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MICHAEL v. IMMIGRATION & NATURALIZATION SERVS.

September 19, 1994

MARCUS ANDRE MICHAEL, A 39 060 024, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICES AND DISTRICT DIRECTORS AND AGENTS, Respondent.



The opinion of the court was delivered by: JOHN G. KOELTL

 Koeltl, D.J.

 Petitioner Marcus Andre Michael seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1994) to stay his deportation by the Immigration and Naturalization Service (the "INS").

 Petitioner is a native and citizen of Guyana. He was admitted to the United States as a lawful permanent resident on August 2, 1985. He currently resides in Brooklyn, New York. On February 23, 1994 petitioner pleaded guilty to a charge of criminal possession of a weapon in the third degree, in violation of N.Y. Penal Law § 265.02, before the Supreme Court of the State of New York, Kings County. After sentencing, petitioner was incarcerated in the Correctional Institution for Men in East Elmhurst, New York.

 In May 1994, the INS ordered petitioner to show cause why he should not be deported upon serving his sentence, charging that he was deportable pursuant to § 241(a)(2)(C) of the Immigration and Nationality Act of 1952, as amended, which provides that,

 
Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of Title 18) is deportable.

 8 U.S.C. § 1251(a)(2)(C) (1994). The petitioner was detained by the INS at the Federal Detention Center in Oakdale, Louisiana. On June 13, 1994, petitioner was released from INS custody upon Posting a $ 10,000 bond. On July 12, 1994, Immigration Judge John A. Duck, Jr. in Oakdale, Louisiana ordered petitioner deported to Guyana.

 Petitioner did not appeal the deportation order, but filed a motion with Judge Duck to reopen and reconsider the deportation proceedings, in order to apply for a waiver of deportation pursuant to § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994). Petitioner sought to stay his deportation and also sought a change of venue to New York City. His motion alleged the possibility that a case pending before the Bureau of Immigration Appeals (the "BIA"), Matter of Esposito (See Esposito v. INS, 987 F.2d 108 (2d Cir. 1993)), would establish his eligibility for discretionary § 212(c) relief from deportation. Section 212(c) on its face provides only that the Attorney General has discretion to waive specified bases for exclusion of certain aliens lawfully admitted for permanent residence who temporarily proceeded abroad. But in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), the Court of Appeals for the Second Circuit held that the Attorney General has the same discretion as in § 212(c) to waive grounds for deportation that are analogous to the grounds the Attorney General has the power to waive for exclusion. The BIA applies the decision in Francis and other Courts of Appeals have followed it. The basis for these decisions has been the implicit equal protection guarantee of the Fifth Amendment due process clause. See generally, Bedoya-Valencia v. INS, 6 F.3d 891, 895-98 (2d Cir. 1993).

 On August 19, 1994, Judge Duck denied the motions to reopen, to stay the deportation, and for a change of venue.

 On August 23, 1994, the District Director of the INS issued petitioner a notice to surrender for deportation in Oakdale, Louisiana on September 26, 1994. On August 24, 1994, petitioner appealed the denial of his motion to reopen to the BIA and requested a stay of deportation pending appeal from the INS. On August 30, 1994, the INS acknowledged receipt of petitioner's application for a stay and informed petitioner that processing the application usually requires 30 to 180 days. petitioner's appeal and application for a stay are still pending, but in all likelihood will not be decided before petitioner has been ordered to appear for deportation on September 26, 1994.

 On September 12, 1994, petitioner filed the current petition for habeas corpus relief to stay his deportation pending a decision of his appeal of the denial of his motion to reopen and his application for a stay. On September 16, 1994 this Court heard argument on the petition.

 Respondents in this case, denominated as the INS and District Director and Agents, represented by the United States Attorney, argue that this Court is without jurisdiction to grant petitioner habeas corpus relief, because it does not possess personal jurisdiction over the petitioner's custodian, the INS District Director in New Orleans, Louisiana. *fn1"

 The respondents are correct that a writ of habeas corpus is directed to the custodian of a detainee and no writ may issue where there is no personal jurisdiction over the custodian. See generally, Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976); Chukwurah v. United States, 813 F. Supp. 161, 168 (E.D.N.Y. 1993); Peon v. Thornburgh, 765 F. Supp. 155, 156 (S.D.N.Y. 1991).

 The respondents represent that the proper custodian in this case is the INS District Director in Louisiana who has responsibility for the petitioner's surrender and deportation. (Brief for Respondents at 4-5.) The August 23, 1994 INS notice of surrender was issued by the INS District Director in Louisiana. He is certainly the official who could respond to any court orders requiring that the petitioner be produced for court ...


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