Opinion
No. CV-20-00551-PHX-DJH
2021-02-26
Raghav RAGHAV, Petitioner, v. Chad WOLF, et al., Respondents.
Hillary Gaston Walsh, New Frontier Immigration Law, Phoenix, AZ, for Petitioner. William Charles Staes, US Attorneys Office, Phoenix, AZ, for Respondents.
Hillary Gaston Walsh, New Frontier Immigration Law, Phoenix, AZ, for Petitioner.
William Charles Staes, US Attorneys Office, Phoenix, AZ, for Respondents.
ORDER
Diane J. Humetewa, United States District Judge
This matter is before the Court on Respondents’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(3), or alternatively to transfer the matter to the United States District Court for the Southern District of Mississippi, (Doc. 18) and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Camille D. Bibles on September 29, 2020 recommending that this matter be dismissed (Doc. 30).
Petitioner seeks judicial review of an order of expedited removal from the United States. (Doc. 1). Petitioner asserts that this Court has jurisdiction pursuant to Department of Homeland Security v. Thuraissigiam, 917 F.3d 1097 (9th Cir. 2019) ("Thuraissigiam I"). Subsequent to the briefing on the Motion to Dismiss, the Supreme Court reversed the Ninth Circuit's decision in Thuraissigiam I, and divested federal courts of subject matter jurisdiction over actions requesting judicial review of expedited removal orders. Dep't of Homeland Sec. v. Thuraissigiam, ––– U.S. ––––, 140 S.Ct. 1959, 207 L.Ed.2d 427 (2020) ("Thuraissigiam II"). Following a sound analysis, Magistrate Judge Bibles recommends the Petition be dismissed for lack of subject matter jurisdiction. Petitioner filed an Objection (Doc. 31) , to which Respondents filed a Response (Doc. 32).
Petitioner's Objection to the R&R spans 18 pages, in violation of LRCiv 7.2(e)(3), which provides that "unless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages." There are grounds to strike the non-compliant Objection. Nonetheless, the Court has considered the arguments made in the Objection but cautions counsel against such actions in the future.
I. Background
Raghav Raghav ("Petitioner") is a native and citizen of India, who entered the United States without inspection on or about June 30, 2019, near Calexico, California. (Doc. 1-2 at 4, 11, 23, 25-26). Petitioner was apprehended, determined to be inadmissible, and placed in expedited removal proceedings under § 235(b)(1) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1225(b)(1). (Doc. 1-2 at 2, 23-27). Petitioner expressed a fear of persecution or torture if returned to India, and he was referred for a credible fear determination and transferred to the La Palma Correctional Center in Eloy, Arizona. (Doc. 1-2 at 5, 26-27).
On August 20, 2019, Petitioner appeared before an asylum officer ("AO") for a credible fear interview. (Doc. 1-2 at 5). The AO found Petitioner failed to establish a credible fear of persecution or torture if removed to India. (Id. at 4, 8). Petitioner requested review by an Immigration Judge pursuant to 8 U.S.C. § 1255(b)(1)(b)(iii)(III). The Immigration Judge affirmed the AO's negative credible fear determination and, on August 21, 2019, Petitioner was ordered removed from the United States pursuant to § 235(b)(1) of the INA. (Doc. 1 at 5-6, 9; Doc. 18 at 2). On September 29, 2019, Raghav was transferred from the Eloy detention facility to the Adams County Detention Center in Natchez, Mississippi. (Doc. 18-1 at 2).
Petitioner's Count One asserts that the Asylum Office and Immigration Court violated his due process rights by ignoring evidence of his conditions in India and erroneously applying the law. (Doc. 1 at 11-17). In Count Two, Petitioner alleges that he is entitled to final agency review of the Asylum Office's negative credible fear determination pursuant to 5 U.S.C. § 704 of the Administrative Procedures Act. (Id. at 17-19).
Petitioner asks the Court to assume jurisdiction over this matter, issue a writ of habeas corpus, conduct a hearing, declare that he is being detained in violation of law because the removal order violated his statutory, regulatory, and constitutional rights, vacate the expedited removal order, order that he be provided an additional meaningful opportunity to apply for asylum and other relief from removal, and award him reasonable costs and attorney's fees. (Doc. 1).
Respondents filed a motion to dismiss or alternatively to transfer the matter. (Doc. 18). On June 26, 2020, Respondents filed a notice of supplemental authority advising the Court of the United States Supreme Court's June 25, 2020, decision in Thuraissigiam II. (Doc. 21). Respondents argue that in reversing the Ninth Circuit, the Supreme Court confirmed the constitutionality of jurisdiction stripping provisions of relevant federal statutes related to expedited removal procedures, therefore divesting courts of jurisdiction over these types of cases. (Id.)
II. The R&R
Magistrate Judge Bibles determined that this Court does not have subject matter jurisdiction over Petitioner's claims, and they are therefore barred. (Doc. 30). The R&R recommends that the Petition be denied and the case dismissed. (Id.)
The R&R discussed other grounds by which to grant the relief requested by Respondents, including transferring venue. Because the Court finds that it does not have subject matter jurisdiction, it will not discuss these alternative grounds.
A. Standard of Review
1234"A district judge may reconsider a magistrate's order in a pretrial matter if that order is ‘clearly erroneous or contrary to law.’ " Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002) (quoting 28 U.S.C. § 636(b)(1)(A) ); See also Grimes v. City & County of S.F., 951 F.2d 236, 240 (9th Cir. 1991) ("The district court shall defer to the magistrate's orders unless they are clearly erroneous or contrary to law.") (citing Fed. R.Civ. P. 72(b) ). " ‘The clearly erroneous standard applies to the magistrate judge's factual findings while the contrary to law standard applies to the magistrate judge's legal conclusions, which are reviewed de novo.’ " Lovell v. United Airlines, Inc., 728 F. Supp. 2d 1096, 1100 (D. Haw. 2010) (quoting Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007) ). Under the "clearly erroneous" standard, " ‘a reviewing court must ask whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’ " In re Optical Disk Drive Antitrust Litigation, 801 F.3d 1072, 1076 (9th Cir. 2015) (internal quotes omitted); accord. Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). "A decision is contrary to law if it applies an incorrect legal standard or fails to consider an element of the applicable standard." Lovell, 728 F. Supp. at 1101 (internal quotations omitted).
56 Moreover, in every case, it is presumed that a case is outside the jurisdiction of the federal courts unless it is proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court is obligated to determine sua sponte whether it has subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
B. Expedited Removal
Congress authorized the Department of Homeland Security to summarily remove inadmissible aliens who arrived at or illegally crossed the border. This practice has come to be known as "expedited removal." 8 U.S.C. § 1225(b)(1). Under this removal mechanism, certain aliens who lack valid entry documentation or make material misrepresentations are "order[ed] ... removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under [8 U.S.C. § 1158 ] or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i) ; see id. § 1182(a)(6)(C), (a)(7).
When an arriving alien indicates a desire to apply for asylum, the inspecting officer must "refer the alien for" an interview. Id. At the interview, an asylum officer assesses the degree of credible fear, "taking into account the credibility of the statements made by the alien in support of the alien's claim." Id. § 1225(b)(1)(B)(v). If an asylum officer concludes that an alien has a credible fear, the officer refers the alien to full removal proceedings under 8 U.S.C. § 1229(a). If the asylum officer determines that the alien lacks a credible fear, the alien may seek review before an immigration judge. Id. § 1225(b)(1)(B)(iii)(I), (III). When an immigration judge disagrees with the asylum officer and concludes the alien has established a credible fear, the asylum officer's decision is vacated. 8 C.F.R. § 1003.42(f). Where an immigration judge finds the alien lacks a credible fear, the alien is "removed from the United States without further hearing or review." 8 U.S.C. § 1225(b)(1)(B)(iii)(I). Crucially, the INA precludes federal court review of credible-fear determinations. 8 U.S.C. §§ 1225(b)(1)(C) ; 1252(a)(2)(A)(iii); 1252(e)(2).
C. Federal Court Review
7 In general, courts are authorized to grant a writ of habeas corpus under 28 U.S.C. § 2241 where a petitioner is "in custody under or by color of the authority of the United States ... in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(1), (3). However, except as provided under 8 U.S.C. § 1252(e), courts lack jurisdiction to review "any individual determination or ... claim arising from or relating to the implementation or operation of an order of [expedited] removal." 8 U.S.C. § 1252(a)(2)(A)(i). Under § 1252(e), "review of expedited removal orders in a habeas corpus petition ... [is] limited to an inquiry over whether: (A) the petitioner is an alien, (B) whether the petitioner was ordered removed under § 1225(b)(1), and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, or is a refugee or has been granted non-terminated asylum." Galindo-Romero v. Holder, 640 F.3d 873, 875 n.1 (9th Cir. 2011). A court may not review a credible fear determination underlying an expedited removal order, § 1252(a)(2)(A)(iii), or review whether the petitioner "is actually inadmissible or entitled to any relief from removal," § 1252(e)(5).
D. Analysis
Petitioner seeks review of the credible fear proceedings and negative credible fear determination that resulted in the order for his expedited removal. (Doc. 1). The R&R recommends dismissing the Petition on the basis that the review sought is barred pursuant to the jurisdiction stripping provisions in 8 U.S.C. §§ 1252(a)(2)(A) and (e)(2), and based on the Supreme Court decision in Thuraissigiam. (Doc. 30).
Petitioner argues that "the expedited removal process as applied to Petitioner was violative of the procedural due process Congress has given him by statute and was arbitrary and capricious." (Doc. 31 at 6). Thus, he contends that Thuraissigiam II does not apply because the asylum officer and Immigration Judge did not properly apply federal regulations, resulting in his unlawful detention. (Id.) What Petitioner fails to provide is any legal basis to explain how the jurisdiction stripping provisions contained in Sections 1252(a)(2)(A)(iii) and 1252(e)(2) provide this Court jurisdiction over his claims.
In his Objection to the R&R, Petitioner asserts for the first time that he is seeking immediate release from custody. On the one hand, Petitioner argues in the Objection that "put simply: it's not a petition for a writ of habeas if it requests anything other than the detainee's release," while on the same page arguing that "the fact that Petitioner seeks relief beyond immediate release does not deprive the court of subject matter jurisdiction." (Doc. 31 at 4). Notably absent from his Petition, however, is any request for a simple release that he now claims to seek. The Petition itself establishes that, like the petitioner in Thuraissigiam , Petitioner "does not want a ‘simple release’ but, ultimately, the opportunity to remain lawfully in the United States." Thuraissigiam , 140 S. Ct. at 1971. As Petitioner does not request this relief, the Court will not consider whether it would have had jurisdiction to consider the issue had it been requested in the Petition.
In order to resolve this dispute, the Court must analyze the Supreme Court's recent decision in Thuraissigiam II, which was decided during the pendency of this matter. There, the Supreme Court ruled that the limited review afforded by 8 U.S.C. § 1252(e)(2) does not violate the Suspension Clause or Due Process Clause as applied to an alien, like Petitioner, who was apprehended after crossing the border illegally and placed in expedited removal proceedings. Thuraissigiam, 140 S. Ct. at 1983. In Thuraissigiam I, the Ninth Circuit acknowledged that Section 1252(e) did not provide jurisdiction to review the petitioner's claim but nonetheless found that the Suspension Clause provided a petitioner the right to assert "legal challenges to the procedures leading to his expedited removal." Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), rev'd and remanded. sub nom. In reversing the Ninth Circuit, the Supreme Court held that neither the Suspension Clause nor the Due Process Clause provides a petitioner the remedy of judicial review of a credible fear proceeding. Thuraissigiam, 140 S. Ct. at 1983. The Supreme Court clarified that an alien subject to an expedited removal order "has only those rights regarding admission that Congress has provided by statute," those being the three areas enumerated in 8 U.S.C. § 1252(e). Id. The court further noted that Section 1252(a)(2)(A)(i) provides that "no court shall have jurisdiction to review" a "claim arising from or relating to the implementation or operation of an order of [expedited] removal," which extends to the determination that "an alien lacks a credible fear of persecution." Id. at 1966.
The Ninth Circuit also discussed that it and other circuit courts throughout the country consistently denied review to these claims under Section 1252(e). Nonetheless, the Ninth Circuit concluded that Section 1252(e) violated the Suspension Clause. Thuraissigiam v. U.S. Dep't of Homeland Sec. , 917 F.3d 1097 (9th Cir. 2019).
8 Here, Petitioner relies on the Ninth Circuit's now vacated holding in asserting jurisdiction before this Court, stating that "importantly, Petitioner filed this habeas petition on the basis of the Ninth Circuit's decision in Thuraissigiam v. USDHS, published earlier this year." (Doc. 19 at 12). Clearly, this vacated decision no longer provides subject matter jurisdiction over Petitioner's claims. Petitioner seeks review of his credible fear proceedings and the negative determination that resulted in his order of removal. Petitioner's claims do not fall within one of the three limited jurisdictional grounds for challenging an expedited removal order under Section 1252(e) ; he does not contest that he is an alien, or that he was ordered removed, or that he had not already been granted entry as a lawful permanent resident, refugee, or asylee. Therefore, the Court lacks jurisdiction to review "any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal...." 8 U.S.C. § 1252(a)(2)(A)(i).
Petitioner admits as much when stating in his Objection that Thuraissigiam II held "individuals like Thuraissigiam and Petitioner here, who have barely crossed into the U.S. and have done so without permission, are afforded rights to the procedural due process created by Congress only." (Doc. 31 at 5).
Accordingly, as Magistrate Judge Bibles concluded in the R&R, the prohibitions on judicial review contained in §§ 1252(a)(2) and (e)(2), and further cemented in Thuraissigiam II, strip this Court of jurisdiction to review Petitioner's claims. As the Court lacks subject matter jurisdiction to review the Petition, the Court will adopt the R&R and dismiss this matter with prejudice.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 30) is ACCEPTED and ADOPTED as the Order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE.
IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA:
On March 17, 2020 Petitioner Raghav Raghav, through counsel, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody, pursuant to 28 U.S.C. § 2241. (ECF No. 1). On the date he filed his petition Raghav was in the custody of Respondent Shawn Gillis, the Warden of the Adams County Detention Center in Natchez, Mississippi. In his petition Raghav contends, inter alia , that he was denied his right to due process in his expedited removal proceedings.
With the permission of the Court, Respondents filed a motion to dismiss the petition (ECF No. 18), citing Rule 12(b)(3) of the Federal Rules of Civil Procedure. Respondents contend this matter should be dismissed for improper venue or, in the alternative, transferred to the United States District Court for the Southern District of Mississippi. The motion is arguably a dispositive motion and, accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72.2(a)(2) of the Local Rules of Civil Procedure.
I. Background
Raghav is a native and citizen of India, who entered the United States without inspection on or about June 30, 2019, near Calexico, California. (ECF No. 1-2 at 4, 11, 23, 25-26). Raghav was apprehended, determined to be inadmissible, and placed in expedited removal proceedings under § 235(b)(1) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1225(b)(1). (ECF No. 1-2 at 2, 23-27). Raghav expressed a fear of persecution or torture if returned to India, and he was referred for a credible fear determination and transferred to the La Palma Correctional Center in Eloy, Arizona. (ECF No. 1-2 at 5, 26-27).
On August 20, 2019, Raghav appeared before an asylum officer ("AO") for a credible fear interview. (ECF No. 1-2 at 5). The AO found Raghav was generally credible, but also found Raghav failed to establish a credible fear of persecution or torture if removed to India. (ECF No. 1-2 at 4, 8). Raghav requested review by an Immigration Judge pursuant to 8 U.S.C. § 1255(b)(1)(b)(iii)(III) ; the Immigration Judge affirmed the AO's negative credible fear determination and, on August 21, 2019, Raghav was ordered removed from the United States pursuant to § 235(b)(1) of the INA. (ECF No. 1 at 5-6, 9; ECF No. 18 at 2). On September 29, 2019, Raghav was transferred from the Eloy detention facility to the Adams County Detention Center in Natchez, Mississippi. (ECF No. 18-1 at 2).
Raghav's counsel initiated the current case by filing a petition for writ of habeas corpus in the District of Arizona on March 17, 2020, approximately five months after Raghav's transfer to the Adams County Detention Center in Mississippi. (ECF No. 1). Raghav names as respondents: Acting Department of Homeland Security ("DHS") Secretary Chad Wolf, United States Attorney General William Barr, Acting United States Immigration and Customs Enforcement Director Matthew Albence, Acting United States Citizenship and Immigration Services Director Kenneth Cuccinelli, Immigration and Customs Enforcement Phoenix Field Office Director Henry Lucero, and Shawn Gillis, the Warden of the Adams County Detention Center in Natchez, Mississippi. (ECF No. 1 at 3). Respondent Warden Gillis is Raghav's immediate custodian and Gillis resides in the United States District Court for the Southern District of Mississippi. (ECF No. 1 at 5).1
In his first ground for § 2241 relief Raghav asserts he was denied due process because "the Asylum Office[r] arbitrarily and erroneously applied relevant law" in denying his claim for relief from removal in the form of asylum. (ECF No. 1 at 10). Specifically, Raghav argues the AO held him to a heightened burden of proof with regard to his credible fear interview; he contends he has experienced past persecution, there is a significant possibility he will endure future persecution if removed to India, and "the agency failed to consider all evidence of torture, a violation of [the] Convention Against Torture regulation and Ninth Circuit precedent that mandates vacating the decision." (ECF No. 1 at 11-17). Raghav further asserts the denial of asylum violates the Administrative Procedures Act because the challenged decision was arbitrary and capricious. (ECF No. 1 at 17-19). Raghav asks the Court to assume jurisdiction over this matter; issue a writ of habeas corpus; conduct a hearing; declare he is being detained in violation of law because the removal order violated his statutory, regulatory, and constitutional rights; vacate the expedited removal order; order that he be provided "a new, meaningful opportunity to apply for asylum and other relief from removal;" and award him reasonable costs and attorney's fees. (ECF No. 1 at 19-20).
On March 19, 2020, the Court ordered Respondents to answer the petition. (ECF No. 5). In the Order at ECF No. 5 the Court did not address the effect of Raghav's physical location at the time he filed his petition, but observed he had been transferred from Arizona to Mississippi after the Immigration Judge affirmed the AO's decision regarding his claim to asylum. (ECF No. 5 at 2). The Court deferred addressing whether Raghav had named the proper respondents in this matter, noting:
Under the rationale articulated in Armentero, infra , and in the absence of authority addressing who is the proper respondent in immigration habeas corpus proceedings under § 2241, the Court will not dismiss Respondents or the Petition for failure to name a proper respondent at this stage of the proceedings. See
Armentero v. INS , 340 F.3d 1058, 1071-73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper respondents), withdrawn , 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla , 542 U.S. 426, 435 n.8 [124 S.Ct. 2711, 159 L.Ed.2d 513] (2004) (declining to resolve whether the Attorney General is a proper respondent in an immigration habeas corpus petition).
(ECF No. 5 at 2-3 n.3). The Order further stated: "Respondents shall not file a dispositive motion in place of an answer absent leave of Court." (ECF No. 5 at 5).
On May 4, 2020, Respondents filed the pending Motion to Dismiss (ECF No. 18), with the leave of the Court (ECF No. 17). Respondents contend the District of Arizona does not have territorial jurisdiction to decide Raghav's claims because he was not detained in the District of Arizona at the time his § 2241 petition was filed. Respondents maintain territorial jurisdiction in a § 2241 matter lies in the district of confinement, citing Rumsfeld v. Padilla , 542 U.S. 426, 443, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). (ECF No. 18 at 4). Respondents also assert venue is proper in the district of confinement, where Raghav's "immediate custodian" resides. (ECF No. 18 at 4-6). Citing Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484, 493-94, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), with regard to the elements necessary for proper venue, Respondents argue:
Because the United States District Court for the Southern District of Mississippi is the only forum with any connection to Petitioner's immediate custodian, the District of Arizona is an improper venue for Petitioner's habeas claims, and the Petition must be dismissed under Fed. R. Civ. P. 12(b)(3) or transferred pursuant to 28 U.S.C. § 1406(a).
(ECF No. 18 at 7).
Raghav contends the district wherein the underlying immigration proceedings took place is the proper venue for a § 2241 action, citing 8 U.S.C. § 1252(b)(2), 8 U.S.C. § 1105a(a)(2), and Trejo-Mejia v. Holder , 593 F.3d 913, 914-15 (9th Cir. 2010). (ECF No. 19 at 3-5). Raghav urges a different reading of Braden than that proffered by Respondents. (ECF No. 19 at 3-5). Raghav argues that Padilla and its "immediate custodian" rule do not apply to removal orders, citing Armentero v. Immigration and Naturalization Service , 340 F.3d 1058, 1071 (9th Cir. 2003), reh'g granted, opinion withdrawn , 382 F.3d 1153 (9th Cir. 2004), opinion after grant of reh'g , 412 F.3d 1088 (9th Cir. 2005). (ECF No. 19 at 5-6). Raghav also contends that transferring jurisdiction over his petition would be a denial of due process because it would deny Raghav his current counsel and, due to the lack of local counsel, effectively deny him legal representation. (ECF No. 19 at 10-11). Raghav further argues:
Moving Petitioners out of this judicial circuit also allows the government to completely control the venue; tellingly, Indian asylum seekers in expedited removal have been transferred in mass [sic] to jurisdictions like the Fifth Circuit, which does not have the same precedent of this Circuit, i.e., Thuraissigiam v. US Dept. of Homeland Sect'y , 917 F.3d 1097, 1097 (9th Cir. 2019) (holding that the district court had jurisdiction pursuant to the Suspension Clause to review Thuraissigiam's claim that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim."), cert. granted (October 18,
2019) (No. 19-161 [––– U.S. ––––, 140 S.Ct. 427, 205 L.Ed.2d 244 (2019)] ).
(ECF No. 19 at 10-11 n.5).2
In reply Respondents emphasize that, pursuant to the "immediate custodian" and "district of confinement" rules, the appropriate venue in this matter is the Southern District of Mississippi. (ECF No. 20 at 2-6). Respondents further argue Raghav's analysis of the statutes and legal opinions which determine the appropriate venue in a § 2241 is incorrect. (ECF No. 20 at 6-8). Respondents also assert Raghav's due process claims regarding legal representation could be resolved by his counsel seeking admission in the United States District Court for the Southern District of Mississippi, and that applying the immediate custodian rule supports the goal of preventing forum shopping, as stated in Padilla . (ECF No. 20 at 7-8).3
II. Change in Governing Law
Regardless of the appropriate venue in this matter, before the Court is the more pressing issue of subject matter jurisdiction. The consideration most likely underpinning Raghav's desire to have his petition heard by a court within the jurisdiction of the Ninth Circuit Court of Appeals was the Ninth Circuit's holding in Thuraissigiam v. United States Department of Homeland Security , 917 F.3d 1097 (9th Cir. 2019), rev'd and remanded , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020) (June 25, 2020), on remand , 967 F.3d 977 (9th Cir. 2020) (August 12, 2020).
A federal statute, i.e., 8 U.S.C. § 1252(e)(2), limits a district court's subject matter jurisdiction over a § 2241 petition to reviewing three basic factual determinations related to an expedited removal order. This section specifically provides:
In determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.
Id. § 1252(e)(5) (emphasis added).
In Thuraissigiam , issued March 7, 2020, ten days before the instant petition was filed, the Ninth Circuit held an alien challenging a credible fear determination could invoke the Suspension Clause against § 1252 ’s bar to the district court's jurisdiction over a petition challenging a credible fear determination; the Ninth Circuit concluded aliens had a right to procedural due process in judicial review of a credible fear determination. On certiorari, the United States Supreme Court held § 1252(e)(2) ’s jurisdiction-stripping provisions did not violate the Suspension Clause and further held that aliens lack a procedural due process right to judicial review of a negative credible-fear determination. See Department of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1982-83, 207 L.Ed.2d 427 (2020). The Supreme Court ordered the case be remanded "with directions that the application for habeas corpus be dismissed." Thuraissigiam v. United States Dep't of Homeland Sec. , 967 F.3d 977, 978 (9th Cir. 2020), on remand from ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020).
The instant petition was filed after the Ninth Circuit issued its initial decision in Thuraissigiam , and pleading on the motion to dismiss was completed prior to the Supreme Court's reversal of that decision. After the Supreme Court's opinion in Thuraissigiam issued the Court ordered Raghav to show cause why this matter should not be dismissed for want of subject matter jurisdiction pursuant to the Supreme Court's opinion in Thuraissigiam . (ECF No. 22). Raghav and Respondents timely filed pleadings in response to the Order to Show Cause. (ECF Nos. 25, 26, 29).
III. Analysis
A. Subject Matter Jurisdiction
The federal district courts are courts of limited jurisdiction. Accordingly, the Court must always first ascertain if it has subject matter jurisdiction over the instant dispute. See, e.g. , Wallace v. Christensen , 802 F.2d 1539, 1543 (9th Cir. 1986) ;4 Lyle v. Sivley , 805 F. Supp. 755, 758 (D. Ariz. 1992). The Court must sua sponte raise the issue of subject matter jurisdiction if not initially presented by any party. See Fed. R. Civ. P. 12(h)(3) ; Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). It is presumed that a cause of action lies outside the Court's limited jurisdiction and, therefore, the burden of establishing subject matter jurisdiction is on the party bringing suit. See Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
Raghav is subject to an expedited removal order issued pursuant to 8 U.S.C. § 1225(b)(1). Federal statutes, i.e., 8 U.S.C. § 1252(e)(2), limits habeas review of an expedited removal order. Subsection § 1252(e)(5) specifically provides "[t]here shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal." Subsection § 1252(a)(2)(A)(i) provides that "[n]otwithstanding" any other "habeas corpus provision," including 28 U.S.C. § 2241, "no court shall have jurisdiction to review" any other "individual determination" or "claim arising from or relating to the implementation or operation of an order of [expedited] removal," except as provided in § 1252(e). Subsections 1252(e)(2)(A)-(C) allow habeas review of only the following three matters: (i) "whether the petitioner is an alien"; (ii) "whether the petitioner was ordered removed"; and (iii) whether the petitioner has already been granted entry as a lawful permanent resident, refugee, or asylee. Notably, the statute specifically provides that the federal courts may not review "the determination" that an alien lacks a credible fear of persecution. See 8 U.S.C. § 1252(a)(2)(A)(iii).
Raghav relied on the Ninth Circuit's Thuraissigiam decision in asserting the Court's subject-matter jurisdiction over this matter, stating in his petition:
Jurisdiction is proper under U.S. Const. art. I, § 9, cl. 2, the Suspension Clause, as Mr. Raghav is presently in custody under color of authority of the United States and such custody is in violation of the U.S. Constitution, laws, or treaties of the United States. Thuraissigiam , 917 F.3d at 1097 (holding that the district court had jurisdiction pursuant to the Suspension Clause to review Thuraissigiam's claim that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim."), cert. granted (October 18, 2019) ( No. 19-161 [––– U.S. ––––, 140 S.Ct. 427, 205 L.Ed.2d 244 (2019)] ).
This action arises under the Constitution of the United States and the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et. seq., as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 1570.
(ECF No. 1 at 2). The petition cites no other basis for subject-matter jurisdiction, presumably because of the jurisdictional bar stated in 8 U.S.C. § 1252.
As noted supra , the Supreme Court reversed the Ninth Circuit's decision in Thuraissigiam on June 25, 2020, concluding that a "major objective" of the Illegal Immigration Reform and Immigrant Responsibility Act was to protect "the Executive's" discretion in alien removal matters from the federal courts, and further concluded that the "power to admit or exclude aliens is a sovereign prerogative[.]" 140 S. Ct. at 1965. The Supreme Court cited precedent that "has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application[.]" Id. at 1982, citing Landon v. Plasencia , 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The Supreme Court further concluded that the rule "adopted by the Ninth Circuit would undermine the ‘sovereign prerogative’ of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location." Id. at 1983 (citation omitted). The Supreme Court held that an asylum seeker with a negative credible fear determination "has only those rights regarding admission that Congress has provided by statute. In [Thuraissigiam's] case, Congress provided the right to a ‘determin[ation]’ whether he had a ‘significant possibility’ of ‘establish[ing] eligibility for asylum,’ and he was given that right." Id. , citing 8 U.S.C. §§ 12255(b)(1)(B)(ii), (v). The Supreme Court further held that, "[b]ecause the Due Process Clause provides nothing more, it does not require review of that determination or how it was made. As applied here, therefore, § 1252(e)(2) does not violate due process." Id. The Supreme Court stated: "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Id. at 1982 (internal quotation marks omitted).
Raghav does not dispute that he is an alien; he was ordered removed by an expedited removal order pursuant to 8 U.S.C. § 1225(b)(1) ; and he is not a legal permanent resident or asylee. Accordingly, the instant petition does not fall within the three narrow categories of permissible habeas challenges enumerated in 8 U.S.C. § 1252(e)(2) and, therefore, the Court does not have subject matter jurisdiction over Raghav's § 2241 petition.
Subsequent to the Supreme Court's decision in Thuraissigiam , in their pleading on the Order to Show Cause, Respondents asserted this matter must be dismissed for want of subject matter jurisdiction, citing Thuraissigiam . (ECF No. 26 at 1-2). Raghav contends Thuraissigiam does not deprive this Court of jurisdiction over his petition because: (1) he seeks immediate release from custody; (2) the Court retains jurisdiction under the Due Process Clause; and (3) the Court retains jurisdiction under the Administrative Procedure Act. (ECF No. 25 at 2-3, 4-5, 5-7).
In an attempt to distinguish this action from Thuraissigiam , Raghav asserts he is seeking immediate release from custody. (ECF No. 25 at 2). However, in his petition's prayer for relief Raghav asks the Court to: issue a writ of habeas corpus; conduct a hearing; declare he is being detained in violation of law because the removal order violated his statutory, regulatory, and constitutional rights; vacate the expedited removal order; order that he be provided "a new, meaningful opportunity to apply for asylum and other relief from removal;" and award him reasonable costs and attorney's fees. (ECF No. 1 at 19-20). The petition itself establishes that, like the petitioner in Thuraissigiam , Raghav "does not want a ‘simple release’ but, ultimately, the opportunity to remain lawfully in the United States." Thuraissigiam , 140 S. Ct. at 1971. As explained by the Supreme Court:
The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Ordering an individual's release from custody may have the side effect of enabling that person to pursue all sorts of opportunities that the law allows. For example, release may enable a qualified surgeon to operate on a patient; a licensed architect may have the opportunity to design a bridge; and a qualified pilot may be able to fly a passenger jet. But a writ of habeas could not be used to compel an applicant to be afforded those opportunities or as a means to obtain a license as a surgeon, architect, or pilot. Similarly, while the release of an alien may give the alien the opportunity to remain in the country if the immigration laws permit, we have no evidence that the writ as it was known in 1789 could be used to require that aliens be permitted to remain in a country other than their own, or as a means to seek that permission.
140 S. Ct. at 1974. Additionally, even if the Court interpreted the petition as requesting only Raghav's release from custody, limiting the petition to this request would not confer subject-matter jurisdiction because Raghav is ultimately seeking the ability to remain lawfully in the United States, including an order requiring a new de novo credible fear and asylum proceeding in which he may seek relief from the existing order of removal.
Raghav's claim that his right to due process of law will be violated absent consideration of his petition is squarely foreclosed by the United States Supreme Court's opinion in Thuraissigiam . Raghav concedes that an Asylum Officer interviewed him to determine whether he had a credible fear of removal. (ECF No. 1 at 9). Accordingly, as in Thuraissigiam , Raghav was given the right to a determination whether he had a credible fear of persecution or torture if removed to India, which would in turn establish a possibility of obtaining eligibility for withholding of removal or deferral of removal. And as the Supreme Court held in Thuraissigiam , "[b]ecause the Due Process Clause provides nothing more, it does not require review of that determination or how it was made." 140 S. Ct. at 1983.
Raghav also asserts the Court has jurisdiction over the matter pursuant to the Administrative Procedures Act ("APA"). However, the APA does not apply "to the extent that ... statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Because 8 U.S.C. § 1252(a)(2)(A) precludes judicial review of claims relating to expedited removal orders except as provided in § 1252(e)(2), the APA does not provide an alternative basis for the Court to exercise subject-matter jurisdiction over this proceeding. See Kumar v. Wolf , 2020 WL 5505418, at *4 (D. Ariz. Aug. 17, 2020) (Report and Recommendation at ECF No. 27 in No. 2:20-cv-00814-SPL-ESW), report and recommendation adopted Sept. 11, 2020; Rodrigues v. McAleenan , 435 F. Supp. 3d 731, 736-37 (N.D. Tex. 2020) ; Mohit v. United States Dep't of Homeland Sec. , 478 F.Supp.3d 1106, 1112-13 (D. Colo. July 14, 2020) (holding the APA does not confer jurisdiction over habeas claims challenging an expedited removal order).
Pursuant to 8 U.S.C. § 1252 and the Supreme Court's decision in Thuraissigiam , the Court does not have subject matter jurisdiction over the subject petition.
B. Venue and Territorial Jurisdiction
Should the Court conclude that it does have subject matter jurisdiction over the instant petition, the motion to dismiss or, in the alternative, to transfer this matter, should be granted. The petition and the motion to dismiss raise questions of venue, territorial jurisdiction, and the proper respondents in a § 2241 action. Attempting to address these issues separately is complicated because the United States Supreme Court has disagreed on the supremacy and interplay of these concepts in the habeas realm, and there is no clear precedent on point by the Ninth Circuit Court of Appeals. The majority, concurring, and dissenting opinions in Padilla , the Supreme Court case most on point, analyze habeas authority based on the proper respondents, territorial and personal jurisdiction, and venue. Justice Kennedy states in his concurring opinion: "In my view, the question of the proper location for a habeas petition is best understood as a question of personal jurisdiction or venue." 542 U.S. at 451-52, 124 S.Ct. 2711. The dissenting opinion (authored by Justice Stevens with the concurrence of Justices Souter, Ginsberg, and Breyer), acknowledges "[a]ll Members of this Court agree that the immediate custodian rule should control in the ordinary case and that habeas petitioners should not be permitted to engage in forum shopping," but also states "the question of the proper forum to determine the legality of Padilla's incarceration is not one of federal subject-matter jurisdiction.... Rather, the question is one of venue." Id. at 458, 463, 124 S.Ct. 2711.
1. The "district of confinement" rule
The Padilla majority observed that, pursuant to § 2241, "[d]istrict courts are limited to granting habeas relief ‘within their respective jurisdictions.’ " 542 U.S. at 442, 124 S.Ct. 2711, quoting 28 U.S.C. § 2241(a). The Padilla majority concluded this requirement allowed a district court to grant relief only in cases where the court has personal jurisdiction over the petitioner's immediate custodian. Id. The Supreme Court observed that when a habeas petitioner challenges the legitimacy of their "present physical confinement," i.e., cases involving "core challenges," "the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Id. at 435, 124 S.Ct. 2711. The Supreme Court found this conclusion mandated by the habeas statutes:
The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is "the person who has custody over [the petitioner]." 28 U.S.C. § 2242 ; see also § 2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained").
Id. at 434, 124 S.Ct. 2711. Moreover, the Padilla court explicitly rejected reliance on long-arm service statutes to obtain the requisite personal jurisdiction over the custodian-respondent, stating: " Braden in no way authorizes district courts to employ long-arm statutes to gain jurisdiction over custodians who are outside of their territorial jurisdiction." Id. at 445, 124 S.Ct. 2711.
These principles have yielded the traditional "district of confinement rule." Id. at 443, 124 S.Ct. 2711. Pursuant to this rule the District of Arizona's habeas jurisdiction is limited to the district's geographical boundaries, because jurisdiction is determined by personal jurisdiction over the respondent (without benefit of long-arm service), and the proper respondent in a habeas action is the warden of the specific facility where the petitioner is detained. "Accordingly, with respect to habeas petitions ‘designed to relieve an individual from oppressive confinement,’ the traditional rule has always been that the Great Writ is ‘issuable only in the district of confinement.’ " Id. at 442, 124 S.Ct. 2711, quoting Carbo v. United States , 364 U.S. 611, 618, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Under this traditional rule, the proper district to hear this case is the United States District Court for the Southern District of Mississippi, i.e. the district of confinement, where the warden of the facility where Raghav was detained when he filed his petition and where he is now detained, the proper respondent, is subject to personal jurisdiction.
Raghav attempts to avoid the results of application of this rule, asserting three arguments: (1) his petition is not a "core" challenge (ECF No. 19 at 7 n.4); (2) rules governing direct review of immigration decisions should apply (ECF No. 19 at 5-9); and (3) due process concerns require a different result (ECF No. 19 at 10-11). As discussed infra , none of these arguments justifies a departure from the district-of-confinement rule.5
The Padilla court recognized that the custody-of-confinement rule is only a "traditional rule" and that other rules apply in other cases, i.e., those not challenging a habeas petitioner's current physical custody (i.e. "non-core" challenges). The example cited in Padilla and relied upon by Raghav is presented in Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484, 493-94, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The petitioner in Braden , a § 2254 matter, was incarcerated in Alabama and challenged a detainer issued by the State of Kentucky. The Supreme Court held that, in such an instance, the habeas petition was properly filed in Kentucky (where the "warden" over the detainer was located) rather than in Alabama, where the petitioner was then confined. However, the Braden court acknowledged:
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.... Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian.
Id. at 494-95, 93 S.Ct. 1123 (internal citations omitted). This matter is clearly distinguishable from Braden because there is no separate sovereign.
2. Absence of binding precedent
While recognizing that the federal Circuit Courts of Appeal have struggled to resolve habeas jurisdiction issues in immigration cases, the Padilla majority specifically declined to address the issue, instead concluding that jurisdiction was found in the venue where the district court had jurisdiction over the proper respondent. 542 U.S. at 435 n.8, 442, 124 S.Ct. 2711. The only Circuit Courts of Appeal that have addressed this issue after Padilla concluded the warden of the petitioner's detention facility, rather than some other official, is the proper respondent in an immigration habeas case. See Kholyavskiy v. Achim , 443 F.3d 946, 949-54 (7th Cir. 2006) ; Gonzales-Corrales v. I.C.E. , 522 F. App'x 619, 622 (11th Cir. 2013). Cf. Ali v. Brott , 770 F. App'x 298, 299 n.1 (8th Cir. 2019) (noting the district court's dismissal of respondents other than the custodial county sheriff, based on Padilla ).
The parties do not cite to any post- Padilla Ninth Circuit authority clearly addressing the proper respondent in the immigration context, and the undersigned has found none. See Saravia v. Sessions , 280 F. Supp. 3d 1168, 1184 (N.D. Cal. 2017), aff'd on other grounds sub nom. Saravia for A.H. v. Sessions , 905 F.3d 1137 (9th Cir. 2018) (" Padilla refused to decide who the proper respondent is in the immigration detention context, and no controlling authority since has resolved the issue."). See also Singh v. Barr, 2020 WL 2512410, at *4 (N.D. Cal. May 15, 2020) (collecting cases and acknowledging the lower courts have reached different conclusions). Indeed, the only post- Padilla word from the Ninth Circuit is the dissent to the ultimate dismissal in Armentero , wherein Judge Berzon considered Padilla and concluded, in his dissent from the panel decision, that "[t]he most junior official who can release [the petitioner]," was the proper respondent, rather than the warden or the Immigration and Naturalization Service "Field Office Director." 412 F.3d 1088, 1100 (9th Cir. 2005).
Moreover, Padilla declined to address whether the immediate custodian rule applies "to a habeas petition filed by an alien detained pending deportation," see Padilla , 542 U.S. at 435 n.8, 124 S. Ct. 2711, and there is no conclusive Ninth Circuit authority on the issue. Courts within this district have expressed various views regarding the proper respondent in immigration habeas cases, and their analysis generally turns on determining which individual(s) has the authority or power to grant the relief requested by the petitioner. See, e.g. , Saravia , 280 F. Supp. 3d at 1185 (concluding that for individuals being held at a non-federal facility pursuant to a contract with the federal government, the petition should "name the federal official most directly responsible for overseeing that contract facility when seeking a habeas writ."); Carmona v. Aitken , [ ] 2015 WL 1737839, at *4 (N.D. Cal. Apr. 10, 2015) (holding that the U.S. Attorney General and the Secretary of the DHS are proper respondents because they are officials "with the actual authority to effectuate the prisoner's release" and "because of their far-reaching authority to administer detention and removal proceedings of noncitizens."). More recently, in a similar habeas matter challenging the petitioner's conditions of confinement in view of COVID-19, another court in this district concluded that a proper respondent is the San Francisco ICE Field Office Director, because that individual "is both within this district and vested with discretionary authority to release Petitioner." Doe v. Barr , [ ] 2020 WL 1984266, at *5 (N.D. Cal. Apr. 27, 2020).
Singh , 2020 WL 2512410, at *4.
Armentero v. Immigration & Naturalization Serv. , 340 F.3d 1058, 1071-73 (9th Cir. 2003) (finding the DHS Secretary and the Attorney General were proper respondents), withdrawn by 382 F.3d 1153 (9th Cir. 2004).
Raghav relies on Armentero to support his claim regarding venue. Citing Braden , the Armentero court reasoned:
... neither Supreme Court case law nor our own precedent states a clear path toward identifying the proper respondent or respondents in an immigration detainee's habeas petition. What we do glean from these cases and others is that, while a petitioner's immediate physical custodian is typically a proper respondent in traditional habeas petitions, the statutory custodian requirement of 28 U.S.C. § 2241 is sufficiently flexible to permit the naming of respondents who are not immediate physical custodians if practicality, efficiency, and the interests of justice so demand.
340 F.3d at 1068. Based on practical considerations unique to the immigration context (e.g. the routine interstate transfer of aliens between various state and local detention facilities, which have no control over immigration decisions), the Armentero panel concluded: "the most appropriate respondent to petitions brought by immigration detainees is the individual in charge of the national government agency under whose auspices the alien is detained," which at that time was determined to be the Attorney General and the Secretary of the Department of Homeland Security. Id. at 1073.
Armentero relied in part upon the assertion that its rule avoided the risk that transfers or dismissals of habeas petitions would be required as detainees were transferred from jurisdiction to jurisdiction. See 340 F.3d at 1069. But this ignores the rule of Ex parte Endo , 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944), that jurisdiction is determined at the time of filing and subsequent changes in custody cannot defeat that jurisdiction. See Padilla , 542 U.S. at 440, 124 S.Ct. 2711.
But Armentero does not resolve this case for three reasons. First, Armentero has been withdrawn and thus has no precedential value: "It may not be cited as precedent by or to this court or any district court of the Ninth Circuit." Armentero v. Immigration & Naturalization Serv. , 382 F.3d 1153, 1153 (9th Cir. 2004). Second, any persuasive value in Armentero is limited by the fact that it was issued before Padilla . And, although Padilla declined to apply its precepts to the immigration concept, it did reach conclusions antithetical to the expediencies relied on in Armentero .
Moreover, there is no pre- Padilla / Armentero authority that resolves the issue. See Armentero , 340 F.3d at 1068 (noting lack of clear precedent). Raghav argues to the contrary, citing Ortiz-Sandoval v. Gomez , 81 F.3d 891, 896 (9th Cir. 1996), Casas-Castrillon v. Department of Homeland Security , 535 F.3d 942, 946 (9th Cir. 2008), and Carmona v. Aitken , 2015 WL 1737839, at *4 (N.D. Cal. Apr. 10, 2015). (ECF No. 19 at 7). Ortiz-Sandoval dealt specifically with habeas petitions challenging state convictions, and it is therefore not squarely on point. Casas-Castrillon dealt with an immigration habeas petition naming the Secretary of the Department of Homeland Security and the Attorney General as respondents, but the court did not address any question concerning the appropriate respondents or associated concerns over the territorial jurisdiction of the court, but simply opined as to who had the authority to detain the petitioner. The opinion in Carmona did explicitly apply Padilla in an immigration context, but the opinion is unpublished and from a trial court, and it is therefore not binding. Moreover, the undersigned does not find Carmona persuasive.
Moreover, Ortiz-Sandoval relied on the assertion there was no "concern for wide ranging forum shopping," and thus saw no distinction between the warden of a specific prison and the state's Director of Corrections. See 81 F.3d at 895.
3. The "non-core" exception does not apply
Raghav argues that his immigration habeas petition is not a "core" challenge, and thus not subject to the traditional rule. (ECF No. 19 at 7-8 & n.4). But a "core" challenge, as defined in Padilla , is limited to the nature of the custody and not the nature of the basis for the custody. Padilla equated "core challenges" with "habeas challenges to present physical confinement," 542 U.S. at 435, 443-45, 124 S.Ct. 2711, and concluded: "The plain language of the habeas statute thus confirms the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement." Id. at 443, 124 S.Ct. 2711. Braden did not present a "core" challenge because the petitioner did not challenge his present physical custody, but rather his future custody under a detainer. Padilla identified no other circumstance as being a non-core habeas matter and rejected calls to rely on principles of agency, id. at 445-47, 124 S.Ct. 2711 (distinguishing Strait v. Laird , 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972) ), or "exceptional, special, or unusual cases, id. at 448-49, 124 S.Ct. 2711, or some purported misconduct in transferring the petitioner. Id.
Raghav, citing to a case from the Eastern District of Michigan and an unpublished decision from the Southern District of New York, suggests in a footnote that Padilla should be read as applying only to those cases where release from custody is the only relief being sought, and asserts "[s]everal courts have also observed that a challenge to a deportation order is not merely a challenge to ‘present physical confinement" and, thus, physical confinement is not the ‘core’ challenge." (ECF No. 19 at 7 n.4). However, as discussed infra , this argument misunderstands the nature of habeas relief, and as discussed supra , Raghav seeks relief in addition to simply release from his present physical confinement.
4. Bases for deviation from the traditional rule
a. Exceptions are possible
The next question is whether Padilla can logically be understood as leaving room for an exception to the district-of-confinement rule in immigration cases. In general, the federal courts have been protective of flexibility in habeas proceedings. "Our recent decisions have reasoned from the premise that habeas corpus is not a static, narrow, formalistic remedy, but one which must retain the ability to cut through barriers of form and procedural mazes." Hensley v. Municipal Ct., San Jose Milpitas Judicial Dist. , 411 U.S. 345, 349-50, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (internal quotations and citations omitted). "The very nature of the writ demands that it be administered with the initiative and flexibility essential to [ensure] that miscarriages of justice within its reach are surfaced and corrected." Id. at 350, 93 S.Ct. 1571. "Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." Id. However, this flexibility does not mean that the rules governing the writ do not have bounds. Indeed, Hensley insisted upon enforcement of the custody requirement, while at the same time recognizing that release on parole or bail or even the detainee's own recognizance met that requirement, because of the attendant restrictions on freedom from such releases. Id. at 353, 93 S.Ct. 1571.
Therefore, arguably, when habeas doctrine is applied to a unique circumstance, like Braden , where the petitioner did not challenge his present physical custody, the traditional rule may not apply when determining the territorial jurisdiction. But apart from the practical concerns addressed infra , there is nothing unique about the immigration context. Raghav is in the custody of someone, and that someone must be subject to the territorial jurisdiction of the court hearing the habeas petition.
b. Applicability of appellate venue statutes
Raghav argues that traditional venue considerations control venue in this matter, and that statutes governing judicial appeals from immigration proceedings establish Arizona (where the asylum proceedings occurred) as the proper venue. (ECF No. 19 at 3-5, citing 8 U.S.C. § 1252(b)(2) and 8 U.S.C. § 1105a(a)(2) ). Raghav cites Trejo-Mejia v. Holder , 593 F.3d 913 (9th Cir. 2010), a case relying on § 1252(b)(2) in a judicial appeal from immigration decisions. (ECF No. 19 at 3). However, the instant matter does not involve a judicial appeal. Moreover, the majority in Padilla rejected the contention that the district-of-confinement rule was merely a matter of venue, and instead cast it as a matter of identifying the proper respondent and the territorial jurisdiction of the habeas court. See 542 U.S. at 435-36, 124 S.Ct. 2711.
Additionally, Raghav fails to show that Arizona is a more convenient venue than Mississippi. He points to the discussion in Braden about the availability of records and witnesses, and argues all the relevant administrative proceedings occurred in Arizona. However, in the era of electronic federal court filing, FedEx, portable document format files (".pdf"), and email, there is little practical difference between deciding this case in Arizona or Mississippi, because the matter will be decided on the record rather than any form of testimonial evidence. Moreover, although the likelihood of an evidentiary hearing is remote, having Raghav (as a detainee) appear in Arizona is likely to be far more inconvenient than having the relevant immigration authorities appear in Mississippi.
Raghav also argues for venue based on the expertise of the District of Arizona in applying Ninth Circuit precedent, (ECF No. 19 at 5), pointing to Braden ’s reliance on the Kentucky federal judge's familiarity with Kentucky law and practices in resolving the issue of venue in that matter. But Raghav cites to no authority to show that a Mississippi federal judge must apply Ninth Circuit or Arizona law in evaluating the propriety of his custody.
c. Resolution of the question at issue in the absence of clear precedent
Raghav asserts "no less than five decisions in the District of Arizona have reached the conclusion Petitioner advances: application of the immediate custodian rule is not necessary and dismissal on the ground of improper respondents and/or lack of jurisdiction is inappropriate." (ECF No. 19 at 7). He contends "[n]umerous other district courts within the Ninth Circuit have reached similar conclusions." (ECF No. 19 at 9-10). Raghav argues:
Thus, while the Ninth Circuit may not have issued binding authority on the
issue, a definite majority of published and unpublished district court opinions addressing the issue within the Ninth Circuit (and within the District of Arizona) have held that a habeas petition filed in the immigration context need not comply with the immediate custodian rule because the authority to release the prisoner lies elsewhere.
Because the Ninth Circuit does not apply a bright line "immediate custodian rule," and because policy consideration support venue in the District of Arizona, this Court should find venue is proper here.
(ECF No. 17 at 10) (emphasis in original). In support of his argument Raghav cites:
... Aduord v. Lynch , No. CV-15-01237-PHX-NVW (BSB), 2015 WL 7306678, *2-3 (D. Ariz. Oct. 26, 2015) ("in the absence of any Ninth Circuit authority precluding Petitioner from naming the Attorney General and the Secretary of Homeland Security as respondents in this matter, the Court will not recommend dismissal of the Petition on that basis."); Mendoza-Garcia v. Sessions , No. CV 18-02260-PHXDJH (JZB), 2018 WL 6181665, *1 n. 1 (D. Ariz. Aug. 2, 2018) ("In the absence of any Ninth Circuit authority precluding Petitioner from naming the Attorney General, the Secretary of Homeland Security, or the ICE Phoenix Field Office Director as Respondents, the Court will require these Respondents to answer the Petition and will not dismiss the Petition for failure to name a proper respondent at this stage of the proceedings."); Aldana v. Sessions , No. CV 18-01419-PHX-DJH (JZB), 2018 WL 3774189, *1 n. 1 (D. Ariz. May 9, 2018) ("In the absence of any Ninth Circuit authority precluding Petitioner from naming the Attorney General, the Secretary of Homeland Security, or the ICE Phoenix Field Office Director as Respondents, the Court will require these Respondents to answer the Petition and will not dismiss the Petition for failure to name a proper respondent at this stage of the proceedings."); Bracamontes-Reyes v. Sessions , No. CV 18-01301-PHX-DLR (JZB), 2018 WL 4676157, *2 (D. Ariz. May 4, 2018) ("In the absence of any Ninth Circuit authority precluding Petitioner from naming the Attorney General, the Secretary of Homeland Security, or the ICE Phoenix Field Office Director as Respondents, the Court will require these Respondents to answer the Petition and will not dismiss the Petition for failure to name a proper respondent at this stage of the proceedings."); Fuentes-Barnett v. Sessions , No. CV 17-00858-PHX-DGC (JZB), 2017 WL 1197132, *2 (D. Ariz. March 31, 2017) ("In the absence of any Ninth Circuit authority precluding Petitioner from naming the Attorney General, the Secretary of Homeland Security, or the ICE Phoenix Field Office Director as Respondents, the Court will require these Respondents to answer the Petition and will not dismiss the Petition for failure to name a proper respondent at this stage of the proceedings.") In four of these matters, the Court recognized that not only are the Attorney General and Secretary of Homeland Security proper respondents, but so is the Field Office Director of the ICE office that conducted the Reasonable Fear Interview. Mendoza-Garcia , 2018 WL 6181665, at *1 n.1 ; Aldana , 2018 WL 3774189, at *1 n.1 ; Bracamontes-Reyes , 2018 WL 4676157, at *2 ; Fuentes-Barnett , 2017 WL 1197132, at *2.
(ECF No. 19 at 7-9).
Respondents reply to this argument as follows:
Petitioner also cites to four district court initial screening orders and one Report and Recommendation in support of the proposition that dismissal on the ground of having named an improper respondent is inappropriate. (See Doc. 19 at 7-8.) However, none of these cases dealt with a challenge to the proper venue wherein the alien filed a petition while confined in a different judicial district. Indeed, in each of those cases, the petitioner sought a bond hearing to be held in the district where the alien was actually confined. These cases are inapposite, particularly because Respondents have not sought dismissal for failure to name a proper respondent.
(ECF No. 20 at 5). Respondents also argue:
Moreover, Petitioner fails to rebut Respondents’ argument that the traditional venue factors relevant here weigh against finding venue proper in the District of Arizona. As noted in Respondents’ Motion to Dismiss, Petitioner's immigration records are not located in Arizona, as those records followed him to the Adams County Detention Center; Respondent Gillis does not have sufficient minimal contacts to Arizona so as to subject him to this Court's jurisdiction; Respondents Wolf, Barr, Albence, Cuccinelli and the New Orleans Field Office Director reside outside of this judicial district; Petitioner resides within the Southern District of Mississippi; and should any relief be granted to Petitioner, any further immigration proceedings would necessarily occur in Mississippi, where he is detained.
(ECF No. 20 at 7).
As noted by Respondent, the cases cited by Raghav are not on point because they do not involve the appropriate venue for a § 2241 petition in a matter presenting the same factual background and procedural posture as the instant matter. The undersigned also notes that habeas, by its very nature, is not a means of review of judicial or administrative proceedings, but a challenge to custody. It is for this reason that Raghav's reliance on case law on the proper forum for such review is inapposite. Instead, habeas is focused on determining the propriety of the petitioner's custody. "[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). "[The great writ's] province, shaped to guarantee the most fundamental of all rights, is to provide an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person." Carafas v. LaVallee , 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). It is for this reason that being in custody is a prerequisite to bringing a habeas petition. See Hensley , 411 U.S. at 351, 93 S.Ct. 1571 ("The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.").
In the end, the ultimate relief in every habeas corpus matter is, by definition, to "deliver the body." "Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner." Fay v. Noia , 372 U.S. 391, 430-31, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), overruled on other grounds by Wainwright v. Sykes , 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and abrogated on other grounds by Coleman v. Thompson , 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Warden Gillis, just as any other warden with physical custody, can provide that relief from custody. While, in the criminal context, the habeas court may condition release on other relief, i.e. retrial, etc., the habeas court cannot simply function as an appellate court and rewrite the decisions in the case. Similarly, a hearing this case might, for example, condition release on reopening the asylum procedures.
It has been suggested that wardens delivering persons in such instance would be acting in violation of law unless authorized by their principal. But such arguments ignore the co-equal nature of the judicial branch, and its power to resolve the legal validity of detention. Thus, focusing on the alternative remedies ignores the unique nature of the habeas remedy and renders it merely a substitute for other forms of judicial review.
5. Raghav's representation by counsel
Raghav asserts the transfer of this matter "amounts to a deprivation of his Constitutional right to due process and his statutory right to counsel of his own choosing, as it serves only to frustrate counsel's ability to effectively represent him," citing concerns in Armentero about limited availability of counsel (particularly in rural areas) where detention facilities are located, and restrictive pro hac vice rules. (ECF No. 19 at 11-12, quoting Armentero , 340 F.3d at 1069 ).
Padilla rejected the contention that such case-specific concerns justify varying from the district-of-confinement rule, and expressed concern that if such matters justified exceptions "district courts would be consigned to making ad hoc determinations as to whether the circumstances of a given case are ‘exceptional,’ ‘special,’ or ‘unusual’ enough to require departure from the jurisdictional rules this Court has consistently applied. We do not think Congress intended such a result." 542 U.S. at 449, 124 S.Ct. 2711.
6. The issue of forum shopping
Raghav's counsel's primary concern appears to be that transferring this matter will result in the merits of the petition being determined by application of the law of the Fifth Circuit Court of Appeals, rather than Ninth Circuit. (ECF No. 19 at 10-11 & n.5). In a footnote, counsel gets to what may be the real heart of the matter, arguing:
Moving Petitioners out of this judicial circuit also allows the government to completely control the venue; tellingly Indian asylum seekers in expedited removal have been transferred [en masse] to jurisdictions like the Fifth Circuit, which does not have the same precedent of this Circuit, i.e., Thuraissigiam v. US Dept. of Homeland Sect'y, 917 F.3d 1097, 1097 (9th Cir. 2019) (holding that the district court had jurisdiction pursuant to the Suspension Clause to review Thuraissigiam's claim that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim."), cert. granted (October 18, 2019) ( No. 19-161 [––– U.S. ––––, 140 S.Ct. 427, 205 L.Ed.2d 244 (2019)] ).
(ECF No. 19 at 10-11 n.5). Raghav suggests that the Government is forum shopping by shipping immigration detainees to detention facilities in favorable circuits. Respondents respond with the counterargument that Raghav is the one forum shopping.
Padilla considered and was concerned about "forum shopping by habeas petitioners." 542 U.S. at 447, 124 S.Ct. 2711. The majority decision did not, however, address the reverse argument, although Justice Stevens’ dissent plainly raised the specter that the Government was engaging in forum shopping by relocating the petitioner. Id. at 463-64, 124 S.Ct. 2711. The concerns regarding forum shopping, however, are not to prevent parties from considering the law of various forums in deciding actions to be taken; rather, it is concern over parties taking actions in the initiation or course of litigation to obtain advantage by shifting jurisdiction from its natural locale to another. Id. at 447, 124 S.Ct. 2711 (when petitioners name "a high-level supervisory official as respondent and then sue that person wherever he is amenable to long-arm jurisdiction"); Ferens v. John Deere Co. , 494 U.S. 516, 527, 110 S.Ct. 1274 (1990) (describing forum shopping as "obtaining a more favorable law by selecting a forum through a transfer of venue" in diversity cases). See also Forum Shopping Reconsidered , 103 HARV. L. REV. 1677 (May 1990), at 1677 & n.1 ("Forum shopping has been defined as a litigant's attempt ‘to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict,’ " quoting Black's Law Dictionary 590 (5th ed. 1979)). Compare Allstate Ins. Co. v. Hague , 449 U.S. 302, 319, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981) (finding sufficient contact with Minnesota to justify application of its law where there was "no suggestion that Mrs. Hague moved to Minnesota in anticipation of this litigation or for the purpose of finding a legal climate especially hospitable to her claim.").
The instant habeas petition was not filed until more than five months after Raghav was transferred from Arizona to Mississippi and, accordingly, there is no clear indication that the Government was expecting a habeas petition when Raghav was transferred. Nonetheless, the Government's decision to transfer and choice of locales may have been driven by a desire to benefit from more desirable circuit law; however, that does not render such action "forum shopping." Furthermore, as the Supreme Court has now issued an opinion in Thuraissigiam , reversing the Ninth Circuit's opinion and issuing a decision binding on both the Ninth and the Fifth Circuit Courts of Appeal, Raghav's argument that transfer of this matter will "deprive" him of any benefit to the case being controlled by Ninth Circuit precedent appears to be moot.
Based on the foregoing, the undersigned concludes that the district-of-confinement rule applies and jurisdiction over the petition lies in the Southern District of Mississippi, where Warden Gillis may be served without resort to long-arm service, rather than this district.
IV. Conclusion
Pursuant to the holding in Thuraissigiam , the Court is without subject matter jurisdiction to consider the instant petition for relief pursuant to § 2241. Additionally, if the Court concludes there is subject matter jurisdiction over the petition, the district-of-confinement rule applies and territorial jurisdiction over the petition and venue properly lies in the Southern District of Mississippi, where Warden Gillis may be served without resort to long-arm service, rather than this district.
V. Appropriate Relief
If the Court should reject the recommendation to dismiss this matter for want of subject matter jurisdiction, but agrees that venue is proper in the Southern District of Mississippi, dismissal or transfer of venue would be under 28 U.S.C. § 1406(a), which provides: "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." In Goldlawr, Inc. v. Heiman , 369 U.S. 463, 466, 82 S.Ct. 913 (1962), the Supreme Court held that a defect in venue could be solved by transfer under this provision "whether the court in which it was filed had personal jurisdiction over the defendants or not." Additionally, with regard to jurisdiction, § 1631 provides that if a district court "finds that there is a want of jurisdiction," the court "shall, if it is in the interest of justice, transfer such action or appeal to any other such court ... in which the action or appeal could have been brought at the time it was filed or noticed." Thus, whether Padilla is read as creating a rule of subject matter jurisdiction, personal jurisdiction, or venue, it is within the authority of this Court to transfer rather than dismiss. In both instances, the standard for transfer is the same: when the transfer would be "in the interest of justice." 28 U.S.C. § 1406(a) ; 28 U.S.C. § 1631(a). A transfer of this matter would be in the interest of justice, as it will save time and resources invested to date in filing, briefing, and (at least arguably) service. Accordingly, whether under § 1406(a) or § 1631, transfer is the appropriate result.
IT IS THEREFORE RECOMMENDED that this matter be dismissed for want of subject matter jurisdiction, and the pending motion to dismiss (ECF No. 18) be denied as moot .
Alternatively ,
IT IS RECOMMENDED that Respondents’ Motion to Dismiss/Transfer (ECF No. 18) be granted , and this matter and the Petition for Writ of Habeas Corpus (ECF No. 1) be transferred to the United States District Court for the Southern District of Mississippi.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna–Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.