                                                                                     PUBLISH


                  IN THE UNITED STATES COURT OF APPEALS
                         FOR THE ELEVENTH CIRCUIT         FILED
                              _______________     U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                         OCTOBER 12, 2000
                                       No. 99-10157
                                                                         THOMAS K. KAHN
                                     _______________                         CLERK

                            D. C. Docket No. 99-00022-CV-4


JOSEPH OGONNA OKONGWU,

                                                    Plaintiff-Appellant,


       versus

JANET RENO, Attorney General, DORIS MEISSNER, as
Commissioner of the Immigration and Naturalization Service, et al.,

                                                    Defendants-Appellees.

                          ______________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                        ______________________________
                                  (October 12, 2000)

Before BIRCH, BARKETT and ALARCON*, Circuit Judges.

BIRCH, Circuit Judge:

___________

*Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
      Petitioner-Appellant Joseph Ogonna Okongwu appeals the dismissal of his

combined petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and

complaint for declaratory and injunctive relief. The district court dismissed

Okongwu's petition and complaint on the grounds that it lacked subject matter

jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility

Act. We REVERSE and REMAND for further proceedings consistent with this

opinion.

                                I. BACKGROUND

      Okongwu, who is a native and citizen of Nigeria, became a permanent

resident of the United States on May 8, 1985. When he was seized for deportation,

Okongwu resided and worked in Tifton, Georgia. Tifton is in the Middle District

of Georgia.

      On August 22, 1994, Okongwu was convicted of conspiracy to distribute

cocaine, obstruction of an officer, and three counts of possession with intent to

distribute cocaine. The crimes of which he was convicted occurred in Atlanta,

Georgia, which is in the Northern District of Georgia. On March 27, 1995, the

Immigration and Naturalization Service (“INS”) in Atlanta, Georgia, issued to

Okongwu an order to show cause and notice of hearing in deportation proceedings

under the Immigration and Nationality Act (“INA”); this order to show cause was


                                          2
based on Okongwu's 1994 conviction. From May 17, 1995, to April 9, 1996,

Okongwu was incarcerated at the Macon State Prison in Oglethorpe, Georgia,

which is in the Middle District of Georgia. On January 11, 1996, Okongwu

appeared before an immigration judge in Atlanta, Georgia, conceded his

deportability, and applied for relief from deportation pursuant to § 212(c) of the

INA, 8 U.S.C. § 1182(c). The application for relief was due to be filed in Atlanta,

Georgia, by Okongwu's counsel on or before March 11, 1996, but, on March 21,

1996, without prior notice to Okongwu, venue was changed to the Immigration

Court in Oakdale, Louisiana, where Okongwu was transferred by the INS.

Oakdale is in the Western Division of Louisiana.

      On May 10, 1996, the immigration judge in Oakdale ruled against Okongwu

on the ground that he was ineligible for relief pursuant to § 212(c) because of the

passage of § 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), and, accordingly, ordered Okongwu deported. On June 21, 1996,

Okongwu filed a motion to reopen and for stay of deportation; in this motion, he

argued that he was eligible for § 212(c) relief and implicitly raised an ineffective

assistance of counsel claim. The immigration judge denied the motion, again on

the ground that AEDPA § 440(d) had rendered Okongwu ineligible for § 212(c)

relief. Okongwu appealed to the Board of Immigration Appeals (“BIA”) in Falls


                                          3
Church, Virginia. The BIA denied Okongwu's appeal, affirming the immigration

judge's reasoning that AEDPA § 440(d) had rendered Okongwu ineligible for §

212(c) relief, and informing Okongwu that he could file a motion to reopen in

order to contest deportability. After Okongwu filed a motion to reopen to contest

deportability, the BIA ordered the proceedings reopened and remanded to the

immigration judge in Oakdale. The immigration judge took testimony indicating

that Okongwu was seeking post-conviction relief from his Georgia conviction, but,

ruled on May 13, 1998, that Okongwu was deportable because his conviction had

not been overturned as of that date. Okongwu appealed to the BIA, which

dismissed his appeal as raising issues beyond the limited scope of the remand to

the immigration judge.

      On February 3, 1999, Okongwu filed a § 2241 habeas corpus petition in the

Southern District of Georgia. The combined petition and complaint for declaratory

and injunctive relief named five respondents/defendants: Janet Reno, in her

official position as Attorney General of the United States; Doris Meissner, in her

official position as Commissioner of the INS; the District Director in Atlanta,

Georgia, for the INS (“Atlanta District Director”); and Lynn Underdowne, in her

official position as the District Director in New Orleans, Louisiana, for the INS;

and the INS. With the petition and complaint, Okongwu also filed a motion for


                                          4
preliminary injunctive relief in order to stay deportation and a memorandum of law

in support of his writ of habeas corpus.1 On February 5, 1999, the district judge

dismissed Okongwu's combined petition and complaint on the ground that IIRIRA

had deprived district courts of subject matter jurisdiction over Okongwu's claims.

Having dismissed Okongwu's petition and complaint on that ground, the district

judge declined to pass on the questions of personal jurisdiction and of venue.

Okongwu filed a motion to stay pending appeal, a notice of appeal, which the

district judge construed as a motion for Certificate of Appealability, a motion to

proceed on appeal in forma pauperis, and a second motion for preliminary

injunctive relief; the district judge denied all four motions. Okongwu filed a timely

appeal and filed the appropriate form regarding payment of his appellate filing fee;

we subsequently granted Okongwu's motions to proceed on appeal in forma

pauperis and for preliminary injunctive relief, construed as a motion for stay of

deportation.

                                    II. DISCUSSION

       In our order granting Okongwu's motion for preliminary injunctive relief, we

requested that the parties address two issues, in addition to any other issues that the


       1
          The memorandum indicates that Okongwu mistakenly believed that Tifton, Georgia, is
in the Southern District of Georgia. See R1-3-2. While, from a geographical perspective, Tifton
is in south Georgia, it is actually in the Middle District of Georgia.

                                               5
parties wished to raise: whether Okongwu's case, by virtue of his motion to reopen,

fell within the transitional or permanent rules of the IIRIRA and whether

Okongwu's case fell within Mayers v. U.S. Dep’t of INS, 175 F.3d 1289 (11th Cir.

1999). Both parties agree that Okongwu's case is governed by the transitional rules

of the IIRIRA and by Mayers. See Appellant's Opening Brief at 9; Brief for

Respondents/Appellees at 7, 11 n.3. This leaves two other issues raised by

Appellees: whether Okongwu's failure to file a direct appeal from the decision of

the BIA deprived the district court of subject matter jurisdiction and whether the

district court lacked personal jurisdiction over Okongwu's custodian. “We review

de novo issues of subject matter jurisdiction.” Innab v. Reno, 204 F.3d 1318, 1320

(11th Cir. 2000).

A.    Subject Matter Jurisdiction

      Respondents argue that the district court had no jurisdiction over Okongwu's

petition for habeas corpus because Okongwu had failed to exhaust all available

remedies. It is undisputed that Okongwu failed to file a direct appeal of the INS’s

dismissal of his request for § 212(c) relief. Accordingly, Appellees assert that

Okongwu’s failure to file a direct appeal vitiated the district court’s subject matter

jurisdiction over Okongwu’s habeas petition.

      At the time that Appellees made this argument, this question was an open


                                           6
one. In Lettman v. Reno (“Lettman I”), we held for the first time that,

notwithstanding the fact that § 309(c)(4)(G) of the IIRIRA’s transitional rules

stated that “[t]here shall be no appeal permitted in the case of an alien who is

inadmissible or deportable by reason of having committed [an aggravated felony],”

110 Stat. at 3626-27, we retained jurisdiction to determine our own jurisdiction,

i.e., to determine on appeal if an alien was “deportable” under § 309(c)(4)(G). 168

F.3d 463, 464-65 (11th Cir.), reh’g granted and opinion vacated in part on other

grounds, 185 F.3d 1216 (11th Cir. 1999),2 opinion replaced in part on other

grounds, 207 F.3d 1368 (11th Cir. 2000). Subsequent to Lettman I, we held that

we had jurisdiction over a habeas petition governed by the transitional rules of the

IIRIRA where the petitioner had filed a direct appeal of a final deportation order of

the BIA but had been “unable to obtain any judicial review . . . in the court of

appeals”. Richardson v. Reno, 180 F.3d 1311, 1316 n.6 (11th Cir. 1999)

(“Richardson II”) (discussing Mayers), cert. denied, 120 S.Ct. 1529 (2000). We

then, without discussing subject matter jurisdiction, ruled on the merits of an

alien’s § 2241 petition without any showing that the petitioner had filed a direct

appeal of the BIA's final deportation order. See generally Alanis-Bustamonte v.



       2
         In vacating Lettman I, we stated that the section of the opinion addressing jurisdiction
under § 309(c)(4)(G) would remain in effect.

                                                7
Reno, 201 F.3d 1303 (11th Cir. 2000). Because, as Appellees note, we are not

bound by a prior decision’s sub silentio treatment of a jurisdictional question, see

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119, 104 S. Ct. 900, 918,

79 L. Ed. 2d 67 (1984), the question of when, if ever, subject matter jurisdiction

over an alien’s § 2241 petition survived the alien’s failure to file a direct appeal of

the BIA’s final deportation order remained unsettled at the time of oral argument.

      Subsequent to oral argument, we decided in Akinwale v. Reno that, for a

narrow class of cases, a district court has subject matter jurisdiction over a § 2241

petition despite the failure of the petitioner to file a direct appeal of the BIA’s final

deportation order. 216 F.3d 1273, 1278-79 (11th Cir. 2000). Reasoning that “prior

to Lettman, this Court was dismissing for lack of subject matter jurisdiction such

petitions for direct review by aliens deportable due to aggravated felonies in

transitional rule cases,” id. at 1278, we held that § 2241 jurisdiction lies where:

      (1) . . . IIRIRA’s transitional rules apply; (2) . . . before filing the §
      2241 petitions, the alien’s administrative proceedings were concluded
      and the alien was subject to a final deportation order; (3) . . . the
      alien’s petition for direct review of the BIA’s decision was dismissed
      by this Court for lack of subject matter jurisdiction in the pre-Lettman
      time period or the alien would likely have faced that same obstacle in
      filing a petition for direct review in this Court during that same time
      period before Lettman; and (4) . . . the alien raised the same statutory
      issue about the retroactive application of AEDPA § 440(d).

Id. at 1278-79. Thus, Akinwale modified the third factor to include a futility


                                            8
element, i.e., that the alien’s direct appeal would likely have been dismissed by this

court in the time period pre-Lettman I.

      In light of that modification, we conclude that subject matter jurisdiction lies

over Okongwu’s § 2241petition. It is undisputed that (1) the IIRIRA’s transition

rules apply; (2) Okongwu exhausted his administrative remedies and was subject to

a final deportation order prior to filing his § 2241 petition; (3) Okongwu’s direct

appeal, if timely filed, would have been filed prior to the issuance of Lettman I on

February 26, 1999, and, thus, would have likely been dismissed by this court; and

(4) Okongwu raised the statutory issue of retroactive application of AEDPA §

440(d).

B.    Personal Jurisdiction and Venue

      Because the district judge dismissed for lack of subject matter jurisdiction,

he did not reach the issues of personal jurisdiction and venue. Accordingly, we

REMAND this case to provide an opportunity for the district judge to address them

first. On remand, the district judge should consider whether a detainee of the INS

has or may have more than one custodian. Compare Henderson v. INS, 157 F.3d

106, 122-28 (2d Cir. 1998) (declining to decide, but discussing whether Attorney

General can be custodian), cert. denied sub nom Reno v. Navas, 526 U.S. 1004,

119 S.Ct. 1141 (1999); and Grodzki v. Reno, 950 F. Supp. 339, 342 (N.D.Ga.


                                          9
1996) (stating that venue was proper because the Attorney General is a custodian),

with Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994) (finding that the facility

warden is the only proper custodian); Brittingham v. United States, 982 F.2d 378,

379-80 (9th Cir. 1992) (holding that state prison warden was proper custodian and

not United States Marshal who transported federal prisoners to the facility); Guerra

v. Meese, 786 F.2d 414, 417 (D.C.Cir. 1986) (holding that federal prisoners’

custodian was warden and not Parole Commission). The district judge should also

consider whether personal jurisdiction over the Oakdale, Louisiana District

Director lies in any district outside Louisiana.

      A full venue analysis should consider what districts would support venue

and analyze all convenience factors. See 28 U.S.C. § 1404(a). See also Moore v.

McKibbon Bros., Inc., 41 F.Supp.2d 1350, 1356 (N.D.Ga. 1998) (noting that §

1404 requires consideration of the parties’ convenience, convenience of witnesses

and the interests of justice). In considering the third factor, the observations of the

Fifth Circuit “that the inundated district and magistrate judges of the Western

District of Louisiana are toiling long and hard to process the torrent of habeas

petitions flowing from the Oakdale facility as a result of lengthy delays in

processing detainees for deportation” but that the “atypical and unanticipated

volume of habeas petitions . . . is beyond the capability of the district court to


                                           10
process in a timely fashion.” Emejulu v. INS, 989 F.2d 771, 772 (5th Cir. 1993).

                                     III. CONCLUSION

       Because we find that subject matter jurisdiction over Okongwu’s § 2241

petition exists, we REVERSE and REMAND for the district court to consider

whether personal jurisdiction and venue lies.3




       3
         Nothing in this opinion should be construed to prohibit transfer to cure lack of
jurisdiction pursuant to 28 U.S.C. § 1631.

                                                11
