Wanjiku v. Immigration and Customs Enforcement

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ERICK WANJIKU, )

)

Petitioner, )

)

v. ) Case No. CIV-24-214-R

)

IMMIGRATION AND CUSTOMS )

ENFORCEMENT, et al., )

)

Respondent(s). )

REPORT AND RECOMMENDATION

Petitioner, a pro se1 federal prisoner, has filed a Petition for a Writ of Mandamus

under 28 U.S.C. § 1361. (Doc. 1).2 The Petition was referred to the undersigned Magistrate

Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). (Doc. 4). Before

the Court are Respondents’ Motion to Dismiss, (Doc. 18), along with Petitioner’s

Response, (Doc. 19); Petitioner’s Motion requesting an in-camera hearing, (Doc. 11); and

Petitioner’s Motion to Expedite Petition, (Doc. 13). For the reasons stated below, the

undersigned recommends that the Motion to Dismiss (Doc. 18) be GRANTED and the

1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard

than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot

serve as Petitioner’s advocate, creating arguments on his behalf. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).

2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF

pagination.

Petition (Doc. 1) be DISMISSED WITHOUT PREJUDICE. Furthermore, it is

recommended that Petitioner’s pending Motions (Docs. 11, 13) be DENIED AS MOOT.

I. Background

Petitioner alleges that he is a lawful permanent resident of the United States. (Doc.

1, at 1). On November 18, 2021, in the Tulsa County District Court, a jury convicted

Petitioner of one count of assault and battery – domestic – by strangulation, and Petitioner

was subsequently sentenced to three years in state prison. Tulsa County District Court,

Case No. CF-2019-4181.3 Petitioner was released from state custody on May 8, 2023.

(Doc. 1, at 1); see also OK DOC#: 2002705, Oklahoma Department of Corrections OK

Offender.4 Petitioner alleges that upon his release, he was “immediately arrested by ICE

[U.S. Immigration and Customs Enforcement] without probable cause or the

accompanying warrant.” (Doc. 1, at 1). He alleges that ICE agents “used illegal force,”

which “prompted the petitioner to defend himself,” and that ICE then issued a detainer.

(Id.)

In a federal criminal complaint filed on May 9, 2023, a special agent with Homeland

Security Investigations stated that on May 8, 2023, Petitioner kicked one Deportation

3 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2019-

4181 (last visited Oct. 28, 2024). The undersigned takes judicial notice of the docket sheets

and related documents in Petitioner’s state and federal criminal proceedings. See United

States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take

judicial notice of publicly-filed records in [this] court and certain other courts concerning

matters that bear directly upon the disposition of the case at hand”) (citation omitted).

4 https://okoffender.doc.ok.gov/ (last visited Oct. 28, 2024).

Officer and bit another Deportation Officer at the ICE Enforcement and Removal

Operations office in Oklahoma City. United States v. Wanjiku, Case No. 23-CR-227-R

(W.D. Okla), at Doc. 1. Petitioner was then charged by indictment with two counts of

assault on a federal officer, id. at Doc. 17, and was convicted by a jury on both counts on

August 15, 2023, id. at Docs. 50, 97. Petitioner was sentenced to thirty-six months of

imprisonment on each count, with the terms to be served concurrently. Id. at Doc. 97.

Petitioner is currently serving these terms in the custody of the Federal Bureau of Prisons

at United States Penitentiary, Pollock. BOP Register Number: 58269-510, Federal Bureau

of Prisons Inmate Locator.5

Since the initiation of his federal criminal charges in 2023, Petitioner has filed four

causes of action in this Court. Petitioner first filed a Petition for a Writ of Mandamus

challenging an ICE detainer that was issued on March 17, 2023. Wanjiku v. Dep’t of

Homeland Sec., Case No. CIV-23-464-R (W.D. Okla.), at Doc. 1. The Court dismissed

the Petition for lack of subject matter jurisdiction because ICE had already lifted the

detainer. Id. at Docs. 15, 18. Petitioner next filed a Petition for a Writ of Habeas Corpus

challenging his federal indictment, and the Court dismissed the Petition, stating that the

matter should be addressed in Petitioner’s criminal case. Wanjiku v. United States, Case

No. CIV-23-597-R (W.D. Okla), at Docs. 1, 5. Petitioner then filed a Petition for a Writ

of Habeas Corpus challenging the ICE detainer issued on May 9, 2023, but the Court

dismissed the Petition because Petitioner was not in custody pursuant to the ICE detainer.

5 https://www.bop.gov/inmateloc/ (last visited Oct. 28, 2024).

Wanjiku v. Immigr. & Customs Enf’t, Case No. CIV-23-765-R (W.D. Okla.), at Docs. 1,

14, 16. Petitioner next filed the instant Petition for a Writ of Mandamus under 28 U.S.C.

§ 1361. (Doc. 1).

II. The Petition

In the Petition, Petitioner states that he is a “legal permanent resident per

8 U.S.C. § 1101(a)(20)” and challenges an ICE detainer issued on or about May 8, 2023,

(“the May 2023 detainer”).6 (Doc. 1, at 1-2). Petitioner alleges that “ICE agents violated

the ICE directive 10089.1 when they used force to obtain a thumbprint signature for service

of documents” and that the May 2023 detainer “violat[es] Petitioner’s right to due process

guaranteed by the 5th and 14th amendment[s].” (Id.) Petitioner alleges that because of the

May 2023 detainer, he has been denied “pre-trial, post-trial, and release pending appeal per

the Bail Reform Act.” (Id. at 2). For relief, Petitioner requests the Court to order

Respondents to lift the May 2023 detainer, to “refrain from issuing another detainer

pending the resolution of the state conviction and the federal conviction,” and to return the

Petitioner’s Kenyan passport, which Respondents “illegally obtained from the state

courts.” (Id. at 2-3).

6 In Wanjiku v. Immigration and Customs Enforcement, Case No. CIV-23-765-R (W.D.

Okla.), both Petitioner and the Court reference a detainer issued on May 9, 2023, which

the undersigned construes to be the same detainer Petitioner challenges here. To avoid

confusion, the undersigned will reference the challenged detainer as the “May 2023

detainer.”

III. The Court Should Grant Respondents’ Motion to Dismiss.

In their Motion to Dismiss, Respondents argue that the Petition should be dismissed

because ICE is entitled to sovereign immunity, (see Doc. 18, at 8-9), the Court does not

have mandamus jurisdiction, (see id. at 9-12), Petitioner fails to state a claim, (see id. at

12-14), and Petitioner’s claims fail on the merits, (see id. at 14-15). The undersigned agrees

with Respondents that the Court does not have subject matter jurisdiction over the Petition

and thus does not reach Respondents’ remaining arguments for dismissal.

A. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss

a claim for lack of subject matter jurisdiction. “Federal courts are courts of limited

jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v.

Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). “A court lacking jurisdiction

cannot render judgment but must dismiss the cause at any stage of the proceedings in which

it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495

F.2d 906, 909 (10th Cir. 1974) (citation omitted).

“Motions to dismiss for lack of subject matter jurisdiction generally take one of two

forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject

matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter

jurisdiction is based.” City of Albuquerque v. U.S. Dep’t of Interior, 379 F. 3d 901, 906

(10th Cir. 2004) (internal quotation marks omitted). “If the motion challenges only the

sufficiency of a plaintiff’s jurisdictional allegations, a district court must confine itself to

the complaint and accept the factual allegations as true.” White v. United States, No. CIV-

16-1265-D, 2017 WL 4681796, at *1 (W.D. Okla. Oct. 17, 2017) (citing Holt v. United

States, 46 F.3d 1000, 1002 (10th Cir. 1995)). “As the party asserting federal jurisdiction,

Plaintiff bears ‘the burden of alleging the facts essential to show jurisdiction and supporting

those facts with competent proof.’” Id. (quoting United States ex rel. Stone v. Rockwell

Int’l Corp., 282 F.3d 787, 797-98 (10th Cir. 2002)).

B. The Court Does Not Have Subject Matter Jurisdiction Over the Petition.

Under 28 U.S.C. § 1361, “[t]he district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plaintiff.” Eligibility for mandamus relief

requires a petitioner to establish that (1) he or she has a clear right to relief; (2) the

respondent has a “plainly defined and peremptory” duty to perform the act in question; and

(3) no other adequate remedy is available. Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir.

2005). The act in question must be clearly nondiscretionary, as “the judiciary cannot

infringe on decision-making left to the Executive branch’s prerogative.” Marquez-Ramos

v. Reno, 69 F.3d 477, 479 (10th Cir. 1995). However, if an act involves an exercise of

discretion within limits, an officer “may be controlled by injunction or mandamus to keep

within [those limits].” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (10th Cir. 2005)

(quoting Work v. United States ex rel. Rives, 267 U.S. 175, 177 (1925)).

“[T]he question of whether a particular act is discretionary or ministerial rises to

the jurisdictional level.” Marquez-Ramos, 69 F.3d at 479; see also Butler v. Haaland, 2023

WL 8704711, at *4 (N.D. Okla. Dec. 15, 2023) (dismissing claim seeking mandamus relief

under § 1361 for lack of subject matter jurisdiction because “[the petitioner’s] factual

allegations, even taken as true, do not plausibly allege that Respondents owe him any

nondiscretionary duty”). In determining whether mandamus jurisdiction is present, a court

must take as true allegations in the petition that are not patently frivolous “to avoid tackling

the merits under the ruse of assessing jurisdiction.” Carpet, Linoleum & Resilient Tile

Layers, Loc. Union No. 419, Bhd. of Painters & Allied Trades, AFL-CIO v. Brown, 656

F.2d 564, 567 (10th Cir. 1981) (quoting Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.

1980)).

Here, Petitioner requests the Court to order Respondents to lift the May 2023

detainer and refrain from issuing another detainer until Petitioner’s post-conviction actions

relating to his state and federal convictions are resolved. (Doc. 1, at 2). The existence of

the detainer, Petitioner alleges, disallows him from exercising his due process rights

guaranteed him by the Fifth and Fourteenth Amendments. (Id.) Petitioner also requests

the Court to order the return of his Kenyan passport. (Id. at 2-3). Respondents argue that

Petitioner has failed to meet his burden of pleading sufficient facts to plausibly allege that

Respondents owe him a “ministerial, clearly defined, and peremptory duty” to perform

those actions, leaving the Court without mandamus jurisdiction. (Doc. 18, at 11-12). The

undersigned agrees.

An ICE detainer “serves [] as a notice to federal prison authorities that [ICE] is

going to be making a decision about the deportability of [an] alien in the future.” Galaviz-

Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994). Petitioner has provided no federal

legal authority – and the undersigned is not aware of any – stating that ICE agents have a

nondiscretionary duty to lift a detainer and to refrain from reissuing one until the

conclusion of a prisoner’s post-conviction proceedings. Petitioner’s broad and conclusory

allegations that the May 2023 detainer violates his Fifth and Fourteenth Amendment due

process rights, (see Doc. 1), and that such a “non-discretionary ministerial duty to act and

remove the premature detainer . . . is so plainly prescribed by the law that it is free from

any doubt,” (Doc. 19, at 4), do not suffice. See Schoenrogge v. Brownback, 255 F. App’x

307, 308 (10th Cir. 2007) (holding that a generalized assertion of constitutional violation

is not an adequate basis for a mandamus action). In the United States District Court for the

District of Colorado, the court dismissed as frivolous a state prisoner’s writ of mandamus

challenging an ICE detainer because the petitioner had “not presented the Court with an

extraordinary situation mandating mandamus relief,” noting that the petitioner was “not

currently in ICE custody, he [had] no clear right to the relief sought, and the named

defendants [did] not owe him a clear nondiscretionary duty.” Herrera v. Dep’t of

Homeland Sec., 2010 WL 1609978, at *2 (D. Colo. Apr. 20, 2010). The undersigned

similarly finds that Petitioner has failed to state facts sufficient to plausibly allege that

Respondents owe him a clear nondiscretionary duty to lift the May 2023 detainer and to

refrain from reissuing another detainer.

Petitioner has also failed to adequately allege that Respondents have a clear

nondiscretionary duty to return to Petitioner his Kenyan passport, merely alleging that ICE

“illegally obtained [his passport] from the state courts.” (Doc. 1, at 3). Petitioner has

provided no legal authority mandating that ICE agents return his passport to him while he

is in federal custody and prior to removal proceedings. Because Petitioner has failed to

sufficiently allege the existence of any nondiscretionary duties owed to him by

Respondents, this Court does not have subject matter jurisdiction over the Petition, and

Respondents’ Motion to Dismiss should be granted.

IV. Petitioner’s Pending Motions Are Denied as Moot.

On May 15, 2024, Petitioner filed a Motion requesting an in-camera hearing. (Doc.

11, at 1). On June 22, 2024, Petitioner filed a Motion to Expedite Petition in which he

requested the Court to “expedite this action for the interest of justice” and to “issue an

injunction relief and a restraining order to the defendants pending the resolution of

plaintiff’s convictions” because the defendants “put a recommendation to the Bureau of

Prisons (BOP) and requested that the plaintiff be placed in a high security prison.” (Doc.

13, at 1). Because the undersigned recommends dismissal of the Petition in its entirety,

Petitioners pending Motions (Docs. 11, 13) should be DENIED AS MOOT.

V. Recommended Ruling and Notice of Right to Object

For the reasons discussed above, the undersigned recommends that Respondents’

Motion to Dismiss (Doc. 18) be GRANTED and the Petition for a Writ of Mandamus

under 28 U.S.C. § 1361 (Doc. 1) be DISMISSED WITHOUT PREJUDICE for lack of

subject matter jurisdiction. See Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977,

985 (10th Cir. 2010) (“Generally, a dismissal for lack of subject matter jurisdiction is

without prejudice and does not have a preclusive effect.”).

The undersigned advises Petitioner of his right to object to this Report and

Recommendation by November 19, 2024, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

P. 72(b)(2). The undersigned further advises the Petitioner that failure to make timely

objection to this report and recommendation waives his right to appellate review of both

factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659

(10th Cir. 1991).

This Report and Recommendation disposes of all issues and terminates the referral

to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 29" day of October, 2024.

AMANDA an Clty D GREEN

UNITED STATES MAGISTRATE JUDGE

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