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CRUZ v. MOLERIO

January 12, 1994

DOMINGO ANTONIO CRUZ, Plaintiff,
v.
DANIEL MOLERIO, Acting Assistant District Director for Investigations, U.S. Immigration and Naturalization Service, Defendant.



The opinion of the court was delivered by: PIERRE N. LEVAL

 PIERRE N. LEVAL, U.S.C.J. *fn1"

 This is an action brought by a permanent resident alien currently incarcerated in the Fishkill Correctional Facility, a New York State prison, seeking declaratory and injunctive relief in response to an Order to Show Cause and Notice of Hearing, and Arrest Warrant (hereinafter referred to as the order and warrant), issued by the Immigration and Naturalization Service (INS) on January 29, 1991. He also seeks to compel the INS to begin deportation proceedings so that a determination of custody or bond may be made. The INS moves to dismiss. *fn2"

 As I read his papers, plaintiff makes essentially two claims: that the INS abused its discretion in issuing the Order and Warrant and should thus be ordered to withdraw them; and that he has a statutory right to a prompt hearing on the Order to Show Cause so that a bail or custody determination can be made.

 1. Declaratory and injunctive relief from the Order and Warrant

 A. Abuse of INS discretion

 Plaintiff offers no support whatever for his contention that the INS abused its discretion by issuing the Order and Warrant. Plaintiff's conviction on a controlled substance charge made him eligible for deportation, 8 U.S.C.A. § 1251(a)(2)(B)(i) (1993), and a deportation proceeding is begun by issuance of an order to show cause, 8 C.F.R. § 242.1. Plaintiff claims eligibility for certain waivers of deportability. These defenses cannot be the basis for an injunction against the deportation proceedings; they must be made when a deportation hearing is held.

 B. Impact on work release status

 It appears that the lodging of the Immigration Service's Order and Warrant, as a detainer at the Fishkill Correctional Facility prevents plaintiff's participation in a work release program. He further contends that if an immigration hearing was held and a bond determination made, he would be eligible for work release. The adverse consequences of the INS detainer do not result from any illegality of action taken by the INS, but rather from a decision by New York State officials for which the INS, as sole defendant here, cannot be held responsible. See Paulino v. Connery, 766 F. Supp. 209, 211 (S.D.N.Y. 1991) (INS not liable for consequences of detainer on work release eligibility); Isaraphanich v. Coughlin, 716 F. Supp. 119, 121 (S.D.N.Y. 1989) (approving INS detainer as rational basis for state's decision to deny participation in temporary release programs). The INS has every right to issue its warrant to insure its ability to proceed to deport plaintiff and bears no liability by reason of New York's decision to impose restrictions on plaintiff's prison privileges by reason of the warrant.

 Defendant's motion to dismiss plaintiff's claims for declaratory and injunctive relief pertaining to the Order and Warrant must be granted.

 2. Order directing INS to begin deportation proceedings

 A. Mootness

 Plaintiff specifically asks that the court order the INS director to "commence" deportation proceedings, (Pl. Brief at 3), and presents no evidence to contradict the declaration of Patricia Tobin that an initial deportation hearing was held August 10, 1992. *fn3" Although it appears correct that plaintiff is asking for something that has already occurred, what plaintiff is ...


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