Armentero v. I.N.S.

• Decision Date: 26 August 2003
• Docket Number: No. 02-55368.,02-55368.
• Citation: 340 F.3d 1058
• Parties: Luis L. ARMENTERO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

340 F.3d 1058

Luis L. ARMENTERO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 02-55368.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2003 — Pasadena, California.

Submission Vacated February 19, 2003.

Resubmitted August 18, 2003.

Filed August 26, 2003.

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the Petitioner-Appellant.

Greg D. Mack and Earle B. Wilson, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for the Respondent-Appellee.

Marc Van Der Hout, Van Der Hout & Brigagliano, San Francisco, California, and Liliana M. Garces, American Civil Liberties Union Foundation Immigrants' Rights Project, Oakland, California, for the Amici Curiae.

Appeal from the United States District Court for the Central District of California; Terry J. Hatter, Chief District Judge, Presiding. D.C. No. CV-01-08658-TJH.

Before: Thomas J. MESKILL,^* Warren J. FERGUSON, and Marsha S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge.

Luis Armentero, an excludable alien, contends that his potentially indefinite detention by the Immigration and Naturalization Service ("INS") is unlawful under Zadvydas v. INS, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), as interpreted by this court's decision in Xi v. INS, 298 F.3d 832 (9th Cir.2002). The INS is named as sole respondent in Armentero's habeas petition. We do not reach the merits of the habeas petition because we conclude that the INS is not an appropriate respondent in these proceedings. We therefore remand to the district court with instructions that it allow Armentero to amend his petition by joining the appropriate respondent.

BACKGROUND

As we decide only a procedural issue, we summarize the underlying circumstances briefly:

Luis Armentero, a native and citizen of Cuba, arrived at Key West, Florida as part of the Mariel Boatlift.¹ He was paroled into the United States pursuant to INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). During his first five years in the United States, Armentero amassed a record of arrests, convictions, and brief jail stints, mostly for petty offenses. Then, on June 24, 1985, Armentero was convicted of violating § 261.2 of the California Penal Code, Rape by Force, and sentenced to three years in prison. An Immigration Judge found Armentero excludable from the United States and ordered him deported. This order was not appealed and became final in November 1987.

The INS was apparently unable to deport Armentero. In the ensuing years, Armentero was released to a halfway house; detained once again by the INS after a new conviction; paroled again; convicted of yet another crime; and detained once more by the INS.

On October 5, 2001, while detained at the INS processing center in San Pedro, California, Armentero filed a pro se habeas petition in the United States District Court for the Central District of California, claiming that he was being indefinitely detained in violation of the Due Process clause of the Fifth Amendment and that the conditions of his detention amounted to punishment imposed in violation of the Constitution. The INS later transferred Armentero from the San Pedro facility to the federal penitentiary at Terre Haute, Indiana, for continued detention.

The district court denied Armentero's petition without prejudice on January 25, 2002. Armentero then appealed to this court. Neither party raised the issue whether the INS was properly named as respondent to Armentero's habeas petition. We questioned the parties during oral argument regarding the propriety of naming the INS as respondent and ordered supplemental briefing on the issue. See Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir.1999) ("The court issuing the writ must have personal jurisdiction over the custodian. Without such jurisdiction, the court has no authority to direct the actions of the restraining authority." (internal citations omitted)); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996) ("Failure to name the correct respondent destroys personal jurisdiction.").

ANALYSIS

Perhaps surprisingly, neither this court nor the Supreme Court has decided which official or entity is the appropriate respondent in a habeas petition filed by an INS detainee.² We therefore look to Supreme Court case law on habeas jurisdiction generally for principles to guide our determination, as well as to other circuit courts' views on this specific issue. In making our determination, we recognize that circumstances specific to the situation of immigration detainees pose unique practical dilemmas for which our holding must account. Further, our ultimate decision regarding the proper respondent is necessarily shaped by this particular moment in the history of our nation's immigration law, as the immigration detention duties formerly administered by the INS and overseen by the Attorney General have now been transferred in significant part to the Department of Homeland Security (DHS).

A. Habeas Jurisdiction and the Custodian Requirement

1) The Habeas Statute

The relevant statute, 28 U.S.C. § 2241, provides that a writ of habeas corpus shall only be granted if "a prisoner" is in custody under the authority of the United States "in violation of the Constitution or laws or treaties of the United States." Although the statute is commonly used by federal prisoners detained on criminal charges, it has also been employed, both historically and in its current form, by aliens detained for immigration law enforcement purposes. See, e.g., INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), abrogated on other grounds by Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); see also Zadvydas, 533 U.S. at 687, 121 S.Ct. 2491(discussing historical and current use of the federal habeas corpus statute by immigration detainees).

Language specifying the form of an application for a writ of habeas corpus under 28 U.S.C. § 2242 provides that the application "shall allege ... the name of the person who has custody over him." The statute does not specify that the respondent named shall be the petitioner's immediate physical 12075 custodian, but habeas petitions brought by prisoners typically name the warden of the institution at which the prisoner is confined. See Ortiz-Sandoval, 81 F.3d at 894; Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986). Both Supreme Court and Ninth Circuit case law, however, have recognized exceptions to the general practice of naming an immediate physical custodian as respondent, especially with regard to habeas petitions brought by persons detained for reasons other than federal criminal violations. As the statutory language is of little help in determining the precise "person who has custody over" a habeas petitioner, we look to case law for direction.

2) Supreme Court Case Law

The Supreme Court has grappled only obliquely with the determination of which "person" has custody over an immigration detainee and therefore may properly be named as a respondent in a habeas action. On the question of most direct pertinence here, the Court has noted but avoided deciding whether the Attorney General is a proper respondent in an immigration habeas action. We review this interesting but ultimately indeterminate history briefly, for it does shed some indirect light on the issue before us.

In Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944), the Supreme Court addressed the jurisdictional questions posed by a habeas petition brought in the District Court for the Northern District of California by Mitsuye Endo, a Japanese-American woman who was initially interned in Tulelake, California, but was, during the pendency of her habeas case, transferred to an internment camp in Utah.³ Because it was "of the view that the court may act if there is a respondent within reach of its process who has custody of the petitioner," id. at 306, 65 S.Ct. 208, and because there were potential respondents — the Secretary of the Interior or national-level officials of the War Relocation Authority — still within the District Court's territorial reach, id. at 304-05, 65 S.Ct. 208, the Court held that Endo's transfer did not destroy the California district court's jurisdiction. Thus, rather than formalistically examining who Endo's immediate physical custodian was, Endo stated that a habeas petition can be properly directed against national-level officials who have power to "produce[]" the petitioner. Id. at 305, 65 S.Ct. 208.

Four years later, in Ahrens v. Clark, the Supreme Court examined jurisdictional issues raised by habeas petitions brought by German immigrants detained on Ellis Island under removal orders issued by the Attorney General. The petitions named the Attorney General as sole respondent. The Ahrens Court determined that the detainees' habeas petitions had to be dismissed because the detainees had not filed the petitions in the district court for the district in which they were confined.⁴ 335 U.S. at 193, 68 S.Ct. 1443. In so holding, Ahrens explicitly declined to consider whether the Attorney General, under whose removal orders and "custody and control" the aliens were detained, was the proper respondent to the immigrants' petitions. Id. at 189, 193, 68 S.Ct. 1443.

There ensued in the 1970s a trilogy of Supreme Court cases involving non-traditional habeas petitioners and respondents and concerning jurisdictional and venue questions. These cases focused largely on venue and territorial issues and so failed to enunciate any clear guidelines regarding the identity of proper respondents to such habeas petitions. These cases do offer, however, some general guidance for determining appropriate respondents...