                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-1994

Yi, et al v. Maugans, et al
Precedential or Non-Precedential:

Docket 94-7060




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       UNITED STATES COURT OF APPEALS

           FOR THE THIRD CIRCUIT
                ____________

               NO. 94-7060
                ____________

YANG YOU YI, YEE BONG WON, LI GUANG FENG,
CHEN CHU SU, PIN LIN, YONG ZHONG PAN a/k/a
PU WING CHUN, SO GEE DONG, CHANG CHUN LU,
XIN-FEI ZHANG a/k/a XIN-FUEI ZARANG, TONG
WAI ZHANG, DAI MIN LU, SHI CHUN ZHENG,
CHUN HUA LIN, CHEN ZING, SHUIDI ZHENG,
GUO ZHEN XIE, A-72-761-974, LI YUN-YOU,
LIN MING LONG,

                     v.

GEORGE MAUGANS, District Counsel of the
United States Immigration and Naturalization
Service, Baltimore District; DAVID L.
MILHOLLEN, Director of the Executive Office
for Immigration Review and Chairman of the
Board of Immigration Appeals; RICHARD J.
SHARKEY, District Counsel of the United
States Immigration and Naturalization
Service, Philadelphia District; J. SCOTT
BLACKMAN, District Director of the United
States Immigration and Naturalization
Service, Philadelphia District; UNITED STATES
IMMIGRATION AND NATURALIZATION SERVICE; and
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW;
JANET RENO, Attorney General of the United
     States; DORIS MEISSNER, Commission of
the United States Immigration and
Naturalization Service
                 ____________

     YONG ZHONG PAN a/k/a Pu Wing Chun,

                                        Appellant

                     v.

GEORGE MAUGANS, District Counsel of the
United States Immigration and Naturalization
Service, Baltimore District; RICHARD J.
SHARKEY, District Counsel of the United
States Immigration and Naturalization


                     1
         Service, Philadelphia District; DAVID L.
         MILHOLLEN, Director of the Executive Office
         for Immigration Review and Chairman of the
         Board of Immigration Appeals;
                          ____________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
              D.C. No. 93-cv-01702 and 93-cv-01766
                          ____________

                      Argued March 24, 1994
     Before:   HUTCHINSON, ROTH, and ROSENN, Circuit Judges
                     Opinion Filed: May 5, 1994
                           ____________

DAVID H. WEINSTEIN, ESQUIRE (Argued)
ROBERT S. KITCHENOFF, ESQUIRE
Kohn, Nast & Graf, P.C.
1101 Market Street, Suite 2400
Philadelphia, PA 19107

FRANCES P. RAYER, ESQUIRE
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103

LORY D. ROSENBERG, ESQUIRE
American Immigration Law Foundation
Legal Action Center
1400 Eye Street, NW
Washington, D.C. 20005

SHARON J. PHILLIPS, ESQUIRE
513 East 86th Street, # 3C
New York, New York 10028

   Attorneys for Appellant

FRANK W. HUNGER, ASSISTANT ATTORNEY GENERAL
DAVID M. BARASCH, UNITED STATES ATTORNEY
MICHAEL JAY SINGER, ATTORNEY
THOMAS M. BONDY, ATTORNEY (Argued)
Appellate Staff
Civil Division, Room 3343
Department of Justice
Washington, DC   20530

   Attorneys for Appellees


                               2
    ____________

OPINION OF THE COURT




         3
ROSENN, Circuit Judge.


             In February 1993, the Golden Venture, a ship bearing
human cargo of approximately 300 Chinese nationals, left the

waters of Thailand bound for the distant shores of the United

States.   The petitioner Yong Zhong Pan (Pan), one of its

passengers, together with hundreds of other Chinese nationals,

had made a dangerous journey from the People's Republic of China

(PRC) across the mountains and borders of Burma into Thailand.

There, they embarked aboard the Golden Venture, which attempted
unlawfully to smuggle them into the United States.       After more

than one hundred days at sea, the ship, within sight of its final

destination, ran aground off the New York harbor.       Its passengers

were thrown or jumped into the sea, but most of them managed to

survive and safely reach shore.       The Immigration and

Naturalization Service (INS) took these aliens into custody,

detained them, and commenced exclusion proceedings against them.

             Approximately one hundred twenty of the Golden Venture

passengers, including Pan, were transferred to the York County

Prison on June 7, 1993.     The York County Prison is located in the

Middle District of Pennsylvania where many of the detainees,

including Pan, filed claims for asylum which were rejected. After

exhausting their administrative remedies, they individually filed

habeas corpus actions in the United States District Court for the

Middle District of Pennsylvania challenging the final orders of

exclusion.     Because the petitioners raised many similar issues

and filed many similar motions for relief, the district court



                                  4
consolidated the individual actions under the above-entitled

caption.

           On November 17, 1993, Pan filed an amended petition and

a separate complaint seeking nationwide class certification and

interim class relief.   Pending a determination of the court's

jurisdiction, it initially granted conditional class

certification limited to those aliens in the Middle District who

had exhausted their administrative remedies.    Contemporaneously,

the court issued a temporary restraining order barring the

Government from deporting any class members before December 1993,

which date it later extended.   The court subsequently declined on

jurisdictional grounds to certify the requested nationwide class;

it decertified the conditionally certified class and accordingly

lifted the temporary restraining order as moot.    Pan timely

appealed to this court.   We affirm.

                                I.

           In his application for asylum, Pan claimed that he was

persecuted and has a well-founded fear of future persecution by

the Chinese government, if denied asylum, because of his

opposition to its birth control policies.    Specifically, Pan

averred that after the birth of their first child, he and his

wife fled to avoid sterilization.    While in hiding, Mrs. Pan bore

a second son.   At the hospital where the child was born, she was

forced to undergo sterilization.     The Pans were also ordered to

pay heavy fines.   Because the Pans were unable to pay the full

amount, officials came to their home, confiscated some furniture

and demolished parts of the house.     Fearing arrest, exorbitant


                                5
fines, and harsh physical punishment, Pan decided to leave his

homeland and family to come to the United States.

          On August 9, 1993, an Immigration Judge (IJ) heard and

rejected Pan's asylum claim.   Pan appealed to the Board of

Immigration Appeals (BIA) which found that Pan's testimony lacked

plausibility, accuracy, and truthfulness in light of the evidence

of record regarding general conditions in China.    The Board

therefore held that Pan failed to meet his burden of establishing

his eligibility for asylum.    Furthermore, the Board reaffirmed

its adherence to Matter of Chang, Int. Dec. No. 3107 (BIA 1989).

In Matter of Chang, the BIA determined that the People's Republic

of China's one couple, one child policy was not, on its face,

persecutive within the meaning of the relevant asylum statutes

and regulations.

          In his amended petition/complaint seeking certification

of a nationwide class of Chinese aliens, Pan broadly defined the

class to include:
          All persons who, as nationals of the PRC, are
          or in the future may be applicants for
          withholding of deportation from and/or for
          asylum in the United States, in whole or in
          part because they have a clear probability
          (for withholding of deportation) or well
          founded fear (for asylum) of persecution on
          account of coerced population control
          policies of the PRC.

The class complaint essentially challenged the BIA's reliance and

application of its decision in Chang.   In addition, Pan sought a

preliminary injunction forbidding the INS from deporting any

member of the nationwide class.




                                  6
           In rejecting a nationwide class certification, the

court reasoned that the nationwide scope of the requested class

was inconsistent with the statutory limitations for judicial

review.   Specifically, the court noted that 8 U.S.C. § 1105a(b)

requires that judicial review of an exclusion order may be

obtained only "by habeas corpus proceedings and not otherwise"

and that 8 U.S.C. § 1105a(c) mandates that for an order of

exclusion to be reviewed by a court, aliens must exhaust all

administrative remedies available to them.   Thus, because the

proposed nationwide class would include those aliens who are not

within the court's habeas jurisdiction and who have not satisfied

the exhaustion requirement, the court concluded that its

jurisdiction would not extend to them.   On the appeal before us

now, the issues raised are whether the district court erred in

denying Pan's motion for nationwide class certification and

injunctive relief.

                            II.

           We have jurisdiction to hear this appeal from the

district court's denial of Pan's motion for a preliminary

injunction pursuant to 28 U.S.C. § 1292(a)(1).   Because the

district court's ruling denying class certification is

inextricably bound up in our review of the denial of the

injunction, we have jurisdiction to address that determination

too.   Cohen v. Board of Trustees, 867 F.2d 1455, 1468 (3d Cir.

1989) (in banc).

           On appeal, Pan disputes the district court's

determination that it lacked jurisdiction to certify a nationwide

                                  7
class of Chinese aliens.    He invokes 8 U.S.C. § 1329 (immigration

matters), 28 U.S.C. § 1331 (federal question jurisdiction), and 5

U.S.C. § 701-06 et seq (Administrative Procedure Act) as

authority on which the district court could have based subject

matter jurisdiction.    Our review of the district court's

determination regarding subject matter jurisdiction is plenary.

See Sinclair v. Soniform, Inc., 935 F.2d 599, 601 (3d Cir 1991).

            We begin, as the district court did, with a review of

the specific jurisdictional limitations applicable to alien

exclusion proceedings.     Chief Judge Rambo of the district court

noted that, although Congress has provided judicial review of

agency determinations of excludability in the context of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.,

it also imposed specific limitations on the timing and scope of

such a review.    First, an alien subject to a final order of

exclusion may seek review of the determination only in a habeas

corpus proceeding.     8 U.S.C. § 1105a(b) ("[A]ny alien against

whom a final order of exclusion has been made . . . may obtain

judicial review of such order by habeas corpus proceeding and not

otherwise.").    A district court's habeas corpus jurisdiction is

territorially limited and extends only to persons detained and

custodial officials acting within the boundaries of that

district.    28 U.S.C. § 2241(a) ("Writs of habeas corpus may be

granted by . . . the district courts . . . within their
respective jurisdictions.") (emphasis supplied); see also Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 493-95 (1973)




                                  8
(holding that habeas jurisdiction proper where court issuing writ

has jurisdiction over custodian).

           Second, courts are empowered to review orders of

exclusion only for those individuals who have exhausted their

administrative remedies.   8 U.S.C. § 1105a(c) ("An order of

deportation or of exclusion shall not be reviewed by any court if

the alien has not exhausted the administrative remedies available

to him as of right under the immigration laws or regulations. . .

.").   Thus, aliens who have received an adverse decision from an

immigration judge must first exercise their right to take an

administrative appeal to the BIA.   Only after the BIA affirms the

IJ's decision would an alien be entitled to judicial review.    See

Alleyne v. United States Immigration & Naturalization Service,

879 F.2d 1177 (3d Cir. 1989) (§ 1105a(c) precludes judicial

review when there is no appeal to the Board).

           Read together, these two statutory provisions would bar

the district court from certifying appellant's class insofar as

the proposed class would include Chinese aliens, or their

custodians, not within the Middle District of Pennsylvania and

Chinese aliens who have not yet received a final BIA decision.

Accordingly, the district court concluded correctly that since

the proposed class included individuals over whom it had no

jurisdiction, the class could not be certified.   See Califano v.
Yamasaki, 442 U.S. 682, 701 (1979) (explaining that class may

only be certified where court has jurisdiction over the claim of

each individual member of the class).



                                9
          Notwithstanding these provisions limiting jurisdiction,

Pan contends that the general jurisdictional provision of 8

U.S.C. § 1329 is applicable to this action.   The language of

§1329 is broad.   The statute states that "[t]he district courts

of the United States shall have jurisdiction of all causes, civil

and criminal, arising under any of the provisions of the [INA]."

It is substantially similar to 28 U.S.C. § 1331 which confers

jurisdiction on district courts over "all civil actions arising

under the Constitution, laws, or treaties of the United States."

Pan's argument, although superficially appealing, does not

withstand scrutiny.

          Pan cannot simply ignore statutory provisions that are

averse to his position.1   The statute must be construed so as to

give effect to each provision.   See United States v. Alcan

1
Congress did not haphazardly restrict an alien in exclusion
proceedings to the writ of habeas corpus for judicial review.
Congress was disturbed with the growing frequency of judicial
actions initiated by aliens where cases had no legal basis or
merit, but which were brought solely to prevent or delay
indefinitely their deportation. It carefully concluded that
habeas corpus not only gave the alien the privilege of testing
the legality of the proceedings, but also an opportunity for a
fair hearing. "Such a restriction to habeas corpus does not
deprive the alien of any constitutional rights. It is well
settled that aliens seeking admission to the United States cannot
demand that their applications for entry be determined in a
particular manner or by use of a particular type of proceedings."
H.R. Rep. No. 1086, 87th Cong., 1st Sess., reprinted in 1961
U.S.C.C.A.N. 2950, 2976.

The Committee on the Judiciary attached "special significance . .
. that habeas corpus actions are necessarily determined in the
locality where the alien is, where he has been excluded, and
where he 'knocking at the door.' This prevents a process of
'shopping around' by an applicant for admission for a court in
which he may seek to file repetitive declaratory judgment
actions." Id. at 2977.


                                 10
Aluminum Corp., 964 F.2d 252, 265 (3d Cir. 1992).      To hold

otherwise would render the jurisdiction and exhaustion provisions

of §§ 1105a(b) and (c) superfluous.   Id.     Interpreting the

statute in a manner that harmonizes all its provisions, we hold

that, in enacting §§ 1105a(b) and (c), Congress permitted

judicial challenges of orders of exclusion solely by way of

habeas proceedings and only to those aliens who have exhausted

their administrative remedies.

          Pan, citing to a number of a cases, persists in

arguing, however, that where, as here, his claims not only

challenge excludability but also raise a challenge to the

Government's programmatic application of Chang as an arbitrary

barrier to asylum claims grounded in the "one child" policy,

jurisdiction should not be limited to a habeas proceeding, but

rather should be deemed proper under § 1331.     The cases Pan

relies upon for support are inapposite.

          In McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479

(1991), the Supreme Court upheld district court jurisdiction

under § 1331 in the face of another provision of the INA similar

to § 1105a(b).   The provision in question barred judicial review

of an administrative decision denying legal status to special

agricultural workers (SAW), except when reviewing an order of

exclusion or deportation.   Id. at 486.     The court found that the

provision did not preclude it from exercising jurisdiction over a

class action complaint alleging various procedural abuses, which

effectively precluded an alien from making an adequate record for



                                 11
appeal.   Id. at 487-89.   The Court's holding was influenced by a

number of factors.

          First, the Court stated that the provision limiting

review except in the context of an order of deportation or

exclusion was narrowly drawn.   It referred to "a determination"

which connotes a single act.    Because the plaintiffs were

challenging a practice or procedure rather than a denial based on

the factual merits of an individual application, the statutory

provision limiting review was not applicable to them.    The Court

reasoned that, had Congress intended the review provisions to

apply to INS procedures and practices, it could have easily

drafted broader exclusionary language.

          Moreover, the Court held that because the relief that

the aliens were seeking was procedural and collateral to the

merits of the denial of legal status for SAW, the aliens were not

required to exhaust their administrative remedies.    Furthermore,

the Court was reluctant to limit judicial review because to do

so, would, as a practical procedural matter, have amounted to a

complete denial of meaningful judicial review.    This was the case

because, under the INA, review was limited to the administrative

record which the aliens alleged was incomplete and inadequate.

These factors, however, are not applicable here.

          To begin with, the provision limiting review to habeas

corpus is broad enough to encompass aliens with appellant Pan's

status.   Section 1105a(b) clearly states that "any alien against

whom a final order of exclusion has been made . . .   may obtain

judicial review of such order by habeas corpus and not

                                 12
otherwise." (emphasis added).   Thus, because Pan is subject to an

order of exclusion, he should not be able to circumvent the

explicit language of the statute and the intent of Congress.

          Moreover, Pan's claim that the BIA is impermissibly

applying Chang is neither procedural nor collateral.     It is, at

bottom, a substantive challenge to the legal standard employed by

the Government in adjudicating asylum claims.    To describe this

challenge as procedural because appellant is not challenging his

order of exclusion but rather the legal standard upon which his

order was based, is not persuasive.   If appellant's

characterization is correct, the review provisions of an order of

exclusion or deportation could simply be elided by characterizing

the challenge as a collateral attack on the legal standard rather

than a direct assault on the order.   This result is indefensible.

          Our reasoning is bolstered by the Supreme Court's

construction of "final orders of deportation."   In INS v. Chadha,

462 U.S. 919 (1983), the Court held that the term includes "all

matters on which the validity of the final order is contingent."

Id. at 938.   This point applies with equal force in the context

of orders of exclusion.   Here, the BIA's decision in Chang is,
according to Pan, the predicate for the order of exclusion being

entered against him.   In reality, Pan, therefore, challenges the

final order and squarely falls within § 1105a(b).

          Finally, a denial of the class certification would not

foreclose all forms of meaningful judicial review.     Regardless of

whether a class is certified, the district court would have the

authority and opportunity to review the validity of Chang to

                                13
determine whether the INA extends asylum to aliens who flee their

country to avoid persecution on account of their opposition to

their country's policy of coercive population control.   In fact,

in an individual habeas corpus action commenced by another alien

who arrived on the Golden Venture, the United States District

Court for the Eastern District of Virginia, in concluding that

the alien was eligible for asylum, held that Chang is not

controlling and that the BIA's interpretation of the Act merits

no judicial deference.   Guo Chun Di v. Carroll, 842 F. Supp. 858

(E.D. Va. 1994).   This decision fortifies our position that

restricting review to a habeas corpus proceeding does not deny

appellant effective review of his claim.   Thus, the case sub

judice is distinguishable in significant respects from McNary.

          Although we realize that Chinese aliens who do not file

habeas petitions will be unable to obtain judicial review of

their claims -- and it is for this reason that Pan seeks a

nationwide class of all Chinese aliens, including those who have

not filed habeas petitions -- we are, nevertheless, restrained

from acting.   By limiting review to those aliens who have filed

habeas petitions, Congress intended to foreclose all other

avenues of relief and it obviously realized that some aliens may

not have their day in court.   Although Pan suggests that this is

a harsh result, the scheme enacted by Congress strikes a careful

balance, ensuring judicial review for those aliens who seek it,

while sheltering the judicial system from being overpowered with

frivolous claims of asylum.



                                14
          As further support for his position that declaratory

relief is appropriate, Pan cites Brownell v. We Shung, 352 U.S.

180 (1956), where the Supreme court recognized the existence of

jurisdiction in the district courts to entertain either habeas

corpus actions or actions for declaratory and injunctive relief,

in the context of exclusion proceedings.    Shung's precedential

value, however, is suspect inasmuch as it was decided before the

enactment of § 1105a(b).   Although at least one case decided

after the enactment of § 1105a(b) has cited Shung with approval,

Pizarro v. District Director Of U.S. Immigration and

Naturalization Service, 415 F.2d 481 n.1 (9th Cir. 1969), we

believe that Congress intended to supersede Shung.     See Garcia v.

Smith, 674 F.2d 838 (11th Cir. 1982), modified on other grounds,

680 F.2d 1327 (11th Cir. 1982); Jean v. Nelson, 711 F.2d 1455,

1503 (11th Cir. 1983), on reh'g, en banc, 727 F.2d 957 (11th Cir.

1984), and aff'd,   472 U.S. 846 (1985); see also H.R. Rep. No.

1086, 87th Cong., 1st Sess., reprinted in 1961 U.S.C.C.A.N. 2950,

2974 (§ 1105a restores law to the position it occupied prior to

the Supreme Court's decision in Shung).

          In any event, Shung is inapposite.    The relevant

statute in Shung required aliens who hold "certificates of

identity" to test the validity of their exclusion by habeas

corpus only.   Shung, 352 U.S. at 183.    The alien in question did

not possess the certificate and therefore did not fall within the

purview of the statute.    Id.   Not wanting to conclude that Shung

would be deprived of judicial review, the Court determined that

he could proceed via a declaratory action.    Id.   In the case sub


                                  15
judice, however, Pan falls squarely within the statute requiring

him to file a habeas petition.   Moreover, by filing a habeas

petition, Pan will obtain judicial review.   Thus, the holding in

Shung does not implicate our present situation.   Rather, it

addresses the same concerns identified by the Court in McNary,

and can be distinguished in the same manner.

          Nor would any of the other cases cited by Pan provide

the court with authority to ignore the explicit requirements of

§1105a in favor of a general grant of authority under § 1331.

Courts invoking § 1331 jurisdiction have done so only when the

challenged administrative practice, policy or regulation

precluded adequate development of the administrative record and

consequently meaningful review through the procedures set forth

in § 1105a, and/or when the challenged practice was collateral

and divorced from the substantive aspects underlying the alien's

claim of asylum.   In this sense, the holdings are similar to

McNary, and thus would be inapplicable in circumstances, as those

present here, where judicial review is adequate and where the

challenge relates to the merits of the final order.     See, e.g.,

El Rescate Legal Servs., Inc. v. Executive Office of Immigration
Review, 959 F.2d 742, 746-47 (9th Cir. 1992) (§ 1331 jurisdiction

proper in class challenge alleging systematic inadequate

translation of immigration proceedings by INS); Montes v.

Thornburgh, 919 F.2d 531, 535 (9th Cir. 1990) (§ 1331

jurisdiction proper in class challenge to action of individual

Immigration Judge who refused to accept certain documents); Jean
v. Nelson, 727 F.2d 957, 979-80 (11th Cir. 1984) (en banc) (§


                                 16
1331 jurisdiction proper in class challenge to INS failure to

give notice of right to apply for asylum), aff'd, 472 U.S. 846

(1985) (expressing no view on jurisdictional issues); Haitian

Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. 1982) (§

1331 jurisdiction proper in class challenge to expedited

administrative procedure employed by the INS), disapproved on

other grounds, Jean, 727 F.2d at 976 n.27.

          It is noteworthy that Smith, the case expansively cited

as authority by other courts and whose holding that § 1331

jurisdiction is proper in spite of the limitations contained in

§1105a, emphasized the narrowness of its holding and refused to

condone "any such end-run around the administrative process."

Smith, 676 F.2d at 1033.    Heeding Smith's admonition, we deny

jurisdiction where, as here, the challenge by the aliens is

neither procedural nor collateral to the merits and where

application of the specific statutory provisions would not

preclude meaningful judicial review.2

            Nor would the APA, which provides for judicial review

of "[a]gency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court," 5

U.S.C. § 704, supply the district court with jurisdiction to

certify a class claim.     Pan does not deny that habeas review of

the BIA's decision would be sufficient; rather he claims that

aliens are entitled to due administrative, i.e., BIA,


2
 We find it significant, as did the district court, that no
court ever approved the exercise of § 1331 jurisdiction over the
claims of an alien subject to a final order of exclusion.


                                 17
consideration in the first instance.    The cited provision,

however, provides no authority to allow courts to fashion

alternatives to the scheme specified by Congress when the review

procedure is adequate.    Whitney National Bank v. Bank of New

Orleans and Trust Co., 379 U.S. 411, 420 (1965).   Thus, the

district court did not err in denying class certification of

Pan's proposed class and requiring members of the proposed class

to follow the procedures set forth in § 1105a.

            Pan's assertion that a class action would promote

judicial economy consistent with Congress' goal of eliminating

piecemeal proceedings does not convince us otherwise.    Even

assuming, arguendo, that there are tangible efficiency gains in

this case, in the long run, extending a district court's

jurisdiction may well prove harmful to Congress' aim.   Granting

an additional layer of judicial review will, in the end,

frustrate the policy of curtailing repetitious and unjustified

appeals.    If Congress is convinced that the procedures can be

improved upon, then it and only it should provide for an

alternative framework.    Our duty, however, is to apply faithfully

the procedural requirements put in place by the legislature.

            Although there is some authority that would allow

class-wide habeas relief, Nguyen Da Yen v. Kissinger, 528 F.2d

1194, 1202 (9th Cir. 1975), the district court declined to

certify a habeas class.    The court, seeing no advantage to a

class-wide habeas action subject to exhaustion and jurisdictional

limits, instead consolidated all similar claims within its

district.   We do not believe the court in the instant case abused

                                 18
its discretion in refusing to certify this class, even though the

court, for some reason, had decided provisionally to certify a

habeas class.

           Pan contends, however, that contrary to the district

court's assertion it did not have to limit its habeas territorial

jurisdiction to aliens held in the Middle District of

Pennsylvania.   He reasons that because a writ of habeas acts upon

the custodian of the detainee, the writ should issue to the

district director of the INS, over whom the court did have

personal jurisdiction, and thus detainees under the constructive

custody of the district director, even those not within the

court's district, should be subject to the court's habeas

jurisdiction.   This argument has no merit.

          It 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.   See Ex Parte Endo, 323 U.S. 283,

306 (1944) (writ is directed to prisoner's "jailer").   This is

because it is the warden that has day-to-day control over the

prisoner and who can produce the actual body.   See Brittingham v.
United States, 982 F.2d 378 (9th Cir. 1992); Guerra v. Meese, 786

F.2d 414 (D.C. Cir. 1986) (Parole Commission is not custodian

despite its power to release the petitioner).   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.   Thus, the district court correctly

                                19
held that its habeas jurisdiction is limited to the Middle

District of Pennsylvania.

            Pan also suggests, without providing any support, that

we direct the district court to certify a class-wide habeas

action by first certifying a defendant class consisting of

various district directors around the country who are responsible

for the custody of Chinese aliens.    Once a defendant class is

certified, Pan claims that a nationwide plaintiff class can

properly be certified.   Pan's contention is circuitous and

illogical and we reject it.   If, as discussed above, a nationwide

plaintiff class can not be certified on its own merits, due to

the court's territorial limitations, we fail to see how the

certification of a defendant class would make any difference.     In

any event, as previously discussed the district directors are not

the proper parties upon whom writs of habeas corpus should be

served.

            Finally, because Pan's motion for injunctive relief is

premised on the granting of class certification which we deny, we

deny this relief too.

            Accordingly, the judgment of the district court will be

affirmed.




                                 20
