Sule v. Story

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 5, 1996
• Docket: 95-1494
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS Filed 4/5/96 TENTH CIRCUIT

USMAN SHEHU SULE,

Petitioner - Appellant, No. 95-1494

v. D. Colorado

B. R. STORY, IMMIGRATION & (D.C. No. 95-K-2351) NATURALIZATION SERVICE,

Respondents - Appellees.

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Usman Shehu Sule filed this in forma pauperis pro se petition for a writ of habeas

corpus. He seeks release from custody, a writ of mandamus, and preliminary injunction

against the Immigration and Naturalization Service (“INS”) pursuant to 28 U.S.C.

§§ 2241 and 1361. The district court dismissed the petition for lack of jurisdiction,

finding that Sule was not in INS custody. Sule appeals, contending that the district court

erred in finding it lacked jurisdiction, and in failing to address the due process and equal

protection issues he raised. We affirm.

The facts1 and applicable law are fully set forth in the Recommendation of the

magistrate judge which the district court adopted. R. Vol. I, Tab 10. Having conducted a

de novo review of the legal conclusions, we affirm the dismissal for lack of jurisdiction

for substantially the same reasons.

Additionally, as the magistrate judge noted, no final order of deportation has

issued, nor has any hearing thereon been scheduled. Accordingly, any alleged violation

of constitutional due process and equal protection is both premature and speculative. See

McDonald v. New Mexico Parole Bd., 955 F.2d 631, 633-35 (10th Cir. 1991), cert.

denied, 504 U.S. 920 (1992). AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

Sule disputes one of the recited facts -- that he entered the country in 1990. 1

However, this disputed fact is irrelevant to the jurisdictional determination.

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