Summary
transferring habeas petition to district of confinement under section 1631
Summary of this case from Persaud v. Bureau of Immigration Customs EnforcementOpinion
CV. 04-768-PA.
July 12, 2004
ORDER
Petitioner Carlos Ruben Ceh Tenrreiro brings this petition for a writ of habeas corpus under 28 U.S.C. § 2241. I granted the petition and ordered that respondents release petitioner on reasonable conditions.
Respondents now move to reconsider based on Rumsfeld v. Padilla, ___ S.Ct. ___, 2004 WL 1432135 (June 28, 2004), which was issued after this court's decision. I grant respondents' motion to reconsider, vacate this court's prior opinion and order granting the petition, and transfer the petition to the District Court for the Western District of Washington.
BACKGROUND
The Bureau of Immigration and Customs Enforcement (BICE) took petitioner into custody in Oregon on May 20, 2004. Within a few days, BICE transferred petitioner to a recently opened, privately run detention center in Tacoma, Washington. BICE began removal proceedings against petitioner in immigration court in the Western District of Washington.
Petitioner's attorney filed the petition in this court on June 7, 2004. Petitioner named as respondents John Ashcroft, Attorney General, and Tom Ridge, Secretary of the Department of Homeland Security. At the hearing on June 10, 2004, I granted the petition. I signed the opinion on June 14, 2004, and the opinion was filed on June 16, 2004.
The Court issued Padilla on June 28, 2004. Respondents filed their motion to reconsider later that day.
DISCUSSION
I. Petitioner Must Name Immediate Custodian as the Respondent
In ruling that jurisdiction and venue were proper, I followed then-governing Ninth Circuit precedent and held that the Attorney General and the Secretary of Department of Homeland Security were the correct respondents. See Armentero v. INS, 340 F.3d 1058, 1073 (9th Cir. 2003) ("we believe it makes sense for immigration habeas petitioners to name the Attorney General in addition to naming the DHS Secretary as respondents in their habeas petitions"). In light of Padilla, I conclude that the proper respondent is petitioner's immediate custodian at the Tacoma detention center when the petition was filed.
II. This Court Lacks Habeas Jurisdiction
If petitioner could comply with Padilla simply by filing an amended petition naming the warden of the Tacoma detention center as a respondent, I would allow petitioner to file an amended petition. Under Padilla, however, I conclude that this court lacks habeas jurisdiction.
In the previous opinion, I concluded that this court had personal jurisdiction over the respondents and that venue was proper in this district. See Gherebi v. Bush, 352 F.3d 1278, 1301-02 (9th Cir. 2003) (California federal district court had personal jurisdiction over the petitioner's nominal custodian, the Secretary of Defense, although the petitioner detained in Cuba), judgment vacated and case remanded, ___ S.Ct. ___, 2004 WL 406483 (June 30, 2004), opinion amended on remand, 2004 WL 1534166 (9th Cir. July 8, 2004) (transferring case to the District Court for the District of Columbia) (Gherebi II). Based on Padilla, I conclude that this court lacks habeas jurisdiction because petitioner should have filed the petition in the place of his confinement. See Padilla, at *12 ("Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement."). Petitioner has not presented any evidence that respondents transferred him to avoid this court's jurisdiction.
Petitioner contends that respondents waived their right to file a motion to reconsider. Petitioner alleges that respondents' counsel stated that respondents would not appeal this court's ruling for petitioner.
The time for filing a notice of appeal had not run when respondents filed the motion to reconsider. Respondents challenged this court's venue and jurisdiction in their initial motion to dismiss. Respondents' motion to reconsider was timely and respondents did not waive their right to seek reconsideration.
III. Transfer Is in the Interest of Justice
In their motion to reconsider, respondents seek dismissal, which was the result in Padilla. In Gherebi II, however, rather than dismiss a habeas petition filed in the wrong district, the Ninth Circuit transferred the case to the court with venue and jurisdiction. Here, I conclude that the interest of justice requires transfer rather than dismissal. See 28 U.S.C. § 1631 (court may transfer case to cure lack of jurisdiction to any court in which the action could have been brought); 28 U.S.C. § 1406(a) (allowing transfer for improper venue if court has subject matter jurisdiction). See also Roman v. Ashcroft, 340 F.3d 314, 328-29 (6th Cir. 2003) (discussing transfer under § 1631 and § 1406(a)).
When petitioner filed the petition, he was detained in the Western District of Washington. The district court there would have had venue and jurisdiction over the petition. I order transfer because "dismissal of the action would only cause [petitioner] to incur the additional expense of filing the same habeas corpus petition" in proper district court. Roman, 340 F.3d at 329.
CONCLUSION
Respondents' motion to reconsider (#12) is granted. The opinion and order (#11) are vacated and the petition for writ of habeas corpus (#1) is transferred to the District Court for the Western District of Washington.