Saywack v. Attorney General, 1993 U.S. Dist. LEXIS 7779, 91 Civ. 7797 (PNL), 1993 WL 205121 (S.D.N.Y. June 9, 1993); Hechavarria-Castellano v. Immigration and Naturalization Serv., Civ. No. H-84-498 (JAC), 1985 WL 6439 (D. Conn. April 12, 1985).
Deutsch attempts to distinguish this line of authority by arguing that the INS has done more than merely file an INS detainer against him; they also have issued an order to show cause and a warrant of arrest. Deutsch maintains that it is this combination of a detainer, order to show cause, and warrant of arrest that brings him within the custody of the INS for purposes of habeas corpus jurisdiction.
Deutsch's argument, however, is not supported by the case law in this Circuit. Courts have found that even when a detainer, an order to show cause, and an arrest warrant have been issued, the inmate remains in the custody of the correctional institution until such time as he has completed his current sentence and is taken into physical custody by the INS. See Roldan v. Racette, 984 F.2d 85, 86-88 (2d Cir. 1993)
; Cruz v. Molerio, 840 F. Supp. 303, 304-05 (S.D.N.Y. 1994); Severino v. Thornburgh, 778 F. Supp. 5, 7 (S.D.N.Y. 1991).
Although a detainer, order to show cause, and an arrest warrant have been issued against Deutsch, he remains in the custody of the BOP until the completion of his current fifty-six month sentence. At that point, he will be taken into custody by the INS. Because Deutsch is not currently in INS custody, his claim for habeas corpus relief against the INS is dismissed for lack of jurisdiction.
B. Writ of Mandamus
The Mandamus Act vests district courts with original jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361.
The Second Circuit has held that a writ of mandamus may issue only when there is: "(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and preemptory duty on the defendant's part to do the act in question; and (3) lack of another available, adequate remedy." Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976).
Deutsch seeks a writ of mandamus, directing the INS to dismiss the immigration charges and the immigration warrant and detainer lodged against him on the ground that the INS has not complied with his rights under the Speedy Trial Act, 18 U.S.C. § 3161, and the Interstate Agreement on Detainers, 18 U.S.C. app. Art. III(a).
Although this Court has jurisdiction over Deutsch's mandamus claims, he fails to state a claim upon which relief can be granted. Deutsch simply has no right to a speedy deportation hearing and the INS is under no duty to afford him one. It is well settled that the INS' failure to provide an inmate a speedy deportation hearing does not implicate his Sixth Amendment rights, and, therefore, the provisions of the Speedy Trial Act and the Interstate Agreement on Detainers do not apply. United States v. Cepeda-Luna, 989 F.2d 353 (9th Cir. 1993); United States v. Gonzalez-Mendoza, 985 F.2d 1014 (9th Cir. 1993); Argiz v. United States Immigration, 704 F.2d 384 (7th Cir. 1983).
Accordingly, Deutsch's writ of mandamus claim against the INS is dismissed.
II. Claims Against the Bureau of Prisons
Deutsch seeks either a writ of habeas corpus or a writ of mandamus, directing the BOP to release him from custody immediately or at a minimum to reinstate his eligibility for certain prison programs.
I find that Deutsch fails to state a claim for either habeas corpus or mandamus relief. Deutsch originally had a release date from prison of October 7, 1995.
This date was established, however, before he was convicted in February 1995 on related charges and sentenced to an additional fifty-six months in prison to run consecutive to his existing sentence. Deutsch is currently serving this fifty-six month sentence--a lawful term of imprisonment--and now has a projected release date of May 8, 1997. Accordingly, Deutsch's claims for habeas corpus and mandamus relief against BOP, granting him immediate release, are dismissed.
Deutsch claims further that because the warrant and detainer are lodged against him, he is being subject to tougher security measures and is not entitled to participate in the Community Correction Center Program. BOP's denial of participation in no way violates Deutsch's constitutional rights. "As a general rule a prisoner does not hold a protected interest in such programs." Castronova v. United States Parole Comm'n, 1995 U.S. Dist. LEXIS 15296, 94-C V-606S, 1995 WL 604327, at *6 (W.D.N.Y. August 29, 1995). The Supreme Court has specifically determined that "prisoners do not have constitutional rights to particular classifications or to eligibility for rehabilitative programs." Ortiz v. Immigration and Naturalization Service, 1993 U.S. Dist. LEXIS 3981, C-93-0089-SBA, 1993 WL 102831, at *2 (N.D. Cal. March 22, 1993)(citing Moody v. Daggett, 429 U.S. 78, 86-87, 88 n.9, 50 L. Ed. 2d 236, 97 S. Ct. 274 (1976); Meachum v. Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976)). Further, there is "no statute or regulation which prevents the BOP from considering INS detainers in assigning security levels." Id.
Accordingly, Deutsch fails to state a claim for habeas corpus or mandamus relief from the enhanced security measures imposed on him by the BOP.
For the foregoing reasons, Deutsch's petition for a writ of mandamus and a writ of habeas corpus is denied. Further, because the issues raised in the petition are not the type that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, this Court concludes that the petition presents no federal question of substance worthy of attention from the Court of Appeals and, therefore, pursuant to 28 U.S.C. § 2253 and Fed. R. App. P. 22(b), this Court denies a certificate of probable cause. Finally, because it appears that any appeal would not be taken in good faith, leave to appeal in forma pauperis will be denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
November 7, 1996