United States v. 2005-06-20 | 02-55368 | ARMENTERO VINS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 LUIS L. ARMENTERO,
Petitioner-Appellant, No. 02-55368
v. D.C. No.
 CV-01-08658-TJHIMMIGRATION AND NATURALIZATION
SERVICE, ORDER
Respondent-Appellee. 
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted
October 7, 2004—Pasadena, California
Filed June 21, 2005
Before: Thomas J. Meskill,* Warren J. Ferguson, and
Marsha S. Berzon, Circuit Judges.
Order;
Concurrence by Judge Ferguson;
Dissent by Judge Berzon
COUNSEL
Marc Van Der Hout and Megan Ferstenfeld-Torres, Van Der
Hout, Brigagliano & Nightingale, LLP, San Francisco, Cali-
fornia; Trina A. Realmuto, American Immigration Law Foun-
*The Honorable Thomas J. Meskill, Senior United States Circuit Judge
for the Second Circuit, sitting by designation.
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dation, Washington, D.C.; and Michael Tanaka, Deputy
Federal Public Defender, Los Angeles, California, for the
petitioner-appellant.
David J. Kline and Michelle E. Gorden, Department of Jus-
tice, Civil Division, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent-appellee.
ORDER
As the Petitioner-Appellant is now a fugitive from custody,
the “fugitive disentitlement” doctrine precludes him from pur-
suing this appeal. See Degen v. United States, 517 U.S. 820
(1996); Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.
2002). Accordingly, the appeal is DISMISSED.
IT IS SO ORDERED.
FERGUSON, Circuit Judge, concurring specially:
I concur in the order to dismiss this matter on the basis of
the fugitive disentitlement doctrine. I write separately, how-
ever, to express my concern over the increasing assumption
of power by U.S. administrative officials to decide matters
vested by our constitution to the judiciary. Administrative
agents cannot be vested with the authority to render decisions
concerning the length of detention. Such decision-making
power rests in the hands of a judicial officer.
8 U.S.C. § 1231(a)(6) provides in relevant part: “An alien
ordered removed who is inadmissible under . . . section 1182
of this title . . . may be detained beyond the removal period.”
8 C.F.R. §§ 212.12-13 (the “Cuban Review Plan”), adopted in
1987, confer special administrative authority to a Cuban
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Review Panel to determine a Mariel Cuban detainee’s suit-
ability for parole. The Panel consists of two or three persons
selected from the staff of the Bureau of Immigration and Cus-
toms Enforcement (BICE), a division of the Department of
Homeland Security. See 8 C.F.R. § 212.12(c). A Mariel
Cuban detainee may be released on parole only “for emergent
reasons or for reasons deemed strictly in the public interest.”
8 C.F.R. § 212.12(b)(1). The ultimate decision to release a
Mariel Cuban detainee is made by the Associate Commis-
sioner for Enforcement, a single administrative official. See 8
C.F.R. § 212.12(d)(2).
This statutory and administrative arrangement affords the
Attorney General (now the Secretary of Homeland Security),
Cuban Review Panelists, and the Associate Commissioner for
Enforcement the authority to determine whether and for how
long an excludable Cuban national may be detained. But this
authority has been seriously limited. In Zadvydas v. Davis,
533 U.S. 678, 689 (2001), the Supreme Court interpreted 8
U.S.C. § 1231(a)(6) as authorizing the Attorney General to
detain admissible aliens only so long as “reasonably neces-
sary” to remove them from the country. “[O]nce removal is
no longer reasonably foreseeable,” the Court held, “continued
detention is no longer authorized.” Id. at 699. The presump-
tive period during which the detention of an alien is reason-
ably necessary is six months. Id. at 701. In Clark v. Martinez,
125 S. Ct. 716, 722 (2005), the Supreme Court extended Zad-
vydas to apply to excludable (and inadmissible) aliens as well.
Zadvydas and Martinez, therefore, invite doubt as to the
constitutionality of the current Cuban Review Plan. “The Due
Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at
693 (citations omitted). “[T]he Constitution may well pre-
clude granting ‘an administrative body the unreviewable
authority to make determinations implicating fundamental
rights.’ ” Id. at 692 (quoting Superintendent, Mass. Corr. Inst.
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at Walpole v. Hill, 472 U.S. 445, 450 (1985)). I, therefore,
take issue with the authority of a Cuban Review Panel to ren-
der judicial determinations concerning excludable aliens’
length of detention.
In Armentero’s case, a Cuban Review Panel reviewed his
case seven times in the span of nearly a decade, and six of
those times the Panel denied him parole and recommended his
continued detention. To this date, notwithstanding the lower
federal courts’ review of his current habeas petition, no judi-
cial officer has reviewed whether Armentero should remain
detained. A single ad hoc administrative panel — indeed, a
single administrator alone — should not assume the distinctly
judicial role of determining matters of fundamental constitu-
tional importance. The Internal Revenue Service does not
decide how long to detain tax evaders; neither should a Cuban
Review Panel decide how long to detain excludable aliens.
BERZON, Circuit Judge, dissenting:
I respectfully dissent from the majority’s decision to dis-
miss this case on the basis of the “fugitive disentitlement”
doctrine. Several considerations counsel against resort to such
a sanction on the facts of this case. Instead, I would again
reach the merits of the question decided by this panel in its
initial decision — who is the proper respondent for habeas
petitions filed by immigration detainees? See Armentero v.
INS, 340 F.3d 1058 (9th Cir. 2003) (Armentero I), withdrawn,
382 F.3d 1153 (9th Cir. 2004) (order).
As I suggest below, our original opinion, when clarified
and considered in light of the government’s litigation stance,
is consistent with the Supreme Court’s decision in Rumsfeld
v. Padilla, 124 S. Ct. 2711 (2004). Padilla expressly reserved
the question decided by this panel in Armentero I. See id. at
2718 n.8. I am therefore convinced that, as in Armentero I, we
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should remand to the district court to allow Armentero to
amend his habeas petition to name a proper respondent, who
need not be the “Field Office Director.”
As I read Padilla, it did not entirely abandon the Supreme
Court’s earlier admonition that “we have consistently rejected
interpretations of the habeas corpus statute that would suffo-
cate the writ in stifling formalisms or hobble its effectiveness
with the manacles of arcane and scholastic procedural require-
ments.” Hensley v. Municipal Court, 411 U.S. 345, 350
(1973). In the special circumstances of immigration habeas
petitions like Armentero’s, the procedural rule for which the
government argues would indeed “suffocate the writ,” as I
proceed to demonstrate after some important preliminaries.
Consequently, although two intervening legal develop-
ments have made this conclusion considerably less significant
going forward than it was at the time we agreed to rehear this
case,1 I would essentially reaffirm our original holding in
Armentero I. Because the majority instead dismisses this
appeal on the basis of a discretionary equitable doctrine not
applicable here, I respectfully dissent.
I. Background
As we summarized in Armentero I,
Luis Armentero, a native and citizen of Cuba,
1The first relevant post-Padilla development is the Supreme Court’s
January 2005 decision in Clark v. Martinez, 125 S. Ct. 716 (2005), which,
in addition to foreordaining the merits of Armentero’s petition, will likely
cause a significant decrease in the number of aliens detained along the
lines at issue here. The second development is the passage, on May 11,
2005, of the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat.
231, which purports to do away with all immigration habeas petitions aris-
ing out of removal orders. Although, in light of these two developments,
immigration habeas petitions may become a vestigial form of relief, we
must still resolve the case before us.
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arrived at Key West, Florida as part of the Mariel
Boatlift. He was paroled into the United States pur-
suant to INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)
(5)(A). During his first five years in the United
States, Armentero amassed a record of arrests, con-
victions, and brief jail stints, mostly for petty
offenses. Then, on June 24, 1985, Armentero was
convicted of violating § 261.2 of the California
Penal Code, Rape by Force, and sentenced to three
years in prison. An Immigration Judge found
Armentero excludable from the United States and
ordered him deported. This order was not appealed
and became final in November 1987.
The INS was apparently unable to deport
Armentero. In the ensuing years, Armentero was
released to a halfway house; detained once again by
the INS after a new conviction; paroled again; con-
victed of yet another crime; and detained once more
by the INS.
On October 5, 2001, while detained at the INS
processing center in San Pedro, California,
Armentero filed a pro se habeas petition in the
United States District Court for the Central District
of California, claiming that he was being indefinitely
detained in violation of the Due Process clause of the
Fifth Amendment and that the conditions of his
detention amounted to punishment imposed in viola-
tion of the Constitution. The INS later transferred
Armentero from the San Pedro facility to the federal
penitentiary at Terre Haute, Indiana, for continued
detention.
The district court denied Armentero’s petition
without prejudice on January 25, 2002. Armentero
then appealed to this court.
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Armentero I, 340 F.3d at 1060 (footnote omitted). In
Armentero I, we held that, by naming the INS2 as the respon-
dent to his habeas petition, Armentero had failed to name a
proper respondent. The proper respondents, we held, are the
Attorney General and the Secretary of Homeland Security.
Rejecting the INS’s argument based on the so-called “imme-
diate custodian” rule, we concluded:
Neither Supreme Court law nor our own precedent
requires that an immigration detainee name her
immediate physical custodian as respondent in a
habeas action. Accounting for the considerable prac-
tical problems with adhering to an immediate custo-
dian rule in the immigration context and the changes
resulting from the recent overhaul of the agencies
enforcing our nation’s immigration laws, we hold
that the appropriate respondents to immigration
detainees’ petitions are the DHS Secretary and the
Attorney General. We therefore remand to the dis-
trict court with instructions that it grant Armentero
a reasonable period of time in which to amend his
petition to add the proper respondents.
Id. at 1074.3 Although the panel did not know it — nor, appar-
ently, did counsel for the parties — by the time the Armentero
2The INS was abolished on March 1, 2003, and its functions were trans-
ferred to the Department of Homeland Security. See Homeland Security
Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205. We refer
to the agency as the INS where the relevant proceedings took place before
the transfer. See Minasyan v. Gonzales, 401 F.3d 1069, 1072 n.4 (9th Cir.
2005). Otherwise, we refer to the respondent as “the government” or
“BICE” — the “Bureau of Immigration and Customs Enforcement.”
3Importantly, as I note below, the government was not arguing in
Armentero I for the “immediate” custodian, that is, the warden or supervi-
sor of the institution in which Armentero was imprisoned. Rather, its argu-
ment was that the proper respondent should be the local District Director
— the “Field Office Director” in present-day terminology. See 8 C.F.R.
§ 1.1(o) (2005).
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I decision was filed on August 18, 2003, Armentero had
absconded from the halfway house into which he had been
paroled on August 7, 2003.
Another significant intervening development was the
Supreme Court’s Padilla decision, handed down on June 28,
2004. The merits of Padilla concern the President’s authority
to detain U.S. citizens captured within the United States as
“enemy combatants.” See, e.g., Padilla v. Hanft, No. 04-2221,
2005 WL 465691 (D.S.C. Feb. 28, 2005). Padilla also raised
complicated jurisdictional questions: Although Padilla was
detained at a South Carolina navy brig, he named Secretary
of Defense Rumsfeld, in addition to the brig commandant, as
a respondent, and filed his petition in the U.S. District Court
for the Southern District of New York. The pivotal jurisdic-
tional questions in the Supreme Court were whether Rumsfeld
was a proper respondent, and, if not, whether venue in New
York was nonetheless appropriate.
Initially, the district court in Padilla had concluded that,
because Padilla’s case was unusual, at least as compared to
most federal habeas petitions,4 it was appropriate to adopt a
more flexible approach to the determination of the proper
respondent than in the usual detention case. As the court in
Padilla recognized, in the “usual” circumstance, a petitioner
is raising a collateral challenge to a criminal sentence, so the
4As the district court observed,
what makes the usual case usual is that the petitioner is serving
a sentence, and the list of those other than the warden who are
responsible for his confinement includes only people who have
played particular and discrete roles in confining him, notably the
prosecuting attorney and the sentencing judge, and who no longer
have a substantial and ongoing role in his continued confinement.
The warden becomes the respondent of choice almost by default.
As discussed below, this is not the usual case.
Padilla ex rel. Newman v. Rumsfeld, 233 F. Supp. 2d 564, 579 (S.D.N.Y.
2002).
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immediate custodian — ordinarily the warden of the prison —
is the only individual exercising direct legal authority over the
petitioner. See Padilla ex rel. Newman v. Rumsfeld, 233 F.
Supp. 2d 564, 579-83 (S.D.N.Y. 2002). The Second Circuit,
although divided on the merits, affirmed the district court’s
jurisdictional analysis in full, see Padilla v. Rumsfeld, 352
F.3d 695, 704-08 (2d Cir. 2003); see also id. at 726 (Wesley,
J., concurring in part and dissenting in part), finding support
for its position in Armentero I, see id. at 706 n.13.
The Supreme Court reversed the Second Circuit’s jurisdic-
tional holding, concluding that Padilla’s petition was a “core
challenge”5 — a challenge to “present physical confinement.”
In such cases, the Court held, the immediate custodian rule
should generally apply:
In accord with the statutory language and Wales’
[v. Whitney, 114 U.S. 564 (1885)] immediate custo-
dian 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. No excep-
tions to this rule, either recognized or proposed,
apply here.
See Padilla, 124 S. Ct. at 2718 (citations and footnotes omit-
ted).6
5Although no source is cited in Padilla for the etymology of the term,
the concept of a “core challenge” may have its roots in the Supreme
Court’s decision in Preiser v. Rodriguez, 411 U.S. 475 (1973), where the
Court first used the term to distinguish between prisoner claims that must
be brought via habeas, and those claims capable of enforcement through
42 U.S.C. § 1983. See id. at 487-88. See generally Docken v. Chase, 393
F.3d 1024 (9th Cir. 2004) (discussing the evolution of the habeas/§ 1983
distinction).
6As the Court observed, “[w]hile Padilla’s detention is undeniably
unique in many respects, it is at bottom a simple challenge to physical cus-
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Despite its broad ruling on the application of the immediate
custodian rule, the Court expressly reserved the question
whether the same is true in the context of immigration habeas
petitions—viz., whether Padilla abrogated our holding in
Armentero I.7 We ordered supplemental briefing on Padilla’s
impact on our holding in Armentero I, and, after receiving the
initial round of briefs, granted the government’s then-pending
petition for panel rehearing to allow full consideration of the
continuing vitality of our original decision. See 382 F.3d
1153.
II. Fugitive Disentitlement
In its opening supplemental brief, the government advised
this court of the facts recited above concerning Armentero’s
tody imposed by the Executive — the traditional core of the Great Writ.
. . . His detention is thus not unique in any way that would provide [an]
arguable basis for a departure from the immediate custodian rule.” Padilla,
124 S. Ct. at 2721 (citations omitted).
7The footnote reserving the question stated:
In Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed.
1898 (1948), we left open the question whether the Attorney
General is a proper respondent to a habeas petition filed by an
alien detained pending deportation. Id., at 189, 193, 68 S.Ct.
1443. The lower courts have divided on this question, with the
majority applying the immediate custodian rule and holding that
the Attorney General is not a proper respondent. Compare
Robledo-Gonzales v. Ashcroft, 342 F.3d 667 (C.A.7 2003)
(Attorney General is not proper respondent); Roman v. Ashcroft,
340 F.3d 314 (C.A.6 2003) (same); Vasquez v. Reno, 233 F.3d
688 (C.A.1 2000) (same); Yi v. Maugans, 24 F.3d 500 (C.A.3
1994) (same), with Armentero v. INS, 340 F.3d 1058 (C.A.9
2003) (Attorney General is proper respondent). The Second Cir-
cuit discussed the question at some length, but ultimately
reserved judgment in Henderson v. INS, 157 F.3d 106 (1998).
Because the issue is not before us today, we again decline to
resolve it.
Padilla, 124 S. Ct. at 2718 n.8.
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absence from custody. The government made no argument,
however, concerning the impact of Armentero’s flight on his
ability to press this appeal. To the contrary, the government
argued that Armentero’s fugitive status only underscored why
Armentero’s appeal was not moot,8 viz., why the court could
reach the merits of Armentero I. Only in its supplemental
reply brief, to which Armentero had no chance to respond
before argument, did the government urge this court to dis-
miss the appeal on the basis of the “fugitive disentitlement”
8The parties agree that the case is not moot. Nevertheless, “we have an
independent duty to consider sua sponte whether a case is moot.” Demery
v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004). On this issue, I find the
logic of the en banc Sixth Circuit in an analogous case persuasive. In
Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.) (en banc), cert. denied,
539 U.S. 941 (2003), the court concluded that a habeas petition filed by
a similarly-situated detainee who had been released from physical custody
was not moot:
Although Rosales is not currently being detained, his immigra-
tion parole can be revoked by the INS at any time for almost any
reason. Unlike parole granted following incarceration for a crimi-
nal conviction, Rosales need not do anything for the INS to
revoke his parole; for instance, the INS can revoke Rosales’s
parole if it deems such revocation to be “in the public interest.”
Thus, Rosales’s “release” into the United States does not consti-
tute a termination of detention; it simply constitutes a reprieve
from detention. Under these circumstances, we believe that Ros-
ales is threatened with an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial decision. We
therefore conclude that Rosales’s appeal is not moot.
Rosales-Garcia, 322 F.3d at 395-96 (citation and footnotes omitted); see
also Khotesouvan v. Morones, 386 F.3d 1298 (9th Cir. 2004) (considering
the merits of habeas petitions filed by a group of petitioners even though
some had been released); Yong v. INS, 208 F.3d 1116, 1118 n.1 (9th Cir.
2000). The Supreme Court’s decision in Martinez alters the legal land-
scape for the detention of Armentero and may well foreordain the result
on the merits of the issue presented should it ever be reached. Since Marti-
nez, however, the government has not informed us of any change in its
position on the merits of this case, which was — and remains — that it
can re-detain Armentero “at any time for almost any reason.” Armentero’s
petition is therefore not moot.
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doctrine. Under this doctrine, appellate courts may, at their
discretion, “dismiss an appeal or writ in a criminal matter
when the party seeking relief becomes a fugitive.” Degen v.
United States, 517 U.S. 820, 823 (1996); see also Ortega-
Rodriguez v. United States, 507 U.S. 234, 242 (1993). The
government’s argument, which the majority adopts, is
unavailing for three separate, but equally compelling, reasons.
First, although we have held that the fugitive disentitlement
doctrine does apply in immigration cases, see Antonio-
Martinez v. INS, 317 F.3d 1089, 1092 (9th Cir. 2002), it is “a
‘severe’ sanction that we do not lightly impose,” id. at 1091
(quoting Degen, 517 U.S. at 828). Courts have generally
applied the doctrine only when defendants abscond from cus-
tody during trial, or before or while serving their sentence.
When a fugitive has absconded from parole or probation,
we have twice declined to dismiss the appeal. See United
States v. Gonzalez, 300 F.3d 1048, 1051 (9th Cir. 2002);
United States v. Van Cauwenberghe, 934 F.3d 1048, 1054-55
(9th Cir. 1991). Although neither Gonzalez nor Van Cauwen-
berghe are squarely on point, both cases relied on the extent
to which the purposes of the doctrine are not as directly impli-
cated when — as is arguably the case here — the appellant
has not absconded from incarceration, and held that the exer-
cise of our discretion to apply the doctrine was inappropriate.
Second, the issue presently before this court does not
directly implicate Armentero’s liberty. We are not faced with
the serious and valid concern articulated by the Antonio-
Martinez court — that the appeal has the “ ‘heads I win, tails
you’ll never find me’ quality that justifies disentitlement in
other contexts.” 317 F.3d at 1093; see also Sapoundjiev v.
Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004). All we would be
deciding for now is who the proper respondent is to
Armentero’s habeas petition; whether the case should proceed
further could be decided thereafter.
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More specifically: As highlighted in Antonio-Martinez, the
Supreme Court articulated several factors in Degen as perti-
nent to deciding whether the fugitive disentitlement should be
invoked:
Some [of the factors] focus on the wrongfulness of
the defendant’s conduct: Disentitlement punishes
those who evade the reach of the law and thus dis-
courages recourse to flight. Others focus on the con-
sequences of the defendant’s absence: Flight
frustrates the execution of judgment should the gov-
ernment prevail; by invoking the doctrine, we “avoid
making decisions that could not be enforced.”
317 F.3d at 1091-92 (quoting Gonzalez, 300 F.3d at 1051)
(citations omitted).
Neither of these considerations are pertinent here, as long
as we are considering only the proper respondent issue.
Deciding that question alone would not encourage future liti-
gants to flee, nor would our resolution of the issue be unen-
forceable. Additionally, any concern about judicial resources
cuts the other way, given the considerable amount of time this
court — and the parties and amici — have already devoted to
fully briefing and arguing the proper respondent question.
Further, regardless of who the proper respondent is, the
parties agree that it cannot be the INS, for the reasons we
summarized in Armentero I. See 340 F.3d at 1071 & n.7.
Also, the government has not (entirely) waived the proper
respondent issue: The government argued in its opening sup-
plemental brief only that “the Attorney General and the Secre-
tary of DHS are not proper respondents after Padilla, and that
no one else above the Field Office Director in DHS’s organi-
zational framework is either.” While the government did pur-
port to “waive” the precise identity of the proper respondent
as long as these criteria are met,9 what matters for the present
9Whether a failure to name a proper respondent is ever a jurisdictional
defect, and therefore not subject to waiver, is a complicated question, as
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is that the government is arguing that both the respondent
named and the respondents we determined in Armentero I to
be proper are not adequate.
There is, therefore, no way that this panel could reach the
merits of Armentero’s appeal at this stage of the litigation
without first remanding the case to the district court to allow
substitution of a proper respondent — the ultimate remedy
prescribed in Armentero I. That is to say, even if we agreed
with the government’s current argument that Padilla controls,
there would have to be a remand to allow Armentero to name
his immediate custodian as his respondent.
Upon the inevitable remand to the district court, the gov-
ernment could then invoke fugitive disentitlement as a reason
why the district court should not reach the underlying merits
of Armentero’s claim. At that juncture, application of the
fugitive disentitlement doctrine might indeed be compelled by
Antonio-Martinez; at the very least, it would be a closer ques-
tion. We granted the petition for rehearing, however, only to
consider a single procedural issue. There is no reason
grounded in the purposes underlying the fugitive disentitle-
ment doctrine for invoking our discretion to apply that doc-
trine before deciding the proper respondent issue.
Finally, even if a convincing argument existed supporting
application of the fugitive disentitlement doctrine at this stage
of the proceedings, the government only raised this argument
in its supplemental reply brief, not at any point in its original
waiver might implicate Article III redressability concerns. See Smith v.
Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004). We have recognized, how-
ever, that absent such redressability concerns, the identity of the proper
respondent is waivable. See id. at 355 & n.4; see also Padilla, 124 S. Ct.
at 2728 (Kennedy, J., concurring) (“Because the immediate-custodian and
territorial-jurisdiction rules are like personal jurisdiction or venue rules,
objections to the filing of petitions based on those grounds can be waived
by the Government.”).
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supplemental brief or in any of its previous filings — includ-
ing the petition for rehearing, filed long after Armentero
absconded.10
Failure to raise an argument in an opening brief constitutes
waiver, see Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066
n.5 (9th Cir. 2003), even if the reply brief is in response to
supplemental briefing ordered by the court, see Guam v.
Fejeran, 687 F.2d 302, 304 n.1 (9th Cir. 1982).11 It goes with-
out saying — or at least it should — that
All arguments for reversal must appear in the open-
ing brief, so that the appellee may address them. We
have consistently refused to consider arguments
withheld until the reply brief. The [government] has
not offered a reason for omitting this question from
its opening brief. We find it inexplicable. Procedural
rules apply to the government as well as to defen-
dants.
Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir. 1990) (cita-
tions omitted). As the fugitive disentitlement doctrine is dis-
cretionary, not a legal requirement, it is all the more
inappropriate to reach out and decide it where, as here, it was
not properly raised.
10At oral argument, the government suggested that Armentero should
have been on notice with regard to the fugitive disentitlement argument
because the fact section of its opening supplemental brief revealed that
Armentero had walked away from his placement at the halfway house.
The fugitive disentitlement doctrine was nowhere mentioned in the brief,
however. Stating facts that could give rise to an argument is not fair notice
of the argument.
11In limited cases, we have recognized that an argument raised in a
reply brief may be considered, so long as the adverse party would suffer
no prejudice from our consideration of the issue — for example, if it had
briefed the issue anyway. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3
(9th Cir. 2004). That is not the case here.
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In short, I would not apply the fugitive disentitlement doc-
trine, but would proceed to decide the issue on which we
granted rehearing.
III. Proper Respondent
That issue, reserved in Padilla, is “whether the Attorney
General is a proper respondent to a habeas petition filed by an
alien detained pending deportation.” 124 S. Ct. at 2718 n.8.
The lineage of this question is well-traced by our earlier deci-
sion in Armentero I, so I will not repeat that analysis here.
In considering the merits of the issue on which we granted
rehearing, the government’s curious litigation position,
alluded to earlier, is critical: The government did not argue in
Armentero I that the immediate custodian was the proper
respondent. Rather, it argued that the proper respondent was
the District Director (now the “Field Office Director”) — the
supervisor of the local office of the then-INS. Moreover, the
government argued then, and continues to suggest now, that,
so long as a detainee files his habeas petition in the district of
confinement, the immediate custodian rule need not apply.12
In such a case, the government purports to “waive” whether
the proper respondent is the Field Office Director or a subor-
dinate, so long as it is no one superior to the Field Office
Director.
To me, this selective waiver position is untenable. If the
immediate custodian rule does not apply, then it does not
apply. There is no “next-immediate-custodian,” or “intermedi-
ate custodian,” rule that governs in the breach. Nor may the
12On rehearing, the government has advised the court that it is currently
undertaking an internal review of its procedures to determine the appropri-
ate official to name as the respondent in immigration habeas petitions, if
not the immediate custodian. I fail to see how the executive branch can by
regulation determine the procedural question presently before this court,
as that question concerns only judicial, not administrative, proceedings.
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government through a purported “waiver” dictate a respon-
dent who was not named in this case. We cannot fault a peti-
tioner for failing to name an improper respondent chosen by
the government. Consequently, I consider this case on the
premise that the government has waived the “immediate cus-
todian” rule, and that we are to decide who is the proper
respondent if not the immediate custodian.
Our holding in Armentero I was predicated on the conclu-
sion that, once the immediate custodian rule does not apply,
there are no reasons that counsel against naming the Attorney
General and Secretary of Homeland Security — the officials
who ultimately, in reality, can decide whether to keep
Armentero detained — as respondents in immigration habeas
petitions. I still find that general conclusion persuasive,
although I would modify the appropriate custodian in Mariel
Cuban cases, for reasons that will appear.
A. The Immediate Custodian Rule
Padilla traced the immediate custodian rule directly to the
Supreme Court’s decision in Wales v. Whitney, in which the
Court concluded that the federal habeas statute “contem-
plate[s] a proceeding against some person who has the imme-
diate 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.”
114 U.S. at 574. To the extent that the rule has a statutory
foundation, that foundation is one sentence in 28 U.S.C.
§ 2243, which provides that “[t]he writ, or order to show
cause shall be directed to the person having custody of the
person detained.”
Traditionally, a petition for a writ of habeas corpus “ad
subjiciendum” proceeded in much the same way as a petition
for a writ of certiorari proceeds today: Granting the petition
was not dispositive of the merits; instead, the writ would issue
for good cause shown, to allow the court to inquire into the
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basis for the prisoner’s confinement. See 3 WILLIAM BLACK-
STONE, COMMENTARIES *129-31; Sabino v. Reno, 8 F. Supp. 2d
622, 627 (S.D. Tex. 1998). As one district court recently sum-
marized,
We often think of habeas corpus as the remedy the
prisoner seeks, i.e., that if the prisoner is entitled to
relief, the court will issue a writ of habeas corpus,
which will end his imprisonment. But as the older
statutes show, the writ of habeas corpus merely initi-
ates the proceedings. It is analogous in this respect
to the writ of certiorari, another prerogative writ still
in use. When the Supreme Court grants a writ of cer-
tiorari, it is bringing the case before it for decision
rather than deciding it on the merits. The same is
true in the case of habeas corpus.
Roman v. Ashcroft, 162 F. Supp. 2d 755, 759 (N.D. Ohio
2001).
At the time of Wales, then, directing the writ to the imme-
diate custodian was a practical necessity. It was the immediate
custodian who was best suited physically to bring the prisoner
before the court, regardless of his authority to effectuate the
prisoner’s release.
This understanding prevailed until 1941, when the Supreme
Court, in Walker v. Johnston, 312 U.S. 275 (1941), unani-
mously approved the growing practice of conducting show-
cause proceedings before issuing the writ.13 Between them,
the petition and the respondent’s “traverse,”14 the Court con-
13The Court had implicitly sanctioned such show-cause procedures as
far back as 1830, see Ex parte Watkins, 28 U.S. (3 Pet.) 193, 196 (1830),
but did not explicitly uphold its universal validity until Walker.
14A traverse is a common-law pleading that constitutes “[a] formal
denial of a factual allegation made in the opposing party’s pleading.”
BLACK’S LAW DICTIONARY 1538 (8th ed. 2004).
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cluded, would be sufficient to determine the viability of issu-
ance of the writ, unless factual issues were in dispute, and an
evidentiary hearing was therefore necessary. See id. at 284.
Under that procedure, if the petition is granted and the writ
issues, the petitioner can be set free without ever coming into
the courtroom.
Although courts embraced Walker slowly at first, it has
since become standard practice in the federal courts, to the
point that most federal habeas petitions today are adjudicated
without formal production of the “body.”15 As Roman summa-
rized,
As a result of the courts’ approval of show cause
orders in lieu of the writ, and of the rule of Walker,
now codified in § 2243, actual production of the
petitioner’s body in court is necessary only in those
cases in which (1) the court does not dismiss the
petition sua sponte on the ground that it is facially
insufficient; (2) the court issues the writ rather than
a show cause order, or the court determines, after
considering the return to the show cause order, that
a hearing is necessary; and (3) the petition, together
with the answer, presents issues of fact. This is a
vanishingly small category of cases.
162 F. Supp. 2d at 760.
It seems, then, that the immediate custodian rule, at least as
enunciated in Wales, is based on what is today a legal anach-
ronism: that the petitioner is actually to be brought before the
court. In the pre-Walker context, concerns over the power of
the jailer to bring the body before the court were necessarily
15For an academic version of this argument, and its implications, see
Megan A. Ferstenfield-Torres, Who Are We To Name? The Applicability
of the “Immediate-Custodian-as-Respondent” Rule to Habeas Claims
Under 28 U.S.C. § 2241, 17 GEO. IMMIGR. L.J. 431, 461-63 (2003).
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paramount. Today, however, the more central question raised
in a habeas petition is whether the respondent has the author-
ity to effectuate the petitioner’s release.16 See, e.g., Abu Ali v.
Ashcroft, 350 F. Supp. 2d 28 (D.D.C. 2004) (analyzing
whether jurisdiction existed over a habeas petition brought by
a U.S. citizen detained by the Saudi Arabian government by
focusing on the power of the respondent to provide the
requested relief). This historical context explains why the
immediate custodian is not an inflexible, jurisdictional man-
date, but instead is subject to exceptions based on practical
considerations. See, e.g., Padilla, 124 S. Ct. at 2728-29 (Ken-
nedy, J., concurring). The question we face is which such con-
siderations predominate here, in light of the government’s
“intermediate custodian” position.
B. Padilla and the REAL ID Act of 2005
The primary consideration cutting against the universal
application of the immediate custodian rule to immigration-
related habeas petitions when we decided Armentero I, and at
the time the Supreme Court handed down Padilla, was the
fact that, at those times, many habeas petitions “filed by an
alien detained pending deportation” did not concern aliens
who were detained. See Armentero I, 340 F.3d at 1060 n.2
(noting that “non-detainees under INS control, such as those
under an order of deportation or removal, may also file habeas
petitions”). Instead, most immigration habeas petitions were
challenges to final orders of removal.17 In such cases, in my
16For example, upon a district court’s grant of a habeas petition, pre-
sumably the immediate custodian must first contact his superiors to ascer-
tain whether the decision will be appealed before he may release the
prisoner.
17Of the six circuit cases cited in Padilla’s footnote 8 — where the
Court reserved the application of the immediate custodian rule to immigra-
tion habeas petitions — the other five were challenges to removal/
deportation orders and not to present physical confinement. See Robledo-
Gonzales v. Ashcroft, 342 F.3d 667 (7th Cir. 2003); Roman v. Ashcroft,
340 F.3d 314 (6th Cir. 2003); Vasquez v. Reno, 233 F.3d 688 (1st Cir.
2000); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998); Yi v. Maugans, 24
F.3d 500 (3d Cir. 1994).
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view, under Padilla’s analysis of the immediate custodian
rule, that rule would not have applied. See, e.g., 124 S. Ct. at
2719 (“[T]he immediate physical custodian rule, by its terms,
does not apply when a habeas petitioner challenges something
other than his present physical confinement.”). Several district
courts have so decided since Padilla. See, e.g., Somir v.
United States, 354 F. Supp. 2d 215, 216-18 & n.1 (E.D.N.Y.
2005) (holding that Padilla does not apply to a petition chal-
lenging a removal order, not challenging “present physical
confinement”); Campbell v. Ganter, 353 F. Supp. 2d 332,
336-38 (E.D.N.Y. 2004) (same).
With the passage of the REAL ID Act of 2005, Pub. L. No.
109-13, div. B, 119 Stat. 231, however, immigration habeas
petitions challenging “something other than . . . present physi-
cal confinement” have been largely, if not entirely, elimi-
nated. The Act creates new 8 U.S.C. § 1252(a)(5), which
provides that:
Notwithstanding any other provision of law (statu-
tory or nonstatutory), including section 2241 of title
28, United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title,
a petition for review filed with an appropriate court
of appeals in accordance with this section shall be
the sole and exclusive means for judicial review of
an order of removal entered or issued under any pro-
vision of this Act, except as provided in subsection
(e).
Id. § 106(a)(1)(B), 119 Stat. at 310. The Conference Report
on the REAL ID Act states that “section 106 would not pre-
clude habeas review over challenges to detention that are
independent of challenges to removal orders. Instead, the bill
would eliminate habeas review only over challenges to
removal orders.” H.R. CONF. REP. NO. 109-72, at 175 (2005).18
18Whether, and to what degree, such a foreclosure of the writ may
implicate the Suspension Clause, U.S. CONST. art. I, § 9, cl. 2; see INS v.
St. Cyr, 533 U.S. 289 (2001), is not an issue in this case, and therefore one
upon which I express no opinion.
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As the new statute is apparently intended to eliminate the
class of immigration habeas petitions concerning challenges
to removal orders, I consider the present petition on its own
facts.
This case does concern the propriety of physical confine-
ment.19 Yet, although this case may initially appear close
enough to the “core challenges” category described by the
Padilla Court that the principles governing the proper respon-
dent should be the same, the government is not willing to
embrace that position, presumably because immigration
detainees are kept in a wide range of facilities, including some
as to which BICE exercises little day-to-day control. See
Armentero I, 340 F.3d at 1068-69. I conclude that the govern-
ment’s proposed respondent, the Field Office Director, is not
proper, at least in Mariel Cuban cases.
C. Mariel Cubans
Like the litigants in many of the recent indefinite immigra-
tion detention cases, Armentero is a Mariel Cuban — a Cuban
national who was part of the Mariel Boatlift of 1980. Critical
to my conclusion is that Mariel Cubans, unlike other classes
of immigrants subject to potentially indefinite detention, are
covered by a specific regulation adopted in 1987 (the “Cuban
Review Plan,” 8 C.F.R. § 212.12) governing their detention
and eligibility for parole.20 A “Cuban Review Panel”21 is
19The crux of Armentero’s case, on the merits, is whether his potentially
indefinite detention is unlawful. That issue, seemingly, has been resolved
in his favor by Clark v. Martinez, 125 S. Ct. 716 (2005), in which the
Supreme Court extended its holding barring indefinite detention of admis-
sible aliens in Zadvydas v. Davis, 533 U.S. 678 (2001), to inadmissible
aliens. See Martinez, 125 S. Ct. at 722-27. Whether Martinez does, as
appears, foreordain the result in this case is a separate question, and one
that I would not reach at this stage, given that we must, on my view of the
case, remand to the district court in any event.
20In rejecting the argument that 8 U.S.C. § 1231(a)(6) may be read as
authorizing the indefinite detention of inadmissible aliens such as the Mar-
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responsible for periodic review of each detainee’s suitability
for parole. If the panel finds the detainee suitable for parole,
it so recommends to the Associate Commissioner for Enforce-
ment, who then decides whether to exercise his discretion to
release the detainee. See 8 C.F.R. § 212.12(d)(4)(iii). The ulti-
mate decision is up to the Associate Commissioner for
Enforcement, director of BICE’s Office of Enforcement in
Washington, D.C. See id. § 100.2(c)(2).
Under the regulations, once paroled, a detainee may gener-
ally be re-detained only at the discretion of the Associate
Commissioner. Specifically, “[t]he Associate Commissioner
for Enforcement shall have authority, in the exercise of dis-
cretion, to revoke parole in respect to Mariel Cubans. A dis-
trict director may also revoke parole when, in the district
director’s opinion, revocation is in the public interest and cir-
cumstances do not reasonably permit referral of the case to
the Associate Commissioner.” Id. § 212.12(h) (emphasis
added). Importantly, just as the decision to parole a Mariel
iel Cubans, the Supreme Court in Martinez presumably rendered the regu-
lations I discuss obsolete. In the five months since Martinez, however, no
administrative action to revise the Cuban Review Plan has been proposed
by the government. I therefore proceed on the assumption that these regu-
lations remain in force in practice, as well as in theory.
21The “Cuban Review Panel” is an ad hoc body formed on a case-by-
case basis from the staff of the Bureau of Immigration and Customs
Enforcement (BICE) by the “Director of the Cuban Review Plan,” an offi-
cial appointed by the Associate Commissioner for Enforcement. See 8
C.F.R. § 212.12(c). As § 212.12(d)(1) provides,
A Cuban Review Panel shall, except as otherwise provided, con-
sist of two persons. Members of a Review Panel shall be selected
from the professional staff of the Service. All recommendations
by a two-member Panel shall be unanimous. If the vote of a two-
member Panel is split, it shall adjourn its deliberations concern-
ing that particular detainee until a third Panel member is added.
A recommendation by a three-member Panel shall be by majority
vote. The third member of any Panel shall be the Director of the
Cuban Review Plan or his designee.
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Cuban is generally the purview of the Associate Commis-
sioner (based on the recommendation of the Cuban Review
Panel), see id. § 212.12(b), (d), so too the decision to revoke
parole is also generally that official’s responsibility. The dis-
trict director is only empowered to act when “circumstances
do not reasonably permit referral of the case to the Associate
Commissioner.”
In my view, the significance of these regulations is that the
government has decided that oversight authority over the
detention of Mariel Cubans is specifically not the purview of
local officials, except in extraordinary circumstances. Were a
local official — be it the warden of the jail or the district
director — to release Armentero from custody,22 the official
would be violating federal regulations by so doing. In this cir-
cumstance, a habeas petition naming the immediate custodian
or the Field Office Director would be naming a respondent
incapable of providing the requested relief.
At least in the case of the Mariel Cubans, then, BICE’s
internal regulations concerning authority over detention and
parole are inconsistent with its invocation of Padilla to
require the naming of a local official even if the immediate
custodian is not the respondent. The most junior official who
can release Armentero is the Associate Commissioner for
Enforcement.23 For these reasons, I would not apply BICE’s
version of an “intermediate” custodian rule to the Mariel
Cubans.
22Courts have traditionally not adhered to the immediate custodian rule
in habeas petitions challenging parole determinations. See, e.g., Billiteri v.
U.S. Bd. of Parole, 541 F.2d 938 (2d Cir. 1976).
23Consequently, whether the Associate Commissioner is a more suitable
respondent than the Attorney General or the Secretary of Homeland Secur-
ity is a question I do not here reach. The government is not arguing that
any of these officials is a proper respondent, the majority does not address
the question, and the parties have not addressed the significance of the
Mariel Cuban regulations.
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D. Forum-Shopping Concerns
One last point deserves mention: The government, in argu-
ing against our opinion in Armentero I, suggests that the prin-
ciple there adopted would allow similarly situated petitioners
to forum-shop from among any courts with personal jurisdic-
tion over the Attorney General and the Secretary of Homeland
Security — presumably, all ninety-four district courts. Yet,
the government’s post-Padilla satisfaction with an “interme-
diate” custodian suggests that its ultimate concern is not, as
it suggests, the identity of the official the detainee sues, but
the forum in which the detainee sues them. So conceived, the
government’s custodian rule becomes nothing but an indirect
— but effective — means by which the government can gen-
erally require habeas petitions to be brought in the district of
confinement.
As the Supreme Court emphasized over thirty years ago,
venue principles provide adequate assurance against forum-
shopping by habeas petitioners. See Braden v. Thirtieth Judi-
cial Circuit Court of Ky., 410 U.S. 484 (1973). Braden
rejected Ahrens v. Clark, 335 U.S. 188 (1948), in which the
Court had held that, absent special circumstances, habeas peti-
tions should generally be filed in the district of confinement.24
Noting that traditional considerations of venue would allevi-
ate any forum-based abuse of the writ and that there is no con-
stitutional basis for the district-of-confinement rule, Braden
concluded that a district court need only have personal juris-
diction over the respondent named in a habeas petition.
Padilla left Braden intact, at least in these respects. Justice
Kennedy so acknowledged in his concurrence for himself and
Justice O’Connor. See Padilla, 124 S. Ct. at 2728-29 (Ken-
nedy, J., concurring).25 Additionally, the Court so acknowl-
24Braden reached this result by disagreeing with Ahrens over the mean-
ing of the “within their respective jurisdictions” language in 28 U.S.C.
§ 2241(a). See 410 U.S. at 495-500.
25As Justice Kennedy’s and Justice O’Connor’s votes were essential to
the result reached by the majority, their view of the scope of the majority’s
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edged in another case decided on the same day, see Rasul v.
Bush, 124 S. Ct. 2686, 2698 (2004) (“No party questions the
District Court’s jurisdiction over petitioners’ custodians. Sec-
tion 2241, by its terms, requires nothing more.” (citing Bra-
den, 410 U.S. at 495)); see also Padilla, 124 S. Ct. at 2721
(“We have interpreted [§ 2241] to require ‘nothing more than
that the court issuing the writ have jurisdiction over the custo-
dian.’ ” (citing Braden, 410 U.S. at 495)). True, Padilla and
Rasul do appear at points to be in some tension with regard
to the interaction between Braden and the appropriate custo-
dian rule. Still, reading Padilla and Rasul together, I conclude
that Braden continues to stand for the propositions that the
district-of-confinement requirement enunciated in Ahrens is
no longer an appropriate reading of 28 U.S.C. § 2241, at least
where the immediate custodian is not the respondent. Instead,
venue is the appropriate mechanism to prevent forum-
shopping by petitioners. Consequently, Braden remains an
obstacle to the contention that venue considerations are insuf-
ficient to avoid forum-shopping by petitioners.
In light of this discussion, then, I see no reason why the dis-
trict of confinement should have any bearing on the identity
of the respondent. Put another way, I do not read Padilla as
sanctioning the use of the intermediate custodian rule champi-
oned by the government as a means of restoring Ahrens’s
district-of-confinement rule through the back door.26 Unless
rule is entitled to particular weight. See, e.g., Schmitz v. Zilveti, 20 F.3d
1043, 1045 (9th Cir. 1994) (“Because three other justices dissented [in
Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145
(1968)], the vote of either Justice White or Justice Marshall was necessary
to the formation of a majority voting for reversal. Justice White’s concur-
rence has therefore been given particular weight.” (citing Middlesex Mut.
Ins. Co. v. Levine, 675 F.2d 1197, 1200 (11th Cir. 1982))).
26As Padilla recognized, the immediate custodian rule follows from the
language of § 2243, which identifies the immediate custodian as the party
to whom the writ of habeas corpus should ordinarily be directed. Section
2243, however, says nothing about any district-of-confinement rule.
7392 ARMENTERO v. INS

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Padilla requires us to apply the immediate custodian rule —
and, for the reasons discussed above, I conclude that it does
not in this case, as the rule is not jurisdictional — there is no
other independent reason to require a petitioner such as
Armentero to name his immediate (or intermediate) custodian
as respondent.
Moreover, just as petitioners should not be permitted to
forum-shop, the government should not be allowed to forum-
shop either. Yet adherence to BICE’s “intermediate custodi-
an” rule would accomplish just that. By choosing the district
of confinement, the government could fix the forum for a
detainee’s habeas claim, as well as overwhelm particular dis-
trict courts. See Armentero I, 340 F.3d at 1069-70.
IV. Conclusion
Regardless of how I would resolve the proper respondent
issue, which is a close call on the unique facts of this case,
dismissing Armentero’s appeal under the guise of the discre-
tionary fugitive disentitlement doctrine is not necessary,
appropriate, or prudent. I therefore respectfully dissent.
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