Julio E. Roman v. John Ashcroft

GIBBONS, Before MOORE and Circuit SCHWARZER, Senior District Judges; Judge.* J., MOORE, of the opinion delivered the SCHWARZER, D.J., court, in which GIBBONS, 329-330), joined. (pp. J. separate opinion concurring delivered the result.

OPINION

MOORE, Judge. Circuit United States Respondents-Appellants General, Ashcroft; former John Immigration Acting Commissioner (“INS”), Kevin and Naturalization Service Di- Rooney; former Cleveland * California, Schwarzer, sitting by designation. District of The Honorable William W Senior Judge States District for the Northern United INS, Brown; L. rector Robert Clause. The district court then ordered New Orleans District Director of the the case remanded to the BIA to allow (collectively gov- G. Davis “the 212(h) Christine pursue Roman to relief. The ernment”) appeal judg- the district court’s government timely appealed. granting

ment E. Petitioner-Appellee Julio Because Roman’s action must be (“Roman”) corpus Roman relief. juris- in brought having the district court Roman, resident, an Ohio was convicted of person having custody diction over “the federal crimes in the Northern District of detained,” § person U.S.C. and in Kentucky. Ohio incarcerated VACATE the district decision to court’s charged Roman with being INS removable grant Roman habeas RE- relief and grounds on three related to his federal MAND to the district court with instruc- convictions, and Roman was transferred tions to determine whether the Cleveland prison Kentucky from a federal to an District Director and the INS Commis- facility in INS detention the Western Dis- proper respondents trict sioner are of Louisiana. Roman’s petition. In the event July an immigration judge court concludes that these officials are not (“IJ”) found Roman removable and statu- proper respondents, we instruct the dis- torily ineligible discretionary relief trict court to transfer the action to the 212(h) pursuant § from removal Western District of Louisiana. (“INA”), Immigration Nationality and Act 1182(h). § 8 U.S.C. The Board of Immi- (“BIA”)

gration Appeals affirmed deci- this I. AND FACTS PROCEDURE § appeal. sion on Roman filed a corpus,1 argu- for a writ of habeas 46-year Roman ais old native and citi- 212(h) § ing that violates the Fifth zen of Republic. the Dominican He has Equal Amendment Protection Clause. Al- permanent been lawful resident of the though being Roman was detained 29, 1996, United States since October and time, Western District of Louisiana was last admitted to the United on States he filed the corpus petition February 1997. Roman is married and prior where he resided to his incar- has six children who are United States ceration and where he was convicted of the citizens. underlying crimes his removal—the North- 30, 1999, September pleaded On Roman ern District of Ohio. The guilty in the Northern District of Ohio to moved to application dismiss Roman’s be- visas, permits, fraud and misuse of and cause the district court personal lacked documents, in other violation of 18 U.S.C. jurisdiction over the respondents and be- 1546(a), § and security misuse of social 212(h) § cause Equal does not violate the numbers, violation of U.S.C. Protection Clause. The district court con- 408(a)(7)(C). § Roman was sentenced to cluded that it had General, imprisonment 15 months of over the for these two granted and Roman a grounds writ of habeas on felonies and served 13 months of the sen- 212(h) § violates the Equal Protection tence. Therefore, § 1. 28 § U.S.C. 2241 and 28 U.S.C. action. we will refer to Roman’s “application” "appli- both use the terms application § 2241 for a writ of habeas cor- "petition” "petitioner.” cant” rather than pus as a and to Roman as a However, many § peti- 2241 cases refer to throughout opinion. petitioners, parties tions and as do the to this rejected sentence, thirty persons, IJ proximately serving his Roman While engaged that he and Roman’s contention Appear a Notice the INS issued close fami- solely to assist fraud Ro- document charge against an additional lodged ly § 8 U.S.C. members. Pursuant INA man. be- Roman with charged § removable, denied The IJ found (1) con- grounds: three on removable ing of remov- cancellation request for Roman’s fraud, see relating to document

viction 240A(a), al to INA (2) 237(a)(3)(B)(iii); conviction INA 1229b(a), Roman removed and ordered committed turpitude involving moral crime did The IJ Republic. Dominican which a entry for years of five within discretionary possibility not address may be longer year one sentence 212(h). pursuant to from removal relief (3) 237(a)(2)(A)(i); INA see imposed, decision and the IJ’s The BIA affirmed felony, see aggravated an of conviction apply to reopen motion to Roman’s denied 237(a)(2)(A)(iii). § INA removal. of for cancellation from the Lex- transferred Roman was 2001, Meanwhile, filed a May in Roman Lexing- in Medical Center Federal ington for writ of habeas pro se Detention ton, Kentucky, to Oakdale for District Court States United Louisiana, Oakdale, passed and in Center four Ohio. He named District of Northern hearing At removal custody. his INS into General, respondents —the the INS’s Oakdale, to Roman admitted in Commissioner, Dis- the former INS'- INS that he was but denied allegations factual Cleveland, Ohio, and the trict Director Roman, because According to removable. Orleans, Director New INS 1991, he was adjusted his status he due his alleged that Roman Louisiana. a crime involv- committing for deportable by the retro- violated rights were process after years five within turpitude ing moral and the Antiterrorism application active Roman also country. admission his Penalty Act of Death Effective because not removable he was argued that 104-132, (Apr. Stat. No. Pub.L. a first offense fraud was his document process 24, 1996), procedural due that his family close solely to assist undertaken did not the IJ because rights were violated members, not constitute does which to be meaningful opportunity him a allow INA felony. aggravated for his requests merits of on the heard 1101(a)(43)(P). § 101(a)(43)(P), 8 U.S.C. 212(h) relief, that his and or 240A testify Roman not allow The IJ did the laws equal protection right fraud. document conviction of about his “dis- of relief these forms because violated entered IJ August On a class members between criminate[ ] that arguments Roman’s rejecting decision rationally that is not on a distinction based committing a for deportable he was not Appen- Joint purpose.” to [their] related and turpitude moral involving crime Pet.). (Habeas dix at 17 felo- aggravated committed an had not he stay of seeking a filed a motion Roman the five- implied The decision ny. enjoined removal, the district court turpi- the moral mentioned in year period a, final order executing from running the INS started of removal ground tude judicial outcome pending entry, Feb- removal last Roman’s the date of from held briefly case was Moreover, proceedings. because ruary the Su- awaited abeyance while the Ro- stated that plea agreement criminal v. St. of INS disposition preme Court’s ap- false documents possessed man Cyr, 533 U.S. 121 S.Ct. II. JURISDICTION OVER ROMAN’S L.Ed.2d 347 HABEAS CORPUS PETITION The district court confined analysis its The government moved to dismiss Ro- the government’s motion to dismiss for man’s in July govern- 2001. The personal lack of jurisdiction to the New ment challenged personal jurisdiction and Orleans District Director and the venue, noted Roman’s failure to exhaust Although General. ap- administrative remedies respect with peals the district court’s conclusion that 212(h),2 212(h) argued does General is a properly named Equal violate the Protection Clause. petition, Roman’s did not file a cross-appeal of the district In September the district court court’s conclusion jurisdic- it lacked issued an granting government’s order tion over the New Orleans District Di- motion to dismiss for want Moreover, rector. because the district jurisdiction as to the New Orleans District court expressly declined to grant deny Director denying the motion as to the government’s motion to dismiss as to Attorney General. Roman Ashcroft, the Cleveland District Director and the 755, 758, (ND.Ohio Commissioner, we decline to consider 2001) [Roman /](cid:127) The order did not dis- appeal on whether the district court lacks cuss whether the INS Commissioner and jurisdiction over respondents. these two District Director Cleveland were appropri- Therefore, analysis our is confined to the ately respondents. named as Id. at 758. question of whether the district court Concluding that it jurisdiction had over the erred by finding personal jurisdiction over action, the district court directed gov- the the Attorney General. ernment to why show cause Roman’s writ We review de novo a district should not issue. Id. at 765. court’s determinations as to the existence 2002, January the district court personal jurisdiction. Tobin v. Astra granted Roman a writ of corpus, Prods., Inc., Pharm. 528, 542 212(h) holding violated the Equal (6th Cir.), denied, cert. 510 U.S. Protection by Clause differentiating be- (1993). S.Ct. 126 L.Ed.2d 252 The legal permanent tween residents and other district court concluded juris that it had aliens. Ashcroft, Roman v. diction over Roman’s because one (N.D.Ohio 2002) of the four named respondents peti [Roman The to the II]. tion—the district court General —was also found Roman’s that the IJ’s fail- custodian and because the district court give ure to Roman an opportunity to be had personal jurisdiction over the Attor heard at his deportation hearing was ney Reasoning that, General. under the harmless Id. error. at 816. The case was circumstances, it was appropriate for Ro remanded to the BIA to allow Roman to man to name someone other than his im pursue his claim for a waiver discretionary custodian, mediate the district court con removal, 212(h). §to Id. cluded that General should government The timely appealed be deemed Roman’s custodian. Because district court’s September 2001 and Janu- the Attorney subject General was to ser ary 2002 orders. vice of process the Northern District of government 2. The argument has waived this appeal. on relief, but prisoner who seeks upon it concluded

Ohio, court the district holds him what is who upon person petition. Roman’s over jurisdiction had custody.”). There- unlawful alleged to be appeals order, a habeas arguing fore, jurisdiction over has September court’s juris- not Ro- if it corpus petition pur- corpus petitioner’s for habeas custodian. custodian over man’s diction district court therefore To Braden, that the and 410 U.S. S.Ct. poses At- personal jurisdiction therefore jurisdiction, lacked a court evaluate argues torney General. custodi- identify petitioner’s must first his be deemed should Attorney General per- it has whether an and then determine corpus purposes, for habeas custodian over that custodian. sonal effec- alternative decision that the opportunity of an

tively deprive Roman of who “Historically, the question cir- under the review seek custodian,’ appro ‘the and therefore suit, cumstances. de in a habeas priate respondent power over on who has pends primarily that extraor- not believe we do Because convenience ... on petitioner our justify classifica- dinary circumstances the court.” Henderson parties as Roman’s Attorney General tion of (2d Cir.1998), case, conclude that in this denied, 119 S.Ct. 526 U.S. cert. At- recognizing the court erred general aAs L.Ed.2d 209 respon- appropriate torney General as respon rule, should name as a petition. to Roman’s dent “the his habeas dent to Rule Custodian The Immediate A. control over having day-to-day individual being is alien] in which facility [the the direct a writ shall A 688, v. 233 Vasquez detained.” having person corpus “to of habeas denied, (1st Cir.2000), 534 U.S. cert. 696 28 detained.”3 person custody of (2001). 43, 151 L.Ed.2d 122 S.Ct. 2243; Judi- § Braden 30th see U.S.C. custodian the “immediate This known as 494- Ky., U.S. Ct. cial Circuit peti (1973) recognizes it rule” because 35 L.Ed.2d 93 S.Ct. or “direct” “immediate” tioner’s (“The not act corpus does writ refer deemed to should be alien's custodians Act of Security Homeland Pursuant to the 3. the HSA. 107-296, corresponding under officials to the ("HSA”), Stat. No. Pub.L. provides, The HSA 25, 2002), (Nov. Department of performs the Security functions Homeland Secretary authority to the [sjubject Savings by INS. The formerly performed Act, shall pending actions civil under "[rjefer- provides that the HSA Provision of notwithstanding enactment continue agency that is relating an transferred ences agency to the an or the transfer of this Act statutes, actions, or- Department pro- in Executive to the civil Department, and in such directives, ders, rules, delega- had, regulations, judgments or ren- ceedings be shall precede such transfer same manner authority tions and enforced dered enact- Act be if such of this shall effect as effective date the same or the and with refer, De- appropriate, to the had not transfer occurred. deemed to ment or Thus, 552(c). officers, 1512(c), we agents, employees, 6 U.S.C. or partment, to its HSA were the HSA action as if proceed units or this civil organizational in corresponding or to its effect, understanding 552(d). 1512(d), yet with functions.” HSA cases applicable in future analysis However, will civil ac- our context of this within custodians corresponding analogy to the tion, parties' by that the need conclude aliens under HSA. detained identity of a detained arguments about “person having as the custody” 3.03[5], him over at 3-16 The “district under 2243. Courts deemed have these directors authority have responsibility custodians respondents grant or deny applications various corpus petitions “practical” petitions [INS], submitted to the to initiate matter any “based on common sense district, adminis- authorized proceeding in their justice.” Bennett, tration of Sanders and ... issue appear notices to in re- (D.C.Cir.1945). Id.; moval proceedings.” see 8 C.F.R. § 103.1(g)(2)(h), by amended 68 Fed.Reg. Pursuant to the immediate custodi (Mar. 6, 2003). 10922-01 As the heads of rule, prisoner filing a the basic operating units of the Dis- generally should name aas re trict Directors oversee the confinement of spondent warden prison where aliens all three kinds of INS detention he is Vasquez, confined. 233 F.3d at 691. Centers,” facilities—“Service Processing Similarly, a detained alien filing a habeas “Contract Facilities,” Detention corpus petition should generally name as a “[sjtate or local facilities used person exercising daily through Intergovernmental Ser- control over his affairs. Courts have said (IGSAs) Agreements vice to hold detainees that a detained alien’s immediate custodian for more than 72 hours.” Oper- Detention is either the warden of facility where ations Manual: Admissions and Release 1 the alien is detained or the INS District (Sept. 2000), available Director of the district where the alien is http://www.immigration/gov/graphics/laws- being detained.4 We conclude that al (last regs/guidance.htm Mar. modified though the warden of each detention facili 2003). The wardens of all these facilities ty technically has day-to-day control over act pursuant to INS Detention Standards detainees, alien the INS District Director and are considered agents of the INS Dis- for the district where a detention facility is trict Director their district. It is clear power located “has over” alien habeas cor the INS does not power vest pus petitioners. Henderson, 157 F.3d at detained aliens wardens detention facilities because the INS relies on state

District Directors head INS district of- and local governments to house federal fices, which are considered “the oper- basic INS detainees. daily Whatever control ating unit[s] the [INS].” Charles Gor- state and governments local have over fed- don, Stanley Mailman, Stephen and detainees, Yale- eral they INS have that control Loehr, 1 Immigration Law & solely Procedure pursuant to the direction of the INS. treating For courts the 155, warden of the Thornburgh, (S.D.N.Y. facili F.Supp. 765 156 ty where 1991). an alien is detained as the alien’s treating For courts the INS District custodian, immediate see Yang You Yiv. Mau Director of the district the alien where is 500, gans, (3d 24 Cir.1994) ("It 507 is custodian, detained the as alien's immediate the prison warden the INS, facility or the 106, where see (2d Henderson v. 126 the is Cir.1998), detainee held that denied, is considered 1004, the cert. 526 U.S. 119 purposes custodian 1141, of a habeas (1999); action S.Ct. 143 L.Ed.2d Santiago 209 .... it INS, because is the day-to 1102, warden that has F.Supp.2d (N.D.Cal. v. 134 1103 day control prisoner 2001); over the Reno, and who 00-71241, can Williams v. No. 2001 produce body.”); the 85867, actual Aphayavong (E.D.Mich. 11, v. WL 2001); at *2 Jan. 1194, F.Supp.2d (S.D.Cal. 169 Reno, 1197 286, v. F.Supp.2d 93 Santos-Gonzalez 2001); Reno, Samoeun v. (E.D.N.Y.2000); Reno, No. Civ.A. 00-610 291 Ozoanya v. 968 L., 210472, (D.R.I. Jan.3, 2001 WL at *2 F.Supp. (D.D.C.1997); 8 Carvajales-Cepeda 2001); States, Meissner, Chukwurah v. United (S.D.N.Y. 813 v. F.Supp. 966 208 F.Supp. (E.D.N.Y.1993); 1997). Peon v. Supreme the Court and that Reno, beas actions” 00-610 No. Civ.A. v. Samoeun in the (D.R.I. Jan.3, apply rule *2 has been reluctant L., 2001 WL petitions it is the filed that 2001) (“[I]t observed context of habeas has been pri- aliens). exercises reviewing an Director who One court District INS detained be- INS detainee an over concluded mary corpus petition control alien’s for the agent an acts warden as four jurisdiction cause over had that it Director.”). INS Therefore District Di District respondents named —two Ro- is Orleans for New Director INS, and rectors, the Commissioner cor- for habeas custodian man’s immediate were they Attorney General —because pus purposes. petitioner able all custodians Mojica process.5 by service be reached District of the Northern Because (E.D.N.Y.1997), F.Supp. person have it did not that concluded Ohio 157 F.3d 106 part, Dis the New Orleans al aff 'd however, must decide Director, we trict a different apply no reason to We see im than Roman’s other persons whether petitioner’s a custodian identifying rule for as mediate custodian —such an is petitioner whether the depending on of him for custody have General —also 2243 states prisoner. Section alien or Ro argument, At oral purposes. § 2243 “shall be writ of habeas immediate custodi that the suggested man custody of having person to the directed apply context an rule should detained,” suggests which person See, e.g., of aliens. corpus petitions named properly can individual one (observing that F.3d at Vasquez, 233 corpus peti- a habeas as identity of concerning case law “the added); (emphasis tion. 28 petitions respondent to proper (suggesting F.3d at 693 Vasquez, 233 see much more aliens brought by detained custodian, name one must that a case than the coherent” far less sparse and array an among from may not “choose prison law about custodians”). Although Con- colorable Rachel E. Ro corpus petitions); er habeas article, “intended the may have gress senbloom, Attorney General Is the significance,” ‘the,’ dispositive ... have ? Personal INS Detainee Custodian of Olsen, see Chavez-Rivas Custodi “Immediate Jurisdiction (“ (D.N.J.2002) could mean ‘[T]he’ Related Immigration Habeas Rule in an” mean it could easily ‘any’ ‘a’ Change Actions, L. & Soc. Rev. 27 N.Y.U. Circuit ‘that.’”), with the First agree (2001-2002) (maintaining effec- rule custodian immediate “[t]he place “has no rule meaning and plain section 2243’s ha- tuates immigration-related adjudication of re four reasoned that of New York filed has "In where ... 5. cases un deemed govern be custodians spondents ... should of confinement in the district does objection to the habeas statute "[t]he raised no 2243 because ment der General, custody having INS Commissioner person or the specify who the not Rosenbloom, Is being E. only Rachel be, may named.” it state that there nor does will De an INS Custodian the statute does Nowhere custodian. one and the “Imme tainee? Personal lurisdiction at 166 Id. custodian.” speak anof Immigration-Related Rule in diate Custodian” logic omitted). this We note that (quotations Actions, Soc. L. Rev. & N.Y.U. Habeas custodi against an immediate counsel would (2001-2002). Mojica v. In Change prisoner habeas in context rule (E.D.N.Y.1997), F.Supp. 130 aff'd corpus petitions as well. (1998), the Eastern part, F.3d 106 gives natural, a commonsense construction particularly true Congress because is in a to the statute.” Vasquez, 233 693. better position to solve the problem of overloaded dockets. When prisoner habe- Moreover, matter, practical as a “the corpus petitions as caused dockets to be- [immediate custodian] rule is clear and come 1940s, backlogged Congress easily administered.” Id. adjudication gave federal prisoners ability to attack corpus petitions by filed de- collaterally their convictions in the court tained would aliens become considerably they where were sentenced rather than in more difficult administer if we were to of their confinement. 28 adopt a broader definition of “custodian” 2255; see Vasquez, 233 F.3d at words, context. other interpret- 694. Requiring alien habeas corpus peti- ing the word “custodian” in 2243 to re- tioners to name their immediate custodians fer only to not an alien’s immediate custo- as respondents may contribute to the dian, but other also officials with control problem of overcrowded dockets in partic- over the alien’s detention and release— However, ular districts. given that our such as the Commissioner of the INS or recognition of a broader definition of “cus- the Attorney General—would establish a might todian” delay adjudication regime in which several courts would have alien habeas petitions in ways, other we personal jurisdiction over an alien’s “custo- feel confident that we should not attempt dians.” Aliens could engage then in forum to construct judicial solution to this prob- shopping, choosing among several differ- lem. ent long districts as personal jurisdic-

tion existed over at least one of the vari- For all the above, reasons discussed ous custodians and venue requirements conclude detained alien generally were satisfied. Although venue consider- must designate his immediate custodian— ations would ensure that a petitioner could the INS District Director not in every jurisdiction, file courts would where he is being respon- detained —as the nevertheless be forced “in many cases to dent to his corpus petition. undertake fact-intensive analyses of venue

and forum non Beyond conveniens issues.” B. Vas- the Immediate Custodian quez, 233 F.3d at Thus, 694. in this re- Rule spect, adopting a broader definition of Although we conclude that the immedi- “custodian” would complicate and extend ate custodian rule generally applies to

the duration of proceedings. alien habeas corpus petitioners, we note points

Roman out that if even a broader possibility exceptions to this rule. definition of “custodian” might delay “[T]he rules treating the immediate custo- courts in their evaluation of a single habe- dian as the proper respondent ... as corpus petition, it slow the have not applied been consistently or in a adjudication of habeas corpus petitions any rigid Henderson, fashion.” 157 F.3d at more than already it is slowed In fact, most courts adopting the backlog of petitions such jurisdictions immediate custodian rule for alien habeas housing INS detention facilities. In es- corpus petitioners have explicitly noted the sence, suggests regime he possibility of exceptions they even adopt proposes would any cause problems See, the rule. e.g., Vasquez, 233 F.3d at greater than (“[W]e those under the existing re- 696 can envision that may there be gime. However, we see no reason to solve extraordinary circumstances which the problem one by creating another. This is Attorney General appropriately might be

323 Ro- habeas review.” right his prived of habe to an alien respondent as the named , consider, first, We must 194 man at 15. Br. petition.”); Chavez-Rivas may ever be Attorney General 375; v. 828 the whether Nwankwo (“While (E.D.N.Y.1993) an alien’s custodian 171, 174 named as F.Supp. properly a sound as matter of may second, and, rule be the circumstances general whether the cor the habeas language the of the recognition our policy, require case this adher rigid compel does statute pus proper respondent aas Attorney General case”). as a Arguably, every to it ence petition. corpus to Roman’s habeas be, is, matter, “it or should jurisdictional named has respondent that the enough Attorney as Custodi- General 1. The body when ability produce power an pro the court by so directed the immediate custo corollary A upon him.” served lawfully issued and cess Attorney generally is that dian rule 188, 199, 68 Clark, 335 U.S.

Ahrens v. custodi neither the is considered General (1948) (Rutledge, 1443, L.Ed. 1898 92 5.Ct. for purposes alien an of a detained case, urges In this J., dissenting). to an respondent proper nor a 2243 to the exception make an court to Vas petition.6 corpus alien’s concluding rule custodian 696; Carvajales-Cepeda F.3d at quez, 233 can be consid Attorney General that 207, 209 Meissner, F.Supp. 966 v. and thus Roman’s custodian ered (“It ... that (S.D.N.Y.1997) is well settled petition. to Roman’s respondent not the Attorney custodian General ap- declined to court The district below detainees.”). In the context of I.N.S. rule, instead the immediate custodian ply rejected notion courts have prisoners, Attorney General concluding that be Attorney General ha- to Roman’s appropriate an supervisory although he cause gov- appeal, On petition. beas prisoners, all federal custody regulatory court maintains that ernment not have ... he does that apparent “it is the immediate from by departing erred who prisoner of a custody physical actual juris- basing personal rule custodian or other prison in a federal is confined Attorney General. Roman on diction Biddle, 131 v. Jones institution.” federal properly that counters denied, (8th Cir.1942), 853, cert. F.2d 854 immediate custo- to the exception made 1152 87 L.Ed. 63 S.Ct. 318 U.S. exception was neces- rule because dian Attorney (1943). prisoners, with As right to seek Roman’s sary preserve cus physical actual does have General Specifically, Roman relief. by the INS. tody aliens detained jurisdiction over court “to allow asks this courts with those agree Although in circumstances an indirect have concluded de- otherwise be a detainee where denied, Cir.1942), (8th 318 cert. F.2d specifically re- have Although few circuits 6. L.Ed. 1152 63 S.Ct. Gener- U.S. possibility that jected the Circuit, "[tjhese courts alien According in the context of may a custodian to the First al have several circuits is the corpus petitions, Attorney General while the reason prison- is not see prisoners, said federal all overseer of ultimate See, e.g., Sanders under er’s custodian (b)](2), responsi she is not § 4001[ 18 U.S.C. (D.C.Cir.1945); Bennett, F.2d v. does operations and prison day-to-day ble for 1487, 1491- Thornburgh, F.2d Blango v. physical custo in actual prisoners not hold Meese, Cir.1991); F.2d (10th Guerra at 691. Vasquez, 233 dy.” Biddle, (D.C.Cir.1986); Jones 324 generally

General is not respon- complete has discretion to decide wheth- any corpus petition, dent to none- er or not removal shall be directed. recognize theless we the Attorney Henderson, 157 F.3d at 126 (quotations relationship prisoners General’s differs omitted). and footnote Congress gives the significantly from his relationship to de- Attorney General authority to “take into Attorney tained aliens. The General’s role custody any alien” whose criminal convic- ultimate overseer of federal prison- tions render him deportable or inadmissi- ers, 4001(b)(2), see 18 U.S.C. is not ble, 236(e)(1), INA 8 U.S.C. equivalent designation to his legal § 1226(c)(1),8and has designated him as custodian aliens because he plays a the proper respondent in most actions re- larger much immigration role in the con- viewing the legality orders, of removal text, Chavez-Rivas, see 194 F.Supp.2d at § 242(b)(3)(A), INA (“Congress consistently designated has 1252(b)(3)(A). Arguably, “in immigra- Attorney General as legal custodi- cases, tion the warden or district director of immigration petitioners.”). who ‘day-to-day has control’ peti- [over a The Second Circuit has described the merely tioner] is an agent of Attorney unique General’s role in the im- General, who has the statutorily autho- migration context as follows: rized power over custody aliens’ and re- There ... question is no that the Attor- lease.” See Arias-Agramonte v. Comm’r ney General power to produce INS, No. 2412(RWS), 00 Civ. 2000 WL petitioners, remains the ultimate de- (S.D.N.Y. at *1 Oct.30, 2000); see cisionmaker as to matters concerning Nwankwo, 828 F.Supp. at 174 (explaining INS, 1103(a)(1),7 see 8 U.S.C. and the Attorney may General be “an commonly is designated appropriate respondent in a habeas corpus cases, these personal juris- even when proceeding because has the power she diction over the immediate custodian direct her carry any subordinates out clearly lies. In respect, the ex- order produce directed to her to or release traordinary pervasive and role that the petitioner”).9 plays General in immigration matters virtually Thus, light is unique. degree of control which Attorney General the Attorney continues to be in General has over an alien’s complete charge of custodian, the proceedings we believe that it leading up to the order may directing appropriate the[ ] to recognize the Attor- removal [of aliens] from country ney General as a proper respondent to an 1103(a)(1) 7. Section has been by amended proxy. as a Arias-Agramonte HSA, 116 Stat. 2135 2412(RWS), Comm’r No. 00 Civ. (S.D.N.Y. Oct.30, WL 2000). at *6 8. The contends that the reference “Attorney to the mandatory General” in the 9.The Eastern District of New reject York has placeholder detention statute is a mere for all ed the immediate regularly rule immigration officers because more than one recognizes General as a proper entity empowered to take an alien into respondent to an corpus peti alien’s habeas custody. 287.7(d) (2001), See 8 C.F.R. See, e.g., Reno, tion. Pena-Rosario v. (June amended 2003). Fed.Reg. 35273-01 notes, F.Supp.2d (E.D.N.Y.2000); however, As Roman Pottinger pro- other (E.D.N.Y. Illegal visions of Immigration Reform 1999), Immigrant Responsibility grounds, Act of on other 1996 dele- 2000 WL offd gate specific responsibilities (2d 18, 2000) to other immi- Cir. (unpublished Dec. gration naming officials without the Attorney opinion). as the States of the United ney General under cer- corpus petition habeas alien’s circum- custodian,” id. at 1116. Such scope nature and The circumstances. tain does arise where a detainee may stances to be de- remains circumstances those judicial opportunity for have a realistic termined. detention. of his executive review peti- the safeguards right to Constitution Extraordinary Circumstances corpus, U.S. writ of habeas tion for a court’s district the concedes that Roman Const, right I cl. art. the jurisdiction finding see, e.g., abrogated, lightly not be should unusual, somewhat was General 661-62, Turpin, 518 U.S. Felker it circumstances the that under argues but (1996) (sug- L.Ed.2d 827 S.Ct. preserv- importance the justified was only very will enforce courts gesting that corpus habeas right to seek ing Roman’s repealing habeas statutory language clear that court reasoned relief. The Therefore, under ex- jurisdiction). corpus in a facil- was incarcerated because Roman it is nec- where traordinary circumstances of Louisiana the ity in Western to access person’s a essary to preserve corpus backlog of habeas with a known relief, may recognize corpus habeas INS, 989 F.2d Emejulu v. petitions, an to respondent as a Attorney General (5th Cir.1993), risk that was a there corpus petition. habeas alien’s the Unit- from be removed might “Roman extraordinary circum- example could be petition One his before ed States Dem- I, In Demjanjuk v. Meese. 162 stances is Roman the merits.” on heard named the found a counsel janjuk, petitioner’s district court at 763. The respondent to removal that believe facie reason to “prima the govern- prior corpus petition because Republic habeas the Dominican Roman to custody holding petitioner petition of his ment was the merits adjudication of to he while awaited him the location deny at an undisclosed would, purposes, practical for Demjanjuk, to Israel. writ,” that concluded extradition benefit of petitioner’s Because F.2d at 1116. proper a Attorney General was Demjanjuk’s words, attorneys unaware In other were Id. petition. to Roman’s file in “to location, had they would have concluded that en- rigidly if the court jurisdiction” every relief deprived of would be Id. rule. immediate custodian to forced the name permitted if he were reasoned Judge Bork respondent. Attorney General a a under General was extraordinary circum certain Under exception because an circumstances depart necessary to may be it stances “that necessary to ensure was rule in or immediate custodian from a right denied not be access to preserve petitioner’s der However, not corpus.” Id. writ of “[t]he spite corpus relief. any fur- exception to extend wanting judge a circuit ... general rule Dem- preserve necessary than ther cor writ of habeas grant jurisdiction for habeas janjuk’s right cus petitioner’s if the pus jurisdiction relief, specified the court circuit,” Dem located within todian Demjanjuk’s presence if terminate Meese, janjuk known. became in another (Bork, J.), (D.C.Cir.1986) we believe willing to make are also Some courts very in ... limited “it is appropriate, rule the immediate exception to circumstances, Attor- to treat special extraordinary in other Rather, circumstances. For ter. the facts of require this case example, courts have noted the INS’s abili this to only court determine whether the ty, matter, practical as a to deny any aliens alleged crowding of a docket in the district meaningful opportunity to seek habeas of an justifies alien’s permit- confinement corpus simply by relief transferring aliens ting the alien to name Attorney Gener- any to another district they time filed a al as a to his habeas corpus Chavez-Rivas, habeas corpus petition. petition filed the district where he for- F.Supp.2d at 374. Aliens remaining merly resided and was convicted. detention for periods extended are often The District Court below conclud transferred during times several their de ed that the justified recog circumstances tention. Ashcroft, See Lee v. nizing respon as a (E.D.N.Y.2002) (“[T]he dent to petition Roman’s because Roman custody, location of identity and the of the effectively would opportunity denied an day-to-day custodian, frequently change to seek habeas relief if he named when are detainees among transferred his immediate custodian filed peti his facilities, all of which are under the tion in the district where he being de General.”); control of Rosen tained. Roman’s entire argument hinges bloom, supra, at 549. In light of these on the claim that he should not transfers, be re one court reasoned an aben quired to name his immediate custodian at may properly name a other facility Oakdale as the respondent than his be immediate custodian because a cause petition a Western District of naming higher official, level Louisi such ana General, as the would have adjudi could be Roman’s petition cated interruption seeking without a writ against his event of a immedi transfer. Arias-Agramonte, ate Roman, custodian. According WL be 1617999, at (explaining *8 cause petition he would petition a have to file his naming only one’s immediate custodian Louisiana, District Western he would be dismissed when the alien was would effectively be denied an opportunity district). transferred to another local to seek habeas relief because “the torrent petitions flowing from the Oakdale fa Although dowe not believe that cility” into that district all would but en mere possibility of successive transfers sure that the district court would never justify exception to the immedi- petition consider Roman’s prior to his de rule, ate custodian we do believe that an portation. Emejulu, 989 F.2d at 772. exception might be appropriate if the INS at Although least equated were one court has to exercise its power transfer in a filing a habeas clear effort to Western evade an peti- alien’s habeas case, tions. Louisiana however, being “any denied Roman has alleged meaningful relief,” suggesting facts either that the Nwank wo, government F.Supp. improperly manipulated do not its believe authority in an attempt to deny Roman a crowded a docket can—without meaningful opportunity for more—constitute extraordinary relief or that circum Roman faced difficulties akin to Demjan- justifying stances departure from the juk’s inability identify his immediate immediate custodian rule. Alcaide- Cf. Therefore, custodian. this court Zelaya need not v. McElroy, 99Civ.5102(DC), Nos. decide the appropriate scope of the 9999(DC), ex- Civ. 2000 WL at *4 traordinary (S.D.N.Y. circumstances exception 2000) Oct. (expressing “con immediate custodian rule as a general mat- cern that ‘seriously can of a bar on readmission (noting that “the corpus’ remedy of undermine collat- legally cognizable alien is of aliens removed a number large detaining so con- preserves a live consequence that eral local district facility that in one peti- deportation even after peti- troversy of habeas by a flood overwhelmed tioner”); Ashcroft, Smith tions”). (4th Cir.2002); Chong Lee Moi Roman’s circumstances (3d Cir.2001). Be- 382-83 recognize that our refusal are not such that an alien or- provides INA cause the will respondent aas Attorney General admis- again “who seeks dered removed possibili- Roman even effectively deny of such of the date years within 5 sion an relief. As initial corpus habeas ty of inadmissible,” 8 U.S.C. ... is removal that matter, no reason there is 1182(a)(9)(A)(ii), of removal § an order corpus habeas filed his not have could consequences sufficient collateral creates of Louisi- District in the Western petition a live alien’s a removed to render light in of fact, do so ana; he can still Chong, see Lee controversy, Moi case or to jurisdiction lack that we our conclusion de- will not be at 385. Roman Furthermore, Ro- petition. consider his habeas to seek opportunity of his prived sugges- Fifth Circuit’s only the man cites prior to if he is removed corpus relief even Western opinion in a 1993 tion petition. of his resolution a court’s very a overloaded of Louisiana District Therefore, of Roman’s the circumstances backlog. See as evidence

docket that a are not such corpus petition no Roman cites F.2d at 772. Emejulu, 989 the immediate custodian departure from discrepancy be- aof vast recent evidence time, Attor- and the justified rule at this is judge filings per the habeas tween respondent to ney is not a court, General district any other in that court District Northern petition. The Roman’s any find to clear been unable and we have finding of relying on its by of Ohio erred discrepancy. such a of evidence jurisdiction over or either Roman of whether Regardless here. as a basis convincing provide can whether finally determine decline to We of the West the caseload statistics about Ro- jurisdiction over court had the district Louisiana, we do not believe District of ern other corpus petition on man’s removal alien’s possibility of an below court grounds because of his adjudication to prior the Cleve- either whether did not decide to effective amounts corpus petition INS Commis- or the Director land District to opportunity the petitioner’s denial named properly was a sioner relief. meaningful habeas seek party briefed neither and because peti that a have concluded circuits Several court. direct We before matter re custody jurisdictional tioner meets determine, to court on remand he has after 2241 even quirement in our expressed with views consistent he was custo long “so been removed is these officials whether either opinion, was filed” when the habeas dy in this action. properly controversy continues or case “continues long exist as ROMAN’S TRANSFERRING III. his consequences collateral actual suffer PETITION INS, 314 Zegarra-Gomez removal.” court that the district Assuming (9th Cir.2003); Leitao see F.3d decides Cir.2002) of Ohio (1st Northern for the Cir.1987) (same). on that none of the respon- remand named Through Con- it, properly dents were before we now gress “gave authority broad permit consider whether district court erred transfer of an action any between two by dismissing the New Orleans District courts,” Ross, federal 822 F.2d at Director from the action than rather trans- and courts have Congress’s effectuated in- ferring the entire action to 28 tent broadly statute, construing the id. provides 1631. Section 1631 at 1527. The language of 1631 does not if a appeal civil action or is filed a court any refer to specific type jurisdiction, shall, lacking jurisdiction, “the if it is only referring broadly “jurisdiction.” justice, interest transfer such Tayon, (“The supra, literal lan- any action or appeal other such court in guage of the ... statute enough broad which the action appeal or could have been to encompass subject either [lack matter brought at the time it filed or no- personal jurisdiction].”). Moreover, a ticed.” (emphasis 28 U.S.C. add- broad construction of the statute is consis- ed). transfer, Upon such “the action or tent Congress’s with intent “protect to appeal proceed shall as if it had been filed plaintiff against either additional expense in or noticed for the court to which it is or the expiration of a relevant statute of transferred on the date which it was upon limitations in the event that the plaintiff actually filed or noticed for the court makes an error in trying select to from which it is transferred.” Id. A court proper court within the complex federal may to dismiss decide an action rather court system.” 17 Wright, Charles Alan than § it transferring under 1631 either Arthur Miller, R. & Edward H. Cooper, (1) permissible because no federal court Federal Practice and Procedure: Juris- jurisdiction action, would have over the or (2d 4104, ed.1986) § diction (cit- 2d at 406 (2) because “transfer would not be ing (1982)). S.Rep. No. 97-275 light justice.” interest of Jeffrey Tayon, W. language § 1631 and its purpose, we The Federal Statute: 28 U.S.C. Transfer therefore conclude that the statute applies 1631, § 189, 29 S. Tex. L.Rev. 214 to federal identifying courts any jurisdic- We note that split circuits have on the defect, tional regardless of whether it in- question § whether provides 1631 for personal volves subject or jurisdic- matter only transfers in the event that a federal tion. court subject jurisdiction lacks matter In light of our conclusion that the Attor- also in event that the court per- lacks ney General not a proper jurisdiction. See, sonal e.g., SongByrd, and in light of the district Inc. court’s Grossman, conclu- 172, Estate 206 F.3d sion that (2d it Cir.) personal jurisdiction lacked 179 n. 9 (noting legisla- that “the over the Director, tive New Orleans history of section District provides 1631 some we reason believe that 1631 would apply believe section autho- this rizes case. It transfers would have subject appropriate lack of been cure cert, jurisdiction”), denied, matter Roman to 531 file his petition U.S. (2000); S.Ct. Western L.Ed.2d 33 District of Louisiana because it is Ltd., Renner Toys jurisdiction v. Lanard 33 F.3d of Roman’s confinement. (3d Cir.1994) Perez, (explaining (6th that a court See Martin v. 319 F.3d lacking Cir.2003) personal jurisdiction may consider (stating that a transferring pursuant action “must be filed in the district court that has 1631); Ross v. Colo. jurisdiction Outward Bound prisoner’s place over of con- Sch., Inc., (10th finement”). 1526-27 Roman named his immediate (noting supra,, Di- District custodian, Orleans the New part protect petitioners cor- is intended to the habeas rector, aas they if expense incurring additional from in the Northern filed that he pus court). wrong file in the erroneously Although the district Ohio. District of District Northern that the found court that, reasons, if we conclude For these jurisdiction personal have does Ohio finds that court on remand the district Director, District Orleans the New over and the District Director Cleveland of Louisiana District the Western respondents, are not Commissioner jurisdiction. requisite personal have the dismissing court erred the district jurisdiction general “A federal Director from the District New Orleans contacts with the defendant’s when should now The district court action. are ‘continu- state ‘substantial’ forum District the action to the Western transfer may so that state systematic,’ ous and § 1631.11 Louisiana the de- personal exercise relate does not if the action even fendant IV. CONCLUSION the state.” with contacts

to the defendant’s Inc., Track, 417-18 Youn v. above, explained For reasons Cir.2003). District (6th The New Orleans judgment court’s VACATE in Western works Director to Roman relief granting subject to and is Louisiana Attorney General was not because of that court.10 jurisdiction in Ro- respondent named as properly of Louisi- District Because the Western corpus. a writ of habeas for petition man’s the New over have would ana to the district the case REMAND We Director, the Northern District Orleans decide whether with instructions court de- court cannot Ohio district District of or the District Director the Cleveland § 1631 on case under transfer the cline to con- proper is a Commissioner have no federal court would that grounds In the event that opinion. sistent with Therefore, appropriate- jurisdiction. finds that these officials court the district turns on whether of a 1631 transfer ness we instruct respondents, proper not are in the interest a transfer would such petition court to transfer the district it would be justice. We believe pursuant of Louisiana District the Western the action to transfer justice interest § 1631. to 28 U.S.C. of the action a dismissal because to incur additional only cause Roman GIBBONS, concurring. Judge, Circuit same habeas filing the expense of in this case and I the result concur Louisi- in the Western majority opinion’s much of the Miller, Cooper, agree with & 17 Wright, See ana. where court improper, venue is over- District Director The New Orleans 10. state if it be in the for filed "shall ... immigration-related services was the action sees Mississippi. any and for Southern of Louisiana case to justice, such transfer interest http://www.immigration.gov/graphics could action] [the division which (last modi- id., /fieldoffices/neworleans/index.htm regardless of wheth brought,” have been 28, 2003). Feb. fied juris personal transferring lacks er the Goldlawr, defendant, v. Inc. diction permit for § 1631 not transfers Even if did 11. Heiman, S.Ct. U.S. the action jurisdiction, lack Stokes, (1962); 623 F.2d Martin L.Ed.2d U.S.C. to 28 be transferred should 1980). (6th 1406(a) Cir. 1406(a). where states that Section I reasoning. separately write to note (rejecting argument two that Attorney General points. was alien’s custodian purpose for of alien’s petition). The majority states that First, whether the ais de “Attorney relationship General’s prisoner, tained alien or a federal prisoners significantly differs from his re- authority weight supports a determina lationship to suggests detained aliens” and Attorney tion that General is not a Attorney General has a unique proper respondent petitions under 28 role in immigration matters that makes Vasquez 233 F.3d him likely more to be proper (1st Cir.2000) (finding that nor in a brought by a detained alien mally General is not than a federal prisoner. I am not pre- proper respondent in alien habeas cases pared conclusion, to reach this which and noting that a number of courts have unnecessary seems to the result. As the held that the Attorney General is not a First Circuit stated in Vasquez: purposes custodian for prison of a The Attorney General’s regard role with er’s petition); Yi v. Maugans, 24 materially to aliens is not different from (3d Cir.1994) (summarily her role with regard prisoners at least dismissing the idea that Gen not enough different to justify a rule might eral proper respondent be a in an aliens, she is the custodian of but case); alien habeas Blango v. Thornburgh, prisoners, purposes. Af- 1487,1491-92 (10th Cir.1991) 942 F.2d (per all, ter the Attorney General is the des- curiam) (affirming district court’s dismissal ignated custodian of prisoners to much prison because the the same extent as she is the designated warden, Attorney General, not the was the custodian of aliens. Compare 18 U.S.C. proper respondent prisoner’s for the habe- 4001(2) 1226(c)(1). with 8 U.S.C. action); Bennett, Sanders v. just And as she has the ultimate authori- (D.C.Cir.1945) (holding warden, ty produce alien, body of an she Attorney General, proper respon has the authority ultimate produce dent in prisoner’s petition); Jones body prisoner. of a Biddle, (8th Cir.1942) 233 F.3d at 696. (same); Santiago v. Second, (N.D.Cal.2001) its discussion of extraordi- (finding that At nary circumstances which torney may justify was not a de- respon parture from the rule, dent brought habeas action by majority alien); hypothetical addresses situa- Pearce v. Ashcroft, No. tions that present are not 301CV1160CFD, here. I 2003 WL at *1 limit (D.Conn. holding our 2003) point on this Mar.12, to the con- (concluding that clusion that a crowded docket alone cannot Attorney General is not a proper re constitute extraordinary circumstances, spondent to an alien’s habeas action filed noting matter, of course that as a factual 2241); §to Carvajales-Cepeda v. points to no Meissner, (S.D.N.Y. evidence from which F.Supp. one 1997) (“It could find the existence of a crowded is well settled ... that the At docket in the Western District of Louisi- torney General is not the custodian of INS ana. detainees”); Wang v. 862 F.Supp. (E.D.N.Y.1994) 812-13 (finding that

Attorney General was not alien’s custodian purposes); Peon v. Thorn

burgh, (S.D.N.Y.1991) 765 F.Supp.

Case Details

Case Name: Julio E. Roman v. John Ashcroft

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 14, 2004

Citation: 340 F.3d 314

Docket Number: 02-3253

Court Abbreviation: 6th Cir.