* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 16, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-11090

Summary Calendar

 

UYI KING OSAYANDE,

Petitioner-Appellant,

versus

IMMIGRATION AND NATURALIZATION

SERVICE; FEDERAL BUREAU OF PRISONS,

Respondents-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:02-CV-88-N

- - - - - - - - - -

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Uyi King Osayande, a federal prisoner (# 26653-077), appeals

from the district court’s dismissal of his 28 U.S.C. § 2241 habeas

corpus petition. Osayande is serving concurrent 136-month prison

terms following his 1995 convictions of conspiracy to possess

heroin with intent to distribute and possession of heroin with

intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a).

Osayande, a native of Nigeria, argued in his habeas petition that

(1) he is entitled to a waiver of deportation pursuant to § 212(c)
No. 02-11090

-2-

of the Immigration and Naturalization Act (8 U.S.C. § 1182(c)

(repealed)) and (2) his transfer to a private prison facility,

operated by Cornell Correctional Corporation and used to house

immigration detainees, violates his constitutional rights because

he is still serving his federal sentence. 

For the first time on appeal, the respondents argue that the

§ 212(c) relief sought by Osayande is unavailable, because no

removal or deportation proceedings have been commenced against him

and any relief that could be granted would be prospective. This is

more or less an argument that Osayande’s § 212(c) claim is nonjusticiable. Article III of the Constitution restricts federal

courts to adjudicating actual “cases” and “controversies.” United

Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000). In

order to give meaning to Article III’s “case or controversy

requirement,” the courts have developed “justiciability doctrines,”

such as the “ripeness” doctrine. Id. (citation omitted).

“Ripeness separates those matters that are premature because the

injury is speculative and may never occur from those that are

appropriate for judicial review.” Id. 

Former § 212(c) (codified as 8 U.S.C. § 1182(c)) literally

applied only to exclusion proceedings, but it has been interpreted

to allow permanent resident aliens to apply to the Attorney General

for discretionary waiver of deportation. See INS v. St. Cyr, 533

U.S. 289, 295 (2001) (discussing the history of § 212(c)).

Osayande has no need to seek a waiver of deportation unless the INS

actually commences deportation or removal proceedings against him.
No. 02-11090

-3-

** Osayande would in any event be ineligible for § 212(c)

relief. That statute provided that the waiver of deportation

does not apply to an inmate who has “been convicted of one or

more aggravated felonies and has served for such felony or

felonies a term of imprisonment of at least 5 years.” 

See 8 U.S.C. § 1182(c) (repealed); Goonsuwan v. Ashcroft,

252 F.3d 383, 384 n.1 (5th Cir. 2001). At the time Osayande

filed the instant § 2241 petition, he had served approximately

seven years of his drug-trafficking sentences. The INA’s

definition of “aggravated felony” includes drug-trafficking

crimes. See 8 U.S.C. § 1101(a)(43)(B).

Because this has not occurred, his § 212(c) claim is not ripe for

review and is not justiciable.**

The respondents also contend that the district court lacked

jurisdiction over any immigration claim because Osayande is not in

INS “custody” for purposes of 28 U.S.C. § 2241. This is correct.

The mere filing of an INS detainer against a federal prisoner,

without more, does not place that prisoner within INS custody.

See Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538,

540-41 (5th Cir. 2003). 

Osayande’s contention that his detention at a private

correctional facility for INS detainees violates his due process

rights is frivolous. A prisoner has no right under the Due Process

Clause to be housed in a particular correctional facility.

See Olim v. Wakinekona, 461 U.S. 238, 244-45 (1983); Yates v.

Stalder, 217 F.3d 332, 334 (5th Cir. 2000).

Osayande’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Accordingly, the appeal is DISMISSED. See 5TH CIR. R. 42.2. 

APPEAL DISMISSED.