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Hernandez v. Immigration Customs Enforcement

United States District Court, W.D. Oklahoma

May 14, 2019

JUAN HERNANDEZ, Plaintiff,
v.
IMMIGRATION CUSTOMS ENFORCEMENT, Defendant.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 claim.

         I. SCREENING REQUIREMENT

         The 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); 1915(e)(2)(B).

         II. STANDARD OF REVIEW

         To 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).

         Although 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).

         III. PROCEDURAL HISTORY/PLAINTIFF'S ARGUMENTS

         Mr. 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).[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).

         IV. PLAINTIFF IS NOT “DEPORTABLE” UNDER 8 U.S.C. § 1228

         Mr. 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 law.[2] 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).

         One 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.

         V. PLAINTIFF HAS NOT STATED A CLAIM TO COMPEL GOVERNMENT ACTION UNDER 5 U.S.C. §706(1)

         Next, 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. 1:2 ...


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