Nedzat Korac v. Warden Fairton FCI ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3932
__________
NEDZAT KORAC,
Appellant
v.
WARDEN FAIRTON FCI
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-19-cv-18451)
District Judge: Honorable Renée M. Bumb
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2020
Before: AMBRO, GREENAWAY, Jr., and PORTER, Circuit Judges
(Opinion filed: August 4, 2020)
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OPINION*
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PER CURIAM
Pro se appellant Nedzat Korac appeals from an order of the United States District
Court for the District of New Jersey dismissing his petition brought pursuant to 28 U.S.C.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
§ 2241. For the following reasons, we will vacate that order and remand for further
proceedings consistent with this opinion.
Korac, a federal prisoner, was convicted of bank burglary and conspiracy to
commit bank burglary in the United States District Court for the Southern District of New
York. He is incarcerated at the Federal Correctional Institution in Fairton, New Jersey,
and, with good time credits, has a projected release date of October 4, 2020. In
September 2019, Korac filed a § 2241 petition challenging an immigration detainer
lodged against him by the Department of Homeland Security’s (DHS) Immigration and
Customs Enforcement Bureau (ICE). Korac sought to compel DHS and ICE to lift the
detainer – which he maintains is preventing his eligibility for “any type of rehabilitation
services” – because he is “stateless” and ICE “has on prior occasions lodged similar
detainers against [him] only to drop said detainers with the knowledge that [he] is
stateless, and thus, ‘non-deportable.’” Motion to Expedite for Emergency Hearing at 2,
Habeas Pet. At 11. The District Court screened the petition pursuant to Rule 4 of the
Rules Governing Section 2254 cases and dismissed it without ordering service after
determining that it lacked jurisdiction because Korac was not “in custody” for purposes
of § 2241. This appeal ensued.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
de novo review over the District Court’s order. See Gardner v. Warden Lewisburg USP,
845 F.3d 99, 102 (3d Cir. 2017).
To invoke habeas jurisdiction, Korac was required to demonstrate that he was “in
custody under or by color of the authority of the United States.” 28 U.S.C. § 2241(c)(1).
2
“The term ‘custody’ extends beyond physical confinement, and encompasses other
significant restraints on . . . liberty that are not shared by the public generally.” Leyva v.
Williams, 504 F.3d 357, 363 (3d Cir. 2007) (internal quotation marks and citation
omitted). The mere filing of a detainer is insufficient to establish that an alien who is
detained pursuant to a criminal conviction is “in custody” for purposes of the habeas
statute. See Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003).
However, “[a]n individual subject to a final deportation order issued by the INS or its
successor agency is in custody for § 2241 purposes.” Kolkevich v. Att’y Gen., 501 F.3d
323, 334 n.6 (3d Cir. 2007) (citation omitted); see also Rosales v. Bureau of Immigration
and Customs Enforcement, 426 F.3d 733, 735 (5th Cir. 2005) (joining four circuit courts
in holding that “a final deportation order subjects an alien to a restraint on liberty
sufficient to place the alien ‘in custody’”). In dismissing the petition, the District Court
determined that Korac was not subject to a final order of removal. However, the
immigration detainer, which was attached to Korac’s motion to expedite filed with the
District Court, indicates that there is a final order of removal against him.1 Accordingly,
because it appears that Korac is “in custody” for purposes of this § 2241 proceeding, the
District Court erred in dismissing his petition.2
1
Another exhibit attached to his motion to expedite, which appears to be a copy of his
Presentence Investigation Report (PSR), states that “[s]ince October 16, 2000, Korac has
had an outstanding warrant of removal with ICE. However, an ICE agent reported that
Italy refuses to issue a travel document for the defendant. Therefore, he has not been
deported and has reported to ICE on aquarterly (sic) basis.”
2
We take no position on the merits of the claims in the § 2241 petition.
3
Based on the foregoing, we will vacate the District Court’s order and remand for
further proceedings consistent with this opinion.3
3
Korac’s motion for expedited consideration is denied.
4