application was denied for lack of jurisdiction. Petitioner also
appealed the immigration judge's decision to the Board of
Immigration Appeals (BIA). The BIA dismissed the appeal on
December 18, 1998. That day, petitioner filed another petition
for review with the Ninth Circuit. This petition was also
dismissed for lack of jurisdiction.
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 function is
the person who has immediate control over the petitioner, the
district director. Vasquez, 233 F.3d at 693.
The Vasquez court allowed that in unusual circumstances the
might be a proper respondent. For instance, if the location of
the custodial facility were unknown or if the INS frequently
moved petitioner to manipulate jurisdiction, then suit against
the Attorney General would be permissible. Id. at 696.
The court finds the Vasquez court's reasoning to be
persuasive. For that reason, the court declines to follow the
decisions of the Eastern District of New York cited by
petitioner. See, e. g., Mojica v. Reno, 970 F. Supp. 130
(E.D.N.Y. 1997); Nwankwo v. Reno, 828 F. Supp. 171 (E.D.N.Y.
1993). The court's conclusion is supported by the decision of
another judge in the Northern District of California who also
concluded that the proper respondent in an immigration habeas
case is the district director for the district in which the
petitioner is held. Cabarle v. de More, 2000 WL 1585265
Applying Vasquez, the court determines that the petition
before the court must name the district director for the Atlanta
district. Petitioner has not alleged the unusual circumstances
that would justify suit against the Attorney General.
Consequently, the petition before the court must be dismissed
for failure to name the proper respondent. Petitioner should
re-file his petition naming that director as respondent.
The amended petition, however, should not be filed in the
Northern District of California. Personal jurisdiction over the
district director of Atlanta is unavailable in this district
unless jurisdiction is conferred by California's long arm
statute Cal. Civ. Proc. Code § 410.10. Despite the broad reach
of that statute ("any basis non inconsistent with the
Constitution of this state or of the United States"), there
appears to be no basis for jurisdiction in this court.
Petitioner's sole argument that the personal jurisdiction
requirements had been met in this case was that the Attorney
General was a proper respondent. In light of the court's
determination that the Attorney General is not a proper
respondent, that argument must fail.
The petition for a writ of habeas corpus (Doc # 1) is DENIED
without prejudice. The clerk is directed to close the file and
terminate all pending motions.
IT IS SO ORDERED.
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