* The Honora ble Will iam W Schwarzer, Senior Unit ed States Distr ict Judge for the Northern District of Californi a, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0283P (6th C ir.) File Name: 03a02 83p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J ULI O E. R OMAN ,

Petitioner-Appellee,

v.

J OHN A SHCROFT et al., Responde nts-Appe llants. X

- - - -
> , - - N No. 02-3253

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 01-01236—Ann Aldrich, District Judge.

Argued: June 10, 2003 Decided and Filed: August 13, 2003

Befor e: MOORE a

nd GIBBONS, Circuit Judg es; SCHWARZER, Senior District Judge. *

_________________ COUNSEL

ARGUED: Alison R. Drucker, UN ITED STATES DEPARTM ENT OF J US TICE , IMM IGRA TIO N 2 Roman v. Ashcroft e t al. No. 02-3253

LITIGA TIO N, CIVI

L DI VISI ON, Washington, D.C., for Appellan ts. Dav id W. Leop ol d, D AVID WO LFE LE OP OLD & ASSO CIATE S, Cleveland, Ohio, for Appellee

. ON B RIEF : Alison R. Drucker, UNITED STATE S DEPARTMENT OF J US TICE , IM MIG RAT IO N LI TIGATI ON, CIVI

L DI VISION, Washington, D.C., for Appellan ts. David W. Leopol d, DAVID WOLFE LEOP OLD & ASSOCIATES, Cleveland, Ohio, for Appellee

. MOORE, J., delivered the opinion of the court, in which SCHW ARZE R, D. J., joined. GIBBONS, J. (pp. 28-29), deliver ed a sepa rate opi nion conc urring in the re sult.

_________________ OPINION

_________________ KAREN NELSO

N MOORE, Ci

rcuit Judg e. Respon

dentsAppellan ts Unit ed States

Attorney Genera l, John Ashcroft; former Acting Commissioner of the Immigration and NaturalizationService (“INS”) , Kevin Rooney; former Cleveland

District Director of the IN S, RobertL. Brown; and NewOrleans District Director of the INS, Christine G. Davis (collectively

“the government”) appea l the district court ’s judgment granting Petitioner-App elle e Julio E. Roman (“Roman”) habeas corpus relief. Roman, an Ohio residen t,
was c onvicted of federal crimes in the Northern District of Ohio and in ca rc er at ed in Ke nt uc ky. The INS charg ed Roman with being removable on three grounds related

to his federal convicti ons, and

Roman was

transfe rred fr om a federal prison inKentucky to a

n INS detention facility in the Western District of Louisiana.

InJu ly 2000, an immigration judg e (“IJ”) found Roman removab le and statutorily ineligible for discretionary r

elief fromremoval pursuant to § 212(h) of the Imm igration and National ity

Act (“INA” ), 8 U.S.C. § 1182(h). The Board of Immigration

Appeals (“BI A”) aff irme d this decision onNo. 02-3253 Roman v. Ashcroft e t al. 3

1 28 U.S.C. § 2241 and 28 U.S. C. § 2243 b oth use t he t erms “application” and “applicant” rather t han “petiti on” and “petition er.” Ho weve r, man y § 224 1 cas es refer to petiti ons and petitioners, as do the parti es to this acti o n. Ther efor e, we wil l re fer to Roman’ s § 2241 appli cati on for

a wri t of

habeas corpu s as a petition and to R oman as a petiti oner throughout this opinion. appeal. Roman file d a § 2241 p etitio n for a writ of habeas corpus, 1 arguing that

§ 212(h) violates the Fifth Amendment Equal Protection Cl ause . Although Roman was being detained in the Weste

rn Distric t of L ouisiana

at the tim e, he filed the habe as corpu s p etiti on in the district where he resided prior to h is incarceration

and where he was convicted of the crimes underlying

his removal — the Northern District of Ohio. The government moved to dismiss Roman’s applicationbecause the district court lacked personal juri sdiction over the respondents and because § 212(h) doe s notvio la te the Equal Protection Clause. The district court concluded

that it had personal jurisdictionover the Attorney Genera l, and gr anted Roma

n a writ of

habeas corpus o n g rounds that § 212(h) violates the Equal Protection Clause

. The districtcou rt t hen ord ere d t he c ase rem and ed t o t he B IA to allow Roman to pursue § 212(h) relief. The gover n men t timely appealed.

B ecause Roman’s action must be brought in the district court having jurisdiction over “the person having custody

of the person detained,” 28 U.S.C. § 2243, we VAC ATE the districtcourt’s decision to grant Roman habeas corpus relief and REMAND to the distr ict cour t wit h instructi ons to determine whether the Cleveland District Director and t he INS Commissioner are proper respondents to Roman’s petition. In the event that the district court concludes that these officia

ls are no t proper

responde nts, we instruct th e district court to transfer

the actio n to the Western District of Louisiana. 4 Roman v. Ashcroft e t al. No. 02-3253

I. FACTS AND PROCEDURE

Romanis a 46-yea

r old native and citizen of

the Dominican Republic. He has bee n a la wful permanent resident of the United States since October 29, 1996, and was last admitted to the United States on February 8, 1997. Roman is married and has si x children

who are United Sta

tes citize ns.
OnS eptemb er 30, 1999, Roman pleaded guilty in the Northern Distri ct of O hio to fra ud and misu se of visa s, permit s, an d other do cuments, in violation of 18 U.S. C. § 1546(a), and misuse of social security numbers, in violation of 42 U.S.C. § 408(a)(7)(C). Roman was sen tenced t o 15 months of imprisonment for thesetwo felonies and served 13 months of the sentence.

While Roman was serving his sentence, the I NS issued a Notice to Appea

r and lodged an ad

ditional char ge ag ainst Roman. Pursuant to INA § 237, 8 U.S.C. § 1 227, the INS charged Roman with

being r emovable on three ground s: (1) c onv iction relating to document fraud, see INA § 237(a)(3)(B)(iii); (2) convicti on of a cr ime involving moral turpitude committed within five years of ent ry for whic

h a sent ence o f one yea

r or longer may

be imposed, see INA § 237(a)(2)(A)(i); and (3) conviction of an ag gr av at ed fe lo ny,
see INA § 237(a)(2) (A)(iii).

R omanwas transferred from the L ex ington Federal Medica l Center in Lexington, Kentucky, to the Oakda le Det ention Center in Oa kd al e, Lou is ia na , a nd pa ss ed in to INS cu st od y. A t his removal hearing in Oakdale, Roman admitted to the INS’s factual allegations but denied that he was re mov abl e. According

to Roman, because he adjusted his status in 1991, he was not

deportable for committing a crime involving moral turpitude wi th in fi ve yea rs af te r h is ad mi ss io n t o t he co un tr y. Romanalso arg

ued that he was not

r emo vable be cause hi s document fraud was a first

offense underta ken solel y to assist closefamily

mem bers, which does not constitute an aggravated

felony. See INA

§ 101(a) (43)(P) , 8 U.S.C.No. 02-3253 Roman v. Ashcroft e t al. 5

§ 1101(a)(43)(P). The I

J did not allow Roman to testify about his conviction of document fraud.

OnAugust 11, 2000, the IJ ent ered a decision rejecting Roman’s arguments that he was not deportable for committing a

crime involving moral turpitude and that he had notcommitted an aggravated f elony. The dec i sion implied that the five-ye ar period mentioned in the moral turpitud e ground of remov al starte d running from the d

ate of Roman’s last entry, Fe bruary 8, 1997. Mor

eover, because thecriminal plea agree ment state d that Roma

n possesse d false d

ocuments for approximately thirty

persons, the I J rejected Roman’s contentionthat he e

ngag ed in document fraud

solely to assist close fa mily members.

The IJ foundRoman rem ovable, d enied Roma

n’s requ est for cancel la tion of removal pursuant to INA § 240A( a), 8 U.S.C. § 1229b(a), and ordered Roman removed to the DominicanRepublic. The IJ did not addr ess the po ssibility of discretionary r

elief from removal purs u ant to § 212(h). The BIA aff

irmed the IJ’s decision a nd d enied Roman’s motion to re open to ap

ply for can cellation of removal. Meanwhile, in May

2001, Roma

n filed a pro sepetition for
a writ of habeas corpus in the United States District Court for the Northern District of Ohio. He name d four re spondents — the Attorney Gene

ral, the INS Commissioner, the former I NS District Director in Cleve land, Ohio, and the INS District Director in New Or

leans, Louisiana . Roman all eged that his due process

rightswere violated

by the retroa

ctive application of the Antiterrorism and

Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), that his proceduraldue proc ess rig hts were violated because the I J did notallow him a

meanin gful opportunity to be he ard on the merits of his requests for § 240A or § 212(h) relief, and

that his right to equal protection of the la ws was vio lated be cause thesef orms o f relief “discriminate[] between members of a class based on a distinc tion tha t is not rat ionally related to [their] purpose.” Joint Appendix at 17 (Habeas Pet.). 6 Roman v. Ashcroft e t al. No. 02-3253

2 Th e gov ernm ent has w aived this argum ent on app eal. Romanf ile d a motion seeking a stay of removal, and the districtcourt enjoined the INS from executing a final order of removal pending the outcome of judicial proce ed ings. The
casewas briefly he ld in abeyanc e while the court awaited the Supreme Court’s disposition of INS v. St. Cyr , 533 U.S. 289 (2001).

The g ov ernment

moved to di smiss Roman ’s petition in July 2001. The government challenge d personal jurisdiction and venue, noted Ro ma n’s failure to exhaust administrative remedies with respect to § 212(h), 2 and argued that § 212(h) does not violate the Equal Protection Clause.

InSeptembe

r 2001, the

district co urt issued an order granting the government’s motion to dismiss for want of personal jurisdiction as to the New Orleans District Director and denying t he m otion as to the Attorney Gene ral. Roman

v. Ashcroft, 162 F. Supp. 2d 755, 758, 759 (N.D. Ohio 2001) [ Roman I ]. The order did not discuss whether the IN S Commissionerand Cleveland District Director we re appropr iately named as respondents. Id. at 758. Concluding that it had juri s diction over the action, the district court directed the gov ernment

to show ca

use why Roman’s w

rit should not issue. Id. at 765.

InJanuary 2002, the district court granted Roman a writ of habeas corpus, h olding that § 212(h) violated the Equal ProtectionClause by differ entiating between

legal permanent residen ts and other aliens. Roman v. Ashcroft, 181 F

. Supp. 2d 808, 814 (N.D. Ohio 2002) [ Roman II ]. The district court also found that the IJ’s failure to give R oman an op

portunity to be hear d at his deportation hearing was harmless error. Id. at 816. The case was remanded to the BI A to allow Rom an to pursue hi s claim for a discr etionar y w aiver of

removal
, pursuant to § 212(h). Id.No. 02-3253 Roman v. Ashcroft e t al. 7

The gover

nment time ly a

ppealed the distri ct court ’s Septembe r 2001 and January

2002 orde

rs.
II. JURISDICTION OVER ROMAN’S HABEAS

CORPUS P

ETITION

The district court

confined its analysis of

the government’s motion to dismiss for lack of personal jurisdiction to the New Orleans District

Director and the Atto rney Genera l. Al thou gh the government

appeals the district court’s conclusion that the Attorney General is a properly

named respondent to Roman’s petiti on, Ro man did not file a cross-appeal of the district court’s conclusion that it lacked jurisdiction o v er the New Orleans Distric t Dire ctor. Moreover, because the district court expressly declined to g

rant or deny

the government’s

m otion to dismiss as to the Cleveland District Director an d the IN S Commissioner, we decline to consider on appeal whether the distri ct court

lacks j urisdiction over these two responde nts. Therefore, our analy sis is confi ned t o the question of whether the district co urt err ed by finding persona l jurisdiction over

the Attor ney Genera l.

We review d

e novo a d

istrict c ourt’s de

terminat ions as to the existence of personal jurisdiction. Tobin v. Astra Pharm. Prods., In c. , 99 3 F.2d 528, 542 (6th Cir.), cert. denied, 510 U. S. 914 (1993 ). The district cou rt concl uded that it h a d jurisdiction over Roman’s petition becaus e one of the four named responde nts to the p etition — the Attorne y G eneral — was Roman’s custodian and because thedistrict court had personal jurisdiction over the Attorney G en eral. Reasoning that, under the circumstances, it was appropriate f or Roman to name someone other than his immediate custodian, the district court

concluded that the Attorney General should be deemed R oman’ s custodian. Because the Attorney General
was subject to service of process in the Nor thern D istrict of Ohio, the district court concluded that it had

jurisdiction over Roman’s petition. The government appeals the district court’s September 2001 orde r, ar guing that the Attorney General was not Roman’s custodi an for habeas corpus 8 Roman v. Ashcroft e t al. No. 02-3253

3 Pursuant to the Homeland Securi ty Act of 2002 (“HSA”) , Pub. L. No. 107-296 , 116 Stat. 2135 (No v. 25, 200 2), t he Depart

ment of Hom eland Security perf orms the functi ons formerly performed by the INS. The Savings Provision of the HSA pro vides that “[r] eferen ces relating to an agen c y that is transferred to the Dep artment in statutes, Executive orders, rules, regu lat ions , di rect ives , or deleg ati ons of autho rity that precede such trans feror t he ef fective date of

thi s Act sh all be deemed to refer, as a ppr opr iate, to the De partm ent, to its office rs, emp lo yees , or agents, or t o it s correspo n ding organ izational uni ts or f

unct ions .” HSA § 151 2(d ), 6 U.S .C. 55 2(d ). Ho weve r, within the c ontex t of this civil action, we need not conclud e that the parties’ arguments about the ide ntity of a det aine d ali en’ s cus todi ans s houl d b e deemed to refer to the corresp onding o fficials under the HSA . The H SA p rovides, [s]ubje ct to the au thority of the S ecreta ry und er this A ct, pending civil actions shal l continue notwi thstanding t he enactment of this Act or the t

ransf er of an agency t o the Department , and i n such civil act ions , proc eedin gs s hall be had, a nd ju dgm ents rendered and enforced in the same ma nner and with the sa me effect as if such enact

ment or tr ansf

er ha d not oc curr ed. HSA § 15 12( c), 6 U.S.C. § 552(c). Thus, we proc eed i n th is civi l ac ti on
as if the HSA were not yet i n effect, with t he understanding that

our analysis will be applicable in futur e cases by analogy to t he corresponding

cus todi ans of d eta in ed al ien s un der t he HSA. purposes and that the district court therefore lacked personal jurisdiction over the Attorney Gener al. Ro man argues that the Attorney Gene

ral should be deemed his cu stod ian for habeas corpus purposes, and that the alternative decision would ef fe ct iv el y d epr ive Roman of an opportunity to seek habeas c orpus re

view unde

r the cir cumstanc es.
Be cause we do not believe that extraordinary circum stance s justify our classification

of the Attorney G eneral as Roman’s custodianin this case, we concludethat the district court erred by recog nizing the

Attorney

Genera l as an ap

propria te respondent to Roman’s petition.

A. The Im mediat e Custodia n Rule
A distric t court shall direc t a writ of ha

beas cor pus “to the person havi ng cust ody of the person detained.” 3 28 U.S.C. § 2243; see Brad

en v. 30th Judicial Circuit Ct. of Ky. , 410No. 02-3253 Roman v. Ashcroft e t al. 9

U.S. 484, 494-95 (1973) (“The writ of habeas corpus does not act upon the prisone r who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody .”). Therefor e, a court has jurisdiction over a habeas corpus petition only if it has personal jurisdiction over the petitioner’s custodian. Braden , 410 U.S. a t 495. To e

valuate jurisdiction, a court therefore must first identify the petitioner’s custodi a n and then determine whether it has personal jurisdiction over that custodian.

“Histori call y , the question of who is ‘the custodian,’ and therefore the appr

opriate responde nt in a habeas suit, depends primaril y on who has power over thepetitioner and . . . on the convenience of the parties and the court.” Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998), cert. denied, 526 U.S. 1004 (1999). As a general rule, a petitioner should name as a respondent

to his habe as corpus petition “the individual having day-to-da

y c ontrol over the facility in whic h [the alien] is being detained.” Vasquez v. Reno , 233 F.3d 688, 696 (1st Ci r. 2000), cert. denied, 534 U.S. 8 16 (2001) . This is knownas the “i

mmediate custodia

n rule” b ecause

it recognizes only the pet it ioner’s “immedia

te” or “ direct” custodianas the “ person having custody ” over him under § 2243. Courts hav e deeme d these immediate custodians proper respondents to habeas corpus petitions as a “prac tical” matter “based on common sense administration of justice.” Sanders v . Bennet t , 148 F.2d 19, 20 (D.C. Cir. 1945).

Pursuant to the immediate custodian rule, a prisoner filing
a habeas c orpus pet

ition should

gener ally name as a responde nt the w arden of the prison where he is confined. Vasqu ez , 233 F.3d at 691. Similarly, a detaine d alien fi lin g a habeas c orpus pet

ition should

gener ally name as a respondent

the person exercising daily control ov er his affa irs. Courts have said that a detained alien’s immediate custodian is either the warden of the facility where the alien is detained
or the INS District Director of the district where th e alien is 10 Roman v. Ashcroft e t al. No. 02-3253

4 For courts treat ing the warden of the f acilit y where an alien is detain ed as the alien’s im med iate custo dian, see Yang You Yi v. Maugans , 24 F.3d 500, 507 (3d Cir. 1994) (“It is t he warden of the prison or the fa cility where the detainee is held that i s considered the custodian fo r purposes of

a habea s act ion .

. . . bec ause it is the warden

tha t ha s day -t oday contro l over th e priso ner an d who can p rod uce th e actua l body.”); Aphayavong v. INS , 169 F.Supp. 2d 1 194, 119 7 (S.D. Cal. 2001); Samoeun v. Reno , No. Ci v.A. 00-610 L., 2001 WL 21047 2, at *2 (D. R.I. Jan. 3 , 200 1); Chukwurah v. United States , 813 F. Supp. 161, 168 (E. D. N.Y. 199 3); Peon v. Thor nbu rg h , 7 65 F . S upp . 1 55, 156 (S .D. N.Y

. 1991). For courts treati ng the INS D istri ct Director of the dis trict where the ali en is detained as t he alien’s immediate custodian, see Henderson v. INS , 157 F.3d 106, 126 (2d Cir . 1998)
, ce rt. denied , 526 U.S. 1004 (1999); Sant iago v. INS , 134 F. Sup p. 2d 1 102, 110 3 (N.D. Cal. 2001 ); Wi llia ms v. Reno , No. 00-71241, 2001 WL 85867, at *2 (E.D. Mich. Jan. 11, 200 1); Santos-Gonzalez v. Reno , 93 F. Supp. 2d 286, 291 (E. D. N .Y. 2000); Ozoanya v . Reno , 968 F. Sup p. 1, 8 (D. D .C. 19 97) ; CarvajalesCepeda v. Meissner , 966 F. Supp. 207 , 208 (S.D. N.Y . 1997). being detained

. 4 We conclude that although the warden of each detention facility technic ally has day -to-day c ontrol over aliendetainees, the INS District Director for the district where
a de tention facility is located “ha s power over” alien habeas corpus petitioners. Henderson , 157 F.3d at 122.

D istrictDirectors head I NS district offices, which ar e considered

“the bas ic operatingunit[s] of the [INS].” Charles Gordon, Stanle y Mai lman, and Stephen Yale-Loe hr, 1 Immigration Law &

Procedure § 3.03 [5], at 3-16 (2003). The “district directors have authority

and responsibility to grant or deny various applications or petitions submi tted t o the [IN S], to initiate a

ny a uthorized procee ding in their

district, and .

. . to issue notic es to appear in removal proceeding s.” Id. ; see 8 C.F.R. § 103.1(g)(2)(ii), amended by 68 Fed. Reg. 10922-01 (Mar. 6, 2003). As the heads of the basic operating units of the INS, District

Directors overseethe confinement of aliens inall three kinds of INS detention fac ilities — “Service P rocessingCenters,” “Contract Detention Facilities,” an d “[s]tateor local government facilities used by I NS throu gh Inte

rgove rnmenta l Service Agree ments (IGSAs) to hold de tainees for more than 72 hours.”No. 02-3253 Roman v. Ashcroft e t al. 11

DetentionOperati ons Manua l: Admissions and Release 1 (Sept. 20, 2000), available a t http://www.immigration/gov/graphics/lawsreg s/guidan ce.ht m (last mo dified M ar. 19, 2 003). The warden s of all the se facilities act pursuant to INS Detention Standards and ar e considered

agents of the INS D istrict Di

rector in their di strict. It is clear that the I

NS does no t vest power over detained aliens in the war

dens of de

tentio n faci lities because the INS

r elies on state and local governments to house feder a l IN S detaine es. Whatever

daily contr ol state and local gover nments have over federal

INS de tainees
, they have tha

t control solely pursuant to the direction of the INS. See Samoeu n v. Reno , No. Civ.A. 00-610 L., 2001 WL 210472
, at *2 (D. R.I. Ja

n. 3, 2001)

(“[I ]t has bee

n observe d that it is the INS District Director who exercises pr imary control over
anINS detainee be cau se the warden acts as an ag ent for the District Director.”). Therefore the INS Di stri ct Director for NewOrleans

is Roma n’ s immediate custodian for habeas corpus pu rposes.
Becau se the Northern District of Ohio conclude d that it did nothave personal jurisdiction over the New Orleans District Director, however, we must decide whether persons other thanRoma

n’s immediate custodian — such as the Attorney General — also have custody of him for § 2243 purposes. At oral argument, Roman suggested that t he immediate custodian rule should

notapply in the context of habeas c orpus petitions of aliens. See, e.g. , Vasquez , 233 F.3d at 691 (observing that “the case law

concerning the identity

of the proper respondent to habeas petitions brought by detained aliens is much more sparse and far les s coher ent” than the case law about the proper respondent to prisoner habeas corpus petitions); Rachel E. Ros enbloom, Is theAttorney General the Custodian of an INS Detainee? Personal Ju risdi ction and the “Immedia te Custodia n” Rule in I mmigratio n-Relate

d Habea s Actions , 27 N.Y.U. Rev. L. & Soc. Cha nge 543 , 546 (2001- 2002) (maintaining that

the immedi ate cust

odian rul e “has no place in the adjudication of immigration-related h abeas actions” and that the Suprem e Court has b een rel uctant to 12 Roman v. Ashcroft e t al. No. 02-3253

5 “In case s whe re the .

. . peti ti oner h as f il ed in the dis tri ct of conf in eme nt

. . . the gover

nment has rais ed no objecti on to th e Attorn ey Ge neral, the INS, or the INS Com missione r bei ng nam ed. ” Ra che l E. Rosen bloo m, Is t

he Attorney Gener

al the Custodi an of an INS Detainee? Personal

Juris dicti on and the “Immediate C ustodi an” Ru le in Immigration-Relat

ed Habeas Acti ons , 27 N.Y.U . Rev. L. & Soc. Change 543, 577 (2001-200 2). In Mojica v . Reno , 970 F. Su pp. 130 (E. D. N.Y

. 1997), aff’d in pa rt, 1 57 F.3d 106 (1998), the East ern Dist rict of New York reasoned that

four r espondents should be deemed custodi ans under § 2243 becaus e “[ t]h e habea s st atut e does n ot s pecif y who t he per son having custody willbe, nor does it stat e that ther e may only be one custodian. Nowhere does the s tatute speak of an i mmed iat e custo dian.” Id. at 166 (quotat ions omit ted). We note thatthis lo gic woul d counsel against an i mme diate custodi an rul e in t he context

of pri soner habeas corp us pe titions as w ell. apply the rule in the con

text of hab eas cor

pus petiti o ns filed by detaine d alie ns). One court reviewing an alien’s ha beas corpus petition c oncluded that it had

persona l jurisdictio n over four named respondents — two INS D istrict Di rector s, the Co mm is si one r of

th e IN S, and the A

ttorney Genera l — because they were

all custodians of the petitioner and able to be reached by

servi ce of pr ocess. 5 Mojica v. Reno , 970 F. Supp. 130, 166 (E.D. N.Y. 1997), aff’d in part, 157 F.3d 106 (1998).

We see no re ason to ap

ply a diffe rent rule for id entif

ying a petitioner’s custodia

n depend ing on whether th e petitioner is
a nalien or a prisoner. Section 2243 states that a wr it o f habeas corpus “ shall be d

irected to the person having custody of the person detained,” which sugg ests that only one individual can properly

be named as the respondent to a habeas corpus petition. 28 U.S.C. § 2243 (emphasis added);

see Vasquez , 233 F.3dat 693 (suggesting that a petitioner must name one custodian, and may not “choose from among
anarray of col orabl e cust odian s”). A ltho ugh C ongress may not have “in

tended the articl e, ‘the, ’ to have . . . disposi

ti v e significance,” see Ch avez-Rivas v. Olsen , 194 F. Supp. 2d 368, 374 (D. N.J. 2002) (“‘[T]he’ could mean ‘a’ or ‘any’ as easily as it could mean ‘that.’”), we agr ee with t he FirstNo. 02-3253 Roman v. Ashcroft e t al. 13

Circuit that “[t]he immediate custodian r ule e ffectuates section2243's plain meaning and gives a nat ur al,
commonse

nse constructionto the statute.” Vasquez , 233 F.3d at 693.

Mo reover, as a practical matter, “the [immediate custodian] rule is clear and easi l y administered.” Id. The adjudication of habeas corpus petitions filed by de tained a

liens woul d become consider ably more diff icult to administe

r if we were to adopt a broader definition of “custodi an” i n this cont ext. Inother words, interpreting the word “custodian” in § 2243 to refer to not only

an alien ’s immedia

te custod ian, but a ls o other officials with control over the alien’s detention an d releas e — such as the C omm issioner of the INS or the Attorney General — w ould es tablish a regime in which several courts would have personal jurisdiction over an alien’s “custodians.” Alien s could then engage in forum shopping, choosing among severa l different districts as long
as personal jurisdiction existed over at least one of the various custodians and ve nue req uirem ents w ere sat isfi ed. Al thou gh
venue consider

ations wou

ld ensure that a petitioner

could not file in every

jurisdict ion, cour ts would nevertheless be forced “in many cases to undertake fact-intensive analy ses of venue and forum non conveniens issues.” Vasquez , 233 F.3d at 694. Thus
, in this respect, adopting a broader definition of “custodian” would complicate and extend the du ratio n of habeas c orpus pro ceeding s.
Rom anpoints out that even i f a broa der def initio n o f “custodian” might de lay

courts intheir ev aluation of a single habeas corpus petition, it would notslow the adjudication of habeas corpus pe

titions any

more tha n it is already

slowed by the backlog of such petitions in jurisdictions housing IN S deten tion fa cilities. In essence, Roman sug gests that the regime he proposes would not cause any problems greater than th ose under the existing regime. However, we see no reason to solve one problem by cr eating anot

her. Th is is particu larly true because Congress is in a better pos ition to solve the problem of overloaded dockets. When prisoner 14 Roman v. Ashcroft e t al. No. 02-3253

habeas corpus petitions caused do ckets to be come backlogged in th e 1 94 0s , C on gr es s g av e f ed er al pr is on er s t he ab il it y t o attack collater ally th eir con victions in the court where they
were sentenc ed rathe

r than in the jurisdic

tion of the ir confine ment. 28 U.S.C. § 2 255; see Vasquez , 233 F .3d at 694. Requiring alien ha

beas cor pus petitioners to na

me their immediate

custodia ns as res pondents m

ay contribu te to t he pr oblemof overc

rowded d

ockets in particu lar distr icts

. However, given

that our recognition of a

broader definition of “custodian” might delay the adjudication of alien habe as petitions in other ways, we feel confident that

we should not attempt to construct a judicia

l solution to

this proble

m.
For all the reasons discussed above, we conc lu de that a detained alien generally

must designat e his immed iate custodian— the I

NS D is trict Director for the district where he is being detained — as the respondent to his habeas corpus petition. B. Beyond the

Imme diate Custodian Rule

Alth ough we conc lu d e that the immediate

custodia n rule gener ally applies to alienhabeas c orpus pet itioners, we note the possibility

of except ions to this rule. “[T]he rules treating the immediate custodian as the only prope r respondent . . . have not been applied consistently or in a rigid f as hion.” Henderson
, 157 F.3d at 124. In fa ct, most courts adopting the immediate

custodia n rulefor alien habeas corpus petitioners have explicitly noted the possibility of exceptions even

a s they ad opt the rule. See, e.g., Vasquez , 233 F.3d at 696 (“[W]e can envisio n that there may be extraordinary circumstances in which the Attorney Ge neral a

ppropria tely might be named a s the respondent to an alien habeas petition.”); Chavez-Rivas , 194 F. Su pp. 2d at 3 75; Nwankwo

v. Reno , 828 F. Supp. 1 71, 174 (E .D. N.Y. 1 993) (“Wh ile the general rule ma y be so un d a s a ma tt er of po li cy, the la nguage of the habeas corpus statute does not compel rigid adherence to it in every ca se.”). Argua bly , as a jurisdict ional matt

er, “it is, or should be, enough that the respondent named has theNo. 02-3253 Roman v. Ashcroft e t al. 15

6 Althoughfew circuits ha ve sp ecifically re jected the po ssibility that the Attorn ey G enera l may b e a cus todia n in the co nte xt o f al ien habeas corpus petit ions, several circu its have sai d that

the Att orney General

is not

a prisoner ’s cu stodian u nde r § 22 43. See, e .g., Sa nde rs v. Be nne tt , 148 F.2d 19, 2 0 (D .C. C ir. 194 5); Blan go v. Th orn burgh , 9 42 F.2d 1487, 1491-92 (10 th Cir. 1 991 ); Gu erra v. Mee se , 786 F.2d 414, 41 6 (D.C. Cir. power or ability to produce the body when so directed by the court p ur suant to process lawfully issued a nd served upon him.” Ahrens v

. Clark , 335 U.S. 188, 199 (1948) (Rutledge, J., dissenting). In thi s case, Roman urges this court to make
anexception to the immediate custodian rule by c onclud i ng that the Attor

ney Genera l can be c onsid er ed Roman’s custodianand thus a proper respondent to Roman’s petition.

The district c ourt below decline d to apply the immedi a t e custodian rule, instead concluding that the Attorney Ge

neral
wa s a n appropriate respondent to Roman’s habeas corpus petitio n. On appeal, the government maintains that the d istrictcourt erred by

departing from the immediate custodian rule and basingpersonal jurisdiction on the Attorney Genera l. Roman counters that the district co urt p roperly made an exception to the i m mediate custodian rule because the exception was necessary

to pr eserv e Roman’s right to seek habeas corpus r

elief. Sp ecifica

lly, Roman ask s this court “t o allow jurisdict

ion over a n indirect custodia

n in circumstances where a detainee would otherwise bedeprive d of his rig ht to habeas review. ” Roman B r. at 15. We mu st conside r, first, whether the Attorney Ge

neral may e

ver be properly na

med as
analien’s custodian and, second, whether the circumstances of this case require our recognition of the Attorney General as a proper respondent to Roman’s habeas corpus pe tition. 1. The Attorney General as Custodian

A corollary of

the immediate custod ian rule is that gener ally the Attorney Ge

n era l is considered neither the custodianof a detained alien for purpo ses of § 2243 nor a proper responde nt to an alien’s habeas corpus petition. 6 See 16 Roman v. Ashcroft e t al. No. 02-3253

1986); Jon es v. B iddle , 131 F. 2d 853, 854 (8t h Cir. 1 942 ), cert. denied
, 318 U.S. 784 (19 43). According to the First C ircuit, “[t]he se co urts
reas on thatwh ile the A ttorney G enera l is the ultimate over seer o f all federal priso ners, see 18 U.S. C. § 4001[(b) ](2) , s he i s not res ponsi ble f

or day-t o-day pris on opera ti ons an d does not hol d priso ners i n actual physi cal cus tody.” Vasquez , 233 F. 3d at 691. Vasquez , 233 F.3d a

t 696; Carvajale

s- C epeda v. Meissner
, 966 F. Supp. 207, 209 (S.D. N.Y. 1997) (“It is well settled .

. . that the Attorn ey Genera

l is not the c

ustodian o f I.N .S. detainees.”). Inthe context of prisoners, courts have rejected the notion of t

he Attorney

Genera l as resp ondent be cause altho ugh he has sup ervisor y a nd reg ulatory custody of all federalprisoners, “it is apparent that . . . he does not have actual physical custody

of a prisoner who is confined in a federalprison or other federal institution.” Jones v. Biddle
, 131 F.2d 853, 854 (8th Cir. 1942), cert. denied, 318 U.S. 784 (194 3). As with pr

isoners, the Attor

ney Genera l does n o t have actual phy

sical cu stody

of alien s detaine d by

the I NS.

Alth ough we agree with those courts that hav e conc luded that the Attorney Ge

neral is no t g en er al ly a proper respondent to any habe as corpus petition, n onethele ss we recognize that the Attorney Gene

r al’ s relationship to prisoners differs signific antly

from his r

elationsh ip to deta ined aliens. The Attorney Ge neral ’s role as the ultimate overseer of feder al prisoners, see 18 U.S.C. § 4001(b)(2), is not equiva lent to his designation as the le ga l c us to di an of al ie ns be ca us e h e p la ys a much larger ro le in the immigration context, see ChavezRi vas , 194 F. Supp. 2 d at 374 (“ Congre ss has con sistently designated

the Attor

ney Genera l as the le gal cu stodian of immigration habeas petitioners.”).

The Second Cir

cuit has d esc ribe d the Attorney Ge neral’s unique ro le in the im

migrati on context a s follows:

There is . . . no ques tion that the Attorney Ge neral has the pow er to p roduce t

he petitioners, re

mains the u

ltimate decisionmaker

as to m at ters concerning the I NS, see 8No. 02-3253 Roman v. Ashcroft e t al. 17

7 Se ctio n 1103(a)( 1) has been ame nded by the HSA, 116 Sta t. 2135 (2002).

8 T he government contends that the r eference to the “Att orne y Ge neral” in the ma nda tory de tention s tatute is a m ere p laceh olde r for all immi grat ion officers because more than one enti ty i s empowered to take

an alien into custod y. See 8 C .F.R. § 287 .7(d ) (20 01)
, amended by 68 Fed. Reg. 35273- 01 (Jun e 13, 2003)

. As Roman notes, however, other provisions of the Il legal Immigrati on Reform a nd Immigrant R espo nsibility Act of

1996 dele gate speci fi c res ponsi bil it ies to o the r immi grat ion offic ials witho ut nam ing the A ttorney G enera l as a pro xy. See Arias -Agramonte v. Comm’r of INS , No. 00 Civ . 2412(RWS), 2000 W L 1617 999, at *6 (S.D. N.Y. Oc t. 30, 2000). U.S.C. § 1 103(a)(1), 7 and is commonly designa ted a respondent

in these cases, even when personal jurisdiction over the immediate custodia n clear ly li es. In this respect, the extraordinary and pervasive role that the Attorney Genera l plays in immig

rati on matters is virtually unique. T

hus, the A

ttorney Genera l contin u es to be in comp lete charg e of the proceed ings lea ding up to the order direct ing t he[] removal [of aliens] from the country and has c omplete

discretion to decide whether or not removal shall be directed.
Henderson, 157 F.3d at 12 6 (quotat

ions and f

ootnote omitt ed). Co ng re ss gi ve s t he At to rn ey G en er al au th or it y t o “take into custody any

alien” whose criminal conviction s render him deportable or inadmissible, INA § 236(e) (1), 8 U.S.C. § 1226(c)(1), 8 and has designated him as the proper respondent

in most actions r eviewing the leg ality

of removal orders, INA § 242(b)(3)(A), 8 U.S.C. § 1252(b)(3)(A). Arg ua bl y, “in immig

ration c ases, the

warden or district direc torwho has ‘day

-to-day control’ [over a pe

titioner] is
me rely an agent of the Attorney General, who has the statutori ly authorize d power over alie ns’ cust ody and release.” See Ari

as-Agr amonte v

. Comm’r o

f INS , No. 00 C iv. 241 2(RWS), 2000 WL 1617999, at *7 (S.D. N.Y. Oct. 30, 2000) ; see Nwank wo , 828 F. Supp. at 174 (explaining 18 Roman v. Ashcroft e t al. No. 02-3253

9 The EasternDistr ict of New York has rej ected the imm ediate custodi an rule and regul arly recogni zes the Att orney Generalas a proper respondent to an alien’s habeas corpus petition. See , e.g., P ena -Ro sario

v. Reno , 83 F. Supp. 2d 349, 362 (E. D. N.Y . 200 0); Potti nger v. Reno , 51 F. Supp. 2d 3 49, 3 57 ( E.D . N.Y . 199 9), aff’d on other grounds
, 2 00 0 WL 18644 77 (2d C ir. Dec. 18, 2000) (unpublished opinion). that the Attorney Ge

neral may be

“an appropriate respondent ina habeas corpus proceeding becaus e she has the powe r to direct her subordinates to carry out any order di rected to her to produce or release the petitioner”). 9

Inlight of the degree of control which the Attorne y Gener al has over an a

lien’s imme diate cu stodia n, we belie

ve that it may be appropriate to reco gniz e the Attor ney Genera l as a proper r esponde nt to an alien’s habeas corpus petition under certain c ircums tances. The natu re and sc ope of tho se circumstances remains to be determined. 2. Extraordinary Circumstances

Romanconcedes that the district court’s finding of persona l jurisdiction over the Attorney Ge nera l was somewhat unusual, but arg

ues that u

nder the circumst ances it w as justified by the im porta nce of p reserv ing Ro man’s righ t to
see kh abeas corpus relief. The district court re asoned that because Romanwas incarcerated in a facility in the Western District of Louisiana with a known backlog of habeas corpus petitions, Emejulu v

. INS , 989 F.2d 771, 772 (5th Cir. 1993), there was a

risk t hat “Roman might be removed from the United States before his petition could be hea rd on the merits.” Roman I

, 162 F. Supp. 2d at 763. The district court found “prima f aciereason to believe that removal of Roman to the Dominican Republic prior to adjudication of the merit s of his petition wou ld, for practical purposes, deny him the benefit of the writ,” and concluded that the Attorney

General
was a proper

responde nt to Roman’ s peti tion. Id

. In other words, the district court concluded that Roman would beNo. 02-3253 Roman v. Ashcroft e t al. 19

deprived of habea s co rpus rel ief if he were no t permitte d to name the Attorney Genera l as a re spondent.

Under certain extraordinary

ci rcums tances it may be necessary to depart from the immediate cus todian rule in order to preserve a petitioner’s acce ss to habeas corpus relief. Inspite of “[ t]he ge neral rule . . . that a circuit judge has jurisdiction to grant a writ of habeas co rpus only if the petitioner’s immediate custodi an is located within the ci rcuit,” Demjanjuk

v. Mees e , 784 F.2d 1114, 1115 (D. C. Cir. 1986) (Bork, J.), we be lie v e that “it is appropriate, in . . . very limitedand spec ial c ircum stances, to treat the Attorney General of the Uni te d States as the custodian,” id. at 1116. Such circumstances may arise w here a detainee does not

have
a realistic opportunity for judicial r ev ie w of his executive detention. The Constitution safeguar d s the right to petition for a writ of habeas corpus, U.S. Const. art. I § 9, cl. 2, and this right should notbe lightly abr ogated, see, e.g., Felker v. Turpin , 518 U.S. 651, 661- 62 (1996)(sugg esting t hat cour ts will enforce only

very cle ar statutory lang uage repealing habeas corpus jurisdiction). Therefore, under e xtraordinary circumstances where it is necessary to preserve a person’s
access to habeas corpus relief, we may recognize the Attorney General as a respondent

to an alien’s habeas corpus petition.

One exampleof extraordinary c ircumstances is Demjanjuk

v. M eese . In Demjanjuk, a petitioner’s counsel named the Attorney Genera l a s the respondent to the habeas corpus petition because the government was holding the petitione

r in custody at an undisclosed location while he a wa ited extradition to Israel. Demjanjuk, 784 F.2d at 1116. B ecause the pet i tioner’s attorney s were unaware of Demjanjuk’s location, they would have ha d “to fi le in ev ery jurisdiction” if the cour t rigidly enforced the immediate custodian rule. Id. Judge Bork reasoned that the Attorney General was a proper respondent under the ci rcumstances because an exception was necessary to ensure “that petitioner not be denied the rig ht to petition for a wr

it of habe as c orpus.” Id. However, not wanting to extend the exception any furthe r th an was 20 Roman v. Ashcroft e t al. No. 02-3253

necessary to prese rve Demj anjuk’s r

ight to petition for

habeas corpus relief, the court specified t hat ju risdiction would terminat e if Demjanjuk’s presence in another j urisdiction became known.

Some courts a

re also w illin g to m ake an exception to the immediate custodian rule in other ex traordinar y circu mstan ces. For example, courts have noted the I NS’s ability
, as a practical matter, to deny aliens any mea

ningful opportuni ty to seek habeas corpus relief simply by transferring

aliens to another district any time they filed a habeas corpus petition. Chavez

- Rivas , 194 F. Supp. 2d at 374. Aliens remainingin detention for extended periods are often transfe rred se veral times during

their detention. See Lee

v. Ashcroft, 216 F. Supp. 2d 51, 55 (E.D. N.Y. 2002) (“[T]he locationof custody, and t he ide ntity of the day

-to-day custodian, freque

ntly chang e when de

tainees are transferred among INS facilities, all of which are under the control of the Attorney Gene

ral.”); Rosenbloom, supra , at 549. In light of thesetransfers, one court reasoned that an alien may

properl y name a respon

dent othe r th an h is immediate custodian because a peti tion namin g a

higher level of ficial, such as the Attorney Genera l, could be adjudicated without interruption inthe event of a transfer. Arias-Agr amonte , 2000 WL 1617999, at *8 (expl aining t hat a pet ition namin

g only one’s immediate

custodian would be dismissed when the alienwas transferred to another local district).

Alth ough we do no t believe that the mere possibility of successive transfers would ju stify an exception to the im mediat e custodian rule, we do believe that an exception might be appropriate if the I

NS were to exercise its transfer power in a clea r effor t to eva de a n al ien ’s h abe as p eti ti ons . In this case, however, Roman has not alleg ed fact s sugg estin g either that the government improp er ly manipula ted its authority in an attempt to deny R oman a meaningful opportuni ty for relief or that

Romanfaced d

ifficult ies akin to De mjanjuk’s inability to identify his immediate custodi an

. Therefore, this court need not decide the appropriate scope ofNo. 02-3253 Roman v. Ashcroft e t al. 21

the extraordinary cir

cumstances exception to the immediat e custodianrule a s a gener al matter . Rather, the facts of this
caserequire

this cour t to deter mine only whether the alleged crowdingof a docket in the district of an alien’s confinement justifies permitting the alien to name the Attorney Ge

neral as
a responde nt to his habeas corpus petition filed in the district where he formerly

resided and was convicted.

The District Courtbelow concluded that the circumstances justified recognizing

the Attorney

Genera l as a re spondent t

o Roman’s peti tion becau se Roman would effectively be denied
anop po rt un it y t o seek hab eas cor pus relie f if he na

med his immediate

custodia n and file d his petiti on in t he district where he was being detained. Roman’s entire ar gument hinges on the claim that

he should n

ot be req uired to name his immediate

custodianat the Oakdale facility as the respondent because only the Wester

n Dist ri ct of Louisiana would have jurisdiction over Roma

n’s petiti on seekin

g a wri t again st his immediat e cust odian. According to Roman, because he would have to f

ile his pet

ition in the

Western D ist

ri ct of Louisiana, he would e ffectiv ely be denie d an opportuni

ty to seek habeas relief because “ the torrent of petitions flowing fromt he Oak dale facility” into that district would all but
ensure that the d

istrict c ourt would

never c onsi der Rom an’s petition prior to his deportat ion. S ee Emejulu, 989 F.2d at 772. A ltho ugh at least one court has equated filing a habeas petition in the Western D istrict of Louis iana to being denied “any meaningful habeas corpus relief ,” Nwankw o , 828 F. Supp. at 174, we do not

believe that a crowded docket can — withoutmore — constitute extraordinary c ircumstances justifying a departure from the immediate custodian rule. Cf. Alcaide-Zelay a v. McElroy , N os. 99Civ.5 102(DC)
, 99Civ.9999 ( DC), 2000 WL 1616981, a

t *4 (S.D. N .Y. Oct. 27, 2000) (expressing “concern that the g overnment can ‘seriou sly u n dermine the remedy of habeas corpus’ by detaining so large a number o f alie ns in one facility that the local district court is ov erwhelmed by a f lood of habeas petitions”). 22 Roman v. Ashcroft e t al. No. 02-3253

The cir cu mstances of Roman’s petition are not such that
our refusal to recognize the Attorney Gene ral as a respondent will effectively

deny Roman even the possibility of habea s c orpus re lief. As an initial matter, there is no reason that Romancould not have filed his habeas corpus petition in the WesternDistrict of Louisiana; in fact, he can st ill do so in li ght of our conclusion that we lack jurisdiction to conside r his petition. F

urthermore, Roman

cites on ly the Fifth Circuit’s sugge stion in a 1 993 opinion that t he West ern District of Louisian a has a very overloaded docket as evidence of the backlog. S ee Emeju lu , 989 F.2d at 772. Romancites no recent

evidence of a vast discrepancy between the habeas corpu s fil ings per judge in that court and any other districtcourt, and we have been unable to find any clear
ev id en ce of

su ch a d is cr ep an cy. Regar dless of whether

either Roman

or the government can provide co nvincing statistics about the caseload of the W estern District o f Lou

isiana, w e do not be lieve tha t th e possibility

of an alien’s removal prior to the adjudication of his habeas corpus petition amounts to an effec ti ve denial of the petitioner’s opportunity to seek meaningful habeas corpus relief. Several

circuits have concluded

that a petitioner meets the jurisdictional custody requireme nt of § 2241 even

after he h as been removed “so long as he was in c ustody when the habeas petition w as fil ed” and that a ca se or con

troversy continues to exist

as long as the petitioner “continues to suffer
a ctual collateral consequences of his removal.” Ze garra

Gomez v. INS , 314 F.3d 1124, 1127 (9th Cir. 20 03); see Leitao v. Reno , 311 F.3d 453, 456 (1st Cir. 2002) (notingthat

“ the b ar on re admission o f a remo ved alie n is a leg ally cogniza ble collateral consequence that preser ve s a live controve rsy even after deportation of the petitioner ”); Smith

v. Ashcroft, 295 F.3d 425, 42 8 (4th Cir. 2 002); Lee Moi Chong v. INS , 264 F.3d 378, 382-83 (3d Cir. 2001). Becau se the INA provides that an a lien orde red removed “who again seeks admission w

ithin 5 years of

the date of such removal

. . . is inadmissible,” 8 U.S.C. § 1182(a)(9)(A)(ii), an order of
remo v al creates sufficient collateral conseque nces to renderNo. 02-3253 Roman v. Ashcroft e t al. 23

a removed alien’s petition a live case or

controversy, see Lee MoiChong , 264 F.3d

at 385. Roman will not be deprived of his opportunity to seek hab eas cor pus relie f even if

he is removed prior to a court’s resolution of his petition. Therefore, the cir cumstances of Roman’s habeas corpus petition are not s

uch that a

departu re from t he immediate custo dianrule is justified at this time, and the Attorne y General is not a proper

respondent to Roman’s petition. The Northern Distri c t of Ohio erred by relying on its finding of personal jurisdiction over the Attorney Gene

ral as a basis for jurisdiction here.

We decline to f

inally determine whether the district court had jurisdict ion over R

oman’s ha beas cor pus petition on

other grounds because the dis trict court below did not decide whether either the C leveland District Director or the I NS Commissionerwas a pr

operly named re spondent a

nd beca use neither party brief

ed the matter befor e this court. We direct the districtcourt on r

emand todetermine, consistent with the views expressed in our opi nio n, whethe r either of these officials is properly

a respondent in this action.

III. TRANSF

ERRING R

OMAN’S PETITION Assuming that

the district

court for the Northern District of Ohio decides on remand

that none of the na med resp ondents
were properly be fore it, we now consider whether the district court erred by dismissing the New Orleans District Direc tor fromthe action rather than transferring the en tire action pursuant to 28 U.S.C. § 1631. Section 16 31 provide s that if
a civil act ion or app eal is filed in

a court lacking jurisdiction, “the court shall , if

it is in the interest of justice, transfer such actionor appeal to any

other such

court in which the action or appeal could have been brou ght at th e time it was filed or notice d .” 28 U.S.C. § 1631 (emphasis added). Upon such transfer, “the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred o n the date upon which it was actually filed in or noticed for the 24 Roman v. Ashcroft e t al. No. 02-3253

court from which it is transferred.” Id. A court may de cide to dismiss an action rather than transferring it under § 1631 either because (1) no permi ssible federal court would have jurisdiction over the action, or because (2) “transfer would not be in the interest of justice.” See Jeffrey W. Tay on, The Federal Transfer Statute: 28 U.S. C. § 1631 , 29 S. Tex . L. Rev. 189, 214 (1987).

We note that circuits have split on the question of whether § 1631 provides for transfers only in the event that a federal court lacks sub ject matt er jurisd iction or a lso in the event that the court lacks personal jurisdiction. See, e.g., SongByrd, Inc.

v. Estate of Grossman , 206 F.3d 172, 179 n.9 (2d Cir. ) (noting that “the legislativehistory of section 1631 provides
som e reaso n to believe that this section authorizes transfers only to cure lack of subject matter jurisdiction”), cert. denied
, 531 U.S. 824 (2000 ); Renner v. Lanard Toys Ltd. , 33 F.3d 277, 28 4 (3 d Cir. 1994) (explaining that a court lacking pe rsona l jurisdiction may consider transf erring the action pursuant to § 1631); Ross v. Colo. Outward Bound Sch.
, Inc. , 822 F.2d 1524, 1526-27 (10th C ir. 19 87) (s ame). T hrough § 1631, Congress “gave

broad authority to per

mit the transfer of an action between any

two federal courts,” Ross , 822 F.2d at 1526, and

courts ha

ve effe ctuated

Congre ss’ s int ent by broadly construing the statute, id. a t 1 527. The language of § 1631 does not refe

r to any specific typ e of juris diction, only referring broadly to “jurisdiction.” See Tayon, supra, at 224 (“The literal language of the statute . . . is broadenough to
en com pass either [lack of subject matter or personal jurisdiction].”). Moreover, a broad construction

of the sta tute is consistent with Congress’s intent to “pr otect a plaintiff againsteither a

dditi onal ex pense or the expiration of a relevant statute of

limitations

in the eve

nt that th e plaint iff makes an error in try

ing to select the proper court within the complex federal cour

t s yst em.” 17 Charles Al an Wrigh t, Arthur R. Miller, & Edward

H. Cooper, Federal Practice and Procedure: Jurisdic ti on 2d § 4104, at 406 (2d ed. 1986) (citing S. Rep . No. 9 7-275 (1982 )). In li ght of t he lan guage of § 1631 and its purpose, we therefore conclude tha t theNo. 02-3253 Roman v. Ashcroft e t al. 25

10 The New Orleans Dist rict Dire ctor overs ees immi grati on-rel ated servi ces for

the st ate of L ouisian a and for So uthern M ississipp i. See http:/ /www.immigrati on.gov/ gra phics /fieldoffice s/newo rleans/in dex .htm (last modifi ed Feb. 28, 200 3). statute applies to federal courts identify ing any jurisdictional defect
, regardless of whether it invo lv es personal or subject matter jurisdiction.

Inlight of our conclusion that the Attorney Ge

neral was not
a prope r respo ndent and in ligh t of th e district court’s conclusiont hat it lacked personal jurisdiction over the New Orleans District Director, we believe that § 1631 would app ly inthis case. It would have bee n appropriate for Roman

to file his habeas petition in the Western District of Lo uisiana because it is the jurisdiction of

Roman’s confinement. See Martin v. Perez , 319 F.3d 799, 802 (6th Cir. 2003) (stating that a § 2241 petition “must be filed in the district court that has jurisdiction over a p ris oner’s place of confinement”). Roman named his

imme diate custodian, the New Orleans District Director, as a respondent to the habeas c orpus petition that he filed inthe Nort hern District of Ohio. Although the districtcourt found that

the Northern

District of Ohio does not have p ersonal jurisdiction over the New Orleans District Director, the Western District of Louisiana would h ave t he
re quisite personal jurisdiction. “A federal court has g eneral jurisdiction when the def endant’s contacts with the forum stateare ‘substantial’ and ‘continuous and systematic,’ so that t he state may exercise pe

rsonal jurisdiction over the defendant
even if the action does n

ot relate to the def

endant’ s contacts with the state .” Youn v. Track, Inc. , 324 F.3d 409, 417-18 (6th Cir. 2003). The New

Orleans District D irector

works in the Western District of Loui siana an d is subject to the persona l jurisdiction of tha

t court. 10

Becau se the We ste rn District of Louisiana would have jurisdiction ov er t he New Orleans District Director, the Northern District of

Ohio district c ourt can

not decli ne to 26 Roman v. Ashcroft e t al. No. 02-3253

11 Even if

§ 1631 d id not per

mit t ransf ers f or lack of

personal jurisdict ion, th e action sho ul d be t ran sf err ed pur sua nt to 2 8 U.S. C. § 1406(a). Sect ion 1406(a) st ates t hat wher e venue i s im proper, the dist rict court wher e th e act ion w as f il ed “s hall

. . . i f i t be i n th e in ter est of just ice, transfer

such case to any dist

rict or divi sion in which [ the action]

cou ld have been brough t,” id. , regardless of whether the t

ransferri ng court lacks personal juri sdict ion overthe defen dan t, Goldlawr , Inc . v. Heiman , 369 U.S. 463, 466 (19 62) ; Martin v. St okes , 623 F.2d 46 9, 474 (6th Cir. 1980). transfer the c ase under

§ 1631 on grounds that no federal court would have jurisdiction. Therefore, the appropr iatenes s of a § 1631 transfer turns on whether such a transfer would be inthe interest of justice. We believe t hat it would be in the interest of justice to transfer the action because a dismissal of the ac tion w ould only cause Roman to incur the a dditional expense of filing the same habe as corpus petition in the WesternDistrict of Louisiana. See 17 Wright, Miller, & Cooper, supra , § 4104, at 406 (noting that § 1631 is intended inpart to protect petitioners from incurring additional expen se if they err oneously file in the wrong court).

For these re asons, we conclude that, if the district court on remand finds that the Cleveland District Director and the IN S Commissionerare not

pro per respondents, the district court erred by dismissing the New Or leans District Di r ector from the action. The district court should now tra ns fer the action to the Western District of Louisiana pursuant to § 1631. 11

IV. CONCL USION

For the reasons explained above, we VACATE the district court’s judgment granting habea s corpus relief to Roman because the Attorney Ge

neral was not properly

named as the respon dent in Roman’s pe tition for a writ of habeas c orpus. We REMAND the case to the district court wit h instructions to decide whether the Cleveland District Director or the INS Commissioneris a prope r respon dent cons iste nt w ith this opini on. In th e event t

hat the di strict co

urt finds t hat theseNo. 02-3253 Roman v. Ashcroft e t al. 27

officia ls are not proper respondents, w e inst ruct the district court t o transfer the petition to the Western District of Louisiana pursuant to 28 U.S.C. § 1631. 28 Roman v. Ashcroft e t al. No. 02-3253

____________________ CONCURRENCE

____________________ JU LIASMITH GI

BBONS, C ircuit

Judge, concurring. I
concur in the re sult in

t his case and agree with much of the majority opinion’s reasoning. I wr ite sep arately to note two points. First, whether

the petiti oner is a

detained alien or a federal prisoner, the weight of

authority supports a deter mination that the Attorney Gene

r al is no t a proper respondent in petitions under 28 U.S.C. § 2241. Vasquez v. Reno , 233 F.3d 688, 691 (1st Cir. 2000) (finding that normally the Attorney

General is notthe proper respondent in alien habeas case s an d noting that a number of courts have held that the At torne y Gener

al is not a proper custodian for purposes of a prisoner’s ha beas peti tion); Yi v. Maugans , 24 F.3d 500, 507 (3d Cir.1 994 ) (summari ly

dismissing the idea that the Attorney General might be a proper

respondent in an

alien ha beas ca se); Blango

v. Thornburgh , 942 F.2d

1487, 1491 -92 (10th

Cir. 1991) (per curiam)(affirming district court’s dismissal of Attorney General because the prison warden, not

the Attor ney Genera l,
was the proper respondent for the prisoner’s habeas action); Sanders v. Bennett

, 148 F.2d 19, 20 (D.C. Cir. 1945) (holding that warden , not Attor

ney Genera l, was proper respondent

in prisoner’s habeas p etition); Jones v. B iddle , 131 F.2d 853, 854 (8th Cir. 1 942) (sa

me); Santiago v

. INS , 134 F.Supp.2d 1102, 1104 (N.D. Cal. 2001) (finding that Attorney General
was nota proper respondent in a habeas action brought by an alien ); P earce v

. Ashcroft , No. 301CV 1160C FD, 2 003 WL 1145468, at *1 (D. Conn. Mar. 12, 2003) (concluding that the Attorney General is not a prop er resp ondent to an alien’s habeas action filed

pursuant to § 2241); Carvajales-Cepeda v. Meissner , 966 F. Sup

p. 207, 208 (S.D.N.Y . 1997) (“ It is w ell settled . . . t hat th e Attorney Ge neral is not the custodian of INS detaine es”); Wang v. Reno , 862 F. Supp. 801, 812-13 (E.D.N.Y. 1994) (finding that Attorney General was notNo. 02-3253 Roman v. Ashcroft e t al. 29

alien’s custodian for

habeas p urposes) ; Peon v. Thornburgh
, 765 F. Sup p. 155, 156 (S.D.N.Y. 1991) (rejecting arg ument that Attorney Gene

ral was alien’s custodian for purpose of alien’s habeas p etition). The majo ri ty states that the “Attorney General’s relationship to prisoners differs significant ly

f rom his relationship to detained aliens” and sugge sts that the A

ttorney Genera l has a uni que role

in immigration

matters that makes him more likely to be a proper responde nt i n a petition brought by a de tained alien thana federal prisone r. I a m not prep ared to r

each thi s conclusion, which se ems u nnecessary to the result. As the First Circuit stated in Vasquez :
The Attorney Gene

ral’s role with regard to aliens is not materia lly different from

her role with regard

to prisoners at least not d

iffere nt enoug h to justi fy

a rule th at she is t he custodian of aliens, but not prisoners, for ha bea s purposes

. After a

ll, th e Attorney Gene

ral is the designated

cus todian of prisoners to muc h the same extentas she is the designated custodian o f al iens. Compare 18 U.S.C. § 4001(2) with 8 U .S. C. § 1226(c)(1). And just as she has the ultima te author ity to produce

the body of an ali en, she has the ulti mate authority to produce the

body of a prisoner

. 233 F.3d at 696. Second, in its discussion of extraordinary circu ms tances whichmay justify

departure from the immedi ate custodian rule, the major

ity a ddresse s h ypothetical situations that are notpr es ent here . I wo

uld limit our

holding on this point t

o the conclusionthat a crowded docket a lone can not consti tute extraordinary

circumst ances, noting of course that as a factual matter, Roman points to no evidence fr om whic h one cou ld find the existence of

a crowded docket in the Western District of Louisiana.