Opinion
Case No. 00-71241
January 11, 2001
Mr. Joseph Dean Williams, Francis L. Zebot, Assistant United States Attorney.
OPINION AND ORDER REJECTING MAGISTRATE'S REPORT AND RECOMMENDATION, DISMISSING CERTAIN RESPONDENTS, TRANSFERRING JURISDICTION OVER PETITIONER'S CASE TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, AND DENYING PETITIONER'S REQUEST FOR A STAY OF DEPORTATION
I. BACKGROUND
The facts of this case are fully described in Magistrate Judge Goldman's Report and Recommendation dated and filed December 7, 2000. In short, petitioner, who is currently in the custody of the Immigration and Naturalization Service (the "INS") at the Federal Detention Center in Oakdale, Louisiana ("FDC-Oakdale"), is scheduled to be deported to his native Ghana in the near future. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 which is now before this court. In his petition, plaintiff named as respondents Janet Reno, United States Attorney General, Doris Meissner, Commissioner, INS, Carol A. Jenifer, Detroit District Director, INS, Christine G. Davis, New Orleans District Director, INS, and the INS.
In his original petition, petitioner named Roy E. Schremp, former New Orleans District Director, as respondent in his official capacity. However, Christine G. Davis has since replaced Mr. Schremp as District Director. Accordingly, Ms. Davis is automatically substituted as a party in this matter. See Fed.R.Civ.P. 25(d)(1).
Respondents filed a "return and motion to dismiss" in which they argued primarily that Reno, Meissner, Jenifer, and the INS were improper respondents, and that the U.S. District Court for the Eastern District of Michigan lacked personal jurisdiction over the only proper respondent — Davis. This court referred the matter to Magistrate Judge Marc L. Goldman, who issued a Report and Recommendation ("RR") on December 7, 2000. Without deciding which of the various named respondents were proper, or whether respondent Davis was amenable to process in this court, Magistrate Goldman concluded that the United States District Court for the Western District of Louisiana was the proper venue for this case. Accordingly, Magistrate Goldman recommended that the court transfer the case there. Moreover, Magistrate Goldman recommended that the court stay petitioner's deportation pending resolution of this matter in the Western District of Louisiana.
The respondents filed timely objections to Magistrate Goldman's RR. Their objections are threefold. First, respondents contend that Magistrate Goldman erred by not concluding (1) that respondent Davis, New Orleans District Director of the INS, is the only proper respondent in this case, and (2) that respondent Davis is not amenable to process in the Eastern District of Michigan. Second, respondents contend that Magistrate Goldman erred in transferring the case to the Western District of Louisiana. Finally, respondents contend that Magistrate Goldman erred in concluding that the court should stay petitioner's deportation. For the reasons discussed below, the court rejects Magistrate Goldman's RR. Ms. Davis is the only proper respondent in this case, and she is not amenable to process in the Eastern District of Michigan. Therefore, the court will transfer this case to the Western District of Louisiana. However, the court will deny petitioner's request for a stay of deportation.
II. THE ONLY PROPER RESPONDENT IS CHRISTINE G. DAVIS
In their motion to dismiss, the respondents argue that the only "proper" respondent in an immigration-related habeas case is the immediate custodian of the alien. Their argument is based on the plain language of 28 U.S.C. § 2243 which states that a writ of habeas corpus granted by a district court "shall be directed to the person having custody of the person detained." Although the Sixth Circuit has not addressed this issue, most circuits have held that the person who has day-to-day control over the detainee is his "custodian." See e.g., Brittingham v. U.S., 982 F.2d 378 (9th Cir. 1992); Blango v. Thornburgh, 942 F.2d 1487 (10th Cir. 1991); Brennan v. Cunningham, 813 F.2d 1 (1st Cir. 1987); Yi v. Maugans, 24 F.3d 500 (3rd Cir. 1994). Usually, this person will be the warden of the facility where the detainee is being held. See Ex Parte Endo, 323 U.S. 283, 306 (1944) (writ is directed to prisoner's "jailer").
This court believes that a plain reading of section 2243 compels the adoption of the above definition of "custodian." That section clearly contemplates a custodian who has actual physical control over the detainee. The warden (or highest ranking official) of the facility where the detainee is being held is the person who exercises that type of control. The warden is the person who controls the detainee's day-to-day activities and who can produce the detainee before the habeas court. In this case, respondent Christine G. Davis, the New Orleans District Director of the INS, is the person who exercises such control over the petitioner. Thus, the court finds that Ms. Davis is the only proper respondent in this case. Accordingly, the court will dismiss the other named respondents.
III. THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER RESPONDENT DAVIS
Having decided that Ms. Davis is the only proper respondent in this case, the court next must determine whether it can exercise personal jurisdiction over her. This court may exercise personal jurisdiction over a defendant (or, in this case, a respondent) if:
(1) she is amenable to service of process under Michigan's long-arm statute; and
(2) the exercise of personal jurisdiction would not deny her due process.Southern Machine Co. v. Mohasco Ind., Inc. 401 F.2d 374 (6th Cir. 1968).
Personal jurisdiction is appropriate if the respondent's conduct and connection with the forum are such that she should reasonably anticipate being haled into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The court has "specific jurisdiction" if the respondent has purposefully availed herself of the privilege of acting in the forum state or causing a consequence there, the cause of action arose there, and the respondent's acts have a substantial enough connection with the forum state to make the exercise of jurisdiction over the respondent reasonable. Southern Machine at 381.
In this case, respondent Davis has taken no action whatsoever in Michigan that would make her amenable to service of process under Michigan's long-arm statute. Moreover, haling respondent Davis into federal court in Michigan to defend in this action would violate her due process rights because she has not purposefully availed herself of the privilege of conducting activities there. World-Wide, 444 U.S. at 297. Rather, respondent Davis has acted only from and within the confines of her own jurisdiction — the Western District of Louisiana. Therefore, the Federal District Court for the Eastern District of Michigan lacks personal jurisdiction over respondent Davis.
IV. THE COURT WILL TRANSFER THIS CASE TO THE APPROPRIATE JURISDICTION AND VENUE
(A) Jurisdiction
Generally, when a petition is filed in a court that lacks personal jurisdiction over the respondent, the court will transfer the petition to a court having the proper jurisdiction. Therefore, the court generally would be inclined to transfer this case to the Western District of Louisiana, as that court has jurisdiction over respondent Davis. However, the respondents argue that the court ought not to follow the general rule in this case. They argue that a transfer to the Western District of Louisiana would be futile because under Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000), the court would be compelled to find that it lacked jurisdiction over petitioner's habeas case. See Respondents' Obj. to Magistrate Order, p. 1-2.
In Max-George, 205 F.3d at 198, the Fifth Circuit Court of Appeals held that section 1252(a)(2)(C) of the Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") eliminated § 2241 habeas corpus jurisdiction for petitioners who had committed certain criminal offenses. The importation of a controlled substance is one such offense. In this case, petitioner plead guilty to the importation of heroin, in violation of 21 U.S.C. § 952 (a) and to possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 (a)(1). Since the Western District of Louisiana is within the Fifth Circuit, and is bound by the holding in Max-George, it seems likely that the former will find that it lacks jurisdiction over petitioner's habeas corpus request. However, given this court's determination that it lacks personal jurisdiction over respondent Davis, and that the Western District of Louisiana would be an otherwise appropriate jurisdiction for this case, the court believes it is best to allow that District to decide whether it has jurisdiction to review petitioner's habeas request.
(B) Venue
Petitioner contends that venue is proper only in the Eastern District of Michigan because, according to him, that is where "[t]he INS commenced deportation proceedings . . ." against him. Petitioner Obj. to Magistrate Order, p. 3. Petitioner's understanding of when the deportation proceedings commenced is incorrect. Pursuant to 8 C.F.R. § 3.14 (a) (as codified during the relevant time), "[j]urisdiction vests and proceedings commence before an Immigration Judge when a charging document is filed with the Office of Immigration Judge . . ." In this case, while the INS may have issued an order to show cause to petitioner while he was confined at the Federal Correctional Institution in Milan, Michigan, it did not file that order or any other charging document with the Immigration Court in Detroit. Rather, the INS filed the charging documents in the Immigration Court within the Western District of Louisiana after the petitioner had been transferred to the Federal Correctional Institute in Oakdale, Louisiana in the early part of 1999. It was at that time, and in that locale, that "deportation proceedings" commenced against petitioner. Accordingly, venue is proper in the Western District of Louisiana, not the Eastern District of Michigan.
V. THE COURT WILL NOT STAY PETITIONER'S DEPORTATION
Notwithstanding that this court will transfer the instant case to the Western District of Louisiana, it will deny petitioner's request to stay deportation pending final resolution. Section 1252(f)(2) of IIRIRA provides that:
Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.8 U.S.C. § 1252 (f)(2).
In this case, petitioner has not shown clear and convincing evidence that his deportation is prohibited as a matter of law. Petitioner's legal challenge to the pending deportation has already been considered and rejected by both an immigration judge and the Board of Immigration Appeals. Moreover, as discussed above, it appears that the Western District of Louisiana will not entertain petitioner's habeas request. Therefore, the court will deny petitioner's request to stay deportation.
Accordingly,
IT IS ORDERED that the court rejects Magistrate Judge Goldman's Report and Recommendation dated December 7, 2000.
IT IS FURTHER ORDERED that respondents Reno, Meissner, Jenifer, and the INS are dismissed from this case.
IT IS FURTHER ORDERED that the instant case be transferred to the United States District Court for the Western District of Louisiana.
IT IS FURTHER ORDERED that petitioner's request to stay deportation is denied.