                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 16, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                           No. 02-11090
                         Summary Calendar



                        UYI KING OSAYANDE,

                                         Petitioner-Appellant,

                              versus

                   IMMIGRATION AND NATURALIZATION
                SERVICE; FEDERAL BUREAU OF PRISONS,

                                         Respondents-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:02-CV-88-N
                       - - - - - - - - - -

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Uyi King Osayande, a federal prisoner (# 26653-077), appeals

from the district court’s dismissal of his 28 U.S.C. § 2241 habeas

corpus petition.   Osayande is serving concurrent 136-month prison

terms following his 1995 convictions of conspiracy to possess

heroin with intent to distribute and possession of heroin with

intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a).

Osayande, a native of Nigeria, argued in his habeas petition that

(1) he is entitled to a waiver of deportation pursuant to § 212(c)


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 02-11090
                                       -2-

of the Immigration and Naturalization Act (8 U.S.C. § 1182(c)

(repealed)) and (2) his transfer to a private prison facility,

operated by Cornell Correctional Corporation and used to house

immigration detainees, violates his constitutional rights because

he is still serving his federal sentence.

       For the first time on appeal, the respondents argue that the

§ 212(c) relief sought by Osayande is unavailable, because no

removal or deportation proceedings have been commenced against him

and any relief that could be granted would be prospective.                      This is

more or less an argument that Osayande’s § 212(c) claim is non-

justiciable.         Article III of the Constitution restricts federal

courts to adjudicating actual “cases” and “controversies.”                      United

Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000).                         In

order to      give    meaning   to    Article    III’s       “case   or   controversy

requirement,” the courts have developed “justiciability doctrines,”

such    as    the    “ripeness”      doctrine.         Id.    (citation       omitted).

“Ripeness separates those matters that are premature because the

injury is speculative and may never occur from those that are

appropriate for judicial review.”            Id.

       Former § 212(c) (codified as 8 U.S.C. § 1182(c)) literally

applied only to exclusion proceedings, but it has been interpreted

to allow permanent resident aliens to apply to the Attorney General

for discretionary waiver of deportation.                 See INS v. St. Cyr, 533

U.S.   289,    295    (2001)    (discussing      the    history      of   §   212(c)).

Osayande has no need to seek a waiver of deportation unless the INS

actually commences deportation or removal proceedings against him.
                                    No. 02-11090
                                         -3-

Because this has not occurred, his § 212(c) claim is not ripe for

review and is not justiciable.**

      The respondents also contend that the district court lacked

jurisdiction over any immigration claim because Osayande is not in

INS “custody” for purposes of 28 U.S.C. § 2241.                 This is correct.

The mere filing of an INS detainer against a federal prisoner,

without more, does not place that prisoner within INS custody.

See Zolicoffer v. United States Dep’t of Justice, 315 F.3d 538,

540-41 (5th Cir. 2003).

      Osayande’s      contention        that    his    detention   at    a     private

correctional facility for INS detainees violates his due process

rights is frivolous.      A prisoner has no right under the Due Process

Clause     to   be   housed   in    a    particular      correctional     facility.

See Olim v. Wakinekona, 461 U.S. 238, 244-45 (1983); Yates v.

Stalder, 217 F.3d 332, 334 (5th Cir. 2000).

      Osayande’s appeal is without arguable merit and is frivolous.

See   Howard    v.   King,    707    F.2d      215,   219-20   (5th     Cir.   1983).

Accordingly, the appeal is DISMISSED.                 See 5TH CIR. R. 42.2.

      APPEAL DISMISSED.




      **
        Osayande would in any event be ineligible for § 212(c)
relief. That statute provided that the waiver of deportation
does not apply to an inmate who has “been convicted of one or
more aggravated felonies and has served for such felony or
felonies a term of imprisonment of at least 5 years.”
See 8 U.S.C. § 1182(c) (repealed); Goonsuwan v. Ashcroft,
252 F.3d 383, 384 n.1 (5th Cir. 2001). At the time Osayande
filed the instant § 2241 petition, he had served approximately
seven years of his drug-trafficking sentences. The INA’s
definition of “aggravated felony” includes drug-trafficking
crimes. See 8 U.S.C. § 1101(a)(43)(B).
