United States District Court, D. Maryland
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE
On December 11, 2014, Chris Murray, who is currently incarcerated at the Roxbury Correctional Institution in Hagerstown, Maryland, filed a Petition for a Writ of Mandamus. In his Petition, Murray seeks to compel the Attorney General of the United States to remove him to his home country of Jamaica before completion of his state criminal sentence. Presently pending before the Court is the Government's Motion to Dismiss filed on April 10, 2015. The matter is ready for disposition, and a hearing is not necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Government's Motion to Dismiss is GRANTED.
On July 16, 1993, an Immigration Judge of the United States Department of Justice, Executive Office for Immigration Review, in Baltimore, Maryland issued an Order requiring that Murray be removed to Jamaica, his home country. Eleven days after the date of the Removal Order, on July 27, 1993, Murray was served with an arrest warrant issued by the Circuit Court for Baltimore City, Maryland and was taken into state custody. On January 25, 1994, the Circuit Court found that Murray had violated conditions of probation and sentenced Murray to serve 38 years in state prison, consisting of the remainder of a previously suspended state sentence for attempted murder. On December 11, 2014, Murray filed his Petition for Writ of Mandamus, in which he seeks an order requiring that he be deported to Jamaica pursuant to the Removal Order.
Murray brings this Petition under the Mandamus and Venue Act, 28 U.S.C. § 1361 (2012), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 (2012). He argues that his immediate deportation is mandated by the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 etseq. (2012). Specifically, he asserts that (1) 8 U.S.C. § 1252(c) required his deportation within six months after the July 16, 1993 Removal Order; (2) 8 U.S.C. § 1252(h) would require his deportation even if he was serving time for the same offense that was the cause for the Removal Order; and (3) his incarceration is unlawful under 8 U.S.C. § 1252(i). The cited provisions of § 1252 are outdated, as subsections (h) and (i) no longer exist and subsection (c) no longer contains the language referenced in Murray's Petition. Nevertheless, as discussed below, there is no basis for the relief sought because the analogous provisions in the current INA do not require Murray's immediate deportation.
I. Murray's Surreply
As a preliminary matter, on July 30, 2015, Murray filed a surreply brief without seeking the Court's permission. Under Local Rule 105.2(a), surreply memoranda may not be filed unless otherwise ordered by the Court. Because Murray is proceeding pro se, the Court will permit Murray to file his surreply on this one occasion, but he is advised to review the Federal Rules of Civil Procedure and the Local Rules of this District before filing any briefs in the future.
II. Writ of Mandamus
Murray seeks a writ of mandamus to compel the Government to execute the July 16, 1993 Removal Order so that he can return to Jamaica before the expiration of his state sentence. The Mandamus and Venue Act grants federal district courts "jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. The writ of mandamus is intended to provide a remedy for a petitioner "only if he has exhausted all other avenues of relief and only if the [respondent] owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984). Mandamus is an "extraordinary remedy" and should only be issued if there is a "clear abuse of discretion" or "usurpation of the judicial power." Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 308-09 (1989).
For a writ of mandamus to issue, a petitioner must establish a clear right to the relief sought, a clear duty for the official to perform the act, and no other adequate remedy. In re First Fed. Sav. & Loan Ass'n. of Durham, 860 F.2d 135, 138 (4th Cir. 1988). Murray asserts that three provisions of the INA, 8 U.S.C. § 1252(c), 8 U.S.C. § 1252(h), and 8 U.S.C. § 1252(i) require that he be deported even before the completion of his state sentence. However, not only do the INA provisions analogous to these outdated subsections fail to require such action, but the INA actually prohibits his deportation while he is incarcerated.
A. Section 1252(h)
Shortly after an Immigration Judge ordered that Murray be deported to Jamaica, Murray was taken into state custody on July 27, 1993 and sentenced to 38 years in prison on a state charge on January 25, 1994. Although Murray asserts that the former 8 U.S.C. § 1252(h) requires that he be deported before the conclusion of that sentence, that provision stated the opposite, providing that "[a]n alien sentenced to imprisonment shall not be deported until such imprisonment has been terminated by the release of the alien from confinement." 8 U.S.C. § 1252(h) (1994). Moreover, the analogous provision of the current INA specifically states that "the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment." 8 U.S.C. § 1231(a)(4)(A) (2012). In certain limited situations the Attorney General may exercise discretion to remove an incarcerated individual. See 8 USC § 1231(a)(4)(B). But when an individual is in state custody, the Attorney General may not act unless the chief State official submits a written request that the individual be removed after ...