Heath v. Department of Homeland Security

          SECOND REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         Petitioner, proceeding pro se, initiated this case on June 14, 2019, by submitting a petition for writ of habeas corpus, ECF No. 1, and a motion requesting leave to proceed in forma pauperis, ECF No. 2. Because Petitioner's motion and financial affidavit revealed that Petitioner had sufficient funds to pay the filing fee for this case, a Report and Recommendation was entered recommending that Petitioner be required to pay the $5.00 filing fee. ECF No. 4. That recommendation was adopted and Petitioner was required to pay the fee. ECF No. 5. He has now done so, ECF No. 6, and the petition, ECF No. 1, has been reviewed.

         Petitioner is confined at the Okaloosa County Jail. ECF No. 1 at 1. He brings this case against the Department of Homeland Security, and I.C.E., or as it was previously known, Immigration and Naturalization Services (the “INS”). Id. Petitioner alleges that by virtue of his marriage, he became a United States citizen. Id. at 3. The petition does not allege that a final order of removal has been entered, id., and it appears that the only relief requested in this case is to have an immigration hold removed so that Petitioner can post bond on his pending charges. Id. at 6.

         The instant petition was filed pursuant to 28 U.S.C. § 2241(c). However, a petitioner can only “use a § 2241 petition to challenge custody alleged to be in violation of the Constitution or laws of the United States.” Louis v. Sec'y, Fla. Dep't of Corr., 524 Fed.Appx. 583, 584 (11th Cir. 2013) (citing 28 U.S.C. § 2241(c)(3)). That statute directs that a writ of habeas corpus cannot extend to a prisoner unless he “is in custody under or by color of the authority of the United States . . . .” 28 U.S.C. § 2241(c). “[A]bsent custody by the authority against whom relief is sought, jurisdiction will not lie to grant the writ.” Gonzales-Corrales v. I.C.E., 522 Fed.Appx. 619, 623 (11th Cir. 2013) (citing Orozco v. U.S.I.N.S., 911 F.2d 539, 541 (11th Cir. 1990)). The Eleventh Circuit has held that “[t]he filing of the detainer, ^[1]standing alone, did not cause [petitioner] to come within the custody of the INS.” Orozco v. U.S.I.N.S., 911 F.2d 539, 541 (11th Cir. 1990); see also Roberts v. INS, 372 Fed.Appx. 921, 924 (11th Cir. 2010); Louis, 524 Fed.Appx. at 584 (stating that “[a]n ICE detainer, standing alone, is generally insufficient to establish ICE custody.”). Here, Petitioner is held in state custody and is facing state criminal charges. Petitioner has alleged only that a detainer has been issued by I.C.E. Thus, Petitioner is not in federal custody and the petition must be dismissed for lack of jurisdiction.

         It is respectfully RECOMMENDED that the petition for a writ of habeas corpus, ECF No. 1, filed pursuant to 28 U.S.C. § 2241, be DISMISSED for lack of jurisdiction.

         NOTICE TO THE PARTIES

         Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Fed.R.Civ.P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. If a party fails to object to the Magistrate Judge's findings or recommendations as to any particular claim or issue contained in this Report and Recommendation, that party waives the right to challenge on appeal the District Court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

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Notes:

^[1] “An immigration detainer ‘serves to advise another law enforcement agency that the Department [of Homeland Security (‘DHS') ] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien' and ‘is a request that such agency advise the [DHS], prior to release of the alien, in order for the [DHS] to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.'” 8 C.F.R. ...