Plaintiff-Appellant Duaut Duamutef, pro se, аppeals from a judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge) entered May 21, 2003, dismissing Duamutefs petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and for a writ of mandamus pursuant to 28 U.S.C. § 1361.
BACKGROUND
A. Duamutefs State Conviction and the Ensuing Deportation Proceedings
Duamutef, a native and citizen of Jamaica, entered the United States in 1980. Four years later, in the Supreme Court of New York, New York County, Duamutef was convicted after a jury trial of murder in the second degree, in violation of section 125.25 of the New York Penal Law. He was sentenced tо a term of 15 years to life imprisonment.
As a result of that conviction, in 1993, while Duamutef was serving his sentence, the Immigration and Naturalization Service (“INS”) 1 initiated deportation proceedings against him by serving him with an order to show cause. The INS alleged that Duamutef was deportable pursuant to sections 241(a)(1)(B) and 241(a)(2)(A)© of the Immigration and Nationality Act of 1952 (“INA”), then codified at 8 U.S.C. § 1251(a)(1)(B), (a)(2)(A)®, for entering the United States without inspection and for having been convicted of “a crime involving moral turpitude committed within five years of entry and sentenced to confinement or hav[ing] been confined therefor in a prison or correctional institution for one year or longer.”
On June 16, 1994, based on the INS’s charges (which were not contested by Dua-mutef), an immigration judge (“IJ”) ordered Duamutef deported to Jamaica. The IJ’s order indicates that Duamutef waived his right to file an appeal with the Board of Immigration Appeals (“BIA”). As a result, the deportation order became final when it was issued on June 16. The INS filed a detainer with the state authorities in the event that Duamutef is granted a discretionary release. 2
B. Duamutefs CPDO Status
In 1997, Duamutef completed the minimum term of his stаte sentence and became eligible for parole. The New York State Parole Board (the “Parole Board”) denied Duamutefs request for parole, stating that his release would be “incompatible with the interest of society” in light of “the severity of the instant offense.” The Parole Board did, however, grant Duamutef
Under New York state law, once an inmate who is subject to deportation by the INS has served his minimum period of incarceration, the Parole Board “may consider, as a factor warranting earlier release, the fact that such inmate will be deported, and may grant parole to such inmate conditioned specifically on his prompt deportation.” N.Y. EXEC. LAW § 259-i(2)(d)(i) (McKinney 2004). A CPDO is not to be issued unless the Parole Board has received assurance from the INS that (i) upon the inmate’s release from state custody, “an order of deportation will be executed” or deportation proceedings “will promptly be commenced” and (ii) the inmate will not be released from INS custody, except as a result of his deportation, “without providing the board a reasonable opportunity to arrange for execution of its warrant for the retaking of such parolee.” Id. An inmate who is granted a CPDO is not released to parole supervision; rather, he is to be “delivered to the custody” of the INS. Id. § 259-i(2)(d)(ii). In practice, according to the New York State Division of Parole, there is no INS holding facility to which inmates like Duamutef are delivered upon the issuance of a CPDO. Instead, once the Division of Parole informs the INS that an inmate is available to be transferred into INS сustody, “it is ... the responsibility of the INS to come to the facility” and take the inmate into custody.
Despite having been alerted to Duamu-tefs CPDO status, the INS did not take him into custody. As a result, the Parole Board revoked Duamutef s CPDO when he reappeared before it in June 1999. Two years later, the Parole Board reinstated the CPDO but again denied Duamutef discretionary release. In a decision dated July 2, 2001, the Parole Board advised Duamutef of its specific reasons for denying him parole:
Your crime of conviction ... involved you shooting a man 6 to 8 time[s] causing his death. Yоur actions demonstrate how you value human life. During the interview[,] you never answered the board[’]s questions about what you have learned from your prison experience nor showed any remorse for the victim. You refused to accept responsibility for the crime for which you were convicted. This panel is aware of your positive programming and your clean disciplinary record, but the cold blooded nature of the instant offense and your inability to demonstrate how you have changed ... lead[ ] this panel to conclude you are not reаdy for community reentry.
According to Duamutef, he appeared before the Parole Board for a fourth time on July 16, 2003 and was again granted a CPDO.
Although the INS is aware of Duamu-tef s status, it has not yet accepted custody of him under the terms of the CPDO. The government explains that, as a matter of standard policy, the INS will not “accept custody of a deportable alien from the state until the alien is under a final order of deportation and it is possible to immediately execute the deportation order.” In this case, the INS is not prepared to immediately deport Duamutef because it is still in the process of obtaining a necessary travel document for him. According to the government, without that document, Jamaica will not accept Duamutef for repatriation. As a result, Duamutef remains in the physical custody of the New York State Department of Corrections, serving his prison sentence.
Prior to filing the instant petition in federal court, Duamutef made several un
C. Procedural History
In February 2002, Duamutef,
pro se,
initiated the instant action against the INS, challenging his continued confinement by state authorities and seeking an order compelling the INS to execute the final order of deportation issued against him. The District Court construed Dua-mutefs petition, originally styled as a 28 U.S.C. § 2254 habeas petition, as both a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and a petition for a writ of mandamus under 28 U.S.C. § 1361.
3
See Duamutef v. INS,
No. CV-02-1345,
In an order dated May 14, 2003, the District Court dismissed the petition, holding that (i) it lacked jurisdiction to review Duamutefs § 2241 habeas claim because he was not in the custody of the INS, and (ii) Duamutef was not entitled to mandamus relief under § 1361. As to its habeas jurisdiction, the District Court acknowledged that in
Simmonds v. INS,
Here, Duamutef is subject to a final order of removal as well as a detainer, and, as in Simmonds, his subsequent confinement by the INS is required by statute. However, even under Sim-monds, constructive custody is only available insofar that a petitioner is challеnging the future confinement; jurisdiction would, therefore, exist to review Duamutef s petition only to the extent it challenges the prospective INS custody. However, Duamutef is neither challenging his final order of removal nor his eventual INS confinement. He is challenging his current confinement — by the state authorities — claiming that his current confinement is the result of INS inaction.
Id. at *3.
The court disposed of Duamutef s mandamus petition because it found that he had not established a “clear right to the relief sought,” namely, his immediate deportation by the INS.
Id.
(internal quotation marks omitted). Indеed, the court observed that under 8 U.S.C. § 1231(a)(4)(A), “ ‘the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment’ ” and, in any event, that § 1231(a)(4)(D) “specifically disallows a private cause of action to compel the Attorney General to deport a convicted alien prior to completion of the sentence.”
Duamutef,
The District Court’s rejection of both claims was buttressed by its conclusion that a CPDO does not constitute a “release” under the INA. Id. at *4. This is so, according to the District Court, “[bjecausе the CPDO is contingent on the INS accepting custody and deporting the prisoner.” Id. Unless and until that happens, “the prisoner is still serving the state sentence.” Id. Although the District Court acknowledged that “Duamutef s frustration at the glacial pace of the INS attempts to arrange for his travel documents may be understandable,” 5 the court found that the INS had no obligation to effect Duamutef s deportation absent his release from state prison. Id. at *5. The court specifically noted that Duamutef s status could not “be characterized as the result of unintended bureauсratic limbo” because “[t]he Parole Board — undoubtably aware that granting Duamutef discretionary release would result in the INS taking custody of Duamu-tef — has specifically refused to grant Dua-mutef discretionary release citing his lack of remorse and continued refusal to take responsibility for his crime.” Id. Judgment was entered on May 21, 2003 and Duamutef filed a timely notice of appeal on June 23, 2003.
DISCUSSION
On appeal, Duamutef asserts that the INS has violated his due process, equal protection, and Eighth Amendment rights by subjecting him to indefinite incarceration pending deportation. In addition, he argues that the INS, in failing to deport him once he was issued a CPDO, has not
We review questions of subject matter jurisdiction
de novo. See United States v. White,
I. WE NEED NOT RESOLVE WHETHER DUAMUTEF IS IN INS CUSTODY
Under 28 U.S.C. § 2241(c)(3), a federal court is authorized to grant a habeas petition where a prisoner has established that he is “in custody in viоlation of the Constitution or laws or treaties of the United States.” As we explained in
Simmonds,
this custody requirement is a “jurisdictional prerequisite” for the granting of a § 2241 petition.
The District Court’s dismissal of Duamutefs habeas petition turned principally on the question of whether Duamutef could be viewed as being in the custody of the INS for habeas purposes given that: (i) a final order of deportation has been issued; (ii) the INS has filed a detainer with state officials; and (iii) the New York State Parole Board has granted Duamutef a CPDO.
Duamutef,
While we agree that Simmonds does not, in light of its facts, answer the specific custody question presented in this case, we are reluctant to adopt the District Court’s holding that the principles driving the Simmonds holding could not be extended to a case like Duamutefs. We need not resolve this complicated question of whether Duamutef is in INS custody because we find that there is a more straightforward jurisdictional basis for affirming the dismissal of Duamutefs claims.
II. THE DISTRICT COURT LACKED JURISDICTION OVER DUAMU-TEF’S CLAIMS
A. Duamutef Has Not Been “Released” from State Detention
At present, Duamutef remains in state custody, serving time for a second degree murder conviction. Although he completed the minimum term of his 15-years-to-life sentence and is now parole-eligible, the
The New York State Parole Board has, however, granted Duamutef a CPDO. As outlined supra, under N.Y. Exec. L. § 259 — i(2)(d)(i), the Parole Board may grant an inmate a CPDO where it receives assurances from the INS (a) that deportation proceedings will be promptly commenced and (b) that, if the inmate is not deported, he will be returned to the state’s custody. New York has not yet released Duamutef into the physical custody of the INS, though, because, according to the government, the latter agency has been unable to obtain necessary travel documents from Jamaica.
The law is clear that while Duamutef is still serving his state sentence, the Attorney General is under no obligation to execute a deportation order. Although 8 U.S.C. § 1231(a)(1)(A) provides that “the Attorney General shall remove the alien from the United States within a period of 90 days” from the date that an alien is ordered removed, subsection (a)(l)(B)(iii) clarifies that, for persons such as Duamutef who are otherwise “dеtained or confined,” the “removal period” referenced in (a)(1)(A) does not commence until “the date the alien is released from detention or confinement.” (emphasis added). Indeed, under § 1231(a)(4)(A), “the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment.”
Our determination of Duamutefs status — and of the Attorney General’s obligations with respect to him — turns, then, on whether the Parole Board’s grant of a CPDO to Duamutef can be characterized as a “release” from state custody where, as here, the prisoner has not been delivered to (or retrieved by) the INS. It is clear that granting an inmate standard parole or discretionary release qualifies as a “release” for purposes of § 1231.
See
8 U.S.C. § 1226(c)(1) (directing the Attorney General to “take into custody” any alien who, by virtue of having committed a particular (specified) crime is inadmissible or deportable “when the alien is released [from imprisonment], without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may bе arrested or imprisoned again for the same offense”); 8 U.S.C. § 1231(a)(4)(A) (explaining that “[p]arole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal”);
cf. Simmonds,
Whether a conditional grant of parole, such as the CPDO granted to Duamutef in this case, is a “release” is a question that we have not yet had occasion to address. The district courts in this circuit that have addressed this question have uniformly rejected the argument that the mere grant of a CPDO constitutes a “release” from state custody. In
Cuomo v. Barr,
As can be seen, CPDO is a special variety of parole. While the inmate may be otherwise eligible for parole release inasmuch as he has completed the minimum period of imprisonment, he is not being released pursuant to the statutory provisions applicable thereto, but rather is to be “paroled” only to the custody of the INS. If the INS releases him,... then he is not released to ordinary parole supervision under the auspices of the New York State Division of Parole. Rather, he is returned to the Department of Correctional Services ... facility, where he may be considered for so-called ordinary parole, or held for the full term of his maximum period of court-imposed incarceration.
Id.
at 328 (citations omitted). In
Cepeda v. INS,
We agree with the reasoning of these cases and hold that the mere grant of a CPDO is not a “release” from state custody under the INA. Until Duamutef is released by the state, and the 90-day removal period specified in § 1231(a)(1)(A) is triggered, the pace at which the Attorney General proceeds to take Duamutef into custody and execute the removal order is within his discretion and thus beyond mandamus or habeas review.
B. Mandamus Jurisdiction
Dismissal of Duamutefs § 1361 petition was required because jurisdiction under the mandamus statute is limited to actions seeking to compel the pеrformance of a
nondiscretionary
duty.
See Heckler v. Ringer,
The District Court also lacked jurisdiction over Duamutefs mandamus claim under 8 U.S.C. § 1252(g), which provides that “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
C. Habeas Jurisdiction
The discretionary nature of the Attorney General’s decisions concerning its assumption of custody and removal of Duamutef also bars the District Court’s jurisdiction over Duamutefs habeas petition. That is, Duamutef has not satisfied the requirements of § 2241 because he has not alleged any constitutional or statutory right to immediate deportation. Until Duamu-tef is “released” from the New York state prison, the Attorney General is under no obligation to take him into custody or to execute his deportation order. As we explained in
Sol v. INS,
Finally, as the District Court observed, Duamutef lacks standing to assert either of these claims under § 1231— which establishes the 90-day removal period — because subsection (a)(4)(D) clearly states that “[n]o cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for- release or removal of any alien.”
See de Jesus Calle v. INS,
No. 03 CV 5566,
CONCLUSION
For the foregoing reasons, we hold that the CPDO granted to Duamutef does not qualify as a “release” for purposes of the INA and, as such, the decision of whether and when to execute Duamutefs deportation order is entirely within the Attorney General’s discretion. Accordingly, we conclude that the District Court lacked subject matter jurisdiction for both Duamu-tefs § 1361 mandamus claim and for his
Notes
. Pursuant to the Homeland Security Act of 2002, Pub.L. 107-296 § 441, 116 Stat. 2135 (2002); 6 U.S.C. § 202(3), on March 1, 2003, the INS ceased to exist as an independent agency within the Department of Justice and its functions were transferred to the Department of Homeland Security. The United States Immigration and Customs Enforcement ("ICE”), a bureau within the Dеpartment of Homeland Security, now bears responsibility for enforcing the immigration laws. See Immigration and Customs Enforcement ("ICE”) Fact Sheet (Mar. 31, 2004), available at http://www.ice.gov/graph-ics/news/factsheets/iceFS033104.htm. To be consistent with the District Court order and because the rulings at issue in this case were made when the agency was still the INS, we refer to the relevant agency as the INS in this opinion.
. Oddly, neither of the parties filed a copy of the detainer notice with the court.
. In light of the arguments asserted and the relief sought, the District Court’s construction of Duamutefs petition seems apрropriate.
See
28 U.S.C. § 2241(c)(3) (authorizing issuance of writ of habeas corpus to prisoner being held "in custody in violation of the Constitution or laws ... of the United States”); 28 U.S.C. § 1361 (providing cause of action in federal court "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff”). In respect of the § 2241 claim, however, it is not clear that the District Court followed the proper procedures for such a recharacterization.
See Simon v. United States,
. In 1996, Congress amended the INA to add new provisions governing judicial review of immigration orders.
See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”), Pub.L. No. 104-208 § 242, 110 Stat. 3009-546 (1996) (codified as amended at 8 U.S.C. § 1252). Where the old statute referred to orders of "deportation,”
. According to Duamutef, he hаs spent more time on the INS’s CPDO list, awaiting deportation, than any other prisoner in the State of New York.
. Duamutef asserts that the INS has, through its imposition of a'detainer, "purposely instituted a permanent block to petitioner's discretionary release [by] the Parole Board.” There is nothing in the record to support Duamu-tef's claim that the Parole Board now lacks the authority to grant him a discretionary release.
. As noted
supra,
Duamutefs order of deportation became final on June 16, 1994. Although 8 U.S.C. § 1252(g) was not adopted until 1996 and did not become effective until April 1, 1997, Congress еxplicitly stated that the provision ' applies] without limitation to claims arising from all past, pending and future exclusion, deportation or removal proceedings.” IIRIRA § 306(c)(1),
. In light of our holding, we need not reach the question of whether § 1252(g)’s jurisdictional bar extends to habeas cases. The Supreme Court has not explicitly addressed this issue.
See Zadvydas
v.
Davis,