Opinion
Civil No. 02-4725 (DSD/RLE)
December 11, 2002
Barton C. Winter, Esq., Barton Law Office, Birchwood, MN, Kevin M. Magnuson, Esq., Briggs and Morgan, P.A., Minneapolis, MN, for Petitioner.
Perry Sekus, Assistant United States Attorney, and Lonnie F. Bryan, Assistant United States Attorney, Minneapolis, MN, for Respondent.
MEMORANDUM OPINION AND ORDER
Currently pending before the Court is Petitioner Abdullahi Ahmed Farah's Petition for Writ of Habeas Corpus for an Individual in Federal Custody and a Temporary Restraining Order. Respondent seeks to dismiss the Petition for lack of personal jurisdiction. Alternatively, Respondent seeks to transfer the case to the Western District of Louisiana. Finally, if the Court determines that it has jurisdiction and that venue is proper in Minnesota, Respondent requests that both parties be given a reasonable time to brief the merits of the Petition. For the reasons that follow, the Court finds that it has personal jurisdiction and that venue is proper in this state.
The Court, however, grants Respondent's request for additional briefing time.
BACKGROUND
The undisputed facts are that Farah is a native and citizen of Somalia. On November 27, 2002, he was removed, ostensibly by an order from some official at the Immigration and Naturalization Service ("INS"), from Minnesota and sent to a holding facility in Louisiana.
Initially, Farah may have been sent to a holding facility in the Eastern District of Louisiana, but there is no question that he is currently detained at a facility in the Western District of Louisiana. Because of the haste with which he was removed from Minnesota, Farah was unable to file the instant Petition with the Court until December 2, 2002. That same day, the Court stayed Farah's removal from this country pending a final resolution of his Petition.
As the Court currently understands the case, Farah would have been removed from this country during the first few days of December 2002, but for the happenstance of a storm that prevented his plane from departing the United States for Somalia. If this is true, the Court is troubled by the INS's seeming headlong rush to remove Farah from this country, despite his filing this Petition before the Court. Indeed, the INS was unwilling to voluntarily stay the removal of Farah for less than 48 hours to give the Court time to hold an initial hearing. The Court is aware that the ultimate decision to execute removal orders is made at a national level and particular cases are swept up in an ensuing flurry of agency action. Lest the process be denigrated to a bureaucratic juggernaut, however, care needs to be taken that the fundamental constitutional rights of individuals, such as the right to seek a writ of habeas corpus, are not sacrificed to expediency.
Hours after this Court's Order was entered, Farah was named, along with six other Somalian detainees, as a petitioner on a consolidated petition for habeas corpus in the Western District of Louisiana. On December 3, 2002, the United States District Court — Western District of Louisiana entered a temporary restraining order enjoining the respondents in that action from removing Farah and the other detainees until December 13, 2002, or such other time as the court should order. On December 9, 2002, Farah withdrew from that petition so that he could pursue a writ of habeas corpus in this Court.
The INS represents that Farah came to this country sometime in December 1999. He was then arrested for failing to comply with applicable immigration laws. He was subject to a final order of removal in August or September 2000. Soon thereafter, he was released on an order of supervision and allowed to reside in Minnesota, where he remained until November 2002.
During his time in Minnesota, it seems that Farah worked two jobs and married a Somalian woman residing in Minnesota.
A. Personal Jurisdiction
As the parties frame the case, the threshold issue is whether the Court has the requisite personal jurisdiction to entertain Farah's Petition. The INS correctly states that "[h]abeas corpus jurisdiction lies only when petitioner's custodian is within the jurisdiction of the district court." United States v. Monteer, 556 F.2d 880, 881 (8th Cir. 1977). The rationale for this rule rests on the historic principle that a writ of habeas corpus "is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter." Ex parte Mitsuye Endo, 323 U.S. 283, 306 (1944) (quoting In re Jackson, 15 Mich. 417, 439-440 (1867)). The court, in other words, has personal jurisdiction in a habeas proceeding "so long as the custodian can be reached by service of process." Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973). Service of process may be made to the extent allowed by the forum state's long-arm statutes and within the constitutional limits of due process.
The INS suggests that, in the context of habeas petitions, geographic considerations limit the reach of a court's personal jurisdiction. While, of course, the law "is not a brooding omnipresence in the sky but the articulate voice of some sovereign," Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting), the notion that the territorial sovereignty of the forum state has some transcendent importance for personal jurisdiction expired with Pennoyer v. Neff, 95 U.S. 714 (1877). The Court is confident that the reach of its personal jurisdiction is governed by the familiar minimum contacts analysis of International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) and its progeny.
In Minnesota, the state long-arm statute extends as far as due process allows. See Minn. Stat. § 543.19; Domtar, Inc. v. Niagara Fire Ins. Co., 533 N.W.2d 25, 29 (Minn. 1995) (describing the reach of Minnesota's long-arm statute); Wessels, Arnold Henderson v. Nat'l Med. Waste, Inc., 65 F.3d 1427, 1431 (8th Cir. 1995). The familiar requirements of due process are that the person being haled into court have "certain minimum contacts" with the forum state such that "maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
As the Supreme Court has noted, there are no "talismanic" formulas to personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485 (1985). Rather, courts must consider "the relationship among the [person being haled into court], the forum, and the litigation." Shaffer v. Heitner, 433 U.S. 186, 204 (1977). Physical presence of the defendant or respondent in the forum state is unnecessary. Burger King, 471 U.S. at 476.
Nevertheless, in the peculiar context of habeas petitions filed in INS removal cases, the question of who constitutes a custodian has divided a number of courts. See Vasquez v. Reno, 233 F.3d 688, 692 (1st Cir. 2000) (noting that the decisions of courts that have tackled the question are in "considerable disarray"). Traditionally, the warden of the prison or facility holding the detainee is considered to be the custodian of the detainee for the purposes of a habeas petition. Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994). "This is because it is the warden that has day-to-day control over the prisoner and who can produce the actual body." Id.
This traditional definition of "custodian," however, fails to account for the reality of INS removal cases. As manifested by the facts of this case, the location of the custody and the identity of the day-to-day custodians of INS detainees frequently changes as detainees are rapidly transferred from one INS facility to another. Lee v. Aschcroft, 216 F. Supp.2d 51, 54 (E.D.N.Y. 2002).
Recognizing a pragmatic need for an exception to the traditional rule that petitioners should name their day-to-day custodian as a respondent in habeas proceedings, a number of courts have determined that the Attorney General is a proper respondent in INS removal cases. E.g., Pottinger v. Reno, 51 F. Supp.2d 349, 357 (E.D.N.Y. 1999); Nwankwo v. Reno, 828 F. Supp. 171, 175 (E.D.N.Y. 1993). The INS, however, urges the Court not to adopt the "freewheeling definition of `custodian'" championed by these courts. Vasquez, 233 F.3d at 695.
The INS also claims that the Court should dismiss Farah's petition because he failed to name any person as a respondent. The Court declines to dismiss his petition on this ground. Farah may amend his petition to name a proper respondent.
According to the INS, "there are compelling policy reasons why the Attorney General should not normally be deemed a custodian." Chavez-Rivas v. Olsen, 194 F. Supp.2d 368, 375 (D.N.J. 2002).
The Court agrees that normally the Attorney General should not be considered a custodian in habeas proceedings. For the purposes of this case, it is unnecessary to retread the legal and practical arguments in favor of and against holding the Attorney General to be a custodian in all INS habeas cases. As even the First Circuit conceded in Vasquez, at least in extraordinary circumstances, "the Attorney General [may] appropriately . . . be named as the respondent to an alien habeas petition." Vasquez, 233 F.3d at 696. One example of such an extraordinary circumstance, according to the First Circuit, is a situation were the INS spirits "an alien from one site to another in an attempt to manipulate jurisdiction." Id.
Although the Court refuses to find that the INS intentionally tried to manipulate jurisdiction in this case, the practical effect of its sudden decision to transport Farah from Minnesota to Louisiana overnight was to prevent him from filing his Petition while he was present in this state. To now hold that Farah may only file his Petition in the state that the INS determines to send him would be to allow the INS to forum shop, intentionally or not. See Alcaide-Zelaya v. McElroy, No. 99-5102, 2000 WL 1616981, at *5 (S.D.N.Y. Oct. 27, 2000) (noting that if alien petitioners were not able to sue the Attorney General in some circumstances there would "be almost no check on the government's ability to forum shop"). Accordingly, for the purposes of this case, the Court finds that the Attorney General is an appropriate respondent and that, because he regularly transacts business in this state, the Court has personal jurisdiction over him.
B. Venue
Though venue is traditionally thought of as a statutory limitation on the authority of courts, the habeas statute's explicit venue provision pertains only to "a person in custody under the judgment and sentence of a State court." 28 U.S.C. § 2241(d). In this case, Farah is not in custody under the judgment or sentence of a state court. Accordingly, the Court must analyze whether venue is proper in Minnesota by weighing "traditional venue considerations." Branden, 410 U.S. 484, 493 (1973). Such considerations include but are not limited to: (1) the location where the material events took place; (2) where records and witnesses pertinent to the claim are likely to be found; (3) the convenience of the forum for the parties; and (4) the familiarity of the court with the applicable laws. Id. at 493-94.
In this case, these traditional venue considerations and the general interests of justice militate in favor of adjudicating Farah's habeas Petition in this forum. Until he was abruptly removed from Minnesota on November 27, 2002, Farah had resided and worked concurrently at two different jobs in this state for nearly two years. Additionally, there is evidence that he has family and other community-based connections to this state. Finally, this state has a particular interest in ensuring that the constitutional and statutory rights of Somalians are protected because of the large Somalian population that resides here.
Counterbalancing these forum interests, the Court finds only the fortuitous fact that Farah is currently detained in Louisiana. Because his Petition raises purely legal issues, the first and second factors articulated by the Court in Branden are inapplicable. Furthermore, because his Petition raises only legal issues which do not require his presence to be considered, the INS does not face the inconvenience of having to transport Farah back to Minnesota. Finally, the fourth Branden factor is in equipoise: the court in the Western District of Louisiana and this Court are equally familiar with the relevant law. Standing alone, Farah's physical location is insufficient to outweigh Farah's choice to pursue his Petition here coupled with this forum's interests in this matter.
CONCLUSION
The Court finds that it has the requisite personal jurisdiction to hear Farah's Petition and that venue is appropriate in Minnesota. Accordingly, Respondent's request that the Court dismiss Farah's Petition for lack of personal jurisdiction or alternatively transfer the matter to the Western District of Louisiana is DENIED. Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Respondent must file a response to the Petition no later than 4:00 p.m. on December 16, 2002. Petitioner may file any reply to that response by 12:00 p.m. on December 19, 2002. No oral hearing on this matter is needed; and
2. Petitioner's removal from this country continues to be stayed pending final resolution of his Petition for Writ of Habeas Corpus.