The opinion of the court was delivered by: CAROL WELLS, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus
filed, pro se, pursuant to 28 U.S.C. § 2241. Jorge
Iniesta-Padilla ("Petitioner"), a federal prisoner, was previously
incarcerated at the Berks County Prison at Leesport, Pennsylvania. He is
currently at the Federal Detention Center awaiting sentencing. Petitioner
is seeking release from federal custody and immediate removal to Mexico
based on alleged due process and speedy trial violations. See
Petition for Writ of Habeas Corpus ("Pet.") at 3. The Honorable Legrome
D. Davis referred this matter to the undersigned for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that
follow, this petition should be denied.
I. BACKGROUND AND PROCEDURAL HISTORY*fn1
Petitioner, a 31 year old native of Mexico, see Pet. at 3,
entered the United States illegally in June 1992. See
Respondent's Brief ("Resp.") at Exh. "A" (Record of
Deportable/Inadmissible Alien). On July 11, 2000, Petitioner was arrested
in Reading, Pennsylvania, and charged with rape, sexual assault, indecent assault, and indecent exposure. See id.
Petitioner, on January 17, 2001, was convicted of the indecent assault
charge and sentenced to a prison term. See id.
As a consequence of this criminal conviction, and because Petitioner
was ineligible for discretionary relief from removal afforded under the
Immigration and Nationality Act, the Bureau of Immigration and Customs
Enforcement ("ICE") deemed Petitioner removable. See id. at Exh.
"B" (Final Administrative Removal Order). Upon completion of his
sentence, on January 15, 2002, Petitioner was removed to Mexico.
See Pet. at 3. However, on or about October 20, 2003 Petitioner
illegally reentered the United States, reportedly for the purpose of
moving his family to Mexico. See id. After a traffic stop on
December 13, 2003, Petitioner was arrested and detained by ICE in
Reading, Pennsylvania. See id. ICE, on December 19, 2004, issued
a Notice of Intent/Decision to Reinstate Prior Order [of Deportation],
which Petitioner signed and elected not to contest. See Pet.
Exh. "A." Petitioner was notified therein that he was removable as an
alien who had illegally reentered the United States after having been
previously removed. See Resp. at Exh. "C." On February 26, 2004,
Petitioner was indicted for his illegal reentry into this country in
violation of 8 U.S.C. § 1326(a) and (b)(2). See USA v.
Iniesta-Padilla, Crim. No. 04-96, Doc. 1 (E.D.Pa. 2004). A bench
warrant for Petitioner was issued simultaneously. See id. at
On March 2, 2004, Petitioner filed the instant writ of Habeas Corpus
seeking immediate removal to Mexico. See Pet. at 1. On or about
March 5, 2004, he was transferred into the custody of the United States
Marshal and ordered temporarily detained, based on the criminal charges.
See Iniesta-Padilla, Crim. No. 04-96, at Docs 4, 5. Counsel was
appointed on March 9, 2004. See id. at Doc. 7. On March 17,
2004, a final detention order was entered, pending disposition of the
criminal charges. See id. at Doc. 12. On April 30, 2004,
Petitioner entered a guilty plea to reentry charges before the Honorable James Knoll Gardner. See id.
at Doc. 21. He will be sentenced on August 4, 2004. See id. at
Petitioner is an alien subject to a final order of removal. Also, he is
admittedly guilty of federal illegal reentry charges and is being
detained while awaiting sentencing. Petitioner, citing due process and
speedy trial violations, by ICE, seeks prompt removal from the United
States. See Pet. at 3. Jurisdiction to hear this matter emanates
from 28 U.S.C. § 2241. Relief would be available under this provision
if Petitioner were "in custody in violation of the Constitution or laws
or treaties of the United States . . ." 28 U.S.C. § 2241. The
scope of review in this instance is limited to determining if ICE has
abrogated its nondiscretionary responsibility to immediately remove
Petitioner or denied him a constitutional right. See Bakhtriger v.
Elwood, 2004 WL 433947 *9 (3d Cir. 2004) (holding that the scope of
review in a habeas case is restricted to determining "questions of
constitutional and statutory law"). This court finds that no
constitutional deficiencies warrant granting habeas corpus relief.
First, Petitioner is no longer in ICE custody. Although, initially, ICE
arrested and detained Petitioner, on or about March 5, 2004, Petitioner
was transferred to the care, custody, and control of the United States
Marshal, for the purpose of prosecuting federal criminal charges.
See Resp. at Exh. "E." He is presently housed at the Federal
Detention Center, pending sentencing on the reentry charge to which he
pled guilty. Thus, ICE does not have the ability to produce Petitioner's
body for deportation or release. This petition, thus misdirected to ICE
must be denied.
Second, Petitioner is not entitled to immediate deportation. ICE held
Petitioner from December 13, 2003 to March 4, 2004, a total of three
months. Such a delay in effectuating deportation subject to a final order is legal. Section 241 of the
INA requires the detention of criminal aliens until removal is
effectuated. See 8 U.S.C. § 1231 (a)(2). To safeguard prisoners
rights, however, after six (6) months of detention subject to a final
order of deportation, procedural safeguards must be followed. See
Zadvydas v. Davis, 533 U.S. 678 (2001) (noting that the
post-removal period detention statute, read in light of the
Constitution's demands, implicitly limits an alien's detention to a
period reasonably necessary to bring about that alien's removal from the
United States, and does not permit indefinite detention). Petitioner's
period of time in ICE custody was not long enough to trigger these
safeguards. Hence, this court finds no statutory or constitutional
Petitioner further alleges that his right to a speedy trial has been
violated by ICE's detention. However, this Sixth Amendment right is not
applicable to removal, a civil proceeding. See U.S. v. Schiffer,
836 F. Supp. 1164 (E.D. Pa. 1993) (citing that protections afforded by
the Sixth Amendment are not available in a civil case); see also U.S.
v. Dyer, 325 F.3d 464 (3d Cir. 2003) (noting that civil detention
by the INS did not trigger the Speedy Trial Act), cert. denied,
124 S.Ct. 457 (2003). Furthermore, the docket reflects that Petitioner's
criminal case is progressing appropriately; sentencing is scheduled to
occur in August 2004.
Next, Petitioner claims that ICE denied his due process rights inasmuch
as he was "purposely lied to and misled" regarding the timing of his
removal to Mexico. See Pet. at 3. Petitioner states that he has
been prejudiced and his family inconvenienced and economically
disadvantaged as a result of the delay in advising him that he would be
prosecuted for illegally reentering the country. See id. This
court finds no federal statutory or constitutional violation. For Petitioner to raise a viable due process cause of action, he must
prove that ICE, without notice and procedural protections, deprived him
of some constitutionally protected interest. See Cospito v.
Heckler, 742 F.2d 72, 80 (3d Cir. 1984). Petitioner's claim fails,
however, because he had no statutory or constitutional interest in
knowing precisely how long he would be detained pending removal or to be
advised immediately whether or not criminal charges ultimately would be
lodged for his illegal behavior. See Pet. at 3. Petitioner's
claim that he was intentionally misled by the ICE is factually
unsupported. Rather, on February 25, 2004, the Immigration Office within
the Berks County prison advised Petitioner's wife that they intended to
prosecute Petitioner. Thus, ten (10) months before the December 16, 2004
order of removal was executed and one day before the indictment was
handed down, Petitioner and/or his family had reason to believe he would
not be removed immediately.
Moreover, Petitioner has not demonstrated that any harm resulted from
his mistaken belief that he would be removed to Mexico in avoidance of
criminal prosecution. See U.S. v. Lovasco, 431 U.S. 783, 790
(1977) (holding that proof of prejudice is generally a necessary, though
not a sufficient, element of a due process claim). While unfortunate, the
dire circumstances that have befallen Petitioner's family resulted from
his improvident decision to break the law by reentering this country
without prior approval of the government and not from any governmental
dereliction. Thus, Petitioner's due process claim is unpersuasive and
Finally, by pleading guilty to a criminal count of illegal reentry,
Petitioner has effectively extinguished any statutory or constitutional
right to prompt deportation. See Parke v. Raley, 113 S.Ct. 517
at 520 (U.S. Ky., 1992); see also Libretti v. U.S.,
116 S.Ct. 356 at 357 (U.S. Wyo., 1995) ("defendant acknowledged that by
pleading guilty, he waived various constitutional rights, including the right to a jury trial and speedy trial). Illegal Reentry After
Deportation is a crime punishable by a term of imprisonment as high as
twenty (20) years. See 8 U.S.C. § 1326 (b). Until
Petitioner's sentence is pronounced in August 2004, and any required
sentence served, his continued incarceration is legal and warranted in
the interest of justice. Accordingly, I make the following: