Pen v. Sessions, et. al.

Filing 13

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. The Court orders that this action be TRANSFERRED to the United States District Court for the Western District of Louisiana.(PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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SINN PEN, A027740520,
Petitioner,
v.
JEFF SESSIONS, Attorney
General, et al.,
Respondents.

Civil Action No.
17-10626-NMG

MEMORANDUM AND ORDER
GORTON, J.
For the reasons stated below, the Court orders that this
action be transferred to the United States District Court for the
Western District of Louisiana.
I.

Background
On April 12, 2017, immigration detainee Sinn Pen (“Pen”),

through counsel, filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241.

Pen represents that, just before the

petition was filed, he was transferred from the Suffolk County
House of Correction in Boston, Massachusetts to the Federal
Correctional Institution in Oakdale, Louisiana (“FCI Oakdale”).
Pen seeks immediate release on the ground that he has been in
post-removal confinement for more than six months and his removal
to Cambodia is not reasonably foreseeable.

See Zadvydas v.

Davis, 533 U.S. 678 (2001).
Pen names as respondents Attorney General Jeff Sessions,
Secretary of Homeland Security John F. Kelly, ICE Director Thomas
Homan, and FCI Oakdale Warden J.P. Young.

The petitioner states

that venue is proper because he resides in Lowell, Massachusetts

and his immigration proceedings and initial detention occurred in
Boston, Massachusetts.
The petition has not been served so that the Court may
review the petition to determine whether the respondent should be
required to reply to the petition.
II.

See 28 U.S.C. § 2243.

Discussion
Pen’s confinement at FCI Oakdale raises the question of this

Court’s jurisdiction.

The question of whether the Court has

jurisdiction over this matter breaks down into two subquestions:
(1) who the proper respondent is; and (2) whether the Court has
jurisdiction over him or her.

See Rumsfeld v. Padilla, 542 U.S.

426, 434 (2004).
As to the first question, the proper respondent to a habeas
petition is “the person who has custody over [the petitioner].”
28 U.S.C. § 2242.

In challenges to present physical confinement,

“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.”
U.S. at 435.

Padilla, 542

Although the Supreme Court has not decided whether

the Attorney General is a proper respondent to a habeas petition
filed by an alien pending deportation, see id. at 436, n.8, in
the First Circuit, “an alien who seeks a writ of habeas corpus
contesting the legality of his detention by the INS normally must
name as the respondent his immediate custodian, that is, the
individual having day-to-day control over the facility in which
he is being detained,” Vasquez v. Reno, 233 F.3d 688, 696 (1st
2

Cir. 2000).1

Therefore, the proper respondent is the warden of

the institution where Pen was confined when the petition was
filed.

Because Pen was at FCI Oakdale at the time, the proper

respondent is Warden Young.

The other persons identified as

respondents are not proper parties to this action.
In regards to the second question, district courts are
limited to granting habeas relief ‘within their respective
jurisdictions.’”

Padilla, 542 U.S. at 442.

This means “nothing

more than that the court issuing the writ have jurisdiction over
the custodian.”

Id. (quoting Braden v. 30th Judicial Circuit

Court of Kentucky, 410 U.S. 484, 495 (1973)).

Thus, jurisdiction

over Pen’s petition only lies in the District of Massachusetts if
the Court has jurisdiction over Warden Young.

However, the

“general rule” is that “for core habeas petitions challenging
present physical confinement, jurisdiction lies in only one
district: the district of confinement.”

Id. at 443.

Because the

District of Massachusetts is not the district of Pen’s
1

Accord Kholyavskiy v. Achim, 443 F.3d 946, 953 (7th Cir.
2006); Yi v. Maugans, 24 F.3d 500, 508 (3d Cir. 1994); but see
Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003) (supervisory
immigration official for the district in which a detention
facility is located–-not the warden of the facility--is proper
respondent in alien habeas corpus cases); Henderson v. I.N.S.,
157 F.3d 106 (2d Cir. 1998) (Attorney General proper respondent
in alien habeas corpus cases).
The First Circuit has opined that “there may be
extraordinary circumstances in which the Attorney General
appropriately might be named as the respondent to an alien habeas
petition,” such as where the petitioner is held in an undisclosed
location or the government “spirited an alien from one site to
another in an attempt to manipulate jurisdiction,” Vasquez, 233
F.3d at 696, but no such circumstances exist here.
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confinement, this Court lacks jurisdiction to entertain the
present petition.
Instead of dismissing the petition, the Court will transfer
this case to the appropriate United States District Court.

See

28 U.S.C. § 1404(a) (“[I]in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought.”).

The Court notes

that the adjudication of all pending motions shall be left up to
the transferee court.
III. Conclusion
Accordingly, for the reasons set forth above, the Court
orders that this action be TRANSFERRED to the United States
District Court for the Western District of Louisiana.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: 5/25/17

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