Basilio Rivero v. Mark A. Henry, Warden U.S. Immigration & Naturalization Service

50 F.3d 16, 1995 U.S. App. LEXIS 19007, 1995 WL 107313

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 1995
• Docket: 94-55034
• Status: Unpublished

Opinion

50 F.3d 16

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Basilio RIVERO, Petitioner-Appellant,
v.
Mark A. HENRY, Warden; U.S. Immigration & Naturalization
Service, Respondents-Appellees.

No. 94-55034.

United States Court of Appeals, Ninth Circuit.

Submitted March 7, 1995.*
Decided March 13, 1995.

Before: SNEED, POOLE, and BRUNETTI, Circuit Judges.

MEMORANDUM**

Basilio Rivero, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2241 habeas petition. Rivero contends that the Immigration and Naturalization Service (INS) has violated his constitutional rights by refusing to give him an expedited deportation hearing pursuant to 8 U.S.C. Sec. 1252a(d)(1). We review de novo, Meador v. Knowles, 990 F.2d 503, 506 (9th Cir.1993), and affirm.

A federal prisoner must be "in custody" at the time he files his habeas petition. 28 U.S.C. Sec. 2241(c) (1988); Myers v. United States Parole Comm'n, 813 F.2d 957, 958 (9th Cir.1987). A bare detainer letter alone is insufficient to place an alien in INS custody for habeas corpus purposes. Garcia v. Taylor, 40 F.3d 299, 303 (9th Cir.1994).

Here, Rivero filed a Sec. 2241 petition in which he alleged that the INS had placed a detainer against him but that the INS had failed to obtain a legal warrant. Rivero was not "in custody" of the INS at the time he filed his Sec. 2241 habeas petition. See id. Accordingly, the district court lacked jurisdiction to consider Rivero's application for a writ of habeas corpus. See id.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Appellees' motion to file supplemental briefing is granted. We need not consider appellees' arguments, however, because they raise issues that are not before this court

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3