United States Court of Appeals

For the First Circuit

No. 00-1505

FRANCISCO VASQUEZ,

Petitioner, Appellant,

v.

JANET RENO, ATTORNEY GENERAL; DORIS MEISSNER,

COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE;

AND STEVEN J. FARQUHARSON, DISTRICT DIRECTOR, IMMIGRATION AND

NATURALIZATION SERVICE (BOSTON),

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Selya, Boudin and Stahl,

Circuit Judges.

James C. Dragon, with whom Edward Hart and Law Office of

James C. Dragon P.C. were on brief, for petitioner.

Brenda M. O'Malley, Attorney, Office of Immigration

Litigation, U.S. Dep't of Justice, with whom David W. Ogden,

Acting Assistant Attorney General, and Terri J. Scadron, Senior

Litigation Counsel, were on brief, for respondents.

December 8, 2000

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SELYA, Circuit Judge. We are called upon to decide an

important question of first impression at the appellate level:

Is the Attorney General of the United States the custodian of an

alien being held at a federal detention facility (and therefore

a proper respondent to that alien's petition for a writ of

habeas corpus)? We conclude that, as 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. Since this case falls squarely within that general

rule, we vacate the district court's merits-based opinion,

Vasquez v. Reno, 97 F. Supp. 2d 142 (D. Mass. 2000), and remand

with instructions to dismiss or transfer the petition.

I. BACKGROUND

The essential facts are undisputed. The petitioner,

Francisco Vasquez, is a citizen of the Dominican Republic who

lawfully entered the United States in 1987 and eventually

established a domicile in Massachusetts. In 1993, a

Massachusetts state court found him guilty of knowingly

receiving stolen property, Mass. Gen. Laws ch. 266, § 60, and

sentenced him to a term of immurement. Following the

petitioner's release from prison, the Immigration and

Naturalization Service (INS) took steps to deport him on the

basis of that conviction.
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The INS detained the petitioner in Boston and then

transferred him to the Federal Detention Center, Oakdale,

Louisiana (FDC-Oakdale). Following a hearing, an immigration

judge ordered him returned to the Dominican Republic. He

appealed unsuccessfully to the Board of Immigration Appeals.

Facing imminent removal, the petitioner filed an

application for a writ of habeas corpus, 28 U.S.C. § 2241, in

the United States District Court for the District of

Massachusetts. He named as respondents the Attorney General of

the United States, the Commissioner of the INS, and the district

director of the INS's Boston office. He did not name the

district director having day-to-day control over FDC-Oakdale,

presumably because that individual is stationed in New Orleans

and, thus, beyond the reach of the Massachusetts district

court's in personam jurisdiction.

The respondents moved to dismiss the petition on myriad

grounds. The district court found that it had subject matter

jurisdiction to review the removal order. Vasquez, 97 F. Supp.

2d at 148. It further found that it had personal jurisdiction

over the three named respondents, that the Attorney General was

the person who had the petitioner "in custody" for habeas
1The court made no finding concerning the other two

respondents qua custodians. We need not dwell on this omission,

however, because it is plain in this instance that neither has

a more cogent claim to custodian status than the Attorney

General. Consequently, we treat this appeal as if the Attorney

General were the sole respondent.

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purposes,1 and that venue was properly laid in the District of

Massachusetts. Id. at 149-53. But the court denied on the

merits the petitioner's claim that he was eligible for a waiver

of deportation under a now-repealed section of the Immigration

and Nationality Act. Id. at 154.

On appeal, the petitioner asks us to reverse this

merits-based decision. The respondents defend it. As a

threshold matter, however, they assert that we should not reach

the merits inasmuch as the lower court (1) lacked subject matter

jurisdiction, (2) lacked personal jurisdiction over the only

proper respondent (i.e., the INS official who directly

supervises FDC-Oakdale), and/or (3) lacked proper venue. We

reject the first of these threshold assertions out of hand. See

Mahadeo v. Reno, 226 F.3d 3, 10 (1st Cir. 2000) (holding that

district courts continue to have subject matter jurisdiction in

alien cases under 28 U.S.C. § 2241, notwithstanding the

enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110

Stat. 3009, 3546 (codified as amended in scattered sections of
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the United States Code)). But we find the respondents' second

assertion persuasive: in our view, the case cannot proceed due

to the petitioner's failure to name his true custodian (the INS

district director for Louisiana) as the respondent to his

petition. Accordingly, we have no need to mull the other issues

raised by the parties.

II. THE LEGAL LANDSCAPE

Congress has stipulated that a writ of habeas corpus

granted by a district court "shall be directed to the person

having custody of the person detained." 28 U.S.C. § 2243. This

means, of course, that the court issuing the writ must have

personal jurisdiction over the person who holds the petitioner

in custody. Braden v. 30th Judicial Circuit Court, 410 U.S.

484, 495 (1973); United States v. Barrett, 178 F.3d 34, 50 n.10

(1st Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000); Guerra v.

Meese, 786 F.2d 414, 415 (D.C. Cir. 1986) (per curiam).

Jurisdiction over the custodian is paramount 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 to

be unlawful custody." Braden, 410 U.S. at 494-95.

Although clearly articulating the baseline requirement

of jurisdiction over the custodian, the Braden Court provided

limited guidance for determining the identity of the custodian
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in any given case. Other Supreme Court precedents are equally

inscrutable on this point. The courts of appeals have been more

forthcoming. They have held with echolalic regularity that a

prisoner's proper custodian for purposes of habeas review is the

warden of the facility where he is being held. E.g.,

Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992)

(per curiam); Blango v. Thornburgh, 942 F.2d 1487, 1491-92 (10th

Cir. 1991) (per curiam); Brennan v. Cunningham, 813 F.2d 1, 12

(1st Cir. 1987); Monk v. Secretary of Navy, 793 F.2d 364, 368-69

(D.C. Cir. 1986); Guerra, 786 F.2d at 416; Billiteri v. United

States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976); United

States v. DiRusso, 535 F.2d 673, 676 (1st Cir. 1976); Jones v.

Biddle, 131 F.2d 853, 854 (8th Cir. 1942). The warden is the

proper custodian because he has day-to-day control over the

petitioner and is able to produce the latter before the habeas

court. Blango, 942 F.2d at 1492 n.10; Guerra, 786 F.2d at 416.

In the prisoner context, a number of courts have

specifically rejected the argument that a petitioner's proper

custodian for habeas purposes is the Attorney General. E.g.,

Blango, 942 F.2d at 1491-92; Sanders v. Bennett, 148 F.2d 19, 20

(D.C. Cir. 1945); Jones, 131 F.2d at 854; Connally v. Reno, 896

F. Supp. 32, 35 (D.D.C. 1995); De Maris v. United States, 187 F.

Supp. 273, 275-76 (S.D. Ind. 1960). These courts reason that
2These courts also express understandable concern about the

practical effect of allowing a prisoner to name the Attorney

General as his custodian in a habeas petition. E.g., Sanders,

148 F.2d at 20 (noting that an interpretation of custodian that

would open the courts of a given district to all federal

prisoners "is without justification either in convenience or

logic").

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while the Attorney General is the ultimate overseer of all

federal prisoners, see 18 U.S.C. § 4001(2), she is not

responsible for day-to-day prison operations and does not hold

prisoners in actual physical custody. Consequently, a demand to

produce the body of the prisoner is more logically directed to

the person who does have day-to-day control and actual physical

custody, namely, the warden.2 Given this solid wall of authority

and the impeccable logic that supports it, we consider it

settled beyond cavil that when a prisoner petitions for a writ

of habeas corpus under 28 U.S.C. § 2241, he must name as the

respondent the superintendent of the facility in which he is

being held.

Notwithstanding this uniform view, 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. On the only occasion when the question of

whether the Attorney General is a proper respondent to an alien

habeas petition surfaced in the Supreme Court, the Justices

adroitly sidestepped it. See Ahrens v. Clark, 335 U.S. 188, 193
3A few years ago, we ourselves issued an unpublished order

that touched upon this subject. Alvarez v. Reno, No. 98-1099

(1st Cir. Feb. 6, 1998). That order has no precedential value,

see 1st Cir. R. 36(b)(2)(F), and we do not discuss it further.

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(1948). In dictum, two courts of appeals have addressed — but

stopped short of authoritatively answering — the question.3 In

Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994), the Third Circuit

quickly dismissed the idea that the Attorney General might be a

proper respondent in an alien habeas case. The court reasoned

that the existence of a power to release cannot definitively

determine the identity of the proper custodian, "[o]therwise,

the Attorney General of the United States could be considered

the custodian of every alien and prisoner in custody because

ultimately she controls the district directors and the prisons."

Id. at 507. The Second Circuit pondered the problem at greater

length, reviewed the arguments pro and con, and manifested some

uncertainty as to the answer. See Henderson v. INS, 157 F.3d

106, 124-28 (2d Cir. 1998). In the end, however, the court

determined that it could leave the conundrum unsolved. Id. at

128.

Several trial courts have tackled this question, but

their decisions are in considerable disarray. One line of

cases, conceived and nurtured primarily in the Eastern District

of New York, holds that the Attorney General is a proper
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respondent to an alien habeas petition. This notion had a

modest beginning. In the seminal case, the court acknowledged

the existence of "compelling reasons of policy why the Attorney

General should not normally be regarded as the custodian of a

habeas petitioner." Nwankwo v. Reno, 828 F. Supp. 171, 173-74

(E.D.N.Y. 1993). Withal, the court remarked the heavy crush of

deportation proceedings in the Western District of Louisiana

(the location of FDC-Oakdale) and fretted that transfer of the

case to that district likely would "deny petitioner any

meaningful habeas corpus relief." Id. at 174. With these

"unusual circumstances" in mind, the court crafted an exception

to the general rule and found the Attorney General to be the

proper custodian. Id. at 175.

A few years later, the Nwankwo exception was

transformed into a rule of general application. In Mojica v.

Reno, 970 F. Supp. 130 (E.D.N.Y. 1997), the court held squarely

that the Attorney General was the custodian of an alien held in

Louisiana, and thus was a proper respondent to the alien's

habeas petition in the Eastern District of New York. Id. at

166. The court reasoned that the petitioner had several

custodians, and that nothing in the relevant statute, 28 U.S.C.

§ 2243, required habeas proceedings to be brought against an

immediate custodian. Id. Because the Attorney General could
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order her subordinates to carry out an order to produce or

release the petitioner, she was an appropriate custodian (and,

therefore, an appropriate habeas respondent). Id. at 166-67.

A handful of district courts have reached similar

results. E.g., Alcaide-Zelaya v. McElroy, No. 99 Civ. 5102(DC),

2000 WL 1616981, at *4 (S.D.N.Y. Oct. 27, 2000); 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); cf. AriasAgramonte v. Commissioner of INS, No. 00CIV2412 (RWS), 2000 WL

1059678, at *6-8 (S.D.N.Y. Aug. 1, 2000) (concluding that

Commissioner of INS, rather than district director, was the

appropriate custodian and thus the proper respondent to an alien

habeas petition). Others have been less sanguine. E.g.,

Valdivia v. INS, 80 F. Supp. 2d 326, 333 (D.N.J. 2000)

(implicitly rejecting broad definition of custodian by

transferring alien habeas petition to district in which

petitioner was being detained); Ozoanya v. Reno, 968 F. Supp. 1,

8 (D.D.C. 1997) (transferring alien habeas petition to Western

District of Louisiana, so that court would have personal

jurisdiction over petitioner's custodian, INS district director

in Louisiana); Carvajales-Cepeda v. Meissner, 966 F. Supp. 207,

208 (S.D.N.Y. 1997) (similar); Michael v. INS, 870 F. Supp. 44,

47 (S.D.N.Y. 1994) (ordering transfer to Western District of
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Louisiana because proper custodian was not INS generally but INS

district director in Louisiana); Wang v. Reno, 862 F. Supp. 801,

812-13 (E.D.N.Y. 1994) (distinguishing Nwankwo and rejecting

Attorney General as alien's custodian for habeas purposes);

Iheme v. Reno, 819 F. Supp. 1192, 1196 (E.D.N.Y. 1993) (ordering

transfer to Western District of Louisiana because Attorney

General was not proper custodian); Chukwurah v. United States,

813 F. Supp. 161, 168 (E.D.N.Y. 1993) (ordering transfer because

alien's proper custodian was the warden of his detention

facility in Colorado); Peon v. Thornburgh, 765 F. Supp. 155, 156

(S.D.N.Y. 1991) (rejecting contention that Attorney General was

alien's custodian for habeas purposes and transferring petition

accordingly).

III. ANALYSIS

Against this chiaroscuro backdrop, we turn to the

question of whether an alien detained under the immigration laws

may designate the Attorney General as the respondent to his

habeas petition. In answering this quintessentially legal

question, we afford de novo review. See Phoenix v. Matesanz,

189 F.3d 20, 24 (1st Cir. 1999); Simpson v. Matesanz, 175 F.3d

200, 205 (1st Cir. 1999), cert. denied, 120 S. Ct. 803 (2000).

We conclude that, as a general rule, he may not.
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In the first place, consistency almost always is a

virtue in the law — and consistency strongly suggests this

result. 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.

In the second place, the text of 28 U.S.C. § 2243

indicates that there is only one proper respondent to a habeas

petition: "The writ . . . shall be directed to the person

having custody of the person detained." Id. (emphasis

supplied). Section 2243 does not indicate that a petitioner may

choose from among an array of colorable custodians, and there is

nothing about the nature of habeas practice that would justify

a court in stretching the statute's singular language to

encompass so mischievous an interpretation.
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To cinch matters, the lone statutory clue to the

identity of the custodian is found in the same statute. The

person to whom the writ is directed is "required to produce at

the hearing the body of the person detained." Id. The

individual best able to produce the body of the person detained

is that person's immediate custodian, his "jailor" in the

parlance of an earlier time. In re Jackson, 15 Mich. 416, 439

(1867), quoted with approval in Braden, 410 U.S. at 495; accord

Ex parte Endo, 323 U.S. 283, 306 (1944). The immediate

custodian rule effectuates section 2243's plain meaning and

gives a natural, commonsense construction to the statute. As an

added bonus, the rule is clear and easily administered. That is

particularly helpful in the rapidly evolving field of

immigration law, since it affords the courts and the parties a

measure of stability and predictability.

Those who favor treating the Attorney General as the

custodian of alien habeas petitioners (and, thus, as a proper

respondent to such petitions) make three countervailing

arguments: (1) unless the Attorney General is deemed a suitable

custodian (thus permitting litigation of alien habeas petitions

virtually anywhere the petitioner chooses), the backlog of

habeas cases in the Western District of Louisiana will render

the habeas remedy nugatory; (2) the case law favors a practical,
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rather than a formulaic, approach to the identity of the

custodian in alien habeas cases; and (3) the Attorney General

has a unique role in immigration matters that renders her an

appropriate respondent. None of these arguments carries the

day.

The driving force behind the expanding conception of

"custodian" in alien habeas cases seems to be the perception

that the relief provided to petitioners in the Western District

of Louisiana is inadequate because the court there is swamped

with petitions from detainees at FDC-Oakdale. E.g., Nwankwo,

828 F. Supp. at 174 (expressing concern that "a transfer of the

case to the Western District of Louisiana may deny petitioner

any meaningful habeas corpus relief"). This perception is not

pulled out of thin air: the Fifth Circuit (which has

jurisdiction over Louisiana and, hence, over FDC-Oakdale) noted

a few years ago, albeit in a different context, that the

"atypical and unanticipated volume of habeas petitions . . . is

beyond the capability of the district court to process in a

timely fashion." Emejulu v. INS, 989 F.2d 771, 772 (5th Cir.

1993). The question, then, is whether an admittedly overcrowded

docket justifies expanding the dimensions of a standard legal

term ("custodian").
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In answering this question, we are aided by an

historical parallel. Congress faced a similar problem in the

1940s, when the number of prisoner habeas petitions rose

sharply. See United States v. Hayman, 342 U.S. 205, 212 & n.13

(1952). Because there were relatively few federal

penitentiaries and prisoners were required to bring their

petitions where they were incarcerated, several district courts

were inundated with habeas filings. Id. at 213-14 (noting that

certain courts in districts that housed major federal

correctional institutions were "required to handle an inordinate

number of habeas corpus actions far from the scene of the facts,

the homes of the witnesses and the records of the sentencing

court"). Congress responded to this vexing situation by

enacting 28 U.S.C. § 2255, a statute that gave federal prisoners

the option of attacking their convictions collaterally in the

sentencing court.

We find this history instructive. It illustrates that

there are better solutions to burgeoning caseloads than

rewriting the legal lexicon. If Congress apprehends that an

overcrowding of the dockets of certain district courts threatens

to interfere with the rights of habeas petitioners, it has

demonstrated an ability to rectify that condition through
4We recognize that the Second Circuit viewed this sequence

of events as militating in favor of treating the Attorney

General as a proper respondent to an alien habeas petition.

Henderson, 157 F.3d at 124-25. It reasoned that the passage of

corrective legislation (section 2255) somehow indicates

Congress's preference for a broad conception of custody in the

habeas context. Id. We respectfully disagree with this

assessment.

5The Fifth Circuit has determined that IIRIRA effectively

revoked the district courts' jurisdiction to entertain habeas

petitions brought by detained aliens pursuant to 28 U.S.C. §

2241. Max-George v. Reno, 205 F.3d 194, 198 (5th Cir. 2000).

The First Circuit has resolved this question the other way.

Mahadeo, 226 F.3d at 10; Wallace v. Reno, 194 F.3d 279, 285 (1st

Cir. 1999); Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir.

1998).

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legislation.4 In our view, proceeding in this measured fashion

is far superior to attempting to resolve the problem of a habeas

overload in the Western District of Louisiana by rewriting,

judicially, the time-honored definition of the term "custodian."

A legislative solution is preferable in at least three

respects. For one thing, allowing alien habeas petitioners to

name the Attorney General (over whom all district courts

presumably have personal jurisdiction) as a respondent will

encourage rampant forum shopping. The case at hand is a prime

example. The petitioner's decision to seek habeas relief in

Massachusetts likely was motivated by the fact that the law of

the Fifth Circuit is markedly less favorable to alien habeas

petitioners than the law of the First Circuit.5 For another

thing, adopting a broad conception of who qualifies as a
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custodian will make the litigation of habeas claims more

complex, forcing courts in many cases to undertake factintensive analyses of venue and forum non conveniens issues.

Third, and finally, every action has an equal and opposite

reaction. Thus, although permitting the Attorney General to

serve as a habeas respondent may ease the caseload crunch in the

Western District of Louisiana, it may well clog the dockets in

those districts in which disproportionate numbers of aliens

reside.

For these reasons, we conclude that the plenitude of

habeas cases pending in the Western District of Louisiana does

not justify departing from the clear, well-established principle

that the proper respondent to a habeas petition is the immediate

custodian of the petitioner's person. Should the situation

reach crisis proportions — and to date, it has not — we are

confident that Congress can craft a suitable legislative

solution.

The next argument for elasticity, in preference to a

set rule, rests upon the faulty premise that the case law

reflects an historic receptivity to an expanded definition of

custodian in the alien habeas context. This argument derives

principally from three cases. We address the first two

together, then turn to the third. 
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In the first case, the petitioner was among those

persons caught up in the ill-advised internment of Japanese

Americans during the Second World War. The Supreme Court

permitted the District Court for the Northern District of

California to maintain jurisdiction over her habeas petition

even after the government moved her to Utah, reasoning that

there were appropriate respondents (such as the Acting Secretary

of the Interior) still within the jurisdiction of the forum

court. Endo, 323 U.S. at 304-07. Similarly, in the second

case, the district court was allowed to retain jurisdiction over

a properly-filed habeas petition notwithstanding the INS's

subsequent transfer of the alien to another state. United

States ex rel. Circella v. Sahli, 216 F.2d 33, 37 (7th Cir.

1954).

The distinction between these two cases and the case

at bar is transparently clear. In both Endo and Circella, the

petitioners had filed their petitions in the jurisdictions in

which they were being held. In each instance, the appellate

court held that the government could not sidetrack a properlyfiled habeas petition by changing the petitioner's place of

detention after the court's jurisdiction had attached. Endo,

323 U.S. at 307; Circella, 216 F.2d at 37. Such cases are at a

considerable remove from cases like this one, in which the
6To be sure, the Court's opinion contains a sweeping

statement to the effect that "[t]he concepts of 'custody' and

'custodian' are sufficiently broad to allow us to say that the

commanding officer in Indiana, operating through officers in

California . . . is in California for the limited purposes of

habeas corpus jurisdiction." Strait, 406 U.S. at 345-46. This

statement, however, is not intended to be a rule of general

application, but, rather, to explain the fact-specific holding

in the case itself — a case in which the petitioner had never

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petitioner filed for habeas relief in a jurisdiction where

neither he nor his immediate custodian was physically present.

The third case in this trilogy is Strait v. Laird, 406

U.S. 341 (1972). There, an Army Reserve officer sued in a

California federal court seeking a discharge as a conscientious

objector. Id. at 342. California was his place of habitual

residence, the place where he had been commissioned, and the

place where hearings on his conscientious objector application

had been held. Id. at 343. The government argued that the case

belonged in Indiana, where the petitioner's records were kept

under the watchful eye of his nominal commanding officer. The

Supreme Court upheld the jurisdiction of the California court,

noting that all the petitioner's face-to-face contacts with the

military had occurred in California and that he had never been

to Indiana. Id. at 344. The Court brushed aside the fiction of

an Indiana custodian, according decretory significance to the

fact that the petitioner and the officers with whom he had dealt

were all in California.6 That state of affairs does not obtain
been nor ever been "assigned to be" in the state where his

"nominal custodian" was stationed, id. at 344-45.

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here. The petitioner's removal proceedings were conducted in

Louisiana and he is being held in custody there.

To sum up, this trilogy of cases simply does not give

a legitimate judicial imprimatur to a freewheeling definition of

"custodian" such as the petitioner champions. At most, the

three decisions represent idiosyncratic responses to highly

unusual facts. They cannot plausibly be read, singly or in

combination, to consign to the scrap heap the substantial body

of well-reasoned authority holding that a detainee must name his

immediate custodian as the respondent to a habeas petition.

The final argument in favor of the Attorney General as

a proper respondent to an alien habeas petition relates to her

unique role in immigration matters. Congress has designated the

Attorney General as the steward of alien detainees, see 8 U.S.C.

§ 1226(c)(1), and she obviously has the power to produce the

body of any alien held in custody. She is the ultimate

administrative decisionmaker as to matters regarding the INS. 8

U.S.C. § 1103(a)(1). Furthermore, she has considerable

discretion over the detention and removal of aliens. See 8

U.S.C. §§ 1226(e), 1227(a), 1229b(a).
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Despite these important responsibilities, we are not

persuaded by the petitioner's position. 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.

That ends the matter. Having assayed the arguments

advanced for the proposition that the Attorney General is the

proper respondent in alien habeas cases, we find no compelling

reason for supporting such a rule. Moreover, we can discern no

principled basis for adopting a different, more expansive

meaning of the word "custodian" in the immigration context as

opposed to the prisoner context. Accordingly, we hold that an

alien who seeks a writ of habeas corpus contesting the legality

of his detention by the INS normally must name as the respondent

his immediate custodian, that is, the individual having day-today control over the facility in which he is being detained.
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We say "normally" because we 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. Perhaps the best reported example is Demjanjuk

v. Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986), in which the

court concluded that the Attorney General was a proper

respondent when the habeas petitioner, a suspected Nazi war

criminal facing extradition, was being detained in an

undisclosed location. Another example of an extraordinary

circumstance might be a case in which the INS spirited an alien

from one site to another in an attempt to manipulate

jurisdiction. Here, however, the petitioner has neither

marshaled facts suggesting furtiveness nor made a showing of the

elements necessary to demonstrate bad faith. See generally

Costa v. INS, ___ F.3d __, ___ (1st Cir. 2000) [No. 99-2357,

slip op. at 13-14] (discussing those elements).

In all events, we need not sculpt the contours of this

narrow exception here. It suffices to say that the record

contains no hint of anything that might qualify as an

extraordinary circumstance. Certainly, the fact that the

petitioner must bring his habeas case in Louisiana is not

extraordinary. Congress has explicitly provided that

noncriminal aliens must seek review of deportation orders in the
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court of appeals for the judicial circuit in which the

Immigration Court conducted the underlying proceedings. 8

U.S.C. § 1252(b)(2). In light of this provision, it would be

bizarre — and manifestly unfair to noncriminal aliens — to use

an "extraordinary circumstance" exception to allow criminal

aliens routinely to bring habeas petitions in a jurisdiction

unconnected with the forum in which the question of

deportability was initially litigated. In a related vein, we

categorically reject the petitioner's suggestion that the more

favorable legal climate prevailing in the First Circuit

constitutes an extraordinary circumstance. We would be

promoting a peculiarly opportunistic type of forum shopping were

we to rule that it did.

IV. CONCLUSION

We need go no further. Because the petitioner did not

direct his habeas petition "to the person having custody of the

person detained," 28 U.S.C. § 2243, the district court ought not

to have acted on the merits. Hence, we vacate the lower court's

decision and remand for the entry of an order either dismissing

the petition without prejudice for failure to name the proper

respondent or transferring it to the Western District of

Louisiana, as the court sees fit.
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It is so ordered.