United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
a state inmate appearing pro se and proceeding
in forma pauperis, has filed this action pursuant to
28 U.S.C. § 1331, seeking to compel government action on
a detainer which has been filed against him. (ECF No. 1).
United States District Judge David L. Russell has referred
this matter to the undersigned magistrate judge for initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B). A
review of the case has been conducted pursuant to 28 U.S.C.
§ 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on
that review, it is recommended that the Court
DISMISS the action for failure to state a
Court must review each complaint in which a prisoner seeks
redress against a governmental entity, officer, or employee
and each case in which a plaintiff proceeds in forma
pauperis. 28 U.S.C. § 1915A(a); 28 U.S.C. §
1915(e)(2). The Court is required to dismiss the complaint or
any portion of the complaint that is frivolous or malicious,
fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. §§ 1915A(b);
STANDARD OF REVIEW
survive preliminary review, Mr. Hernandez must plead
“enough facts to state a claim that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In applying this standard, the court must
assume the truth of all well-pleaded factual allegations in
the complaint and construe them in the light most favorable
to the plaintiff. See Leverington v. City of Colo.
Springs, 643 F.3d 719, 723 (10th Cir. 2011).
a pro se litigant's pleadings are liberally
construed, Haines v. Kerner, 404 U.S. 519, 520
(1972), the court “will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-1174
(10th Cir. 1997). See Yang v. Archuleta, 525 F.3d
925, 927 n. 1 (10th Cir. 2008) (court reviewing pro
se complaint does not “assume the role of
advocate”) (quotations and citation omitted). Further,
a claim is frivolous “where it lacks an arguable basis
either in law or in fact” or is “based on an
indisputably meritless legal theory.” Neitzke v.
Williams, 490 U.S. 319, 325, 327 (1989).
PROCEDURAL HISTORY/PLAINTIFF'S ARGUMENTS
Hernandez was convicted of child sexual abuse in 2013 and has
been incarcerated in the Oklahoma Department of Corrections
(DOC) for over 6 years. (ECF No. 1:1). According to
Plaintiff, upon his conviction, officials at United States
Immigration and Customs Enforcement (ICE) immediately lodged
a detainer against him. (ECF No. 1:1). Plaintiff states that
he has been waiting 5 years for ICE “to take action on
his detainer, ” and has, therefore, filed the instant
lawsuit requesting the Court to compel such action. (ECF No.
1:1-3). See ECF No. 1:2 (stating that ICE officials
are “required to complete agency action by bringing the
Plaintiff before an Immigration Judge to conclude agency
action.”). As support for his claim, Plaintiff states
that he is “deportable” under 8 U.S.C. §
1228 and ICE officials may be compelled to act 5 U.S.C.
§ 706(1) (ECF No. 1).
PLAINTIFF IS NOT “DEPORTABLE” UNDER 8 U.S.C.
Hernandez states that he is “deportable under 8 U.S.C.
§ 1228.” (ECF No. 1:1). Presumably, Plaintiff is
relying on subsection (a) of the statute, which provides for
the removal of aliens who have been convicted of certain
crimes-including crimes of moral turpitude and aggravated
felonies. See 8 U.S.C. §§ 1227(a)(2)(A)(i)
and (iii) & 1228(a). Mr. Hernandez was convicted of child
sexual abuse, which arguably fits the definition of a
“crime of moral turpitude” under Oklahoma
Even so, although the Attorney General is directed to
initiate removal proceedings as expeditiously as possible,
see 8 U.S.C. §§ 1228(a)(3)(A) &
1229(d)(1), the Attorney General cannot be compelled to
effect removal of any incarcerated alien prior to his
release, and a private right of action for enforcement of the
removal statutes is explicitly prohibited. 8 U.S.C.
§§ 1228(a)(3)(B) & 1229(d)(2).
exception exists, however, for aliens convicted of nonviolent
offenses, but this exception applies only when the Attorney
General determines that removal is “appropriate and in
the best interest of the United States.” 8 U.S.C.
§ 1231(a)(4)(B)(i). But in this case, a determination of
whether this exception exists is unnecessary, because again,
the statute precludes a private right of action to force any
state or federal official “to compel the release,
removal, or consideration for release or removal of any
alien.” 8 U.S.C. § 1231(a)(4)(D); see Earle v.
Immigration & Naturalization Serv., No. CIV 01-158
JP/LFG, 2001 WL 37125387, at *2 (D.N.M. Aug. 27, 2001)
(citing cases), subsequently dismissed sub nom.
Earle v. I.N.S, 50 Fed.Appx. 393 (10th Cir. 2002).
Based on the forgoing, the Court should conclude that
Plaintiff has insufficiently alleged that he is
“deportable” under 8 U.S.C. § 1228.
PLAINTIFF HAS NOT STATED A CLAIM TO COMPEL GOVERNMENT ACTION
UNDER 5 U.S.C. §706(1)
Mr. Hernandez asks the Court to order ICE officials to
“conclude the agency action” against him-i.e.-his
removal proceedings-under 5 U.S.C. §706(1) of the
Administrative Procedure Act which allows a court to compel
agency action which has been “unreasonably
delayed.” 5 U.S.C. § 706(1); (ECF No. 1:1-3).
According to Plaintiff, ICE officials have not acted on his
detainer within a “reasonable amount of time”
because the detainer was lodged in 2013. See ECF No.