Ngo v. Siegl et al

Filing 7

MEMORANDUM AND ORDER Conditionally Granting 5 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus. Ptnr may move for leave to amend his petition within 30 days of the date of this Order....***( Amended Pleadings due by 6/15/2018.) (Signed by Judge Kenneth M Hoyt) Parties notified.(sanderson, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THANH H NGO,
Petitioner,
VS.
MARK SIEGL, et al,
Respondents.

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May 15, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-CV-3154

MEMORANDUM AND ORDER
Petitioner Thanh H. Ngo is a detainee in the custody of the United States
Immigration and Customs Enforcement (“ICE”). Ngo filed a petition for a writ of habeas
corpus challenging his detention. Respondents filed a motion to dismiss the petition, and
petitioner responded and moved for summary judgment.

The respondents did not

respond to Ngo’s motion for summary judgment. Having considered the motions, the
record, the relevant law, and the arguments of the parties, the Court concludes that the
respondents’ motion should be conditionally granted.
I.

Background
The following facts are not in dispute. Petitioner is a native of Vietnam. He

arrived in the United States as a child in July 1984.
In 1996, Ngo was convicted of two state felony offenses, burglary, and grand theft
by possession of stolen property, in Idaho. He was sentenced to concurrent terms of six
and a half years imprisonment. As a result of these convictions, the United States
government began removal proceedings against Ngo.

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In 1997, Ngo was released on parole from his imprisonment on the Idaho state
charges. He was transferred to the custody of federal immigration authorities in or about
August 1977.
On December 19, 1997, Ngo was ordered removed to Vietnam.

That order

became final on February 20, 1998.
Petitioner states, and respondents do not dispute, that Ngo was in custody “[f]or
years following the final entry of the removal order . . . .” Response to Motion to
Dismiss (“Response”) (Doc. # 6) at 4. He states that he was in federal immigration
detention “[b]etween 1998 and 2008,” id., but does not specify whether he was in
continuous detention for that entire period of time, or whether he was in custody for some
portion of that time.
In 2008, Ngo was released from immigration detention under an Order to
Supervision. The order required Ngo to report monthly to an ICE office and call the ICE
office bi-weekly. Response, Exh. F.
On September 13, 2017, Ngo was arrested in Texas and charged with possession
of marijuana. He was released to ICE custody on September 15, 2017, and has remained
in ICE custody since that date.
On October 18, 2017, Ngo filed this petition for a writ of habeas corpus under 28
U.S.C. § 2241. On January 12, 2018, the government moved to dismiss the petition
under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. On February 14,
2018, Ngo responded to the motion to dismiss, and cross-moved for summary judgment.
The respondents did not respond to Ngo’s motion for summary judgment.
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II.

Standard of Review

Respondents argue that the petition is subject to dismissal under Fed.R.Civ.P.
12(b)(1). Rule 12(b)(1) provides for dismissal, in relevant part, when the court lacks
subject matter jurisdiction. It is beyond dispute that
“Without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the cause.” Ex parte
McCardle, 7 Wall. 506, 514 (1868).
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). The petitioner
bears the burden of proving by a preponderance of the evidence that this Court has
jurisdiction to hear his claims. Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981).
III.

Analysis
Respondents argue that the Court lacks jurisdiction because Ngo did not name the

correct respondent. The petition named Mark Siegl, the Houston Field Office Director
for ICE, Elaine Duke, the Acting Secretary of Homeland Security, and Jefferson
Sessions, the Attorney General of the United States. Respondents contend that the only
person with the ability to produce Ngo for the Court is the warden of the detention
facility, and that the warden is therefore the only proper respondent. Ngo argues that the
warden was implicitly named as an agent of the respondents.
In Rumsfeld v. Padilla, 542 U.S. 426 (2004), a United States citizen was
designated by the President as an enemy combatant and was confined in a United States
Navy brig in South Carolina. Padilla filed a petition for a writ of habeas corpus in the
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United States District Court for the Southern District of New York naming then-Secretary
of Defense Donald Rumsfeld as the respondent.

The government argued that the

Commander of the naval brig was the only proper respondent. The district court, and the
United States Court of Appeals for the Second Circuit found that Secretary Rumsfeld was
an appropriate respondent. The Supreme Court disagreed.
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”). The
consistent use of the definite article in reference to the
custodian indicates that there is generally only one proper
respondent to a given prisoner's habeas petition. This
custodian, moreover, is “the person” with the ability to
produce the prisoner's body before the habeas court. Ibid. We
summed up the plain language of the habeas statute over 100
years ago in this way: “[T]hese provisions contemplate a
proceeding against some person who has the immediate
custody of the party detained, with the power to produce the
body of such party before the court or judge, that he may be
liberated if no sufficient reason is shown to the contrary.”
Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed.
277 (1885) (emphasis added); see also Braden v. 30th
Judicial Circuit Court of Ky., 410 U.S. 484, 494-495, 93 S.Ct.
1123, 35 L.Ed.2d 443 (1973) (“lain The writ of habeas
corpus” acts upon “the person who holds [the detainee] in
what is alleged to be unlawful custody,” citing Wales, supra,
at 574, 5 S.Ct. 1050); Braden, supra, at 495, 93 S.Ct. 1123 (“
‘[T]his writ ... is directed to ... [the] jailer,’ ” quoting In re
Jackson, 15 Mich. 417, 439-440 (1867)).
Padilla, 542 U.S. at 434–35.

This necessarily requires rejection of Ngo’s agency

argument: The brig commander was no less the agent of Secretary Rumsfeld than is the
warden of the named respondents in this case.

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Ngo also argues that the named respondents are proper because “Petitioner is
being held in the custody and detention of the Department of Homeland Security.”
Response to Motion to Dismiss (Doc. # 6) at 13. Again, however, Padilla forecloses this
argument.
As we have explained, identification of the party exercising
legal control only comes into play when there is no
immediate physical custodian with respect to the challenged
“custody.” In challenges to present physical confinement, we
reaffirm that the immediate custodian, not a supervisory
official who exercises legal control, is the proper respondent.
If the “legal control” test applied to physical-custody
challenges, a convicted prisoner would be able to name the
State or the Attorney General as a respondent to a § 2241
petition. As the statutory language, established practice, and
our precedent demonstrate, that is not the case.
Padilla, 542 U.S. at 439–40.
The Supreme Court has made clear that the prisoner’s physical custodian, and no
other official of the government agency under whose authority the prisoner is held, is the
only proper respondent in a section 2241 petition. Because Ngo failed to name the only
proper respondent, the petition must be dismissed without prejudice.
In accord with the statutory language and Wales' immediate
custodian rule, longstanding practice confirms that in habeas
challenges
to
present
physical
confinement-“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.
Padilla, 542 U.S. at 435.
IV.

Order
For the foregoing reasons, it is ORDERED that Respondents’ motion to dismiss

(Doc. # 5) is CONDITIONALLY GRANTED. The petitioner may move under Fed. R.
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Civ. P. 15(a) for leave to amend his petition within 30 days of the date of this Order. If
petitioner does not file a motion to amend within 30 days of the date of this Order, then
the portion of this order granting the respondent’ motion to dismiss will become final and
a final judgment will be entered accordingly.
It is so ORDERED.
SIGNED on this 15th day of May, 2018.
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Kenneth M. Hoyt
United States District Judge

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