United States District Court, D. Maryland
BILLY G. ASEMANI, #339-096 a/k/a Ghafour Asemani Petitioner,
DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT, JOHN WOLFE, Respondents
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
December 22, 2016, self-represented Petitioner Billy G
Asemani filed this Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241, challenging the 2007
Immigration Detainer filed against him by the Department of
Homeland Security, Immigration and Customs Enforcement
HCE") pursuant to a June I, 2004 order of removal issued
by an Immigration Judge. (ECF I). For reasons to follow, the
Petition will be DISMISSED with prejudice for lack of
is a native and citizen of Iran. On April 26, 2006, he
pleaded guilty to attempted second-degree murder in the
Circuit Court for Howard County and was later sentenced to
thirty years of incarceration. Asemani is a Maryland state
inmate presently incarcerated at Eastern Correctional
Institution in Westover, Maryland. His lengthy litigation
history concerning his nationality and immigration status has
been exhaustively examined in prior cases in this and other
Petition, Asemani asserts the Immigration Detainer
inaccurately states that an investigation has been initiated
to determine whether he is subject to removal from the United
States, when if fact he has been ordered deported or removed.
(ECF 1, ECF 1-1). Asemani claims this
distinction is critical to his ability to challenge the
removal order against him in collateral proceedings.
Id. He avers the sole purpose of the Petition
"is for the detainer against him to portray the true
nature of where he stands with respect to the long-concluded
removal proceedings"' (ECF No. 1 at p. 3).
courts have jurisdiction to entertain an application for
habeas relief only if a petitioner is "in custody"
in violation of the Constitution or laws or treaties of the
United States. 28 U.S.C. S 2241(c). Asemani's Petition
fails to satisfy these requirements. First, Asemani does not
claim the detainer violates a constitutional provision,
federal law, or treaty, so as to state claim for habeas
relief. Second, the habeas petitioner be "in
custody" under the conviction or sentence under attack
at the time his petition is filed. Maleng v. Cook,
490 U.S. 488, 490-91 (1989). Absent this custody, the court
has no jurisdiction to grant the writ. Orozco v.
INS, 911 F.2d 539, 541 (11th Cir. 1990). The burden of
proving subject matter jurisdiction falls on the plaintiff:
McNutl v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982), and if the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss
the action." Fed.R.Civ.P. 12(h)(3).
in this Circuit have held that an immigration detainer does
not subject a prisoner serving a criminal sentence to ICE
custody. See e.g. Ogunde v. Holder, No. 1:13cv484
(JCC), 2013 WL5504417 at *2-3 (E.D. Va. October 31, 2013);
see Sewell v. Stephens, No. 5T0-HC-2247-FL, 2011 WL
2746122, at *1 n. (E.D. N.C. July 13, 2011) ("An ICE
detainer, without more, does not satisfy (2241's 'in
custody' requirement."); Richard v. INS,
CIA No. 0:11-150-JFA-PJG, 2011 WL 5876916. at *1 (D.S.C.
Nov.22, 2011) C[T]he lodging of a detainer does not render a
petitioner 'in custody' for purposes of
(2241."). In this case, Asemani is in custody of the
Division of Correction of the State of Maryland, and fails to
meet his burden to show that he is in ICE custody. As Asemani
is undoubtedly aware, if his objective is to challenge the
2004 final order of removal, he must file a "a petition
for review filed with an appropriate court of appeals in
accordance with [8 U.S.C. (1252(a)(2)(d) (2005) ]."
See Jordon v. Attorney General. 424 F.3d 320, 326-27
(3d Cir. 2005).
Petition does not satisfy the standard for a Certificate of
Appealabilty, which may issue only if there is a substantial
showing of the denial of a constitutionll right, see
28 U.S.C. (2253(c).
these reasons, the Petition shall be DISMISSED with prejudice
for lack of jurisdiction and a Certificate of Applicability
SHALL NOT ISSUE. A separate Order follows.