United States District Court, D. New Jersey
OPINION AND ORDER
Kevin Castel United States District Judge
Carlos Ramirez Portillo is a citizen of El Salvador currently
confined at the Hudson County Correctional Facility in
Kearny, New Jersey, pending resolution of his removal
proceedings. Ramirez Portillo has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. He
asserts that he has been detained by Immigration and Customs
Enforcement (“ICE”) for approximately six months
and has not received an individualized review of his custody.
He petitions for a writ ordering either his release or a
prompt bond hearing before an Immigration Judge.
move to dismiss or transfer the petition to the District of
New Jersey pursuant to Rule 12(b)(3), Fed.R.Civ.P. They urge
that pursuant to Rumsfeld v. Padilla, 542 U.S. 426
(2004), a section 2241 petition challenging the conditions of
physical confinement can only be brought in the
petitioner's district of confinement. Ramirez Portillo
opposes the motion, and urges that venue is proper in this
District because respondent Thomas Decker, the New York field
office director of ICE, is located in Manhattan.
reasons that will be explained, the Court concludes that
Padilla requires the transfer of this case. The
motion to transfer the petition to the District of New Jersey
is therefore granted.
Portillo unlawfully entered the United States on or about May
22, 2014. (Pujol Dec. ¶ 4; Pet. ¶ 22.) On August
24, 2016, his status was adjusted to that of a lawful
permanent resident. (Pujol Dec. ¶ 9; Pet. ¶ 24.)
Portillo has twice been convicted of crimes in Queens County.
(Pujol Dec. ¶¶ 11-12.) On July 2, 2016, he was
charged with robbery in the second degree, which was
subsequently resolved with a plea of guilty to petit larceny
on June 14, 2017. (Pujol Dec. ¶ 11; Pet. ¶¶
26-27.) He was sentenced to time served. (Id.) On
October 8, 2016, he was charged with criminal possession of
stolen property in the fourth degree, a crime to which he
pleaded guilty on June 14, 2017. (Pujol Dec. ¶ 12.) He
was sentenced to time served, five years' probation and
an eight-year order of protection was issued against him.
31, 2018, ICE arrested Ramirez Portillo at his home in Queens
for the purpose of placing him in removal proceedings, and
charged him as a removable alien based on his convictions for
crimes of moral turpitude within five years after his
admission, and, separately, for having been convicted of two
crimes of moral turpitude not arising out of a single
criminal scheme. (Id. ¶ 13; Pet. ¶ 30.)
Department of Homeland Security concluded that Ramirez
Portillo is subject to mandatory detention. (Pet. ¶ 31.)
His petition asserts that he has been subject to unreasonably
prolonged detention in violation of the due process
guaranteed by the Fifth Amendment. (Pet. ¶¶ 41-50,
67-73.) The Petition seeks his immediate release, or,
alternatively, an order that respondents provide him with a
constitutionally adequate, individualized hearing as to the
justification for his continued detention. (Pet. at 27.)
his arrest, Ramirez Portillo has been housed in the Hudson
County Correctional Facility. (Id. ¶¶ 13,
15.) According to ICE records, Ramirez Portillo was last
present in the State of New York to attend a criminal
proceeding in Queens County on September 14, 2018.
(Id. ¶ 15.) His removal proceedings are pending
in the Immigration Court located at 201 Varick Street in
Manhattan, and respondent Thomas Decker is located at Federal
Plaza in Manhattan. (Pet. ¶¶ 4, 12.) DISCUSSION.
the federal habeas statutes, “[d]istrict courts are
limited to granting habeas relief ‘within their
respective jurisdictions.'” Padilla, 542
U.S. at 442 (quoting 28 U.S.C. § 2241(a)).
“Accordingly, with respect to habeas petitions
‘designed to relieve an individual from oppressive
confinement,' the traditional rule has always been that
the Great Writ is ‘issuable only in the district of
confinement.'” Id. (quoting Carbo v.
United States, 364 U.S. 611, 617 (1961)); see also
id. at 443 (“for core habeas petitions challenging
present physical confinement, jurisdiction lies in only one
district: the district of confinement.”).
explained that in addition to the statutory limit on
jurisdiction, the “immediate custodian rule”
requires that for “habeas challenges to present
physical confinement . . . 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.” Id. at 435. It observed that the
immediate custodian rule and the jurisdictional provision of
28 U.S.C. § 2241 “[t]ogether . . . compose a
simple rule that has been consistently applied in the lower
courts, including in the context of military detentions:
Whenever a § 2241 habeas petitioner seeks to challenge
his present physical custody within the United States, he
should name his warden as respondent and file the petition in
the district of confinement.” 542 U.S. at 447.
Ramirez Portillo correctly notes, Padilla
“left open the question whether the Attorney General is
a proper respondent to a habeas petition filed by an alien
detained pending deportation.” Id. 435 n.8.
Padilla observed that the majority of the lower
courts to confront that question have held that the attorney
general is not a proper respondent in such proceedings, but
concluded that “[b]ecause the issue is not before us
today, we again decline to resolve it.” Id.
However, Padilla did not limit its reasoning to the
context of the “enemy combatant” who brought the
petition in that case, nor did it carve out alien detainees
from the immediate custodian rule: it merely noted that the
role of the Attorney General as a respondent was not before
to Padilla, “the overwhelming majority of
courts in this District have applied Padilla to
habeas petitions filed by incarcerated aliens challenging
their physical detention prior to deportation.”
Almazo v. Decker, 2018 WL 5919523, at *1 (S.D.N.Y.
Nov. 13, 2018) (Engelmayer, J.) (collecting cases); see
also Salcedo v. Decker, 2019 WL 339642 (S.D.N.Y. Jan.
28, 2019) (transferring proceeding to the District of New
Jersey where petitioner was housed in the Hudson County
Correctional Facility) (Abrams, J.); Lizardo v.
Whitaker, 2018 WL 6444371 ...