The opinion of the court was delivered by: Sterling Johnson, United States District Judge
Presently before the Court is Petitioner Yuen Shing Lee's
("Petitioner") pro se application for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2241 ("§ 2241"), challenging his final order of
removal. Petitioner contends that he cannot be deported as an alien
because he is either eligible for derivative citizenship or is a
"national" of the United States. This Court finds that Petitioner does
not qualify for derivative citizenship under Section 320(a) of the
Immigration and Nationality Act ("the INA"), 8 U.S.C. § 1431, as it
existed at the time of his father's naturalization on January 24, 1978,
or under the Child Citizenship Act of 2000, H.R. 2883, P.L. 106-395 ("the
CCA"). However, the Court finds that Petitioner is a national of the
United States, and thus cannot be deported under the INA. Accordingly,
his § 2241 Petition is hereby GRANTED.
Petitioner was born in Hong Kong on February 8, 1961 and entered the
United States as a lawful permanent resident on February 7, 1973. (Nandan
Decl., Ex. A.) He has resided in this country ever since. Petitioner's
father became a naturalized United States citizen on January 24, 1978,
when Petitioner was sixteen years old. (Id., Ex. B.) His mother was
naturalized on May 19, 1983. (Id., Ex. C.) There is no indication that
his parents were legally separated or divorced at the time his father
became a citizen. Petitioner registered for Selective Service on
September 9, 1980 (Pet.'s Addendum, dated Feb. 6, 2002, Ex. 1), and filed
an application for citizenship on July 13, 1998 (Pet.'s Letter, dated
March 28, 2001, Ex. 2).
On December 16, 1998, Petitioner was indicted on four counts of mail
fraud, and ultimately pled guilty. On September 23, 1999, he was
convicted of conspiracy to commit mail fraud and mail fraud, in violation
of 18 U.S.C. § 371 and 1341, and was sentenced to 6 months
On May 5, 2000, the Immigration and Naturalization Service ("the INS")
issued to Petitioner a Notice to Appear and charged Petitioner with
removability from the United States as an aggravated felon, pursuant to
§§ 237(a)(2)(A)(III), 101(a)(43)(M)(i) and 101(a)(43)(U) of the
INA. Petitioner contested his removability with the Office of Immigration
Review, and filed a pro se motion seeking derivation of citizenship
through the naturalization of his father (Nanden Decl., Ex. G.)
Immigration Judge Charles A. Wiegand, III denied the motion on December
22, 2000. (Id., Ex. H.) Subsequently, Petitioner filed an interlocutory
appeal with the Board of Immigration Appeals ("the BIA"), which the BIA
declined to entertain. (Id., Ex. J.) Petitioner has also filed an
application for political asylum, claiming fear of persecution for
violation of China's one-child policy. (Id., Ex. A.) Petitioner was
detained, pending his deportation, in the INS facility in Oakdale,
Louisiana for two years. He was released from physical custody on May
Petitioner filed the instant § 2241 petition on February 13, 2001,
contending that he cannot be deported under INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii), because he is a
citizen or a national of the United States.
The question of whether the Attorney General is a proper custodian of
an alien detained in an INS facility has divided the courts of the
Southern and Eastern Districts of New York. See Alcaide-Zelava v.
McElroy, Nos. 99 Civ. 5102, 99 Civ. 9999, 2000 WL 1616981, at *4-*5
(S.D.N.Y. Oct. 27, 2000) (citing and comparing cases, including
Arias-Agramonte v. Commissioner of INS, No. 00 Civ. 2412, 2000 WL
1059678, at *7-*9 (S.D.N.Y. Aug. 1, 2000) (discussing split in authority
and citing cases); compare Arias-Agramonte v. Commissioner of INS, No. 00
Civ. 2412, 2000 WL 1617999, at *5-*9 (S.D.N.Y. Oct. 30, 2000) (Attorney
General is proper respondent and district court has personal jurisdiction
over Attorney General); Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362
(E.D.N.Y. 2000) (Attorney General is proper respondent); Mojica v. Reno,
970 F. Supp. at 166 (same); Nwanko v. Reno, 828 F. Supp. 171, 173-176
(E.D.N.Y. 1993) (same); with (Guerrero-Musla v. Penn, No. 97 Civ. 2779,
1998 WL 273038, at *1 (S.D.N.Y. May 28, 1998) (Attorney General is not
proper respondent); Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 209
(S.D.N.Y. 1997) (same); Wang v. Reno, 862 F. Supp. 801, 812-813
(E.D.N.Y. 1994) (same)). The Second Circuit, while specifically declining
to resolve this "difficult question," has also conducted a thorough
analysis of the issue. Henderson v. INS, 157 F.3d 106, 122-28 (2d Cir.
This Court finds that the reasons articulated supporting the Attorney
General as an appropriate respondent are more persuasive. First, the
Attorney General has the power to produce, detain, or release such
petitioners and is the ultimate decision-maker on matters concerning the
INS and Petitioner's removal. See 8 U.S.C. § 1103 (a)(1) ("The
attorney General shall be charged with the administration and enforcement
of this chapter and all other laws relating to the immigration and
naturalization of aliens."); see also Henderson, 157 F.3d at 126 ("[T]he
Attorney General has the power to produce the petitioners, remains the
ultimate decisionmaker as to matters concerning the INS, and is commonly
designated a respondent in these cases, even when personal jurisdiction
over the immediate custodian clearly lies."). Further, Congress has
designated the Attorney General as the legal custodian of aliens.
8 U.S.C. § 1222 (a) [1226(c)(1)] ("The Attorney General shall take
into custody any alien who [is deportable or inadmissible for having
committed a crime]."). Additionally, "there is a compelling practical
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."
Alcaide-Zelaya, 2000 WL 1616981, at *4.
Furthermore, in such cases, the 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. See Arias-Agramonte, 2000 WL 1617999, at *8. This
potential problem is made manifestly clear by the circumstances of the
instant case. Here, Petitioner was released from custody on May 31,
2002. Therefore, he is no longer in the physical custody of the warden.
Yet the Attorney General continues to maintain "custody" over Petitioner
so long as the removal order remains pending. 8 U.S.C. § 1126 (b)
("The Attorney General at any time may revoke a bond or parole . . .,
rearrest the alien . . . and detain the alien.").
Petitioner's release from custody does not moot his petition. The
federal habeas corpus statutes, including § 2241, require that a
petitioner be in "custody" at the time of filing of the petition. See
28 U.S.C. § 2241(c)(3); see also Canela v. United States Dep't of
Justice, No. 00 Civ. 8735, 2001 WL 664633 at *3 (S.D.N.Y. June 12,
2001). "Custody" in this context has been interpreted broadly, to include
being "subject to restraints `not shared by the public generally.'"
Hensley v. Mun. Ct, 411 U.S. 345, 351 (1973) (quoting Jones v.
Cunningham, 371 U.S. 236, 240 (1963)); see also Spencer v. Kemna,
523 U.S. 1, 7 (1998) (discussing the extent to which collateral
consequences of convictions may meet the "case or controversy"
requirement). Although he has since been released from physical custody,
Petitioner continues to suffer the consequences of the outstanding order
of removal, including the imminent fear of deportation and permanent
exclusion from the United States, which are sufficient to meet the "case
or controversy" requirement of Article II, § 2, of the Constitution.
See Chong v. District Director, INS, 264 F.3d 378, 385 (3d Cir. 2001)
(holding that sufficient collateral consequences flow from an order of
removal to make a § 2241 petition a live case or controversy); see
also Chadha v. INS, 634 F.2d 408, 417 (9th Cir. 1980) (holding that the
fear of deportation under the INA ...