The opinion of the court was delivered by: Jones, U.S. District Judge.
ORDER DENYING PETITIONER'S MOTION TO COMPEL
This matter comes before the Court on Petitioner Sopan Pok's "Ex Parte
Emergency Motion to Compel Respondents to Comply with the District
Court's July 5, 2000 Order, and Release Petitioner." Respondents filed a
response on September 7, 2001. For the reasons set forth below, this
Court DENIES Petitioner's Motion.
A. Previous Habeas Petition
The facts are taken from this Court's July 5, 2000 Order. Petitioner
Pok is a Cambodian national who legally entered the United States and
resided as a permanent resident. Respondent Immigration and
Naturalization Service ("INS") issued a final order of removal against
Petitioner on June 30, 1998, as a result of a criminal conviction.
However, because the United States does not have a repatriation agreement
with Cambodia, Petitioner could not be removed and remained in INS
custody. On July 5, 2000, this Court concluded that there was no
reasonable likelihood that Cambodia would allow Petitioner to return in
the reasonably foreseeable future. See July 5, 2000 Order. The Court
found, pursuant to Ma v. Reno, 208 F.3d 815, that the INS "does not have
the statutory authority to detain . . . [Petitioner] any longer."
Accordingly, the Court ordered the INS to release Petitioner. The Court
authorized the INS to set conditions of release for Petitioner pursuant
to 8 C.F.R. § 241.5 and 8 U.S.C. § 1231(a)(3). See July 5, 2000
The facts regarding Petitioner's present incarceration are discussed in
Petitioner's moving papers. The INS released Petitioner from custody on
July 17, 2000, pursuant to an order of supervision, which included the
requirement that Petitioner was to "abide by all Federal, State, and
Local laws." (Mot. To Compel at Ex. 2.) Petitioner reported regularly to
an INS deportation officer as required and abided by all conditions of
release. (Mot. To Compel at Ex. 3.) On March 15, 2001, California state
parole authorities, conducting a routine parole inspection at Petitioner's
place of residence, discovered a knife in the bedroom belonging to
Petitioner's brother. Id. Because the bedroom door had not been locked,
the bedroom was deemed to be a common area of the premises and accessible
to Petitioner. Id. Petitioner was arrested on March 15, 2001, for
violating conditions of his parole. Id.
The California Department of Correction discharged Petitioner from
custody on May 24, 2001, after he had served approximately two months in
custody. (Mot. To Compel at Ex. 5.) On that date, the INS re-arrested and
re-detained the Petitioner into INS custody. (Mot. To Compel at Ex. 3.)
The instant motion arises from this term of custody.
Petitioner argues that this Court retains jurisdiction over this matter
to enforce its previous judgment granting Petitioner's habeas petition.
Petitioner further argues that this Court should construe the petition
for writ of habeas corpus as naming the Attorney General as respondent,
thereby permitting the Court to effectuate any relief ordered. The INS
responds that this Court has no jurisdiction over this action because
this Court only has jurisdiction over custodians within the Southern
District of California. The INS also argues that the only proper
respondent in habeas proceedings is the custodian who has day-to-day
control over the Petitioner's custody. The INS notes in its response that
this Court's July 5, 2000 Order did not preclude the INS from returning
Petitioner to custody if he violated the conditions of his custody.
A district court retains jurisdiction to enforce its judgments. Hook
v. State of Arizona, Dep't of Corrections, 972 F.2d 1012, 1014 (9th Cir.
1992). Like the Petitioner in Safarian v. INS, 00-CV-0926, Petitioner Pok
argues that the instant motion seeks to enforce this Court's previous
judgment. (Mot. To Compel at 4.) However, this Court's July 5, 2000 Order
has already been enforced; Petitioner was released on July 17, 2000.
Petitioner has not shown how his current incarceration violates the July
5, 2000 Order. Also, because the Court does not have enough information
to establish the reason for Petitioner's current incarceration*fn1, the
Court cannot determine whether Petitioner's present custody results from
the parole violation. As the court noted in Safarian, the matter is no
longer within the jurisdiction of the Southern District of California.*fn2
Thus, if Petitioner wishes to challenge the new incarceration, he should
bring a new habeas petition.
Some courts, most notably in the Eastern District of New York, have
allowed the Attorney General to be named as a proper respondent to an
alien habeas petition. See Nwankwo v. Reno, 828 F. Supp. 171 (E.D.N.Y.
1993); Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997). However, the
Ninth Circuit has held that a "habeas petition filed pursuant to [28
U.S.C.] § 2241 must be heard in the custodial court." Hernandez v.
Campbell, 204 F.3d 861, 865 (9th Cir. 2000). In addition, the Ninth
Circuit has held that "The proper respondent in a federal habeas corpus
petition is the petitioner's `immediate custodian,' since the person
"having a day-to-day control over the prisoner" is the "only one who can
produce `the body' of the petitioner." Brittingham v. United States,
982 F.2d 378, 379 (9th Cir. 1992). See also Ashley v. State of
Washington, 394 F.2d 125, 126 (9th Cir. 1968) (finding that the
"actual person who is custodian must be the respondent" in a habeas
Petitioner named only the INS and the San Diego District Director as
Respondents in this case. The Respondents note that the government
consistently deems habeas actions regarding INS detention to be "directed
against/to the San Diego INS district director, regardless of who is
actually named as respondent." (Response to Mot. To Compel at 3.)
Petitioner argues that this Court may construe the petition as naming the
Attorney General or the INS Commissioner as respondents, since they may
effectuate relief as "superior officers." (Mot. To Compel at 5.)
However, because the Ninth Circuit has determined that the proper
respondent in a habeas case is the "immediate custodian" of the
Petitioner, and because Petitioner's instant motion seeks release from
INS Custody in the Central District of California, this Motion to ...