In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2893

ARKADIY L. KHOLYAVSKIY,

Petitioner-Appellant,

v.

DEBORAH ACHIM,

ALBERTO R. GONZALES,

and MICHAEL CHERTOFF,

Respondents-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 2257—Elaine E. Bucklo, Judge.

____________

ARGUED JANUARY 4, 2006—DECIDED APRIL 17, 2006

____________

Before CUDAHY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. Arkadiy Kholyavskiy, a Jewish

refugee from Russia, has been incarcerated at the Kenosha County Detention Center in Kenosha, Wisconsin, since

he was ordered removed for committing two or more crimes

of moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Contending that this detention is unconstitutional and seeking

his immediate release from custody, he brought this action

for a writ of habeas corpus in the United States District

Court for the Northern District of Illinois. See 28 U.S.C.

§ 2241. Mr. Kholyavskiy’s habeas petition named as respon-
2 No. 05-2893

dents the director of the Chicago field office for the United

States Immigration and Customs Enforcement (“ICE”), the

Secretary of the Department of Homeland Security and the

Attorney General. In a motion to dismiss for lack of jurisdiction, these respondents claimed that they did not have

“custody” over Mr. Kholyavskiy within the meaning of the

habeas statute. The district court granted the motion,

holding that the proper respondent to Mr. Kholyavskiy’s

habeas petition is the warden of the Kenosha Detention

Center, the facility in which he is detained. For the reasons

set forth in the following opinion, we affirm the judgment

of the district court.

I

BACKGROUND

Mr. Kholyavskiy entered the United States as a refugee

from Russia in 1992, a time when Jews in the recently

dissolved Soviet Union continued to encounter widespread

anti-Semitism. See Sosnovskaia v. Gonzales, 421 F.3d 589, 590-

91 (7th Cir. 2005). In 1995, at the age of 18, he became a

lawful permanent resident of the United States. Beginning

in 1996, however, Mr. Kholyavskiy’s behavior turned erratic

and criminal, resulting in convictions for vandalism,

harassment, trespassing, battery and larceny. He was

taken into custody by the INS in 2001 and eventually

ordered removed by the Board of Immigration Appeals

(“BIA”) because he had committed two or more crimes of

moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Mr.

Kholyavskiy initially was released on bond while the

BIA considered his motion to reopen the proceedings on the

ground that his counsel rendered ineffective assistance. Just

a few days later, however, Mr. Kholyavskiy was arrested in
No. 05-2893 3

1 The office of Immigration and Customs Enforcement, a unit of

the Department of Homeland Security, has assumed responsibility for enforcement of the immigration laws after implementation of the Homeland Security Act of 2002, Pub. L. No. 107-296,

116 Stat. 2135. See generally Ashton v. Gonzales, 431 F.3d 95, 96 n.2

(2d Cir. 2005). The old INS district directors are now titled “Field

Office Directors,” but their functions remain the same. See 8

C.F.R. § 1.1(o) (2005).

Highland Park, Illinois, for disorderly conduct and placed

in custody by officials of the Chicago office of ICE (the

successor agency to the INS).1

 After initial processing at an

ICE facility in Broadview, Illinois, Mr. Kholyavskiy was

transferred to the Kenosha County Detention Center in

Kenosha, Wisconsin (“Kenosha”), one of several state jails

used by ICE to house aliens awaiting deportation.

Mr. Kholyavskiy’s motion to reopen eventually was

granted by the BIA, but he remained detained in Kenosha

while his case for asylum was reopened and then ultimately

denied by an immigration judge and the BIA. In April 2005,

he brought this action in the Northern District of Illinois for

a writ of habeas corpus, naming as respondents Deborah

Achim, director of the Chicago ICE field office, Secretary of

the Department of Homeland Security Michael Chertoff and

Attorney General Alberto Gonzales. The district court

dismissed his petition for want of jurisdiction because Mr.

Kholyavskiy had failed to name as respondent the person

exercising custody over him at the Kenosha jail. The district

court ruled that Mr. Kholyavskiy was required to name as

a respondent his “immediate custodian,” the person

exercising “day-to-day control over the prisoner.” R.18 at 2

(internal quotation marks omitted). That person, continued

the district court, was the Kenosha warden, not Ms. Achim,

Mr. Chertoff or Mr. Gonzales.
4 No. 05-2893

Soon after the district court’s dismissal of his petition, Mr.

Kholyavskiy filed another habeas petition in the United

States District Court for the Eastern District of Wisconsin.

This petition named as respondent the warden of the

Kenosha facility. He nevertheless asks that we review the

ruling of the district court in his initial action.

II

DISCUSSION

A.

We must decide the correct application of the immediate

custodian rule to petitions for habeas corpus brought by

aliens awaiting deportation. As we noted earlier, the district

court took the view that Mr. Kholyavskiy was required to

name the warden of the Kenosha facility, the person who

had direct control over his day-to-day activities. Because

this ruling presents a question of law, our review is de novo.

See Samirah v. O’Connell, 335 F.3d 545, 548 (7th Cir. 2003).

Congress has provided that an application for a writ of

habeas corpus shall allege, among other matters, “the

name of the person who has actual custody over [the

petitioner].” 28 U.S.C. § 2242 ¶ 2. Similarly, the writ, once

granted by a district court, “shall be directed to the person

having custody of the person detained.” Id. § 2243; RobledoGonzales v. Ashcroft, 342 F.3d 667, 673 (7th Cir. 2003) (“[A]

petition for a writ of habeas corpus must be directed to the

individual or individuals who holds the petitioner in

allegedly unlawful custody.”). Naming the proper custodian fits with the logic of collateral relief because “[t]he writ

of habeas corpus does not act upon the prisoner who seeks

relief, but upon the person who holds him in what is alleged
No. 05-2893 5

2 Congress also has instructed that a district court may issue

a writ only “within [its] respective jurisdiction.” 28 U.S.C.

§ 2241(a). This means, in most cases, that the named custodian

must reside within the geographical confines of the federal

district where the complaint was filed. See Rumsfeld v. Padilla, 542

U.S. 426, 443 (2004). There are two statutory exceptions to this

rule that are not relevant here: (1) that a prisoner serving a state

criminal sentence in a state that contains more than one federal

district may file in either district, see 28 U.S.C. § 2241(d); and

(2) that a federal prisoner collaterally attacking his criminal

sentence may do so only in the district where the sentence was

imposed. There is also a judicially-crafted exception that emerged

with the Braden decision, in which the Supreme Court allowed a

prisoner housed in Alabama to challenge his future confinement

in Kentucky by filing a habeas petition in Kentucky federal court.

See Braden v. 30th Jud. Cir. Ct. of Kentucky, 410 U.S. 484, 494-95

(1973). After Braden, “[p]risoners under penal obligation to two

jurisdictions may seek collateral relief from both.” al-Marri v.

Rumsfeld, 360 F.3d 707, 711 (7th Cir. 2004) (discussing Braden).

to be unlawful custody.” Braden v. 30th Jud. Cir. Ct. of

Kentucky, 410 U.S. 484, 494-95 (1973).2

1.

A century-old line of Supreme Court precedent has

defined a habeas petitioner’s custodian as the person “’who

has the immediate custody of the party detained, with the

power to produce the body of such party before the court or

judge.’” Id. (quoting Wales v. Whitney, 114 U.S. 564, 574

(1885) (emphasis added)). We have given further elaboration to this definition by describing the immediate custodian

as the individual having “day-to-day control” over the
6 No. 05-2893

facility in which a prisoner is housed. Robledo-Gonzales, 342

F.3d at 673. Typically, for an inmate of a jail or prison, his

immediate custodian is the warden. See id.; see also al-Marri

v. Rumsfeld, 360 F.3d 707, 708 (7th Cir. 2004) (“In the federal

system, this means the warden (or Commander) rather than

the Director of the Bureau of Prisons . . . .”).

The immediate custodian rule is “a practical one based on

common sense administration of justice.” Sanders v. Bennett,

148 F.2d 19, 20 (D.C. Cir. 1945). Although the Attorney

General is, in the end, responsible for the operation of

federal penitentiaries and for the location of a prisoner’s

confinement, he is a single supervisory official with an

office in Washington, D.C. An interpretation of “custody”

that were to include the Attorney General within its sweep

would make the District Court for the District of Columbia

the default forum for the habeas petitions of every federal

prisoner in the United States. To ensure a more even

distribution among the federal districts, Congress has

required that a habeas petition name the person in direct

charge of the local penal institution. See al-Marri, 360 F.3d at

710.

2.

Mr. Kholyavskiy submits that the immediate custodian rule should be different when the habeas petitioner

is not serving a criminal sentence but is instead an alien

undergoing removal proceedings. Rather than identifying

the Kenosha warden in his petition, Mr. Kholyavskiy named

Deborah Achim, director of the ICE field office in Chicago

because he claims that she has “the authority to transport,

transfer and ultimately release him from custody.” Appellant’s Br. at 14. There is little doubt that the Northern
No. 05-2893 7

District of Illinois would have had jurisdiction over Ms.

Achim if she were indeed the proper respondent. The only

question, then, is whether she properly was identified as

Mr. Kholyavskiy’s custodian.

The circuits have divided on the question of whether a

detained alien challenging his impending removal must

name the warden of his detention facility in a petition for

habeas corpus, or whether the alien may name an immigration official instead. Some courts have allowed an

alien to name the INS district director who oversees the

confinement of aliens within that INS district. See, e.g.,

Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003);

Henderson v. INS, 157 F.3d 106, 126 (2d Cir. 1998). These

courts reason that the wardens of state and local facilities

used by the INS “act pursuant to INS Detention Standards

and are considered agents of the INS District Director in

their district.” Roman, 340 F.3d at 320. As these courts see it,

whatever day-to-day control the wardens have over an alien

detainee, they exercise that control only at the direction of

the INS. See id.

The Third and First Circuits have taken a different view.

In Yang You Yi v. Maugans, the Third Circuit held that,

despite the power of the INS district directors, “[i]t 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.” 24 F.3d 500, 507 (3d Cir. 1994). The court

explained:

This is because it is the warden that has day-to-day

control over the prisoner and who can produce the

actual body. That the district director has the power to

release the detainees does not alter our conclusion.

Otherwise, the Attorney General of the United States

could be considered the custodian of every alien and
8 No. 05-2893

3 In Vasquez, the alien also had named an INS district director as

respondent. See Vasquez v. Reno, 233 F.3d 688, 690 (1st Cir. 2000).

However, according to the court, the named director was not the

individual that had actual control over Vasquez’s detention. And,

because the INS director who should have been named was

outside of the court’s in personam jurisdiction, Vasquez’s habeas

petition was dismissed.

prisoner in custody because ultimately she controls

the district directors and the prisons.

Id. (citations removed). Similarly, in Vasquez v. Reno, the

First Circuit dismissed an alien’s habeas petition that named

the Attorney General as respondent. 233 F.3d 688, 689 (1st

Cir. 2000) (“[A]s a general rule, the Attorney General is

neither the custodian of such an alien in the requisite sense

nor the proper respondent to a habeas petition.”).3

 The First

Circuit reasoned in Vasquez:

In terms of identifying a proper custodian, there is

no principled distinction between an alien held in a

detention facility awaiting possible deportation and a

prisoner held in a correctional facility awaiting trial or

serving a sentence. Since the case law establishes that

the warden of the penitentiary not the Attorney General

is the person who holds a prisoner in custody for habeas

purposes, it would be not only illogical but also quixotic

to hold that the appropriate respondent in an alien

habeas case is someone other than the official having

day-to-day control over the facility where the alien is

being detained.

Id. at 693.

We have not addressed this question directly. In RobledoGonzales, an alien who had been deported reentered the
No. 05-2893 9

4 See Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 674 (7th Cir. 2003)

(“Mr. Robledo-Gonzales was not the subject of immigration

proceedings at the time his petition was filed, nor is he at the

present time. Indeed, neither the INS nor its successor agency, the

Department of Homeland Security, has taken even the preliminary step of filing a notice of detainer with the criminal authorities.”).

country illegally and was apprehended and charged with

the federal crime of illegal reentry. See 342 F.3d at 670. While

incarcerated awaiting trial, Robledo-Gonzales filed a habeas

petition in the Northern District of Illinois that named the

Attorney General, the Commissioner of the INS and the

local INS district director as respondents. We held that none

of these respondents exercised “day-to-day” control over

Robledo-Gonzales, and accordingly his habeas petition had

to be dismissed for lack of jurisdiction. We were careful,

however, to distinguish Robledo-Gonzales’s case from

situations in which an alien “brings a habeas petition to

challenge the execution of a final order of removal.” RobledoGonzales, 342 F.3d at 674. Robledo-Gonzales was not being

detained under a final order of deportation, nor under any

other order by immigration authorities.4

 He was a prisoner

awaiting trial for violating federal law. Therefore, any case

law from the immigration context was considered

inapposite, and his petition was dismissed for failing to

name the warden as respondent.

Similarly, in al-Marri v. Rumsfeld, we discussed the

immediate custodian rule at length, but did not resolve

conclusively the rule’s application in the immigration

context. See 360 F.3d at 707. Ali Saleh Kahlah al-Marri was a

Qatari national held as an enemy combatant at a naval brig

in Charleston, South Carolina. He filed a habeas petition in
10 No. 05-2893

5 The only difference from the al-Marri case—an immaterial

(continued...)

the Central District of Illinois, naming the President, the

Secretary of Defense and M.A. Marr, the commander of the

Charleston naval brig, as respondents. We noted that

Commander Marr was al-Marri’s custodian. Nevertheless,

the dismissal of al-Marri’s petition was affirmed because

Commander Marr and the naval brig were outside of the

territorial confines of the Central District of Illinois. We

interpreted 28 U.S.C. § 2241, which gives district courts the

power to grant writs of habeas corpus “within their jurisdictions,” to mean that the only proper venue for habeas

proceedings is the federal district in which the petitioner is

detained. See 360 F.3d at 709-10. In our view, the requirement that a prisoner litigate where he is confined not only

enforces § 2241 as written, but also is valuable from a policy

standpoint because it “distributes business among the

district courts and . . . allows important issues to percolate

through multiple circuits before the Supreme Court must

review a disputed question.” Id. at 710. Our al-Marri opinion

was critical of cases that allowed habeas petitioners to name

an INS district director or the Attorney General as respondents. These decisions, we wrote, “conflate the person

responsible for authorizing custody with the person responsible for maintaining custody.” Id. at 711.

More recently, the Supreme Court decided Rumsfeld

v. Padilla, 542 U.S. 426 (2004), which presented a virtually

identical set of circumstances as al-Marri. Like al-Marri, Jose

Padilla was detained as an enemy combatant at the

Charleston, South Carolina, naval brig. In his petition for

habeas corpus, he named Secretary of Defense Donald

Rumsfeld, in addition to Commander Marr.5

 The South
No. 05-2893 11

5 (...continued)

one—was that Padilla filed his petition in the Southern District of

New York instead of the Central District of Illinois.

6 Although the Court in Padilla did not precisely draw the

line between “core” and “non-core” habeas petitions, the decision

offers some guidance with respect to these terms. The Padilla

Court distinguished from the classic “core” habeas challenge

situations in which a petitioner “challenges a form of ‘custody’

other than present physical confinement.” Rumsfeld v. Padilla, 542

(continued...)

ern District had concluded that, because Padilla’s case

was unusual, at least as compared to most federal habeas

petitions, it was appropriate to adopt a more flexible

approach to determining the proper respondent. The

court held that Secretary Rumsfeld’s personal involvement in Padilla’s military custody rendered him a proper

respondent to Padilla’s habeas petition; the district

court also considered the Secretary to be within the jurisdictional reach of New York’s long-arm statute, despite his

absence from the Southern District. The Second Circuit,

although divided on the merits, affirmed the district

court’s jurisdictional analysis in full.

The Supreme Court reversed these jurisdictional holdings.

Concluding that Padilla’s petition was a “core challenge”—that is, a challenge to “present physical confinement”—the Court held that the immediate custodian rule

should apply. Padilla, 542 U.S. at 435 (“[I]n habeas challenges to present physical confinement—’core challenges’—the default rule is that the proper respondent is the

warden of the facility where the prisoner is being held,

not the Attorney General or some other remote supervisory official.”).6

 Similarly, the Court held that core habeas
12 No. 05-2893

6 (...continued)

U.S. 426, 438 (2004). These latter situations, according to the

Court, fall under the exception in Braden. As the Court emphasized, Braden had not contested the validity of the Alabama

conviction for which he was presently confined, but instead

sought to challenge a detainer imposed by a court in Kentucky—“confinement that would be imposed in the future.”

Braden, 410 U.S. at 489. The Court held that Braden could be

considered in custody in Kentucky by virtue of the detainer, and

therefore the proper respondent was not the prisoner’s immediate

physical custodian (the Alabama warden), but was instead the

Kentucky court in which the detainer was lodged. As the Court

observed in Padilla, Braden represents the “non-core” situation

and means that “a habeas petitioner who challenges a form of

‘custody’ other than present physical confinement may name as

respondent the entity or person who exercises legal control with

respect to the challenged ‘custody.’ ” Padilla, 542 U.S. at 438.

7 Despite this broad holding, the Supreme Court expressly

reserved the question of whether the immediate custodian

rule applies in the context of immigration habeas petitions.

Padilla, 542 U.S. at 436 n.8 (recognizing the circuit split but

refusing to resolve it). Nevertheless, the Padilla decision supplies

at least the mode of analysis for habeas petitions implicating

the immediate custodian rule, including those brought by alien

detainees.

challenges may be brought only in the district court that has

territorial jurisdiction over the detainee’s immediate

custodian. Id. at 444.7

In light of Padilla, we must determine as a threshold

matter whether Mr. Kholyavskiy’s habeas challenge falls

within the “core” or “non-core” category of habeas challenges. Notably, unlike the cases that have precipitated

disagreement among some of our sister circuits, Mr.
No. 05-2893 13

Kholyavskiy’s petition for habeas corpus does not challenge

the validity of his removal order, but instead attacks the

constitutionality of his confinement while he was awaiting

removal. His petition asserts that his “excessive detention”

at Kenosha deprives him of his rights to substantive and

procedural due process. R.1 at 1, 18, 26; see also id. at 9 (“The

action complained of is the unconstitutional length of

Petitioner’s detention pending the final adjudication of the

appeal of his removal proceedings and the bond appeal.”).

Because this alleged “excessive detention” is taking place

where Mr. Kholyavskiy is currently incarcerated, his habeas

challenge is fundamentally no different from the typical

“core” challenge described in Padilla, in which a prisoner

seeks release from present physical confinement. Padilla

holds that a habeas petition seeking this type of relief must

name the “person who has the immediate custody of the

person detained, with the power to produce the body of

such party before the court or judge.” Padilla, 542 U.S. at 435

(emphasis in original) (internal quotation marks omitted).

Mr. Kholyavskiy’s habeas petition has not named this

individual.

3.

Mr. Kholyavskiy nevertheless contends that Ms. Achim,

director of the Chicago field office for ICE, is actually

his immediate custodian, even though the warden exercises day-to-day control over the Kenosha facility. In

support of this contention, Mr. Kholyavskiy invites our

attention to a number of administrative regulations and

governmental operations documents. This material indicates

that ICE field office directors oversee the confinement of

aliens in state and local jails such as Kenosha. These facilities are used by ICE, and its parent agency, the Department
14 No. 05-2893

of Homeland Security, under Intergovernmental Service

Agreements to hold detainees for more than 72 hours. See

generally Roman, 340 F.3d at 320. The wardens of the facilities are considered agents of ICE field office directors who

oversee alien detentions in that region. The warden-ICE

relationship is further defined by the ICE Detention Operations Manual, which specifies the standards with which

contracted local jails, such as the Kenosha facility, must

comply. In particular, the manual provides that a local

warden may not remove an alien detainee without the

express permission of an ICE official. All of this material

defining the contractual arrangement between the ICE and

local wardens, according to Mr. Kholyavskiy, means that

only the ICE official, not the warden, has the power to

produce the body of the detainee before a habeas court.

Therefore, Mr. Kholyavskiy’s argument goes, Ms. Achim is

the functional equivalent of a warden for purposes of his

habeas challenge.

We cannot accept this argument. By claiming that Ms.

Achim is, in effect, his immediate custodian, Mr.

Kholyavskiy’s argument makes the logical misstep discussed in al-Marri of “conflat[ing] the person responsible for

authorizing custody with the person responsible for maintaining custody.” al-Marri, 360 F.3d at 711. Ms. Achim has

the authority to free Mr. Kholyavskiy, but so do her superiors, all the way up to the President of the United States. We

do not understand Mr. Kholyavskiy to be suggesting that

the President is his immediate custodian. Noticing an

almost identical mistake, we recently refused to allow a

state to substitute the director of the state department of

corrections for the warden who was named respondent in

a habeas petition. Bridges v. Chambers, 425 F.3d 1048, 1050

(7th Cir. 2005). There, we observed:
No. 05-2893 15

The fact that a superior officer can arrange for the

petitioner’s release need not imply that the superior has

“custody” of the person. We can order a petitioner

released if we find that he is being held in violation of

federal law, but that does not make us his custodian.

Id. Similarly, Ms. Achim’s authority to arrange for Mr.

Kholyavskiy’s release does not make her his immediate

custodian for habeas purposes. See Padilla, 542 U.S. at 439

(“In challenges to present physical confinement, we reaffirm

that the immediate custodian, not a supervisory official who

exercises legal control, is the proper respondent.”).

Conclusion

Because Mr. Kholyavskiy did not name his immediate

custodian in challenging his present physical confinement in

Kenosha, we must affirm the dismissal of his petition for

habeas corpus.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-17-06