Opinion
00-CV-3622 (JG)
August 4, 2000
VAN CANH NGUYEN, A#23 758 569, Reg # 06003-007, Federal Detention Center Oakdale, LA, Petitioner Pro Se.
LORETTA LYNCH, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Patrick Shen, Special Assistant United States Attorney, Attorney for Respondents.
MEMORANDUM AND ORDER
Petitioner Van Canh Nguyen has filed a petition for a writ of habeas corpus challenging his removal from the United States for having committed an aggravated felony. For the reasons discussed below, I find that venue over this petition in improper in this Court and therefore transfer it to the Western District of Louisiana.
BACKGROUND
Petitioner Van Canh Nguyen is a native and citizen of Vietnam. (Declaration of Patrick Shen, ¶ 3.) On September 23, 1981, he became a permanent resident of the United States. (Id.) At the time, he lived in Westminster, California. (Id.)
On September 29, 1989, Nguyen was indicted in district court in Tarrant County, Texas for attempted murder. (Id., Exh. 2.) The indictment identified Nguyen's place of residence as Santa Anna, California. (Id.) Nguyen was convicted of the offense on January 22, 1993, and was sentenced to ten years imprisonment and ten years of probation. (Id., ¶ 5.) The prison term was suspended, however, and the term of probation began on January 22, 1993. (Id. Exh.3.)
On October 25, 1995, Nguyen's probation was revoked by the Tarrant County district court because of his failure to report to his probation officer. (Id., ¶ 6.) He was sentenced to four years of imprisonment. (Id., Exh. 4.)
On October 31, 1996, the Immigration and Naturalization Service (INS) issued an order to show cause alleging that Nguyen was deportable due to his having committed an aggravated felony. (Id., ¶ 5.) At that time, Nguyen was imprisoned in Huntsville, Texas. (Id., Exh. 6.) Nguyen had a hearing before an immigration judge on November 13, 1996, in Houston. (Id., ¶ 6.) The judge ordered him deported to Vietnam. Nguyen did not appeal the decision to the Board of Immigration Appeals. (Id.)
Nguyen is currently housed in an INS detention facility in Oakdale, Louisiana. (Id., ¶ 7.) His petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 was received by this Court on June 19, 2000. Presently before the Court is a motion by the respondents to either dismiss the case for improper venue or transfer it to the Western District of Louisiana.
DISCUSSION
The Supreme Court has said that "traditional venue considerations" apply to habeas petitions brought pursuant to 28 U.S.C. § 2241. Braden v. 30th Judicial Circuit Court of Ken., 410 U.S. 484, 493 (1973). Those considerations include "(1) `where all of the material events took place'; (2) where `the records and witnesses pertinent to petitioner's claim are likely to be found'; and (3) the convenience of the forum for both the respondent and the petitioner." Henderson v. INS, 157 F.3d 106, 128 n. 25 (2d Cir. 1998) (quoting Braden, 410 U.S. at 493-94).
In this case, none of those factors point to proper venue in this district. Nguyen is from California; he committed a crime and was imprisoned in Texas; and he is under detention in Louisiana. Cf. Santos-Gonzalez v. Reno, 93 F. Supp.2d 286, 292 (E.D.N.Y. 2000) (finding venue proper in this district because, inter alia, petitioner had resided in Queens until his detention, had family living in the district, and had been ordered to report to an INS facility in East Elmhurst). In his papers in opposition to the respondents' motion, Nguyen does not claim any connection to this district. Instead, he urges consideration of his petition here because he views case law in this Court as more favorable to his position than that in the Fifth Circuit. A petitioner's desire for a favorable forum is not a factor that can be considered in assessing venue.
Nguyen also contends that this Court considered the merits of habeas petitioner Bajrush Gjeta's claim in the consolidated opinion ofPena-Rosario v. Reno, 83 F. Supp.2d 349 (E.D.N.Y. 2000), notwithstanding Nguyen's view that Gjeta had no connections to this district. However, the respondents in Pena-Rosario made no venue motion as to Gjeta. The Court was therefore not called on to decide whether venue was proper in that case. See 28 U.S.C. § 1406 (b) ("Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.").
For these reasons, I conclude that venue is improper in this district. I direct the Clerk to transfer this action to the United States District Court for the Western District of Louisiana. See 28 U.S.C. § 1406 (a); Local Civil Rule 83.1.
So Ordered.