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
MEMORANDUM AND ORDER
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
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
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
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
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
Thus, I deny Babis's petition. The Clerk of Court is directed to enter
defendants and to close the case.