Alberto Duran v. Janet Reno, U.S. Attorney General Doris Meissner, Commissioner of U.S.I.N.S. Edward J. McElroy District Director of U.S.I.N.S.

Citations: 193 F.3d 82; 1999 U.S. App. LEXIS 22814Docket: 1998

Court: Court of Appeals for the Second Circuit; September 20, 1999; Federal Appellate Court

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Alberto Duran, a state prisoner facing deportation, sought the appointment of counsel for his appeal against the dismissal of his habeas corpus petition under 28 U.S.C. § 2241. The appeal stemmed from a 1996 conviction for attempted sale of a controlled substance, which led to deportation proceedings initiated by the INS based on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Duran, who immigrated from the Dominican Republic in 1973 and had family members who were naturalized citizens, argued that the retroactive application of the AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) violated his constitutional rights. The Board of Immigration Appeals dismissed his appeal without addressing these constitutional claims.

The district court dismissed Duran's habeas petition, citing a lack of jurisdiction because he was incarcerated in a state prison rather than an INS facility. Duran subsequently filed a timely appeal, requesting in forma pauperis status, which was granted, and he then moved for counsel appointment. The Court of Appeals evaluated the likelihood of merit in his appeal and the interests of justice regarding the appointment of counsel, ultimately granting the motion for counsel. Additionally, the Court considered whether Criminal Justice Act (CJA) funds could be allocated for this purpose.

Counsel in civil cases is appointed only if the appellant demonstrates a likelihood of merit, as established in precedent cases. Under the Criminal Justice Act (CJA), representation may be provided to financially eligible individuals seeking relief under specific sections of Title 28, including sections 2241, 2254, or 2255. The court has not yet ruled on whether a state prisoner with a final deportation order is considered in the custody of the INS for habeas relief. However, legal interpretations indicate that custody for habeas purposes extends beyond physical confinement. Previous cases have established that the INS can have custody over deportable aliens, even if they are not physically detained by INS authorities. Consequently, the appellant's state prison confinement does not necessarily hinder his ability to seek habeas review, and the appeal presents a novel issue for the circuit. Given the likely merit of the appeal and the interests of justice, counsel is to be appointed. The CJA supports the appointment of counsel for individuals seeking relief under section 2241, affirming the use of CJA funds for the appellant's representation. The motion for counsel appointment is granted, with representation to be drawn from the CJA panel. The case was adjudicated by a designated panel due to a judicial emergency, including judges from different courts.