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NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

MOHAMMED H. ALI, 

 Petitioner, 

 v. 

SECRETARY, DEPARTMENT OF HOMELAND 

SECURITY, et al., 

 Respondents. 

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Hon. Faith S. Hochberg, U.S.D.J. 

Civil Case No. 11-2072 

OPINION & ORDER 

Date: January 4, 2012 

HOCHBERG, District Judge: 

Pro se1 Petitioner Mohammed H. Ali, is an alien detainee in the custody of Immigration 

and Customs Enforcement (“ICE”) currently detained at the Hudson County Jail in Kearny, NJ. 

Petitioner has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22412 (the 

“Petition”). Petitioner claims that ICE arbitrarily and capriciously denied him parole pending 

removal and that his detention violates his constitutional due process rights. Petitioner names as 

 

1

 Petitioner’s initial petition for a writ of habeas corpus, which was filed on April 12, 2011 and 

signed by counsel not admitted to practice before this Court, was stricken on September 9, 2011. 

Petitioner re-filed the Petition pro se on September 27, 2011, but stated that the Petition and 

supporting brief were “prepared with the assistance of” the same attorney who had signed the 

stricken Petition. Despite Petitioner’s indication that he was assisted by counsel, the Court will 

treat the Petition as filed pro se. 

2 Section 2241 provides in relevant part: 

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice 

thereof, the district courts and any circuit judge within their respective 

jurisdictions. 

(b) The writ of habeas corpus shall not extend to a prisoner unless— . . . (3) He is 

in custody in violation of the Constitution or laws or treaties of the United 

States . . . . 

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Respondents the Secretary of the Department of Homeland Security (“DHS”) and the District 

Directors of ICE in both Newark, NJ and New York, NY. The Court has considered all written 

submissions on the papers. 

 Among other things, 28 U.S.C. § 2242 requires the petition for a writ of habeas corpus to 

allege “the name of the person who has custody over [the petitioner].” See also 28 U.S.C. § 

2243 (“The writ, or order to show cause shall be directed to the person having custody of the 

person detained.”). “[T]hese provisions contemplate a proceeding against some 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, that he may be liberated if no sufficient reason is shown to the 

contrary.” Wales v. Whitney, 114 U.S. 564, 574 (1885) (emphasis added). 

In accord with the statutory language and Wales' immediate custodian rule, 

longstanding practice confirms that in 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. 

Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (citations omitted).3

In the context of alien detainees, the Court of Appeals for the Third Circuit has held, 

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. 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 prisoner in custody because 

ultimately she controls the district directors and the prisons. 

 

3

 In Padilla, the Supreme Court also noted (1) the open question whether the Attorney General is 

a proper respondent to a habeas petition filed by an alien detained pending deportation and (2) 

the implicit exception to the immediate custodian rule in the military context where an American 

citizen is detained outside the territorial jurisdiction of any district court. 542 U.S. at 435-36, n. 

8, 9. 

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Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994) (citations omitted). See also Kholyavskiy v. 

Achim, 443 F.3d 946 (7th Cir. 2006) (citing Yi, and reaching same result, after Padilla ). 

Thus, under the circumstances of this case, the warden of the facility where the Petitioner 

is held is an indispensable party respondent, for want of whose presence the petition must be 

dismissed. Cf. Padilla, 542 U.S. at 441 (“when the Government moves a habeas petitioner after 

she properly files a petition naming her immediate custodian, the District Court retains 

jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal 

authority to effectuate the prisoner's release”); Chavez-Rivas v. Olsen, 194 F. Supp. 2d 368 

(D.N.J. 2002) (where an INS detainee properly files a habeas petition in the district where he is 

confined, and the INS subsequently transfers the petitioner to a facility outside that district, the 

United States Attorney General may be deemed a “custodian” to allow the original district court 

to retain jurisdiction). 

Pursuant to 28 U.S.C. § 2241, United States district courts have power to issue writs of 

habeas corpus “within their respective jurisdictions.” See also Zadvydas v. Davis, 533 U.S. 678, 

688 (2001) (“§ 2241 habeas corpus proceedings remain available as a forum for statutory and 

constitutional challenges to post-removal-period detention”). Thus, the court issuing the writ 

must be able to exercise personal jurisdiction over the custodian of the petitioner. See Braden v. 

30th Judicial Circuit Court, 410 U.S. 484, 494-95, 500 (1973). 

The proviso that district courts may issue the writ only “within their respective 

jurisdictions” forms an important corollary to the immediate custodian rule in 

challenges to present physical custody under § 2241. Together they compose a 

simple rule that has been consistently applied in the lower courts, including in the 

context of military detentions: Whenever 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. 

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Padilla, 542 U.S. at 446-47 (citations and footnote omitted).4

A federal district court can dismiss a habeas corpus petition if it appears from the face of 

the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 

(1996); Siers v. Ryan, 773 F.2d 34, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See 

also 28 U.S.C. § 2243. 

Petitioner failed to name as a respondent an indispensable party: the warden of the 

facility in which he is confined. Therefore, the Petition will be dismissed. 

CONCLUSION & ORDER 

IT IS on this 4th day of January, 2012, 

ORDERED that Petitioner may file an amended petition naming the warden of the 

facility in which he is confined as a respondent by February 6, 2012; 

AND IT IS FURTHER ORDERED that if Petitioner does not file an amended petition 

by February 6, 2012, the Court will enter an Order dismissing the Petition without prejudice for 

failure to name an indispensable party. 

 /s/ Faith S. Hochberg 

 Hon. Faith S. Hochberg 

 United States District Judge 

 

4

 As a corollary to the exception to the immediate custodian rule for military personnel confined 

overseas, the Supreme Court has similarly relaxed the district-of-confinement rule when 

American citizens confined overseas (and thus outside the territory of any district court) have 

sought relief in habeas corpus. Padilla, 542 U.S. at 447, n. 16 (citing Braden, 410 U.S. at 498). 

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