Opinion
No. 04 Civ. 9684 (SHS) (JCF).
October 7, 2005
REPORT AND RECOMMENDATION
William Daneris Azize brought this proceeding challenging a final order of removal and seeking release from detention on bail while his petition to overturn the removal order was pending. His petition has been transferred to the United States Court of Appeals for the Second Circuit pursuant to the Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005). However, his application for bail is not subject to transfer to the Circuit, and it must be determined whether that application is properly adjudicated in this court and, if so, whether Mr. Azize is entitled to the relief he seeks.
Previously, courts were sharply divided on whether, in immigration cases, the proper respondent was the Attorney General of the United States, or the official in charge of the facility where the petitioner was housed, such that venue would only be proper in that district. See Bell v. Ashcroft, No. 03 Civ. 766, 2003 WL 22358800, at *2-3 (S.D.N.Y. Oct. 15, 2003) (noting split among courts). In Henderson v. Immigration and Naturalization Service, 157 F.3d 106, 122-28 (2d Cir. 1998), the Second Circuit discussed this issue but did not decide it.
However, last year in Rumsfeld v. Padilla, 542 U.S. 426, 124 S. Ct. 2711 (2004), the Supreme Court held that in a "core" habeas corpus proceeding where the petitioner challenges his present physical custody, he must name as respondent his immediate custodian — that is, the warden of the facility where he is detained — and file his petition in the district court where the custodian is located. Id. at ___, 124 S. Ct. at 2724.Padilla controls this case, since Mr. Azize's application for bail is clearly a challenge to his present physical custody. Since the petitioner is detained in the Western District of Louisiana, his application for bail may only be considered in that jurisdiction.
When an action is filed in a district court that lacks jurisdiction, that court "shall, if it is in the interest of justice, transfer such action to . . . any other such court in which the action . . . could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631. Accordingly, it is appropriate to transfer Mr. Azize's bail application to the Western District of Louisiana. See Barnes v. United States Immigration Customs Enforcement, No. 05-CV-370, 2005 WL 1661652, at *2 (E.D.N.Y. July 14, 2005) (transferring immigration habeas to proper district); Shenaz v. Ashcroft, No. 04 Civ. 2578, 2004 WL 2378371, at *4 (S.D.N.Y. Oct. 25, 2004) (same).
Conclusion
For the reasons set forth above, I recommend that the petitioner's application for ball be transferred to the United States District Court for the Western District of Louisiana. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, Room 1010, and to the chambersof the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.