The opinion of the court was delivered by: David G. Trager, United States District Judge
Petitioner pro se Duaut Duamutef ("Duamutef") filed this petition for habeas relief pursuant to 28 U.S.C. § 2241 and for a writ of mandamus pursuant to 28 U.S.C. § 1361. Duamutef, who is serving a state sentence of fifteen years to life on a murder conviction, was granted "conditional parole for deportation only" ("CPDO") by the state parole board. However, the Immigration and Naturalization Service (the "INS") has not deported him. Duamutef is requesting that the INS be ordered to execute the final order of deportation issued against him. The government has filed a motion opposing the petition and requesting that the action be dismissed.
Duamutef is a Jamaican native who entered the United States on or around January 1, 1980. Declaration of Dione M. Enea ("Enea Decl.") ¶ 3. The INS has no record of Duamutef ever being lawfully inspected or admitted to the United States. Id. In August 1982, Duamutef was arrested in New York and charged with, inter alia, Murder in the Second Degree (N.Y.P.L. § 125.25). Enea Decl., Ex. 1. On or around February 15, 1984, Duamutef was convicted of Murder in the Second Degree after a trial in the Supreme Court of the State of New York, Bronx County. Id. ¶ 4. Duamutef was sentenced to a prison term of fifteen years to life. Id. The Appellate Division affirmed Duamutef's conviction, and his request for leave to appeal to the Court of Appeals was denied. Duamutef Memorandum of Law ("Duamutef Mem."), at 1. Duamutef is presently in the custody of the New York State Department of Correctional Services, imprisoned at the Arthur Kill Correctional Facility. Enea Decl. ¶ 9.
On May 3, 1993, the INS initiated deportation proceedings against Duamutef, alleging that Duamutef was subject to deportation pursuant to the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1251(a)(1)(B), (a)(2)(A)(iii), as an alien who entered the U.S. without inspection and as an alien who has been convicted of an aggravated felony at any time after entry into the United States. Enea Decl. ¶ 5, Ex. 2. On June 16, 1994, the immigration judge ordered that Duamutef be deported to Jamaica. Id. ¶ 6, Ex. 3. Duamatef waived his right to appeal the decision to the Board of Immigration Appeals, thereby making his deportation order final. Id. The INS filed a detainer against Duamatef, which would prevent his actual release should Duamatef be granted discretionary release by the New York State Division of Parole (the "Parole Board"). Id. ¶ 5.
After Duamutef served his minimum sentence, on June 3, 1997, the Parole Board denied him discretionary release but granted him a CPDO. Id. ¶ 6; Duamutef Mem., at 1, Ex. A. The Parole Board informed the INS that Duamutef now was available for deportation. Duamutef Mem., at 1-2. The INS, however, did not deport Duamutef nor did it take him into custody. Enea Decl. ¶ 7. The INS is not willing to take custody of Duamutef until it is ready to actually deport him, and it claims that it is still in the process of obtaining travel documents from Jamaica. Id. ¶ 7-8.
The Parole Board revoked Duamutef's CPDO in June 1999 because, as Duamutef put it, the Parole Board "declared that the INS people were not interested in [him]." Id. However, the CPDO was reinstated at Duamutef's third parole hearing on June 27, 2001, when the Parole Board denied Duamutef discretionary release, but once again granted him a CPDO. Enea Decl. ¶ 7; Duamutef Mem., at 3.
Prior to filing this petition, Duamutef initiated several unsuccessful court and administrative proceedings against the state authorities seeking the reinstatement of the CPDO during the period when it was revoked. Duamutef Mem., at 2-4. He also filed a habeas petition in New York State court seeking immediate deportation. Id. The state court denied Duamutef's petition on the ground that the Parole Board did not have the authority to deport Duamutef and that the Parole Board's only duty to the conditional parolee was to notify the INS of his status, which it performed. Id. Duamutef also wrote to numerous federal, state and foreign officials seeking their assistance in spurring the INS to proceed to deport him. Id.
Although the government acknowledges subject matter jurisdiction for Duamutef's mandamus action, it argues that the Court lacks habeas jurisdiction under § 2241. The government claims that Duamutef is not in INS custody because he is being held by the state authorities. Duamutef argues that the existence of the final order of removal and the filing of the INS detainer place him within the custody of the INS.
Habeas corpus jurisdiction under § 2241 is available only when the petitioner "is in custody in violation of the Constitution or laws or treatises of the Unites States." 28 U.S.C. § 2241(c) (emphasis added). Nonetheless, courts have, under certain conditions, interpreted the habeas custody requirement to include constructive custody even where current physical custody is absent. See Frazier v. Wilkinson, 842 F.2d 42, 44 (2d Cir. 1988).
The government's position — that the filing of a detainer does not create INS custody — is perhaps the prevailing view of the law among courts in this circuit, and certainly so in other circuits. See Roldan v. Racette, 984 F.2d 85, 88 (2d Cir. 1993) (declining to decide the question but recognizing that the "clear majority" of circuits hold that "an INS detainer . . . does not result in present confinement by the INS"); Santana v. Giambruno, 1998 WL 295666, at *3 (N.D.N.Y. May 28, 1998).
However, when the petitioner is a prisoner subject to a final order of removal, or, of course, to both a detainer and a final order of removal, the habeas custody requirement is met. The Second Circuit, although declining to decide whether a detainer alone establishes INS custody, recently held that a "final order of removal is sufficient, by itself, to establish the requisite [INS] custody." Simmonds v. INS, ___ F.3d ___, 2003 WL 1904414, at *4 (2d Cir. Apr. 21, 2003); cf. Duran v. Reno, 193 F.3d 82, 84 (appointing counsel to argue question of first impression whether final order of removal together with detainer against state prisoner constitute INS custody), vacated as moot, 197 ...