BLD-315 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1871
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YAKOV G. DRABOVSKIY,
Appellant
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:14-cv-00451)
District Judge: Honorable Richard P. Conaboy
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 17, 2014
Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges
(Opinion filed: July 29, 2014)
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OPINION
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PER CURIAM
In the United States District Court for the Western District of Louisiana, Yakov G.
Drabovskiy was convicted, after a jury trial, of twenty counts of violating 8 U.S.C.
§ 1253(a)(1)(B) for failing to depart after having been ordered removed. United States v.
Drabovskiy, W.D. La. Crim. No. 2:09-cr-00146. He is currently serving his sentence at
FCI – Allenwood.
In the United State District Court for the Middle District of Pennsylvania,
Drabovskiy filed an action titled “civil action for deprivation of liberty due to indefinite
detention.” In the filing, he claimed his “actual innocence” and made allegations relating
to events that occurred before his conviction. However, Drabovskiy primarily protested
“indefinite detention,” asserting that his detention relating to his order of removal should
be over already (he stated more specifically that he should have been released before his
conviction). He claimed that he was entitled to release under a statute and regulations
relating to immigration detention. He also complained of a detainer lodged by the
Department of Homeland Security.
A Magistrate Judge reviewed Drabovskiy’s filing and recommended that it be
dismissed. The Magistrate Judge characterized it as an unauthorized second or
successive habeas petition, inappropriately styled as a petition under 28 U.S.C. § 2241
instead of a motion under 28 U.S.C. § 2255. The Magistrate Judge, explaining that an
immigration detainer did not equate to immigration custody, further noted that
Drabovskiy’s challenge to immigration custody was moot as to past custody and
premature as to future custody. Drabovskiy filed objections, contending that he was not
seeking habeas corpus relief for his criminal conviction (as he had in the past). He
explained that he challenged continued immigration detention begun before he was
convicted.
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The District Court exercised de novo review and adopted the Magistrate Judge’s
recommendation in part. The District Court concluded that the claims were not
actionable because Drabovskiy was not in immigration custody and claims relating to his
past immigration custody were moot. Drabovskiy appeals. He has filed a motion to
expedite this matter and issue a briefing schedule, but he also asks us to decide this
matter on the petition he filed in the District Court and the District Court record.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District
Court’s legal conclusions is plenary, and our consideration of its factual findings is under
a clearly erroneous standard of review. See Cradle v. United States ex rel. Miner, 290
F.3d 536, 538 (3d Cir. 2002) (per curiam). Because no substantial issue is raised on
appeal, we will summarily affirm the District Court’s decision. See 3d Cir. L.A.R. 27.4;
3d Cir. I.O.P. 10.6.
Simply put, Drabovskiy is not entitled to relief from continued immigration
custody because is not in immigration custody. He is serving a sentence for his criminal
conviction. As the District Court explained, the claims relating to past immigration
custody are moot; that custody ended when he was remanded to the custody of the
Attorney General. See Drabovskiy v. Young, No. 2:09-CV-397, 2009 WL 3925315, at
*1 (W.D. La. Nov. 18, 2009). Any claims for immigration detention after the completion
of his sentence are premature. Although he complains of an immigration detainer, a
detainer is not equal to custody. See Garcia-Echaverria v. United States, 376 F.3d 507,
510-11 (6th Cir. 2004); Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540-41 (5th
3
Cir. 2003) (collecting cases). For these reasons, the District Court properly dismissed
Drabovskiy’s complaint, and we will affirm. Drabovskiy’s motion to expedite this appeal
and issue a briefing schedule is denied.1
1
We grant his requests to consider the petition he filed in the District Court and to decide
this matter on the District Court record.
4