           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Roman v. Ashcroft et al.                   No. 02-3253
        ELECTRONIC CITATION: 2003 FED App. 0283P (6th Cir.)
                    File Name: 03a0283p.06                               LITIGATION, CIVIL DIVISION, Washington, D.C., for
                                                                         Appellants. David W. Leopold, DAVID WOLFE LEOPOLD
                                                                         & ASSOCIATES, Cleveland, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                                           ON BRIEF: Alison R. Drucker, UNITED STATES
                                                                         DEPARTMENT OF J USTICE, IMMIGRATION
                  FOR THE SIXTH CIRCUIT                                  LITIGATION, CIVIL DIVISION, Washington, D.C., for
                    _________________                                    Appellants. David W. Leopold, DAVID WOLFE LEOPOLD
                                                                         & ASSOCIATES, Cleveland, Ohio, for Appellee.
 JULIO E. ROMAN ,                  X
            Petitioner-Appellee, -                                         MOORE, J., delivered the opinion of the court, in which
                                    -                                    SCHWARZER, D. J., joined. GIBBONS, J. (pp. 28-29),
                                    -  No. 02-3253                       delivered a separate opinion concurring in the result.
             v.                     -
                                     >                                                      _________________
                                    ,
 JOHN ASHCROFT et al.,              -
      Respondents-Appellants. -                                                                 OPINION
                                                                                            _________________
                                   N
       Appeal from the United States District Court                        KAREN NELSON MOORE, Circuit Judge. Respondents-
      for the Northern District of Ohio at Cleveland.                    Appellants United States Attorney General, John Ashcroft;
       No. 01-01236—Ann Aldrich, District Judge.                         former Acting Commissioner of the Immigration and
                                                                         Naturalization Service (“INS”), Kevin Rooney; former
                     Argued: June 10, 2003                               Cleveland District Director of the INS, Robert L. Brown; and
                                                                         New Orleans District Director of the INS, Christine G. Davis
             Decided and Filed: August 13, 2003                          (collectively “the government”) appeal the district court’s
                                                                         judgment granting Petitioner-Appellee Julio E. Roman
        Before: MOORE and GIBBONS, Circuit Judges;                       (“Roman”) habeas corpus relief. Roman, an Ohio resident,
             SCHWARZER, Senior District Judge.*                          was convicted of federal crimes in the Northern District of
                                                                         Ohio and incarcerated in Kentucky. The INS charged Roman
                      _________________                                  with being removable on three grounds related to his federal
                                                                         convictions, and Roman was transferred from a federal prison
                           COUNSEL                                       in Kentucky to an INS detention facility in the Western
                                                                         District of Louisiana.
ARGUED: Alison R. Drucker, UNITED STATES
DEPARTMENT OF J USTICE, IMMIGRATION                                        In July 2000, an immigration judge (“IJ”) found Roman
                                                                         removable and statutorily ineligible for discretionary relief
                                                                         from removal pursuant to § 212(h) of the Immigration and
    *
                                                                         Nationality Act (“INA”), 8 U.S.C. § 1182(h). The Board of
     The Honorable William W Schwarzer, Senior United States District    Immigration Appeals (“BIA”) affirmed this decision on
Judge for the Northern District of California, sitting by designation.

                                  1
No. 02-3253                          Roman v. Ashcroft et al.           3    4    Roman v. Ashcroft et al.                    No. 02-3253

appeal. Roman filed a § 2241 petition for a writ of habeas                                I. FACTS AND PROCEDURE
corpus,1 arguing that § 212(h) violates the Fifth Amendment
Equal Protection Clause. Although Roman was being                              Roman is a 46-year old native and citizen of the Dominican
detained in the Western District of Louisiana at the time, he                Republic. He has been a lawful permanent resident of the
filed the habeas corpus petition in the district where he                    United States since October 29, 1996, and was last admitted
resided prior to his incarceration and where he was convicted                to the United States on February 8, 1997. Roman is married
of the crimes underlying his removal — the Northern District                 and has six children who are United States citizens.
of Ohio. The government moved to dismiss Roman’s
application because the district court lacked personal                         On September 30, 1999, Roman pleaded guilty in the
jurisdiction over the respondents and because § 212(h) does                  Northern District of Ohio to fraud and misuse of visas,
not violate the Equal Protection Clause. The district court                  permits, and other documents, in violation of 18 U.S.C.
concluded that it had personal jurisdiction over the Attorney                § 1546(a), and misuse of social security numbers, in violation
General, and granted Roman a writ of habeas corpus on                        of 42 U.S.C. § 408(a)(7)(C). Roman was sentenced to 15
grounds that § 212(h) violates the Equal Protection Clause.                  months of imprisonment for these two felonies and served 13
The district court then ordered the case remanded to the BIA                 months of the sentence.
to allow Roman to pursue § 212(h) relief. The government
timely appealed.                                                               While Roman was serving his sentence, the INS issued a
                                                                             Notice to Appear and lodged an additional charge against
  Because Roman’s action must be brought in the district                     Roman. Pursuant to INA § 237, 8 U.S.C. § 1227, the INS
court having jurisdiction over “the person having custody of                 charged Roman with being removable on three grounds:
the person detained,” 28 U.S.C. § 2243, we VACATE the                        (1) conviction relating to document fraud, see INA
district court’s decision to grant Roman habeas corpus relief                § 237(a)(3)(B)(iii); (2) conviction of a crime involving moral
and REMAND to the district court with instructions to                        turpitude committed within five years of entry for which a
determine whether the Cleveland District Director and the                    sentence of one year or longer may be imposed, see INA
INS Commissioner are proper respondents to Roman’s                           § 237(a)(2)(A)(i); and (3) conviction of an aggravated felony,
petition. In the event that the district court concludes that                see INA § 237(a)(2)(A)(iii).
these officials are not proper respondents, we instruct the
district court to transfer the action to the Western District of               Roman was transferred from the Lexington Federal Medical
Louisiana.                                                                   Center in Lexington, Kentucky, to the Oakdale Detention
                                                                             Center in Oakdale, Louisiana, and passed into INS custody.
                                                                             At his removal hearing in Oakdale, Roman admitted to the
                                                                             INS’s factual allegations but denied that he was removable.
                                                                             According to Roman, because he adjusted his status in 1991,
                                                                             he was not deportable for committing a crime involving moral
    1
      28 U.S.C. § 2241 and 28 U.S.C. § 2243 both use the terms
                                                                             turpitude within five years after his admission to the country.
“application” and “applicant” rather than “petition” and “petitioner.”       Roman also argued that he was not removable because his
Ho wever, many § 224 1 cases refer to petitions and petitioners, as do the   document fraud was a first offense undertaken solely to assist
parties to this action. Therefore, we will refer to Roman’s § 2241           close family members, which does not constitute an
application for a writ of habeas corpus as a petition and to R oman as a     aggravated felony. See INA § 101(a)(43)(P), 8 U.S.C.
petitioner throughout this opinion.
No. 02-3253                    Roman v. Ashcroft et al.      5    6        Roman v. Ashcroft et al.                         No. 02-3253

§ 1101(a)(43)(P). The IJ did not allow Roman to testify about       Roman filed a motion seeking a stay of removal, and the
his conviction of document fraud.                                 district court enjoined the INS from executing a final order of
                                                                  removal pending the outcome of judicial proceedings. The
  On August 11, 2000, the IJ entered a decision rejecting         case was briefly held in abeyance while the court awaited the
Roman’s arguments that he was not deportable for                  Supreme Court’s disposition of INS v. St. Cyr, 533 U.S. 289
committing a crime involving moral turpitude and that he had      (2001).
not committed an aggravated felony. The decision implied
that the five-year period mentioned in the moral turpitude          The government moved to dismiss Roman’s petition in July
ground of removal started running from the date of Roman’s        2001. The government challenged personal jurisdiction and
last entry, February 8, 1997. Moreover, because the criminal      venue, noted Roman’s failure to exhaust administrative
plea agreement stated that Roman possessed false documents        remedies with respect to § 212(h),2 and argued that § 212(h)
for approximately thirty persons, the IJ rejected Roman’s         does not violate the Equal Protection Clause.
contention that he engaged in document fraud solely to assist
close family members.                                                In September 2001, the district court issued an order
                                                                  granting the government’s motion to dismiss for want of
  The IJ found Roman removable, denied Roman’s request            personal jurisdiction as to the New Orleans District Director
for cancellation of removal pursuant to INA § 240A(a), 8          and denying the motion as to the Attorney General. Roman
U.S.C. § 1229b(a), and ordered Roman removed to the               v. Ashcroft, 162 F. Supp. 2d 755, 758, 759 (N.D. Ohio 2001)
Dominican Republic. The IJ did not address the possibility        [Roman I]. The order did not discuss whether the INS
of discretionary relief from removal pursuant to § 212(h).        Commissioner and Cleveland District Director were
The BIA affirmed the IJ’s decision and denied Roman’s             appropriately named as respondents. Id. at 758. Concluding
motion to reopen to apply for cancellation of removal.            that it had jurisdiction over the action, the district court
                                                                  directed the government to show cause why Roman’s writ
   Meanwhile, in May 2001, Roman filed a pro se petition for      should not issue. Id. at 765.
a writ of habeas corpus in the United States District Court for
the Northern District of Ohio. He named four respondents —           In January 2002, the district court granted Roman a writ of
the Attorney General, the INS Commissioner, the former INS        habeas corpus, holding that § 212(h) violated the Equal
District Director in Cleveland, Ohio, and the INS District        Protection Clause by differentiating between legal permanent
Director in New Orleans, Louisiana. Roman alleged that his        residents and other aliens. Roman v. Ashcroft, 181 F. Supp.
due process rights were violated by the retroactive application   2d 808, 814 (N.D. Ohio 2002) [Roman II]. The district court
of the Antiterrorism and Effective Death Penalty Act of 1996,     also found that the IJ’s failure to give Roman an opportunity
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), that his     to be heard at his deportation hearing was harmless error. Id.
procedural due process rights were violated because the IJ did    at 816. The case was remanded to the BIA to allow Roman
not allow him a meaningful opportunity to be heard on the         to pursue his claim for a discretionary waiver of removal,
merits of his requests for § 240A or § 212(h) relief, and that    pursuant to § 212(h). Id.
his right to equal protection of the laws was violated because
these forms of relief “discriminate[] between members of a
class based on a distinction that is not rationally related to
[their] purpose.” Joint Appendix at 17 (Habeas Pet.).                 2
                                                                          The government has w aived this argum ent on appeal.
No. 02-3253                     Roman v. Ashcroft et al.      7    8       Roman v. Ashcroft et al.                             No. 02-3253

  The government timely appealed the district court’s              purposes and that the district court therefore lacked personal
September 2001 and January 2002 orders.                            jurisdiction over the Attorney General. Roman argues that
                                                                   the Attorney General should be deemed his custodian for
   II. JURISDICTION OVER ROMAN’S HABEAS                            habeas corpus purposes, and that the alternative decision
               CORPUS PETITION                                     would effectively deprive Roman of an opportunity to seek
                                                                   habeas corpus review under the circumstances.
  The district court confined its analysis of the government’s
motion to dismiss for lack of personal jurisdiction to the New       Because we do not believe that extraordinary circumstances
Orleans District Director and the Attorney General. Although       justify our classification of the Attorney General as Roman’s
the government appeals the district court’s conclusion that the    custodian in this case, we conclude that the district court erred
Attorney General is a properly named respondent to Roman’s         by recognizing the Attorney General as an appropriate
petition, Roman did not file a cross-appeal of the district        respondent to Roman’s petition.
court’s conclusion that it lacked jurisdiction over the New
Orleans District Director. Moreover, because the district          A. The Immediate Custodian Rule
court expressly declined to grant or deny the government’s
motion to dismiss as to the Cleveland District Director and          A district court shall direct a writ of habeas corpus “to the
the INS Commissioner, we decline to consider on appeal             person having custody of the person detained.”3 28 U.S.C.
whether the district court lacks jurisdiction over these two       § 2243; see Braden v. 30th Judicial Circuit Ct. of Ky., 410
respondents. Therefore, our analysis is confined to the
question of whether the district court erred by finding
                                                                       3
personal jurisdiction over the Attorney General.                         Pursuant to the Homeland Security Act of 2002 (“HSA”), Pub. L.
                                                                   No. 107-296 , 116 Stat. 2135 (No v. 25, 2002), the Department of
  We review de novo a district court’s determinations as to        Hom eland Security performs the functions formerly performed by the
the existence of personal jurisdiction. Tobin v. Astra Pharm.      INS. The Savings Provision of the HSA pro vides that “[r]eferences
                                                                   relating to an agency that is transferred to the Dep artment in statutes,
Prods., Inc., 993 F.2d 528, 542 (6th Cir.), cert. denied, 510      Executive orders, rules, regulations, directives, or delegations of authority
U.S. 914 (1993). The district court concluded that it had          that precede such transfer or the effective date of this Act shall be deemed
jurisdiction over Roman’s petition because one of the four         to refer, as appropriate, to the Departm ent, to its office rs, emp loyees, or
named respondents to the petition — the Attorney General —         agents, or to its corresponding organizational units or functions.” HSA
was Roman’s custodian and because the district court had           § 151 2(d ), 6 U.S.C. 55 2(d). Ho wever, within the context of this civil
                                                                   action, we need not conclud e that the parties’ arguments about the identity
personal jurisdiction over the Attorney General. Reasoning         of a detained alien’s custodians should be deemed to refer to the
that, under the circumstances, it was appropriate for Roman        corresponding o fficials under the HSA . The H SA provides,
to name someone other than his immediate custodian, the                 [s]ubject to the authority of the Secretary under this Act, pending
district court concluded that the Attorney General should be            civil actions shall continue notwithstanding the enactment of this
deemed Roman’s custodian. Because the Attorney General                  Act or the transfer of an agency to the Department, and in such
                                                                        civil actions, proceedings shall be had, and judgm ents rendered
was subject to service of process in the Northern District of           and enforced in the same manner and with the same effect as if
Ohio, the district court concluded that it had jurisdiction over        such enactment or transfer had not occurred.
Roman’s petition. The government appeals the district              HSA § 15 12(c), 6 U.S.C. § 552(c). Thus, we proceed in this civil action
court’s September 2001 order, arguing that the Attorney            as if the HSA were not yet in effect, with the understanding that our
General was not Roman’s custodian for habeas corpus                analysis will be applicable in future cases by analogy to the corresponding
                                                                   custodians of detained aliens under the HSA.
No. 02-3253                     Roman v. Ashcroft et al.      9    10       Roman v. Ashcroft et al.                           No. 02-3253

U.S. 484, 494-95 (1973) (“The writ of habeas corpus does not       being detained.4 We conclude that although the warden of
act upon the prisoner who seeks relief, but upon the person        each detention facility technically has day-to-day control over
who holds him in what is alleged to be unlawful custody.”).        alien detainees, the INS District Director for the district where
Therefore, a court has jurisdiction over a habeas corpus           a detention facility is located “has power over” alien habeas
petition only if it has personal jurisdiction over the             corpus petitioners. Henderson, 157 F.3d at 122.
petitioner’s custodian. Braden, 410 U.S. at 495. To evaluate
jurisdiction, a court therefore must first identify the               District Directors head INS district offices, which are
petitioner’s custodian and then determine whether it has           considered “the basic operating unit[s] of the [INS].” Charles
personal jurisdiction over that custodian.                         Gordon, Stanley Mailman, and Stephen Yale-Loehr, 1
                                                                   Immigration Law & Procedure § 3.03[5], at 3-16 (2003). The
   “Historically, the question of who is ‘the custodian,’ and      “district directors have authority and responsibility to grant or
therefore the appropriate respondent in a habeas suit, depends     deny various applications or petitions submitted to the [INS],
primarily on who has power over the petitioner and . . . on the    to initiate any authorized proceeding in their district, and . . .
convenience of the parties and the court.” Henderson v. INS,       to issue notices to appear in removal proceedings.” Id.; see 8
157 F.3d 106, 122 (2d Cir. 1998), cert. denied, 526 U.S. 1004      C.F.R. § 103.1(g)(2)(ii), amended by 68 Fed. Reg. 10922-01
(1999). As a general rule, a petitioner should name as a           (Mar. 6, 2003). As the heads of the basic operating units of
respondent to his habeas corpus petition “the individual           the INS, District Directors oversee the confinement of aliens
having day-to-day control over the facility in which [the          in all three kinds of INS detention facilities — “Service
alien] is being detained.” Vasquez v. Reno, 233 F.3d 688, 696      Processing Centers,” “Contract Detention Facilities,” and
(1st Cir. 2000), cert. denied, 534 U.S. 816 (2001). This is        “[s]tate or local government facilities used by INS
known as the “immediate custodian rule” because it                 through Intergovernmental Service Agreements (IGSAs)
recognizes only the petitioner’s “immediate” or “direct”            to hold detainees for more than 72 hours.”
custodian as the “person having custody” over him under
§ 2243. Courts have deemed these immediate custodians
                                                                        4
proper respondents to habeas corpus petitions as a “practical”            For courts treating the warden of the facility where an alien is
matter “based on common sense administration of justice.”          detained as the alien’s im med iate custo dian, see Yang You Yi v. Maugans,
Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945).              24 F.3d 500, 507 (3d Cir. 1994) (“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 . . . . because it is the warden that has day-to-
   Pursuant to the immediate custodian rule, a prisoner filing     day contro l over the priso ner and who can produce the actual body.”);
a habeas corpus petition should generally name as a                Aphayavong v. INS, 169 F.Supp. 2d 1 194, 119 7 (S.D. Cal. 2001);
respondent the warden of the prison where he is confined.          Samoeun v. Reno, No. Civ.A. 00-610 L., 2001 WL 21047 2, at *2 (D. R.I.
Vasquez, 233 F.3d at 691. Similarly, a detained alien filing       Jan. 3 , 200 1); Chukwurah v. United States, 813 F. Supp. 161, 168 (E.D.
a habeas corpus petition should generally name as a                N.Y. 199 3); Peon v. Thornbu rgh, 765 F. Supp. 155, 156 (S.D. N.Y.
                                                                   1991). For courts treating the INS D istrict Director of the district where
respondent the person exercising daily control over his affairs.   the alien is detained as the alien’s immediate custodian, see Henderson v.
Courts have said that a detained alien’s immediate custodian       INS, 157 F.3d 106, 126 (2d Cir. 1998), cert. denied, 526 U.S. 1004
is either the warden of the facility where the alien is detained   (1999); Santiago v. INS, 134 F. Sup p. 2d 1102, 110 3 (N.D. Cal. 2001 );
or the INS District Director of the district where the alien is    Williams v. Reno, No. 00-71241, 2001 WL 85867, at *2 (E.D. Mich. Jan.
                                                                   11, 200 1); Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286, 291 (E.D. N.Y.
                                                                   2000); Ozoanya v. Reno, 968 F. Sup p. 1, 8 (D. D .C. 19 97); Carva jales-
                                                                   Cepeda v. Meissner, 966 F. Supp. 207 , 208 (S.D. N.Y . 1997).
No. 02-3253                     Roman v. Ashcroft et al.      11    12       Roman v. Ashcroft et al.                       No. 02-3253

Detention Operations         Manual:      Admissions        and     apply the rule in the context of habeas corpus petitions filed
Release          1       (Sept. 20, 2000), available at             by detained aliens). One court reviewing an alien’s habeas
http://www.immigration/gov/graphics/lawsregs/guidance.htm           corpus petition concluded that it had personal jurisdiction
(last modified Mar. 19, 2003). The wardens of all these             over four named respondents — two INS District Directors,
facilities act pursuant to INS Detention Standards and are          the Commissioner of the INS, and the Attorney General —
considered agents of the INS District Director in their district.   because they were all custodians of the petitioner and able to
It is clear that the INS does not vest power over detained          be reached by service of process.5 Mojica v. Reno, 970 F.
aliens in the wardens of detention facilities because the INS       Supp. 130, 166 (E.D. N.Y. 1997), aff’d in part, 157 F.3d 106
relies on state and local governments to house federal INS          (1998).
detainees.      Whatever daily control state and local
governments have over federal INS detainees, they have that           We see no reason to apply a different rule for identifying a
control solely pursuant to the direction of the INS. See            petitioner’s custodian depending on whether the petitioner is
Samoeun v. Reno, No. Civ.A. 00-610 L., 2001 WL 210472,              an alien or a prisoner. Section 2243 states that a writ of
at *2 (D. R.I. Jan. 3, 2001) (“[I]t has been observed that it is    habeas corpus “shall be directed to the person having custody
the INS District Director who exercises primary control over        of the person detained,” which suggests that only one
an INS detainee because the warden acts as an agent for the         individual can properly be named as the respondent to a
District Director.”). Therefore the INS District Director for       habeas corpus petition. 28 U.S.C. § 2243 (emphasis added);
New Orleans is Roman’s immediate custodian for habeas               see Vasquez, 233 F.3d at 693 (suggesting that a petitioner
corpus purposes.                                                    must name one custodian, and may not “choose from among
                                                                    an array of colorable custodians”). Although Congress may
  Because the Northern District of Ohio concluded that it did       not have “intended the article, ‘the,’ to have . . . dispositive
not have personal jurisdiction over the New Orleans District        significance,” see Chavez-Rivas v. Olsen, 194 F. Supp. 2d
Director, however, we must decide whether persons other             368, 374 (D. N.J. 2002) (“‘[T]he’ could mean ‘a’ or ‘any’ as
than Roman’s immediate custodian — such as the Attorney             easily as it could mean ‘that.’”), we agree with the First
General — also have custody of him for § 2243 purposes. At
oral argument, Roman suggested that the immediate custodian
rule should not apply in the context of habeas corpus petitions          5
of aliens. See, e.g., Vasquez, 233 F.3d at 691 (observing that            “In cases where the . . . petitioner has filed in the district of
                                                                    confinement . . . the government has raised no objection to the Attorney
“the case law concerning the identity of the proper respondent      General, the INS, or the INS Com missioner being named.” Rachel E.
to habeas petitions brought by detained aliens is much more         Rosenbloom, Is the Attorney General the Custodian of an INS Detainee?
sparse and far less coherent” than the case law about the           Personal Jurisdiction and the “Immediate Custodian” Rule in
proper respondent to prisoner habeas corpus petitions);             Immigration-Related Habeas Actions, 27 N.Y.U . Rev. L. & Soc. Change
Rachel E. Rosenbloom, Is the Attorney General the Custodian         543, 577 (2001-200 2). In Mojica v. Reno, 970 F. Supp. 130 (E.D. N.Y.
                                                                    1997), aff’d in part, 157 F.3d 106 (1998), the Eastern District of New
of an INS Detainee? Personal Jurisdiction and the                   York reasoned that four respondents should be deemed custodians under
“Immediate Custodian” Rule in Immigration-Related Habeas            § 2243 because “[t]he habeas statute does not specify who the person
Actions, 27 N.Y.U. Rev. L. & Soc. Change 543, 546 (2001-            having custody will be, nor does it state that there may only be one
2002) (maintaining that the immediate custodian rule “has no        custodian. Nowhere does the statute speak of an immediate custo dian.”
place in the adjudication of immigration-related habeas             Id. at 166 (quotations omitted). We note that this logic would counsel
                                                                    against an immediate custodian rule in the context of prisoner habeas
actions” and that the Supreme Court has been reluctant to           corp us petitions as well.
No. 02-3253                     Roman v. Ashcroft et al.      13    14    Roman v. Ashcroft et al.                     No. 02-3253

Circuit that “[t]he immediate custodian rule effectuates            habeas corpus petitions caused dockets to become backlogged
section 2243's plain meaning and gives a natural,                   in the 1940s, Congress gave federal prisoners the ability to
commonsense construction to the statute.” Vasquez, 233 F.3d         attack collaterally their convictions in the court where they
at 693.                                                             were sentenced rather than in the jurisdiction of their
                                                                    confinement. 28 U.S.C. § 2255; see Vasquez, 233 F.3d at
   Moreover, as a practical matter, “the [immediate custodian]      694. Requiring alien habeas corpus petitioners to name their
rule is clear and easily administered.” Id. The adjudication        immediate custodians as respondents may contribute to the
of habeas corpus petitions filed by detained aliens would           problem of overcrowded dockets in particular districts.
become considerably more difficult to administer if we were         However, given that our recognition of a broader definition of
to adopt a broader definition of “custodian” in this context.       “custodian” might delay the adjudication of alien habeas
In other words, interpreting the word “custodian” in § 2243 to      petitions in other ways, we feel confident that we should not
refer to not only an alien’s immediate custodian, but also          attempt to construct a judicial solution to this problem.
other officials with control over the alien’s detention and
release — such as the Commissioner of the INS or the                  For all the reasons discussed above, we conclude that a
Attorney General — would establish a regime in which                detained alien generally must designate his immediate
several courts would have personal jurisdiction over an             custodian — the INS District Director for the district where
alien’s “custodians.” Aliens could then engage in forum             he is being detained — as the respondent to his habeas corpus
shopping, choosing among several different districts as long        petition.
as personal jurisdiction existed over at least one of the various
custodians and venue requirements were satisfied. Although          B. Beyond the Immediate Custodian Rule
venue considerations would ensure that a petitioner could not
file in every jurisdiction, courts would nevertheless be forced        Although we conclude that the immediate custodian rule
“in many cases to undertake fact-intensive analyses of venue        generally applies to alien habeas corpus petitioners, we note
and forum non conveniens issues.” Vasquez, 233 F.3d at 694.         the possibility of exceptions to this rule. “[T]he rules treating
Thus, in this respect, adopting a broader definition of             the immediate custodian as the only proper respondent . . .
“custodian” would complicate and extend the duration of             have not been applied consistently or in a rigid fashion.”
habeas corpus proceedings.                                          Henderson, 157 F.3d at 124. In fact, most courts adopting the
                                                                    immediate custodian rule for alien habeas corpus petitioners
  Roman points out that even if a broader definition of             have explicitly noted the possibility of exceptions even as
“custodian” might delay courts in their evaluation of a single      they adopt the rule. See, e.g., Vasquez, 233 F.3d at 696
habeas corpus petition, it would not slow the adjudication of       (“[W]e can envision that there may be extraordinary
habeas corpus petitions any more than it is already slowed by       circumstances in which the Attorney General appropriately
the backlog of such petitions in jurisdictions housing INS          might be named as the respondent to an alien habeas
detention facilities. In essence, Roman suggests that the           petition.”); Chavez-Rivas, 194 F. Supp. 2d at 375; Nwankwo
regime he proposes would not cause any problems greater             v. Reno, 828 F. Supp. 171, 174 (E.D. N.Y. 1993) (“While the
than those under the existing regime. However, we see no            general rule may be sound as a matter of policy, the language
reason to solve one problem by creating another. This is            of the habeas corpus statute does not compel rigid adherence
particularly true because Congress is in a better position to       to it in every case.”). Arguably, as a jurisdictional matter, “it
solve the problem of overloaded dockets. When prisoner              is, or should be, enough that the respondent named has the
No. 02-3253                           Roman v. Ashcroft et al.           15     16     Roman v. Ashcroft et al.                            No. 02-3253

power or ability to produce the body when so directed by the                    Vasquez, 233 F.3d at 696; Carvajales-Cepeda v. Meissner,
court pursuant to process lawfully issued and served upon                       966 F. Supp. 207, 209 (S.D. N.Y. 1997) (“It is well settled . . .
him.” Ahrens v. Clark, 335 U.S. 188, 199 (1948) (Rutledge,                      that the Attorney General is not the custodian of I.N.S.
J., dissenting). In this case, Roman urges this court to make                   detainees.”). In the context of prisoners, courts have rejected
an exception to the immediate custodian rule by concluding                      the notion of the Attorney General as respondent because
that the Attorney General can be considered Roman’s                             although he has supervisory and regulatory custody of all
custodian and thus a proper respondent to Roman’s petition.                     federal prisoners, “it is apparent that . . . he does not have
                                                                                actual physical custody of a prisoner who is confined in a
   The district court below declined to apply the immediate                     federal prison or other federal institution.” Jones v. Biddle,
custodian rule, instead concluding that the Attorney General                    131 F.2d 853, 854 (8th Cir. 1942), cert. denied, 318 U.S. 784
was an appropriate respondent to Roman’s habeas corpus                          (1943). As with prisoners, the Attorney General does not
petition. On appeal, the government maintains that the                          have actual physical custody of aliens detained by the INS.
district court erred by departing from the immediate custodian
rule and basing personal jurisdiction on the Attorney General.                    Although we agree with those courts that have concluded
Roman counters that the district court properly made an                         that the Attorney General is not generally a proper respondent
exception to the immediate custodian rule because the                           to any habeas corpus petition, nonetheless we recognize that
exception was necessary to preserve Roman’s right to seek                       the Attorney General’s relationship to prisoners differs
habeas corpus relief. Specifically, Roman asks this court “to                   significantly from his relationship to detained aliens. The
allow jurisdiction over an indirect custodian in circumstances                  Attorney General’s role as the ultimate overseer of federal
where a detainee would otherwise be deprived of his right to                    prisoners, see 18 U.S.C. § 4001(b)(2), is not equivalent to his
habeas review.” Roman Br. at 15. We must consider, first,                       designation as the legal custodian of aliens because he plays
whether the Attorney General may ever be properly named as                      a much larger role in the immigration context, see Chavez-
an alien’s custodian and, second, whether the circumstances                     Rivas, 194 F. Supp. 2d at 374 (“Congress has consistently
of this case require our recognition of the Attorney General as                 designated the Attorney General as the legal custodian of
a proper respondent to Roman’s habeas corpus petition.                          immigration habeas petitioners.”).
  1. The Attorney General as Custodian                                            The Second Circuit has described the Attorney General’s
                                                                                unique role in the immigration context as follows:
  A corollary of the immediate custodian rule is that
generally the Attorney General is considered neither the                          There is . . . no question that the Attorney General has
custodian of a detained alien for purposes of § 2243 nor a                        the power to produce the petitioners, remains the ultimate
proper respondent to an alien’s habeas corpus petition.6 See                      decisionmaker as to matters concerning the INS, see 8

    6
      Although few circuits have specifically rejected the po ssibility that    1986); Jon es v. Biddle, 131 F.2d 853, 854 (8th Cir. 1942 ), cert. denied,
the Attorney Genera l may be a custodian in the co ntext of alien habeas        318 U.S. 784 (19 43). According to the First Circuit, “[t]hese courts
corpus petitions, several circuits have said that the Attorney General is not   reason that while the Attorney G enera l is the ultimate overseer of all
a prisoner’s custodian under § 22 43. See, e.g., Sande rs v. Benne tt, 148      federal prisoners, see 18 U.S.C. § 4001[(b)](2), she is not responsible for
F.2d 19, 2 0 (D .C. Cir. 194 5); Blango v. Th ornburgh, 942 F.2d 1487,          day-to-day prison operations and does not hold prisoners in actual
1491-92 (10th Cir. 1991 ); Guerra v. Meese, 786 F.2d 414, 41 6 (D.C. Cir.       physical custody.” Vasquez, 233 F.3d at 691.
No. 02-3253                          Roman v. Ashcroft et al.          17     18       Roman v. Ashcroft et al.                           No. 02-3253

  U.S.C. § 1103(a)(1),7 and is commonly designated a                          that the Attorney General may be “an appropriate respondent
  respondent in these cases, even when personal                               in a habeas corpus proceeding because she has the power to
  jurisdiction over the immediate custodian clearly lies. In                  direct her subordinates to carry out any order directed to her
  this respect, the extraordinary and pervasive role that the                 to produce or release the petitioner”).9
  Attorney General plays in immigration matters is
  virtually unique. Thus, the Attorney General continues                         In light of the degree of control which the Attorney General
  to be in complete charge of the proceedings leading up to                   has over an alien’s immediate custodian, we believe that it
  the order directing the[] removal [of aliens] from the                      may be appropriate to recognize the Attorney General as a
  country and has complete discretion to decide whether or                    proper respondent to an alien’s habeas corpus petition under
  not removal shall be directed.                                              certain circumstances. The nature and scope of those
                                                                              circumstances remains to be determined.
Henderson, 157 F.3d at 126 (quotations and footnote
omitted). Congress gives the Attorney General authority to                      2. Extraordinary Circumstances
“take into custody any alien” whose criminal convictions
render him deportable or inadmissible, INA § 236(e)(1),                          Roman concedes that the district court’s finding of personal
8 U.S.C. § 1226(c)(1),8 and has designated him as the proper                  jurisdiction over the Attorney General was somewhat
respondent in most actions reviewing the legality of removal                  unusual, but argues that under the circumstances it was
orders, INA § 242(b)(3)(A), 8 U.S.C. § 1252(b)(3)(A).                         justified by the importance of preserving Roman’s right to
Arguably, “in immigration cases, the warden or district                       seek habeas corpus relief. The district court reasoned that
director who has ‘day-to-day control’ [over a petitioner] is                  because Roman was incarcerated in a facility in the Western
merely an agent of the Attorney General, who has the                          District of Louisiana with a known backlog of habeas corpus
statutorily authorized power over aliens’ custody and                         petitions, Emejulu v. INS, 989 F.2d 771, 772 (5th Cir. 1993),
release.” See Arias-Agramonte v. Comm’r of INS, No. 00                        there was a risk that “Roman might be removed from the
Civ. 2412(RWS), 2000 WL 1617999, at *7 (S.D. N.Y.                             United States before his petition could be heard on the
Oct. 30, 2000); see Nwankwo, 828 F. Supp. at 174 (explaining                  merits.” Roman I, 162 F. Supp. 2d at 763. The district court
                                                                              found “prima facie reason to believe that removal of Roman
                                                                              to the Dominican Republic prior to adjudication of the merits
                                                                              of his petition would, for practical purposes, deny him the
    7                                                                         benefit of the writ,” and concluded that the Attorney General
     Section 1103(a)(1) has been amended by the HSA, 116 Stat. 2135
(2002).                                                                       was a proper respondent to Roman’s petition. Id. In other
                                                                              words, the district court concluded that Roman would be
    8
      The government contends that the reference to the “Attorney
General” in the ma ndatory de tention statute is a mere placeholder for all
immigration officers because more than one entity is empowered to take
an alien into custod y. See 8 C.F.R. § 287 .7(d) (2001), amended by 68             9
Fed. Reg. 35273-01 (June 13, 2003). As Roman notes, however, other                  The Eastern District of New York has rejected the imm ediate
provisions of the Illegal Immigration Reform and Immigrant                    custodian rule and regularly recognizes the Attorney General as a proper
Respo nsibility Act of 1996 delegate specific responsibilities to other       respondent to an alien’s habeas corpus petition. See, e.g., Pena -Ro sario
immigration officials without naming the A ttorney G enera l as a pro xy.     v. Reno, 83 F. Supp. 2d 349, 362 (E.D. N.Y . 200 0); Pottinger v. Reno, 51
See Arias-Agramonte v. Comm’r of INS, No. 00 Civ. 2412(RWS), 2000             F. Supp. 2d 3 49, 3 57 (E.D . N.Y . 199 9), aff’d on other grounds, 20 00 W L
W L 1617 999, at *6 (S.D. N.Y. Oc t. 30, 2000).                               18644 77 (2d C ir. Dec. 18, 2000) (unpublished opinion).
No. 02-3253                     Roman v. Ashcroft et al.     19    20   Roman v. Ashcroft et al.                     No. 02-3253

deprived of habeas corpus relief if he were not permitted to       necessary to preserve Demjanjuk’s right to petition for habeas
name the Attorney General as a respondent.                         corpus relief, the court specified that jurisdiction would
                                                                   terminate if Demjanjuk’s presence in another jurisdiction
   Under certain extraordinary circumstances it may be             became known.
necessary to depart from the immediate custodian rule in
order to preserve a petitioner’s access to habeas corpus relief.      Some courts are also willing to make an exception to the
In spite of “[t]he general rule . . . that a circuit judge has     immediate custodian rule in other extraordinary
jurisdiction to grant a writ of habeas corpus only if the          circumstances. For example, courts have noted the INS’s
petitioner’s immediate custodian is located within the circuit,”   ability, as a practical matter, to deny aliens any meaningful
Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C. Cir. 1986)           opportunity to seek habeas corpus relief simply by
(Bork, J.), we believe that “it is appropriate, in . . . very      transferring aliens to another district any time they filed a
limited and special circumstances, to treat the Attorney           habeas corpus petition. Chavez-Rivas, 194 F. Supp. 2d at
General of the United States as the custodian,” id. at 1116.       374. Aliens remaining in detention for extended periods are
Such circumstances may arise where a detainee does not have        often transferred several times during their detention. See Lee
a realistic opportunity for judicial review of his executive       v. Ashcroft, 216 F. Supp. 2d 51, 55 (E.D. N.Y. 2002) (“[T]he
detention. The Constitution safeguards the right to petition       location of custody, and the identity of the day-to-day
for a writ of habeas corpus, U.S. Const. art. I § 9, cl. 2, and    custodian, frequently change when detainees are transferred
this right should not be lightly abrogated, see, e.g., Felker v.   among INS facilities, all of which are under the control of the
Turpin, 518 U.S. 651, 661-62 (1996) (suggesting that courts        Attorney General.”); Rosenbloom, supra, at 549. In light of
will enforce only very clear statutory language repealing          these transfers, one court reasoned that an alien may properly
habeas corpus jurisdiction). Therefore, under extraordinary        name a respondent other than his immediate custodian
circumstances where it is necessary to preserve a person’s         because a petition naming a higher level official, such as the
access to habeas corpus relief, we may recognize the Attorney      Attorney General, could be adjudicated without interruption
General as a respondent to an alien’s habeas corpus petition.      in the event of a transfer. Arias-Agramonte, 2000 WL
                                                                   1617999, at *8 (explaining that a petition naming only one’s
   One example of extraordinary circumstances is Demjanjuk         immediate custodian would be dismissed when the alien was
v. Meese. In Demjanjuk, a petitioner’s counsel named the           transferred to another local district).
Attorney General as the respondent to the habeas corpus
petition because the government was holding the petitioner in         Although we do not believe that the mere possibility of
custody at an undisclosed location while he awaited                successive transfers would justify an exception to the
extradition to Israel. Demjanjuk, 784 F.2d at 1116. Because        immediate custodian rule, we do believe that an exception
the petitioner’s attorneys were unaware of Demjanjuk’s             might be appropriate if the INS were to exercise its transfer
location, they would have had “to file in every jurisdiction”      power in a clear effort to evade an alien’s habeas petitions. In
if the court rigidly enforced the immediate custodian rule. Id.    this case, however, Roman has not alleged facts suggesting
Judge Bork reasoned that the Attorney General was a proper         either that the government improperly manipulated its
respondent under the circumstances because an exception was        authority in an attempt to deny Roman a meaningful
necessary to ensure “that petitioner not be denied the right to    opportunity for relief or that Roman faced difficulties akin to
petition for a writ of habeas corpus.” Id. However, not            Demjanjuk’s inability to identify his immediate custodian.
wanting to extend the exception any further than was               Therefore, this court need not decide the appropriate scope of
No. 02-3253                     Roman v. Ashcroft et al.     21    22    Roman v. Ashcroft et al.                     No. 02-3253

the extraordinary circumstances exception to the immediate            The circumstances of Roman’s petition are not such that
custodian rule as a general matter. Rather, the facts of this      our refusal to recognize the Attorney General as a respondent
case require this court to determine only whether the alleged      will effectively deny Roman even the possibility of habeas
crowding of a docket in the district of an alien’s confinement     corpus relief. As an initial matter, there is no reason that
justifies permitting the alien to name the Attorney General as     Roman could not have filed his habeas corpus petition in the
a respondent to his habeas corpus petition filed in the district   Western District of Louisiana; in fact, he can still do so in
where he formerly resided and was convicted.                       light of our conclusion that we lack jurisdiction to consider
                                                                   his petition. Furthermore, Roman cites only the Fifth
  The District Court below concluded that the circumstances        Circuit’s suggestion in a 1993 opinion that the Western
justified recognizing the Attorney General as a respondent to      District of Louisiana has a very overloaded docket as
Roman’s petition because Roman would effectively be denied         evidence of the backlog. See Emejulu, 989 F.2d at 772.
an opportunity to seek habeas corpus relief if he named his        Roman cites no recent evidence of a vast discrepancy between
immediate custodian and filed his petition in the district         the habeas corpus filings per judge in that court and any other
where he was being detained. Roman’s entire argument               district court, and we have been unable to find any clear
hinges on the claim that he should not be required to name his     evidence of such a discrepancy.
immediate custodian at the Oakdale facility as the respondent
because only the Western District of Louisiana would have              Regardless of whether either Roman or the government can
jurisdiction over Roman’s petition seeking a writ against his      provide convincing statistics about the caseload of the
immediate custodian. According to Roman, because he                Western District of Louisiana, we do not believe that the
would have to file his petition in the Western District of         possibility of an alien’s removal prior to the adjudication of
Louisiana, he would effectively be denied an opportunity to        his habeas corpus petition amounts to an effective denial of
seek habeas relief because “the torrent of petitions flowing       the petitioner’s opportunity to seek meaningful habeas corpus
from the Oakdale facility” into that district would all but        relief. Several circuits have concluded that a petitioner meets
ensure that the district court would never consider Roman’s        the jurisdictional custody requirement of § 2241 even after he
petition prior to his deportation. See Emejulu, 989 F.2d at        has been removed “so long as he was in custody when the
772. Although at least one court has equated filing a habeas       habeas petition was filed” and that a case or controversy
petition in the Western District of Louisiana to being denied      continues to exist as long as the petitioner “continues to suffer
“any meaningful habeas corpus relief,” Nwankwo, 828 F.             actual collateral consequences of his removal.” Zegarra-
Supp. at 174, we do not believe that a crowded docket can —        Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003); see
without more — constitute extraordinary circumstances              Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002) (noting that
justifying a departure from the immediate custodian rule. Cf.      “the bar on readmission of a removed alien is a legally
Alcaide-Zelaya v. McElroy, Nos. 99Civ.5102(DC),                    cognizable collateral consequence that preserves a live
99Civ.9999(DC), 2000 WL 1616981, at *4 (S.D. N.Y. Oct.             controversy even after deportation of the petitioner”); Smith
27, 2000) (expressing “concern that the government can             v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002); Lee Moi
‘seriously undermine the remedy of habeas corpus’ by               Chong v. INS, 264 F.3d 378, 382-83 (3d Cir. 2001). Because
detaining so large a number of aliens in one facility that the     the INA provides that an alien ordered removed “who again
local district court is overwhelmed by a flood of habeas           seeks admission within 5 years of the date of such removal
petitions”).                                                       . . . is inadmissible,” 8 U.S.C. § 1182(a)(9)(A)(ii), an order of
                                                                   removal creates sufficient collateral consequences to render
No. 02-3253                       Roman v. Ashcroft et al.       23    24    Roman v. Ashcroft et al.                     No. 02-3253

a removed alien’s petition a live case or controversy, see Lee         court from which it is transferred.” Id. A court may decide
Moi Chong, 264 F.3d at 385. Roman will not be deprived of              to dismiss an action rather than transferring it under § 1631
his opportunity to seek habeas corpus relief even if he is             either because (1) no permissible federal court would have
removed prior to a court’s resolution of his petition.                 jurisdiction over the action, or because (2) “transfer would not
                                                                       be in the interest of justice.” See Jeffrey W. Tayon, The
  Therefore, the circumstances of Roman’s habeas corpus                Federal Transfer Statute: 28 U.S.C. § 1631, 29 S. Tex. L.
petition are not such that a departure from the immediate              Rev. 189, 214 (1987).
custodian rule is justified at this time, and the Attorney
General is not a proper respondent to Roman’s petition. The               We note that circuits have split on the question of whether
Northern District of Ohio erred by relying on its finding of           § 1631 provides for transfers only in the event that a federal
personal jurisdiction over the Attorney General as a basis for         court lacks subject matter jurisdiction or also in the event that
jurisdiction here.                                                     the court lacks personal jurisdiction. See, e.g., SongByrd, Inc.
                                                                       v. Estate of Grossman, 206 F.3d 172, 179 n.9 (2d Cir.)
  We decline to finally determine whether the district court           (noting that “the legislative history of section 1631 provides
had jurisdiction over Roman’s habeas corpus petition on other          some reason to believe that this section authorizes transfers
grounds because the district court below did not decide                only to cure lack of subject matter jurisdiction”), cert. denied,
whether either the Cleveland District Director or the INS              531 U.S. 824 (2000); Renner v. Lanard Toys Ltd., 33 F.3d
Commissioner was a properly named respondent and because               277, 284 (3d Cir. 1994) (explaining that a court lacking
neither party briefed the matter before this court. We direct          personal jurisdiction may consider transferring the action
the district court on remand to determine, consistent with the         pursuant to § 1631); Ross v. Colo. Outward Bound Sch., Inc.,
views expressed in our opinion, whether either of these                822 F.2d 1524, 1526-27 (10th Cir. 1987) (same). Through
officials is properly a respondent in this action.                     § 1631, Congress “gave broad authority to permit the transfer
                                                                       of an action between any two federal courts,” Ross, 822 F.2d
     III. TRANSFERRING ROMAN’S PETITION                                at 1526, and courts have effectuated Congress’s intent by
                                                                       broadly construing the statute, id. at 1527. The language of
   Assuming that the district court for the Northern District of       § 1631 does not refer to any specific type of jurisdiction, only
Ohio decides on remand that none of the named respondents              referring broadly to “jurisdiction.” See Tayon, supra, at 224
were properly before it, we now consider whether the district          (“The literal language of the statute . . . is broad enough to
court erred by dismissing the New Orleans District Director            encompass either [lack of subject matter or personal
from the action rather than transferring the entire action             jurisdiction].”). Moreover, a broad construction of the statute
pursuant to 28 U.S.C. § 1631. Section 1631 provides that if            is consistent with Congress’s intent to “protect a plaintiff
a civil action or appeal is filed in a court lacking jurisdiction,     against either additional expense or the expiration of a
“the court shall, if it is in the interest of justice, transfer such   relevant statute of limitations in the event that the plaintiff
action or appeal to any other such court in which the action or        makes an error in trying to select the proper court within the
appeal could have been brought at the time it was filed or             complex federal court system.” 17 Charles Alan Wright,
noticed.” 28 U.S.C. § 1631 (emphasis added). Upon such                 Arthur R. Miller, & Edward H. Cooper, Federal Practice and
transfer, “the action or appeal shall proceed as if it had been        Procedure: Jurisdiction 2d § 4104, at 406 (2d ed. 1986)
filed in or noticed for the court to which it is transferred on        (citing S. Rep. No. 97-275 (1982)). In light of the language
the date upon which it was actually filed in or noticed for the        of § 1631 and its purpose, we therefore conclude that the
No. 02-3253                        Roman v. Ashcroft et al.        25    26     Roman v. Ashcroft et al.                                 No. 02-3253

statute applies to federal courts identifying any jurisdictional         transfer the case under § 1631 on grounds that no federal
defect, regardless of whether it involves personal or subject            court would have jurisdiction. Therefore, the appropriateness
matter jurisdiction.                                                     of a § 1631 transfer turns on whether such a transfer would be
                                                                         in the interest of justice. We believe that it would be in the
   In light of our conclusion that the Attorney General was not          interest of justice to transfer the action because a dismissal of
a proper respondent and in light of the district court’s                 the action would only cause Roman to incur the additional
conclusion that it lacked personal jurisdiction over the New             expense of filing the same habeas corpus petition in the
Orleans District Director, we believe that § 1631 would apply            Western District of Louisiana. See 17 Wright, Miller, &
in this case. It would have been appropriate for Roman to file           Cooper, supra, § 4104, at 406 (noting that § 1631 is intended
his habeas petition in the Western District of Louisiana                 in part to protect petitioners from incurring additional expense
because it is the jurisdiction of Roman’s confinement. See               if they erroneously file in the wrong court).
Martin v. Perez, 319 F.3d 799, 802 (6th Cir. 2003) (stating
that a § 2241 petition “must be filed in the district court that           For these reasons, we conclude that, if the district court on
has jurisdiction over a prisoner’s place of confinement”).               remand finds that the Cleveland District Director and the INS
Roman named his immediate custodian, the New Orleans                     Commissioner are not proper respondents, the district court
District Director, as a respondent to the habeas corpus petition         erred by dismissing the New Orleans District Director from
that he filed in the Northern District of Ohio. Although the             the action. The district court should now transfer the action
district court found that the Northern District of Ohio does not         to the Western District of Louisiana pursuant to § 1631.11
have personal jurisdiction over the New Orleans District
Director, the Western District of Louisiana would have the                                         IV. CONCLUSION
requisite personal jurisdiction. “A federal court has general
jurisdiction when the defendant’s contacts with the forum                  For the reasons explained above, we VACATE the district
state are ‘substantial’ and ‘continuous and systematic,’ so that         court’s judgment granting habeas corpus relief to Roman
the state may exercise personal jurisdiction over the defendant          because the Attorney General was not properly named as the
even if the action does not relate to the defendant’s contacts           respondent in Roman’s petition for a writ of habeas corpus.
with the state.” Youn v. Track, Inc., 324 F.3d 409, 417-18               We REMAND the case to the district court with instructions
(6th Cir. 2003). The New Orleans District Director works in              to decide whether the Cleveland District Director or the INS
the Western District of Louisiana and is subject to the                  Commissioner is a proper respondent consistent with this
personal jurisdiction of that court.10                                   opinion. In the event that the district court finds that these

  Because the Western District of Louisiana would have
jurisdiction over the New Orleans District Director, the                      11
Northern District of Ohio district court cannot decline to                       Even if § 1631 did not permit transfers for lack of personal
                                                                         jurisdiction, the action should be transferred pursuant to 28 U.S.C.
                                                                         § 1406(a). Section 1406(a) states that where venue is improper, the
                                                                         district court where the action was filed “shall . . . if it be in the interest of
    10
                                                                         justice, transfer such case to any district or division in which [the action]
       The New Orleans District Director oversees immigration-related    could have been brought,” id., regardless of whether the transferring court
services for the state of Louisiana and for So uthern Mississippi. See   lacks personal jurisdiction over the defendant, Goldlawr, Inc. v. Heiman,
http://www.immigration.gov/graphics/fieldoffices/newo rleans/index.htm   369 U.S. 463, 466 (1962); Martin v. Stokes, 623 F.2d 46 9, 474 (6th Cir.
(last modified Feb. 28, 200 3).                                          1980).
No. 02-3253                    Roman v. Ashcroft et al.    27    28    Roman v. Ashcroft et al.                     No. 02-3253

officials are not proper respondents, we instruct the district                     ____________________
court to transfer the petition to the Western District of
Louisiana pursuant to 28 U.S.C. § 1631.                                              CONCURRENCE
                                                                                   ____________________

                                                                   JULIA SMITH GIBBONS, Circuit Judge, concurring. I
                                                                 concur in the result in this case and agree with much of the
                                                                 majority opinion’s reasoning. I write separately to note two
                                                                 points.
                                                                    First, whether the petitioner is a detained alien or a federal
                                                                 prisoner, the weight of authority supports a determination that
                                                                 the Attorney General is not a proper respondent in petitions
                                                                 under 28 U.S.C. § 2241. Vasquez v. Reno, 233 F.3d 688, 691
                                                                 (1st Cir. 2000) (finding that normally the Attorney General is
                                                                 not the proper respondent in alien habeas cases and noting
                                                                 that a number of courts have held that the Attorney General
                                                                 is not a proper custodian for purposes of a prisoner’s habeas
                                                                 petition); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir.1994)
                                                                 (summarily dismissing the idea that the Attorney General
                                                                 might be a proper respondent in an alien habeas case); Blango
                                                                 v. Thornburgh, 942 F.2d 1487, 1491-92 (10th Cir. 1991) (per
                                                                 curiam) (affirming district court’s dismissal of Attorney
                                                                 General because the prison warden, not the Attorney General,
                                                                 was the proper respondent for the prisoner’s habeas action);
                                                                 Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945) (holding
                                                                 that warden, not Attorney General, was proper respondent in
                                                                 prisoner’s habeas petition); Jones v. Biddle, 131 F.2d 853,
                                                                 854 (8th Cir. 1942) (same); Santiago v. INS, 134 F.Supp.2d
                                                                 1102, 1104 (N.D. Cal. 2001) (finding that Attorney General
                                                                 was not a proper respondent in a habeas action brought by an
                                                                 alien); Pearce v. Ashcroft, No. 301CV1160CFD, 2003 WL
                                                                 1145468, at *1 (D. Conn. Mar. 12, 2003) (concluding that the
                                                                 Attorney General is not a proper respondent to an alien’s
                                                                 habeas action filed pursuant to § 2241);Carvajales-Cepeda v.
                                                                 Meissner, 966 F. Supp. 207, 208 (S.D.N.Y. 1997) (“It is well
                                                                 settled . . . that the Attorney General is not the custodian of
                                                                 INS detainees”); Wang v. Reno, 862 F. Supp. 801, 812-13
                                                                 (E.D.N.Y. 1994) (finding that Attorney General was not
No. 02-3253                    Roman v. Ashcroft et al.     29

alien’s custodian for habeas purposes); Peon v. Thornburgh,
765 F. Supp. 155, 156 (S.D.N.Y. 1991) (rejecting argument
that Attorney General was alien’s custodian for purpose of
alien’s habeas petition). The majority states that the
“Attorney General’s relationship to prisoners differs
significantly from his relationship to detained aliens” and
suggests that the Attorney General has a unique role in
immigration matters that makes him more likely to be a
proper respondent in a petition brought by a detained alien
than a federal prisoner. I am not prepared to reach this
conclusion, which seems unnecessary to the result. As the
First Circuit stated in Vasquez:
  The Attorney General’s role with regard to aliens is not
  materially different from her role with regard to prisoners
  at least not different enough to justify a rule that she is
  the custodian of aliens, but not prisoners, for habeas
  purposes. After all, the Attorney General is the
  designated custodian of prisoners to much the same
  extent as she is the designated custodian of aliens.
  Compare 18 U.S.C. § 4001(2) with 8 U.S.C.
  § 1226(c)(1). And just as she has the ultimate authority
  to produce the body of an alien, she has the ultimate
  authority to produce the body of a prisoner.
233 F.3d at 696.
   Second, in its discussion of extraordinary circumstances
which may justify departure from the immediate custodian
rule, the majority addresses hypothetical situations that are
not present here. I would limit our holding on this point to
the conclusion that a crowded docket alone cannot constitute
extraordinary circumstances, noting of course that as a factual
matter, Roman points to no evidence from which one could
find the existence of a crowded docket in the Western District
of Louisiana.
