IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AAMIR SATTANI, )

Petitioner, )

)

v. ) 3:05-CV-0655-H

)

UNITED STATES OF AMERICA, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the court in

implementation thereof, this cause has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature

thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for a writ of habeas corpus brought pursuant to 28

U.S.C. § 2241 by a federal detainee who is awaiting sentencing in United States v. Sattani,

3:04cr289-H(02) (N.D. Tex., Dallas Div.), on a conviction for bank fraud and conspiracy to

commit bank fraud.

Parties: Petitioner is presently confined at the Federal Detention Center in Seagoville,

Texas. (Petition (Pet.) at 2). He is represented by retained counsel. 

Statement of Case: On March 10, 2005, the U.S. Customs and Border Protection issued

an “Immigration Detainer – Notice of Action” directed to the United States Marshals Service,

who is presently Petitioner’s custodian. (Exh. 1 attached to Pet.). The detainer notes that an

“[i]nvestigation has been initiated to determine whether . . . [Petitioner] is subject to removal

 

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from the United States.” At a hearing on March 16, 2005, the undersigned magistrate judge

concluded that Petitioner was a flight risk, by virtue of the immigration detainer along with other

independent evidence, and denied his Motion for Release Pending Sentencing. See Transcript of

March 16, 2005 hearing in No. 3:04cr298-H (attached as Exh. B to Pet.). 

In this action, Petitioner challenges the issuance of the immigration detainer. He

contends that 8 C.F.R. § 287.7, which relies on Section 287 of the Immigration and Nationality

Act, 8 U.S.C. § 1357, permits the issuance of immigration detainers only for individuals who

have been convicted for a controlled substance violation.

The government filed its response on May 6, 2005, arguing that Petitioner is not in

custody for purposes of habeas corpus jurisdiction, and that detainers issued under 8 C.F.R. §

287.7 are not limited to offenders of controlled substances laws. Petitioner filed a reply on June

23, 2005.

Findings and Conclusions: A jurisdictional prerequisite for the granting of a writ of

habeas corpus under 28 U.S.C. § 2241 is that the petitioner be "in custody." The provision

relevant to this case states that the "writ of habeas corpus shall not extend to a prisoner unless ...

[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28

U.S.C. § 2241(c)(3). The majority of circuits, including the Fifth Circuit, has held that the filing

of a detainer, alone, does not place a petitioner “in custody” for purposes of habeas proceedings. 

See Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003) (collecting

cases and agreeing with the majority of circuits that, where there was no contention "that the INS

actually has ordered [the alien's] deportation," the existence of an immigration detainer does not

amount to custody). “‘Filing a detainer is an informal procedure in which the INS informs

 

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prison officials that a person is subject to deportation and requests that officials give the INS

notice of the person’s death, impending release, or transfer to another institution.’” Id. at 540

(quoting Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992)). 

Just as in Zolicoffer, Petitioner is not in custody on any immigration charges. Rather, he

is in the custody of the U.S. Marshal Service awaiting sentencing in his criminal case. 

Petitioner’s argument to the contrary – that “[t]he evidence [in this case] . . . demonstrates far

more than the mere filing of a detainer . . .” – is unpersuasive and conclusory at best. (Reply at

2). Therefore, the court concludes that Petitioner cannot satisfy the “in custody” requirement

and that his habeas corpus petition should be dismissed for want of jurisdiction. 

RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court dismiss for lack of

jurisdiction the petition for a writ of habeas corpus. See 28 U.S.C. § 2241(c)(3).

Signed this 15 day of July, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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