority to release the alien. See, e.g., Sanchez-Penunuri v. Longshore, __ F. Supp. 2d __, 2013 WL 6881287 at *4 (D. Colo. Dec. 31, 2013) (discussing Armentero v. I.N.S., 340 F.3d 1058, 1059 60 (9th Cir. 2003) (Armentero I), reh g granted, opinion withdrawn, 382 F.3d 1153 (9th Cir. 2004), opinion after grant of reh g, 412 F.3d 1088 (9th Cir. 2005) (Armentero II)). The Ninth Circuit in Armentero I concluded that the proper respondents in immigration cases are the Attorney General and the DHS Secretary. Armentero I, 340 F.3d at 1073. However, Armentero I, the only Ninth Circuit decision addressing this issue, has been withdrawn and is not citable. See Armentero II, 412 F.3d at 1089 (J. Berzon, dissenting) (disagreeing with decision to dispose of case on rehearing on fugitive disentitlement rule instead of addressing who the proper respondent is for immigration habeas cases). Although Richard B. Ives, the Lompoc Warden, was Petitioner s immediate custodian when he filed his Petition, (see Motion at 3 n.1), it is unnecessary for this Court to determine who is the proper respondent or to make a substitution because Respondents have waived any personal jurisdiction defense by failing to raise it. Objections to a lack of personal jurisdiction, including the requirement of naming the technically correct custodian, may be waived. See, e.g., Padilla, 542 U.S. at 452 (Kennedy, J., concurring) ( Because the immediate-custodian and territorialjurisdiction rules are like personal jurisdiction or venue rules, objections to the filing of petitions based on those grounds can be waived by the Government); Smith v. Idaho, 392 F.3d 350, 355 56, 356 n.4 (9th Cir. 2004) (where the proper respondent in a 2 1 Dkt. No. 9). 2 ( Opp., Dkt. No. 16). On June 9, 2014, Petitioner filed an Opposition. Respondents did not file a Reply. 3 4 All parties have consented to the jurisdiction of the 5 undersigned United States Magistrate Judge pursuant to 28 U.S.C. 6 § 636(c). 7 Accordingly, 8 reasons stated below, Respondents Motion is granted and this 9 action is dismissed without prejudice for lack of jurisdiction. (See Dkt. Nos. 12 (Petitioner) & 19 (Respondents)). this action is ripe for adjudication. For the 10 11 II. 12 FACTUAL BACKGROUND 13 14 Petitioner is a citizen of Vietnam who came to the United 15 States in 1975 as an 16 Permanent 17 Appear)). 18 Conspiracy to Possess with Intent to Distribute Methamphetamine. 19 (Id.). 20 pursuant to that conviction, with an anticipated release date of 21 June 21, 2019. Resident. On (Memo. April Petitioner infant 16, is and at 2009, currently 9 was & admitted Exh. A Petitioner serving a at as 2 a Lawful to convicted was (Notice of criminal sentence (Motion, Exh. 1; Memo. at 1). 22 23 On July 24 Petitioner s 17, 2009, conviction, approximately Immigration and three months Customs after Enforcement 25 26 27 28 habeas action is an agent of the state, the state may waive the lack of personal jurisdiction on the custodian s behalf). Accordingly, the Court will proceed to the substance of Respondents Motion. 3 1 ( ICE ) 2 issued an immigration detainer against Petitioner. 3 2 at 3 charging Petitioner as removable under 8 U.S.C. §§ 1227(a)(2)(A) 4 & (a)(2)(B)(i). 4 5 not 6 immigration detainer is [i]n essence the starting point of the 7 final order of deportation ) (emphasis added); Opp. at 2 (arguing 8 that 9 deportation order has been initiated against him with out [sic] 10 due process of law and without a remote chances [sic] that the 11 inmate is going to be deported)). 4). yet On May 28, ICE issued (Id., Exh. A at 2). issued. Petitioner 2013, (See is under Memo. at ICE s a Notice to (Id. Appear, A final removal order has 6 (acknowledging jurisdiction because that a an final 12 13 III. 14 PETITIONER S CLAIMS AND RESPONDENTS MOTION TO DISMISS 15 16 Petitioner argues that the immigration detainer is unlawful 17 because he is not deportable and the detainer was obtained in 18 violation of due process. (Pet. at 1-2). Petitioner also 19 2 20 21 ICE is the investigative arm of the Department of Homeland Security ( DHS ). DHS assumed the responsibilities of the former Immigration and Naturalization Service ( INS ) in 2002. Galarza v. Szalczyk, 745 F.3d 634, 637 n.2 (3d Cir. 2014). 22 3 26 An immigration detainer notifies a law enforcement agency with custody over an individual that the Department will seek custody of the alien for the purpose of arresting and removing the alien upon completion of the alien s criminal sentence. 8 C.F.R. § 287.7. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody . . . . Id.. 27 4 23 24 25 28 DHS usually serves suspected removable aliens with a notice to appear to commence removal proceedings. Hamazaspyan v. Holder, 590 F.3d 744, 745 n.1 (9th Cir. 2009). 4 1 contends that the detainer violates his constitutional rights to 2 free 3 participating in the Residential Drug Abuse Program ( RDAP ). 4 (Memo. at 5 & 10). 5 with an ICE officer pursuant to the Notice to Appear violated his 6 procedural due process rights because the officer rushed . . . 7 through the interview without explaining why the government was 8 not granting Petitioner temporary protected status. speech and due process because it precludes him from Finally, Petitioner argues that his interview (Id. at 9). 9 10 Respondents contend that the Court should dismiss this 11 action for three reasons. 12 over the Petition because Petitioner is not in custody pursuant 13 to the detainer. 14 prohibits courts from reviewing what is essentially a preemptive 15 challenge to eventual removal proceedings. 16 Petition 17 Petitioner 18 precludes him from participating in RDAP. fails (Motion at 3). to does First, the Court lacks jurisdiction state not a claim explain Second, 8 U.S.C. § 1252(g) under how his (Id.). Rule Third, the 12(b)(6) immigration because detainer (Id. at 4). 19 20 IV. 21 DISCUSSION 22 23 A. The Court Lacks Jurisdiction To Hear Petitioner s Habeas 24 Claims Because Petitioner Is Not In Custody Pursuant To 25 The Detainer 26 27 28 Section 2241 embodies the traditional writ of habeas corpus, permitting an individual to challenge the legality of his 5 1 2 custody . . . . 3 2008). Woods v. Carey, 525 F.3d 886, 889 (9th Cir. As the Supreme Court has explained, 4 5 The federal habeas 6 district 7 for 8 custody in violation of the Constitution or laws or 9 treaties courts habeas gives jurisdiction relief of statute the only to from United the United entertain persons petitions who States. States are 28 in U.S.C. 10 § 2241(c)(3) 11 § 2254(a). 12 as 13 custody under the conviction or sentence under attack 14 at the time his petition is filed. (emphasis added); see also 28 U.S.C. We have interpreted the statutory language requiring that the habeas petitioner be in 15 16 Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (emphasis added). 17 The 18 Belleque, 554 F.3d 816, 821 (9th Cir. 2009) ( The text of the 19 statute makes clear, and the Supreme Court has confirmed, that 20 custody is a jurisdictional prerequisite to habeas review under 21 § 2241(c)(3). ) (citing Hensley v. Mun. Court, 411 U.S. 345, 351 22 (1973)). in custody requirement is jurisdictional. Wilson v. 23 24 In this action, Petitioner claims that DHS has custody 25 over him based on its issuance of an immigration detainer. 26 Memo. at 7 (arguing that ICE gains immediate technical custody 27 over an alien once a detainer issues); id. at 8 (contending that 28 the immigration detainer has placed 6 [Petitioner] under (See ICE 1 jurisdiction )). 2 his criminal conviction, not the immigration detainer. However, Petitioner is in custody pursuant to 3 4 As noted above, an immigration detainer is merely a request 5 to a law enforcement agency or prison to notify DHS before it 6 releases an alien upon completion of his criminal sentence so 7 that DHS may take custody of the alien for removal proceedings. 8 8 C.F.R. § 287.7; see also Galaviz-Medina v. Wooten, 27 F.3d 487, 9 493 (10th Cir. 1994) ( A detainer usually serves only as a notice 10 to federal prison authorities that the INS is going to be making 11 a decision about the deportability of the alien in the future. ). 12 Accordingly, 13 detainer letter alone does not sufficiently place an alien in INS 14 custody to make habeas corpus available. 15 F.3d 311, 314 (9th Cir. 1995) (quoting Garcia v. Taylor, 40 F.3d 16 299, 303 (9th Cir. 1994) (superseded by statute on other grounds, 17 as 18 A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) ( [A]n INS detainer is 19 not, standing alone, an order of custody. 20 request 21 [Immigration 22 alien 23 custody over the alien. ); Zolicoffer v. United States Dep t of 24 Justice, 315 F.3d 538, 540 (5th Cir. 2003) (collecting cases, 25 including Campos, and agreeing that absent an order of removal, 26 prisoners are not in custody for purposes of 28 U.S.C. § 2241 27 simply because the INS has lodged a detainer against them ). 28 Because Petitioner is not in DHS custody and is not challenging as recognized that from the in Ninth Campos)); another and Circuit United law so that explained, 7 INS bare v. Female Juvenile, Rather, it serves as a Service] the the Campos v. I.N.S., 62 States enforcement Naturalization detention has agency notify the before releasing an may arrange to assume 1 the conviction for which he is currently incarcerated, the Court 2 lacks jurisdiction to hear Petitioner s habeas claims. 5 3 4 B. 5 The Court Lacks Jurisdiction To Hear Challenges To The Attorney General s Decision To Initiate Removal Proceedings 6 7 Throughout the Petition, Petitioner attempts to equate an 8 immigration detainer with a final order of removal and improperly 9 relies on cases, statutes and regulations that apply only when a 10 final 11 (discussing 12 Zadvydas v. Davis, 533 U.S. 678 (2001), when the final order of 13 removal 14 particular, Petitioner s due process arguments rest largely on 15 DHS s 16 §§ 241.13-14. 17 those regulations apply only to aliens subject to a final order 18 of removal and are therefore not applicable here. order of removal prohibition cannot be failure to has on executed follow issued. (See, indefinite within a procedures e.g., detention reasonable codified Memo. at announced time)). at (See, e.g., Memo. at 2-4, 8-9, 12-13). 8 5 in In C.F.R. However, Stripped of 19 5 20 21 22 23 24 25 26 27 28 The Court notes that, in addition to misunderstanding federal law, Petitioner also misquotes it. Petitioner states that [h]e is the subject of a final order of deportation proceeding because an alien is deemed to be in custody when a final order of deportation proceeding has been initiated against him. (Memo. at 8) (purporting to quote Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995)). However, the Nakaranurack court did not state that an alien is in custody at the initiation of a final order proceeding. Rather, the court explained that whether or not an alien is in physical custody, so long as he is subject to a final order of deportation, an alien is deemed to be in custody for purposes of the [Immigration and Nationality Act], and therefore may petition a district court for habeas review of that deportation order. Id. (emphasis added). Nakaranurack has no bearing on Petitioner s case because Petitioner is not yet subject to a final removal order. 8 1 these claims, the Petition is essentially an objection, based on 2 Petitioner s 3 decision to initiate proceedings that may eventually result in 4 Petitioner s removal. 6 As such, the Court lacks jurisdiction 5 because barred 6 challenging the Attorney General s decision to initiate removal 7 proceedings. contention Congress has that he is not courts deportable, from to hearing DHS s claims 8 9 8 U.S.C. § 1252(g) provides: 10 11 Except as provided in this section and notwithstanding 12 any 13 nonstatutory), including section 2241 of Title 28, or 14 any 15 shall have jurisdiction to hear any cause or claim by 16 or on behalf of any alien arising from the decision or 17 action other other by provision habeas the corpus of law provision, Attorney General (statutory . . . to no or court commence 18 6 19 20 21 22 23 24 25 26 27 28 For example, Petitioner appears to argue that he is eligible for Temporary Protective Status ( TPS ) pursuant to 8 C.F.R. § 244.7. (See Memo. at 2-3). Congress created TPS in recognition of the fact that armed conflicts were ongoing and might erupt in various parts of the world, making it inappropriate to return foreign nationals to these areas. Rodas v. Chertoff, 399 F. Supp. 2d 697, 704 (E.D. Va. 2005). In essence, TPS permits eligible aliens from designated countries to obtain temporary immigration status and protection from removal because they are unable to return to their homeland. Id. (citing 8 U.S.C. § 1254(a)). However, because Congress has plainly committed the initial decision to grant or deny TPS to the unreviewable discretion of the Secretary of DHS, there is no jurisdiction in this or any court to review the merits of the Secretary s denial of TPS . . . . Id. at 705 (citing 8 U.S.C. § 1252(a)(2)(B)). Accordingly, even if DHS decided to deny TPS to Petitioner, this Court would lack jurisdiction to review that decision. 9 1 proceedings, 2 orders against any alien under this chapter. adjudicate cases, or execute removal 3 4 8 U.S.C. § 1252(g) (emphasis added). 5 not 6 involving 7 jurisdiction to hear claims based on the government s decision to 8 commence 9 cases. preclude federal immigration removal courts from matters, proceedings it and While section 1252(g) does hearing does its any strip habeas the adjudication claim courts of of removal Reno v. American Arab Anti Discrimination Comm., 525 U.S. 10 471, 482 (1999); see also Jimenez-Angeles v. Ashcroft, 291 F.3d 11 594, 599 (9th Cir. 2002) (court lacks jurisdiction pursuant to 12 section 13 General s decision not only whether to commence, but also when 14 to commence, a [removal] proceeding ) (emphasis in original). 15 Accordingly, to the extent that the Petition can be construed as 16 a 17 proceedings, the Court lacks jurisdiction over its claims. 7 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 1252(g) preemptive to adjudicate challenge to claims DHS s based decision to on the initiate Attorney removal 23 24 25 26 27 28 7 The Court further notes that even if removal proceedings had concluded and Petitioner were subject to a final removal order, review of the final order of removal would proceed before the Ninth Circuit, not this Court. See 8 U.S.C. § 1252(a)(5) ( [A] petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter . . . . ). 10 1 C. The Court Lacks Jurisdiction To Hear Petitioner s RDAP 2 Claims Because The BOP s Individualized Housing Decisions 3 Are Exempt From Judicial Review 4 5 Finally, Petitioner argues that the detainer violates his 6 constitutional rights because it allegedly precludes him from 7 participating in RDAP. According to the Ninth Circuit, 8 9 RDAP is an intensive drug treatment program for 10 federal 11 problems. . . . Treatment is conducted in a unit set 12 apart 13 followed 14 transitional programs. Successful completion of RDAP 15 can a 16 prisoner s sentence. inmates from the by result with documented general prison institutional in up to substance population and/or one-year abuse and is community-based reduction in a 17 18 Reeb v. Thomas, 636 F.3d 1224, 1225 (9th Cir. 2011) (internal 19 citations and footnote omitted); cf. Close v. Thomas, 653 F.3d 20 970, 972-3 (9th Cir. 2011) (district court has jurisdiction for 21 challenge 22 inmates). 23 Petitioner s individualized RDAP claim. to system-wide However, the RDAP Court policy lacks for ranking jurisdiction eligible to hear 24 25 Federal inmates do not have a due process liberty interest 26 in their eligibility for rehabilitative programs. 27 Daggett, 429 U.S. 78, 88 (1976); Reeb, 636 F.3d at 1228 n.4 28 ( [I]nmates do not have a protected liberty interest in either 11 See Moody v. 1 RDAP 2 release benefit. ). 3 officials 4 classification and eligibility for rehabilitative programs in the 5 federal system. 6 §§ 3621(b), 4042(a)(1); Reeb, 636 F.3d at 1226. 7 which prisoners are eligible to participate in RDAP is within the 8 discretion 9 eligible prisoners sentence reductions upon successful completion participation or the associated discretionary early Instead, Congress has given federal prison full of in discretion to control . . . prisoner Moody, 429 U.S. at 88 n.9; see also 18 U.S.C. the BOP, as is the decision to Determining grant or deny 10 of the program. 11 omitted); see also Williams El v. Carlson, 712 F.2d 685, 686 12 (D.C. Cir. 1983) (per curiam) (as amended) ( [P]rison officials 13 have 14 prisoners subject to detainers. ). the Reeb, 636 F.3d at 1226 (internal citations discretion reasonably to restrict the privileges of 15 16 Under 18 U.S.C. § 3625, Congress explicitly precluded 17 judicial review of the BOP s individualized RDAP determinations. 18 Section 3625 specifically excludes any determination, decision, 19 or order, including any decisions about an inmate s eligibility 20 for 21 U.S.C. §§ 3621 3624 from the provisions of the Administrative 22 Procedure Act, which authorizes federal courts to hear actions 23 involving a legal wrong suffered because of an agency action. 24 Reeb, 636 F.3d at 1226 27; see also 18 U.S.C. § 3625; 5 U.S.C. 25 § 702. 26 detainer makes him ineligible for RDAP or show that he has ever 27 applied to participate in the program and been refused. 28 to rehabilitative the programs, made by the BOP pursuant to 18 Petitioner does not explain why he believes that the extent that Petition 12 is challenging However, the BOP s 1 individualized decision not to allow Petitioner to participate in 2 RDAP, the Court lacks jurisdiction to hear Petitioner s claim. 3 4 V. 5 CONCLUSION 6 7 For the reasons stated above, IT IS ORDERED that Judgment 8 shall be entered dismissing this action without prejudice for 9 lack of jurisdiction. 10 11 DATED: August 28, 2014 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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