Opinion
02 CV 3847 (JG).
March 3, 2005
DAIN KING, pro se, Oakdale, LA. ROSLYNN R. MAUSKOPF, United States Attorney, Brooklyn, New York, By: SCOTT DUNN, Assistant United States Attorney Attorney for Defendants.
MEMORANDUM AND ORDER
Petitioner Dain King brings this "supplemental" petition for a writ of habeas corpus challenging his continued detention in the Immigration and Customs Enforcement facility in Oakdale, Louisiana. The government argues that (1) this court lacks jurisdiction over King's custodian, the Warden of the Oakdale facility; (2) venue is improper; and (3) the petitioner is lawfully detained. Because I agree with the government's threshold argument that this court lacks jurisdiction, I do not reach the merits of King's petition.
BACKGROUND
The factual background is culled from the Declaration of Assistant United States Attorney Scott Dunn, dated February 17, 2005, and prior documents filed in this case and an earlier case, King v. Ashcroft, 01-cv-3963.
King, a 33-year-old citizen of Trinidad and Tobago, entered the United States as a lawful permanent resident in 1972, when he was two years old. King is currently married to a United States citizen; their four children are also United States citizens. On September 24, 1990, King was convicted of carrying a concealed weapon in Dade County, Florida. On September 17, 1991, King was arrested in Dade County for possession of marijuana, to which he pleaded guilty. On April 17, 1992, King was arrested in Rochester, New York for criminal possession of a weapon in the fourth degree, and possession of marijuana in the fifth degree; he pleaded guilty to unlawful possession of marijuana and disorderly conduct. On April 17, 1995, King was arrested in Rochester for unlawful possession of marijuana and resisting arrest; he pleaded guilty to disorderly conduct. On July 27, 1995, King was arrested and charged with possession with intent to distribute cocaine and with conspiracy. He pleaded guilty to the charges in the Western District of New York and was sentenced to a 63-month term of imprisonment. After serving four years and five months of his sentence, King was transferred into INS custody in Oakdale, Louisiana.
On September 7, 2000, King was charged with being removable from the United States as an alien convicted of a drug-related offense. On January 10, 2001, King was found ineligible for a waiver of deportation pursuant to Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996), and was ordered deported. On May 3, 2001, his appeal to the Board of Immigration Appeals (BIA) was dismissed. King petitioned for a writ of habeas corpus in this court, challenging the removal order. In a judgment entered on July 25, 2001, I found that King was eligible for 212(c) relief and vacated the removal order.
See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (holding that section 212(c) relief is available in removal proceedings to aliens who pleaded guilty prior to the enactment of AEDPA on April 24, 1996).
On December 18, 2001, King was found ineligible for section 212(c) relief due to his 1990 firearms conviction. The BIA dismissed King's appeal, and a final removal order was issued. King again petitioned for habeas relief challenging the removal order. On September 9, 2002, I granted the writ and vacated the order of removal because the weapons charge was neither in the Notice to Appear that initiated the removal proceeding nor was it a deportable offense at the time the crime was committed.
On March 14, 2003, King was served with Form I-261 (adding additional charges of deportability), which charged King with being removable based on the 1990 firearms conviction. On June 25, 2003, King was found removable based on that conviction.
On July 8, 2003, an I-130 Visa Petition for an Alien Relative was filed on King's behalf by his wife, who is a United States citizen. On September 9, 2003, the Immigration Judge held that King would be permitted to file for " Gabryelsky relief," under which King might be eligible for an adjustment of status if the I-130 petition is granted. Since then, the case has been continued several times, most recently on December 10, 2004, when the case was rescheduled to March 11, 2005 on a joint motion by the parties.
See, e.g., Drax v. Reno, 338 F.3d 98, 111-114 (2003) (explaining that Gabryelski relief allows a petitioner to file simultaneously for § 212(c) relief and § 245(a) adjustment of status. A prerequisite to filing for an adjustment of status for an alien such as King is the grant of an I-130 petition for an alien relative.).
On January 10, 2005, King filed the instant action, a "supplemental" petition for a writ of habeas corpus, in this court.
On February 14, 2005, Assistant United States Attorney Scott Dunn was informed by the Supervisory Adjudications Officer, Citizenship and Immigration Services, New Orleans District Office, that her office was waiting for one document in order to adjudicate the Form I-130 visa petition. That same day, King's attorney indicated that she would forward the required document to the New Orleans District Office.
DISCUSSION
King is being detained under section 236(c) of the INA, 8 U.S.C. § 1226(c), under which an alien who has been convicted of an enumerated crime may be detained during removal proceedings. See Demore v. Kim, 538 U.S. 510, 513 (2003). King, attributing the delay in his removal proceedings to the government, argues that under Demore, his continued detention without an individualized bond hearing is unconstitutional. Pet'r's Br. at 4-5; see Demore, 538 U.S. at 532 (Kennedy, J., concurring) ("a lawful permanent resident alien . . . could be entitled [under 1226(c)] to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified."). Before reaching the merits of King's habeas petition, however, I must first decide whether I have jurisdiction over it. For the following reasons, I find that I do not.King is challenging his present physical confinement, as opposed to a final order of deportation. As the Supreme Court explained in Rumsfeld v. Padilla, 124 S. Ct. 2711, 2722 (2004), jurisdiction for such core habeas petitions "lies only in one district: the district of confinement." See id. at 2717, 2722 (explaining that the plain language of the habeas statute, which limits district courts to granting relief "within their respective jurisdictions," requires that the court issuing the writ have jurisdiction over the person who has custody over the petitioner. (quoting 28 U.S.C. § 2241(a))). Accordingly, a § 2241 habeas petitioner seeking to challenge his present physical custody within the United States must name his warden as respondent and file the petition in the district of confinement. Id. at 2724; see also Deng v. Garcia, 2005 WL 94643 (E.D.N.Y. Jan. 15, 2005) (rejecting habeas petition attacking the validity of petitioner's confinement during pendency of his challenge of a deportation order: " Padilla thus narrowly circumscribes the jurisdictional inquiry that may be conducted by a court presented with a core petition, thereby precluding district courts from taking into account any of the considerations of equity . . . raised by [petitioner] in deciding whether it may exercise jurisdiction over a petition."); cf. Shehnaz v. Ashcroft, 2004 WL 2378371, at *4 (S.D.N.Y. Oct. 25, 2004) (explaining that the Attorney General is the proper respondent where the petition is a "non-core petition, that is, where it challenges the underlying immigration decision, as opposed to the physical custody of the petitioner.").
Here, King's habeas petition is a core petition, challenging his present physical custody. He seeks "an order directed at the respondent [Attorney General Ashcroft] to conduct an individualized bond hearing to determine whether King is a danger to society or a risk of flight or immediately release him from custody within ten days." Pet'r's Br. at 6 ([sic], capitalizations omitted). The Attorney General is not the appropriate respondent for such a petition. The only proper respondent is the warden of the Oakdale facility, and the Western District of Louisiana, the district of King's confinement, is the district where the petition must be filed. See Padilla, 124 S. Ct. at 2724.
This analysis is not altered by the fact that I have previously exercised jurisdiction over King's earlier, pre- Padilla, non-core habeas petitions. While the jurisdictional rules governing non-core habeas petitions are not clearly defined, see Deng, 2005 WL 94643, Padilla makes clear that the exercise of jurisdiction over this petition would be improper.
When a civil action is filed in a district court that lacks jurisdiction, that court "shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631. I find that such an interest is present here, and thus King's petition shall be transferred to the Western District of Louisiana for further proceedings.
CONCLUSION
The government's request to dismiss the petition is denied. The government's alternative request to transfer the petition to the Western District of Louisiana is granted. The Clerk of that Court is respectfully requested to substitute the Warden of the Oakdale Facility as respondent in place of the Attorney General. The Clerk of this Court shall close the case.
So Ordered.