United States v. Fernandez

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNI'I`ED STATES OF AMERICA, V- Criminal Action No. 10-18-4 (JDB) RAUL ARTURO FERNANDEZ, F I L E D Defendant. MAY 02 2018 Clerk, U.S. Dlstrlct & Bankruptcy MEMORADUM OPINON & ORDER Courts forthe Dlstrlct of Go|umb|a Before the Court is [421] Fernandez’s motion for declaratory relief or an immigration departure under the Declaratory Judgment Act, 28 U.S.C. §§ 2201_02, and Bureau of Prisons (BOP) Program Statement 5111.04 (2006).l The Court sentenced Fernandez on November 26, 20l2 to 144 months’ imprisonment on one count of conspiracy to distribute cocaine knowing and intending that it would be unlawfully imported into the United States. § Judgment [ECF No. 299]. On October 24, 2017, Femandez filed a pro_s§ motion challenging the BOP’s failure to institute the Institutional Hearing Program (IHP) at Rivers CI, the privately-run prison at which he is currently incarcerated w Expedited Mot. for Decl. Relief (“Def.’s Mot.”) [ECF No. 421] at 3.2 The IHP allows “eligible inmates in Bureau custody” to go through their removal proceedings while still incarcerated, which “allows ICE to effect deportation immediately upon completion of an inmate’s sentence.” BOP Program Statement 51 l 1.04, at l. Fernandez asks the Court to issue an order that requires BOP to do one of three things: (l) implement the IHP at Rivers; (2) transfer Fernandez to a facility that is covered by the IHP; or (3) reduce his sentence by lO% or up to one ' The BOP Program Statement can be found at https://www.bop.gov/policy/progstat/Sl 11_004.pdf. 2 Because Fernandez’s motion does not include a page number on the first page, but rather starts with a number “l” on the second page, all citations to pages of his motion will correspond to the document itself rather than to the page numbers listed on the document. year so that he can be transferred more quickly to the custody of immigration authorities for removal proceedings ge Def.’s Mot. at 3-5, 12~14. The government asserts that Fernandez’s motion should really be construed as a habeas petition, and that it therefore must be brought in the district in which Fernandez is confined _Se_e Gov’t’s Opp’n [ECF No. 422] at 5~7. But, with the possible exception of his request for an immigration departure, Fernandez’s “action is properly characterized as a challenge to a condition . . . of his confinement, and not its fact or duration.” Tavlor v. U.S. Prob. Office, 409 F.3d 426, 430 (D.C. Cir. 2005). Therefore, while habeas is available, it is not the exclusive avenue by which Fernandez may seek relief. E § However, to the extent that a declaratory judgment action might be proper, the Court cannot hear it at this time. The government has raised the affirmative defense of exhaustion, se_e Gov’t’s Opp’n at 12, and the Court agrees that Femandez must make his first two requests_to implement the lHP at Rivers or to transfer him to a prison covered by the IHP_to BOP through its Administrative Remedy Program (ARP) before ...

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