United States District Court, D. New Jersey
June 14, 2005.
EDUARDO FRANCISCO QUEZADA-RUIZ, Petitioner,
JOHN NASH, Respondent.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Eduardo Francisco Quezada-Ruiz, an inmate confined at the
Federal Correctional Institution at Fort Dix, New Jersey ("FCI
Fort Dix"), filed a Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241, see Quezada-Ruiz v. DeRosa, Civil No. 04-2081
(FLW), and a Complaint for damages and injunctive relief, see
Quezada-Ruiz v. Nash, Civil No. 04-5646 (FLW).*fn1 In the
habeas action, Petitioner challenges a detainer for possible
removal lodged against him at FCI Fort Dix by the Department of Homeland
Security (DHS), formerly the Immigration and Naturalization
Service ("INS"). In the Complaint, Petitioner challenges the
Bureau of Prison's ("BOP") determination that he is not eligible
for placement in a community corrections center ("CCC"), see
18 U.S.C. § 3624(c), or early release pursuant to
18 U.S.C. § 3621(e)(2)(B) to complete the community stage of the residential
drug abuse treatment program.*fn2 After careful
consideration, the Court will dismiss both actions because the
BOP cancelled the challenged detainer and properly determined
that Petitioner is not eligible for placement in a CCC and early
Except as noted, the facts are not in dispute. Petitioner is
currently serving a sentence imposed by Senior Judge Charles R.
Butler, Jr., in the United States District Court for the Southern
District of Alabama on April 12, 1996, amended October 16, 1996,
after he was extradited from Colombia.*fn3 Based on his plea
of guilty to one count of conspiracy to distribute and possess
with intent to distribute cocaine, see 21 U.S.C. § 846, Judge
Butler sentenced Petitioner to a 168-month term of imprisonment,
followed by five years of supervised release. See United
States v. Quezada-Ruiz, Docket No. 92-cr-0048 (CB-2) j.
conviction (S.D. Ala. filed April 12, 1996). According to the docket, the judgment of
conviction provides that, upon completion of the term of
imprisonment, Petitioner is to be delivered to an immigration
official for possible removal and, if he is not removed, he must
participate in a program of testing and treatment for
drug/alcohol abuse. The amended judgment provides that, "If not
deported, within 72 house from custody of the BOP, the defendant
shall report in person to the Probation Office in the district to
which he is released." Id.
On July 15, 2003, the DHS lodged a detainer against petitioner
at FCI Fort Dix indicating that an investigation had been
initiated to determine whether Petitioner was subject to removal
from the United States ("removal detainer"). The removal detainer
requests notice of Petitioner's release date, which the BOP
projects as February 20, 2006. After challenging the detainer
through the BOP's Administrative Remedy Program, Petitioner filed
the Petition for Writ of Habeas Corpus, Civil No. 04-2081 (FLW).
The Petition raises two grounds for relief: (1) the removal
detainer violates the Extradition Agreement between the United
States and Colombia, whereby Petitioner was extradited to the
United States for criminal drug prosecution, and the rule of
specialty, which prohibits the United States from proceeding
against Petitioner for any nonextraditable act, including a
removal proceeding, until he has had a reasonable time to return
to Colombia; and (2) the failure of the DHS and BOP to recognize
his non-deportable status and the BOP's determination that he is
not eligible for placement in a community corrections center
("CCC") and early release violates the rule of specialty.
Petitioner seeks a writ ordering the government to cancel the
removal detainer and the "Deportable Alien" public safety factor,
and to grant him early release and immediate placement in a CCC. The government filed an Answer to the Petition, accompanied by
the declarations of Kisha Hebbon, Attorney Advisor for the BOP at
FCI Fort Dix, and Susan G. Roy, Assistant Chief Counsel, DHS,
Newark, New Jersey, with attached exhibits. Respondent contends
that, by Notice of Action dated July 15, 2004, the DHS cancelled
the removal detainer dated July 15, 2003, and replaced it with a
detainer "for notification purposes only." (Decl. of Susan G.
Roy, dated July 21, 2004, Form I-247.) The notification-only
Please accept this notice as a detainer. This is for
notification purposes only and does not limit your
discretion in any decision affecting the offender's
classification, work and quarters assignments, or
other treatment which he or she would otherwise
Although the notification-only detainer contains checkoff boxes
to indicate the inmate's immigration status, none of the boxes is
checked and the notification-only detainer does not provide any
indication of Petitioner's immigration status. Nor does the
notification-only detainer request notice of Petitioner's release
date, although it contains a checkoff box for requesting 30 days
advance notice of release. Susan Roy explains the significance of
the notification-only detainer as follows:
The purpose of the notification detainer is to advise
DHS/ICE when the petitioner is scheduled to be
released from custody and returned to Colombia and/or
Chile in accordance with the terms of the extradition
treaty. DHS/ICE will have no further interest in the
petitioner unless he does not leave the country in
accordance with the terms of the extradition treaty,
but instead manifests an intent to remain in the
Should the petitioner manifest such an intent, he
will be considered an intending immigrant, and in
that situation, will be subject to removal
proceedings. See Matter of Badalamenti, 19 I&N
Dec. 623 (BIA 1988). (Roy Decl. ¶¶ 7-8.)
Respondent asks this Court to dismiss the Petition. First,
Respondent argues that Petitioner failed to exhaust the BOP's
Administrative Remedy Program. Second, Respondent contends that,
by cancelling the immigration detainer and replacing it with a
notification-only detainer, the government complied with the
Extradition Agreement and the rule of specialty. Third,
Respondent maintains that Petitioner has no constitutionally
protected liberty interest in early release or placement in a
CCC, and that he is not eligible for early release because he
does not satisfy the eligibility criteria for placement in a CCC.
See 28 C.F.R. § 550.58(a)(1)(v); Program Statement 7310.04, ¶
10 (Dec. 16, 1998).
In his Reply to the Answer and in the Complaint docketed as
Civil No. 04-5646 (FLW), Petitioner asserts that he exhausted the
BOP's Administrative Remedy Program when he presented the issue
to the Central Office on August 11, 2004. Petitioner challenges
the BOP's determination that he is not eligible for placement in
a CCC or early release pursuant to 18 U.S.C. § 3621(e)(2)(B),
arguing that the Extradition Agreement and the rule of specialty,
see 18 U.S.C. § 3192, allow him to remain in the United States
until he has completed the five-year period of supervised release
following his term of imprisonment and been given a reasonable
period of time to leave the country. Petitioner maintains that,
because he is not subject to removal until after completion of
the five-year period of supervised release and a reasonable
period of time to depart, he is eligible for CCC placement and
early release and the BOP's refusal to place him in a CCC
pursuant to 18 U.S.C. § 3621(e) was an abuse of discretion and
violates the rule of specialty. II. DISCUSSION
Section 2241 of Title 28 of the United States Code provides in
The writ of habeas corpus shall not extend to a
prisoner unless . . . He is in custody in violation
of the Constitution or laws or treaties of the United
28 U.S.C. § 2241(c)(3).
"Section 2241 is the only statute that confers habeas
jurisdiction to hear the petition of a federal prisoner who is
challenging not the validity but the execution of his sentence."
Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001). A
petition for a writ of habeas corpus under 28 U.S.C. § 2241 in
the district where the prisoner is confined provides a remedy
"where petitioner challenges the effects of events `subsequent'
to his sentence." Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.
This Court has subject matter jurisdiction under § 2241 to
consider Petitioner's challenge to the denial of CCC placement
and early release because Petitioner seeks not to vacate or
correct his sentence, but to challenge the execution of the
sentence by the BOP. See Barden v. Keohane, 921 F.2d 476,
478-79 (3d Cir. 1991); 2 James S. Liebman & Randy Hertz, Federal
Habeas Corpus Practice and Procedure § 41.2b (3rd ed. 1998).
Moreover, if the BOP incorrectly determined his eligibility for
CCC placement and early release, this error carries a potential
for a miscarriage of justice that can be corrected through habeas
corpus. Murray v. Carrier, 477 U.S. 478, 495 (1986); Barden,
921 F.2d at 479. B. Exhaustion
As a preliminary matter, Respondent maintains that the Petition
is subject to dismissal because Petitioner failed to appeal the
denial of his administrative remedy by the Regional Director to
the General Counsel's Office. Specifically, Kisha Hebbon avers
that the computerized index of administrative appeals indicates
that Petitioner has not filed an administrative remedy with the
Cental Office. Petitioner counters that dismissal on
nonexhaustion grounds is not appropriate because he appealed to
the General Counsel on August 11, 2004; the detainer at issue is
the seventh detainer lodged by immigration officials at various
institutions since 1996 and he sought administrative relief each
time a detainer was lodged; and exhaustion would in any event be
futile. (Reply to Answer, Exhaustion of Administrative Remedies.)
The government did not respond to Petitioner's assertion that he
presented his claim to the General Counsel on August 11, 2004.
Under these circumstances, this Court will not dismiss the
Petition for failure to exhaust administrative remedies.
C. Standard of Review
Petitioner does not dispute that BOP's regulations exclude from
consideration for early release inmates "who are not eligible for
participation in a community-based program as determined by the
Warden on the basis of his or her professional discretion."
28 C.F.R. § 550.58(a)(1)(v). Nor does he dispute that inmates "who
are assigned a `Deportable Alien' Public Safety Factor . . .
shall not ordinarily participate in CCC programs" under Program
Statement 7310.04, ¶ 10.b. In essence, the question presented is
whether the BOP's determination that Petitioner is not eligible
for CCC placement and early release under
18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58(a)(1)(v) violates the rule
of specialty and is arbitrary and capricious under the Administrative Procedure Act. See
5 U.S.C. § 706(2)(a); Lopez v. Davis, 531 U.S. 230, 240 (2001); Edwards
v. United States, 41 F.3d 154, 156 (3d Cir. 1994).
The APA requires a reviewing court to "hold unlawful and set
aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. § 706(2)(A).*fn4 A
reviewing court must find that the actual choice made by the
agency was neither arbitrary nor capricious. C.K. v. N.J. Dep't
of Health & Human Services, 92 F.3d 171, 182 (3d Cir. 1996);
see also Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 414 (1971), ("agency action must be set aside if the action
was `arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law'. . . ."), overruled on other
grounds, Califano v. Sanders, 430 U.S. 99 (1977) (quoting
5 U.S.C. § 706(2)(A)). "[T]he agency must examine the relevant data
and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the
choice made." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mutual Auto. Ins., 463 U.S. 29, 43 (1983) (citation and
internal quotation marks omitted); accord Bowman Transp., Inc.
v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974).
To make this finding that agency action was not arbitrary or
capricious, a court must review the administrative record that
was before the agency at the time of the decision, and "must
consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a
narrow one. The Court is not empowered to substitute its judgment
for that of the agency." Overton Park, 401 U.S. at 416.
Reversal of agency action is required "[i]f the record before
the agency does not support the agency action, if the agency has
not considered all relevant factors, or if [the court] simply
cannot evaluate the challenged agency action on the basis of the
record before [it]." C.K., 92 F.3d at 184 (quoting Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
D. The Merits
Congress requires the BOP to "make available appropriate
substance abuse treatment for each prisoner the Bureau determines
has a treatable condition of substance addiction or abuse."
18 U.S.C. § 3621(b). Congress has directed that, as an incentive for
prisoners' successful completion of a treatment program, "[t]he
period a prisoner convicted of a nonviolent offense remains in
custody after successfully completing a treatment program may be
reduced by the Bureau of Prisons, but such reduction may not be
more than one year from the term the prisoner must otherwise
serve." 18 U.S.C. § 3631(e)(2)(B). However, Congress granted the
BOP discretion to categorically exclude inmates from eligibility
for early release pursuant to 18 U.S.C. § 3621(e)(2)(B). See
Lopez, 531 U.S. at 240; 28 C.F.R. § 550.58(a)(1). The statute
(2) Incentive for prisoners' successful completion of
(A) Generally. Any prisoner who, in the judgment
of the Director of the Bureau of Prisons, has
successfully completed a program of residential
substance abuse treatment provided under paragraph
(1) of this subsection, shall remain in the custody
of the Bureau under such conditions as the Bureau
deems appropriate. If the conditions of confinement
are different from those the prisoner would have
experienced absent the successful completion of the
treatment, the Bureau shall periodically test the
prisoner for substance abuse and discontinue such conditions on determining that
substance abuse has recurred.
(B) Period of custody. The period a prisoner
convicted of a nonviolent offense remains in custody
after successfully completing a treatment program
may be reduced by the Bureau of Prisons, but such
reduction may not be more than one year from the term
the prisoner must otherwise serve.
18 U.S.C.A. § 3621(e)(2). (emphasis added).
As an exercise of its discretion, the BOP, by regulation,
categorically excludes from eligibility for early release under §
3621(e)(2)(B) inmates "who are not eligible for participation in
a community-based program as determined by the Warden on the
basis of his or her professional discretion." See
28 C.F.R. § 550.58(a)(1)(v); Lopez, 531 U.S. at 244. Program Statement
7310.04, entitled "Community Corrections Center (CCC) Utilization
and Transfer Procedure," sets forth the BOP's eligibility
standards for CCC placement. Specifically, it provides that
inmates "in the following categories shall not ordinarily
participate in CCC programs . . . [i]nmates who are assigned a
`Deportable Alien' Public Safety Factor." Program Statement
7310.04 ¶ 10.b.
The BOP assigns public safety factors to inmates because it has
determined that "[t]here are certain factors which require
increased security measures to ensure the protection of society."
Security Designation and Custody Classification Manual, Program
Statement 5100.07, ch. 7 at 1 (Jan. 31, 2002). BOP staff must
assign the public safety factor "Deportable Alien" to an inmate
A "Deportable Alien" is a male or female inmate who
is a citizen of a foreign country, rather than the
United States. In addition, the inmate shall be
housed in at least a Low security level institution, unless the PSF has been waived. This PSF also
prevents placement in a CCC. . . .
The PSF shall not be applied when the Immigration
and Naturalization Service (INS) or the Immigration
Judge has determined that deportation proceedings are
unwarranted and the Institution Hearing Program (IHP)
Case Management Activity (CMA) assignment of NO IHP
or IHP CMP ND is assigned. Conversely, if the inmate
is ordered deported (CMA of IHP CMP WD), the
Deportable Alien PSH shall be applied regardless of
the above criteria. The Deportable Alien PSH shall
also be applied when FCI Oakdale institution staff
assign the inmate a CMA assignment of "OAK INS,"
regardless of the above criteria. Cases with
detainers for deportation investigations or other
unusual situations will be evaluated individually.
P.S. 5100.07, ch. 7 at 3-4 (emphasis in original).
Petitioner maintains that the above language requires the BOP
to remove the "Deportable Alien" public safety factor because the
DHS has determined that removal proceedings are unwarranted. This
Court disagrees. There is no dispute that immigration officials
cancelled a Notice to Appear for removal in 2002 on the ground
that, in light of the Extradition Agreement, removal proceedings
would not be initiated until Petitioner was released from
imprisonment and given a reasonable opportunity to depart on his
own. (Letter from Wendell Hollis, dated Aug. 20, 2002; Exhibit H
to Pet.) The letter states that "the Service has determined it
appropriate to cancel the Notice to Appear lodged against
[Eduardo Francisco Quezada-Ruiz.] Upon completion of his term of
imprisonment, your client should arrange for his immediate
departure from this country or risk being presumed an intending
immigrant." (Id.) Consistent with this letter, Susan Roy
indicated in her declaration that Petitioner will be subject to
removal if he manifests an intent to remain in the United States
after the BOP releases him from his term of imprisonment. (Roy decl. ¶¶ 7, 8.) Thus, Program Statement
5100.07 does not require the BOP to remove the "Deportable Alien"
public safety factor.
The Court also rejects Petitioner's argument that the
Extradition Agreement and the rule of specialty prohibit DHS from
removing him until he completes the five-year term of supervised
release. "The rule of specialty is based on principles of
international comity and is designed to guarantee the
surrendering nation that the extradited individual will not be
subject to indiscriminate prosecution by the receiving
government." Saroop v. Garcia, 109 F.3d 165, 168 n. 6 (3d Cir.
1997) (quoting Leighnor v. Turner, 884 F.2d 385, 389 (8th Cir.
1989)). The rule of specialty prohibits the prosecution of a
defendant for a crime other than the crime for which he was
extradited. See United States v. Alvarez-Machain,
504 U.S. 655, 659 (1992); United States v. Rauscher, 119 U.S. 407, 430
(1886); 18 U.S.C. § 3192. The rule of specialty is codified in
18 U.S.C. § 3192, which provides in relevant part:
Whenever any person is delivered by any foreign
government to an agent of the United States, for the
purpose of being brought within the United States and
tried for any offense of which he is duly accused,
the President shall have power to take all necessary
measures for the . . . safekeeping of such accused
person, and for his security . . ., until the final
conclusion of his trial for the offenses specified in
the warrant of extradition, and until his final
discharge from custody or imprisonment for or on
account of such offenses, and for a reasonable time
thereafter, and may employ such portion of the land
or naval forces of the United States, or of the
militia thereof, as may be necessary for the
safekeeping and protection of the accused.
18 U.S.C. § 3192 (emphasis added).
This statute requires the President to safeguard an alien
defendant who was extradited "until his final discharge from
custody or imprisonment . . . and for a reasonable time
thereafter." 18 U.S.C. § 3192. This Court holds that the rule of specialty
does not authorize a defendant to remain in the United States
until he completes a term of supervised release following a term
of imprisonment. Cf. Cosgrove v. Winney, 174 U.S. 64, 68
(1899) ("The treaty and the statute secured to Cosgrove a
reasonable time to return to the country from which he was
surrendered, after his discharge from custody or imprisonment for
or on account of the offense for which he had been extradited").
This reading of the rule of specialty is consistent with
statutes governing supervised release and immigration. Statutes
governing sentencing clarify that a term of supervised release is
distinct from a term of imprisonment. See
18 U.S.C. § 3583(a).*fn5 Moreover, the supervised release statute
recognizes that aliens sentenced to supervised release will
generally be deported before completing the term of supervised
release. See 18 U.S.C. § 3583(d)(3). Specifically, § 3583(d)(3)
provides: "If an alien defendant is subject to deportation, the
court may provide, as a condition of supervised release, that he
be deported and remain outside the United States, and may order
that he be delivered to a duly authorized immigration official
for such deportation." 18 U.S.C. § 3585(d)(3).*fn6 In fact, Petitioner's judgment
of conviction recognizes that he may be removed before completion
of the term of supervised release.
Immigration laws also support the government's position that
the rule of specialty protects an alien for a reasonable period
of time after his release from imprisonment. Section
1231(a)(4)(A) provides that, with exceptions not relevant here,
"the Attorney General may not remove an alien who is sentenced to
imprisonment until the alien is released from imprisonment.
Parole, supervised release, probation, or possibility of arrest
or further imprisonment is not a reason to defer removal."
18 U.S.C. § 1231(a)(4)(A).
Based on the foregoing, this Court holds that the BOP did not
violate prison regulations or the rule of specialty by retaining
the "Deportable Alien" public safety factor and determining that
Petitioner is not eligible for placement in a CCC or early
For the reasons set forth above, the Court dismisses the
Petition and the Complaint.