The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for Writ of Habeas Corpus
filed pursuant to 28 U.S.C. § 2241. Petitioner is currently confined
in Nesquehoning, Pennsylvania. For the reasons which follow, the petition
should be transferred to the United States District Court for the Middle
District of Pennsylvania.
The documents submitted by petitioner reflect that by decision dated
September 5, 2003 (Petitioner's Ex. E), an Immigration Judge ordered the
termination of removal proceedings on the ground that the Immigration
Judge found that petitioner was a "national" of the United States. On
September 10, 2003, the Board of Immigration Appeals ("BIA") issued an
Order (Petitioner's Ex. F) granting an application of the United States
Department of Homeland Security requesting a stay of execution of the
Immigration Judge's bond order of September 5, 2003, which had ordered
respondent released on his own recognizance.
In a decision dated March 9, 2004 (Petitioner's Ex. H), the BIA found
that petitioner's alienage had been established, and the BIA therefore vacated the
Immigration Judge's September 5, 2003 decision which had terminated the
removal proceedings. Accordingly, the BIA remanded the case to the
Immigration Judge for further proceedings and the entry of a new
decision. Petitioner initiated the present habeas proceedings to
challenge the BIA's March 9, 2004 decision.
The statute governing jurisdiction over writs of habeas corpus provides
that writs may be granted by "the district courts . . . within their
respective jurisdictions." 28 U.S.C. § 2241(a). This provision has been
interpreted to mean that, pursuant to § 2241, habeas relief may only be
sought in the district court having jurisdiction over the petitioner's
"custodian." See Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484 (1973); Billiteri v. United States Bd. of Parole,
541 F.2d 938, 948 (2d Cir. 1976) ("In order for a court to entertain a
habeas action, it must have jurisdiction over the petitioner's
custodian."); Beeman v. Pennsylvania, 1988 WL 13258, at *1 (E.D. Pa.
Feb. 19, 1988). The Court of Appeals for the Third Circuit has held that
"[i]t is the warden of the prison or the facility where the detainee is
held that is considered the custodian for purposes of a habeas action."
Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994) (holding that warden of
INS facility where detainee was held was custodian for purposes of habeas
In the present case, petitioner is confined in Nesquehoning,
Pennsylvania which is located in Carbon County.*fn2 See, e.g., Lansford-Coaldale Joint Water Auth. v.
Tonolli Corp., 4 F.3d 1209, 1213 (3d Cir. 1993) (acknowledging that
Nesquehoning, Pennsylvania is in Carbon County); Lee v. Ametek, Inc.,
1990 WL 45744, at *1 (E.D. Pa. Apr. 16, 1990) (same). Carbon County is
not located within the jurisdictional boundaries of the Eastern District
of Pennsylvania, see 28 U.S.C. § 118(a), but instead, is located in the
Middle District, see 28 U.S.C. § 118(b); see also Lee, 1990 WL 45744, at
*1 (acknowledging that Carbon County is located in the Middle District of
Pennsylvania). As such, the petition should be transferred to the Middle
District of Pennsylvania. See Yi, 24 F.3d at 507 (warden of INS facility
were custodians for purposes of habeas action and the fact that "the
district director has the power to release the detainees does not alter
our conclusion"); Valdivia v. INS, 80 F. Supp.2d 326, 333 (D. N.J. 2000)
(following Third Circuit's holding in Yi, court transferred habeas
petition to the district court having jurisdiction over the warden of the
INS facility where petitioner was confined); Wang v. Reno,
862 F. Supp. 801, 812 (E.D. N.Y. 1994) (holding that the warden of the
INS detention facility, not the INS district director, is the appropriate
respondent for habeas purposes); see also Billiteri, 541 F.2d at 948
(dismissing habeas petition for lack of jurisdiction since petitioner
failed to name warden of prison as respondent); Beeman, 1988 WL 13258, at
*1 (transferring habeas case for lack of jurisdiction on the ground that
court lacked jurisdiction over proper respondent, the
warden of the prison where petitioner was incarcerated).
It is also noted that the Immigration Court proceedings in petitioner's
case are being held in York, Pennsylvania which lies in the Middle
District of Pennsylvania, see 28 U.S.C. § 118(b); see, e.g., Idasetima
v. Wabash Metal Prods., Inc., 2001 WL 1526270, at *2 (E.D. Pa. Nov. 29,
2001) (noting that York is located in the Middle District of
Pennsylvania). Moreover, in the interest of justice, it would be more
practical and equitable to transfer petitioner's application to the Middle
District because of, among other things, the inconvenience of
transferring petitioner from Carbon County to Philadelphia for any
hearings. See, e.g., Gellock v. Freeman, 1987 WL 7208, at *1 (E.D. Pa.
Feb. 27, 1987) (transferring § 2254 petition to district where petitioner
and custodian were located); Yacoubian v. Petsock, 1986 WL 2564, at *1
(E.D. Pa. Feb. 25, 1986) (same). Accordingly, the habeas petition should
be transferred to the Middle District of Pennsylvania.
My Recommendation follows. RECOMMENDATION
AND NOW, this ___ day of April, 2004, upon consideration of the
Petition for Writ of Habeas Corpus, for the reasons stated in the
accompanying Report, it is RECOMMENDED that this case be TRANSFERRED to
the United ...