Seretse-Khama v. Ashcroft

• Citation: 215 F.Supp.2d 37
• Decision Date: 22 July 2002
• Docket Number: No. Civ.A. 020955JDB.,Civ.A. 020955JDB.
• Parties: Donald SERETSE-KHAMA, Petitioner, v. John D. ASHCROFT, Attorney General; James Ziglar, INS Commissioner; David Venturella, Director, Headquarters Post-Order Detention Unit; and Warren A. Lewis, INS District Director, Respondents.
• Court: U.S. District Court — District of Columbia

215 F.Supp.2d 37

Donald SERETSE-KHAMA, Petitioner, v. John D. ASHCROFT, Attorney General; James Ziglar, INS Commissioner; David Venturella, Director, Headquarters Post-Order Detention Unit; and Warren A. Lewis, INS District Director, Respondents.

No. Civ.A. 020955JDB.

United States District Court, District of Columbia.

July 22, 2002.

Paul Virtue, E. Desmond Hogan, Lynne Baum Hogan & Hartson, L.L.P., Washington, DC, for Petitioner.

Wyneva Johnson, United States Attorney's Office, Judiciary Center, Washington, DC, for Respondents.

MEMORANDUM OPINION

BATES, District Judge.

Before the Court is petitioner Donald Seretse-Khama's motion for a preliminary injunction seeking his release from the custody of the Immigration and Naturalization Service ("INS") pending either resolution of his petition for a writ of habeas corpus or his removal to Liberia. Petitioner is a detained alien subject to removal from the United States. This case raises a serious issue relating to the application of the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), in light of the fact that petitioner has been detained pending removal since August 3, 1998. In consideration of the parties' briefs and oral argument, the INS records regarding petitioner, and the entire record, the Court grants petitioner's motion and orders his release pending either his removal to Liberia or an adverse decision on his habeas corpus petition.

I. Procedural Posture and Jurisdiction

To begin with, however, a threshold issue must be addressed. The government has taken this Court and petitioner on a very troubling procedural ride, changing its position on a critical issue at the eleventh hour. The issue is whether respondents have waived the right to assert a lack of personal jurisdiction over respondent Warren Lewis, the District Director of the INS for the Washington, D.C. region, including Virginia.

On May 16, 2002, petitioner filed this habeas petition and his motion for a preliminary injunction. The Court promptly scheduled a hearing on the preliminary injunction for June 24, 2002, and set a briefing schedule, to which petitioner agreed when respondents pledged not to transfer petitioner prior to July 15. Respondents filed a response to the habeas petition on June 12, 2002, titled "Respondents' Opposition to Petitioner's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" (hereinafter "Opposition"), in which they contended that petitioner's detention was lawful and that his removal was imminent. Petitioner then filed a reply (styled a "traverse") on June 17, 2002.¹ Then on June 20, 2002 — eight days after filing their opposition to the habeas petition — respondents filed a "Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 or in the alternative to Transfer" (hereinafter "Motion to Dismiss"). In this second filing, respondents argued for the first time that this Court did not have personal jurisdiction over Edward L. Crosley, the superintendent of the Central Virginia Regional Jail in Orange, Virginia, where petitioner is detained.² Respondents moved to dismiss the petition under Rule 12(b)(2) for lack of personal jurisdiction over Crosley, claiming that although he has not been sued, he is the only proper respondent because he is the true custodian of petitioner.

Subsequently, at the June 24th hearing, respondents reversed their position again, this time asserting that Crosley is not the proper respondent and custodian after all, but rather that Warren Lewis, the INS District Director, is. Respondents contend that the Court lacks personal jurisdiction over Lewis because his office is in Arlington, Virginia, and his actions with respect to petitioner all occurred in the Western District of Virginia. Petitioner opposed the motion to dismiss as untimely and waived under Fed.R.Civ.P. 12(h)(1), but respondents countered that they could amend their initial opposition to the habeas petition pursuant to Fed.R.Civ.P. 15(a) to reflect this latest defense of lack of personal jurisdiction. The parties filed supplemental briefs on the issue at the Court's direction.

The Court finds that respondents waived the right to challenge personal jurisdiction over respondent Lewis in this case.³ Rule 12(h)(1) states in relevant part that "[a] defense of lack of jurisdiction over the person ... is waived (A) if omitted from a motion in the circumstances described in subdivision (g)." In turn, Rule 12(g) states in relevant part that "[i]f a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted."⁴ Reading Rules 12(h)(1) and 12(g) in tandem, the defense of lack of personal jurisdiction over respondent Lewis is waived. On June 20, 2002, respondents filed a motion to dismiss asserting that there was no personal jurisdiction over Crosley. But respondents did not raise, and thus "omitted," the defense that the Court did not have personal jurisdiction over respondent Lewis. Rule 12(g) unequivocally states that respondents cannot make a second motion — whether written or oral — to raise the omitted defense of lack of personal jurisdiction over Lewis.⁵ See, e.g., Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir.1993); O'Brien v. R.J. O'Brien & Assoc., Inc., 998 F.2d 1394, 1398-1400 (7th Cir.1993); Lederman v. United States, 131 F.Supp.2d 46, 58 (D.D.C.2001), remanded on other grounds, 291 F.3d 36 (D.C.Cir.2002); Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd., 985 F.Supp. 640, 642-643 (E.D.Va.1997).

The Court therefore concludes that respondents waived the defense of lack of personal jurisdiction over respondent Lewis.⁶ The Federal Rules of Civil Procedure, which respondents concede govern the issue,⁷ do not countenance the maneuvering in which respondents have engaged.⁸ Hence, the Court will proceed to the merits of petitioner's claim notwithstanding that, if not waived by respondents, there may be a genuine question whether this action against respondent Lewis, as custodian of petitioner, should proceed in this Court.

II. Factual Background

Petitioner was born in the Republic of Liberia on November 20, 1972, came to the United States with his family when he was eight years old, and has lived here continuously since then. Resp.Ex. 1. His mother is Liberian and his father is from Sierra Leone. Pet.Ex. A, Declaration of Seretse-Khama at ¶ 3. On August 21, 1990, he became a permanent lawful resident of the United States. On October 21, 1993, the Circuit Court of Alexandria, Virginia, convicted him of possession with intent to distribute cocaine, and sentenced him to eight years in prison on January 27, 1994. Id. at ¶ 8; see also Resp.Ex. 2. Before his incarceration, petitioner resided in northern Virginia and his sister, stepmother and stepbrothers currently live in northern Virginia. Id. at ¶¶ 9, 16.

Given his conviction of an aggravated felony, the INS initiated removal proceedings to deport petitioner pursuant to Section 237(a)(2)(A)(iii) and Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA" or "the Act"). Resp. Ex. 3. After an early release from his criminal sentence, the Virginia Department of Corrections transferred petitioner to the custody of the INS on August 3, 1998, where he was held without bond. One month later, on September 3, 1998, an Immigration Judge ordered petitioner deported to Liberia. Resp.Ex. 8. He did not appeal that order, which thus became administratively final on October 5, 1998. Id. Meanwhile, on September 30, 1998, the INS requested that the Liberian Embassy issue travel documents. Resp.Ex. 9. As a result, Abdulah K. Dunbar, the First Secretary and Consul of the Republic of Liberia Embassy, conducted a short interview of petitioner on October 10, 1998, concerning his knowledge and ties to Liberia. Resp.Ex. 10. Petitioner truthfully answered Dunbar's questions, and correctly stated the capital of Liberia and the president's name. Seretse-Khama Dec. ¶ 12. However, petitioner was unable to name the hospital or county where he was born, as he has not had any contact with his mother since he left Liberia at the age of eight. Id. at 12, ¶ 5. He also stated that he did not have any family in Liberia. Id.⁹

More than three months after his interview, the Liberian Consulate still had not issued travel documents. On January 26, 1999, INS Deportation Officer Ashly Ocasio requested assistance from INS headquarters in obtaining the travel documents, but this request went unanswered. Resp.Ex. 10. On May 11, 1999, as mandated by its regulations, the INS conducted the first (of eventually five) Post-Order Custody Review of petitioner. Resp.Ex. 11. As a result, Officer Ocasio recommended petitioner's release from INS custody, stating that petitioner would not pose a threat to the community if released from INS custody and citing his "simple" charge of possession of cocaine with intent to distribute. Id. at p. 5. The Supervisory Detention Officer did not concur with Officer Ocasio's parole release recommendation, and petitioner remained in the custody of INS. Id. at p. 6.

Custody reviews were also conducted on July 30, 1999, November 15, 2000, June 25, 2001, and June 1, 2002. In the report of the July 30, 1999, custody review, under "Can a Travel Document be Obtained," Officer Ocasio checked the box "No." Resp.Ex. 12, at p. 1. She stated:

I have spoken with the detainee on numerous occasions. I have concluded that he literally has no family in Liberia. The Liberia Embassy does not want to send back. Unfortunately, without the endorsement of the Liberia Embassy, getting a document is impossible....

Id. at 4. Again, Officer Ocasio recommended release, and this time the Supervisory Detention and Deportation Officer concurred...