*

The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0283P (6th Cir.)

File Name: 03a0283p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JULIO E. ROMAN,

Petitioner-Appellee,

v.

JOHN ASHCROFT et al.,

Respondents-Appellants.

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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 

Before: MOORE and GIBBONS, Circuit Judges;

SCHWARZER, Senior District Judge.*

_________________

COUNSEL

ARGUED: Alison R. Drucker, UNITED STATES

DEPARTMENT OF JUSTICE, IMMIGRATION

2 Roman v. Ashcroft et al. No. 02-3253

LITIGATION, CIVIL DIVISION, Washington, D.C., for

Appellants. David W. Leopold, DAVID WOLFE LEOPOLD

& ASSOCIATES, Cleveland, Ohio, for Appellee.

ON BRIEF: Alison R. Drucker, UNITED STATES

DEPARTMENT OF JUSTICE, IMMIGRATION

LITIGATION, CIVIL DIVISION, Washington, D.C., for

Appellants. David W. Leopold, DAVID WOLFE LEOPOLD

& ASSOCIATES, Cleveland, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court, in which

SCHWARZER, D. J., joined. GIBBONS, J. (pp. 28-29),

delivered a separate opinion concurring in the result.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. RespondentsAppellants United States Attorney General, John Ashcroft;

former Acting Commissioner of the Immigration and

Naturalization Service (“INS”), Kevin Rooney; former

Cleveland District Director of the INS, Robert L. Brown; and

New Orleans District Director of the INS, Christine G. Davis

(collectively “the government”) appeal the district court’s

judgment granting Petitioner-Appellee Julio E. Roman

(“Roman”) habeas corpus relief. Roman, an Ohio resident,

was convicted of federal crimes in the Northern District of

Ohio and incarcerated in Kentucky. The INS charged Roman

with being removable on three grounds related to his federal

convictions, and Roman was transferred from a federal prison

in Kentucky to an INS detention facility in the Western

District of Louisiana.

In July 2000, an immigration judge (“IJ”) found Roman

removable and statutorily ineligible for discretionary relief

from removal pursuant to § 212(h) of the Immigration and

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

Immigration Appeals (“BIA”) affirmed this decision on
No. 02-3253 Roman v. Ashcroft et al. 3

1

28 U.S.C. § 2241 and 28 U.S.C. § 2243 both use the terms

“application” and “applicant” rather than “petition” and “petitioner.”

However, many § 2241 cases refer to petitions and petitioners, as do the

parties to this action. Therefore, we will refer to Roman’s § 2241

application for a writ of habeas corpus as a petition and to Roman as a

petitioner throughout this opinion.

appeal. Roman filed a § 2241 petition for a writ of habeas

corpus,

1

 arguing that § 212(h) violates the Fifth Amendment

Equal Protection Clause. Although Roman was being

detained in the Western District of Louisiana at the time, he

filed the habeas corpus petition in the district where he

resided prior to his incarceration and where he was convicted

of the crimes underlying his removal — the Northern District

of Ohio. The government moved to dismiss Roman’s

application because the district court lacked personal

jurisdiction over the respondents and because § 212(h) does

not violate the Equal Protection Clause. The district court

concluded that it had personal jurisdiction over the Attorney

General, and granted Roman a writ of habeas corpus on

grounds that § 212(h) violates the Equal Protection Clause.

The district court then ordered the case remanded to the BIA

to allow Roman to pursue § 212(h) relief. The government

timely appealed.

Because 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 VACATE the

district court’s decision to grant Roman habeas corpus relief

and REMAND to the district court with instructions to

determine whether the Cleveland District Director and the

INS Commissioner are proper respondents to Roman’s

petition. In the event that the district court concludes that

these officials are not proper respondents, we instruct the

district court to transfer the action to the Western District of

Louisiana.

4 Roman v. Ashcroft et al. No. 02-3253

I. FACTS AND PROCEDURE

Roman is a 46-year old native and citizen of the Dominican

Republic. He has been a lawful 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 six children who are United States citizens.

On September 30, 1999, Roman pleaded guilty in the

Northern District of Ohio to fraud and misuse of visas,

permits, and other documents, 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 sentenced to 15

months of imprisonment for these two felonies and served 13

months of the sentence.

While Roman was serving his sentence, the INS issued a

Notice to Appear and lodged an additional charge against

Roman. Pursuant to INA § 237, 8 U.S.C. § 1227, the INS

charged Roman with being removable on three grounds:

(1) conviction relating to document fraud, see INA

§ 237(a)(3)(B)(iii); (2) conviction of a crime involving moral

turpitude committed within five years of entry for which a

sentence of one year or longer may be imposed, see INA

§ 237(a)(2)(A)(i); and (3) conviction of an aggravated felony,

see INA § 237(a)(2)(A)(iii).

Roman was transferred from the LexingtonFederalMedical

Center in Lexington, Kentucky, to the Oakdale Detention

Center in Oakdale, Louisiana, and passed into INS custody.

At his removal hearing in Oakdale, Roman admitted to the

INS’s factual allegations but denied that he was removable.

According to Roman, because he adjusted his status in 1991,

he was not deportable for committing a crime involving moral

turpitude within five years after his admission to the country.

Roman also argued that he was not removable because his

document fraud was a first offense undertaken solely to assist

close family members, which does not constitute an

aggravated felony. See INA § 101(a)(43)(P), 8 U.S.C.
No. 02-3253 Roman v. Ashcroft et al. 5

§ 1101(a)(43)(P). The IJ did not allow Roman to testify about

his conviction of document fraud.

On August 11, 2000, the IJ entered a decision rejecting

Roman’s arguments that he was not deportable for

committing a crime involving moral turpitude and that he had

not committed an aggravated felony. The decision implied

that the five-year period mentioned in the moral turpitude

ground of removal started running from the date of Roman’s

last entry, February 8, 1997. Moreover, because the criminal

plea agreement stated that Roman possessed false documents

for approximately thirty persons, the IJ rejected Roman’s

contention that he engaged in document fraud solely to assist

close family members.

The IJ found Roman removable, denied Roman’s request

for cancellation of removal pursuant to INA § 240A(a), 8

U.S.C. § 1229b(a), and ordered Roman removed to the

Dominican Republic. The IJ did not address the possibility

of discretionary relief from removal pursuant to § 212(h).

The BIA affirmed the IJ’s decision and denied Roman’s

motion to reopen to apply for cancellation of removal.

Meanwhile, in May 2001, Roman filed a pro se petition for

a writ of habeas corpus in the United States District Court for

the Northern District of Ohio. He named four respondents —

the Attorney General, the INS Commissioner, the former INS

District Director in Cleveland, Ohio, and the INS District

Director in New Orleans, Louisiana. Roman alleged that his

due process rights were violated by the retroactive application

of the Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), that his

procedural due process rights were violated because the IJ did

not allow him a meaningful opportunity to be heard on the

merits of his requests for § 240A or § 212(h) relief, and that

his right to equal protection of the laws was violated because

these forms of relief “discriminate[] between members of a

class based on a distinction that is not rationally related to

[their] purpose.” Joint Appendix at 17 (Habeas Pet.).

6 Roman v. Ashcroft et al. No. 02-3253

2

The government has waived this argument on appeal.

Roman filed a motion seeking a stay of removal, and the

district court enjoined the INS from executing a final order of

removal pending the outcome of judicial proceedings. The

case was briefly held in abeyance while the court awaited the

Supreme Court’s disposition of INS v. St. Cyr, 533 U.S. 289

(2001).

The government moved to dismiss Roman’s petition in July

2001. The government challenged personal jurisdiction and

venue, noted Roman’s failure to exhaust administrative

remedies with respect to § 212(h),2 and argued that § 212(h)

does not violate the Equal Protection Clause.

In September 2001, the district court issued an order

granting the government’s motion to dismiss for want of

personal jurisdiction as to the New Orleans District Director

and denying the motion as to the Attorney General. Roman

v. Ashcroft, 162 F. Supp. 2d 755, 758, 759 (N.D. Ohio 2001)

[Roman I]. The order did not discuss whether the INS

Commissioner and Cleveland District Director were

appropriately named as respondents. Id. at 758. Concluding

that it had jurisdiction over the action, the district court

directed the government to show cause why Roman’s writ

should not issue. Id. at 765.

In January 2002, the district court granted Roman a writ of

habeas corpus, holding that § 212(h) violated the Equal

Protection Clause by differentiating between legal permanent

residents 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 Roman an opportunity

to be heard at his deportation hearing was harmless error. Id.

at 816. The case was remanded to the BIA to allow Roman

to pursue his claim for a discretionary waiver of removal,

pursuant to § 212(h). Id.
No. 02-3253 Roman v. Ashcroft et al. 7

The government timely appealed the district court’s

September 2001 and January 2002 orders.

II. JURISDICTION OVER ROMAN’S HABEAS

CORPUS PETITION

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 Attorney General. Although

the government appeals the district court’s conclusion that the

Attorney General is a properly named respondent to Roman’s

petition, Roman did not file a cross-appeal of the district

court’s conclusion that it lacked jurisdiction over the New

Orleans District Director. Moreover, because the district

court expressly declined to grant or deny the government’s

motion to dismiss as to the Cleveland District Director and

the INS Commissioner, we decline to consider on appeal

whether the district court lacks jurisdiction over these two

respondents. Therefore, our analysis is confined to the

question of whether the district court erred by finding

personal jurisdiction over the Attorney General.

We review de novo a district court’s determinations as to

the existence of personal jurisdiction. Tobin v. Astra Pharm.

Prods., Inc., 993 F.2d 528, 542 (6th Cir.), cert. denied, 510

U.S. 914 (1993). The district court concluded that it had

jurisdiction over Roman’s petition because one of the four

named respondents to the petition — the Attorney General —

was Roman’s custodian and because the district court had

personal jurisdiction over the Attorney General. Reasoning

that, under the circumstances, it was appropriate for Roman

to name someone other than his immediate custodian, the

district court concluded that the Attorney General should be

deemed Roman’s custodian. Because the Attorney General

was subject to service of process in the Northern District of

Ohio, the district court concluded that it had jurisdiction over

Roman’s petition. The government appeals the district

court’s September 2001 order, arguing that the Attorney

General was not Roman’s custodian for habeas corpus

8 Roman v. Ashcroft et al. No. 02-3253

3

Pursuant to the Homeland Security Act of 2002 (“HSA”), Pub. L.

No. 107-296, 116 Stat. 2135 (Nov. 25, 2002), the Department of

Homeland Security performs the functions formerly performed by the

INS. The Savings Provision of the HSA provides that “[r]eferences

relating to an agency that is transferred to the Department in statutes,

Executive orders, rules, regulations, directives, or delegations of authority

that precede such transfer or the effective date of this Act shall be deemed

to refer, as appropriate, to the Department, to its officers, employees, or

agents, or to its corresponding organizational units or functions.” HSA

§ 1512(d), 6 U.S.C. 552(d). However, within the context of this civil

action, we need not conclude that the parties’ arguments about the identity

of a detained alien’s custodians should be deemed to refer to the

corresponding officials under the HSA. The HSA provides,

[s]ubject to the authority of the Secretary under this Act, pending

civil actions shall continue notwithstanding the enactment of this

Act or the transfer of an agency to the Department, and in such

civil actions, proceedings shall be had, and judgments rendered

and enforced in the same manner and with the same effect as if

such enactment or transfer had not occurred.

HSA § 1512(c), 6 U.S.C. § 552(c). Thus, we proceed in this civil action

as if the HSA were not yet in effect, with the understanding that our

analysis will be applicable in future cases by analogy to the corresponding

custodians of detained aliens under the HSA.

purposes and that the district court therefore lacked personal

jurisdiction over the Attorney General. Roman argues that

the Attorney General should be deemed his custodian for

habeas corpus purposes, and that the alternative decision

would effectively deprive Roman of an opportunity to seek

habeas corpus review under the circumstances.

Because we do not believe that extraordinary circumstances

justify our classification of the Attorney General as Roman’s

custodian in this case, we conclude that the district court erred

by recognizing the Attorney General as an appropriate

respondent to Roman’s petition.

A. The Immediate Custodian Rule

A district court shall direct a writ of habeas corpus “to the

person having custody of the person detained.”3 28 U.S.C.

§ 2243; see Braden v. 30th Judicial Circuit Ct. of Ky., 410
No. 02-3253 Roman v. Ashcroft et al. 9

U.S. 484, 494-95 (1973) (“The writ of habeas corpus does not

act upon the prisoner who seeks relief, but upon the person

who holds him in what is alleged to be unlawful custody.”).

Therefore, a court has jurisdiction over a habeas corpus

petition only if it has personal jurisdiction over the

petitioner’s custodian. Braden, 410 U.S. at 495. To evaluate

jurisdiction, a court therefore must first identify the

petitioner’s custodian and then determine whether it has

personal jurisdiction over that custodian.

“Historically, the question of who is ‘the custodian,’ and

therefore the appropriate respondent in a habeas suit, depends

primarily on who has power over the petitioner 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 habeas corpus petition “the individual

having day-to-day control over the facility in which [the

alien] is being detained.” Vasquez v. Reno, 233 F.3d 688, 696

(1st Cir. 2000), cert. denied, 534 U.S. 816 (2001). This is

known as the “immediate custodian rule” because it

recognizes only the petitioner’s “immediate” or “direct”

custodian as the “person having custody” over him under

§ 2243. Courts have deemed these immediate custodians

proper respondents to habeas corpus petitions as a “practical”

matter “based on common sense administration of justice.”

Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945).

Pursuant to the immediate custodian rule, a prisoner filing

a habeas corpus petition should generally name as a

respondent the warden of the prison where he is confined.

Vasquez, 233 F.3d at 691. Similarly, a detained alien filing

a habeas corpus petition should generally name as a

respondent the person exercising daily control over his affairs.

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 the alien is

10 Roman v. Ashcroft et al. No. 02-3253

4

For courts treating the warden of the facility where an alien is

detained as the alien’s immediate custodian, see Yang You Yi v. Maugans,

24 F.3d 500, 507 (3d Cir. 1994) (“It is the warden of the prison or the

facility where the detainee is held that is considered the custodian for

purposes of a habeas action . . . . because it is the warden that has day-today control over the prisoner and who can produce the actual body.”);

Aphayavong v. INS, 169 F.Supp. 2d 1194, 1197 (S.D. Cal. 2001);

Samoeun v. Reno, No. Civ.A. 00-610 L., 2001 WL 210472, at *2 (D. R.I.

Jan. 3, 2001); Chukwurah v. United States, 813 F. Supp. 161, 168 (E.D.

N.Y. 1993); Peon v. Thornburgh, 765 F. Supp. 155, 156 (S.D. N.Y.

1991). For courts treating the INS District Director of the district where

the alien is detained as the alien’s immediate custodian, see Henderson v.

INS, 157 F.3d 106, 126 (2d Cir. 1998), cert. denied, 526 U.S. 1004

(1999); Santiago v. INS, 134 F. Supp. 2d 1102, 1103 (N.D. Cal. 2001);

Williams v. Reno, No. 00-71241, 2001 WL 85867, at *2 (E.D. Mich. Jan.

11, 2001); Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286, 291 (E.D. N.Y.

2000); Ozoanya v. Reno, 968 F. Supp. 1, 8 (D. D.C. 1997); 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 technically has day-to-day control over

alien detainees, the INS District Director for the district where

a detention facility is located “has power over” alien habeas

corpus petitioners. Henderson, 157 F.3d at 122.

District Directors head INS district offices, which are

considered “the basic operating unit[s] of the [INS].” Charles

Gordon, Stanley Mailman, and Stephen Yale-Loehr, 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 submitted to the [INS],

to initiate any authorized proceeding in their district, and . . .

to issue notices to appear in removal proceedings.” 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 oversee the confinement of aliens

in all three kinds of INS detention facilities — “Service

Processing Centers,” “Contract Detention Facilities,” and

“[s]tate or local government facilities used by INS

through Intergovernmental Service Agreements (IGSAs)

 to hold detainees for more than 72 hours.”
No. 02-3253 Roman v. Ashcroft et al. 11

Detention Operations Manual: Admissions and

Release 1 (Sept. 20, 2000), available at

http://www.immigration/gov/graphics/lawsregs/guidance.htm

(last modified Mar. 19, 2003). The wardens of all these

facilities act pursuant to INS Detention Standards and are

considered agents of the INS District Director in their district.

It is clear that the INS does not vest power over detained

aliens in the wardens of detention facilities because the INS

relies on state and local governments to house federal INS

detainees. Whatever daily control state and local

governments have over federal INS detainees, they have that

control solely pursuant to the direction of the INS. See

Samoeun v. Reno, No. Civ.A. 00-610 L., 2001 WL 210472,

at *2 (D. R.I. Jan. 3, 2001) (“[I]t has been observed that it is

the INS District Director who exercises primary control over

an INS detainee because the warden acts as an agent for the

District Director.”). Therefore the INS District Director for

New Orleans is Roman’s immediate custodian for habeas

corpus purposes.

Because the Northern District of Ohio concluded that it did

not have personal jurisdiction over the New Orleans District

Director, however, we must decide whether persons other

than Roman’s immediate custodian — such as the Attorney

General — also have custody of him for § 2243 purposes. At

oral argument, Roman suggestedthat the immediate custodian

rule should not apply in the context of habeas corpus 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 less coherent” than the case law about the

proper respondent to prisoner habeas corpus petitions);

Rachel E. Rosenbloom,Isthe Attorney General the Custodian

of an INS Detainee? Personal Jurisdiction and the

“ImmediateCustodian” Rule in Immigration-RelatedHabeas

Actions, 27 N.Y.U. Rev. L. & Soc. Change 543, 546 (2001-

2002) (maintaining that the immediate custodian rule “has no

place in the adjudication of immigration-related habeas

actions” and that the Supreme Court has been reluctant to

12 Roman v. Ashcroft et al. No. 02-3253

5

“In cases where the . . . petitioner has filed in the district of

confinement . . . the government has raised no objection to the Attorney

General, the INS, or the INS Commissioner being named.” Rachel E.

Rosenbloom, Is the Attorney General the Custodian of an INS Detainee?

Personal Jurisdiction and the “Immediate Custodian” Rule in

Immigration-Related Habeas Actions, 27 N.Y.U. Rev. L. & Soc. Change

543, 577 (2001-2002). In Mojica v. Reno, 970 F. Supp. 130 (E.D. N.Y.

1997), aff’d in part, 157 F.3d 106 (1998), the Eastern District of New

York reasoned that four respondents should be deemed custodians under

§ 2243 because “[t]he habeas statute does not specify who the person

having custody will be, nor does it state that there may only be one

custodian. Nowhere does the statute speak of an immediate custodian.”

Id. at 166 (quotations omitted). We note that this logic would counsel

against an immediate custodian rule in the context of prisoner habeas

corpus petitions as well.

apply the rule in the context of habeas corpus petitions filed

by detained aliens). One court reviewing an alien’s habeas

corpus petition concluded that it had personal jurisdiction

over four named respondents — two INS District Directors,

the Commissioner of the INS, and the Attorney General —

because they were all custodians of the petitioner and able to

be reached by service of process.

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 reason to apply a different rule for identifying a

petitioner’s custodian depending on whether the petitioner is

an alien or a prisoner. Section 2243 states that a writ of

habeas corpus “shall be directed to the person having custody

of the person detained,” which suggests 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.3d at 693 (suggesting that a petitioner

must name one custodian, and may not “choose from among

an array of colorable custodians”). Although Congress may

not have “intended the article, ‘the,’ to have . . . dispositive

significance,” see Chavez-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 agree with the First
No. 02-3253 Roman v. Ashcroft et al. 13

Circuit that “[t]he immediate custodian rule effectuates

section 2243's plain meaning and gives a natural,

commonsense construction to the statute.” Vasquez, 233 F.3d

at 693.

Moreover, as a practical matter, “the [immediate custodian]

rule is clear and easily administered.” Id. The adjudication

of habeas corpus petitions filed by detained aliens would

become considerably more difficult to administer if we were

to adopt a broader definition of “custodian” in this context.

In other words, interpreting the word “custodian” in § 2243 to

refer to not only an alien’s immediate custodian, but also

other officials with control over the alien’s detention and

release — such as the Commissioner of the INS or the

Attorney General — would establish a regime in which

several courts would have personal jurisdiction over an

alien’s “custodians.” Aliens could then engage in forum

shopping, choosing among several different districts as long

as personal jurisdiction existed over at least one of the various

custodians and venue requirements were satisfied. Although

venue considerations would ensure that a petitioner could not

file in every jurisdiction, courts would nevertheless be forced

“in many cases to undertake fact-intensive analyses 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 duration of

habeas corpus proceedings.

Roman points out that even if a broader definition of

“custodian” might delay courts in their evaluation of a single

habeas corpus petition, it would not slow the adjudication of

habeas corpus petitions any more than it is already slowed by

the backlog of such petitions in jurisdictions housing INS

detention facilities. In essence, Roman suggests that the

regime he proposes would not cause any problems greater

than those under the existing regime. However, we see no

reason to solve one problem by creating another. This is

particularly true because Congress is in a better position to

solve the problem of overloaded dockets. When prisoner

14 Roman v. Ashcroft et al. No. 02-3253

habeas corpus petitions caused docketsto become backlogged

in the 1940s, Congress gave federal prisoners the ability to

attack collaterally their convictions in the court where they

were sentenced rather than in the jurisdiction of their

confinement. 28 U.S.C. § 2255; see Vasquez, 233 F.3d at

694. Requiring alien habeas corpus petitioners to name their

immediate custodians as respondents may contribute to the

problem of overcrowded dockets in particular districts.

However, given that our recognition of a broader definition of

“custodian” might delay the adjudication of alien habeas

petitions in other ways, we feel confident that we should not

attempt to construct a judicial solution to this problem.

For all the reasons discussed above, we conclude that a

detained alien generally must designate his immediate

custodian — the INS District Director for the district where

he is being detained — as the respondent to his habeas corpus

petition.

B. Beyond the Immediate Custodian Rule

Although we conclude that the immediate custodian rule

generally applies to alien habeas corpus petitioners, we note

the possibility of exceptions to this rule. “[T]he rules treating

the immediate custodian as the only proper respondent . . .

have not been applied consistently or in a rigid fashion.”

Henderson, 157 F.3d at 124. In fact, most courts adopting the

immediate custodian rule for alien habeas corpus petitioners

have explicitly noted the possibility of exceptions even as

they adopt the rule. See, e.g., Vasquez, 233 F.3d at 696

(“[W]e can envision that there may be extraordinary

circumstances in which the Attorney General appropriately

might be named as the respondent to an alien habeas

petition.”); Chavez-Rivas, 194 F. Supp. 2d at 375; Nwankwo

v. Reno, 828 F. Supp. 171, 174 (E.D. N.Y. 1993) (“While the

general rule may be sound as a matter of policy, the language

of the habeas corpus statute does not compel rigid adherence

to it in every case.”). Arguably, as a jurisdictional matter, “it

is, or should be, enough that the respondent named has the
No. 02-3253 Roman v. Ashcroft et al. 15

6

Although few circuits have specifically rejected the possibility that

the Attorney General may be a custodian in the context of alien habeas

corpus petitions, several circuits have said that the Attorney General is not

a prisoner’s custodian under § 2243. See, e.g., Sanders v. Bennett, 148

F.2d 19, 20 (D.C. Cir. 1945); Blango v. Thornburgh, 942 F.2d 1487,

1491-92 (10th Cir. 1991); Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir.

power or ability to produce the body when so directed by the

court pursuant to process lawfully issued and served upon

him.” Ahrens v. Clark, 335 U.S. 188, 199 (1948) (Rutledge,

J., dissenting). In this case, Roman urges this court to make

an exception to the immediate custodian rule by concluding

that the Attorney General can be considered Roman’s

custodian and thus a proper respondent to Roman’s petition.

The district court below declined to apply the immediate

custodian rule, instead concluding that the Attorney General

was an appropriate respondent to Roman’s habeas corpus

petition. On appeal, the government maintains that the

district court erred by departing from the immediate custodian

rule and basing personal jurisdiction on the Attorney General.

Roman counters that the district court properly made an

exception to the immediate custodian rule because the

exception was necessary to preserve Roman’s right to seek

habeas corpus relief. Specifically, Roman asks this court “to

allow jurisdiction over an indirect custodian in circumstances

where a detainee would otherwise be deprived of his right to

habeas review.” Roman Br. at 15. We must consider, first,

whether the Attorney General may ever be properly named as

an alien’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 petition.

1. The Attorney General as Custodian

A corollary of the immediate custodian rule is that

generally the Attorney General is considered neither the

custodian of a detained alien for purposes of § 2243 nor a

proper respondent to an alien’s habeas corpus petition.6 See

16 Roman v. Ashcroft et al. No. 02-3253

1986); Jones v. Biddle, 131 F.2d 853, 854 (8th Cir. 1942), cert. denied,

318 U.S. 784 (1943). According to the First Circuit, “[t]hese courts

reason that while the Attorney General is the ultimate overseer of all

federal prisoners, see 18 U.S.C. § 4001[(b)](2), she is not responsible for

day-to-day prison operations and does not hold prisoners in actual

physical custody.” Vasquez, 233 F.3d at 691.

Vasquez, 233 F.3d at 696; Carvajales-Cepeda v. Meissner,

966 F. Supp. 207, 209 (S.D. N.Y. 1997) (“It is well settled . . .

that the Attorney General is not the custodian of I.N.S.

detainees.”). In the context of prisoners, courts have rejected

the notion of the Attorney General as respondent because

although he has supervisory and regulatory custody of all

federal prisoners, “it is apparent that . . . he does not have

actual physical custody of a prisoner who is confined in a

federal prison or other federal institution.” Jones v. Biddle,

131 F.2d 853, 854 (8th Cir. 1942), cert. denied, 318 U.S. 784

(1943). As with prisoners, the Attorney General does not

have actual physical custody of aliens detained by the INS.

Although we agree with those courts that have concluded

that the Attorney General is not generally a proper respondent

to any habeas corpus petition, nonetheless we recognize that

the Attorney General’s relationship to prisoners differs

significantly from his relationship to detained aliens. The

Attorney General’s role as the ultimate overseer of federal

prisoners, see 18 U.S.C. § 4001(b)(2), is not equivalent to his

designation as the legal custodian of aliens because he plays

a much larger role in the immigration context, see ChavezRivas, 194 F. Supp. 2d at 374 (“Congress has consistently

designated the Attorney General as the legal custodian of

immigration habeas petitioners.”).

The Second Circuit has described the Attorney General’s

unique role in the immigration context as follows:

There is . . . no question that the Attorney General has

the powerto produce the petitioners, remains the ultimate

decisionmaker as to matters concerning the INS, see 8
No. 02-3253 Roman v. Ashcroft et al. 17

7

Section 1103(a)(1) has been amended by the HSA, 116 Stat. 2135

(2002).

8

The government contends that the reference to the “Attorney

General” in the mandatory detention statute is a mere placeholder for all

immigration officers because more than one entity is empowered to take

an alien into custody. See 8 C.F.R. § 287.7(d) (2001), amended by 68

Fed. Reg. 35273-01 (June 13, 2003). As Roman notes, however, other

provisions of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 delegate specific responsibilities to other

immigration officials without naming the Attorney General as a proxy.

See Arias-Agramonte v. Comm’r of INS, No. 00 Civ. 2412(RWS), 2000

WL 1617999, at *6 (S.D. N.Y. Oct. 30, 2000).

U.S.C. § 1103(a)(1),7 and is commonly designated a

respondent in these cases, even when personal

jurisdiction over the immediate custodian clearly lies. In

this respect, the extraordinary and pervasive role that the

Attorney General plays in immigration matters is

virtually unique. Thus, the Attorney General continues

to be in complete charge of the proceedings leading up to

the order directing the[] removal [of aliens] from the

country and has complete discretion to decide whether or

not removal shall be directed.

Henderson, 157 F.3d at 126 (quotations and footnote

omitted). Congress gives the Attorney General authority to

“take into custody any alien” whose criminal convictions

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 reviewing the legality of removal

orders, INA § 242(b)(3)(A), 8 U.S.C. § 1252(b)(3)(A).

Arguably, “in immigration cases, the warden or district

director who has ‘day-to-day control’ [over a petitioner] is

merely an agent of the Attorney General, who has the

statutorily authorized power over aliens’ custody and

release.” See Arias-Agramonte v. Comm’r of INS, No. 00

Civ. 2412(RWS), 2000 WL 1617999, at *7 (S.D. N.Y.

Oct. 30, 2000); see Nwankwo, 828 F. Supp. at 174 (explaining

18 Roman v. Ashcroft et al. No. 02-3253

9

The Eastern District of New York has rejected the immediate

custodian rule and regularly recognizes the Attorney General as a proper

respondent to an alien’s habeas corpus petition. See, e.g., Pena-Rosario

v. Reno, 83 F. Supp. 2d 349, 362 (E.D. N.Y. 2000); Pottinger v. Reno, 51

F. Supp. 2d 349, 357 (E.D. N.Y. 1999), aff’d on other grounds, 2000 WL

1864477 (2d Cir. Dec. 18, 2000) (unpublished opinion).

that the Attorney General may be “an appropriate respondent

in a habeas corpus proceeding because she has the power to

direct her subordinates to carry out any order directed to her

to produce or release the petitioner”).9

In light of the degree of control which the Attorney General

has over an alien’s immediate custodian, we believe that it

may be appropriate to recognize the Attorney General as a

proper respondent to an alien’s habeas corpus petition under

certain circumstances. The nature and scope of those

circumstances remains to be determined.

2. Extraordinary Circumstances

Roman concedes that the district court’s finding of personal

jurisdiction over the Attorney General was somewhat

unusual, but argues that under the circumstances it was

justified by the importance of preserving Roman’s right to

seek habeas corpus relief. The district court reasoned that

because Roman was 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 that “Roman might be removed from the

United States before his petition could be heard on the

merits.” Roman I, 162 F. Supp. 2d at 763. The district court

found “prima facie reason to believe that removal of Roman

to the Dominican Republic prior to adjudication of the merits

of his petition would, for practical purposes, deny him the

benefit of the writ,” and concluded that the Attorney General

was a proper respondent to Roman’s petition. Id. In other

words, the district court concluded that Roman would be
No. 02-3253 Roman v. Ashcroft et al. 19

deprived of habeas corpus relief if he were not permitted to

name the Attorney General as a respondent.

Under certain extraordinary circumstances it may be

necessary to depart from the immediate custodian rule in

order to preserve a petitioner’s access to habeas corpus relief.

In spite of “[t]he general rule . . . that a circuit judge has

jurisdiction to grant a writ of habeas corpus only if the

petitioner’s immediate custodian islocatedwithinthe circuit,”

Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C. Cir. 1986)

(Bork, J.), we believe that “it is appropriate, in . . . very

limited and special circumstances, to treat the Attorney

General of the United States as the custodian,” id. at 1116.

Such circumstances may arise where a detainee does not have

a realistic opportunity for judicial review of his executive

detention. The Constitution safeguards the right to petition

for a writ of habeas corpus, U.S. Const. art. I § 9, cl. 2, and

this right should not be lightly abrogated, see, e.g., Felker v.

Turpin, 518 U.S. 651, 661-62 (1996) (suggesting that courts

will enforce only very clear statutory language repealing

habeas corpus jurisdiction). Therefore, under extraordinary

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 example of extraordinary circumstances is Demjanjuk

v. Meese. In Demjanjuk, a petitioner’s counsel named the

Attorney General as the respondent to the habeas corpus

petition because the government was holding the petitioner in

custody at an undisclosed location while he awaited

extradition to Israel. Demjanjuk, 784 F.2d at 1116. Because

the petitioner’s attorneys were unaware of Demjanjuk’s

location, they would have had “to file in every jurisdiction”

if the court rigidly enforced the immediate custodian rule. Id.

Judge Bork reasoned that the Attorney General was a proper

respondent underthe circumstances because an exception was

necessary to ensure “that petitioner not be denied the right to

petition for a writ of habeas corpus.” Id. However, not

wanting to extend the exception any further than was

20 Roman v. Ashcroft et al. No. 02-3253

necessary to preserve Demjanjuk’s right to petition for habeas

corpus relief, the court specified that jurisdiction would

terminate if Demjanjuk’s presence in another jurisdiction

became known.

Some courts are also willing to make an exception to the

immediate custodian rule in other extraordinary

circumstances. For example, courts have noted the INS’s

ability, as a practical matter, to deny aliens any meaningful

opportunity 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 remaining in detention for extended periods are

often transferred several times during their detention. See Lee

v. Ashcroft, 216 F. Supp. 2d 51, 55 (E.D. N.Y. 2002) (“[T]he

location of custody, and the identity of the day-to-day

custodian, frequently change when detainees are transferred

among INS facilities, all of which are under the control of the

Attorney General.”); Rosenbloom, supra, at 549. In light of

these transfers, one court reasoned that an alien may properly

name a respondent other than his immediate custodian

because a petition naming a higher level official, such as the

Attorney General, could be adjudicated without interruption

in the event of a transfer. Arias-Agramonte, 2000 WL

1617999, at *8 (explaining that a petition naming only one’s

immediate custodian would be dismissed when the alien was

transferred to another local district).

Although we do not believe that the mere possibility of

successive transfers would justify an exception to the

immediate custodian rule, we do believe that an exception

might be appropriate if the INS were to exercise its transfer

power in a clear effort to evade an alien’s habeas petitions. In

this case, however, Roman has not alleged facts suggesting

either that the government improperly manipulated its

authority in an attempt to deny Roman a meaningful

opportunity for relief or that Roman faced difficulties akin to

Demjanjuk’s inability to identify his immediate custodian.

Therefore, this court need not decide the appropriate scope of
No. 02-3253 Roman v. Ashcroft et al. 21

the extraordinary circumstances exception to the immediate

custodian rule as a general matter. Rather, the facts of this

case require this court to determine only whether the alleged

crowding of a docket in the district of an alien’s confinement

justifies permitting the alien to name the Attorney General as

a respondent to his habeas corpus petition filed in the district

where he formerly resided and was convicted.

The District Court below concluded that the circumstances

justified recognizing the Attorney General as a respondent to

Roman’s petition because Roman would effectively be denied

an opportunity to seek habeas corpus relief if he named his

immediate custodian and filed his petition in the district

where he was being detained. Roman’s entire argument

hinges on the claim that he should not be required to name his

immediate custodian at the Oakdale facility as the respondent

because only the Western District of Louisiana would have

jurisdiction over Roman’s petition seeking a writ against his

immediate custodian. According to Roman, because he

would have to file his petition in the Western District of

Louisiana, he would effectively be denied an opportunity to

seek habeas relief because “the torrent of petitions flowing

from the Oakdale facility” into that district would all but

ensure that the district court would never consider Roman’s

petition prior to his deportation. See Emejulu, 989 F.2d at

772. Although at least one court has equated filing a habeas

petition in the Western District of Louisiana to being denied

“any meaningful habeas corpus relief,” Nwankwo, 828 F.

Supp. at 174, we do not believe that a crowded docket can —

without more — constitute extraordinary circumstances

justifying a departure from the immediate custodian rule. Cf.

Alcaide-Zelaya v. McElroy, Nos. 99Civ.5102(DC),

99Civ.9999(DC), 2000 WL 1616981, at *4 (S.D. N.Y. Oct.

27, 2000) (expressing “concern that the government can

‘seriously undermine the remedy of habeas corpus’ by

detaining so large a number of aliens in one facility that the

local district court is overwhelmed by a flood of habeas

petitions”).

22 Roman v. Ashcroft et al. No. 02-3253

The circumstances of Roman’s petition are not such that

our refusal to recognize the Attorney General as a respondent

will effectively deny Roman even the possibility of habeas

corpus relief. As an initial matter, there is no reason that

Roman could not have filed his habeas corpus petition in the

Western District of Louisiana; in fact, he can still do so in

light of our conclusion that we lack jurisdiction to consider

his petition. Furthermore, Roman cites only the Fifth

Circuit’s suggestion in a 1993 opinion that the Western

District of Louisiana has a very overloaded docket as

evidence of the backlog. See Emejulu, 989 F.2d at 772.

Roman cites no recent evidence of a vast discrepancy between

the habeas corpus filings per judge in that court and any other

district court, and we have been unable to find any clear

evidence of such a discrepancy.

Regardless of whether either Roman or the government can

provide convincing statistics about the caseload of the

Western District of Louisiana, we do not believe that the

possibility of an alien’s removal prior to the adjudication of

his habeas corpus petition amounts to an effective denial of

the petitioner’s opportunity to seek meaningful habeas corpus

relief. Several circuits have concluded that a petitioner meets

the jurisdictional custody requirement of § 2241 even after he

has been removed “so long as he was in custody when the

habeas petition was filed” and that a case or controversy

continues to exist as long as the petitioner “continues to suffer

actual collateral consequences of his removal.” ZegarraGomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003); see

Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002) (noting that

“the bar on readmission of a removed alien is a legally

cognizable collateral consequence that preserves a live

controversy even after deportation of the petitioner”); Smith

v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002); Lee Moi

Chong v. INS, 264 F.3d 378, 382-83 (3d Cir. 2001). Because

the INA provides that an alien ordered removed “who again

seeks admission within 5 years of the date of such removal

. . . is inadmissible,” 8 U.S.C. § 1182(a)(9)(A)(ii), an order of

removal creates sufficient collateral consequences to render
No. 02-3253 Roman v. Ashcroft et al. 23

a removed alien’s petition a live case or controversy, see Lee

Moi Chong, 264 F.3d at 385. Roman will not be deprived of

his opportunity to seek habeas corpus relief even if he is

removed prior to a court’s resolution of his petition.

Therefore, the circumstances of Roman’s habeas corpus

petition are not such that a departure from the immediate

custodian rule is justified at this time, and the Attorney

General is not a proper respondent to Roman’s petition. The

Northern District of Ohio erred by relying on its finding of

personal jurisdiction over the Attorney General as a basis for

jurisdiction here.

We decline to finally determine whether the district court

had jurisdiction over Roman’s habeas corpus petition on other

grounds because the district court below did not decide

whether either the Cleveland District Director or the INS

Commissioner was a properly named respondent and because

neither party briefed the matter before this court. We direct

the district court on remand to determine, consistent with the

views expressed in our opinion, whether either of these

officials is properly a respondent in this action.

III. TRANSFERRING ROMAN’S PETITION

Assuming that the district court for the Northern District of

Ohio decides on remand that none of the named respondents

were properly before it, we now consider whether the district

court erred by dismissing the New Orleans District Director

from the action rather than transferring the entire action

pursuant to 28 U.S.C. § 1631. Section 1631 provides that if

a civil action or appeal is filed in a court lacking jurisdiction,

“the court shall, if it is in the interest of justice, transfer such

action or appeal to any other such court in which the action or

appeal could have been brought at the time it was filed or

noticed.” 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 on

the date upon which it was actually filed in or noticed for the

24 Roman v. Ashcroft et al. No. 02-3253

court from which it is transferred.” Id. A court may decide

to dismiss an action rather than transferring it under § 1631

either because (1) no permissible federal court would have

jurisdiction over the action, or because (2) “transfer would not

be in the interest of justice.” See Jeffrey W. Tayon, 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 subject matter jurisdiction or also 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 legislative history of section 1631 provides

some reason 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, 284 (3d Cir. 1994) (explaining that a court lacking

personal jurisdiction may consider transferring the action

pursuant to § 1631); Ross v. Colo. Outward Bound Sch., Inc.,

822 F.2d 1524, 1526-27 (10th Cir. 1987) (same). Through

§ 1631, Congress “gave broad authority to permit the transfer

of an action between any two federal courts,” Ross, 822 F.2d

at 1526, and courts have effectuated Congress’s intent by

broadly construing the statute, id. at 1527. The language of

§ 1631 does not refer to any specific type of jurisdiction, only

referring broadly to “jurisdiction.” See Tayon, supra, at 224

(“The literal language of the statute . . . is broad enough to

encompass either [lack of subject matter or personal

jurisdiction].”). Moreover, a broad construction of the statute

is consistent with Congress’s intent to “protect a plaintiff

against either additional expense or the expiration of a

relevant statute of limitations in the event that the plaintiff

makes an error in trying to select the proper court within the

complex federal court system.” 17 Charles Alan Wright,

Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure: Jurisdiction 2d § 4104, at 406 (2d ed. 1986)

(citing S. Rep. No. 97-275 (1982)). In light of the language

of § 1631 and its purpose, we therefore conclude that the
No. 02-3253 Roman v. Ashcroft et al. 25

10The New Orleans District Director oversees immigration-related

services for the state of Louisiana and for Southern Mississippi. See

http://www.immigration.gov/graphics/fieldoffices/neworleans/index.htm

(last modified Feb. 28, 2003).

statute applies to federal courts identifying any jurisdictional

defect, regardless of whether it involves personal or subject

matter jurisdiction.

In light of our conclusion that the Attorney General was not

a proper respondent and in light of the district court’s

conclusion that it lacked personal jurisdiction over the New

Orleans District Director, we believe that § 1631 would apply

in this case. It would have been appropriate for Roman to file

his habeas petition in the Western District of Louisiana

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 prisoner’s place of confinement”).

Roman named his immediate custodian, the New Orleans

District Director, as a respondent to the habeas corpus petition

that he filed in the Northern District of Ohio. Although the

district court found that the Northern District of Ohio does not

have personal jurisdiction over the New Orleans District

Director, the Western District of Louisiana would have the

requisite personal jurisdiction. “A federal court has general

jurisdiction when the defendant’s contacts with the forum

state are ‘substantial’ and ‘continuous and systematic,’ so that

the state may exercise personal jurisdiction over the defendant

even if the action does not relate to the defendant’s contacts

with the state.” Youn v. Track, Inc., 324 F.3d 409, 417-18

(6th Cir. 2003). The New Orleans District Director works in

the Western District of Louisiana and is subject to the

personal jurisdiction of that court.10

Because the Western District of Louisiana would have

jurisdiction over the New Orleans District Director, the

Northern District of Ohio district court cannot decline to

26 Roman v. Ashcroft et al. No. 02-3253

11Even if § 1631 did not permit transfers for lack of personal

jurisdiction, the action should be transferred pursuant to 28 U.S.C.

§ 1406(a). Section 1406(a) states that where venue is improper, the

district court where the action was filed “shall . . . if it be in the interest of

justice, transfer such case to any district or division in which [the action]

could have been brought,” id., regardless of whether the transferring court

lacks personal jurisdiction over the defendant, Goldlawr, Inc. v. Heiman,

369 U.S. 463, 466 (1962); Martin v. Stokes, 623 F.2d 469, 474 (6th Cir.

1980).

transfer the case under § 1631 on grounds that no federal

court would have jurisdiction. Therefore, the appropriateness

of a § 1631 transfer turns on whether such a transfer would be

in the interest of justice. We believe that it would be in the

interest of justice to transfer the action because a dismissal of

the action would only cause Roman to incur the additional

expense of filing the same habeas corpus petition in the

Western District of Louisiana. See 17 Wright, Miller, &

Cooper, supra, § 4104, at 406 (noting that § 1631 is intended

in part to protect petitioners from incurring additional expense

if they erroneously file in the wrong court).

For these reasons, we conclude that, if the district court on

remand finds that the Cleveland District Director and the INS

Commissioner are not proper respondents, the district court

erred by dismissing the New Orleans District Director from

the action. The district court should now transfer the action

to the Western District of Louisiana pursuant to § 1631.11

IV. CONCLUSION

For the reasons explained above, we VACATE the district

court’s judgment granting habeas corpus relief to Roman

because the Attorney General was not properly named as the

respondent in Roman’s petition for a writ of habeas corpus.

We REMAND the case to the district court with instructions

to decide whether the Cleveland District Director or the INS

Commissioner is a proper respondent consistent with this

opinion. In the event that the district court finds that these
No. 02-3253 Roman v. Ashcroft et al. 27

officials are not proper respondents, we instruct the district

court to transfer the petition to the Western District of

Louisiana pursuant to 28 U.S.C. § 1631.

28 Roman v. Ashcroft et al. No. 02-3253

____________________

CONCURRENCE

____________________

JULIA SMITH GIBBONS, Circuit Judge, concurring. I

concur in the result in this case and agree with much of the

majority opinion’s reasoning. I write separately to note two

points. 

First, whether the petitioner is a detained alien or a federal

prisoner, the weight of authority supports a determination that

the Attorney General is not 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

not the proper respondent in alien habeas cases and noting

that a number of courts have held that the Attorney General

is not a proper custodian for purposes of a prisoner’s habeas

petition); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir.1994)

(summarily dismissing the idea that the Attorney General

might be a proper respondent in an alien habeas case); 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 Attorney General,

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 Attorney General, was proper respondent in

prisoner’s habeas petition); Jones v. Biddle, 131 F.2d 853,

854 (8th Cir. 1942) (same); Santiago v. INS, 134 F.Supp.2d

1102, 1104 (N.D. Cal. 2001) (finding that Attorney General

was not a proper respondent in a habeas action brought by an

alien); Pearce v. Ashcroft, No. 301CV1160CFD, 2003 WL

1145468, at *1 (D. Conn. Mar. 12, 2003) (concluding that the

Attorney General is not a proper respondent to an alien’s

habeas action filed pursuant to § 2241);Carvajales-Cepeda v.

Meissner, 966 F. Supp. 207, 208 (S.D.N.Y. 1997) (“It is well

settled . . . that the Attorney General is not the custodian of

INS detainees”); Wang v. Reno, 862 F. Supp. 801, 812-13

(E.D.N.Y. 1994) (finding that Attorney General was not
No. 02-3253 Roman v. Ashcroft et al. 29

alien’s custodian for habeas purposes); Peon v. Thornburgh,

765 F. Supp. 155, 156 (S.D.N.Y. 1991) (rejecting argument

that Attorney General was alien’s custodian for purpose of

alien’s habeas petition). The majority states that the

“Attorney General’s relationship to prisoners differs

significantly from his relationship to detained aliens” and

suggests that the Attorney General has a unique role in

immigration matters that makes him more likely to be a

proper respondent in a petition brought by a detained alien

than a federal prisoner. I am not prepared to reach this

conclusion, which seems unnecessary to the result. As the

First Circuit stated in Vasquez:

The Attorney General’s role with regard to aliens is not

materially different from her role with regard to prisoners

at least not different enough to justify a rule that she is

the custodian of aliens, but not prisoners, for habeas

purposes. After all, the Attorney General is the

designated custodian of prisoners to much the same

extent as she is the designated custodian of aliens.

Compare 18 U.S.C. § 4001(2) with 8 U.S.C.

§ 1226(c)(1). And just as she has the ultimate authority

to produce the body of an alien, she has the ultimate

authority to produce the body of a prisoner.

233 F.3d at 696.

Second, in its discussion of extraordinary circumstances

which may justify departure from the immediate custodian

rule, the majority addresses hypothetical situations that are

not present here. I would limit our holding on this point to

the conclusion that a crowded docket alone cannot constitute

extraordinary circumstances, noting of course that as a factual

matter, Roman points to no evidence from which one could

find the existence of a crowded docket in the Western District

of Louisiana.