68 F3d 483 Hamilton v. Immigration & Naturalization Service

68 F.3d 483

Liam Christopher HAMILTON, also known as Liam Thomas
Hamilton, Petitioner-Appellant,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee.

No. 95-1290.
(D.C.No. 95-Z-101)

United States Court of Appeals, Tenth Circuit.

Oct. 23, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

ORDER AND JUDGMENT1


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1

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.2. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Appellant filed a petition for writ of habeas corpus, a writ of prohibition, and a motion to compel basically seeking to quash a detainer action letter issued by the Immigration and Naturalization Service (INS). The district court adopted a magistrate judge's recommendation that Appellant's petition be dismissed for lack of jurisdiction. We affirm the district court's order.

3

Appellant is currently an inmate at the federal correctional institution in Florence, Colorado. He is serving a sentence of seventy-one months imprisonment for possession of firearms and unregistered weapons in violation of 18 U.S.C. 922(g). The sentence was imposed by the United States District Court for the Central District of California.

4

Appellant was born in Los Angeles, California. He has provided the court a copy of his birth certificate as proof of his citizenship. Appellant's Br., Ex. A. He claims to have lived in the United States for approximately two-thirds of his life, and that he has never renounced his American citizenship.

5

Appellant has been housed at various federal correctional institutions while serving his sentence. In the summer of 1993, he was questioned by INS agents at the federal correctional institution at Three Rivers, Texas. Later that year, at the federal correctional institution in Phoenix, Arizona, he was again questioned by INS agents. In the winter of 1994, he was questioned a third time by INS agents at his current place of incarceration in Florence, Colorado. The INS appears to believe that either Appellant's birth certificate is fraudulent, or that he assumed the status of an alien through expatriation. See Appellee's Br. at 2.

6

On December 13, 1994, the INS issued a detainer action letter to notify the federal authorities holding Appellant that the INS had lodged a detainer against him for possible deportation. On January 18, 1995, Appellant filed a petition with the district court for a writ of habeas corpus or mandamus to prohibit the INS from detaining him. On January 31, 1995, he moved the district court for a writ of prohibition or motion to compel. The district court dismissed the petitions for lack of jurisdiction.

7

In reviewing a district court's decision to deny habeas corpus relief, we review findings of fact for clear error and conclusions of law de novo. Brewer v. Reynolds, 51 F.3d 1519, 1522 (10th Cir.1995).


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8

At this time, the INS has merely filed a detainer for possible deportation. An INS detainer notifies prison officials that a decision concerning a particular inmate's potential deportation is pending, and requests that prison officials give the INS advance notice of the inmate's release. See Orozco v. INS, 911 F.2d 539, 541 n. 2 (11th Cir.1990). Mr. Hamilton continues to be in the custody of prison officials because the INS has not yet commenced proceedings to determine his deportability. See Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir.1994), cert. denied, 115 S.Ct. 741 (1995).2 Thus, the issuance of an INS detainer does not sufficiently place Mr. Hamilton in INS custody to make habeas corpus jurisdiction available.

9

Appellant also is unable to invoke federal court jurisdiction under 28 U.S.C. 1361 and 28 U.S.C. 1651. Section 1361 gives district courts jurisdiction to compel an officer of the United States to perform a duty owed to the plaintiff. Section 1651 permits federal courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Neither of these provisions provides an independent basis for jurisdiction in this case. These provisions can be invoked only after a federal court already possesses jurisdiction. Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1355 (10th Cir.1972) (1651 is not an independent grant of jurisdiction; it merely permits federal courts to issue writs in aid of jurisdiction already lawfully acquired); Starbuck v. City and County of San Francisco, 556 F.2d 450, 459 n. 18 (9th Cir.1977) (1361 does not provide an independent ground for jurisdiction); Andrean v. Secretary of U.S. Army, 840 F.Supp. 1414, 1420 (D.Kan.1993) (1361 does not confer an independent basis of federal court jurisdiction).

10

For the above stated reasons the district court is AFFIRMED. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

We found the appellant in Galaviz-Medina was constructively in INS custody because the INS had issued a detainer plus a final order of deportation against him. Id