The opinion of the court was delivered by: Walker, District Judge.
Petitioner seeks a stay of his deportation to the Philippines.
For the reasons that follow, the petition is DISMISSED without
Petitioner entered the United States as a crewman on or about
March 22, 1991. Petitioner had permission to stay 29 days but he
remained longer. On September 24, 1992, petitioner filed an
application for political asylum. The application was denied on
March 24, 1994.
On August 23, 1994, petitioner was convicted of committing a
lewd act with a child and of sodomy with a person under the age
of 14, in violation of California Penal Code sections 288(A) and
286(C), respectively. The Immigration and Naturalization
Services (INS) issued petitioner a Notice to Appear (NTA) on
June 6, 1998, based on his conviction of an aggravated felony
and his overstay. On August 24, 1998, petitioner was ordered
removed. That decision became final when petitioner waived an
On December 20, 2000, petitioner filed this petition in the
Northern District of California. At that time, petitioner was in
custody at the Columbia Care Center in Columbia, South Carolina.
Petitioner had been transferred to Columbia for dialysis
treatment made necessary by kidney failure. Petitioner remains
at the Columbia Center and continues to need dialysis treatment.
Unless petitioner obtains a kidney transplant, he will require
dialysis treatment for the remainder of his life. If he does not
receive treatment he will likely die within 14 days of cessation
Petitioner requests "a discretionary stay of removal based on
humanitarian grounds." Petition (Doc # 1) at 3.
A writ of habeas corpus "shall be directed to the person
having custody of the person detained." 28 U.S.C. § 2243.
Petitioner is in custody in Columbia, South Carolina. This
facility is within the jurisdiction of the INS office in
Atlanta, Georgia. But rather than name the district director for
the Atlanta district, petitioner has named the United States INS
as the respondent in this action.
Petitioner argues that he has several custodians, the district
director for Atlanta, the Attorney General and the Commissioner
of the INS. Even if petitioner were correct, this petition would
have be dismissed for failure to name any of these three
individuals. Furthermore, the court concludes that barring
unusual circumstances, which petitioner has not alleged, the
proper respondent in a petition for habeas corpus is the
district director having control over the facility in which the
petitioner is held.
The proper respondent in a habeas case brought by an alien in
INS custody has not been addressed by the Ninth Circuit, but it
has been considered by a number of other courts. While these
courts have split, this court finds the approach taken by the
First Circuit Court of Appeals to be persuasive. In Vasquez v.
Reno, 233 F.3d 688 (1st Cir. 2000), the court considered and
rejected petitioner's argument that the Attorney General was a
proper respondent, holding instead that petitions must be
brought against the district director for the district in which
the petitioner is held.
The Vasquez court listed three reasons for its decision.
First, finding the Attorney General to be a proper respondent
would be inconsistent with numerous cases finding prison
wardens, not the Attorney General, to be the proper respondent
in habeas petitions brought by prisoners. Id. at 693. One of the
cases relied on by the court was Brittingham v. United States,
982 F.2d 378 (9th Cir. 1992).
The second reason was that the text of 28 U.S.C. § 2243 refers
to "the person having custody of the person detained," implying
that only one person may be named respondent. Finally, the court
relied on another provision of section 2243, which states that
the respondent is "required to produce at the hearing the body
of the person detained." 28 U.S.C. § 2243. The Vasquez court
concluded that the person best able to perform this ...