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United States District Court, E.D. New York

March 22, 2004.

THOMAS BABIS, -against- Petitioner, Dennis Breslin, Superintendent, Arthur Kill Correctional Facility, John Ashcroft, United States Attorney General, James W. Ziglar, Commissioner, Immigration and Naturalization Service, Defendants

The opinion of the court was delivered by: JOHN GLEESON, District Judge


On February 10, 1992, Thomas Babis was convicted in the Supreme Court of the State of New York, for robbery in the first degree. He was sentenced to a term of imprisonment of no less than seven-and-one-half years and no more than fifteen years, and is currently in prison. Babis is also serving prison time on another crime, not at issue here, and together, these crimes have an aggregate maximum sentence of 27 years. (See Pet. Ex. A.)

Babis now asks me to order his immediate deportation to Albania. Specifically, he requests that I order the Bureau of Immigration and Customs Enforcement ("BICE") to execute the order of deportation issued against him by an immigration judge on May 9, 1995. He was ordered deportable, under 8 U.S.C. § 1227(a)(2)(A)(iii) and (a)(2)(C), as an aggravated felon convicted of a crime of violence.*fn1 He asserts that the BICE violated his due process rights by failing to execute his order of deportation after the New York State Division of Parole ("NYSDP") granted him Conditional Parole for Deportation Only ("CPDO"), in April of 2002.*fn2 Page 2

  The BICE has not yet accepted custody of Babis, however, and thus he remains in prison.*fn3 The BICE does not take physical custody of a deportable alien from the state until he or she is under final order of deportation and the BICE is ready to immediately execute the deportation. Here, "BICE is not prepared to immediately deport the Petitioner because the BICE is still in the process of obtaining a travel document for the Petitioner. Albania will not accept the Petitioner for repatriation without a travel document." (Decl. of Assistant United States Attorney ¶ 8.)

  Although Babis has filed a petition for writ of habeas corpus, at bottom, what he seeks is a writ of mandamus. He seeks an order directing the Attorney General to exercise his discretion to immediately deport him, even though he is lawfully in prison serving out his sentence. This I cannot do.

  The mandamus statute vests jurisdiction in the district courts 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 the plaintiff." 28 U.S.C. § 1361. It is available "only when the plaintiff has a clear right to the relief sought, the defendant has a clear duty to perform, and no other adequate remedy is available." Hussein v. Ashcroft, No. 01 CV 1239, 2002 WL 31027604, at *3 (E.D.N.Y. Sep. 12, 2002).

  Here, Babis, a violent offender, has no such right, let alone a clear one. "A convicted alien is not entitled to immediate deportation before the completion of his prison term. Subject to an exception for nonviolent offenders, `the Attorney General may not remove an alien Page 3 who is sentenced to imprisonment until the alien is released from imprisonment.'" Duamutef v. INS, No. CV-02-1345, 2003 WL 21087984, at *3 (E.D.N.Y. May 14, 2003) (quoting 8 U.S.C. § 123 1(a)(4)(A)). Even if Babis were a nonviolent offender, he still would not have a clear right to such a remedy. See United States v. Munoz-Pulgo, No. 01 CR 954, 2003 WL 22047210, at * 1 (S.D.N.Y. Aug. 29, 2003) (pursuant to 8 U.S.C. § 1231(a)(4)(B), exception for nonviolent offenders, "only the Attorney General . . . possesses the discretion to deport an alien prior to the completion of his prison term.") (citing Thye v. United States, 109 F.3d 127, 128 (2d Cir. 1997) (per curiam)).

  Additionally, 8 U.S.C. § 1231(a)(4)(D)*fn4 prohibits a private cause of action to compel the Attorney General to deport a convicted alien prior to completion of the sentence. Id. (citing Loaiza v. INS, No. 98-CV-1 112, 1998 WL 863126, at *4 (E.D.N.Y. Dec. 8, 1998) ("an alien inmate has no private right to bring an action to compel the Attorney General, an INS official, or any official of New York State, including the members of the Parole Board, to deport him or her from the United States before the completion of his or her period of incarceration.")).

  Last, as related above, Babis's CPDO status is contingent on the INS accepting custody and deporting the prisoner. Until such time, he is still lawfully in state custody, serving the state sentence. Id. at *5 (citing Cuomo v. Barr, 812 F. Supp. 324, 328 (N.D.N.Y. 1993)).*fn5

  Thus, I deny Babis's petition. The Clerk of Court is directed to enter judgment for Page 4 defendants and to close the case.

  So Ordered.

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