IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30370
Summary Calendar
WELTON ZOLICOFFER,
Petitioner-Appellant,
versus
UNITED STATES DEPARTMENT
OF JUSTICE; FEDERAL BUREAU OF PRISONS;
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents-Appellees.
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Appeals from the United States District Court
for the Western District of Louisiana
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January 7, 2003
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
This appeal presents us with an issue of first impression:
does a detainer issued by the Immigration and Naturalization
Service (INS) render a prisoner “in custody” for purposes of
28 U.S.C. § 2241? Because we determine that it does not, we
affirm the district court’s dismissal of Welton Zolicoffer’s
petition, albeit on different grounds.
Zolicoffer, a federal prisoner, appeals in forma pauperis
the dismissal of his 28 U.S.C. § 2241 petition for habeas corpus
relief challenging the INS’s issuance of a detainer. He is
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currently serving his sentence for his conviction of conspiracy
to possess with the intent to distribute cocaine. After the INS
placed a detainer on him, Zolicoffer filed his 28 U.S.C. § 2241
petition in the U.S. District Court for the District of Columbia,
arguing, among other things, that the court had jurisdiction to
compel the Attorney General to correct its records to show that
he is a U.S. citizen. The District of Columbia court transferred
Zolicoffer’s request to have the detainer against him lifted to
the district court for the Western District of Louisiana, where
the detainer was issued.
The magistrate judge issued a report and recommendation,
stating that Zolicoffer appeared to be arguing that he was a
derivative citizen but failed to provide any facts concerning the
manner in which he alleged he derived his citizenship. The
magistrate judge also found that the court lacked jurisdiction to
pronounce him a citizen and that the court was without
jurisdiction to order the INS to remove its detainer against him
under 8 U.S.C. § 1252(g). Accordingly, the magistrate judge
recommended denying Zolicoffer’s petition. Over Zolicoffer’s
objections, and after de novo review, the district court denied
and dismissed with prejudice the habeas petition. Zolicoffer
filed a timely notice of appeal.
Because Zolicoffer is proceeding under 28 U.S.C. § 2241, he
is not required to obtain a certificate of appealability to
proceed on appeal. See Ojo v. INS, 106 F.3d 680, 681-82 (5th
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Cir. 1997). We review de novo the district court’s legal
conclusions on jurisdiction. See Requena-Rodriguez v.
Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999).
Although the district court did not discuss whether habeas
jurisdiction existed as to the INS, based on the issuance of the
detainer, this court is under a continuing duty to inquire into
the basis of jurisdiction. See Solsona v. Warden, F.C.I., 821
F.2d 1129, 1132 n.2 (5th Cir. 1987). For a court to have habeas
jurisdiction under section 2241, the prisoner must be “in
custody” at the time he files his petition for the conviction or
sentence he wishes to challenge. See Pack v. Yusuff, 218 F.3d
448, 454 n.5 (5th Cir. 2000). “Usually, ‘custody’ signifies
incarceration or supervised release, but in general it
encompasses most restrictions on liberty resulting from a
criminal conviction.” Id.
“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).
We have not previously considered the precise issue presented,
i.e., whether the filing of a detainer alone places the
petitioner in INS custody for habeas purposes. We have, however,
implied that we would follow the majority rule of other circuits
that prisoners are not “in custody” for purposes of the habeas
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statutes merely because the INS has lodged a detainer against
them. See Santana v. Chandler, 961 F.2d 514, 516 (5th Cir.
1992).
Most of the circuit courts that have considered the question
have held that a detainer does not place a prisoner in “custody”
for purposes of habeas proceedings. See Campos v. INS, 62 F.3d
311, 314 (9th Cir. 1995)(detainer letter alone does not
sufficiently place an alien in INS custody for habeas purposes);
Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir.
1994)(because prisoner had a detainer plus a final order of
deportation against him, he was in INS “custody” for habeas
purposes); Orozco v. INS, 911 F.2d 539, 541 (11th Cir.
1990)(filing of detainer, standing alone, did not cause the
prisoner to come within INS custody); Mohammed v. Sullivan, 866
F.2d 258, 260 (8th Cir. 1989)(filing of an INS detainer with
prison officials does not constitute the requisite “technical
custody” for purposes of habeas jurisdiction); but see Vargas v.
Swan, 854 F.2d 1028, 1032-33 (7th Cir. 1988)(remanding for a
determination whether an INS detainer would be treated as a
simple notice of INS interest in a prisoner or as a request to
hold the inmate after his sentence until the INS could take him
into custody).
This court agrees with the majority of the circuit courts
considering this issue and holds that prisoners are not “in
custody” for purposes of 28 U.S.C. § 2241 simply because the INS
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has lodged a detainer against them. Zolicoffer does not contend
that the INS actually has ordered his deportation or that there
is some other reason that he should be considered to be in the
custody of the INS. Cf. Galaviz-Medina, 27 F.3d at 493.
Therefore, the district court’s judgment that it did not have
jurisdiction is AFFIRMED, albeit on different grounds. See
Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).