Kholyavskiy, Arkadiy v. Achim, Deborah ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2893
ARKADIY L. KHOLYAVSKIY,
Petitioner-Appellant,
v.
DEBORAH ACHIM,
ALBERTO R. GONZALES,
and MICHAEL CHERTOFF,
Respondents-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 2257—Elaine E. Bucklo, Judge.
____________
ARGUED JANUARY 4, 2006—DECIDED APRIL 17, 2006
____________
Before CUDAHY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Arkadiy Kholyavskiy, a Jewish
refugee from Russia, has been incarcerated at the Ken-
osha County Detention Center in Kenosha, Wisconsin, since
he was ordered removed for committing two or more crimes
of moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Con-
tending that this detention is unconstitutional and seeking
his immediate release from custody, he brought this action
for a writ of habeas corpus in the United States District
Court for the Northern District of Illinois. See 28 U.S.C.
§ 2241. Mr. Kholyavskiy’s habeas petition named as respon-
2 No. 05-2893
dents the director of the Chicago field office for the United
States Immigration and Customs Enforcement (“ICE”), the
Secretary of the Department of Homeland Security and the
Attorney General. In a motion to dismiss for lack of jurisdic-
tion, these respondents claimed that they did not have
“custody” over Mr. Kholyavskiy within the meaning of the
habeas statute. The district court granted the motion,
holding that the proper respondent to Mr. Kholyavskiy’s
habeas petition is the warden of the Kenosha Detention
Center, the facility in which he is detained. For the reasons
set forth in the following opinion, we affirm the judgment
of the district court.
I
BACKGROUND
Mr. Kholyavskiy entered the United States as a refugee
from Russia in 1992, a time when Jews in the recently
dissolved Soviet Union continued to encounter widespread
anti-Semitism. See Sosnovskaia v. Gonzales, 421 F.3d 589, 590-
91 (7th Cir. 2005). In 1995, at the age of 18, he became a
lawful permanent resident of the United States. Beginning
in 1996, however, Mr. Kholyavskiy’s behavior turned erratic
and criminal, resulting in convictions for vandalism,
harassment, trespassing, battery and larceny. He was
taken into custody by the INS in 2001 and eventually
ordered removed by the Board of Immigration Appeals
(“BIA”) because he had committed two or more crimes of
moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i)(I). Mr.
Kholyavskiy initially was released on bond while the
BIA considered his motion to reopen the proceedings on the
ground that his counsel rendered ineffective assistance. Just
a few days later, however, Mr. Kholyavskiy was arrested in
No. 05-2893 3
Highland Park, Illinois, for disorderly conduct and placed
in custody by officials of the Chicago office of ICE (the
successor agency to the INS).1 After initial processing at an
ICE facility in Broadview, Illinois, Mr. Kholyavskiy was
transferred to the Kenosha County Detention Center in
Kenosha, Wisconsin (“Kenosha”), one of several state jails
used by ICE to house aliens awaiting deportation.
Mr. Kholyavskiy’s motion to reopen eventually was
granted by the BIA, but he remained detained in Kenosha
while his case for asylum was reopened and then ultimately
denied by an immigration judge and the BIA. In April 2005,
he brought this action in the Northern District of Illinois for
a writ of habeas corpus, naming as respondents Deborah
Achim, director of the Chicago ICE field office, Secretary of
the Department of Homeland Security Michael Chertoff and
Attorney General Alberto Gonzales. The district court
dismissed his petition for want of jurisdiction because Mr.
Kholyavskiy had failed to name as respondent the person
exercising custody over him at the Kenosha jail. The district
court ruled that Mr. Kholyavskiy was required to name as
a respondent his “immediate custodian,” the person
exercising “day-to-day control over the prisoner.” R.18 at 2
(internal quotation marks omitted). That person, continued
the district court, was the Kenosha warden, not Ms. Achim,
Mr. Chertoff or Mr. Gonzales.
1
The office of Immigration and Customs Enforcement, a unit of
the Department of Homeland Security, has assumed responsibil-
ity for enforcement of the immigration laws after implementa-
tion of the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135. See generally Ashton v. Gonzales, 431 F.3d 95, 96 n.2
(2d Cir. 2005). The old INS district directors are now titled “Field
Office Directors,” but their functions remain the same. See 8
C.F.R. § 1.1(o) (2005).
4 No. 05-2893
Soon after the district court’s dismissal of his petition, Mr.
Kholyavskiy filed another habeas petition in the United
States District Court for the Eastern District of Wisconsin.
This petition named as respondent the warden of the
Kenosha facility. He nevertheless asks that we review the
ruling of the district court in his initial action.
II
DISCUSSION
A.
We must decide the correct application of the immediate
custodian rule to petitions for habeas corpus brought by
aliens awaiting deportation. As we noted earlier, the district
court took the view that Mr. Kholyavskiy was required to
name the warden of the Kenosha facility, the person who
had direct control over his day-to-day activities. Because
this ruling presents a question of law, our review is de novo.
See Samirah v. O’Connell, 335 F.3d 545, 548 (7th Cir. 2003).
Congress has provided that an application for a writ of
habeas corpus shall allege, among other matters, “the
name of the person who has actual custody over [the
petitioner].” 28 U.S.C. § 2242 ¶ 2. Similarly, the writ, once
granted by a district court, “shall be directed to the person
having custody of the person detained.” Id. § 2243; Robledo-
Gonzales v. Ashcroft, 342 F.3d 667, 673 (7th Cir. 2003) (“[A]
petition for a writ of habeas corpus must be directed to the
individual or individuals who holds the petitioner in
allegedly unlawful custody.”). Naming the proper custo-
dian fits with the logic of collateral relief because “[t]he writ
of habeas corpus does not act upon the prisoner who seeks
relief, but upon the person who holds him in what is alleged
No. 05-2893 5
to be unlawful custody.” Braden v. 30th Jud. Cir. Ct. of
Kentucky, 410 U.S. 484, 494-95 (1973).2
1.
A century-old line of Supreme Court precedent has
defined a habeas petitioner’s custodian as the 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.’” Id. (quoting Wales v. Whitney, 114 U.S. 564, 574
(1885) (emphasis added)). We have given further elabora-
tion to this definition by describing the immediate custodian
as the individual having “day-to-day control” over the
2
Congress also has instructed that a district court may issue
a writ only “within [its] respective jurisdiction.” 28 U.S.C.
§ 2241(a). This means, in most cases, that the named custodian
must reside within the geographical confines of the federal
district where the complaint was filed. See Rumsfeld v. Padilla, 542
U.S. 426, 443 (2004). There are two statutory exceptions to this
rule that are not relevant here: (1) that a prisoner serving a state
criminal sentence in a state that contains more than one federal
district may file in either district, see 28 U.S.C. § 2241(d); and
(2) that a federal prisoner collaterally attacking his criminal
sentence may do so only in the district where the sentence was
imposed. There is also a judicially-crafted exception that emerged
with the Braden decision, in which the Supreme Court allowed a
prisoner housed in Alabama to challenge his future confinement
in Kentucky by filing a habeas petition in Kentucky federal court.
See Braden v. 30th Jud. Cir. Ct. of Kentucky, 410 U.S. 484, 494-95
(1973). After Braden, “[p]risoners under penal obligation to two
jurisdictions may seek collateral relief from both.” al-Marri v.
Rumsfeld, 360 F.3d 707, 711 (7th Cir. 2004) (discussing Braden).
6 No. 05-2893
facility in which a prisoner is housed. Robledo-Gonzales, 342
F.3d at 673. Typically, for an inmate of a jail or prison, his
immediate custodian is the warden. See id.; see also al-Marri
v. Rumsfeld, 360 F.3d 707, 708 (7th Cir. 2004) (“In the federal
system, this means the warden (or Commander) rather than
the Director of the Bureau of Prisons . . . .”).
The immediate custodian rule is “a practical one based on
common sense administration of justice.” Sanders v. Bennett,
148 F.2d 19, 20 (D.C. Cir. 1945). Although the Attorney
General is, in the end, responsible for the operation of
federal penitentiaries and for the location of a prisoner’s
confinement, he is a single supervisory official with an
office in Washington, D.C. An interpretation of “custody”
that were to include the Attorney General within its sweep
would make the District Court for the District of Columbia
the default forum for the habeas petitions of every federal
prisoner in the United States. To ensure a more even
distribution among the federal districts, Congress has
required that a habeas petition name the person in direct
charge of the local penal institution. See al-Marri, 360 F.3d at
710.
2.
Mr. Kholyavskiy submits that the immediate custo-
dian rule should be different when the habeas petitioner
is not serving a criminal sentence but is instead an alien
undergoing removal proceedings. Rather than identifying
the Kenosha warden in his petition, Mr. Kholyavskiy named
Deborah Achim, director of the ICE field office in Chicago
because he claims that she has “the authority to transport,
transfer and ultimately release him from custody.” Appel-
lant’s Br. at 14. There is little doubt that the Northern
No. 05-2893 7
District of Illinois would have had jurisdiction over Ms.
Achim if she were indeed the proper respondent. The only
question, then, is whether she properly was identified as
Mr. Kholyavskiy’s custodian.
The circuits have divided on the question of whether a
detained alien challenging his impending removal must
name the warden of his detention facility in a petition for
habeas corpus, or whether the alien may name an im-
migration official instead. Some courts have allowed an
alien to name the INS district director who oversees the
confinement of aliens within that INS district. See, e.g.,
Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003);
Henderson v. INS, 157 F.3d 106, 126 (2d Cir. 1998). These
courts reason that the wardens of state and local facilities
used by the INS “act pursuant to INS Detention Standards
and are considered agents of the INS District Director in
their district.” Roman, 340 F.3d at 320. As these courts see it,
whatever day-to-day control the wardens have over an alien
detainee, they exercise that control only at the direction of
the INS. See id.
The Third and First Circuits have taken a different view.
In Yang You Yi v. Maugans, the Third Circuit held that,
despite the power of the INS district directors, “[i]t is the
warden of the prison or the facility where the detainee is
held that is considered the custodian for purposes of a
habeas action.” 24 F.3d 500, 507 (3d Cir. 1994). The court
explained:
This is because it is the warden that has day-to-day
control over the prisoner and who can produce the
actual body. That the district director has the power to
release the detainees does not alter our conclusion.
Otherwise, the Attorney General of the United States
could be considered the custodian of every alien and
8 No. 05-2893
prisoner in custody because ultimately she controls
the district directors and the prisons.
Id. (citations removed). Similarly, in Vasquez v. Reno, the
First Circuit dismissed an alien’s habeas petition that named
the Attorney General as respondent. 233 F.3d 688, 689 (1st
Cir. 2000) (“[A]s a general rule, the Attorney General is
neither the custodian of such an alien in the requisite sense
nor the proper respondent to a habeas petition.”).3 The First
Circuit reasoned in Vasquez:
In terms of identifying a proper custodian, there is
no principled distinction between an alien held in a
detention facility awaiting possible deportation and a
prisoner held in a correctional facility awaiting trial or
serving a sentence. Since the case law establishes that
the warden of the penitentiary not the Attorney General
is the person who holds a prisoner in custody for habeas
purposes, it would be not only illogical but also quixotic
to hold that the appropriate respondent in an alien
habeas case is someone other than the official having
day-to-day control over the facility where the alien is
being detained.
Id. at 693.
We have not addressed this question directly. In Robledo-
Gonzales, an alien who had been deported reentered the
3
In Vasquez, the alien also had named an INS district director as
respondent. See Vasquez v. Reno, 233 F.3d 688, 690 (1st Cir. 2000).
However, according to the court, the named director was not the
individual that had actual control over Vasquez’s detention. And,
because the INS director who should have been named was
outside of the court’s in personam jurisdiction, Vasquez’s habeas
petition was dismissed.
No. 05-2893 9
country illegally and was apprehended and charged with
the federal crime of illegal reentry. See 342 F.3d at 670. While
incarcerated awaiting trial, Robledo-Gonzales filed a habeas
petition in the Northern District of Illinois that named the
Attorney General, the Commissioner of the INS and the
local INS district director as respondents. We held that none
of these respondents exercised “day-to-day” control over
Robledo-Gonzales, and accordingly his habeas petition had
to be dismissed for lack of jurisdiction. We were careful,
however, to distinguish Robledo-Gonzales’s case from
situations in which an alien “brings a habeas petition to
challenge the execution of a final order of removal.” Robledo-
Gonzales, 342 F.3d at 674. Robledo-Gonzales was not being
detained under a final order of deportation, nor under any
other order by immigration authorities.4 He was a prisoner
awaiting trial for violating federal law. Therefore, any case
law from the immigration context was considered
inapposite, and his petition was dismissed for failing to
name the warden as respondent.
Similarly, in al-Marri v. Rumsfeld, we discussed the
immediate custodian rule at length, but did not resolve
conclusively the rule’s application in the immigration
context. See 360 F.3d at 707. Ali Saleh Kahlah al-Marri was a
Qatari national held as an enemy combatant at a naval brig
in Charleston, South Carolina. He filed a habeas petition in
4
See Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 674 (7th Cir. 2003)
(“Mr. Robledo-Gonzales was not the subject of immigration
proceedings at the time his petition was filed, nor is he at the
present time. Indeed, neither the INS nor its successor agency, the
Department of Homeland Security, has taken even the prelimi-
nary step of filing a notice of detainer with the criminal authori-
ties.”).
10 No. 05-2893
the Central District of Illinois, naming the President, the
Secretary of Defense and M.A. Marr, the commander of the
Charleston naval brig, as respondents. We noted that
Commander Marr was al-Marri’s custodian. Nevertheless,
the dismissal of al-Marri’s petition was affirmed because
Commander Marr and the naval brig were outside of the
territorial confines of the Central District of Illinois. We
interpreted 28 U.S.C. § 2241, which gives district courts the
power to grant writs of habeas corpus “within their juris-
dictions,” to mean that the only proper venue for habeas
proceedings is the federal district in which the petitioner is
detained. See 360 F.3d at 709-10. In our view, the require-
ment that a prisoner litigate where he is confined not only
enforces § 2241 as written, but also is valuable from a policy
standpoint because it “distributes business among the
district courts and . . . allows important issues to percolate
through multiple circuits before the Supreme Court must
review a disputed question.” Id. at 710. Our al-Marri opinion
was critical of cases that allowed habeas petitioners to name
an INS district director or the Attorney General as respon-
dents. These decisions, we wrote, “conflate the person
responsible for authorizing custody with the person respon-
sible for maintaining custody.” Id. at 711.
More recently, the Supreme Court decided Rumsfeld
v. Padilla, 542 U.S. 426 (2004), which presented a virtually
identical set of circumstances as al-Marri. Like al-Marri, Jose
Padilla was detained as an enemy combatant at the
Charleston, South Carolina, naval brig. In his petition for
habeas corpus, he named Secretary of Defense Donald
Rumsfeld, in addition to Commander Marr.5 The South
5
The only difference from the al-Marri case—an immaterial
(continued...)
No. 05-2893 11
ern District had concluded that, because Padilla’s case
was unusual, at least as compared to most federal habeas
petitions, it was appropriate to adopt a more flexible
approach to determining the proper respondent. The
court held that Secretary Rumsfeld’s personal involve-
ment in Padilla’s military custody rendered him a proper
respondent to Padilla’s habeas petition; the district
court also considered the Secretary to be within the jurisdic-
tional reach of New York’s long-arm statute, despite his
absence from the Southern District. The Second Circuit,
although divided on the merits, affirmed the district
court’s jurisdictional analysis in full.
The Supreme Court reversed these jurisdictional holdings.
Concluding that Padilla’s petition was a “core chal-
lenge”—that is, a challenge to “present physical confine-
ment”—the Court held that the immediate custodian rule
should apply. Padilla, 542 U.S. at 435 (“[I]n habeas chal-
lenges to present physical confinement—’core chal-
lenges’—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 super-
visory official.”).6 Similarly, the Court held that core habeas
5
(...continued)
one—was that Padilla filed his petition in the Southern District of
New York instead of the Central District of Illinois.
6
Although the Court in Padilla did not precisely draw the
line between “core” and “non-core” habeas petitions, the decision
offers some guidance with respect to these terms. The Padilla
Court distinguished from the classic “core” habeas challenge
situations in which a petitioner “challenges a form of ‘custody’
other than present physical confinement.” Rumsfeld v. Padilla, 542
(continued...)
12 No. 05-2893
challenges may be brought only in the district court that has
territorial jurisdiction over the detainee’s immediate
custodian. Id. at 444.7
In light of Padilla, we must determine as a threshold
matter whether Mr. Kholyavskiy’s habeas challenge falls
within the “core” or “non-core” category of habeas chal-
lenges. Notably, unlike the cases that have precipitated
disagreement among some of our sister circuits, Mr.
6
(...continued)
U.S. 426, 438 (2004). These latter situations, according to the
Court, fall under the exception in Braden. As the Court empha-
sized, Braden had not contested the validity of the Alabama
conviction for which he was presently confined, but instead
sought to challenge a detainer imposed by a court in Ken-
tucky—“confinement that would be imposed in the future.”
Braden, 410 U.S. at 489. The Court held that Braden could be
considered in custody in Kentucky by virtue of the detainer, and
therefore the proper respondent was not the prisoner’s immediate
physical custodian (the Alabama warden), but was instead the
Kentucky court in which the detainer was lodged. As the Court
observed in Padilla, Braden represents the “non-core” situation
and means that “a habeas petitioner who challenges a form of
‘custody’ other than present physical confinement may name as
respondent the entity or person who exercises legal control with
respect to the challenged ‘custody.’ ” Padilla, 542 U.S. at 438.
7
Despite this broad holding, the Supreme Court expressly
reserved the question of whether the immediate custodian
rule applies in the context of immigration habeas petitions.
Padilla, 542 U.S. at 436 n.8 (recognizing the circuit split but
refusing to resolve it). Nevertheless, the Padilla decision supplies
at least the mode of analysis for habeas petitions implicating
the immediate custodian rule, including those brought by alien
detainees.
No. 05-2893 13
Kholyavskiy’s petition for habeas corpus does not challenge
the validity of his removal order, but instead attacks the
constitutionality of his confinement while he was awaiting
removal. His petition asserts that his “excessive detention”
at Kenosha deprives him of his rights to substantive and
procedural due process. R.1 at 1, 18, 26; see also id. at 9 (“The
action complained of is the unconstitutional length of
Petitioner’s detention pending the final adjudication of the
appeal of his removal proceedings and the bond appeal.”).
Because this alleged “excessive detention” is taking place
where Mr. Kholyavskiy is currently incarcerated, his habeas
challenge is fundamentally no different from the typical
“core” challenge described in Padilla, in which a prisoner
seeks release from present physical confinement. Padilla
holds that a habeas petition seeking this type of relief must
name the “person who has the immediate custody of the
person detained, with the power to produce the body of
such party before the court or judge.” Padilla, 542 U.S. at 435(emphasis in original) (internal quotation marks omitted).
Mr. Kholyavskiy’s habeas petition has not named this
individual.
3.
Mr. Kholyavskiy nevertheless contends that Ms. Achim,
director of the Chicago field office for ICE, is actually
his immediate custodian, even though the warden exer-
cises day-to-day control over the Kenosha facility. In
support of this contention, Mr. Kholyavskiy invites our
attention to a number of administrative regulations and
governmental operations documents. This material indicates
that ICE field office directors oversee the confinement of
aliens in state and local jails such as Kenosha. These facili-
ties are used by ICE, and its parent agency, the Department
14 No. 05-2893
of Homeland Security, under Intergovernmental Service
Agreements to hold detainees for more than 72 hours. See
generally Roman, 340 F.3d at 320. The wardens of the facili-
ties are considered agents of ICE field office directors who
oversee alien detentions in that region. The warden-ICE
relationship is further defined by the ICE Detention Opera-
tions Manual, which specifies the standards with which
contracted local jails, such as the Kenosha facility, must
comply. In particular, the manual provides that a local
warden may not remove an alien detainee without the
express permission of an ICE official. All of this material
defining the contractual arrangement between the ICE and
local wardens, according to Mr. Kholyavskiy, means that
only the ICE official, not the warden, has the power to
produce the body of the detainee before a habeas court.
Therefore, Mr. Kholyavskiy’s argument goes, Ms. Achim is
the functional equivalent of a warden for purposes of his
habeas challenge.
We cannot accept this argument. By claiming that Ms.
Achim is, in effect, his immediate custodian, Mr.
Kholyavskiy’s argument makes the logical misstep dis-
cussed in al-Marri of “conflat[ing] the person responsible for
authorizing custody with the person responsible for main-
taining custody.” al-Marri, 360 F.3d at 711. Ms. Achim has
the authority to free Mr. Kholyavskiy, but so do her superi-
ors, all the way up to the President of the United States. We
do not understand Mr. Kholyavskiy to be suggesting that
the President is his immediate custodian. Noticing an
almost identical mistake, we recently refused to allow a
state to substitute the director of the state department of
corrections for the warden who was named respondent in
a habeas petition. Bridges v. Chambers, 425 F.3d 1048, 1050
(7th Cir. 2005). There, we observed:
No. 05-2893 15
The fact that a superior officer can arrange for the
petitioner’s release need not imply that the superior has
“custody” of the person. We can order a petitioner
released if we find that he is being held in violation of
federal law, but that does not make us his custodian.
Id. Similarly, Ms. Achim’s authority to arrange for Mr.
Kholyavskiy’s release does not make her his immediate
custodian for habeas purposes. See Padilla, 542 U.S. at 439(“In challenges to present physical confinement, we reaffirm
that the immediate custodian, not a supervisory official who
exercises legal control, is the proper respondent.”).
Conclusion
Because Mr. Kholyavskiy did not name his immediate
custodian in challenging his present physical confinement in
Kenosha, we must affirm the dismissal of his petition for
habeas corpus.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-17-06