                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 21 2003
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 LUIS GARCIA-GARCIA;
 ALEJANDRO REYES MONDRAGON;
 RAFAEL ARAGON-GONZALES, et al.
 and the class of similarly situated aliens,

          Petitioners - Appellants,
 v.

 MICHAEL COMFORT, District
 Director, Immigration and                               No. 02-1057
 Naturalization Service; MICHAEL                     (D.C. No. 01-Z-1498)
 GARCIA, Acting Commissioner,                              (D. Colo.)
 Immigration and Naturalization Service;
 JOHN ASHCROFT, Attorney General
 of the United States; THOMAS
 DALESSANDRI, Sheriff of Garfield
 County; JUDGE THOMAS W.
 OSSOLA; JUDGE T. PETER CRAVEN;
 JUDGE J.E. DEVILBLISS,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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Judgment is not binding precedent, except under the doctrines of law of the case,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.
          Petitioners Luis Garcia-Garcia, Alejandro Reyes-Mondragon, and Rafael

Aragon-Gonzales filed a petition for habeas relief under 28 U.S.C. § 2241, which

permits challenges to conditions of federal custody. They brought suit against

three Colorado state court judges, the Sheriff of Garfield County, Colorado, the

District Director of the INS, the Commissioner of the INS, and the Attorney

General of the United States. Petitioners had previously agreed in open court to

dismiss the three state court judges and the Sheriff of Garfield County from the

case. 1

          The district court dismissed petitioners’ filings for habeas relief under

§ 2241 because (1) none of the petitioners were in federal custody when the

petitions were filed, and (2) the petitions became moot upon their release from

custody after posting state and federal bail. In addition, it dismissed the Sheriff

of Garfield County and the state court judges from the case as per the parties’

prior agreement. We agree with the district court that Garcia-Garcia, Reyes-

Mondragon, and Aragon-Gonzales were not in federal custody when their

petitions were filed, and so need not reach the issue of mootness. We also affirm



          The Sheriff of Garfield County also filed two motions to dismiss
          1

petitioners’ instant appeal for failure to file in a timely way, but we do not find
that this has prejudiced his ability to respond and will therefore deny the motions.

                                            -2-
the district court’s order dismissing the Sheriff of Garfield County and the judges

from the suit.

      Garcia-Garcia, Reyes-Mondragon, and Aragon-Gonzales are citizens of

Mexico who entered the United States illegally and were arrested separately for

state crimes in Colorado. They all were held in the Garfield County, Colorado

jail. The Immigration and Naturalization Service (INS) informed the Garfield

County jail that it had initiated an investigation into their presence in the country

and filed a detainer requesting custody whenever petitioners were released from

the Colorado system. The detainer filed by the INS was for notification purposes

only and requested that the state not limit its “discretion in any decision affecting

the offenders’ classification, work and quarters assignment.” (INS Detainer,

ROA App. 25.) The detainer thus was in no way to affect the length of time the

petitioners spent in state custody or the terms under which they were held; rather

it expressed the INS’s desire to obtain custody when they were released by the

state and requested notice of when that would happen. (See id.)

      Petitioners allege, nonetheless, that their prosecution files were stamped

with “INS Hold, not subject to bail” by state authorities and obliquely suggest

without elaboration or citation that this stamp may have contributed to or

prolonged their state detention. The record, though, contradicts this version of

events. The petitioners filed their § 2241 petitions for habeas relief while being


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held at the Garfield County jail. At an initial hearing on their § 2241 petitions,

the district court corrected any possible misimpression that a federal detainer

might impact a state’s process of determining bail. The judge informed the

petitioners that they were entitled to request bail from state and then federal

authorities. The petitioners subsequently posted bail in the state courts, were

surrendered to the INS, and posted bail again in federal proceedings. As of their

next appearance in federal court, the petitioners were free on their own

recognizance.

      In reviewing this appeal, we initially note that, once the petitioners agreed

to dismiss the three state court judges and the Sheriff of Garfield County from the

suit, the only remaining parties were federal and there are no particulars alleged

that the federal government caused any of the alleged injuries to the petitioners.

The federal government did not stamp the petitioners’ state prosecution files or

itself unlawfully hold the petitioners in detention. The petitioners’ allegations do

not support a suit against the federal government. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (finding that, to establish standing, “there

must be a causal connection between the injury and the conduct complained of –

the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant,

and not ... th[e] result [of] the independent action of some third party not before




                                          -4-
the court.’”) (citation omitted). We could dismiss the petitioners’ suit for lack of

standing on this ground alone but will address another issue as well. See id.

      Petitioners must be in federal custody at the time of filing to be granted

habeas relief under § 2241. Maleng v. Cook, 490 U.S. 488 (1989); 28 U.S.C. §

2241. It is uncontested from the record that petitioners were in the Garfield

County, Colorado jail when they filed their § 2241 petitions.

      Garcia-Garcia, Reyes-Mondragon, and Aragon-Gonzales proffer two

arguments why their presence in the Garfield County jail should be considered

federal custody. First, they assert that the presence of the INS detainer should

alter the classification of their custody from state to federal. We have squarely

rejected this argument in the past. As we wrote in Galaviz-Medina v. Wooten, 27

F.3d 487, 493 (10th Cir. 1994), with a detainer “there is no actual claim to the

alien following the completion of his [contact with the state system], [so there can

be] no custody [for purposes of § 2241].” 2 Id. at 493 (citing Prieto v. Gluch, 913

F.2d 1159, 1162-64 (6th Cir. 1990), Orozco v. INS, 911 F.2d 539, 541 (11th Cir.

1990), and Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988)). A federal

INS detainer without an order of deportation has no impact on the length of time


      2
         Galaviz-Medina did acknowledge that if there were a final order of
deportation in conjunction with the detainer that the detainee might be viewed as
being held in federal custody. Galaviz-Medina, 27 F.3d at 493. However, in this
case there is no allegation that the INS had obtained a final order of deportation
against the petitioners during the pendency of the detainer.

                                         -5-
or the terms under which a state holds individuals, so it cannot transform

petitioners’ custody in local jail from state to federal. See generally id.

      Second, petitioners attempt to establish that they were in federal custody by

reference to 8 U.S.C. § 1226(c), the statute that governs INS detention of aliens.

But that statute is inapplicable to their case. Title 8 U.S.C. § 1226(c) mandates

that the Attorney General take certain illegal aliens into custody. 3 Being taken

into custody by the INS usually means detention in an INS facility or in a non-

Service facility approved by its Jail Inspection Program or under contract with the

INS. 4 At the time petitioners filed under § 2241, they were being held in Garfield

County, Colorado jail and they make no representation that the facility had been

approved by the INS’s Jail Inspection Program or was under contract with the INS

to hold them. They also cite no law or source establishing a facility’s relationship

with the INS outside of these provisions.

      Accordingly, petitioners cannot establish that they were in federal custody

as necessary to be granted relief under § 2241. We DENY the Sheriff’s

      3
         See 8 U.S.C. § 1226(c)(1) (“[The] Attorney General [of the United
States] shall take into custody any alien who . . . [is deportable.]”).
      4
          See, e.g., Immigration and Naturalization Service Regulations, 8 C.F.R. §
235.3(e) (2002) (“Whenever an alien is taken into Service custody and detained at
a facility other than at a Service Processing Center, the public or private entities
contracted to perform such service shall have been approved for such use by the
Service's Jail Inspection Program or shall be performing such service under
contract in compliance with the Standard Statement of Work for Contract
Detention Facilities.”).

                                          -6-
procedural motions to dismiss this appeal. For substantially the reasons stated by

the district court, we AFFIRM its denial of Garcia-Garcia, Reyes-Mondragon, and

Aragon-Gonzales’s petitions for relief under § 2241. We also AFFIRM the

district court’s order dismissing the Sheriff of Garfield County and the state court

judges from the suit as per the parties’ prior agreement.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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