RODRIGUEZ v. IMMIGRATION AND NATURALIZATION SERVICE

3:04CV1329(WWE).

2005 | Cited 0 times | D. Connecticut | October 5, 2005

1 The Immigration and Naturalization Service has beenabolished and its enforcement functions have been transferred tothree separate bureaus within the Department of Homeland Security("DHS"). However, the Court refers to the respondent as INS.

RULING ON PETITION FOR MANDAMUS RELIEF

Petitioner, Marcio Rodriguez, a native of Portugal, is servinga state sentence in state prison for burglary in the thirddegree. A detainer was placed on petitioner based on hisconviction, but the Immigration and Naturalization Service("INS") has not yet begun removal proceedings against him.Petitioner, proceeding pro se, seeks a writ of mandamuscompelling the respondent to lift the detainer, or to hold aremoval hearing on any claims it may have against him. Becausepetitioner has no clear right to this relief, the petition isdenied.

I. Discussion

A writ of mandamus is available only when the applicant has aclear right to the relief sought, the respondent has a plainlydefined duty to act, and no other remedy is available.Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir.1976). Congress has specifically provided that the INS' authorityto expedite removal proceedings for incarcerated aliens, anauthority that covers detainers and expedited removal hearings,is discretionary. 8 U.S.C. § 1228(a)(3)(B). Accordingly, a writof mandamus is not available to compel such discretionary acts.

Petitioner also suggests that the effect of the detainer is todeny him the opportunity to participate in the TransitionalSupervision ("TS") or any other release program.2 Heclaims that the detainer thereby interferes with his libertyinterest. However, a detainer issued by INS regarding an alienincarcerated for an aggravated felony is simply a notification tothe prison, and does not affect the prisoner's status. Waldronv. INS, 17 F.3d 511, 516 (2d Cir. 1994). Further, placement inTS or RPP is entirely discretionary. Conn. Gen. Stat. §§18-100(e) & 18-100c. Accordingly, the petition will be denied. II. Conclusion

For the foregoing reasons, the petition is hereby denied. Theclerk is instructed to close this case.

So ordered.

1 The Immigration and Naturalization Service has beenabolished and its enforcement functions have been transferred tothree separate bureaus within the Department of Homeland Security("DHS"). However, the Court refers to the respondent as INS.

RULING ON PETITION FOR MANDAMUS RELIEF

Petitioner, Marcio Rodriguez, a native of Portugal, is servinga state sentence in state prison for burglary in the thirddegree. A detainer was placed on petitioner based on hisconviction, but the Immigration and Naturalization Service("INS") has not yet begun removal proceedings against him.Petitioner, proceeding pro se, seeks a writ of mandamuscompelling the respondent to lift the detainer, or to hold aremoval hearing on any claims it may have against him. Becausepetitioner has no clear right to this relief, the petition isdenied.

I. Discussion

A writ of mandamus is available only when the applicant has aclear right to the relief sought, the respondent has a plainlydefined duty to act, and no other remedy is available.Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir.1976). Congress has specifically provided that the INS' authorityto expedite removal proceedings for incarcerated aliens, anauthority that covers detainers and expedited removal hearings,is discretionary. 8 U.S.C. § 1228(a)(3)(B). Accordingly, a writof mandamus is not available to compel such discretionary acts.

Petitioner also suggests that the effect of the detainer is todeny him the opportunity to participate in the TransitionalSupervision ("TS") or any other release program.2 Heclaims that the detainer thereby interferes with his libertyinterest. However, a detainer issued by INS regarding an alienincarcerated for an aggravated felony is simply a notification tothe prison, and does not affect the prisoner's status. Waldronv. INS, 17 F.3d 511, 516 (2d Cir. 1994). Further, placement inTS or RPP is entirely discretionary. Conn. Gen. Stat. §§18-100(e) & 18-100c. Accordingly, the petition will be denied. II. Conclusion

For the foregoing reasons, the petition is hereby denied. Theclerk is instructed to close this case.

So ordered.

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