BENJAMIN PRIETO, ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 90-6027 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-15) is reported at 913 F.2d 1159. The opinion of the district court (Pet. App. 16-24) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 11, 1990. The petition for a writ of certiorari was filed on October 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court had jurisdiction to entertain petitioners' request for habeas corpus and injunctive relief against the lodging by the Immigration and Naturalization Service of detainer notices at the prisons where petitioners are incarcerated. 2. Whether petitioners have a right under 8 U.S.C. 1252(i) or the Due Process Clause to seek expedited exclusion or deportation proceedings against them. STATEMENT 1. Petitioners are aliens serving criminal sentences in federal prisons. Petitioner Juan Ganem, an inmate at the Federal Correctional Institution at Milan, Michigan (FCI Milan) filed a "petition for writ of habeas corpus and injunctive relief" with the United States District Court for the Eastern District of Michigan. Ganem named as respondents John Gluch, then warden at FCI Milan, the United States Bureau of Prisons (BOP), and INS. /1/ Ganem alleged that INS had filed a detainer notice with the prison officials requesting that INS be notified at least thirty days prior to his release. He further alleged that INS had informed him that it would not hold a deportation hearing until after he was released from his prison confinement, and the detainer would remain in place until that release occurred. Ganem complained that the detainer notice (1) violated his due process rights by adversely affecting his security level in prison, and, therefore, the conditions of his custody, and (2) violated 8 U.S.C. 1252(i), which states: "In the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of conviction." Ganem requested that INS be ordered to execute the detainer notice by conducting an immediate deportation hearing, or, alternatively, that the court expunge the detainer notice. Pet. App. 2-3, 16. The district court allowed other inmates at FCI Milan, who alleged that they too were subject to INS detainer notices, to join as plaintiffs. Pet. App. 16-17. On the merits, the court then rejected petitioners' claims. The court concluded that two of the issues implicated by petitioners' request for relief -- the existence of district court jurisdiction, and the availability of relief pursuant to 8 U.S.C. 1252(a) -- had been resolved against Ganem in a prior proceeding. Id. at 17-20, citing Juan Ganem-Issa v. INS, No. 86-70424 (E.D. Mich. 1986), aff'd, 825 F.2d 410 (6th Cir. 1987). The court concluded that relitigation of those issues was barred by principles of res judicata. The court also rejected petitioners' only new claim: that 8 U.S.C. 1252(i) gives incarcerated aliens a private right of action to accelerate their deportation proceedings. Relying on Gonzalez v. U.S.I.N.S., 867 F.2d 1108 (8th Cir. 1989), the court concluded that Section 1252 "impose(s) a duty on the Attorney General," but does "not vest a right in criminal aliens" to have a speedy deportation hearing. Pet. App. 22-24. 3. The court of appeals affirmed. The court first held that the district court had correctly applied the doctrine of res judicata to bar relitiation of petitioners' claims under 8 U.S.C. 1252(a). /2/ Pet. App. 4-5. The court then determined that the district court lacked jurisdiction under 28 U.S.C. 2241(c) with respect to the claims for habeas corpus relief asserted by the petitioners other than Prieto. /3/ In order for Section 2241(c) to provide a source of jurisdiction for petitioners to challenge the INS detainer notices, the court observed, petitioners had to be in the custody of INS. But, the court concluded, the district court had correctly held that the issuance of the INS detainer notices was not a sufficient exertion of INS authority to bring petitioners within INS custody. Pet. App. 6-7, citing Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988), cert. denied, 109 S.Ct. 2105 (1989). Although noting that a different view of INS detainer notices was suggested in Vargas v. Swan, 854 F.2d 1028, 1032 (7th Cir. 1988), the court found that case distinguishable because the alien in Vargas was an excludable one who "is arguably in INS custody to some extent." Pet. App. 8. As to petitioner Prieto, the government had conceded that the district court had jurisdiction. Pet. App. 11. Accordingly, the court of appeals considered whether 8 U.S.C. 1252(i) provides a private cause of action. Applying the four-factor analysis set forth in Cort v. Ash, 422 U.S. 66 (1975), the court concluded that it does not. The court noted that Section 1252(i) was not enacted for the benefit of criminal aliens; rather it was intended to relieve overcrowding in prisons and to stem the tide of illegal importation of drugs by aliens. Pet. App. 12-13. Because Congress was not "concerned with the rights of criminal aliens but rather with removing such aliens from the country," the court concluded that it would be "anomalous" to allow aliens to complain that INS had violated Section 1252(i) by delaying their deportation hearings. Pet. App. 13-14. ARGUMENT 1. Petitioners initially contend (Pet. 9-11, 13-19) that the court of appeals erred in concluding that the habeas corpus statutes do not provide jurisdiction to attack the INS detainer notices. We recently addressed a virtually identical claim in our brief in opposition (at 5-7) in Campillo v. Sullivan, cert. denied, 109 S.Ct. 2105 (1989) (No. 88-6563). /4/ As we explained in that brief, an INS detainer notice does not put an incarcerated alien "in custody" for purposes of triggering habeas corpus jurisdiction. Petitioners' present custody arises from their criminal convictions, not any action by INS, and there is no basis for finding that the INS detainer notice is a form of future custody that justifies habeas corpus proceedings. INS has not entered an order that petitioners are deportable, nor has it even exercised its authority under 8 U.S.C. 1252(a) to take petitioners into its custody for proceedings. Cf. Maleng v. Cook, 109 S. Ct. 1923 (1989) (per curiam) (inmate is not in a State's custody under a sentence that has been fully served merely because it could be used to enhance future sentences, but he is in a State's "custody" when the State issues a detainer to another jurisdiction to secure the inmate's service of a prior criminal sentence that has actually been imposed by that State). Here, INS has simply served notices that request prison officials to tell it when the aliens' sentences are completed. /5/ For the reasons discussed in our brief in Campillo (at 9), the Seventh Circuit's decision in Vargas v. Swan, 854 F.2d 1028 (1988), is not inconsistent with the jurisdictional theory articulated by the court of appeals in this case; the court in Vargas stopped short of expressing a view as to the precise impact of an INS detainer notice on an alien's custodial status. Id. at 1032. Nor does the court of appeals' decision here conflict with Guti v. INS, 908 F.2d 495 (9th Cir. 1990), where the Ninth Circuit reversed a district court's conclusion that an incarcerated alien's challenge based on an INS detainer notice was frivolous and remanded for further proceedings. A complaint may not be so devoid of merit as to warrant dismissal as frivolous (the situation in Guti), yet may ultimately warrant dismissal for failure to state a claim upon which relief may be granted. Neitzke v. Williams, 109 S. Ct. 1827, 1833 (1989). Finally, we note that this Court's review is not warranted for the additional reason that the jurisdictional issue raised by petitioners is of no great practical significance. Aliens can, and generally do, find jurisdiction to assert claims similar to those asserted here through a petition for mandamus, or, perhaps, under 8 U.S.C. 1329 or 28 U.S.C. 1331. Aliens are quite creative at discovering ways to have their claims heard on the merits; the particular jurisdictional ruling at issue does not wholly bar the doors of the federal courts. 2. Petitioners also renew their contentions that 8 U.S.C. 1252(i) provides them with a private cause of action to seek expedition of their deportation or exclusion hearings, and that INS's failure to expedite their hearings raises due process concerns. a. The decision of the court of appeals rejecting petitioners' claim (Pet. 6-9, 20-23) that 8 U.S.C. 1252(i) provides a private right of action is correct and consistent with the decisions of all other courts of appeals that have addressed that issue. See Orozco v. United States INS, 911 F.2d 539, 541 (11th Cir. 1990) (holding that Section 1252(i) provides no private right of action); Gonzalez v. United States INS, 867 F.2d 1108, 1109-1110 (8th Cir. 1989) (same); Mohammed v. Sullivan, 866 F.2d at 260 n.3 (same in dicta). Section 1252(i) directs the Attorney General to conduct deportation proceedings "as expeditiously as possible after the date of a conviction." As we explained in our brief in opposition in Campillo v. Sullivan (at 10-11), there is no statutory provision that affords a private remedy for incarcerated aliens to expedite their exclusion or deportation proceedings, nor is there evidence that Congress intended to create one. As the court of appeals concluded, Pet. App. 11-14, the language, history, and purposes of Section 1252(i) refute the implication of a private action on behalf of criminal aliens. b. Nor can petitioners find support in the Due Process Clause. Most of the arguments made by petitioners were addressed in our brief in Campillo v. Sullivan (at 9-12). As we noted there, the contention (Pet. 8-9, 15-16) that INS violates due process by failing expeditiously to hold an immigration hearing after sending a detainer notice lacks merit, because neither the immigration laws nor the Constitution gives aliens the right to demand that such a hearing take place at a particular time of their choosing. Likewise, the contention (Pet. 7, 18) that aliens have a due process claim arising out of "more onerous (prison) classifications" imposed as a result of INS detainers founders on the fact that a prisoner has no right to a particular prison classification, Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976), absent mandatory statutory or regulatory provisions entitling them to such a classification. No such provisions exist here. Cf. Hewitt v. Helms, 459 U.S. 460, 471-472 (1983). Petitioners also argue (Pet. 5-7, 9) that they have a due process claim because if an immigration hearing is not conducted while they are serving their criminal sentences, they may be detained by INS for an average of six months while awaiting an immigration hearing thereafter. This Court's review of that speculative claim is surely not warranted; it is not known at this time whether petitioners will ever be subject to significant detention by INS after the completion of their criminal sentences. Moreover, that the total period of an inmate's confinement can be lengthened by delaying an administrative determination until after the completion of the inmate's sentence is implicit in Moody v. Daggett, where the Court rejected an inmate's claim to a "speedy" parole revocation hearing prior to completion of his service of a separate prison sentence. 429 U.S. at 89. At all events, unless INS can be assured of satisfactory conditions of release, the agency has an independent interest in detaining a criminal alien pending completion of his deportation (or exclusion) proceedings, and that interest overrides the interest that the alien has in avoiding such a temporary restraint on his liberty. Cf. Carlson v. Landon, 342 U.S. 524, 537-542 (1952). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General RICHARD M. EVANS ALISON R. DRUCKER Attorneys JANUARY 1991 /1/ In this Court, petitioners have identified the respondent as the United States. /2/ Petitioners do not renew their claims under 8 U.S.C. 1252(a) in this Court. /3/ The government conceded that Prieto was within the district court's habeas jurisdiction as a consequence of his status as an excludable alien whom the INS had paroled into the United States. Pet. App. 11. /4/ We have provided a copy of our brief in Campillo to petitioners here. /5/ As to petitioner Prieto, the government conceded below that he was "in custody" under the broad definition of the habeas statutes by virtue of his status as an excludable alien. For purposes of invoking the habeas statutes, an alien who is allowed to enter the interior of the country only by virtue of INS parole is properly viewed as remaining in INS "custody" for the duration of his stay. Cf. Hensley v. Municipal Court, 411 U.S. 343 (1973); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984). Although the alien in Campillo was also an excludable alien, the distinction between excludable and deportable aliens was not pressed or considered by either party (or by the court of appeals) in that case.