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declining to decide the "difficult issue" of whether the Attorney General is a proper respondent but finding personal jurisdiction over the New Orleans District Director under the transacting business prong of New York's long-arm statute based upon petitioner's seizure from his home in New York, which action was attributable to the New Orleans Director
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No. 97 Civ. 6712 (KMW)
May 25, 2000
OPINION ORDER
Petitioner, who is currently in the custody of the Immigration and Naturalization Service ("INS") at the Federal Detention Center in Oakdale, Louisiana ("FDC Oakdale"), challenges the INS' decision to deport him. This petition is brought pursuant to the habeas corpus provisions of 28 U.S.C. § 2241. See Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2nd Cir. 1998), reh'g denied, 175 F.3d 226 (2nd Cir. 1999). Respondents argue that the director of the INS' New Orleans District (the "New Orleans Director"), in which FDC Oakdale is found, is the only proper respondent to the petition and that this Court may not exercise personal jurisdiction over him. Accordingly, respondents move to transfer the petition to the Western District of Louisiana. For the reasons stated below, the Court denies the motion.
I. Background
The following statement of facts is drawn from petitioner's Verified Complaint and supporting documents, as well as from the parties' stipulations, affidavits, and supporting documents submitted in conjunction with the present motion.
A. The Deportation Proceedings
Petitioner Jose Altagracia Perez is a citizen of the Dominican Republic who entered the United States in 1987 and had his status adjusted to lawful permanent resident in 1993. On or about July 10, 1995 petitioner was sentenced to one to three years' imprisonment after pleading guilty in New York Supreme Court to criminal possession of a controlled substance in the third degree. See N.Y. Penal Law § 220.16. In early April 1996 petitioner was released from prison and taken into INS custody on the ground that he was deportable as a person convicted of an aggravated felony and/or a drug offense. See Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1251 (a)(2)(A) (iii) (B)(i) (1994) (INA §§ 241 ((a)(2)(A) (iii) (B)(i)). After initially being held at the INS Service Processing Center in New York City, petitioner was subsequently transferred to an INS facility in York, Pennsylvania and then to FDC Oakdale, where he arrived on or about May 1, 1996. While in York and later in FDC Oakdale, petitioner made a number of requests for release on bond and for a change in venue of the deportation proceedings to New York City. These requests were denied in a series of rulings by Immigration Judge John A. Duck at FDC Oakdale.
At a deportation hearing held on August 12, 1996, petitioner conceded that he was deportable under INA § 241(a)(2) but contended that he was eligible for a discretionary waiver of deportation under INA § 212(c). See 8 U.S.C. § 1182 (c) (1994); see generally Lovell v. INS, 52 F.3d 458 (2nd Cir. 1995). Judge Duck found petitioner ineligible for § 212(c) relief because the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which went into effect on April 24, 1996, had amended § 212(c) to preclude waiver of deportation of persons convicted of drug offenses. See AEDPA § 440(d). Pub.L. No. 104-132, 110 Stat. 1214 (1996). Petitioner timely appealed this decision on the ground that, inter alia, § 440(d) was inapplicable to deportation proceedings founded on a pre-AEDPA conviction.
While petitioner's appeal was pending before the Board of Immigration Appeals ("BIA"). he was released on bond from INS custody on or about December 10, 1996. The $20,000 bond was posted by Frontier Insurance Company ("Frontier"), a private bond obligor located in Pennsylvania, and was arranged by his wife Aura Sencion ("Sencion"). At the time of his release, petitioner reported to the INS that he would be returning to an apartment at 1525 Walton Avenue in the Bronx, New York, and he did so.
On June 23, 1997, the BIA affirmed the deportation order, rendering it administratively final. The New Orleans Director then demanded that Frontier produce petitioner at FDC Oakdale on August 18, 1997, but Frontier failed to do so. On September 5, 1997, several men who identified themselves as from "immigration" informed Sencion that they had arrested petitioner, who was being held handcuffed in a van in front of their Bronx home. Petitioner was delivered into INS custody at FDC Oakdale on September 9, 1997; subsequent requests for renewed bond have been denied.
The natural person occupying this position has changed several times during the course of litigation; respondents have informed the Court that Roy Schremp is the current Acting District Director as of April 14, 2000. Because this petition concerns actions taken in the New Orleans Director's official capacity, the Court simply refers to all actions of the INS New Orleans District as those of the New Orleans Director. Cf. Fed.R.Civ.P. 25(d)(1)
In proceedings challenging the INS' decision to breach Frontier's bond, Frontier represented that petitioner had been taken into custody by its agents.
B. Procedural History
The instant petition was filed on September 9, 1997. Respondents promptly challenged the Court's subject matter jurisdiction over the petition and its personal jurisdiction over the New Orleans Director; in the alternative, respondents requested that the Court hold any decision in abeyance pending the Second Circuit's decision in several consolidated appeals raising similar issues.
On September 18, 1998, the Second Circuit issued its opinion inHenderson v. INS, 157 F.3d 106 (2nd Cir. 1998), in which it held that (1) district courts have subject matter jurisdiction to review BIA deportation orders via habeas corpus petitions filed pursuant to 28 U.S.C. § 2241, and (2) AEDPA § 440(d)'s restriction of INA § 212(c) does not apply to "aliens whose cases predated the statute." Id. at 128. The Henderson opinion discussed but did not decide whether federal courts in New York have the requisite personal jurisdiction in habeas petitions filed by aliens being held at FDC Oakdale, and theHenderson panel certified to the New York Court of Appeals two questions concerning personal jurisdiction under New York's long-arm statute. See id. at 122-28.
Henderson declined to decide whether § 440(d) applies to aliens whose deportation cases post-dated the effective date of the AEDPA but arose out of criminal convictions prior to that date. See id. at 128 n. 28.
In October 1998, the parties stipulated to the placement of this petition on the Court's suspense calendar pending issuance of the Second Circuit's mandate in the Henderson appeals; they also stipulated that petitioner's deportation would be stayed pending disposition of the petition. The petition was reinstated to active status and respondents renewed their arguments for transfer on personal jurisdiction grounds after (1) the New York Court of Appeals declined to accept Henderson's certified questions, See Yesil v. Reno, 705 N.E.2d 655 (N.Y. 1998); (2) the Supreme Court denied a writ of certiorari in Henderson, see Reno v. Navas, 119 S.Ct. 1141 (1999); (3) the Second Circuit declined to review en banc the decision on which Henderson relied, with reservations, for its holding concerning subject matter jurisdiction, see Jean-Baptiste, 175 F.3d 226; and (4) the remaining Henderson appeals were dismissed as moot following a settlement by the parties, see Yesil v. Reno, 175 F.3d 287 (2d Cir. 1999). The Court then requested further stipulations and/or affidavits from the parties concerning the circumstances surrounding petitioner's return to INS custody in September 1997.
II. Discussion
A. Personal. Jurisdiction in Habeas Actions
An application for a writ of habeas corpus must be "directed to the person having custody of the person detained." 28 U.S.C. § 2243. "A court has personal jurisdiction in a habeas case 'so long as the custodian can be reached by service of process.'"Henderson v. INS, 157 F.3d 106, 122 (quoting Braden v. 30th Judicial Court of Kentucky, 410 U.S. 484, 495, 499 (1973)). Service of process on the respondent to a habeas corpus petition in federal court may be made to the extent allowed by the forum state's laws and within the constitutional limits of due process. See id. at 123.
The Supreme Court has indicated that the federal statute authorizing nationwide service of process upon federal officers sued in their official capacity is inapplicable to habeas petitions. See Schlanger v. Seamans, 401 U.S. 487, 490 n. 4 (1971) (discussing 28 U.S.C. § 1391 (e)). Petitioner has not argued that either this statute or Rule 4(i) of the Federal Rules of Civil Procedure authorizes service of process without recourse to New York law; accordingly, the Court assumes that nationwide service of process has not been authorized by Congress.
Petitioner has named as respondents not only the New Orleans Director, but also the Attorney General, the Commissioner of the INS, and the INS New York District Director. Respondents contend that only the New Orleans Director is petitioner's "custodian" for habeas purposes. The district courts in this Circuit are split on the question of how high up the administrative hierarchy "custodian" status reaches. Compare, e.g., Mojica v. Reno, 970 F. Supp. 130, 166-67 (E.D.N.Y. 1997) (Weinstein, J.) (holding that the Attorney General is a "custodian"), appeal dismissed as moot sub nom. Yesil v. Reno, 175 F.3d 287, and Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (Gleeson, J.) (same), with Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 208-209 (S.D.N.Y. 1997) (Stein, J.) (holding that neither the Attorney General nor the INS Commissioner are proper habeas respondents) The Court declines to decide this difficult issue because it has personal jurisdiction over the New Orleans Director, whom all agree is a proper respondent. See Henderson, 157 F.3d at 124-28 (characterizing identification of the appropriate respondent to immigration habeas petitions as "a highly complex issue that we ought not decide unnecessarily").
B. New York's Long-Arm Statute Reaches the New Orleans Director
The "transacting business" prong of New York State's long-arm statute authorizes service of process on the New Orleans Director. See N.Y. C.P.L.R. § 302(a)(1). The actions taken to secure petitioner's return to FDC Oakdale from his residence in New York constitute a transaction attributable to the New Orleans Director for jurisdictional purposes, and this petition arises in part out of those actions.
1. The Transacting Business Standard
New York law authorizes the exercise of jurisdiction over a non-domiciliary who, either personally or through an agent, engages in "purposeful activities" in New York that bear a "substantial relationship" to the claim asserted. Kreutter v. McFadden Oil Corp., 522 N.E.2d 40, 43 (N.Y. 1988) (construing N YC.P.L.R. § 302(a)(1)); accord McGowan v. Smith, 419 N.E.2d 321, 322-23 (N.Y. 1981). The statute's reference to "business" is read broadly as "purposeful activities," without any limitation to commercial transactions. See Madden v. International Ass'n of Heat and Frost Insulators and Asbestos Workers, 889 F. Supp. 707, 710 (S.D.N.Y. 1995) (collecting decisions). Section 302(a)(1) is a "single act statute" under which proof of only one such transaction suffices to confer jurisdiction. Kreutter, 522 N.E.2d. at 43. The statute applies to actions taken personally or "through an agent," § 302(a); whether respondent has ever set foot in New York is not determinative. Kreutter, 522 N.E.2d at 43.
Thus, respondent is simply incorrect to suggest that the New Orleans Director's physical location in New Orleans deprives the Court of jurisdiction. (See Letter of October 18, 1999 from F. James Loprest, Jr. to Hon. Kimba M. Wood ("Resp. 10/18/99 Ltr.") at 6.) The authorities respondent cites for this proposition are not controlling on this question of New York law and appear not to have addressed the question of personal jurisdiction under New York's long-arm statute. See Wang v. Reno, 862 F. Supp. 801, 813 (E.D.N.Y. 1994); see also Guerrero-Musla v. Reno, No. 98 Civ. 2779 (HB), 1998 WL 273038 (S.D.N.Y. May 28, 1998); Ibinga v. United States, No. 95 CV 5009 (SJ), 1996 WL 337261 (E.D.N.Y. June 10, 1996); but see. e.g. Pottinger v. Reno, 51 F. Supp.2d 349, 357 (E.D.N.Y. 1999) (exercising personal jurisdiction over New Orleans Director pursuant to § 302(a) (1)); Yesil v. Reno, 958 F. Supp. 828, 835-36 (S.D.N.Y. 1997) (same), appeal dismissed as moot, 175 F.3d 287 (2nd Cir. 1999);see also Henderson, 157 F.3d at 124 (certifying question of whether the New Orleans Director's "actions bring him within the reach of the New York long-arm statute")
In determining agency for jurisdictional purposes, the Court evaluates "the realities of the relationship in question rather than the formalities of agency law." CutCo Ind., Inc. v. Naughton, 806 F.2d 361, 366 (2nd Cir. 1986); accord Kreutter, 522 N.E.2d at 44. To confer jurisdiction, the agent's purposeful activities in New York need only have been "for the benefit of and with the knowledge and consent of" the principal, who must also have "exercised some control" over the agent's activities in question. Kreutter, 522 N.E.2d at 44.
2. Application of the Transacting Business Standard
Petitioner's seizure from his home in New York in order to return him to INS custody at FDC Oakdale is "attributable to" the New Orleans Director for jurisdictional purposes. Id. This attribution would obviously be merited had the seizure been effected, as petitioner contends, by law enforcement agents under direct INS control; it is also merited under respondent's theory that the seizure was effected by the bond obligor Frontier. Accordingly, the Court need not resolve this factual dispute and assumes for present purposes that Frontier seized petitioner.
Frontier acted at the behest of the New Orleans Director, who issued a written demand upon Frontier that it produce petitioner at FDC Oakdale. This demand was made with the knowledge that petitioner had resided in New York prior to entering INS custody and that he had returned to New York upon release on bond. Thus, although the demand was made upon a Pennsylvania company, it was obviously directed toward action in New York. See Yesil, 958 F. Supp. at 835 (noting significance of New Orleans Director's knowledge of petitioner's return to New York on bond). Moreover, the seizure of petitioner was clearly for the benefit of the New Orleans Director because it was necessary to implementing the then-final deportation order against petitioner. Finally, the New Orleans Director exercised some control" over Frontier's actions: Frontier would not have acted without the New Orleans Director's demand, which controlled the timing of Frontier's actions and the person against whom it was directed. Under these circumstances, the New York actions taken to return petitioner to FDC Oakdale are attributable to the New Orleans Director for jurisdictional purposes.
Cf. Pottinger, 51 F. Supp.2d at 357 (New Orleans Director's sending of a single surrender notice to New York sufficed to confer jurisdiction); Mojica, 970 F. Supp. at 166 ("By allowing Mojica to return to New York, but continuing to claim the power to control his actions, to seek his surrender, and to deport him," the New Orleans Director transacted business for § 301(a)(2) purposes.); but cf. Carvajales-Cepeda, 966 F. Supp. at 208-09 (finding no jurisdiction over New Orleans Director in case in which petitioner was released on bond, returned to New York, and later surrendered to INS custody at FDC Oakdale).
Against this conclusion, respondents primarily offer a line of authority holding that bail bondsmen are not state actors when they arrest their principals and that, accordingly, their actions are not subject to constitutional scrutiny. See, e.g. Landry v. A-Able Bonding. Inc., 75 F.3d 200, 204-05 n. 3 (5th Cir. 1996) (collecting decisions); but see Jackson v. Pantazes, 810 F.2d 426, 430 (4th Cir. 1987) (holding that bail bondsmen's "symbiotic relationship" with the criminal justice system renders their conduct state action). Here, however, petitioner is not challenging the manner in which he was arrested; he merely argues that respondent was sufficiently implicated in Frontier's actions to convey jurisdiction on a New York court to decide the merits of petitioner's claim. Whereas the standard for attribution for § 302(a) purposes is less stringent than formal agency requirements, see Kreutter, 522 N.E.2d at 44, the standard for state action is more stringent, see Disabled in Action of Metropolitan New York v. Hammons, 202 F.3d 110, 122-123 (2nd Cir. 2000). Accordingly, the authorities respondents cite do not alter the analysis of the question presented here.
There is clearly a substantial relationship between the transaction at issue and the substance of petitioner's claim. Petitioner's habeas corpus theory is that he is in the New Orleans Director's custody in violation of federal law; his seizure in New York was conducted pursuant to the terms of that custody — his release on bond — and returned him to respondent's physical custody. Thus, there is an "articulable nexus between the business transacted and the cause of action sued upon," McGowan, 419 N.E.2d at 323, and respondents have not argued to the contrary. Accordingly, jurisdiction is warranted by § 302(a)(1). C. Exercising Jurisdiction Comports With Due Process
Because the Court finds the circumstances of petitioner's seizure and return to FDC Oakdale sufficient to confer jurisdiction over the New Orleans Director, it need not address petitioner's argument that jurisdiction also arises from actions taken by other units of the INS prior to petitioner's initial placement in the New Orleans Director's custody. Cf. Yesil, 958 F. Supp. at 835 (exercising jurisdiction based on the New Orleans Director's "direct efforts as well as the indirect efforts of his representatives and INS officials in New York")
The Court's exercise of personal jurisdiction over respondent must also comport with the constitutional constraints of due process. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 82 (2nd Cir. 1993). These constraints "represent a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Omni Capital Int'l. Ltd. v. Rudolf Wolff Co., Ltd., 484 U.S. 97, 104 (1987) (quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). The Constitution forbids an exercise of jurisdiction that "would offend 'traditional notions of fair play and substantial justice.'" Asahi Metal Ind. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 113 (1987) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
As these standards have been applied to state court actions and to federal courts exercising their diversity jurisdiction, the due process inquiry has two components: (1) whether the defendant has established "minimum contacts" with the forum state by "purposefully directing" actions toward that state, see Asahi, 480 U.S. at 109-12; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-75 (1985), and (2) whether, under the circumstances, exercising jurisdiction over a defendant possessing such minimum contacts would nonetheless be "unreasonable and unfair," Asahi, 480 U.S. at 116. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567-68 (2nd Cir. 1996). The Court need not decide whether these standards apply without modification to the rather different context of this federal habeas action directed to a federal official in his official capacity and concerning exclusively federal questions of immigration law. Here, due process is satisfied even on the narrowest theory: that the Court may exercise personal jurisdiction only if a New York court could do so without violating the Fourteenth Amendment.
Cf. Omni Capital, 484 U.S. at 102 n. 5 (declining to decide whether, in federal question actions, "minimum contacts" may be assessed based on aggregate contacts with the United States as a whole); Chew v. Dietrich, 143 F.3d 24, 27 n. 3 (2nd Cir. 1998) (noting that "a strong argument can be made that even where service is made under the forum state's long-arm statute, a federal court may exercise personal jurisdiction" under a Fifth Amendment national contacts standard rather than a Fourteenth Amendment state contacts standard); Yesil v. Reno, 705 N.E.2d at 656 (declining certification in part because "this exclusive Federal matter — Immigration and Naturalization — presents a fact pattern that would most likely not arise in any State court proceeding")
1. Minimum Contacts
The Supreme Court's formulation of the due process standard has varied with particular fact patterns, but the fundamental constitutional principle underlying the "minimum contacts" approach is that the exercise of personal jurisdiction must arise from "an action of the defendant purposefully directed toward the forum state." Asahi, 480 U.S. at 112 (emphasis in original). This requirement "ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts" or as the result "of the unilateral activity of another party or a third person." Burger King, 471 U.S. at 475 (internal quotation marks omitted).
For the reasons already stated with regard to New York's long-arm statute, the actions of Frontier at the behest of and for the benefit of the New Orleans Director, who knew, that these actions would be directed toward New York, provide the requisite "substantial connection" to New York. Asahi, 480 U.S. at 112 (quoting Burger King, 471 U.S. at 475). There was nothing fortuitous or accidental about the fact that petitioner was seized in New York: he was seized at precisely the address to which he informed the New Orleans Director that he would be returning while released on bond.
Petitioner's choice to return to New York is not the sort of unilateral action inadequate to support personal jurisdiction. The New Orleans Director was on notice at the time he released petitioner that petitioner would be returning to New York and that any attempt to reassert physical custody would require action in New York. See Burger King, 471 U.S. at 475 n. 17 (characterizing unilateral action cases as those in which "the defendant has had no clear notice that it is subject to suit in the forum" (internal quotation marks omitted)). Moreover, petitioner's return to New York was not a mere "unbargained-for convenience," the courteous provision of which should not subject respondent to the burdens of New York litigation, Savin v. Ranier, 898 F.2d 304, 307 (2nd Cir. 1990); instead, petitioner's freedom to return to New York was the core benefit conferred upon him in consideration of the bond posted by Frontier and paid for by his wife.
This analysis is not altered by respondent's contention that he relied exclusively upon federal immigration law in connection with petitioner's custody and bond. (See Resp. 10/18/99 Ltr. at 7 n. 7.) In the context of lawsuits against private parties, one consideration justifying the exercise of personal jurisdiction over a party with "minimum contacts" is that a defendant that "purposefully avails itself of the privilege of conducting activities within the forum State . . . invok[es] the benefits and protections of its laws." Asahi, 480 U.S. at 109 (quotingBurger King, 471 U.S. at 475). Respondent has not, however, cited any authority for placing on petitioner the burden of identifying a particular state law or judicial proceeding on which respondent's actions relied. Even if respondent's authority to take petitioner into custody and to release him on bond is federal in origin, respondent has not shown or even suggested that New York law was inapplicable to Frontier's actions in seizing petitioner.
Indeed, the entire notion of requiring reliance on state law to justify an exercise of personal jurisdiction by this federal court is misplaced. The implicit quid pro quo underlying the purposeful availment" theory is satisfied here. Respondent's purposeful actions in this district took place against the backdrop of federal law that respondent could have invoked in this Court in the event of a dispute; accordingly, he cannot be heard to complain when another party brings to this Court a dispute that bears a substantial connection to those same New York actions.
2. Reasonableness
Subjecting the New Orleans Director to the jurisdiction of this Court is not so unreasonable as to violate due process. Indeed, respondent has not offered any argument against jurisdiction from general principles of fairness or with reference to the reasonableness factors discussed in Asahi. See Metropolitan Life Ins., 84 F.3d at 573-75 (applying Asahi factors). Naming the New Orleans Director as respondent, even if required under current law, is at root a procedural fiction. The Second Circuit has pointed out that, as a practical matter, this action is a vehicle for review of an administrative decision made by the BIA, see Henderson, 157 F.3d at 119 n. 9; the issue raised is purely one of federal law and concerns the New Orleans Director only because the INS chose to detain petitioner at FDC Oakdale, not because petitioner challenges any action by the New Orleans Director. Accordingly, the burdens on the New Orleans Director are negligible, and the Court envisions little if any prejudice in requiring the U.S. Attorney for the Southern District of New York to continue her capable litigation on the New Orleans Director's behalf. See Yesil, 958 F. Supp. at 836. On the other hand, this is the home forum of petitioner, his family, and his attorney, as well as the forum where the events forming the basis of the INS' deportation order took place. Accordingly, this is not one of the "few and far between" cases in which, despite the presence of "minimum contacts," exercising jurisdiction "would violate our basic sense of 'fair play and substantial justice.'" Metropolitan Life Ins., 84 F.3d at 575.
III. Conclusion
Respondents have offered no basis for transferring this petition to the Western District of Louisiana aside from this Court's purported lack of personal jurisdiction over the New Orleans Director. Because, for the reasons stated above, the Court concludes that it has such jurisdiction, respondents' motion for a transfer of venue is denied.
The Court directs respondents to submit by June 12, 2000 their answer to all remaining issues raised by the instant petition; any reply by petitioner is due June 26, 2000. In light of how long this petition has been pending without a decision on the merits, any requests for extensions must be accompanied by a showing of good cause.
SO ORDERED.