NEWS FROM THE COURTS

Vasquez v. Reno, First Circuit

In this case, the court ruled that the Attorney General is not the custodian of a person in INS detention, and cannot be named as the respondent in a petition for a writ of habeas corpus.

Vasquez, a citizen of the Dominican Republic, entered the US as a permanent resident in 1987.  In 1993, he was convicted in Massachusetts state court of knowingly receiving stolen property.  After he was released from prison, the INS initiated deportation proceedings.  The INS also placed Vasquez in detention.  At first he was detained in Boston, but was later transferred to the Detention Center in Oakdale, Louisiana.  Vasquez filed a petition for a writ of habeas corpus, naming as respondents the Attorney General, the INS Commissioner, and the director of the Boston INS office.  He did not name the INS official with immediate jurisdiction over Oakdale. 

The district court found that it had jurisdiction both over the subject matter and over all three of the respondents.  The court did, however, deny the petition on the merits.

Vasquez appealed, asking the First Circuit to reverse the decision on the merits.  The INS answered that the court did not have jurisdiction over the case because the only proper respondent was the district director in Louisiana.  Habeas corpus actions are brought by a detained person against their custodian.  The custodian is the person to whom a writ of habeas corpus, if issued, is directed.

The Supreme Court has never directly addressed who the proper custodian is, but courts of appeals have generally held that it is the person with control over the facility where the petitioner is being detained.  Moreover, a number of courts have rejected the idea that the Attorney General is the custodian of federal prisoners.  However, there was no answer for these questions when dealing with INS detainees. 

The court found that there was no meaningful distinction between federal prisoners and INS detainees, and that the same concerns that have led courts to reject the idea in prisoner cases apply to INS detainees.  The Attorney General does not have day-to-day control of the detainee, and would not be in a position to expeditiously release the detainee if the writ of habeas corpus was granted.

Therefore, because Vasquez did not name the proper person in his suit, it was dismissed.

The opinion is available through LEXIS using the following citation:  2000 U.S. App. LEXIS 31336.

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US v. Garay, Fifth Circuit

In this case, the court upheld the decision of the trial judge to not impose a lesser sentence because the defendant faced deportation.

Garay was convicted of being unlawfully present in the US following deportation.  After the trial but before sentencing, he argued that because he will again be deported after serving his sentence for this offense, the court should depart downward from the standard sentencing guidelines.  He also argued that, because, as a noncitizen, he would be ineligible for many rehabilitative programs, his sentence should be decreased.  The trial judge denied the request and Garay was sentenced to 70 months in prison.  Garay appealed.

Under the federal Sentencing Guidelines, an appellate court can review a trial judge’s decision to grant a downward departure in the sentence only if the decision was based on the trial judge’s erroneous conclusion that he lacked the discretion to depart.  Before the Fifth Circuit, Garay argued that the trial judge did err in finding that he lacked discretion to impose a lesser sentence because Garay was an alien.

The court found that Garay’s status as a noncitizen was clearly before the sentencing court, and that alienage is not a proper basis for a downward departure when the crime is unlawful reentry following deportation.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1211-Garay.shtm