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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

JOSUE ISAAC RODAS GODINEZ,

 Petitioner, 

v.

U.S. IMMIGRATION AND 

CUSTOMS ENFORCEMENT, 

COREY PRICE, MATTHEW 

ALBENCE, CHAD WOLF, WILLIAM 

BARR, U.S. DEPARTMENT OF 

JUSTICE, and JOHN F. BASH,

 Respondents.

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EP-20-CV-107-KC

ORDER

On this day the Court considered Respondents’ Motion to Dismiss for Lack of 

Jurisdiction or, in the Alternative, Motion to Transfer Venue (the “Motion”), ECF No. 6. For the 

following reasons the Motion is GRANTED in part and DENIED in part. This matter is 

TRANSFERRED to the Las Cruces Division of the United States District Court for the District 

of New Mexico. 

I. BACKGROUND

Petitioner filed a Class Action Complaint and Petition for Writ of Habeas Corpus, 

seeking to compel Immigrations and Customs Enforcement (“ICE”) to consider releasing him 

and other similarly situated “Age-Outs” from ICE custody in compliance with 8 U.S.C. § 

1232(c)(2)(B). See Pet. for Writ of Habeas Corpus (“Pet.”), ECF No. 4. 

Briefly, Petitioner entered the United States at the age of seventeen and was designated 

an Unaccompanied Alien Child (“UAC”). Id. ¶ 4. Pursuant to that designation, Petitioner was 
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transferred from the custody of United States Customs and Border Protection (“CBP”) to the 

custody of the Department of Health and Human Services Office of Refugee Resettlement 

(“ORR”). Id. ¶ 5. Petitioner “aged-out” of ORR custody on his eighteenth birthday and was 

transferred to ICE custody. Id. ¶ 6. After a short period of detention at the El Paso Processing 

Center, Petitioner was transferred to the Otero County Processing Center (the “OCPC”), located 

in Chaparral, New Mexico. Id. ¶¶ 2, 6. Petitioner remains at the OCPC. See id.

Petitioner alleges that the “ICE El Paso Field Office is routinely and systematically 

failing to comply with the requirements of 8 U.S.C. § 1232(c)(2)(B) with respect to 

unaccompanied immigrant children transferred into ICE’s custody when they turn eighteen.” Id. 

¶ 8. Specifically, Petitioner alleges that ICE has failed to consider and make available the least 

restrictive alternatives to detention for himself and others similarly situated. Id. ¶¶ 9–11. 

Moreover, Petitioner suffers from health problems that make him particularly vulnerable to 

COVID-19, which has been confirmed among the detainee population at OCPC. Id. ¶ 1; 

Opposed Mot. for TRO & Prelim. Inj. 10, 16, 19–20, ECF No. 5. For this and other reasons, 

Petitioner alleges that he and other putative class members are suffering irreparable harm and 

requests that they be immediately released during the pendency of this action. Pet. ¶ 14.

On May 5, 2020, Petitioner filed a Motion for Preliminary Injunction. On May 11, 2020, 

Respondents filed the instant Motion. On May 12, 2020, Petitioner filed a brief Response to 

Respondents’ Motion, ECF No. 7. In his Response, “Petitioner respectfully requests this Court 

to rule as soon as possible on the pending motions . . . . Petitioner is desperate.” Id. at 5.
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II. DISCUSSION

A. Standard

Federal courts are courts of limited jurisdiction. Exxon Mobile Corp. v. Allapattah 

Servs., 545 U.S. 546, 552 (2005); People’s Nat’l Bank v. Office of the Comptroller of the 

Currency of the U.S., 362 F.3d 333, 336 (5th Cir. 2004). Without jurisdiction conferred by 

statute or the Constitution, federal courts lack the power to adjudicate claims. Exxon Mobil, 545 

U.S. at 552; People’s Nat’l Bank, 362 F.3d at 336. A party may challenge a district court’s 

subject matter jurisdiction by filing a motion to dismiss pursuant to Federal Rule of Civil 

Procedure 12(b)(1). Fed. R. Civ. P. 12(b)(1). 

A federal court must consider a motion to dismiss pursuant to Rule 12(b)(1) before any

other challenge because a court must have subject matter jurisdiction before determining the 

validity of a claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). The 

party asserting jurisdiction constantly bears the burden of proof that the jurisdiction does in fact 

exist. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Where the motion to 

dismiss is based on the complaint alone, the court must decide whether the allegations in the 

complaint sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 

644 F.2d 521, 523 (5th Cir. 1981). 

B. Analysis

 1. The Court lacks subject-matter jurisdiction to hear Petitioner’s 

habeas claim.

Respondents argue that this Court lacks subject-matter jurisdiction over this action 

because, with limited exceptions that do not apply here, federal courts are only granted 

jurisdiction to issue writs of habeas corpus as to detainees confined within the judicial district in 
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which they sit. Mot. 3–10. Respondents argue that the proper respondent is Petitioner’s 

immediate custodian, OCPC Warden Dora Orozco. Id. at 7–9. Because both Orozco and 

Petitioner are located in the State of New Mexico, Respondents argue that only the District of 

New Mexico has jurisdiction over this habeas action. See id.

Petitioner argues that, “on information and belief,” Orozco has no independent authority 

to order his relief. Opposed Mot. for TRO & Prelim. Inj. 12. Instead of Orozco, he argues, the 

proper Respondent is ICE El Paso Field Office Director Corey Price, who has “control over the 

production and release of Petitioner.” Id. Because Price is located in the Western District of 

Texas, Petitioner argues that this Court has subject-matter jurisdiction. See id. at 10–14; Resp. 

4–5.

The habeas corpus statute invoked by Petitioner provides that “[w]rits of habeas corpus 

may be granted by the Supreme Court, any justice thereof, the district courts and any circuit 

judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). This language has been 

interpreted to establish the general rule that “the district of incarceration is the only district that 

has jurisdiction to entertain a defendant’s § 2241 petition.” Lea v. Wetzel, 244 F.3d 370, 375 n.5 

(5th Cir. 2001); accord Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). At the same time, it is 

also a longstanding requirement that the “court issuing the writ have jurisdiction over the 

custodian.” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (citing Braden v. 30th Judicial 

Circuit Court of Ky., 410 U.S. 484, 494–95 (1973)). The “immediate custodian rule” reconciles 

these two jurisdictional principles, directing that “[w]henever a § 2241 habeas petitioner seeks to 

challenge his present physical custody within the United States, he should name his warden as 

respondent and file the petition in the district of confinement.” Padilla, 542 U.S. at 447; 

Moreland v. Fed. Bureau of Prisons, 431 F.3d 180, 183 & n.6 (5th Cir. 2005).
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In Padilla, the Supreme Court noted that by establishing habeas jurisdiction in only one 

federal district, the immediate custodian rule “avert[s] the ‘inconvenient [and] potentially 

embarrassing’ possibility that ‘every judge anywhere [could] issue the Great Writ on behalf of 

applicants far distantly removed from the courts whereon they sat.’” 542 U.S. at 442 (quoting 

Carbo v. United States, 364 U.S. 611, 617 (1961)). Even so, the Padilla court “decline[d] to 

resolve” a circuit split as to whether the immediate custodian rule applies to “an alien detained 

pending deportation,” because the issue was not before the Court. Id. at 435 n.8. It does not 

appear that the Fifth Circuit has ever considered the question. In Padilla, the Supreme Court 

noted that four of five circuits to have considered the issue at that time had held that the 

immediate custodian rule applied in the context of immigration detention. Id.

Since Padilla, it appears that only one federal court of appeals has considered the issue. 

See Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. 2006). As here, the petitioner in Kholyavskiy 

was detained in a detention center in one judicial district—the Eastern District of Wisconsin—

but filed his petition in a different district—the Northern District of Illinois—naming the director 

of the ICE field office as a respondent. See id. at 948. The Seventh Circuit applied the reasoning 

in Padilla and found that the warden of the Wisconsin jail where the petitioner was detained, and 

not the ICE field director in Illinois, was the proper respondent. Id. at 953 (quoting 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.”).

The Court finds the reasoning in Kholyavskiy persuasive and squarely applicable to the 

present case. There is no reason to believe that the concerns about inconsistent judgments by 

far-flung courts raised by the Supreme Court in Padilla apply with any less force in the context 

of challenges to present physical confinement in immigration detention. See Padilla 542 U.S. at 
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442, 447. Accordingly, only the District of New Mexico, in which both Petitioner and his 

immediate custodian—warden Orozco—are located, has subject-matter jurisdiction to hear 

Petitioner’s habeas case. This conforms with the approach taken by district courts within the 

Fifth Circuit, including this Court. See, e.g., Dada v. Witte, No. 20-1093, 2020 WL 1674129, at 

*2 & n.4 (E.D. La. Apr. 6, 2020) (collecting cases); Solomon v. Terry, No. EP-12-CV-411-KC, 

2012 WL 6097094, at *1 (W.D. Tex. Dec. 7, 2012). 

Petitioner argues that because “the Fifth Circuit has not addressed the immediate 

custodian rule in the context of immigration detention,” the Court should hold that it has 

jurisdiction over this matter, “where there are two potential immediate custodians in two 

potentially different locations: the field office director and the warden.” Mot. for TRO & Prelim. 

Inj. 12. But, Petitioner’s solution—that he could name either custodian and file his habeas claim 

in either jurisdiction—poses the very problems that the Supreme Court has held Congress 

intended to avoid by granting courts the authority to issue writs of habeas corpus only “within 

their respective jurisdictions.” Padilla, 542 U.S. at 442, 447.

Petitioner further argues that “Respondents can avoid judicial review in either state by 

arguing neither state’s federal district court has jurisdiction or venue because the immediate 

custodian is in the other state.” Resp. 4. This concern is misplaced. It is clear that the District 

of New Mexico would have jurisdiction to hear this matter under the immediate custodian rule,

which requires a habeas petitioner to “name his warden as respondent and file the petition in the 

district of confinement.” See Moreland, 431 F.3d at 183 n.6. The Court has no reason to believe 

that the question would be decided differently by a New Mexico district court within the Tenth 

Circuit, where the immediate custodian rule has also been recognized as generally applicable to 

challenges to present physical confinement. See DeWilliams v. Davis, 369 F. App’x 912, 915 
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(10th Cir. 2010) (citing Padilla, 542 U.S. at 439). Moreover, the Government acknowledges that 

the District of New Mexico “does have jurisdiction over this matter.” Mot. 12. In addition to the 

lack of authority upon which to argue that the District of New Mexico lacks jurisdiction, the 

Government would be hard pressed to explain its abrupt change in position to the New Mexico 

district court.

In sum, the Court holds that the proper Respondent is not ICE Field Director Price, but 

OCPC Warden Orozco, and that this Court lacks subject-matter jurisdiction over Petitioner’s 

habeas claim.1

 3. Transfer is appropriate in lieu of dismissal

While Respondents principally seek dismissal of this action, they argue in the alternative 

that the Court should transfer the case to the District of New Mexico. Mot. 17.

“Whenever a civil action is filed in a [federal district court] . . . and that court finds that 

there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action 

[to another court] in which the action . . . could have been brought at the time it was filed . . .” 

28 U.S.C. § 1631. In Griffin v. Ebbert, 751 F.3d 288 (5th Cir. 2014), the Fifth Circuit ordered 

that a habeas petition over which the district court below did not have jurisdiction be transferred 

to the Middle District of Pennsylvania, which would have jurisdiction. See id. at 290–91.

Given the urgency of Petitioner’s claim, see Resp. 5 (“Petitioner is desperate.”), the Court 

finds that it is in the interest of justice to transfer this action to the Las Cruces Division of the 

1 Petitioner also argues that the Court has federal-question jurisdiction under 28 U.S.C. § 1331, because the 

Petition claims the violation of federal statutes, namely U.S.C. § 706(2) (the “APA”) and 8 U.S.C. § 1232(c)(2)(B). 

See Mot. for TRO & Prelim. Inj. 13; Resp. 4. Certainly, Petitioner asks the Court to “Declare that Petitioner's and 

class members' ongoing detention violates 8 U.S.C. § 1232(c)(B)(2), the TVPRA, APA, and Due Process Clause.” 

Pet. ¶ 119(e). However, by their nature, habeas corpus petitions allege the violation of federal statutory or 

constitutional rights. See 28 U.S.C. § 2241(c); see, e.g., Padilla, 542 U.S. at 432. And, petitioner has framed his 

claims here in the form of a petition for habeas corpus under § 2241. See generally Pet.
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United States District Court for the District of New Mexico, which has jurisdiction over both 

Petitioner and the proper respondent, Warden Orozco. See 28 U.S.C. § 1631.

III. CONCLUSION

For the foregoing reasons, the Motion to Dismiss for Lack of Jurisdiction or, in the 

Alternative, Motion to Transfer Venue, ECF No. 6, is GRANTED in part and DENIED in part. 

The Motion is granted with respect to its request for a transfer and denied with respect to its 

request for dismissal.

IT IS FURTHER ORDERED that this matter is hereby IMMEDIATELY

TRANSFERRED to the Las Cruces Division of the United States District Court for the District 

of New Mexico. 

After transfer, the clerk shall close the case in this Court.

SO ORDERED.

SIGNED this 13th day of May, 2020.

KATHLEEN CARDONE

UNITED STATES DISTRICT JUDGE