United States District Court, W.D. Oklahoma
ORDER
DAVID
L. RUSSELL, UNITED STATES DISTRICT JUDGE
Mr.
Hernandez, who is currently in state custody serving a state
sentence, initiated this action by filing a Motion to Compel
Agency Action (Doc. No. 1) on April 10, 2019.[1]Therein he moved
the “Court for an injunction compelling the Immigration
and Customs Enforcement Agency to act on Petitioner's
detainer that has been lodged with the Oklahoma Department of
Corrections.” (Doc. No. 1, p. 1). Pursuant to 28 U.S.C.
§ 636(b)(1)(B), the matter was referred to United States
Magistrate Judge Shon T. Erwin for preliminary review. On May
14, 2019, Judge Erwin issued a Report and Recommendation
wherein he recommended that the case be dismissed upon filing
because Mr. Hernandez fails to state a claim. The matter is
currently before the Court on Mr. Hernandez's timely
objection to the Report and Recommendation, which gives rise
to the Court's obligation to undertake a de novo
review of those portions of the Report and Recommendation to
which specific objection is made. Having conducted this
de novo review, the Court finds as follows.
In
support of his motion Mr. Hernandez asserted that he was
convicted of rape in 2012 and that upon his conviction
Immigration and Customs Enforcement (“ICE”)
lodged a detainer against him. He is currently incarcerated
at the Lexington Correctional Facility. He contends he is
deportable pursuant to 8 U.S.C. § 1228. Citing the
Administrative Procedures Act, 5 U.S.C. §§ 701-706,
Mr. Hernandez asserts that he was convicted of an aggravated
felony and became immediately deportable under 8 U.S.C.
§ 1228, but he has been waiting five years for ICE to
act on his detainer. He argues that “Defendant in this
case, having begun agency action by filing a detainer against
the Plaintiff is required to complete agency action by
bringing the Plaintiff before an Immigration Judge to
conclude the agency action.” (Doc. No. 1, p. 2).
Acknowledging that various courts have rejected requests to
order that ICE deport an individual, Plaintiff argues that no
court has held that ICE can avoid resolution of the detainer.
“Defendants cannot lodge a detainer, admitting the
Plaintiff is deportable, and then refuse to act.”
Id., p. 3.
Judge
Erwin interpreted Mr. Hernandez's pro se filing
as seeking to compel removal, and thus recommended dismissal
of the action because the Court cannot compel the Attorney
General to effect removal of Mr. Hernandez, or any
incarcerated alien, prior to completion of the term of
imprisonment. (Doc. No. 7, p. 4). With regard to
Plaintiff's contention that the Court should rely on 5
U.S.C. § 706(a) to compel ICE to take action, Judge
Erwin concluded that Plaintiff failed to sufficiently allege
that he is “deportable” and further, because he
is not in the custody of Immigration and Customs Enforcement,
the agency could not be compelled to take action toward
Plaintiff's deportation.
In his
objection to the Report and Recommendation Mr. Hernandez
clarifies his request for relief. He argues he is not seeking
a Court order compelling expedited removal. Rather, he seeks
to compel ICE to move forward with his detainer because it
was lodged more than five years ago and the agency has yet to
take any action thereon. He frames the question as,
“[c]an [ICE] place a detainer on a person, alleging
they are deportable, and then not take action on the
detainer?” (Doc .No. 8, p. 2). He further objects to
Judge Erwin's conclusion that he is not deportable as set
forth in 8 U.S.C. § 1228.[2]
Mr.
Hernandez relies on the Administrative Procedures Act
(“APA”), specifically 5 U.S.C. § 706(1),
which permits the Court to “compel agency action
unlawfully withheld or unreasonably delayed.” The APA,
specifically § 702, provides:
Nothing herein (1) affects other limitations on judicial
review or the power of the court to dismiss any action or
deny any relief on any other appropriate legal or equitable
ground; or (2) confers authority to grant relief if any other
statute that grants consent to suit expressly or impliedly
forbids the relief which is sought.
“[T]the
only agency action that can be compelled under the APA is
action legally required.” Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 63 (2004)
(emphasis in original). The undersigned concludes that this
Court lacks jurisdiction over Mr. Hernandez's request in
light of 8 U.S.C. § 1252(g). Further, even if the Court
could exercise jurisdiction over his claim, he cannot
establish that ICE is legally required to take action on the
detainer, given the relevant immigration statutes.
Petitioner
argues he is a “deportable” alien, as defined in
federal immigration statutes because he was convicted under
Oklahoma law of a “crime of moral turpitude” or
an “aggravated felony.” 8 U.S.C. § 1227. 8
U.S.C. § 1228 provides that the Attorney General shall
make provision for special removal proceedings with regard to
aliens convicted of such crimes, “in a manner which
eliminates the need for additional detention at any
processing center of the Service and in a manner which
assures expeditious removal following the end of the
alien's incarceration for the underlying sentence.”
8 U.S.C. § 1228(a)(1). Although section 1228(a)(1)
purports to require the Attorney General to provide such
proceedings, the section also contains a limitation relevant
to the outcome herein, specifically, “[n]othing in this
section shall be construed to create a substantive or
procedural right or benefit that is legally enforceable by
any party against the United States or its agencies or
officers or any other person.”
Id.[3] Most importantly, 8 U.S.C. § 1252(g)
provides:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by
the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this
chapter.
Here
Mr. Hernandez requests that the Court compel the Attorney
General to commence removal proceedings by acting upon the
detainer filed with the State of Oklahoma. Section 1252(g)
strips this court of jurisdiction over such claim. See
Garcia-Cordero v. U.S. Dept. of Justice, 2011 WL
1870208, *2 (S.D. Ga. April 20, 2011)(noting that courts have
applied the “jurisdictional bar to extend to the
decision to refrain from commencing proceedings, adjudicating
cases, or executing removal orders.”); Zundel v.
Holder, 687 F.3d 271, 279 (6th Cir. 2012) (noting the
lack of jurisdiction to consider an inquiry “arising
from the Attorney General's decision to adjudicate (or
not adjudicate) cases”); Carranza v. INS, 277
F.3d 65, 73 (1st Cir. 2002) (holding that a criminal alien
who does not have the right to demand the exercise of
discretion cannot challenge its non-exercise by means of
habeas review). The Court finds, as a result, that it lacks
jurisdiction to consider Plaintiff's request that ICE be
required to take action on his detainer.
Additionally,
numerous courts have concluded that removal proceedings are
not governed by the APA.
For example, incarcerated aliens cannot compel the INS to
hold immediate deportation hearings by way of a petition for
writ of mandamus, See Campos [v. INS], 62 F.3d [311]
at 313-14 [9th Cir. 1995], or under the
Administrative Procedures Act, 5 U.S.C. §§ 701-706,
see Silveyra [v.] Moschorak, 989 F.2d 1012, 1015
(9th Cir.1993) (“no claim under the [APA] because
‘immigration proceedings ... are not governed by the
APA'”)
Guzman v. Swarthout, 2011 WL 4954204, *3 (E.D. Cal.
October. 18, 2011); Prasad v. INS., 2001 WL 1256852,
*2 (N.D. Cal. Oct. 17, 2001); Channer v. Hall, 112
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