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The attorney general of the United States can be named as a respondent in a petition for a writ of habeas corpus filed in an alien deportation case, a Southern District judge ruled last week. U.S. District Judge Robert W. Sweet of the Southern District of New York, in Arias-Agramonte v. Commissioner of INS, 00 Civ. 2412, became the first judge in the district to find that because the attorney general is the “custodian” of a resident alien facing an order of deportation, the court has personal jurisdiction over a habeas petition. If upheld on appeal, this decision, according to immigration lawyers, would mean that resident aliens who live in New York City but are often transferred to detention facilities in other states by the Immigration and Naturalization Service will no longer be forced to challenge deportation orders in distant jurisdictions. Thus, immigration lawyers say, aliens will have a better chance of securing representation and prevailing in their habeas petitions. Jerry Arias-Agramonte had been a resident of the United States for 30 years when he went to the Dominican Republic to attend the funeral of his father. Because he had been convicted on a drug offense 21 years ago, he was arrested as a deportable alien upon his arrival at J.F.K. International Airport. Arias-Agramonte was shipped to a detention facility in Pennsylvania, where he spent the next 19 months awaiting deportation. On July 29, Sweet restored the decision of an immigration judge who had found that Arias-Agramonte was entitled to discretionary relief from deportation under what was formerly Section 212(c) of the Immigration and Nationality Act of 1952, which was subsequently amended as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In that ruling, Sweet found that the IIRIRA, enacted in April 1997, did not retroactively eliminate discretionary relief under Section 212(c) a decision that the government is now challenging before the 2nd U.S. Circuit Court of Appeals. The government, characterizing the immigration judge’s decision as “aberrant,” contended that the commissioner of the INS was not a proper respondent in the case, and that only the INS district director in Pennsylvania, the official who has actual “day-to-day control” over the body, could be named in the petition. Sweet disagreed, finding that the commissioner of the INS could be properly named, and therefore, personal jurisdiction was proper in the Southern District. Following that ruling, Arias-Agramonte moved to amend his petition to name as respondent Attorney General Janet Reno. Again, the government opposed the motion on the grounds that Reno could not be considered the petitioner’s custodian. Sweet said that the attorney general and the INS have a “close agency relationship” and that the “interests of justice,” given that Arias-Agramonte had at that point been detained for more than 21 months, would not be served by “the additional delay involved in refiling in another jurisdiction.” COMMONLY RAISED ISSUE The issue of who can be named as a respondent for purposes of personal jurisdiction is commonly raised in tandem with a question of subject matter jurisdiction under the IIRIRA. That issue, which has also split the courts, is whether the limitations imposed by Congress on judicial review of deportation orders in the IIRIRA also precludes review of habeas petitions. In a decision that immigration lawyers believe will ultimately be decided by the U.S. Supreme Court, the 2nd Circuit in September joined the ranks of those courts finding that the IIRIRA’s limitation on judicial review could not have been intended to preclude habeas petitions. That ruling came in Calcano-Martinez v. INS, 98-4033. But Sweet said that both the Supreme Court and the 2nd Circuit have not ruled on the question of whether the attorney general is a proper respondent in an alien habeas case, and that courts that have considered the issue are split. While three Eastern District judges and the 3rd Circuit have ruled that Reno can be named, two Southern District judges as well as the 10th Circuit have reached the opposite conclusion. “On a broad level, the attorney general is the custodian of alien detainees because she has primary authority for enforcing the IIRIRA and is the ‘ultimate decision-maker’ as to all INS matters,” he said. “More specifically, IIRIRA designates the attorney general as the person responsible for taking deportable aliens into custody.” “Finally, the nature of alien detention warrants a broader view of custodianship in immigration cases that will not spill over to federal prisoner cases,” he said. “Detained aliens are routinely transferred to facilities in other INS districts, often a great distance away, under the attorney general’s authority.” Sweet’s last point is an important one to Arias-Agramonte’s attorney, Ismael Gonzalez. Gonzalez said the widespread transfer of alien detainees makes it more difficult for them to obtain quality representation. Moreover, Gonzalez said, he has seen cases in which an alien who has named the local INS commissioner in a petition has had the petition dismissed because the alien was subsequently transferred. The INS says that a shortage of space in New York is one reason that aliens are often shipped on short notice to other jurisdictions such as Pennsylvania, or, in many cases, Oakdale, La. Cases coming from the latter jurisdiction are appealed to the 5th Circuit, which holds that review, habeas or otherwise, is precluded by the IIRIRA. “It is a very important issue; it affects a lot of people who are detained,” said Kerry Bretz of Bretz & Coven, a former INS lawyer who has dealt extensively with the tangle of jurisdictional questions raised by the IIRIRA. “They come from New York and they get transferred to a detention facility, a prison, or a county jail and they can’t find a good lawyer or stay in touch with their family.” Bretz said he believes that the hard line taken by other circuits on habeas petitions is one reason why the INS makes the transfers. “I know forum shopping is not a crime of moral turpitude, but what do you call it when the INS transfers someone out of this jurisdiction?” he said. “You can’t tell me there is not some kind of conscious effort to make the process harder to defend against.” TRANSFER COMPLICATIONS Sweet agreed that transferring resident aliens creates jurisdictional problems. “Transferring resident aliens to distant locations rather than keeping them nearer to their own communities further complicates the already complex process of finding competent counsel and initiating proceedings,” he said. “In this regime where alien detainees are moved between districts so frequently, it is appropriate to name a respondent higher up in the INS chain of command.” Assistant U.S. Attorney Krishna R. Patel represented the government.

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