The opinion of the court was delivered by: Freeh, District Judge.
At issue in this habeas corpus petition is whether the
Immigration and Naturalization
Service ("INS") is obligated to make a bond determination for
a state prisoner against whom an INS detainer, an
administrative order to show cause charging deportability, and
arrest warrant have been issued. Magistrate Judge Katz, who
issued a Report and Recommendation in this matter, concluded
that the Court had jurisdiction to hear this habeas petition
because Severino is effectively in the custody of the INS.
Magistrate Judge Katz further concluded, however, that the INS
is not required to set a bond for Severino because Severino is
not in the actual, physical custody of the INS. Accordingly,
Magistrate Judge Katz recommended that the writ be denied and
that the petition be dismissed with prejudice. For the reasons
stated at oral argument on November 6, 1991, and set out below,
the Magistrate Judge's recommendation is accepted as modified
Petitioner Victor Severino ("Severino"), a native of the
Dominican Republic, has been a lawful resident of the United
States since 1970. In January 1990, Severino pled guilty in New
York Supreme Court to criminal possession of a controlled
substance in the third degree, and was sentenced to a term of
imprisonment between two and six years. (Report at 1). In
November 1990, the INS, which had been notified of Severino's
conviction, issued an Immigration Detainer-Notice of Action
indicating that it was investigating whether Severino was
subject to deportation. The INS "Detainer-Notice of Action"
requested that the state prison superintendent accept the
detainer for notification purposes only and did not otherwise
seek to limit the state's discretion regarding petitioner's
custody. The detainer further requested the superintendent of
the correctional facility where Severino is incarcerated to
notify the INS thirty (30) days prior to his release.
(Id. at 2).
Pursuant to 8 U.S.C. § 1251(a)(2)(B), which provides for
deportation of any alien convicted of violating any law or
regulation relating to a controlled substance, on December 18,
1990, the INS issued an administrative order to show cause why
Severino should not be deported. On that same date, the INS
issued a warrant for Severino's arrest under 8 U.S.C. § 1252.
(Id.). The arrest warrant was lodged with the state authorities
but was not served on petitioner.
For several months prior to the INS' action, Severino was
enrolled in a work-release program, the terms of which allowed
him to work full-time outside of prison and to sleep at home
four nights a week. After the INS notified prison officials of
its order to show cause and arrest warrant, Severino's
participation in the work-release program was revoked. Severino
filed this habeas petition on May 6, 1991, seeking an order
requiring respondent to (1) set a bond pursuant to 8 U.S.C. § 1252(a);
(2) commence deportation proceedings pursuant to
8 U.S.C. § 1252(a) and (d); and (3) remove the immigration
detainer lodged with the Department of Corrections. (Id. at 3).
The petition must be dismissed because the Court lacks
jurisdiction to entertain Severino's request, pursuant to
28 U.S.C. § 2241 and 8 U.S.C. § 1252(a) and (d). "Absent custody
by the authority against whom relief is sought, jurisdiction
usually will not lie to grant the requested writ." Campillo v.
Sullivan, 853 F.2d 593, 595 (8th Cir. 1988), cert. denied,
490 U.S. 1082, 109 S.Ct. 2105, 104 L.Ed.2d 666 (1989). As discussed
in the "custody" portion of Magistrate Judge Katz' Report and
Recommendation, the concept of "custody" within the context of
the habeas corpus statute has been expanded beyond physical
custody alone. See Hensley v. Municipal Court, 411 U.S. 345, 93
S.Ct. 1571, 36 L.Ed.2d 294 (1973); Frazier v. Wilkinson,
842 F.2d 42, 45 (2d Cir.), cert. denied, 488 U.S. 842, 109 S.Ct.
114, 102 L.Ed.2d 88 (1988); Vargas v. Swan, 854 F.2d 1028, 1031
(7th Cir. 1988). However, the mere filing of an INS detainer
notice fails to establish the requisite custody under the
habeas corpus statute.
The fact that an unexecuted arrest warrant and administrative
Order to Show Cause were also served upon Severino does not
establish INS custody either. See Moody v. Daggett,
429 U.S. 78, 89, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976) (filing of
parole violation warrant which was not served upon defendant
was treated as administrative detainer notice). The plain
language of Section 1252 providing for an alien to be "arrested
and taken into custody," "be released under bond," and "be
released on conditional parole," § 1252(a)(1)(A), (B), (C),
clearly contemplates "physical" custody. Similarly, §
1252(a)(2)(A) contains language that the Attorney General
"shall take into custody any alien convicted of an aggravated
felony upon release of the alien . . . the Attorney General
shall not release such felon from custody." Finally, §
1252(a)(2)(B) directs that the "Attorney General shall release
from custody an alien who is lawfully admitted for permanent
residence . . . if . . . the alien is not a threat to the
community and . . . is likely to appear before any scheduled
The clear import of § 1252 is "physical custody" of the alien
by INS. Thus, the mere "filing of a detainer with prison
officials" does not amount to "taking into custody, technical
or otherwise." Campillo v. Sullivan, supra, 853 F.2d at 596. As
a result, the Court does not adopt Magistrate Judge Katz'
recommendation that Severino is deemed to be in the INS custody
for purposes of habeas corpus jurisdiction. (Report at 4-11).
Courts in this Circuit which have considered the issue have
held that "physical" custody rather than any technical custody
by operation of a detainer is essential to establish habeas
corpus jurisdiction pursuant to 28 U.S.C. § 2254. Garcia v.
McClellan, 1991 WL 90755 (S.D.N.Y. 1991); Fernandez-Collado v.
INS, 644 F. Supp. 741, 743-44 (D.Conn. 1986), aff'd,
857 F.2d 1461 (2d Cir. 1987). See also D'Ambrosio v. INS, 710 F. Supp. 269,
271 (N.D.Cal. 1989). Because petitioner has not yet been
taken into INS custody pursuant to a warrant of arrest or by
operation of a detainer, neither 28 U.S.C. § 2241 nor 8 U.S.C. § 1252
is available to support the writ. The writ is denied and
the Clerk of the Court is directed to enter judgment dismissing
the petition with prejudice.
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