SAMOEUN v. RENO, (D.R.I. 2001)

JACOB HAGOPIAN, United States Magistrate Judge

This matter is before the Court on the application of the pro se petitioner, Nak Samoeun, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Samoeun is currently being detained at the Federal Detention Center in Oakdale, Louisiana, by the Immigration and Naturalization Service ("INS"), awaiting deportation to either Thailand or Cambodia.

This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the instant petition be transferred to the United States District Court for the Western District of Louisiana. I have determined that a hearing is not necessary.

On April 20, 1979, the United States allowed the pro se petitioner, Nak Samoeun to enter this country and to establish a new life here. The petitioner had been living with his family as a refugee in Thailand, after fleeing the persecution that was occurring in his native Cambodia.

The petitioner thereafter choose to repay his adoptive country's favor by engaging in criminal activity. On November 5, 1997, Samoeun was convicted in the Rhode Island Superior Court of manufacturing/delivering a controlled substance (marijuana) and was given a five year suspended sentence. The INS promptly lodged a detainer against the petitioner, alleging that Samoeun was in violation of the immigration laws of the United States and subject to deportation.

On October 8, 1999, an immigration judge ordered that the petitioner be removed from the United States and designated Thailand as the intended destination. Petitioner appealed the immigration judge's decision to the Board of Immigration Appeals ("BIA"). On April 5, 2000, the BIA rejected his appeal.

Thereafter, the INS requested travel documents for the petitioner from both Cambodia and Thailand. Those documents have not been forthcoming, and petitioner has remained in custody at the Federal Detention Center in Oakdale, Louisiana.

Petitioner has now filed the instant writ of habeas corpus, pursuant to 28 U.S.C. § 2241 (a), alleging that his continued detention violates the Fifth Amendment to the U.S. Constitution, the Immigration and Nationality Act, and common law.

For the reasons set forth below, this Court does not reach the merits of the petitioner's contentions. Rather, this Court recommends that the instant petition be transferred to the United States District Court for the Western District of Louisiana.

Title 28, Section 2241, of the United States Code provides, in pertinent part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. 28 U.S.C. § 2241 (a) (emphasis added).

Prior to the Supreme Court's decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123 (1973), the phrase "within their respective jurisdictions" was interpreted as restraining habeas jurisdiction to the judicial district where the prisoner was physically confined. Abrens v. Clark, 335 U.S. 188, 190-193, 68 S.Ct. 1443 (1948). However, the Court in Braden interpreted 2241(a) as requiring "nothing more than the court issuing the writ have jurisdiction over the custodian." Braden, 410 U.S. at 495. The Court noted that "the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody." Id. Consequently, the Court held that "so long as the custodian can be reached by service of process, the court can issue a writ "within its jurisdiction' . . . even if the prisoner himself is confined outside the court's territorial jurisdiction. Id. Braden "maintains the minimum jurisdictional requisite of the presence of the custodian within the territorial confines of the district court." United States v. DiRusso, 535 F.2d 673, 676 (1st Cir. 1976). In other words, the Court issuing the writ must have personal jurisdiction over the petitioner's custodian. Thus, the dispositive questions of this instant petition are who may be considered the petitioner's custodian for habeas purposes, and whether this court has personal jurisdiction over his custodian.

Several courts have come to different conclusions on who may be considered an alien habeas petitioner's custodian. Generally, the warden of the prison where the prisoner is confined is considered the custodian for habeas purposes. Yi v. Maugans, 24 F.3d 500, 507 (3rd Cir. 1994);Henderson v. INS, 157 F.3d 106, 122 (2nd Cir. 1998). "This is because it is the warden that has day to day control over the prisoner and who can produce the actual body." Yi at 507. However, it has been observed that it is the INS District Director who exercises primary control over an INS detainee because the warden acts as an agent for the District Director.Valdivia v. INS, 80 F. Supp.2d 326, 332 (D.N.J.); See Henderson v. INS, 157 F.3d 106, 122; See e.g. Smart v. Goord, 21 F. Supp.2d 309, 313 (S.D.N.Y. 1998). On the other hand, some courts have held, that with respect to alien habeas petitions, it is the Attorney General of the United States that is the proper custodian. Nwanko v. Reno, 828 F. Supp. 171, 173-174 (E.D.N.Y. 1993); Mojica v. Reno, 970 F. Supp. 130 (E.D.N Y 1997); Pena-Rosario v. Reno, 83 F. Supp.2d 349 (E.D.N.Y. 2000).

The First Circuit has recently provided guidance on this issue. InVasquez v. Reno, 2000 WL 1800589 (1st Cir. 2000), the First Circuit rejected the district court's determination that the Attorney General of the United States may be considered the proper custodian for alien habeas petitions. The First Circuit reasoned that "there is no principled distinction between an alien held in a detention facility awaiting possible deportation and a prisoner held in a correctional facility awaiting trial or serving a sentence. Since the case law establishes that the warden of the penitentiary not the Attorney General is the person who holds the prisoner in custody for habeas purposes, it would be not only illogical but also quixotic to hold that the appropriate respondent in an alien habeas case is someone other than the official having the day to day control over the facility where the alien is being detained." Id. at 3. Accordingly, the First Circuit held that "an alien who seeks a writ of habeas corpus contesting the legality of his detention by the INS normally must name as the respondent his immediate custodian, that is, the individual having the day to day control over the facility in which he is being detained." Id. at 8.

With Vasquez in mind, I turn now to the facts of this case. Petitioner Samoeun was convicted in the Rhode Island Superior Court for manufacturing / delivering a controlled substance. Thereafter, the INS commenced deportation proceedings against the petitioner and secured a removal order from an immigration judge. The petitioner then appealed the removal order to the BIA. The BIA rejected his contentions and affirmed the removal order.

Petitioner is now, and has been, detained at the Federal Detention Center, in Oakdale, Louisiana. Since the petitioner is housed at a facility in Oakdale, Louisiana, petitioner's custodian, pursuant to the holding in Vasquez, is the warden of the Oakdale, Louisiana facility where he is detained.

With the issue of who may be considered the petitioner's custodian resolved, the next issue the Court confronts is whether this Court has personal jurisdiction over the custodian — the warden of the Oakdale, Louisiana facility. To have personal jurisdiction over the custodian, the First Circuit, in accordance with the Supreme Court decision in Braden, requires "the presence of the custodian within the territorial confines of the district court." United States v. DiRusso, 535 F.2d 673, 676 (1st Cir. 1976). Considering that the petitioner's custodian in this instant petition is the warden of the Oakdale, Louisiana facility, he/she is beyond the territorial confines of this Court. Thus, this Court lacks personal jurisdiction over him/her.

Accordingly, since this court lacks personal jurisdiction over the warden of the Oakdale, Louisiana facility where Samoeun is detained, I recommend that this instant writ of habeas corpus be transferred to the United States District Court for the Western District of Louisiana.

For the reasons stated above, I recommend that the petitioner's writ of habeas corpus be transferred to the United States District Court for the Western District of Louisiana. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).