                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2009

John Henry v. Michael Chertoff
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3221




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"John Henry v. Michael Chertoff " (2009). 2009 Decisions. Paper 1736.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1736


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CLD-93                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3221
                                      ___________

                                     JOHN HENRY,
                                         Appellant

                                            v.

                         SECRETARY MICHAEL CHERTOFF
                            __________________________

                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 08-cv-01182)
                      District Judge: Honorable William J. Nealon
                             __________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 29, 2009

              Before: RENDELL, HARDIMAN and ROTH, Circuit Judges

                                 (Filed: March 17, 2009)
                                        _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM

       While serving a 262-month federal sentence for drug and firearms convictions,

John Henry filed an action under 42 U.S.C. § 1983, seeking to challenge an immigration

detainer on the ground that he is a United States citizen. Henry sought declaratory,
injunctive, and monetary relief. The District Court dismissed the complaint under 28

U.S.C. § 1915(e)(2)(B)(i). Henry appealed.

       Construing Henry’s complaint liberally, it is best read as a habeas petition

challenging the detainer.1 See Haines v. Kerner, 404 U.S. 519, 520 (1972). In order to

invoke habeas jurisdiction, Henry must demonstrate that he was “in custody” pursuant to

28 U.S.C. § 2241(c)(3). Custody is measured as of the time that the petition was filed.

See Chong v. Dist. Dir., Immigration and Naturalization Serv., 264 F.3d 378, 382-83 (3d

Cir. 2001). When Henry filed his complaint in June 2008, he was serving his federal

criminal sentence. See United States v. Henry, S.D. Fla. Crim. No. 93-cr-06107. He

failed to demonstrate that he was being held pursuant to the detainer, that he was subject

to a final order of removal, or even that removal proceedings had been initiated.2 Under

these circumstances, we cannot conclude that Henry was “in custody.” See e.g.,

Zolicoffer v. United States Department of Justice, 315 F.3d 538, 541 (5th Cir. 2003)

(“agree[ing] with the majority of the circuit courts considering this issue and hold[ing]


  1
    “Filing a detainer is an informal procedure in which the INS informs prison officials
that a person is subject to deportation and requests that officials give the INS notice of the
person’s death, impending release, or transfer to another institution.” Giddings v.
Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992).
  2
     It appears that Henry was released from Bureau of Prisons custody on August 22,
2008, but it is unclear whether he is being detained by the Bureau of Immigration and
Customs Enforcement “(BICE”), or whether he is now subject to a final order of removal.
In the absence of evidence of a final order of removal, we will not convert Henry’s
complaint into a petition for review. Cf. Nnadika v. Att’y Gen., 484 F.3d 626, 632 (3d
Cir. 2007) (stating that “only challenges that directly implicate [an] order of removal . . .
are properly the subject of transfer under the REAL ID Act.”).

                                              2
that prisoners are not ‘in custody’ for purposes of 28 U.S.C. § 2241 simply because the

INS has lodged a detainer against them.”). Therefore, the District Court properly

dismissed Henry’s complaint.3 The District Court’s dismissal was without prejudice, and,

if circumstances warrant, Henry may still appropriately challenge his detention and/or

nationality status.

       Because we conclude that there is no substantial question presented by this appeal,

we will summarily affirm. Henry’s Motion for a Permanent Injunction and Restraining

Order is denied.




  3
    To the extent that Henry sought damages, this form of relief would not be available in
the context of a habeas petition. In any event, damages would not be available based on
Henry’s arguments regarding the detainer; as noted above, Henry was in custody pursuant
to his federal criminal sentence when his complaint was before the District Court.

                                            3
