Julio E. Roman v. John Ashcroft

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0283P (6th Cir.)
File Name: 03a0283p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JULIO E. ROMAN,
Petitioner-Appellee,
v.
JOHN ASHCROFT et al.,
Respondents-Appellants.
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No. 02-3253
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-01236—Ann Aldrich, District Judge.
Argued: June 10, 2003
Decided and Filed: August 13, 2003
Before: MOORE and GIBBONS, Circuit Judges;
SCHWARZER, Senior District Judge.*
_________________
COUNSEL
ARGUED: Alison R. Drucker, UNITED STATES
DEPARTMENT OF J USTICE, IMMIGRATION
2 Roman v. Ashcroft et al. No. 02-3253
LITIGATION, CIVIL DIVISION, Washington, D.C., for
Appellants. David W. Leopold, DAVID WOLFE LEOPOLD
& ASSOCIATES, Cleveland, Ohio, for Appellee.
ON BRIEF: Alison R. Drucker, UNITED STATES
DEPARTMENT OF J USTICE, IMMIGRATION
LITIGATION, CIVIL DIVISION, Washington, D.C., for
Appellants. David W. Leopold, DAVID WOLFE LEOPOLD
& ASSOCIATES, Cleveland, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which
SCHWARZER, D. J., joined. GIBBONS, J. (pp. 28-29),
delivered a separate opinion concurring in the result.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Respondents-
Appellants United States Attorney General, John Ashcroft;
former Acting Commissioner of the Immigration and
Naturalization Service (“INS”), Kevin Rooney; former
Cleveland District Director of the INS, Robert L. Brown; and
New Orleans District Director of the INS, Christine G. Davis
(collectively “the government”) appeal the district court’s
judgment granting Petitioner-Appellee Julio E. Roman
(“Roman”) habeas corpus relief. Roman, an Ohio resident,
was convicted of federal crimes in the Northern District of
Ohio and incarcerated in Kentucky. The INS charged Roman
with being removable on three grounds related to his federal
convictions, and Roman was transferred from a federal prison
in Kentucky to an INS detention facility in the Western
District of Louisiana.
In July 2000, an immigration judge (“IJ”) found Roman
removable and statutorily ineligible for discretionary relief
from removal pursuant to § 212(h) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(h). The Board of
Immigration Appeals (“BIA”) affirmed this decision on

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No. 02-3253 Roman v. Ashcroft et al. 3
128 U.S.C. § 2241 and 28 U.S.C. § 2243 both use the terms
“application” and “applicant” rather than “petition” and “petitioner.”
Ho wever, many § 224 1 cases refer to petitions and petitioners, as do the
parties to this action. Therefore, we will refer to Roman’s § 2241
application for a writ of habeas corpus as a petition and to R oman as a
petitioner throughout this opinion.
appeal. Roman filed a § 2241 petition for a writ of habeas
corpus,1 arguing that § 212(h) violates the Fifth Amendment
Equal Protection Clause. Although Roman was being
detained in the Western District of Louisiana at the time, he
filed the habeas corpus petition in the district where he
resided prior to his incarceration and where he was convicted
of the crimes underlying his removal — the Northern District
of Ohio. The government moved to dismiss Roman’s
application because the district court lacked personal
jurisdiction over the respondents and because § 212(h) does
not violate the Equal Protection Clause. The district court
concluded that it had personal jurisdiction over the Attorney
General, and granted Roman a writ of habeas corpus on
grounds that § 212(h) violates the Equal Protection Clause.
The district court then ordered the case remanded to the BIA
to allow Roman to pursue § 212(h) relief. The government
timely appealed.
Because Roman’s action must be brought in the district
court having jurisdiction over “the person having custody of
the person detained,” 28 U.S.C. § 2243, we VACATE the
district court’s decision to grant Roman habeas corpus relief
and REMAND to the district court with instructions to
determine whether the Cleveland District Director and the
INS Commissioner are proper respondents to Roman’s
petition. In the event that the district court concludes that
these officials are not proper respondents, we instruct the
district court to transfer the action to the Western District of
Louisiana.
4 Roman v. Ashcroft et al. No. 02-3253
I. FACTS AND PROCEDURE
Roman is a 46-year old native and citizen of the Dominican
Republic. He has been a lawful permanent resident of the
United States since October 29, 1996, and was last admitted
to the United States on February 8, 1997. Roman is married
and has six children who are United States citizens.
On September 30, 1999, Roman pleaded guilty in the
Northern District of Ohio to fraud and misuse of visas,
permits, and other documents, in violation of 18 U.S.C.
§ 1546(a), and misuse of social security numbers, in violation
of 42 U.S.C. § 408(a)(7)(C). Roman was sentenced to 15
months of imprisonment for these two felonies and served 13
months of the sentence.
While Roman was serving his sentence, the INS issued a
Notice to Appear and lodged an additional charge against
Roman. Pursuant to INA § 237, 8 U.S.C. § 1227, the INS
charged Roman with being removable on three grounds:
(1) conviction relating to document fraud, see INA
§ 237(a)(3)(B)(iii); (2) conviction of a crime involving moral
turpitude committed within five years of entry for which a
sentence of one year or longer may be imposed, see INA
§ 237(a)(2)(A)(i); and (3) conviction of an aggravated felony,
see INA § 237(a)(2)(A)(iii).
Roman was transferred from the Lexington Federal Medical
Center in Lexington, Kentucky, to the Oakdale Detention
Center in Oakdale, Louisiana, and passed into INS custody.
At his removal hearing in Oakdale, Roman admitted to the
INS’s factual allegations but denied that he was removable.
According to Roman, because he adjusted his status in 1991,
he was not deportable for committing a crime involving moral
turpitude within five years after his admission to the country.
Roman also argued that he was not removable because his
document fraud was a first offense undertaken solely to assist
close family members, which does not constitute an
aggravated felony. See INA § 101(a)(43)(P), 8 U.S.C.

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No. 02-3253 Roman v. Ashcroft et al. 5
§ 1101(a)(43)(P). The IJ did not allow Roman to testify about
his conviction of document fraud.
On August 11, 2000, the IJ entered a decision rejecting
Roman’s arguments that he was not deportable for
committing a crime involving moral turpitude and that he had
not committed an aggravated felony. The decision implied
that the five-year period mentioned in the moral turpitude
ground of removal started running from the date of Roman’s
last entry, February 8, 1997. Moreover, because the criminal
plea agreement stated that Roman possessed false documents
for approximately thirty persons, the IJ rejected Roman’s
contention that he engaged in document fraud solely to assist
close family members.
The IJ found Roman removable, denied Roman’s request
for cancellation of removal pursuant to INA § 240A(a), 8
U.S.C. § 1229b(a), and ordered Roman removed to the
Dominican Republic. The IJ did not address the possibility
of discretionary relief from removal pursuant to § 212(h).
The BIA affirmed the IJ’s decision and denied Roman’s
motion to reopen to apply for cancellation of removal.
Meanwhile, in May 2001, Roman filed a pro se petition for
a writ of habeas corpus in the United States District Court for
the Northern District of Ohio. He named four respondents —
the Attorney General, the INS Commissioner, the former INS
District Director in Cleveland, Ohio, and the INS District
Director in New Orleans, Louisiana. Roman alleged that his
due process rights were violated by the retroactive application
of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), that his
procedural due process rights were violated because the IJ did
not allow him a meaningful opportunity to be heard on the
merits of his requests for § 240A or § 212(h) relief, and that
his right to equal protection of the laws was violated because
these forms of relief “discriminate[] between members of a
class based on a distinction that is not rationally related to
[their] purpose.” Joint Appendix at 17 (Habeas Pet.).
6 Roman v. Ashcroft et al. No. 02-3253
2The government has w aived this argum ent on appeal.
Roman filed a motion seeking a stay of removal, and the
district court enjoined the INS from executing a final order of
removal pending the outcome of judicial proceedings. The
case was briefly held in abeyance while the court awaited the
Supreme Court’s disposition of INS v. St. Cyr, 533 U.S. 289
(2001).
The government moved to dismiss Roman’s petition in July
2001. The government challenged personal jurisdiction and
venue, noted Roman’s failure to exhaust administrative
remedies with respect to § 212(h),2 and argued that § 212(h)
does not violate the Equal Protection Clause.
In September 2001, the district court issued an order
granting the government’s motion to dismiss for want of
personal jurisdiction as to the New Orleans District Director
and denying the motion as to the Attorney General. Roman
v. Ashcroft, 162 F. Supp. 2d 755, 758, 759 (N.D. Ohio 2001)
[Roman I]. The order did not discuss whether the INS
Commissioner and Cleveland District Director were
appropriately named as respondents. Id. at 758. Concluding
that it had jurisdiction over the action, the district court
directed the government to show cause why Roman’s writ
should not issue. Id. at 765.
In January 2002, the district court granted Roman a writ of
habeas corpus, holding that § 212(h) violated the Equal
Protection Clause by differentiating between legal permanent
residents and other aliens. Roman v. Ashcroft, 181 F. Supp.
2d 808, 814 (N.D. Ohio 2002) [Roman II]. The district court
also found that the IJ’s failure to give Roman an opportunity
to be heard at his deportation hearing was harmless error. Id.
at 816. The case was remanded to the BIA to allow Roman
to pursue his claim for a discretionary waiver of removal,
pursuant to § 212(h). Id.

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No. 02-3253 Roman v. Ashcroft et al. 7
The government timely appealed the district court’s
September 2001 and January 2002 orders.
II. JURISDICTION OVER ROMAN’S HABEAS
CORPUS PETITION
The district court confined its analysis of the government’s
motion to dismiss for lack of personal jurisdiction to the New
Orleans District Director and the Attorney General. Although
the government appeals the district court’s conclusion that the
Attorney General is a properly named respondent to Roman’s
petition, Roman did not file a cross-appeal of the district
court’s conclusion that it lacked jurisdiction over the New
Orleans District Director. Moreover, because the district
court expressly declined to grant or deny the government’s
motion to dismiss as to the Cleveland District Director and
the INS Commissioner, we decline to consider on appeal
whether the district court lacks jurisdiction over these two
respondents. Therefore, our analysis is confined to the
question of whether the district court erred by finding
personal jurisdiction over the Attorney General.
We review de novo a district court’s determinations as to
the existence of personal jurisdiction. Tobin v. Astra Pharm.
Prods., Inc., 993 F.2d 528, 542 (6th Cir.), cert. denied, 510
U.S. 914 (1993). The district court concluded that it had
jurisdiction over Roman’s petition because one of the four
named respondents to the petition — the Attorney General —
was Roman’s custodian and because the district court had
personal jurisdiction over the Attorney General. Reasoning
that, under the circumstances, it was appropriate for Roman
to name someone other than his immediate custodian, the
district court concluded that the Attorney General should be
deemed Roman’s custodian. Because the Attorney General
was subject to service of process in the Northern District of
Ohio, the district court concluded that it had jurisdiction over
Roman’s petition. The government appeals the district
court’s September 2001 order, arguing that the Attorney
General was not Roman’s custodian for habeas corpus
8 Roman v. Ashcroft et al. No. 02-3253
3Pursuant to the Homeland Security Act of 2002 (“HSA”), Pub. L.
No. 107-296 , 116 Stat. 2135 (No v. 25, 2002), the Department of
Hom eland Security performs the functions formerly performed by the
INS. The Savings Provision of the HSA pro vides that “[r]eferences
relating to an agency that is transferred to the Dep artment in statutes,
Executive orders, rules, regulations, directives, or delegations of authority
that precede such transfer or the effective date of this Act shall be deemed
to refer, as appropriate, to the Departm ent, to its office rs, emp loyees, or
agents, or to its corresponding organizational units or functions.” HSA
§ 151 2(d ), 6 U.S.C. 55 2(d). However, within the context of this civil
action, we need not conclud e that the parties’ arguments about the identity
of a detained alien’s custodians should be deemed to refer to the
corresponding o fficials under the HSA . The H SA provides,
[s]ubject to the authority of the Secretary under this Act, pending
civil actions shall continue notwithstanding the enactment of this
Act or the transfer of an agency to the Department, and in such
civil actions, proceedings shall be had, and judgm ents rendered
and enforced in the same manner and with the same effect as if
such enactment or transfer had not occurred.
HSA § 15 12(c), 6 U.S.C. § 552(c). Thus, we proceed in this civil action
as if the HSA were not yet in effect, with the understanding that our
analysis will be applicable in future cases by analogy to the corresponding
custodians of detained aliens under the HSA.
purposes and that the district court therefore lacked personal
jurisdiction over the Attorney General. Roman argues that
the Attorney General should be deemed his custodian for
habeas corpus purposes, and that the alternative decision
would effectively deprive Roman of an opportunity to seek
habeas corpus review under the circumstances.
Because we do not believe that extraordinary circumstances
justify our classification of the Attorney General as Roman’s
custodian in this case, we conclude that the district court erred
by recognizing the Attorney General as an appropriate
respondent to Roman’s petition.
A. The Immediate Custodian Rule
A district court shall direct a writ of habeas corpus “to the
person having custody of the person detained.”3 28 U.S.C.
§ 2243; see Braden v. 30th Judicial Circuit Ct. of Ky., 410

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No. 02-3253 Roman v. Ashcroft et al. 9
U.S. 484, 494-95 (1973) (“The writ of habeas corpus does not
act upon the prisoner who seeks relief, but upon the person
who holds him in what is alleged to be unlawful custody.”).
Therefore, a court has jurisdiction over a habeas corpus
petition only if it has personal jurisdiction over the
petitioner’s custodian. Braden, 410 U.S. at 495. To evaluate
jurisdiction, a court therefore must first identify the
petitioner’s custodian and then determine whether it has
personal jurisdiction over that custodian.
“Historically, the question of who is ‘the custodian,’ and
therefore the appropriate respondent in a habeas suit, depends
primarily on who has power over the petitioner and . . . on the
convenience of the parties and the court.” Henderson v. INS,
157 F.3d 106, 122 (2d Cir. 1998), cert. denied, 526 U.S. 1004
(1999). As a general rule, a petitioner should name as a
respondent to his habeas corpus petition “the individual
having day-to-day control over the facility in which [the
alien] is being detained.” Vasquez v. Reno, 233 F.3d 688, 696
(1st Cir. 2000), cert. denied, 534 U.S. 816 (2001). This is
known as the “immediate custodian rule” because it
recognizes only the petitioner’s “immediate” or “direct”
custodian as the “person having custody” over him under
§ 2243. Courts have deemed these immediate custodians
proper respondents to habeas corpus petitions as a “practical”
matter “based on common sense administration of justice.”
Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945).
Pursuant to the immediate custodian rule, a prisoner filing
a habeas corpus petition should generally name as a
respondent the warden of the prison where he is confined.
Vasquez, 233 F.3d at 691. Similarly, a detained alien filing
a habeas corpus petition should generally name as a
respondent the person exercising daily control over his affairs.
Courts have said that a detained alien’s immediate custodian
is either the warden of the facility where the alien is detained
or the INS District Director of the district where the alien is
10 Roman v. Ashcroft et al. No. 02-3253
4For courts treating the warden of the facility where an alien is
detained as the alien’s im med iate custo dian, see Yang You Yi v. Maugans,
24 F.3d 500, 507 (3d Cir. 1994) (“It 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 . . . . because it is the warden that has day-to-
day contro l over the priso ner and who can produce the actual body.”);
Aphayavong v. INS, 169 F.Supp. 2d 1 194, 119 7 (S.D. Cal. 2001);
Samoeun v. Reno, No. Civ.A. 00-610 L., 2001 WL 21047 2, at *2 (D. R.I.
Jan. 3, 200 1); Chukwurah v. United States, 813 F. Supp. 161, 168 (E.D.
N.Y. 199 3); Peon v. Thornbu rgh, 765 F. Supp. 155, 156 (S.D. N.Y.
1991). For courts treating the INS D istrict Director of the district where
the alien is detained as the alien’s immediate custodian, see Henderson v.
INS, 157 F.3d 106, 126 (2d Cir. 1998), cert. denied, 526 U.S. 1004
(1999); Santiago v. INS, 134 F. Sup p. 2d 1102, 110 3 (N.D. Cal. 2001 );
Williams v. Reno, No. 00-71241, 2001 WL 85867, at *2 (E.D. Mich. Jan.
11, 200 1); Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286, 291 (E.D. N.Y.
2000); Ozoanya v. Reno, 968 F. Sup p. 1, 8 (D. D .C. 19 97); Carva jales-
Cepeda v. Meissner, 966 F. Supp. 207 , 208 (S.D. N.Y . 1997).
being detained.4 We conclude that although the warden of
each detention facility technically has day-to-day control over
alien detainees, the INS District Director for the district where
a detention facility is located “has power over” alien habeas
corpus petitioners. Henderson, 157 F.3d at 122.
District Directors head INS district offices, which are
considered “the basic operating unit[s] of the [INS].” Charles
Gordon, Stanley Mailman, and Stephen Yale-Loehr, 1
Immigration Law & Procedure § 3.03[5], at 3-16 (2003). The
“district directors have authority and responsibility to grant or
deny various applications or petitions submitted to the [INS],
to initiate any authorized proceeding in their district, and . . .
to issue notices to appear in removal proceedings.” Id.; see 8
C.F.R. § 103.1(g)(2)(ii), amended by 68 Fed. Reg. 10922-01
(Mar. 6, 2003). As the heads of the basic operating units of
the INS, District Directors oversee the confinement of aliens
in all three kinds of INS detention facilities — “Service
Processing Centers,” “Contract Detention Facilities,” and
“[s]tate or local government facilities used by INS
through Intergovernmental Service Agreements (IGSAs)
to hold detainees for more than 72 hours.”

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No. 02-3253 Roman v. Ashcroft et al. 11
Detention Operations Manual: Admissions and
Release 1 (Sept. 20, 2000), available at
http://www.immigration/gov/graphics/lawsregs/guidance.htm
(last modified Mar. 19, 2003). The wardens of all these
facilities act pursuant to INS Detention Standards and are
considered agents of the INS District Director in their district.
It is clear that the INS does not vest power over detained
aliens in the wardens of detention facilities because the INS
relies on state and local governments to house federal INS
detainees. Whatever daily control state and local
governments have over federal INS detainees, they have that
control solely pursuant to the direction of the INS. See
Samoeun v. Reno, No. Civ.A. 00-610 L., 2001 WL 210472,
at *2 (D. R.I. Jan. 3, 2001) (“[I]t has been observed that it is
the INS District Director who exercises primary control over
an INS detainee because the warden acts as an agent for the
District Director.”). Therefore the INS District Director for
New Orleans is Roman’s immediate custodian for habeas
corpus purposes.
Because the Northern District of Ohio concluded that it did
not have personal jurisdiction over the New Orleans District
Director, however, we must decide whether persons other
than Roman’s immediate custodian — such as the Attorney
General — also have custody of him for § 2243 purposes. At
oral argument, Roman suggested that the immediate custodian
rule should not apply in the context of habeas corpus petitions
of aliens. See, e.g., Vasquez, 233 F.3d at 691 (observing that
“the case law concerning the identity of the proper respondent
to habeas petitions brought by detained aliens is much more
sparse and far less coherent” than the case law about the
proper respondent to prisoner habeas corpus petitions);
Rachel E. Rosenbloom, Is the Attorney General the Custodian
of an INS Detainee? Personal Jurisdiction and the
“Immediate Custodian” Rule in Immigration-Related Habeas
Actions, 27 N.Y.U. Rev. L. & Soc. Change 543, 546 (2001-
2002) (maintaining that the immediate custodian rule “has no
place in the adjudication of immigration-related habeas
actions” and that the Supreme Court has been reluctant to
12 Roman v. Ashcroft et al. No. 02-3253
5“In cases where the . . . petitioner has filed in the district of
confinement . . . the government has raised no objection to the Attorney
General, the INS, or the INS Com missioner being named.” Rachel E.
Rosenbloom, Is the Attorney General the Custodian of an INS Detainee?
Personal Jurisdiction and the “Immediate Custodian” Rule in
Immigration-Related Habeas Actions, 27 N.Y.U . Rev. L. & Soc. Change
543, 577 (2001-200 2). In Mojica v. Reno, 970 F. Supp. 130 (E.D. N.Y.
1997), aff’d in part, 157 F.3d 106 (1998), the Eastern District of New
York reasoned that four respondents should be deemed custodians under
§ 2243 because “[t]he habeas statute does not specify who the person
having custody will be, nor does it state that there may only be one
custodian. Nowhere does the statute speak of an immediate custodian.”
Id. at 166 (quotations omitted). We note that this logic would counsel
against an immediate custodian rule in the context of prisoner habeas
corp us petitions as well.
apply the rule in the context of habeas corpus petitions filed
by detained aliens). One court reviewing an alien’s habeas
corpus petition concluded that it had personal jurisdiction
over four named respondents — two INS District Directors,
the Commissioner of the INS, and the Attorney General —
because they were all custodians of the petitioner and able to
be reached by service of process.5 Mojica v. Reno, 970 F.
Supp. 130, 166 (E.D. N.Y. 1997), aff’d in part, 157 F.3d 106
(1998).
We see no reason to apply a different rule for identifying a
petitioner’s custodian depending on whether the petitioner is
an alien or a prisoner. Section 2243 states that a writ of
habeas corpus “shall be directed to the person having custody
of the person detained,” which suggests that only one
individual can properly be named as the respondent to a
habeas corpus petition. 28 U.S.C. § 2243 (emphasis added);
see Vasquez, 233 F.3d at 693 (suggesting that a petitioner
must name one custodian, and may not “choose from among
an array of colorable custodians”). Although Congress may
not have “intended the article, ‘the,’ to have . . . dispositive
significance,” see Chavez-Rivas v. Olsen, 194 F. Supp. 2d
368, 374 (D. N.J. 2002) (“‘[T]he’ could mean ‘a’ or ‘any’ as
easily as it could mean ‘that.’”), we agree with the First

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No. 02-3253 Roman v. Ashcroft et al. 13
Circuit that “[t]he immediate custodian rule effectuates
section 2243's plain meaning and gives a natural,
commonsense construction to the statute.” Vasquez, 233 F.3d
at 693.
Moreover, as a practical matter, “the [immediate custodian]
rule is clear and easily administered.” Id. The adjudication
of habeas corpus petitions filed by detained aliens would
become considerably more difficult to administer if we were
to adopt a broader definition of “custodian” in this context.
In other words, interpreting the word “custodian” in § 2243 to
refer to not only an alien’s immediate custodian, but also
other officials with control over the alien’s detention and
release — such as the Commissioner of the INS or the
Attorney General — would establish a regime in which
several courts would have personal jurisdiction over an
alien’s “custodians.” Aliens could then engage in forum
shopping, choosing among several different districts as long
as personal jurisdiction existed over at least one of the various
custodians and venue requirements were satisfied. Although
venue considerations would ensure that a petitioner could not
file in every jurisdiction, courts would nevertheless be forced
“in many cases to undertake fact-intensive analyses of venue
and forum non conveniens issues.” Vasquez, 233 F.3d at 694.
Thus, in this respect, adopting a broader definition of
“custodian” would complicate and extend the duration of
habeas corpus proceedings.
Roman points out that even if a broader definition of
“custodian” might delay courts in their evaluation of a single
habeas corpus petition, it would not slow the adjudication of
habeas corpus petitions any more than it is already slowed by
the backlog of such petitions in jurisdictions housing INS
detention facilities. In essence, Roman suggests that the
regime he proposes would not cause any problems greater
than those under the existing regime. However, we see no
reason to solve one problem by creating another. This is
particularly true because Congress is in a better position to
solve the problem of overloaded dockets. When prisoner
14 Roman v. Ashcroft et al. No. 02-3253
habeas corpus petitions caused dockets to become backlogged
in the 1940s, Congress gave federal prisoners the ability to
attack collaterally their convictions in the court where they
were sentenced rather than in the jurisdiction of their
confinement. 28 U.S.C. § 2255; see Vasquez, 233 F.3d at
694. Requiring alien habeas corpus petitioners to name their
immediate custodians as respondents may contribute to the
problem of overcrowded dockets in particular districts.
However, given that our recognition of a broader definition of
“custodian” might delay the adjudication of alien habeas
petitions in other ways, we feel confident that we should not
attempt to construct a judicial solution to this problem.
For all the reasons discussed above, we conclude that a
detained alien generally must designate his immediate
custodian — the INS District Director for the district where
he is being detained — as the respondent to his habeas corpus
petition.
B. Beyond the Immediate Custodian Rule
Although we conclude that the immediate custodian rule
generally applies to alien habeas corpus petitioners, we note
the possibility of exceptions to this rule. “[T]he rules treating
the immediate custodian as the only proper respondent . . .
have not been applied consistently or in a rigid fashion.”
Henderson, 157 F.3d at 124. In fact, most courts adopting the
immediate custodian rule for alien habeas corpus petitioners
have explicitly noted the possibility of exceptions even as
they adopt the rule. See, e.g., Vasquez, 233 F.3d at 696
(“[W]e can envision that there may be extraordinary
circumstances in which the Attorney General appropriately
might be named as the respondent to an alien habeas
petition.”); Chavez-Rivas, 194 F. Supp. 2d at 375; Nwankwo
v. Reno, 828 F. Supp. 171, 174 (E.D. N.Y. 1993) (“While the
general rule may be sound as a matter of policy, the language
of the habeas corpus statute does not compel rigid adherence
to it in every case.”). Arguably, as a jurisdictional matter, “it
is, or should be, enough that the respondent named has the

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No. 02-3253 Roman v. Ashcroft et al. 15
6Although few circuits have specifically rejected the po ssibility that
the Attorney General may be a custodian in the co ntext of alien habeas
corpus petitions, several circuits have said that the Attorney General is not
a prisoner’s custodian under § 22 43. See, e.g., Sande rs v. Benne tt, 148
F.2d 19, 2 0 (D .C. Cir. 194 5); Blango v. Th ornburgh, 942 F.2d 1487,
1491-92 (10th Cir. 1991 ); Guerra v. Meese, 786 F.2d 414, 41 6 (D.C. Cir.
power or ability to produce the body when so directed by the
court pursuant to process lawfully issued and served upon
him.” Ahrens v. Clark, 335 U.S. 188, 199 (1948) (Rutledge,
J., dissenting). In this case, Roman urges this court to make
an exception to the immediate custodian rule by concluding
that the Attorney General can be considered Roman’s
custodian and thus a proper respondent to Roman’s petition.
The district court below declined to apply the immediate
custodian rule, instead concluding that the Attorney General
was an appropriate respondent to Roman’s habeas corpus
petition. On appeal, the government maintains that the
district court erred by departing from the immediate custodian
rule and basing personal jurisdiction on the Attorney General.
Roman counters that the district court properly made an
exception to the immediate custodian rule because the
exception was necessary to preserve Roman’s right to seek
habeas corpus relief. Specifically, Roman asks this court “to
allow jurisdiction over an indirect custodian in circumstances
where a detainee would otherwise be deprived of his right to
habeas review.” Roman Br. at 15. We must consider, first,
whether the Attorney General may ever be properly named as
an alien’s custodian and, second, whether the circumstances
of this case require our recognition of the Attorney General as
a proper respondent to Roman’s habeas corpus petition.
1. The Attorney General as Custodian
A corollary of the immediate custodian rule is that
generally the Attorney General is considered neither the
custodian of a detained alien for purposes of § 2243 nor a
proper respondent to an alien’s habeas corpus petition.6 See
16 Roman v. Ashcroft et al. No. 02-3253
1986); Jon es v. Biddle, 131 F.2d 853, 854 (8th Cir. 1942 ), cert. denied,
318 U.S. 784 (19 43). According to the First Circuit, “[t]hese courts
reason that while the Attorney G eneral is the ultimate overseer of all
federal prisoners, see 18 U.S.C. § 4001[(b)](2), she is not responsible for
day-to-day prison operations and does not hold prisoners in actual
physical custody.” Vasquez, 233 F.3d at 691.
Vasquez, 233 F.3d at 696; Carvajales-Cepeda v. Meissner,
966 F. Supp. 207, 209 (S.D. N.Y. 1997) (“It is well settled . . .
that the Attorney General is not the custodian of I.N.S.
detainees.”). In the context of prisoners, courts have rejected
the notion of the Attorney General as respondent because
although he has supervisory and regulatory custody of all
federal prisoners, “it is apparent that . . . he does not have
actual physical custody of a prisoner who is confined in a
federal prison or other federal institution.” Jones v. Biddle,
131 F.2d 853, 854 (8th Cir. 1942), cert. denied, 318 U.S. 784
(1943). As with prisoners, the Attorney General does not
have actual physical custody of aliens detained by the INS.
Although we agree with those courts that have concluded
that the Attorney General is not generally a proper respondent
to any habeas corpus petition, nonetheless we recognize that
the Attorney General’s relationship to prisoners differs
significantly from his relationship to detained aliens. The
Attorney General’s role as the ultimate overseer of federal
prisoners, see 18 U.S.C. § 4001(b)(2), is not equivalent to his
designation as the legal custodian of aliens because he plays
a much larger role in the immigration context, see Chavez-
Rivas, 194 F. Supp. 2d at 374 (“Congress has consistently
designated the Attorney General as the legal custodian of
immigration habeas petitioners.”).
The Second Circuit has described the Attorney General’s
unique role in the immigration context as follows:
There is . . . no question that the Attorney General has
the power to produce the petitioners, remains the ultimate
decisionmaker as to matters concerning the INS, see 8

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No. 02-3253 Roman v. Ashcroft et al. 17
7Section 1103(a)(1) has been amended by the HSA, 116 Stat. 2135
(2002).
8The government contends that the reference to the “Attorney
General” in the mandatory detention statute is a mere placeholder for all
immigration officers because more than one entity is empowered to take
an alien into custod y. See 8 C.F.R. § 287 .7(d) (2001), amended by 68
Fed. Reg. 35273-01 (June 13, 2003). As Roman notes, however, other
provisions of the Illegal Immigration Reform and Immigrant
Respo nsibility Act of 1996 delegate specific responsibilities to other
immigration officials without naming the A ttorney G eneral as a pro xy.
See Arias-Agramonte v. Comm’r of INS, No. 00 Civ. 2412(RWS), 2000
W L 1617 999, at *6 (S.D. N.Y. Oc t. 30, 2000).
U.S.C. § 1103(a)(1),7 and is commonly designated a
respondent in these cases, even when personal
jurisdiction over the immediate custodian clearly lies. In
this respect, the extraordinary and pervasive role that the
Attorney General plays in immigration matters is
virtually unique. Thus, the Attorney General continues
to be in complete charge of the proceedings leading up to
the order directing the[] removal [of aliens] from the
country and has complete discretion to decide whether or
not removal shall be directed.
Henderson, 157 F.3d at 126 (quotations and footnote
omitted). Congress gives the Attorney General authority to
“take into custody any alien” whose criminal convictions
render him deportable or inadmissible, INA § 236(e)(1),
8 U.S.C. § 1226(c)(1),8 and has designated him as the proper
respondent in most actions reviewing the legality of removal
orders, INA § 242(b)(3)(A), 8 U.S.C. § 1252(b)(3)(A).
Arguably, “in immigration cases, the warden or district
director who has ‘day-to-day control’ [over a petitioner] is
merely an agent of the Attorney General, who has the
statutorily authorized power over aliens’ custody and
release.” See Arias-Agramonte v. Comm’r of INS, No. 00
Civ. 2412(RWS), 2000 WL 1617999, at *7 (S.D. N.Y.
Oct. 30, 2000); see Nwankwo, 828 F. Supp. at 174 (explaining
18 Roman v. Ashcroft et al. No. 02-3253
9The Eastern District of New York has rejected the imm ediate
custodian rule and regularly recognizes the Attorney General as a proper
respondent to an alien’s habeas corpus petition. See, e.g., Pena -Ro sario
v. Reno, 83 F. Supp. 2d 349, 362 (E.D. N.Y . 200 0); Pottinger v. Reno, 51
F. Supp. 2d 3 49, 3 57 (E.D . N.Y . 199 9), aff’d on other grounds, 20 00 W L
18644 77 (2d C ir. Dec. 18, 2000) (unpublished opinion).
that the Attorney General may be “an appropriate respondent
in a habeas corpus proceeding because she has the power to
direct her subordinates to carry out any order directed to her
to produce or release the petitioner”).9
In light of the degree of control which the Attorney General
has over an alien’s immediate custodian, we believe that it
may be appropriate to recognize the Attorney General as a
proper respondent to an alien’s habeas corpus petition under
certain circumstances. The nature and scope of those
circumstances remains to be determined.
2. Extraordinary Circumstances
Roman concedes that the district court’s finding of personal
jurisdiction over the Attorney General was somewhat
unusual, but argues that under the circumstances it was
justified by the importance of preserving Roman’s right to
seek habeas corpus relief. The district court reasoned that
because Roman was incarcerated in a facility in the Western
District of Louisiana with a known backlog of habeas corpus
petitions, Emejulu v. INS, 989 F.2d 771, 772 (5th Cir. 1993),
there was a risk that “Roman might be removed from the
United States before his petition could be heard on the
merits.” Roman I, 162 F. Supp. 2d at 763. The district court
found “prima facie reason to believe that removal of Roman
to the Dominican Republic prior to adjudication of the merits
of his petition would, for practical purposes, deny him the
benefit of the writ,” and concluded that the Attorney General
was a proper respondent to Roman’s petition. Id. In other
words, the district court concluded that Roman would be

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No. 02-3253 Roman v. Ashcroft et al. 19
deprived of habeas corpus relief if he were not permitted to
name the Attorney General as a respondent.
Under certain extraordinary circumstances it may be
necessary to depart from the immediate custodian rule in
order to preserve a petitioner’s access to habeas corpus relief.
In spite of “[t]he general rule . . . that a circuit judge has
jurisdiction to grant a writ of habeas corpus only if the
petitioner’s immediate custodian is located within the circuit,”
Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C. Cir. 1986)
(Bork, J.), we believe that “it is appropriate, in . . . very
limited and special circumstances, to treat the Attorney
General of the United States as the custodian,” id. at 1116.
Such circumstances may arise where a detainee does not have
a realistic opportunity for judicial review of his executive
detention. The Constitution safeguards the right to petition
for a writ of habeas corpus, U.S. Const. art. I § 9, cl. 2, and
this right should not be lightly abrogated, see, e.g., Felker v.
Turpin, 518 U.S. 651, 661-62 (1996) (suggesting that courts
will enforce only very clear statutory language repealing
habeas corpus jurisdiction). Therefore, under extraordinary
circumstances where it is necessary to preserve a person’s
access to habeas corpus relief, we may recognize the Attorney
General as a respondent to an alien’s habeas corpus petition.
One example of extraordinary circumstances is Demjanjuk
v. Meese. In Demjanjuk, a petitioner’s counsel named the
Attorney General as the respondent to the habeas corpus
petition because the government was holding the petitioner in
custody at an undisclosed location while he awaited
extradition to Israel. Demjanjuk, 784 F.2d at 1116. Because
the petitioner’s attorneys were unaware of Demjanjuk’s
location, they would have had “to file in every jurisdiction”
if the court rigidly enforced the immediate custodian rule. Id.
Judge Bork reasoned that the Attorney General was a proper
respondent under the circumstances because an exception was
necessary to ensure “that petitioner not be denied the right to
petition for a writ of habeas corpus.” Id. However, not
wanting to extend the exception any further than was
20 Roman v. Ashcroft et al. No. 02-3253
necessary to preserve Demjanjuk’s right to petition for habeas
corpus relief, the court specified that jurisdiction would
terminate if Demjanjuk’s presence in another jurisdiction
became known.
Some courts are also willing to make an exception to the
immediate custodian rule in other extraordinary
circumstances. For example, courts have noted the INS’s
ability, as a practical matter, to deny aliens any meaningful
opportunity to seek habeas corpus relief simply by
transferring aliens to another district any time they filed a
habeas corpus petition. Chavez-Rivas, 194 F. Supp. 2d at
374. Aliens remaining in detention for extended periods are
often transferred several times during their detention. See Lee
v. Ashcroft, 216 F. Supp. 2d 51, 55 (E.D. N.Y. 2002) (“[T]he
location of custody, and the identity of the day-to-day
custodian, frequently change when detainees are transferred
among INS facilities, all of which are under the control of the
Attorney General.”); Rosenbloom, supra, at 549. In light of
these transfers, one court reasoned that an alien may properly
name a respondent other than his immediate custodian
because a petition naming a higher level official, such as the
Attorney General, could be adjudicated without interruption
in the event of a transfer. Arias-Agramonte, 2000 WL
1617999, at *8 (explaining that a petition naming only one’s
immediate custodian would be dismissed when the alien was
transferred to another local district).
Although we do not believe that the mere possibility of
successive transfers would justify an exception to the
immediate custodian rule, we do believe that an exception
might be appropriate if the INS were to exercise its transfer
power in a clear effort to evade an alien’s habeas petitions. In
this case, however, Roman has not alleged facts suggesting
either that the government improperly manipulated its
authority in an attempt to deny Roman a meaningful
opportunity for relief or that Roman faced difficulties akin to
Demjanjuk’s inability to identify his immediate custodian.
Therefore, this court need not decide the appropriate scope of

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No. 02-3253 Roman v. Ashcroft et al. 21
the extraordinary circumstances exception to the immediate
custodian rule as a general matter. Rather, the facts of this
case require this court to determine only whether the alleged
crowding of a docket in the district of an alien’s confinement
justifies permitting the alien to name the Attorney General as
a respondent to his habeas corpus petition filed in the district
where he formerly resided and was convicted.
The District Court below concluded that the circumstances
justified recognizing the Attorney General as a respondent to
Roman’s petition because Roman would effectively be denied
an opportunity to seek habeas corpus relief if he named his
immediate custodian and filed his petition in the district
where he was being detained. Roman’s entire argument
hinges on the claim that he should not be required to name his
immediate custodian at the Oakdale facility as the respondent
because only the Western District of Louisiana would have
jurisdiction over Roman’s petition seeking a writ against his
immediate custodian. According to Roman, because he
would have to file his petition in the Western District of
Louisiana, he would effectively be denied an opportunity to
seek habeas relief because “the torrent of petitions flowing
from the Oakdale facility” into that district would all but
ensure that the district court would never consider Roman’s
petition prior to his deportation. See Emejulu, 989 F.2d at
772. Although at least one court has equated filing a habeas
petition in the Western District of Louisiana to being denied
“any meaningful habeas corpus relief,” Nwankwo, 828 F.
Supp. at 174, we do not believe that a crowded docket can —
without more — constitute extraordinary circumstances
justifying a departure from the immediate custodian rule. Cf.
Alcaide-Zelaya v. McElroy, Nos. 99Civ.5102(DC),
99Civ.9999(DC), 2000 WL 1616981, at *4 (S.D. N.Y. Oct.
27, 2000) (expressing “concern that the government can
‘seriously undermine the remedy of habeas corpus’ by
detaining so large a number of aliens in one facility that the
local district court is overwhelmed by a flood of habeas
petitions”).
22 Roman v. Ashcroft et al. No. 02-3253
The circumstances of Roman’s petition are not such that
our refusal to recognize the Attorney General as a respondent
will effectively deny Roman even the possibility of habeas
corpus relief. As an initial matter, there is no reason that
Roman could not have filed his habeas corpus petition in the
Western District of Louisiana; in fact, he can still do so in
light of our conclusion that we lack jurisdiction to consider
his petition. Furthermore, Roman cites only the Fifth
Circuit’s suggestion in a 1993 opinion that the Western
District of Louisiana has a very overloaded docket as
evidence of the backlog. See Emejulu, 989 F.2d at 772.
Roman cites no recent evidence of a vast discrepancy between
the habeas corpus filings per judge in that court and any other
district court, and we have been unable to find any clear
evidence of such a discrepancy.
Regardless of whether either Roman or the government can
provide convincing statistics about the caseload of the
Western District of Louisiana, we do not believe that the
possibility of an alien’s removal prior to the adjudication of
his habeas corpus petition amounts to an effective denial of
the petitioner’s opportunity to seek meaningful habeas corpus
relief. Several circuits have concluded that a petitioner meets
the jurisdictional custody requirement of § 2241 even after he
has been removed “so long as he was in custody when the
habeas petition was filed” and that a case or controversy
continues to exist as long as the petitioner “continues to suffer
actual collateral consequences of his removal.” Zegarra-
Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003); see
Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002) (noting that
“the bar on readmission of a removed alien is a legally
cognizable collateral consequence that preserves a live
controversy even after deportation of the petitioner”); Smith
v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002); Lee Moi
Chong v. INS, 264 F.3d 378, 382-83 (3d Cir. 2001). Because
the INA provides that an alien ordered removed “who again
seeks admission within 5 years of the date of such removal
. . . is inadmissible,” 8 U.S.C. § 1182(a)(9)(A)(ii), an order of
removal creates sufficient collateral consequences to render

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No. 02-3253 Roman v. Ashcroft et al. 23
a removed alien’s petition a live case or controversy, see Lee
Moi Chong, 264 F.3d at 385. Roman will not be deprived of
his opportunity to seek habeas corpus relief even if he is
removed prior to a court’s resolution of his petition.
Therefore, the circumstances of Roman’s habeas corpus
petition are not such that a departure from the immediate
custodian rule is justified at this time, and the Attorney
General is not a proper respondent to Roman’s petition. The
Northern District of Ohio erred by relying on its finding of
personal jurisdiction over the Attorney General as a basis for
jurisdiction here.
We decline to finally determine whether the district court
had jurisdiction over Roman’s habeas corpus petition on other
grounds because the district court below did not decide
whether either the Cleveland District Director or the INS
Commissioner was a properly named respondent and because
neither party briefed the matter before this court. We direct
the district court on remand to determine, consistent with the
views expressed in our opinion, whether either of these
officials is properly a respondent in this action.
III. TRANSFERRING ROMAN’S PETITION
Assuming that the district court for the Northern District of
Ohio decides on remand that none of the named respondents
were properly before it, we now consider whether the district
court erred by dismissing the New Orleans District Director
from the action rather than transferring the entire action
pursuant to 28 U.S.C. § 1631. Section 1631 provides that if
a civil action or appeal is filed in a court lacking jurisdiction,
“the court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or
appeal could have been brought at the time it was filed or
noticed.” 28 U.S.C. § 1631 (emphasis added). Upon such
transfer, “the action or appeal shall proceed as if it had been
filed in or noticed for the court to which it is transferred on
the date upon which it was actually filed in or noticed for the
24 Roman v. Ashcroft et al. No. 02-3253
court from which it is transferred.” Id. A court may decide
to dismiss an action rather than transferring it under § 1631
either because (1) no permissible federal court would have
jurisdiction over the action, or because (2) “transfer would not
be in the interest of justice.” See Jeffrey W. Tayon, The
Federal Transfer Statute: 28 U.S.C. § 1631, 29 S. Tex. L.
Rev. 189, 214 (1987).
We note that circuits have split on the question of whether
§ 1631 provides for transfers only in the event that a federal
court lacks subject matter jurisdiction or also in the event that
the court lacks personal jurisdiction. See, e.g., SongByrd, Inc.
v. Estate of Grossman, 206 F.3d 172, 179 n.9 (2d Cir.)
(noting that “the legislative history of section 1631 provides
some reason to believe that this section authorizes transfers
only to cure lack of subject matter jurisdiction”), cert. denied,
531 U.S. 824 (2000); Renner v. Lanard Toys Ltd., 33 F.3d
277, 284 (3d Cir. 1994) (explaining that a court lacking
personal jurisdiction may consider transferring the action
pursuant to § 1631); Ross v. Colo. Outward Bound Sch., Inc.,
822 F.2d 1524, 1526-27 (10th Cir. 1987) (same). Through
§ 1631, Congress “gave broad authority to permit the transfer
of an action between any two federal courts,” Ross, 822 F.2d
at 1526, and courts have effectuated Congress’s intent by
broadly construing the statute, id. at 1527. The language of
§ 1631 does not refer to any specific type of jurisdiction, only
referring broadly to “jurisdiction.” See Tayon, supra, at 224
(“The literal language of the statute . . . is broad enough to
encompass either [lack of subject matter or personal
jurisdiction].”). Moreover, a broad construction of the statute
is consistent with Congress’s intent to “protect a plaintiff
against either additional expense or the expiration of a
relevant statute of limitations in the event that the plaintiff
makes an error in trying to select the proper court within the
complex federal court system.” 17 Charles Alan Wright,
Arthur R. Miller, & Edward H. Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 4104, at 406 (2d ed. 1986)
(citing S. Rep. No. 97-275 (1982)). In light of the language
of § 1631 and its purpose, we therefore conclude that the

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No. 02-3253 Roman v. Ashcroft et al. 25
10The New Orleans District Director oversees immigration-related
services for the state of Louisiana and for So uthern Mississippi. See
http://www.immigration.gov/graphics/fieldoffices/newo rleans/index.htm
(last modified Feb. 28, 200 3).
statute applies to federal courts identifying any jurisdictional
defect, regardless of whether it involves personal or subject
matter jurisdiction.
In light of our conclusion that the Attorney General was not
a proper respondent and in light of the district court’s
conclusion that it lacked personal jurisdiction over the New
Orleans District Director, we believe that § 1631 would apply
in this case. It would have been appropriate for Roman to file
his habeas petition in the Western District of Louisiana
because it is the jurisdiction of Roman’s confinement. See
Martin v. Perez, 319 F.3d 799, 802 (6th Cir. 2003) (stating
that a § 2241 petition “must be filed in the district court that
has jurisdiction over a prisoner’s place of confinement”).
Roman named his immediate custodian, the New Orleans
District Director, as a respondent to the habeas corpus petition
that he filed in the Northern District of Ohio. Although the
district court found that the Northern District of Ohio does not
have personal jurisdiction over the New Orleans District
Director, the Western District of Louisiana would have the
requisite personal jurisdiction. “A federal court has general
jurisdiction when the defendant’s contacts with the forum
state are ‘substantial’ and ‘continuous and systematic,’ so that
the state may exercise personal jurisdiction over the defendant
even if the action does not relate to the defendant’s contacts
with the state.” Youn v. Track, Inc., 324 F.3d 409, 417-18
(6th Cir. 2003). The New Orleans District Director works in
the Western District of Louisiana and is subject to the
personal jurisdiction of that court.10
Because the Western District of Louisiana would have
jurisdiction over the New Orleans District Director, the
Northern District of Ohio district court cannot decline to
26 Roman v. Ashcroft et al. No. 02-3253
11Even if § 1631 did not permit transfers for lack of personal
jurisdiction, the action should be transferred pursuant to 28 U.S.C.
§ 1406(a). Section 1406(a) states that where venue is improper, the
district court where the action was filed “shall . . . if it be in the interest of
justice, transfer such case to any district or division in which [the action]
could have been brought,” id., regardless of whether the transferring court
lacks personal jurisdiction over the defendant, Goldlawr, Inc. v. Heiman,
369 U.S. 463, 466 (1962); Martin v. Stokes, 623 F.2d 46 9, 474 (6th Cir.
1980).
transfer the case under § 1631 on grounds that no federal
court would have jurisdiction. Therefore, the appropriateness
of a § 1631 transfer turns on whether such a transfer would be
in the interest of justice. We believe that it would be in the
interest of justice to transfer the action because a dismissal of
the action would only cause Roman to incur the additional
expense of filing the same habeas corpus petition in the
Western District of Louisiana. See 17 Wright, Miller, &
Cooper, supra, § 4104, at 406 (noting that § 1631 is intended
in part to protect petitioners from incurring additional expense
if they erroneously file in the wrong court).
For these reasons, we conclude that, if the district court on
remand finds that the Cleveland District Director and the INS
Commissioner are not proper respondents, the district court
erred by dismissing the New Orleans District Director from
the action. The district court should now transfer the action
to the Western District of Louisiana pursuant to § 1631.11
IV. CONCLUSION
For the reasons explained above, we VACATE the district
court’s judgment granting habeas corpus relief to Roman
because the Attorney General was not properly named as the
respondent in Roman’s petition for a writ of habeas corpus.
We REMAND the case to the district court with instructions
to decide whether the Cleveland District Director or the INS
Commissioner is a proper respondent consistent with this
opinion. In the event that the district court finds that these

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No. 02-3253 Roman v. Ashcroft et al. 27
officials are not proper respondents, we instruct the district
court to transfer the petition to the Western District of
Louisiana pursuant to 28 U.S.C. § 1631.
28 Roman v. Ashcroft et al. No. 02-3253
____________________
CONCURRENCE
____________________
JULIA SMITH GIBBONS, Circuit Judge, concurring. I
concur in the result in this case and agree with much of the
majority opinion’s reasoning. I write separately to note two
points.
First, whether the petitioner is a detained alien or a federal
prisoner, the weight of authority supports a determination that
the Attorney General is not a proper respondent in petitions
under 28 U.S.C. § 2241. Vasquez v. Reno, 233 F.3d 688, 691
(1st Cir. 2000) (finding that normally the Attorney General is
not the proper respondent in alien habeas cases and noting
that a number of courts have held that the Attorney General
is not a proper custodian for purposes of a prisoner’s habeas
petition); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir.1994)
(summarily dismissing the idea that the Attorney General
might be a proper respondent in an alien habeas case); Blango
v. Thornburgh, 942 F.2d 1487, 1491-92 (10th Cir. 1991) (per
curiam) (affirming district court’s dismissal of Attorney
General because the prison warden, not the Attorney General,
was the proper respondent for the prisoner’s habeas action);
Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945) (holding
that warden, not Attorney General, was proper respondent in
prisoner’s habeas petition); Jones v. Biddle, 131 F.2d 853,
854 (8th Cir. 1942) (same); Santiago v. INS, 134 F.Supp.2d
1102, 1104 (N.D. Cal. 2001) (finding that Attorney General
was not a proper respondent in a habeas action brought by an
alien); Pearce v. Ashcroft, No. 301CV1160CFD, 2003 WL
1145468, at *1 (D. Conn. Mar. 12, 2003) (concluding that the
Attorney General is not a proper respondent to an alien’s
habeas action filed pursuant to § 2241);Carvajales-Cepeda v.
Meissner, 966 F. Supp. 207, 208 (S.D.N.Y. 1997) (“It is well
settled . . . that the Attorney General is not the custodian of
INS detainees”); Wang v. Reno, 862 F. Supp. 801, 812-13
(E.D.N.Y. 1994) (finding that Attorney General was not

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No. 02-3253 Roman v. Ashcroft et al. 29
alien’s custodian for habeas purposes); Peon v. Thornburgh,
765 F. Supp. 155, 156 (S.D.N.Y. 1991) (rejecting argument
that Attorney General was alien’s custodian for purpose of
alien’s habeas petition). The majority states that the
“Attorney General’s relationship to prisoners differs
significantly from his relationship to detained aliens” and
suggests that the Attorney General has a unique role in
immigration matters that makes him more likely to be a
proper respondent in a petition brought by a detained alien
than a federal prisoner. I am not prepared to reach this
conclusion, which seems unnecessary to the result. As the
First Circuit stated in Vasquez:
The Attorney General’s role with regard to aliens is not
materially different from her role with regard to prisoners
at least not different enough to justify a rule that she is
the custodian of aliens, but not prisoners, for habeas
purposes. After all, the Attorney General is the
designated custodian of prisoners to much the same
extent as she is the designated custodian of aliens.
Compare 18 U.S.C. § 4001(2) with 8 U.S.C.
§ 1226(c)(1). And just as she has the ultimate authority
to produce the body of an alien, she has the ultimate
authority to produce the body of a prisoner.
233 F.3d at 696.
Second, in its discussion of extraordinary circumstances
which may justify departure from the immediate custodian
rule, the majority addresses hypothetical situations that are
not present here. I would limit our holding on this point to
the conclusion that a crowded docket alone cannot constitute
extraordinary circumstances, noting of course that as a factual
matter, Roman points to no evidence from which one could
find the existence of a crowded docket in the Western District
of Louisiana.

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