Kholyavskiy v. Achim

• Decision Date: 17 April 2006
• Docket Number: No. 05-2893.,05-2893.
• Citation: 443 F.3d 946
• Parties: Arkadiy L. KHOLYAVSKIY, Petitioner-Appellant, v. Deborah ACHIM, Alberto R. Gonzales, and Michael Chertoff, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

443 F.3d 946

Arkadiy L. KHOLYAVSKIY, Petitioner-Appellant, v. Deborah ACHIM, Alberto R. Gonzales, and Michael Chertoff, Respondents-Appellees.

No. 05-2893.

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2006.

Decided April 17, 2006.

Maria T. Baldini-Potermin (argued), Pollock & Associates, Chicago, IL, for Petitioner-Appellant.

Sheila M. McNulty (argued), Office of United States Attorney, Chicago, IL, Alberto R. Gonzales, Dept. of Justice, Office of Attorney General, Washington, DC, for Respondents-Appellees.

Before CUDAHY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Arkadiy Kholyavskiy, a Jewish refugee from Russia, has been incarcerated at the Kenosha County Detention Center in Kenosha, Wisconsin, since he was ordered removed for committing two or more crimes of moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Contending that this detention is unconstitutional and seeking his immediate release from custody, he brought this action for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. See 28 U.S.C. § 2241. Mr. Kholyavskiy's habeas petition named as respondents the director of the Chicago field office for the United States Immigration and Customs Enforcement ("ICE"), the Secretary of the Department of Homeland Security and the Attorney General. In a motion to dismiss for lack of jurisdiction, these respondents claimed that they did not have "custody" over Mr. Kholyavskiy within the meaning of the habeas statute. The district court granted the motion, holding that the proper respondent to Mr. Kholyavskiy's habeas petition is the warden of the Kenosha Detention Center, the facility in which he is detained. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

Mr. Kholyavskiy entered the United States as a refugee from Russia in 1992, a time when Jews in the recently dissolved Soviet Union continued to encounter widespread anti-Semitism. See Sosnovskaia v. Gonzales, 421 F.3d 589, 590-91 (7th Cir. 2005). In 1995, at the age of 18, he became a lawful permanent resident of the United States. Beginning in 1996, however, Mr. Kholyavskiy's behavior turned erratic and criminal, resulting in convictions for vandalism, harassment, trespassing, battery and larceny. He was taken into custody by the INS in 2001 and eventually ordered removed by the Board of Immigration Appeals ("BIA") because he had committed two or more crimes of moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Mr. Kholyavskiy initially was released on bond while the BIA considered his motion to reopen the proceedings on the ground that his counsel rendered ineffective assistance. Just a few days later, however, Mr. Kholyavskiy was arrested in Highland Park, Illinois, for disorderly conduct and placed in custody by officials of the Chicago office of ICE (the successor agency to the INS).¹ After initial processing at an ICE facility in Broadview, Illinois, Mr. Kholyavskiy was transferred to the Kenosha County Detention Center in Kenosha, Wisconsin ("Kenosha"), one of several state jails used by ICE to house aliens awaiting deportation.

Mr. Kholyavskiy's motion to reopen eventually was granted by the BIA, but he remained detained in Kenosha while his case for asylum was reopened and then ultimately denied by an immigration judge and the BIA. In April 2005, he brought this action in the Northern District of Illinois for a writ of habeas corpus, naming as respondents Deborah Achim, director of the Chicago ICE field office, Secretary of the Department of Homeland Security Michael Chertoff and Attorney General Alberto Gonzales. The district court dismissed his petition for want of jurisdiction because Mr. Kholyavskiy had failed to name as respondent the person exercising custody over him at the Kenosha jail. The district court ruled that Mr. Kholyavskiy was required to name as a respondent his "immediate custodian," the person exercising "day-to-day control over the prisoner." R.18 at 2 (internal quotation marks omitted). That person, continued the district court, was the Kenosha warden, not Ms. Achim, Mr. Chertoff or Mr. Gonzales.

Soon after the district court's dismissal of his petition, Mr. Kholyavskiy filed another habeas petition in the United States District Court for the Eastern District of Wisconsin. This petition named as respondent the warden of the Kenosha facility. He nevertheless asks that we review the ruling of the district court in his initial action.

II DISCUSSION

A.

We must decide the correct application of the immediate custodian rule to petitions for habeas corpus brought by aliens awaiting deportation. As we noted earlier, the district court took the view that Mr. Kholyavskiy was required to name the warden of the Kenosha facility, the person who had direct control over his day-to-day activities. Because this ruling presents a question of law, our review is de novo. See Samirah v. O'Connell, 335 F.3d 545, 548 (7th Cir.2003).

Congress has provided that an application for a writ of habeas corpus shall allege, among other matters, "the name of the person who has actual custody over [the petitioner]." 28 U.S.C. § 2242 ¶ 2. Similarly, the writ, once granted by a district court, "shall be directed to the person having custody of the person detained." Id. § 2243; Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 673 (7th Cir. 2003) ("[A] petition for a writ of habeas corpus must be directed to the individual or individuals who holds the petitioner in allegedly unlawful custody."). Naming the proper custodian fits with the logic of collateral relief 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 v. 30th Jud. Cir. Ct. of Kentucky, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).²

1.

A century-old line of Supreme Court precedent has defined a habeas petitioner's custodian as the 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.'" Id. (quoting Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885) (emphasis added)). We have given further elaboration to this definition by describing the immediate custodian as the individual having "day-to-day control" over the facility in which a prisoner is housed. Robledo-Gonzales, 342 F.3d at 673. Typically, for an inmate of a jail or prison, his immediate custodian is the warden. See id.; see also al-Marri v. Rumsfeld, 360 F.3d 707, 708 (7th Cir.2004) ("In the federal system, this means the warden (or Commander) rather than the Director of the Bureau of Prisons . . . .").

The immediate custodian rule is "a practical one based on common sense administration of justice." Sanders v. Bennett, 148 F.2d 19, 20 (D.C.Cir.1945). Although the Attorney General is, in the end, responsible for the operation of federal penitentiaries and for the location of a prisoner's confinement, he is a single supervisory official with an office in Washington, D.C. An interpretation of "custody" that were to include the Attorney General within its sweep would make the District Court for the District of Columbia the default forum for the habeas petitions of every federal prisoner in the United States. To ensure a more even distribution among the federal districts, Congress has required that a habeas petition name the person in direct charge of the local penal institution. See al-Marri, 360 F.3d at 710.

2.

Mr. Kholyavskiy submits that the immediate custodian rule should be different when the habeas petitioner is not serving a criminal sentence but is instead an alien undergoing removal proceedings. Rather than identifying the Kenosha warden in his petition, Mr. Kholyavskiy named Deborah Achim, director of the ICE field office in Chicago because he claims that she has "the authority to transport, transfer and ultimately release him from custody." Appellant's Br. at 14. There is little doubt that the Northern District of Illinois would have had jurisdiction over Ms. Achim if she were indeed the proper respondent. The only question, then, is whether she properly was identified as Mr. Kholyavskiy's custodian.

The circuits have divided on the question of whether a detained alien challenging his impending removal must name the warden of his detention facility in a petition for habeas corpus, or whether the alien may name an immigration official instead. Some courts have allowed an alien to name the INS district director who oversees the confinement of aliens within that INS district. See, e.g., Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003); Henderson v. INS, 157 F.3d 106, 126 (2d Cir.1998). These courts reason that the wardens of state and local facilities used by the INS "act pursuant to INS Detention Standards and are considered agents of the INS District Director in their district." Roman, 340 F.3d at 320. As these courts see it, whatever day-to-day control the wardens have over an alien detainee, they exercise that control only at the direction of the INS. See id.

The Third and First Circuits have taken a different view. In Yang You Yi v. Maugans, the Third Circuit held that, despite the power of the INS district directors, "[i]t 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." 24 F.3d 500, 507 (3d Cir. 1994). The court explained:

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.

Id. (citations...