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March 28, 2003


The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.


I. Introduction

Petitioner, pro se Roque Guerro, a New York State prison inmate as a result of Monroe County Court convictions for first degree criminal possession of a controlled substance ("CPCS") and fourth degree criminal possession of a weapon ("CPW"), has filed a mandamus action pursuant to 28 U.S.C. § 1361 in which he seeks an order directing the INS to immediately deport him to Santo Domingo, Dominican Republic (Dkt. No. 1). In support of his claim for mandamus relief, Guerro argues that respondent New York State Division of Parole ("NYSDOP") wrongfully denied his application for Conditional Parole for Deportation Only ("CPDO"), despite the fact that he is eligible for that relief. Guerro further argues that the INS is required to immediately effectuate his deportation from this country. See Pet.

On May 2, 2002, respondent INS*fn2 filed a motion to dismiss Guerro's mandamus petition (Dkt. Nos. 8-10). Both the NYSDOP and Senkowski have filed a response in opposition to the petition in which they claim that Guerro's application for a writ of mandamus should be denied (Dkt. Nos. 11-12). For the following reasons, the court recommends that the petition be denied and dismissed as against all respondents.

II. Background

Guerro is a native and citizen of the Dominican Republic who entered the United States on or about September 15, 1985. See Declaration of James W. Grable, Esq. (5/1/02; Dkt. No. 9; "Grable Decl." at ¶ 4). On January 12, 1993, Guerro was sentenced by Monroe County Supreme Court Justice Eugene W. Bergin to an indeterminate term of fifteen years to life imprisonment after a jury found Guerro guilty of the CPCS and CPW charges (Dkt. No. 11 at Ex. 1).*fn3

In its motion to dismiss, the INS claims, inter alia, that it is not a proper respondent in this mandamus action because Guerro is in the custody of the New York State Department of Correctional Services ("NYSDOCS"), not the INS (Dkt. No. 10 at P. 2). In arguing that Guerro is not entitled to mandamus relief against the NYSDOP and Senkowski, these respondents claim, inter alia, because Guerro has no right to be paroled, including for purposes of deportation only, this action must be dismissed (Dkt. No. 12 at PP. 3-6).

III. Discussion

Under 8 U.S.C. § 1228, the INS is authorized to commence expedited removal proceedings against an inmate "before the alien's release from incarceration for the underlying aggravated felony." 8 U.S.C. § 1228(a). In accordance with this statute, on August 26, 1994, Guerro was notified by the INS that it would seek his removal from the United States because of the CPCS and CPW convictions (Dkt. No. 9 at ¶ 7). Immigration Judge Alan Vomacka subsequently conducted a removal proceeding relating to Guerro, after which he was found to be deportable (Dkt. No. 9 at ¶ 8 and Ex. A).*fn4 The INS argues that although Guerro has been found to be removable, he nevertheless is still under the custody of the NYSDOCS where he will remain until the completion of his sentence (Grable Decl. at ¶ 10). Therefore, the INS argues it cannot be compelled to remove him to the Domincan Republic (Dkt. No. 10 at PP. 2-3).*fn5

"A court has jurisdiction to issue a writ of habeas corpus if the petitioner is in the custody of the authority against whom relief is sought." See e.g., Deutsch v. U.S., 943 F. Supp. 276, 278 (W.D.N.Y. 1996) (citation omitted). Where a petitioner is not in the custody of the INS, any claim against that agency must be dismissed for lack of jurisdiction. Id. at 279; see also, Dearmas v. Immigration and Naturalization Serv., 92-CIV.-8615, 1993 WL 213031, at *2 (S.D.N.Y. June 15, 1993); Severino v. Thornburgh, 778 F. Supp. 5, 6 (S.D.N.Y. 1991). The documents provided to this court support the INS' claim that Guerro is not in its custody. Consequently, Guerro is not entitled to the relief he seeks as to this respondent and dismissal of Guerro's petition for a writ of mandamus against the INS is appropriate. Guerro's claims against the NYSDOP and Senkowski relate to New York's law relating to CPDO (Dkt. No. 1 at 1-3). Specifically, Guerro argues that the NYSDOP, in denying his request for CPDO, did not properly consider the fact that he has already been ordered deported by Judge Vomacka to the Domincan Republic (Dkt. No. 1 at PP. 2-3). Guerro appears to argue that in light of Judge Vomacka's removal order, the NYSDOP is required to grant Guerro's application for CPDO. Id.

In New York, inmates who have completed their minimum sentences and have not been convicted of committing a violent felony are eligible for CPDO. See N.Y.Exec.L. § 259-i(2)(d); Ramos v. United States Immigration and Naturalization Service, 97-CV-354, 1998 WL 159547, at *3 (N.D.N.Y. Mar. 31, 1998) (Pooler, J.). As noted by the Second Circuit in Cuomo v. Barr, 7 F.3d 17 (2d Cir. 1993), under that statute:

New York may grant an application for early parole only where it has received from the INS assurance (A) that an order of deportation will be executed or that proceedings will promptly be commenced for the purpose of deportation upon release of the inmate from the custody of the department of correctional services, and (B) that the inmate, if granted parole pursuant to this paragraph, will not be released from INS custody unless such release be as a result of deportation without providing the board a reasonable opportunity to arrange for execution of its warrant for the retaking of such parolee.
Barr, 7 F.3d at 19 (citing N.Y.Exec.L. § 259-i(2)(d)(i)).

However, although New York law provides that inmates who have not been convicted of violent felonies may be eligible for early release for deportation only, there is no constitutional right to parole under either New York or federal law. Giannattasio v. Artuz, 97-CIV.-7606, 2000 WL 335242, at *7 (S.D.N.Y. Mar. 30, 2000) (citing Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 422 U.S. 1, 7 (1979); Russo v. New York State Board of Parole, [50 N.Y.2d 69, 73] (1980)); see also, Calizaire v. Byrnes, 95-CV-1792, 1997 WL 614284 (N.D.N.Y. Sept. 26, 1997) (Pooler, D.J.) ("it is well-established in this Circuit that inmates have no right to be released on parole before the expiration of a valid sentence") (citation omitted).*fn6

"The prerequisites for issuance of a writ of mandamus are peremptory: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and, (3) no other adequate remedy available." Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989); see also, Hussein v. Ashcroft, 01-CIV-1239, 2002 WL 31027604, at *3 (E.D.N.Y. Sept. 12, 2002) (citations omitted). Since Guerro does not have a clear right to CPDO, and the NYSDOP is not under any duty to grant his request for CPDO, he is not entitled to mandamus relief from either NYSDOP or Senkowski. See e.g., Andriianov v. Livingston, ...

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