J. THOMAS RAY, Magistrate Judge.
The following Proposed Findings and Recommended Disposition ("Recommendation") have been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
Pending before the Court is a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus filed by Sheldon Dean Christopher Watt ("Watt"), an inmate in the Federal Correctional Institution in Forrest City, Arkansas ("FCI-FC"). Doc. 1. In his habeas papers, he challenges the Bureau of Prisons' ("BOP") denial of a "nearer release transfer" based on an allegedly "erroneous" immigration detainer.
Before addressing Watt's claims, the Court will review the relevant procedural history. According to Watt, he was born in Jamaica but entered the United States when he was three years old. In 1993, when he was twelve years old, his biological parents became naturalized American citizens. Watt claims that, because his parents became American citizens before his eighteenth birthday, he also gained "derivative citizenship" at that time. Doc. 1 at 5, 11, 19; Doc. 13.
In September 2006, Watt was convicted, in the Middle District of Florida, of: (1) conspiracy to assault with intent to rob a United States Post Office employee; (2) assault with intent to rob a United States Post Office employee; (3) use and carrying of a firearm in relation to a crime of violence; (4) receipt, possession, concealment or disposal of unlawfully obtained United States mail; and (5) possession of an unlawful firearm. United States v. Watt, M.D. Fla. No. 5:06-cr-00032-WTH. On December 28, 2006, he was sentenced to an aggregate imprisonment term of 240 months in the BOP.
On July 25, 2007, the Eleventh Circuit Court of Appeals affirmed Watt's convictions. United States v. Watt, 243 F. App'x 512 (11th Cir. 2007).
On September 11, 2007, the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), sent to the BOP an "Immigration Detainer — Notice of Action." Doc. 6-3. The detainer stated: (1) Watt's "nationality" is Jamaican; (2) an "[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States"; and (3) the document should be "accept[ed] as a detainer," but was "for notification purposes only" and did not "limit [the BOP's] discretion in any decision affecting the offender's classification, work, and quarters assignments, or other treatment which he or she would otherwise receive." Finally, the detainer requested the BOP to notify ICE at least thirty days prior to Watt's release. Id.
On October 8, 2014, while incarcerated at FCI-FC, Watt submitted an "Informal Resolution Attempt" challenging the BOP's denial of his request for a "closer-to-home transfer." Doc. 1 at 19. FCI-FC staff responded that, pursuant to BOP Program Statement 5100.08,
On December, 12, 2014, the BOP Regional Director denied his appeal, stating that the warden had "appropriately addressed [Watt's] concerns," based on BOP Program Statement 5100.08 and Watt's status as a Jamaican citizen, with an ICE detainer for possible deportation lodged against him. The Regional Director stated that, if it was later determined that Watt would not be deported, he would be considered for a nearer release transfer at that time. Id. at 13.
On June 4, 2015, Watt initiated this § 2241 action. He argues that the BOP is improperly denying him a "nearer release transfer" due to the ICE detainer, which allegedly is based on erroneous information that he not a United States citizen. Doc. 1. He argues that the detainer, and the BOP's denial of transfer based on that detainer, violate his constitutional rights as a United States citizen. Doc. 10 at 3-5. Respondent contends that Watt's claims are not cognizable in a federal habeas action. Doc. 6.
For the reasons explained below, the Court recommends that Watt's claims be dismissed for lack of jurisdiction.
"The writ of habeas corpus functions to grant relief from unlawful custody or imprisonment." Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988); see 28 U.S.C. § 2241(c)(3) (the "writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States"). The filing of an immigration detainer, merely notifying prison officials that a decision regarding deportation will be made at some future date, does not place a prisoner "in custody" for purposes of challenging that detainer by way of a writ of habeas corpus. Campillo, 853 F.2d at 595.
Watt is not presently in custody on any immigration charges. Rather, he is in BOP custody serving his 240-month federal sentence. He "may not challenge the [immigration] detainer until he is placed in the custody of [ICE], an event which will not occur until [he] is released from his present term of confinement." Id. Therefore, Watt cannot satisfy the "in custody" requirement necessary to establish federal habeas jurisdiction to challenge the validity of the immigration detainer.
The Court also lacks jurisdiction to consider the effect of the immigration detainer on Watt's eligibility for a nearer release transfer.
The Eighth Circuit has held that, if a habeas petitioner is not challenging the validity of his criminal conviction or sentence, or the length of his confinement, a habeas court lacks jurisdiction to grant relief. Spencer v. Haynes, 774 F.3d 467, 469-70 (8th Cir. 2014); Kruger v. Erickson, 77 F.3d 1071, 1073-74 (8th Cir. 1996).
For the reasons that follow, the Court declines to recharacterize Watt's claim as a civil rights action because it is clear that he has not stated a cognizable constitutional claim.
The Supreme Court has made it clear that a prisoner has no constitutional right to incarceration in any particular correctional facility. Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983) ("Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State."); Meachum v. Fano, 427 U.S. 215, 224-25 (1976) ("[T]he Constitution does not . . . guarantee that the convicted prisoner will be placed in any particular prison," and "the Due Process Clause [does not] in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system.").
Instead, the BOP is vested with "broad discretion" in choosing the location of an inmate's imprisonment and in determining if or when an inmate should be transferred from one institution to another. See Fults v. Sanders, 442 F.3d 1088, 1090 (8th Cir. 2006); 18 U.S.C. § 3621(b) (setting forth criteria for BOP to consider in making placement and transfer determinations). Acting within that discretion, the BOP has implemented a policy excluding inmates with immigration detainers from eligibility for "nearer release transfers" because they potentially will be returning to the community outside, rather than inside, the United States upon release. BOP Program Statement 5100.08 ch. 7, p.4 ¶ 2.
Because Watt had no constitutional right to any transfer, much less a "nearer release transfer," the BOP acted well within its discretion in applying its established policy to deny his requested transfer based on its records and the immigration detainer. Moreover, he was afforded the opportunity to protest application of that policy through the BOP's administrative process, and he has not shown that he was treated differently from similarly situated inmates, i.e., other inmates with immigration detainers.
Finally, the Eighth Circuit has expressly held that prison officials may consider an immigration detainer in making discretionary decisions regarding a prisoner's security and custody classification. Perez-Ramirez, 20 F. App'x at 568-69; Belasco, 208 F.3d 217, at *1; Mohammed, 866 F.2d at 260; see Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (parole-violator detainer which adversely affects a federal prisoner's classification and eligibility for rehabilitative programs does not implicate a due process right because "Congress has given federal prison officials full discretion to control these conditions of confinement"). The same rationale applies to the BOP's discretionary decisions regarding transfers.
Thus, this § 2241 habeas action should be dismissed, in its entirety, for lack of jurisdiction.
IT IS THEREFORE RECOMMENDED THAT this Petition for a Writ of Habeas Corpus, Doc. 1, be DENIED, and that this case be dismissed, without prejudice.
First, when there are 48-60 months remaining on Watt's federal sentence, he will be referred for transfer to a BOP facility close to the eventual area of deportation. At that time, ICE can initiate deportation proceedings, and, if it does so, Watt can contest the detainer and advance his derivative citizenship claim. See BOP Program Statement 5111.04 (2006) (Doc. 6-5). If he is unsuccessful, he may seek judicial review of a final order of removal in "the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. § 1252(a)(5) & (b)(2).
Second, federal law provides an administrative process for individuals to apply for derivative citizenship and appeal an unfavorable determination. 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1. Once administrative remedies are exhausted, the individual may seek judicial review in the appropriate District Court. 8 U.S.C. § 1503(a).
Finally, ICE has established a toll-free hotline that individuals may call with general inquiries and concerns about immigration enforcement and allegedly improper detention. See Doc. 6-6 and https://www.ice.gov/contact/detention-information-line.
