Roman v. Ashcroft, No. 1:01CV1236.

• Decision Date: 06 September 2001
• Docket Number: No. 1:01CV1236.
• Citation: 162 F.Supp.2d 755
• Parties: Julio E. ROMAN, Petitioner, v. John ASHCROFT, et al.,<SMALL><SUP>1</SUP></SMALL> Respondents.
• Court: U.S. District Court — Northern District of Ohio

162 F.Supp.2d 755

Julio E. ROMAN, Petitioner, v. John ASHCROFT, et al.,¹ Respondents.

No. 1:01CV1236.

United States District Court, N.D. Ohio, Eastern Division.

September 6, 2001.

COPYRIGHT MATERIAL OMITTED

Julio E. Roman, Oakdale, LA, David W. Leopold, Law Office of David Wolfe Leopold, Cleveland, OH, for Julio E. Roman.

Kathleen Lucille Midian, Office of the United States Attorney, Northern District of Ohio, Cleveland, OH, for John Ashcroft, U.S. Department of Justice Kevin Rooney, Immigration & Naturalization Service, Robert L. Brown, Ohio District Director of INS, Christine G. Davis, New Orleans District Director — INS.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

This is a petition for a writ of habeas corpus. The respondents ("the government") have moved to dismiss for want of personal jurisdiction and for improper venue (docket no. 14).² For the following reasons, the motion to dismiss for want of personal jurisdiction is granted in part and denied in part, and the motion to dismiss for improper venue is denied.

BACKGROUND

The petitioner, Julio Roman, is a national of the Dominican Republic. His status was adjusted to that of a lawful permanent resident on October 29, 1996. On September 30, 1999, he was convicted in this Court (per Dowd, J.) of violating 18 U.S.C. § 1546(a), relating to the making or use of counterfeit visas, and 42 U.S.C. § 408(a)(7)(C), relating to misuse of a social security number, pursuant to his guilty pleas. He was sentenced, inter alia, to a fifteen-month term of imprisonment. On January 19, 2000, the office of the Immigration and Naturalization Service in Cleveland issued a notice to appear to Roman while he was serving his sentence. The notice charged that Roman was subject to removal from the United States on account of his criminal convictions. The Service filed an additional charge of deportability on June 21, 2000, which supplemented the allegations in the original notice to appear.

A hearing was held beginning on July 6, 2000, in Oakdale, Louisiana, before an immigration judge. Through his counsel, Roman admitted the allegations in the notice to appear and the supplemental allegations. The immigration judge found that Roman was subject to removal and that he was not eligible for cancellation of removal. The judge therefore ordered Roman removed to the Dominican Republic. On April 20, 2001, the Board of Immigration Appeals affirmed the immigration judge's decision per curiam. On July 11, 2001, the Board denied Roman's timely motion to reopen.

Roman filed the instant petition on May 21, 2001. He named four respondents: the Attorney General, the Commissioner, and the District Directors of the Cleveland District and the New Orleans District of the I.N.S. His claims on the merits are (1) that I.N.A. § 212(h) violates the equal protection principles implicit in the Due Process Clause; and (2) that he was deprived of procedural due process at his removal hearing because the immigration judge did not permit him to testify as to facts that, he argues, would have established that he made or used counterfeit immigration documents only to benefit his immediate family, and thus would have established that his crime was not an aggravated felony under I.N.A. § 101(a)(43)(P).

DISCUSSION

A. PERSONAL JURISDICTION OVER THE NEW ORLEANS DISTRICT DIRECTOR

In habeas corpus proceedings, a court has jurisdiction of the petition if it has personal jurisdiction over the petitioner's custodian. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). In this case, it is not disputed that the New Orleans District Director is Roman's custodian. Therefore, the Court must consider whether it has personal jurisdiction over her.

The answer to the question turns on whether she could have been subjected to the jurisdiction of the Ohio courts. Fed. R.Civ.P. 4(k)(1)(A). Because she is a nonresident, her amenability to the jurisdiction of the Ohio courts depends on the application of the Ohio long-arm statute, Ohio Rev.Code § 2307.382.

In pertinent part, the statute provides:

A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:

(1) Transacting any business in this state ...

Id. § 2307.382(A). Roman argues that the District Director has transacted business in Ohio such that the Ohio courts could have exercised jurisdiction over her. The government argues that she has not.

There will certainly be habeas cases in which the respondent has transacted business within the state such that she is amenable to service of process. For example, in Mojica v. Reno, 970 F.Supp. 130 (E.D.N.Y.1997) (per Weinstein, J.), the New Orleans District Director allowed Mojica to return to New York from Louisiana after he posted a bond but continued to claim the power to seek his surrender. The District Director subsequently ordered Mojica to return to Louisiana. The Court found that he had transacted business in New York. Id. at 166. In Roman's case, on the other hand, there is no evidence that the New Orleans District Director issued any orders directed to Roman while Roman was in Ohio. Indeed, the notice to appear was issued by the Cleveland office of the I.N.S. (Ex. 6 to Resps' Mem. in Opp'n), and it was directed to Roman in Kentucky, where he was serving his criminal sentence. There is no evidence that the New Orleans District Director took any action with effects in Ohio, or that her agents took any action with effects in Ohio, that was relevant to Roman's case. This case must be distinguished from Mojica. Thus Roman has failed to make the requisite prima facie showing of jurisdiction, and the Court finds that it lacks personal jurisdiction over the New Orleans District Director. Accordingly, the motion to dismiss for want of jurisdiction must be granted in part.

B. THE STATUS OF THE OTHER RESPONDENTS AS CUSTODIANS

Roman argues, in the alternative, that the other respondents are also his custodians, and that the Court has jurisdiction over them. Both parties focus on the Attorney General rather than on the Commissioner or the Cleveland District Director in their briefs, and the Court therefore confines its discussion to the question whether the Attorney General may be named as respondent in a petition filed by a detainee in Roman's position.

As the parties note, there is a split of authority concerning this question. On the one hand, several district courts in the Eastern District of New York have held that the Attorney General is a custodian, at least under certain circumstances. See Pena-Rosario v. Reno, 83 F.Supp.2d 349, 362 (E.D.N.Y.2000); Pottinger v. Reno, 51 F.Supp.2d 349, 357 (E.D.N.Y.1999), aff'd 242 F.3d 367, 2000 WL 1864477 (2d Cir. 2000); Mojica, supra at 166; Nwankwo v. Reno, 828 F.Supp. 171, 175 (E.D.N.Y. 1993). On the other hand, the First Circuit recently rejected this line of cases. Vasquez v. Reno, 233 F.3d 688 (1st Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3749 (U.S. Mar. 8, 2001) (No. 00-1719); accord Santiago v. Immigration & Naturalization Serv., 134 F.Supp.2d 1102, 1104 (N.D.Cal.2001). It does not appear that the issue has arisen in this circuit. For the following reasons, this Court finds that in the circumstances of the instant petition, the Attorney General is an appropriate respondent.

1. Background

In order to appreciate the policies that underlie the usual rule requiring petitioners to name their immediate custodians as respondents, it will be helpful to consider the history of the habeas corpus statute. For present purposes, it is not necessary to trace that history as far back as the First Judiciary Act. It is enough to begin with the statute as it existed in the mid-nineteenth century. In 1867, the statute corresponding to our 28 U.S.C. § 2243 provided as follows:

[T]he said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitution or laws of the United States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ and bring the party before the judge who granted the writ ...

Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385-86. As codified in the Revised Statutes, the provision read:

The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained.

Any person to whom such writ is directed shall make due return thereof ...

* * * * * *

The person making the return shall at the same time bring the body of the party before the judge who granted the writ.

R.S. §§ 755-756, 758.

A reading of these statutes demonstrates a common mistake in our usual way of using the term "habeas corpus." We often think of habeas corpus as the remedy the prisoner seeks, i.e., that if the prisoner is entitled to relief, the court will issue a writ of habeas corpus, which will end his imprisonment. But as the older statutes show, the writ of habeas corpus merely initiates the proceedings. It is analogous in this respect to the writ of certiorari, another prerogative writ still in use. When the Supreme Court grants a writ of certiorari, it is bringing the case before it for decision rather than deciding it on the merits. The same is true in the case of habeas corpus. See George F. Longsdorf, Habeas Corpus: A Protean Writ & Remedy, 8 F.R.D. 179, 187 (1949).

On the face of the nineteenth-century statutes quoted above, it seems that the respondent would have the burden of bringing the prisoner into court in every case in which the prisoner had made out a prima facie case for relief in his petition. Perhaps...