Adikov v. Mechkowski et al

Filing 9

OPINION AND ORDER: The Court adopts the majority rule. Because Petitioner is detained in the District of New Jersey, the Court lacks jurisdiction over his habeas petition. In addition, the Petition fails to name "the warden of the detention faci lity with physical custody of the petitioner" as respondent, as is required. For the foregoing reasons, the Petition is denied without prejudice. The Clerk of Court is directed to close the case. SO ORDERED. (Signed by Judge J. Paul Oetken on 7/18/2016) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RASHITBEK RASLANOVICH ADIKOV,
:
Petitioner, :
:
-v:
:
OFFICER SCOTT MECHKOWSKI and THE
:
DEPARTMENT OF HOMELAND SECURITY, :
Respondents. :
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16-CV-3797 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Petitioner Rashitbek Raslanovich Adikov (“Petitioner”) is a Russian national currently in
the custody of Immigration and Customs Enforcement at the Hudson County Correctional
Facility in Kearny, New Jersey. (Dkt. No. 3 at 9-10.) An Immigration Judge in Batavia, New
York has ordered his removal from the United States to Russia, and the the Board of
Immigration Appeals denied his subsequent appeal. (Id.) He now petitions for a writ of habeas
corpus, challenging both his detention and his removal order. 1 (Id. at 14.)
To the extent that Petitioner challenges the removal order, this Court does not have
subject matter jurisdiction. The REAL ID Act of 2005, codified at 8 U.S.C. § 1252, “strips
district courts of jurisdiction to hear habeas petitions challenging final orders of deportation.”
De Ping Wang v. Dep't of Homeland Sec., 484 F.3d 615, 615-16 (2d Cir. 2007); see Vasquez v.
United States, No. 15-CV-3946, 2015 WL 4619805, at *3 (S.D.N.Y. Aug. 3, 2015) (“District
courts within this Circuit and across the country have routinely held that they lack jurisdiction
under § 1252 to grant a stay of removal.”) (collecting cases). Rather, “the courts of appeals have
exclusive jurisdiction to review all administratively final orders of removal, deportation and
Petitioner’s request for an extension of time to file a reply in support of his Petition (see Dkt.
No. 8), was improperly filed and, in any event, is denied.
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exclusion.” Barnes v. U.S. Immigration & Customs Enf’t, No. 05-CV-370, 2005 WL 1661652,
at *1 (E.D.N.Y. July 14, 2005); see Kilani-Hewitt v. Bukszpan, 130 F. Supp. 3d 858, 862
(S.D.N.Y. 2015). Accordingly, Petitioner’s challenge to his removal order is denied without
prejudice.
What remains of the Petition consists of a challenge to Petitioner’s current detention at
the Hudson County Correctional Facility. Outside of the deportation context, it is well-settled
that for “habeas petitions challenging present physical confinement, jurisdiction lies in only one
district: the district of confinement.” Zhen Yi Guo v. Napolitano, No. 09-CV-3023, 2009 WL
2840400, at *5 (S.D.N.Y. Sept. 2, 2009) (quoting Rumsfeld v. Padilla, 542 U.S. 426, 443
(2004)). In addition, “the warden of the detention facility with physical custody of the petitioner
is the ‘immediate custodian’ with the ability to produce the petitioner pursuant to a writ of
habeas corpus,” and is therefore the appropriate respondent to a habeas petition challenging
present confinement. Phrance v. Johnson, No. 14-CV-3569, 2014 WL 6807590, at *2 (S.D.N.Y.
Dec. 3, 2014) (citing Padilla, 542 U.S. at 435, 437–39).
The Supreme Court’s decision in Padilla “left open the question” whether these rules
applied to “a habeas petition filed by an alien pending deportation.” Zhen Yi Guo, 2009 WL
2840400, at *2 (quoting Padilla, 542 U.S. at 435 n. 8) (internal quotation marks omitted).
However, “[a] clear majority of district courts sitting in this Circuit have applied [these rules] to
habeas petitions filed by incarcerated aliens challenging their physical detention prior to
deportation.” Id. at *3 (collecting cases); see, e.g., Concepcion v. Aviles, No. 14-CV-8770, 2015
WL 7766228 (S.D.N.Y. Mar. 12, 2015); Fortune v. Lynch, No. 15-CV-8134, 2016 WL 1162332
(S.D.N.Y. Mar. 22, 2016). The Court adopts the majority rule. Because Petitioner is detained in
the District of New Jersey, the Court lacks jurisdiction over his habeas petition. See Phrance,

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2014 WL 6807590, at *2 (“[J]urisdiction lies only in the District of New Jersey, where
[petitioner] is detained.”); Concepcion, 2015 WL 7766228, at *1 (same). In addition, the
Petition fails to name “the warden of the detention facility with physical custody of the
petitioner” as respondent, as is required. Phrance, 2014 WL 6807590, at *2.
For the foregoing reasons, the Petition is denied without prejudice.
The Clerk of Court is directed to close the case.

SO ORDERED.
Dated: July 18, 2016
New York, New York
___________________________________
J. PAUL OETKEN
United States District Judge

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