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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KENDALL RYAN,

 Petitioner,

vs. 3:09cv399/LAC/MD

DEPARTMENT OF HOMELAND

SECURITY, et al.

 Respondents.

REPORT AND RECOMMENDATION

This case is before the court upon an amended petition for writ of habeas

corpus filed pursuant to 28 U.S.C. § 2241 (doc. 8). Respondents have filed a

response (doc. 12) and petitioner has not filed a reply despite having been afforded

the opportunity to do so. (Doc. 13).

Background

Petitioner is a native and citizen of Trinidad & Tobago who entered this

country on or about August 21, 2001 near New York, New York. He was convicted

of several felonies in Broward County Florida on June 11, 2004 and is currently in

the custody of the Florida Department of Corrections (“DOC”) with a projected

release date of approximately February 24, 2011. On October 19, 2004, the U.S. 1

1 http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=1&From=list&SessionID=115772526
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Immigration and Customs Enforcement (“ICE”) lodged an immigration detainer with

the Florida DOC. (Doc. 12, exh. B). 

Petitioner filed the instant habeas petition on September 8, 2009 seeking an

order lifting the detainer. He claims that the detainer is improper because it stems

from criminal misconduct petitioner committed as a juvenile. Petitioner admits that

he has not yet been ordered removed, but seeks a court order putting a stop to

future removal proceedings. The respondents have moved to dismiss, assertingthat

this court lacks subject matter jurisdiction to consider the petition, and also that

petitioner’s claim must be presented to the Executive Office for Immigration Review

(“EOIR”) during this removal proceedings under INA § 240, 8 U.S.C. §1229a rather

than to the U.S. District Court in a habeas proceeding.

Jurisdictional Analysis

The Eleventh Circuit has held that the filing of a detainer, standing alone, does

not cause a prisoner to come within the custody of the Immigration and

Naturalization Service (INS), now the Department of Homeland Security or U.S.

Immigration and Customs Enforcement (“DHS” or “ICE”). Orozco v. INS, 911 F.2d

539, 541 (11 Cir. 1990); accord Oguejiofor v. Attorney General, 277 F.3d 1305, 1308

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n. 2 (11 Cir. 2002). This position is in accord with the majority of Circuit Courts. See th

e.g., Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538, 539 (5 Cir. 2003); Garcia v. th

Taylor, 40 F.3d 299, 303-04 (9 Cir.1994); Santana v. Chandler, 961 F.2d 514, 516 (5 th th

Cir.1992); Prieto v. Gulch, 913 F.2d 1159, 1162 (6 Cir.1990); Mohammed v. Sullivan,

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866 F.2d 258, 260 (8 Cir.1989); Campillo v. Sullivan, 853 F.2d 593, 595 (8 Cir.1988). th th

See also Roldan v. Racette, 984 F.2d 85, 88 (2 Cir.1993) (reviewing caselaw). The nd

underlying rationale of these courts is that a detainer, as distinguished from other

INS/ DHS, BICE orders, does not put a "hold" on the alien. Orozco; accord

Galaviz-Medina v. Wooten, 27 F.3d 487 (10 Cir.1994) (discussing caselaw). th

Generally, a detainer is viewed as "an informal process advising prison officials that

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a prisoner is wanted on other pending charges and requesting notification prior to

the prisoner's release." Orozco at 541 n. 2 (citing United States v. Shahryar, 719

F.2d 1522, 1524 n. 3 (11 Cir.1983)). In the immigration context, a detainer usually

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serves only as a notice to prison authorities that the INS or ICE is going to be

making a decision about the deportability of the alien in the future. Campillo, 853

F.2d at 595. The reasoning follows that the detainer does not serve to establish

conclusively either present or future restraints on the prisoner's liberty. Id. Because

there is no actual claim to the alien following the completion of his criminal

sentence, there is no custody.

In 2002, the Eleventh Circuit confirmed its position on "custody" as a result

of an INS detainer, stating:

We rejectPetitioner's argumentthat INS "effectively arrested" Petitioner

by INS's issuance of a Notice of Detainer letter on 16 April 1996. See

Orozco v. INS, 911 F.2d 539, 541 (11 Cir.1990) ("The filing of [a] th

detainer, standing alone, did not cause [the alien] to come within the

custody of the INS."). In a similar way, we cannot conclude that the

filing of the detainer letter combined with the fingerprinting of

Petitioner brings this case into the purview of Alanis-Bustamante, 201

F.3d at 1311 (holding "a removal proceeding has effectively

commenced once INS has served the alien with an order to show cause

and lodged a warrant of detainer against him'): An important difference

exists between the serving of an order to show cause and the

fingerprinting of a person. 

Oguejiofor v. Attorney General, 277 F.3d 1305, 1308 n. 2 (11 Cir. 2002) (discussing th

Alanis-Bustamante v. Reno, 201 F.3d 1303 (11 Cir. 2000)). th

Applying the foregoing to the instant case, the court must conclude that

petitioner is not "in custody" of the DHS or ICE for purposes of 28 U.S.C. § 2241

simply because ICE has lodged a detainer against him. Petitioner does not contend

that the DHS or ICE has served him with an order to show cause or that there is

some other reason he should be considered to be in the custody of ICE.

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Conclusion

Because petitioner is not "in custody" of the DHS or ICE, this court lacks

subject matter jurisdiction under 28 U.S.C. § 2241 to address his claim.

Accordingly, it is respectfully RECOMMENDED:

The amended petition for writ of habeas corpus (doc. 8) be dismissed and the

clerk be directed to close the file. 

At Pensacola, Florida this 8 day of March, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. A copy of objections shall be served

upon all other parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988).

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Case No: 3:09cv399/LAC/MD