that his situation is analogous to that of an alien arrested without a warrant, and that because 8 C.F.R. § 287.3 guarantees aliens arrested without a warrant a determination of custody or bail within 24 hours, he is similarly entitled. The INS objects to this argument on several grounds: first, that the claim is moot because the INS began deportation proceedings against plaintiff on August 10, 1992 (Tobin Decl. P 3); second, that the court has no jurisdiction to consider plaintiff's claim for an INS custody determination because he is not in the INS's custody; and third, that plaintiff has no right to compel a deportation hearing to be held or expedited.
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.
Although it appears correct that plaintiff is asking for something that has already occurred, what plaintiff is really seeking is the resolution of these proceedings. I accordingly decline to dismiss the complaint as moot.
The INS suggests that the court does not have jurisdiction over plaintiff's claim because he is not in the custody of the INS. While many cases have held that the lodging of a detainer does not effectuate INS "custody" for the purpose of federal court jurisdiction over a habeas petition, see, e.g., Prieto v. Gluch, 913 F.2d 1159, 1162-63 (6th Cir. 1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1061, 111 S. Ct. 976 (1991); Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988), cert. denied, 490 U.S. 1082, 104 L. Ed. 2d 666, 109 S. Ct. 2105 (1989); see also Roldan v. Racette, 984 F.2d 85, 88 (2nd Cir. 1993) (referring to this view in dicta as "the clear majority view"), these holdings are irrelevant here because plaintiff has not brought a habeas petition. The nature of a writ of habeas corpus generally requires that it can be issued only to the person or agency who has custody of the petitioner, see 28 U.S.C. § 2243 (writ "shall be directed to the person having custody of the person detained"). But there is no need for a plaintiff seeking injunctive relief against agency action to be in the custody of the agency. The court does not lack jurisdiction.
C. Failure to state cause of action
The INS contends that plaintiff states no claim, because he has no right to compel the INS to initiate or expedite a deportation hearing.
Plaintiff grounds his claim in the provision of 8 C.F.R. § 287.3. This regulation provides that aliens who are arrested under the authority of the INS without a warrant will receive a determination of bond or custody within 24 hours of arrest. Plaintiff claims that the issuance of the Order and Warrant "constitutes a technical arrest without a warrant," and that he is thus entitled to the same determination within 24 hours. (Pl. Br. at 6, P 4.)
Plaintiff's claim that 8 C.F.R. § 287.3 should apply to him is groundless. That section clearly refers to an arrested person in INS custody whose physical freedom relies on the bail or custody determination.
Plaintiff is in an entirely different situation. He is in the custody of the State of New York because of a criminal conviction unrelated to any INS proceeding. The INS action against him has no impact on his freedom; thus there is no necessity for an immediate hearing to determine whether he will be freed on bond or kept in custody. Cf. Severino v. Thornburgh, 778 F. Supp. 5, 7 (S.D.N.Y. 1991) (statute contemplating physical custody not applicable to person in technical custody).
Thus, even if 8 C.F.R. § 287.3 implicitly confers a private cause of action, see Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), plaintiff is outside the class of people such a cause of action could benefit.
The Government's motion to dismiss the complaint for failure to state a claim must be granted.
The Government's motion to dismiss the complaint is granted.
Dated: New York, N.Y.
January 12, 1994
Pierre N. Leval, U.S.C.J.