United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Petitioner Nuru Yakubu's
(“Petitioner”) Expedited Motion for Declaratory
Relief. [Dkt. 472.] For the reasons stated below, the Court
will deny Petitioner's Motion.
pled guilty to one count of conspiring to import a kilogram
or more of heroin into the United States, in violation of 21
U.S.C. § 963. [Dkt. 389.] On February 19, 2015, this
Court sentenced Petitioner to 144 months' imprisonment,
with credit for time served. [Dkt. 429.] On February 26,
2015, the Court amended Petitioner's sentence to include
a five-year term of supervised release with special
conditions. [Dkt. 434.] The special conditions include: (1)
Petitioner will be turned over to immigration officials for
deportation or removal proceedings upon his release from
Bureau of Prisons (“BOP”) custody; (2) any
illegal re-entry by Petitioner to the United States will
constitute both a violation of federal law and the terms of
his supervised release; and (3) if ordered deported,
Petitioner will not return without advanced written
permission from the Secretary of the Department of Homeland
Security or the Attorney General. [Id.]
is currently serving his sentence at Rivers Correctional
Institution in Winton, North Carolina. Mot. at 1. According
to Petitioner, this private, for-profit prison does not
participate in the Institution Hearing Program
(“IHP”), which allows removal proceedings to be
initiated against aliens convicted of aggravated felonies
(like Petitioner) prior to their release from incarceration.
Id. at 7. For that reason, Petitioner believes that
he will be subjected to at least six months of additional
immigration detention upon his release, projected to take
place on June 30, 2024. Id. at 12.
filed the instant motion on July 6, 2016, objecting to the
possibility of this additional detention. [Dkt. 472.] The
Government filed its opposition on September 22, 2016,
arguing that Petitioner's motion could be construed as
either a section 2255 motion, a section 2241 motion, or a
writ of mandamus. [Dkt. 474.] Because the mechanism by which
Petitioner sought relief was difficult to determine, this
Court ordered Petitioner to file a supplemental memorandum
advising the Court on how he would like this motion to be
construed. [Dkt. 475.] Petitioner filed his response on March
7, 2017. [Dkt. 478.] Because oral argument will not aid the
Court in its decision, this motion is now ripe for
seeks to have this Court declare his statutory rights
pursuant to the Immigration and Naturalization Act
(“INA”), as amended by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, 8 U.S.C.
§ 1228. Repl. at 1. More specifically, Petitioner asks
this Court to declare his right to an expedited removal
proceeding while serving his 144-month sentence “so
that he can be removed [from the United States] on the day of
his release from incarceration.” Id. at
4. In the alternative, Petitioner asks this Court to order
the BOP to transfer him to a facility that participates in
the IHP so that he can obtain an immigration determination
prior to his release. See Mot. at 8. Petitioner also
offers a third option: compensate him for this additional
detention by granting a six-month immigration departure on
his original sentence. Id. at 12. Petitioner insists
that such requests do not amount to a section 2255 motion, a
section 2241 motion, or a writ for mandamus, situating them
instead under the Declaratory Judgment Act
(“DJA”), 28 U.S.C. § 2201. Repl. at 1.
is not a jurisdictional grant. See Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950).
Rather, its purpose is to allow federal courts to exercise
jurisdiction only in cases that: (1) meet the case or
controversy requirement and (2) present a valid basis for
subject matter jurisdiction. Dunn Computer Corp. v.
Loudcloud, Inc., 133 F.Supp.2d 823, 826 (E.D. Va. 2001).
Moreover, “even where a request for a declaratory
judgment meets both of these requirements, the exercise of
declaratory judgment jurisdiction [still] rests within the
sound discretion of the district court.” Id.
and foremost, a declaratory judgment action must satisfy the
case or controversy requirement of Article III of the United
States Constitution. MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 126-27 (2007). To be justiciable, a
controversy must be “definite and concrete, touching
the legal relationships of parties having adverse . . .
interests.” Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 240-41 (1937). It also must be “real and
substantial, ” rather than “an opinion advising
what the law would be upon a hypothetical state of
facts.” Id. at 241. Finally, it must be
“of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”
MedImmune, 549 U.S. at 127. Such an inquiry is
instant case, Petitioner fails to satisfy the Article III
case or controversy requirement due to a lack of immediacy.
MedImmune, 549 U.S. at 127. In particular,
Petitioner cannot show the required immediacy because: (1)
Petitioner is not eligible for release until June 30, 2024;
(2) BOP policy does not allow for an inmate like Petitioner
to be transferred to a facility that participates in the IHP
until the inmate has 60 months or less remaining on his
sentence; (3) Petitioner is not currently eligible
for such a transfer and will not become eligible until June
30, 2019; and (4) there is no evidence that the BOP does not
plan to request a transfer on Petitioner's behalf once he
becomes eligible. “Where, as here, a declaratory
judgment request rests entirely on speculation and
conjecture, there is no ‘sufficient immediacy' to
warrant a discretionary grant of declaratory relief.”
Firestone v. Wiley, 485 F.Supp.2d 694, 700 (E.D. Va.
2007) (citing Aetna Cas. & Sur. Co. v. Ind-Com Elec.
Co., 139 F.3d 419, 422 (4th Cir. 1998) (noting that
declaratory judgment jurisdiction should not be exercised
when the declaratory relief sought is premature)).
that Petitioner's motion does not meet the constitutional
case or controversy requirement, this Court is without
subject matter jurisdiction to decide its claims.