[00:00:02] Speaker 02:
Good morning, Your Honours, and may it please the Court, Shi-Huan Che appearing on behalf of respondents.

[00:00:07] Speaker 02:
I would like to reserve five minutes of my time for rebuttal.

[00:00:10] Speaker 02:
Your Honours, this is a straightforward case, and the correct outcome here is governed by binding precedent.

[00:00:17] Speaker 02:
In Rumsfeld v. Padilla, the Supreme Court wrote in black and white, whenever a Section 2241 habeas petitioner seeks to challenge his present physical confinement within the United States,

[00:00:28] Speaker 02:
He should name his warden as respondent and file his petition in the district of confinement.

[00:00:33] Speaker 01:
And so finding, didn't the court leave open the possibility for what Doe is suggesting here in footnote eight?

[00:00:40] Speaker 02:
With respect to an immigration exception, no, Your Honor.

[00:00:44] Speaker 02:
Footnote 8 and the cases in Footnote 8 were not challenging present physical confinement.

[00:00:48] Speaker 02:
What they were challenging were removal orders.

[00:00:50] Speaker 02:
And in fact, in a number of those cases, for example, Henderson, which the Supreme Court cited in Footnote 8, the petitioners were not actually in confinement at all.

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They were out in the community.

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And what we've addressed in our briefs and what petitioners not

[00:01:07] Speaker 02:
addressed in response and what Judge Berzon addressed in her dissent in Armand Terror II is that those cases involve challenges to removal orders.

[00:01:15] Speaker 02:
And in the very same decision, Padilla, where the Supreme Court had this footnote eight, the Supreme Court wrote specifically at page 439

[00:01:24] Speaker 02:
that there is, with respect to the warden as respondent rule, there is no distinction based on the source of confinement, whether it's criminal versus non-criminal, whether it's immigration versus non-immigration.

[00:01:35] Speaker 02:
And going on further at pages 449 and 450, the Supreme Court said, we do not have any case where we have held any exception to the warden as respondent and district confinement rules with respect to challenges to present physical confinement.

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And so this case does not involve a challenge to a removal order.

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It involves a challenge to present physical confinement.

[00:01:55] Speaker 01:
Is it a core habeas case?

[00:01:58] Speaker 02:
Yes, it is a core habeas case.

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And Petitioner makes this argument about the use of the word core.

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And Petitioner cites to the Supreme Court's decision in Pracer.

[00:02:09] Speaker 02:
First of all, just to be clear, this case falls within the core of habeas under Pracer and is a core petition under Padilla.

[00:02:19] Speaker 02:
But the decisions describe what they mean by core.

[00:02:23] Speaker 02:
And in Pracer, what the Supreme Court was addressing is what sort of cases are within habeas jurisdiction.

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And habeas jurisdiction has to challenge custody.

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It's written right into the statute at 2241, sorry, 28 USC 2241C.

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There has to be a challenge to custody.

[00:02:43] Speaker 02:
And what Petitioner is arguing, only on appeal, this is not what he argued before the district court, but the argument he's advancing on appeal is he's not challenging his custody, his confinement at GSA.

[00:02:56] Speaker 01:
That he's not challenging the underlying legal basis, is that right?

[00:03:00] Speaker 02:
So that's what he's saying.

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And there are at least three things that are wrong with that argument.

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First, it contradicts the plain language of his petition.

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His petition writes in black and white that he is bringing a challenge to his custody.

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He says, due process protects non-citizens from arbitrary prolonged detention.

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He's challenging his detention.

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He asks the district court to order his release.

[00:03:22] Speaker 02:
He was asking for his release.

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So the claim that he was not challenging his detention and not seeking release is contradicted by the plain language of his petition.

[00:03:29] Speaker 02:
That's the first of at least three issues with this.

[00:03:33] Speaker 02:
The second is, assuming for the sake of argument that really what he is challenging is only, as he says, the denial of procedures, the denial of a bond hearing, and not his underlying detention.

[00:03:46] Speaker 02:
That is not custody.

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And as the Supreme Court held in Thurisigium, a challenge just seeking additional procedure and not challenging the underlying custody is not a habeas case and doesn't give rise to habeas jurisdiction.

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So that's the second of at least three problems.

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The third problem is he's bringing this habeas petition as a due process challenge.

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And it's black letter law that in order to bring a due process challenge, a threshold issue is you first have to have a protected liberty or property interest.

[00:04:15] Speaker 02:
And here, what is the protected liberty interest?

[00:04:19] Speaker 02:
If what he is claiming is that he's only challenging the denial of procedures and not the underlying detention, there is no protected interest in those procedures in the bond hearing.

[00:04:31] Speaker 02:
Petitioner was subject to mandatory detention under 8 USC 1226C.

[00:04:35] Speaker 02:
There was no statutory right to a bond hearing.

[00:04:38] Speaker 02:
And there's no constitutional right, a freestanding right, to just a bond hearing.

[00:04:42] Speaker 02:
So if he's really limiting his claim to only seeking the denial of a bond hearing, there's no protected interest in that, and therefore no due process.

[00:04:50] Speaker 00:
Well, so is the government's position that this claim is not cognizable and habeas, or you agree that it is?

[00:04:57] Speaker 02:
The actual claim that petitioner pleaded is cognizable because what he's really challenging is not the denial of a hearing.

[00:05:04] Speaker 02:
What he's challenging is his detention at GSA without being provided a hearing.

[00:05:09] Speaker 02:
That is cognizable.

[00:05:10] Speaker 02:
That's a challenge to, his liberty interest is his interest in being free from detention.

[00:05:15] Speaker 00:
Okay, so if he filed the section 1983 lawsuit in the Northern District of California, your position would be that that's improper and should be refiled as a habeas action?

[00:05:24] Speaker 02:
yes well but first of all there's no nineteen eighty three against the federal government but in evidence or some other you know as a due process exactly because there's no separate interest just in the hearing what his interest is is in freedom from detention

[00:05:39] Speaker 02:
without having a hearing.

[00:05:40] Speaker 02:
That is cognizable.

[00:05:41] Speaker 02:
That's absolutely cognizable.

[00:05:42] Speaker 02:
We're not arguing a lack of subject matter jurisdiction.

[00:05:44] Speaker 02:
But that has to be brought in habeas.

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And if it's brought in habeas, it has to comply with the habeas rules.

[00:05:50] Speaker 02:
Let's say when you're challenging detention, you must name the warden as respondent and file in the district of confinement.

[00:05:57] Speaker 02:
So that's black letter law under the Supreme Court.

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This court has held the same in numerous published presidential decisions.

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In Brittingham, the United States, this court held that when a federal detainee is held at a non-federal facility, the proper respondent is not the federal authorities.

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It is the non-federal warden of that facility, because that is the immediate custodian.

[00:06:21] Speaker 02:
And the Supreme Court cited and endorsed Brittingham in Padilla.

[00:06:25] Speaker 00:
What about our decision in Fest?

[00:06:28] Speaker 02:
So there's at least three issues here with Fest.

[00:06:32] Speaker 02:
So first, Fest relies heavily on Brayden

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Bradenby 38th Circuit Judicial Court, which, as the Supreme Court held in Padilla, dealt with challenges to future confinement, not challenges to present physical confinement.

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And likewise, Fest relied very heavily on this sort of principle theory.

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And the Supreme Court held in Padilla that that principle theory is incorrect.

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At page 439 and 440 and footnote 13, the Supreme Court was very clear

[00:07:03] Speaker 02:
The proper respondent is not the person who has authority, who has legal authority over the custody.

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It is the person who has the immediate custodian who has physical custody, the warden, regardless of whether the warden does or does not have any legal authority.

[00:07:17] Speaker 02:
So the underlying premise of this sort of principle theory under FEST has been abrogated by Padilla.

[00:07:27] Speaker 02:
So that's issue number one.

[00:07:28] Speaker 02:
Issue number two is, even assuming that the principle theory applies,

[00:07:33] Speaker 02:
The field office director, the FOD, is not the principal here.

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The FOD has no legal authority to release petitioner, which is very distinct from the parole board at issue in FEST.

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The FOD here has no legal authority, cannot make any legal decision to release the petitioner.

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So the FOD is not the principal, even under the FEST theory.

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The third thing I should note is that Fest addressed a state versus state confinement.

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And actually, incidentally, Britt Braden also addressed state versus state confinement.

[00:08:04] Speaker 02:
But then in this court's decision in Dunn, when it was addressing a state versus federal confinement, their federal future confinement, this court held that the proper respondent was the warden and the proper district defile was the district of confinement.

[00:08:18] Speaker 02:
And in Brittingham, also involving federal detention at a non-federal facility, this court held that the proper respondent was the non-federal warden.

[00:08:28] Speaker 04:
Does it matter, you know, when you're discussing private detention centers with the warden, does it matter what the contract says between the federal government and the private detention center with respect to the warden's power?

[00:08:40] Speaker 02:
I know you are, because what matters is that the warden is the immediate custodian.

[00:08:44] Speaker 02:
And this has been held by every other court of appeals that has addressed this issue.

[00:08:48] Speaker 02:
Obviously, it's been held by Brittingham, which the Supreme Court endorsed in Padilla.

[00:08:52] Speaker 02:
It's been held by the First Circuit in Thompson.

[00:08:55] Speaker 02:
It's been held by the Third Circuit in Anariba.

[00:08:57] Speaker 02:
And I should note that Anariba also involved a situation where there was a facility and FODs in different districts.

[00:09:04] Speaker 02:
The FOD there was in New York.

[00:09:06] Speaker 02:
The facility was in New Jersey.

[00:09:07] Speaker 02:
The Third Circuit held that the proper respondent was the warden.

[00:09:10] Speaker 02:
You have to name the warden, the New Jersey warden, and file in the District of Confinement.

[00:09:15] Speaker 02:
The Seventh Circuit held that in Kolyavsky.

[00:09:16] Speaker 02:
Again, same issue, where the FOD was in one district, the petitioner was in another district, Wisconsin versus Illinois.

[00:09:23] Speaker 02:
The petitioner tried to name the FOD as the respondent.

[00:09:26] Speaker 02:
And the Seventh Circuit held, no, you have to name the warden as the respondent.

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And the D.C.

[00:09:32] Speaker 02:
Circuit held the same thing in Stokes with respect to a private prison, not a federal facility, not even a state facility, a private, for-profit detention facility.

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And the D.C.

[00:09:43] Speaker 02:
Circuit held that the proper respondent was that private, for-profit contract warden, that the proper district was the district of confinement, and that any prior cases that held to the contrary were no longer good law after Padilla.

[00:09:59] Speaker 04:
Just for my own curiosity, I don't know if it's in the record, but what was the reason for not removing the petitioner and why was he held in detention for a prolonged period?

[00:10:11] Speaker 02:
His removal proceedings are still ongoing.

[00:10:15] Speaker 02:
So petitioner has challenges removal, and I think the merits hearing was on, I want to say April, the immigration judge has not issued a decision yet, but the removal proceedings have been ongoing.

[00:10:32] Speaker 02:
And one thing I want to note, petitioner makes this argument about wardens being not capable of responding to habeas petitions.

[00:10:42] Speaker 02:
And that's just not supported.

[00:10:43] Speaker 02:
And one way that we know that's not supported is this is what happens everywhere else in the country.

[00:10:48] Speaker 02:
In the Seventh Circuit, it's been black letter law for 20 years.

[00:10:52] Speaker 02:
that when immigration detainees bring habeas petitions, they have to bring, they have to name the warden as the respondent.

[00:10:59] Speaker 02:
And there's been nothing in the record, certainly petitioner points to nothing, that those wardens have been incapable of responding.

[00:11:05] Speaker 02:
And similarly in the Third Circuit, Ann Arriba, and this happens in New York versus New Jersey, they name the New Jersey wardens, and there's nothing in the record showing that those wardens are not capable of responding.

[00:11:16] Speaker 00:
So.

[00:11:16] Speaker 00:
They're not capable because they have a contractual relationship with the federal government or obligated to.

[00:11:22] Speaker 02:
To do this if the government tells them to Respond to so petitioners is making the argument that that wardens are not able to put forth a response to habeas petitions And that's not correct a wardens have put forth responses to habeas petitions and the courts have have through the government I mean if they're a private prison that the response is through the government The government has the authority to represent the wardens.

[00:11:45] Speaker 02:
Yes, I

[00:11:46] Speaker 00:
Do the private prisons themselves come forward and represent themselves in these cases?

[00:11:53] Speaker 02:
I don't know the outcome of every case.

[00:11:55] Speaker 02:
I know the government has the authority to step in, and that's undisputed under 28 USC 517.

[00:12:02] Speaker 02:
But that does not excuse petitioners from the warden as respondent rule, and does not give petitioners leave to name the fraud or to bring a case outside the district of confinement.

[00:12:13] Speaker 01:
The petitioner says that if we enforce the warden as a respondent rule, we place the warden in an impossible situation.

[00:12:20] Speaker 01:
There's a tension between this court's order to produce the body and the contract that they have with ICE to keep the prisoner in place.

[00:12:33] Speaker 02:
Your Honor, their solution to name the FOD doesn't alter that tension.

[00:12:40] Speaker 02:
If the FOD is named as the respondent, the FOD is also in tension because on the one hand, it would have a habeas order before this court.

[00:12:47] Speaker 02:
On the other hand, it would have the mandate from Congress to not release the petitioner under any circumstances.

[00:12:52] Speaker 02:
So naming the FOD doesn't address that issue.

[00:12:55] Speaker 02:
And the issue of if a habeas order from the court can supersede an act from Congress,

[00:13:00] Speaker 02:
then certainly it can supersede a contractual requirement because they have to comply with the orders of the court.

[00:13:08] Speaker 02:
Unless the panel has any more questions, I reserve the rest of my time for rebuttal.

[00:13:11] Speaker 04:
Thank you.

[00:13:37] Speaker 03:
May it please the court, Jordan Wells on behalf of petitioner John Doe.

[00:13:41] Speaker 03:
There are two bases, independent and sufficient for affirming the district court, and the court has already inquired about each of them.

[00:13:48] Speaker 03:
One is that the petition in this case sought a procedural remedy that's distinct from a habeas petition seeking simple release.

[00:13:56] Speaker 03:
That's the first ground.

[00:13:57] Speaker 03:
And in that case, the petitioner can name the official that exercises legal control with respect to the challenge restraint.

[00:14:05] Speaker 01:
How can you argue that he's not asking for habeas relief when in effect his petition asked the court to order that there be a bond hearing and that he be released and he was in fact provided with exactly the relief that he was seeking.

[00:14:21] Speaker 01:
He's been released.

[00:14:24] Speaker 03:
Your honor, I think the distinction, and this follows from Pryzer all the way through this court's decision in Pinson and all the cases in between, is that a case is within the core of habeas when it necessarily would lead to release or the shortening of duration of detention.

[00:14:40] Speaker 03:
Our claim didn't necessarily lead to release, and I've had clients who are not released pursuing... I don't see how this helps you, though.

[00:14:45] Speaker 00:
I mean, the implication is that then the claim is not a proper habeas claim to begin with.

[00:14:51] Speaker 03:
I want to draw, I think, Your Honor, what you're saying is that it's not in the core of habeas.

[00:14:56] Speaker 03:
There is a distinction between the core of habeas and the outer bounds of 2241.

[00:15:00] Speaker 03:
2241 is broader than the core of habeas.

[00:15:04] Speaker 03:
That's why my friend's citation to thoracidium is off base, because that was examining the core of habeas, not the outer bounds of 2241.

[00:15:11] Speaker 00:
Right, but Pinson, the implication of that citation is that you're just outside habeas altogether.

[00:15:19] Speaker 03:
Your Honor, I think that the Pinson Court did not get to that point.

[00:15:25] Speaker 03:
Let me just say, I think that Pinson and Nettles, the two cases that are most on point for this question, have specifically reserved the question of the outer bounds of 2241 for federal prisoners.

[00:15:36] Speaker 03:
And this court and the district courts, in the wake of Nettles, has continued to apply 2241 jurisdiction to federal prisoner claims that may not necessarily lead to release.

[00:15:47] Speaker 03:
So I think that

[00:15:49] Speaker 03:
The Pinson Court was very clear in saying the petitioner in Pinson presented their claim as being within the core of habeas and said, 9th Circuit, you do not need to look at what are the out of bounds 2241 because we are within the core of habeas.

[00:16:03] Speaker 03:
The court said, you're not within the core of habeas just because your petition says I seek release.

[00:16:08] Speaker 03:
We are going to look at your petition to see if release would necessarily follow from the constitutional violation that you're alleging.

[00:16:15] Speaker 03:
And if it would not, you're outside the core of habeas.

[00:16:17] Speaker 03:
But in a footnote in Pinson, I believe it's footnote 15, they specifically cite over to Nettles' discussion where that court had reserved the question of whether what they were saying about state prisoners would apply to federal prisoners.

[00:16:32] Speaker 03:
And Justice Berzahn in dissent in the en banc decision in Nettles specifically said, I hope we're not talking about federal prisoners.

[00:16:39] Speaker 03:
And the majority opinion said, we are not talking about federal prisoners and acknowledged a series of cases where federal prisoners

[00:16:45] Speaker 03:
filed habeas petitions that would not necessarily lead to their release.

[00:16:48] Speaker 03:
And as I said, this court, in unpublished decisions since Nettles and the lower courts, have continued to apply 2241 jurisdiction in those cases.

[00:16:59] Speaker 03:
I do want to get to the second half of what I was saying in terms of grounds of affirmance, which is that

[00:17:04] Speaker 03:
And this was the majority of my friend's discussion as well.

[00:17:09] Speaker 03:
So putting to the side this sort of process versus release distinction, the field office director is in every sense the immediate custodian.

[00:17:18] Speaker 03:
The government's argument about this

[00:17:22] Speaker 03:
layers the formality of the immediate custodian rule with a complete fiction that the warden or the GSA facility administrator in this case is the equivalent of the immediate custodian.

[00:17:32] Speaker 03:
It is not a warden as a respondent rule.

[00:17:34] Speaker 03:
It is an immediate custodian rule.

[00:17:36] Speaker 03:
And the Supreme Court in Padilla said that the default is, a default assumption is that that's the warden of the facility.

[00:17:44] Speaker 03:
But it didn't say in all cases it's the warden.

[00:17:46] Speaker 03:
It said in all cases it's the immediate custodian.

[00:17:50] Speaker 03:
So who is the immediate custodian?

[00:17:51] Speaker 03:
The immediate custodian is the person who has the power to produce the body before the court and to explain the propriety of the detention that's being challenged.

[00:18:00] Speaker 00:
Is a private prison warden ever the immediate custodian under this theory?

[00:18:07] Speaker 03:
It would require a complete restructuring of the relationship between ICE and the private warden.

[00:18:14] Speaker 03:
Hypothetically, potentially, in this case, on this record, there's like one sentence in the entire record, maybe two sentences, I don't want to, where they describe the role that the facility administrator, who they later described as a warden, plays vis-a-vis the contract facility that ICE was detaining my client in.

[00:18:36] Speaker 03:
That doesn't say anything about how that person

[00:18:40] Speaker 03:
comports with the Supreme Court's definition of the immediate custodian.

[00:18:44] Speaker 00:
No, I ask because, I mean, there's lots of cases that have treated the private prison warden as the proper respondent in a habeas case, and I'm questioning whether you're sort of taking issue with that body of law.

[00:18:54] Speaker 00:
And if you are, that's fine.

[00:18:55] Speaker 00:
I'm just trying to figure out what the implications of your position is.

[00:19:00] Speaker 03:
I don't think there are a lot of 2241 cases that do that.

[00:19:03] Speaker 03:
There are some.

[00:19:07] Speaker 03:
I don't want to say that there are none.

[00:19:09] Speaker 03:
But I don't think the issue has been examined closely.

[00:19:12] Speaker 03:
And I think that it is a particular issue in the context of immigration detention, where 91% of ICE detainees are in a corporate facility, a private facility.

[00:19:22] Speaker 03:
And I want to pick up on something that my friend mentioned, which is that

[00:19:30] Speaker 03:
Footnote 8 is the end of that sentence where the court says you should name the immediate custodian, and usually we assume the immediate custodian is the warden.

[00:19:39] Speaker 03:
But it cites to a series of cases, including Henderson and the other circuit cases, including Roman v. Ashcroft, the Sixth Circuit's decision that consciously applied the immediate custodian rule and found that the field office director was the immediate custodian.

[00:19:54] Speaker 03:
So the Supreme Court itself said the Sixth Circuit has applied the immediate custodian rule

[00:19:58] Speaker 03:
and rejected the high-level supervisory official and found that the field office director was the appropriate respondent.

[00:20:05] Speaker 03:
So I think that there is an attempt, the government attempts to conflate Warden with the media custodian

[00:20:14] Speaker 03:
when the test is immediate custodian and can they fulfill the historic purposes of the immediate custodian, which is bring the body to the court and explain the cause of the detention because the court is inquiring into that.

[00:20:25] Speaker 03:
GEO has no wherewithal to respond to that.

[00:20:27] Speaker 03:
GEO has no access to the information that a respondent would need to bring before a federal court to explain the propriety of the detention.

[00:20:36] Speaker 03:
A lot of these cases, these due process challenges to ICE detention,

[00:20:41] Speaker 03:
One of the main inquiries is who's responsible for the delay in the context of the immigration court proceeding.

[00:20:46] Speaker 03:
GEO has no information about that.

[00:20:47] Speaker 03:
GEO has no wherewithal to respond to that.

[00:20:49] Speaker 03:
It is a complete fiction that GEO comes into court and

[00:20:54] Speaker 03:
and responds to that.

[00:20:57] Speaker 03:
I'm surprised that the government continues to press this notion that the GEO warden is actually responding substantively to these petitions.

[00:21:05] Speaker 03:
Would ICE have that information?

[00:21:06] Speaker 03:
ICE has that information.

[00:21:08] Speaker 04:
By that point, removal isn't at DOJ, because every time we ask questions about what's happening with DOJ attorneys, they say, we have no idea, it's ICE, and vice versa.

[00:21:17] Speaker 04:
That always happens.

[00:21:18] Speaker 03:
I think, you know, the Homeland Security Act 2003 split the functions of the INS in a way that causes some of this confusion.

[00:21:27] Speaker 03:
But what we know is that when there's a need for a declaration in court, it comes from an ICE officer.

[00:21:31] Speaker 03:
It has never come from a GEO person.

[00:21:36] Speaker 03:
So I think this goes to, Judge Lee, your question about does it matter

[00:21:40] Speaker 03:
What does it matter what the relationship is?

[00:21:42] Speaker 03:
And I think it does.

[00:21:43] Speaker 03:
It absolutely does matter the relationship between ICE as the agency that actually has responsibility for the custody, makes determinations day to day about the placement of detainees in one facility versus another, brings them to court when it's necessary.

[00:21:58] Speaker 03:
All of that matters more than the magic word of warden.

[00:22:01] Speaker 03:
So the fact that they characterize somebody in this corporation as the warden is elevating a magic words test over what

[00:22:10] Speaker 00:
was basically a functional test in in in pedia it just seems like this is taking issue with the whole way this is kind of worked for a long time in habeas i mean the warden is holding somebody but they're not necessarily that the immediate you know uh... legal person who's in charge of the detention in the sense in which you're using it but nonetheless the law has sort of developed you know and and pedia goes into this in great detail about you see the person who's who's the immediate holding that's the warden you see them in the district of confinement

[00:22:39] Speaker 00:
That's where they're being held.

[00:22:40] Speaker 00:
And so here you're doing something different.

[00:22:41] Speaker 00:
You're trying to sue in the Northern District.

[00:22:44] Speaker 00:
I hear the points you're making.

[00:22:45] Speaker 00:
It just seems that the law is developed in a way that's quite different than where you want this.

[00:22:49] Speaker 03:
Well, I would say this.

[00:22:51] Speaker 03:
Obviously, there's a circuit split on this issue.

[00:22:52] Speaker 03:
The Sixth Circuit has viewed the field office director as properly characterized as the immediate custodian.

[00:22:59] Speaker 03:
The Second Circuit came darn near close to saying it was the field office director, but didn't ultimately resolve the issue.

[00:23:06] Speaker 03:
And then there are the First and Third Circuits.

[00:23:10] Speaker 00:
I think, though, Your Honor... Are you asking for an immigration exception, or an immigration-based rule?

[00:23:17] Speaker 00:
Are you asking for a private prison-based rule, or both?

[00:23:21] Speaker 03:
I think that, as a practical matter, we are talking about an immigration-based rule.

[00:23:26] Speaker 03:
You know, the BOP doesn't use private prison facilities, at least as of now they've stopped using private prison facilities.

[00:23:34] Speaker 03:
But I think it's also possible to leave this question open, at least in the case of a, what I'm going to call a non-corp habeas petition.

[00:23:44] Speaker 03:
The government uses the word non-corp habeas petition as well.

[00:23:47] Speaker 03:
It is conceivable that even in the context of

[00:23:51] Speaker 03:
federal criminal prisoners that are seeking relief outside the core of habeas, that they would name the official that exercises legal control with respect to the restraint that they're challenging.

[00:24:02] Speaker 03:
I think that that is conceivable.

[00:24:04] Speaker 03:
But I think it comes up way less often than what we have in the immigration context.

[00:24:08] Speaker 03:
I don't think the court actually has to reach the issue here because our rule, I think, sorry, our case is based in

[00:24:17] Speaker 03:
the specific facts of how ICE structures its relationship with the wardens.

[00:24:22] Speaker 03:
And I think in the criminal context, the warden is going to end up having a lot more control, whether it's a private warden or a public official.

[00:24:30] Speaker 03:
The warden is going to have control over a lot of the things that come up in 2241 habeas petitions, like discipline and whether that should, you know, the presence or absence of discipline should lead to

[00:24:40] Speaker 03:
good time credits being awarded and that sort of thing.

[00:24:43] Speaker 03:
So the warden is, in a functional sense, going to be a lot more commonly the proper respondent in the criminal context.

[00:24:49] Speaker 03:
So I don't think that this necessarily leads into that.

[00:24:52] Speaker 03:
And of course, the Supreme Court has invited the question of how should this apply specifically in the immigration context in footnote eight.

[00:24:58] Speaker 03:
So I think on both of those bases, the court can rule on that without disturbing the body of law around federal criminal prisoners.

[00:25:09] Speaker 01:
So counsel, if Doe had filed his petition in the Eastern District, would the court have properly assumed jurisdiction?

[00:25:16] Speaker 03:
The government says yes.

[00:25:18] Speaker 03:
And who are we to object?

[00:25:20] Speaker 03:
I mean, we brought our case in the Northern District of California.

[00:25:23] Speaker 03:
We think our rule is defensible because we are naming the FOD who is in all- Are you saying there's no jurisdiction in the Eastern District?

[00:25:30] Speaker 03:
I'm not saying that.

[00:25:32] Speaker 03:
I'm agnostic to that in this case, because we didn't do it.

[00:25:37] Speaker 03:
But let me go to your Honor's question.

[00:25:40] Speaker 03:
Braden says there could be concurrent jurisdiction in the district of confinement and the district that has the appropriate custodian.

[00:25:48] Speaker 03:
The rule, the definitive interpretation of 2241 that is shared across Padilla, Rasul, and Braden is that the respondent

[00:25:58] Speaker 03:
needs to be within territorial jurisdiction of the district court.

[00:26:01] Speaker 03:
That is true here because the field office is within the Northern District of California.

[00:26:06] Speaker 03:
In a case like that, I think the question would be, is the field office director, because of its subordinates and its facilities and so on, present in some personal jurisdictional sense of the word in the Eastern District of California?

[00:26:22] Speaker 03:
But obviously, none of that's been aired here.

[00:26:25] Speaker 03:
The government only brings that argument up

[00:26:27] Speaker 03:
on reply before this court's arguably its wave but as a word agnostic to it and I think it would involve

[00:26:34] Speaker 01:
looking at whether the eastern district has territorial jurisdiction over the FOD and none of that's briefed here petitioners immigration detainees would have options not available to other detainees he could file in any district where there's potentially a supervising official a warden supervising official head of ICE it could go up the chain well I don't think it can go up the chain the government

[00:27:05] Speaker 03:
Consistent position for over 20 years is that the field office directors are the basic they had the basic operating units of ice They said that they excuse me the Sixth Circuit said that in Roman the government embraced that in briefing before this court in Armantaro And I don't think the government can it has not and I don't think it can walk away from the understanding that the field office director is

[00:27:27] Speaker 03:
the ground floor as regards ICE detention in the United States.

[00:27:31] Speaker 03:
There's 24 or 25 field office directors.

[00:27:33] Speaker 03:
They implement the detention statutes.

[00:27:36] Speaker 03:
They have, in the government's own words, they exercise day-to-day authority.

[00:27:40] Speaker 03:
That language from the government's brief in Armantaro mirrors the Supreme Court's language in Padilla.

[00:27:47] Speaker 03:
I understand there's some creative lawyering in terms of they can go up the chain, down the chain, but I'm telling you that a real look at

[00:27:54] Speaker 03:
the CFR, the immigration detention regulations, ICE's own handbook and manuals, all of that points to the field office director as the head of the basic operating unit.

[00:28:05] Speaker 00:
But I mean, by that logic,

[00:28:08] Speaker 00:
I don't see how you could say that venue would be proper in the Eastern District of California here.

[00:28:13] Speaker 00:
I think you'd have to say, well, the government says that, but that's just wrong, because the folks there don't have the ability to produce the body.

[00:28:21] Speaker 00:
And what that means is basically everybody all over the place is going to have to sue in San Francisco.

[00:28:28] Speaker 03:
So let me clarify one thing.

[00:28:31] Speaker 03:
In the hypothetical that Judge Cain posed, I'm still talking about the field office director as the respondent, not

[00:28:36] Speaker 03:
the people in the subordinates of Eastern District.

[00:28:39] Speaker 03:
I'm just saying that in that hypothetical case, and again, I'm not here to defend that rule, but in that hypothetical case, the question would be, is the field office director present in some metaphysical sense in the Eastern District of California?

[00:28:52] Speaker 03:
We are not here to defend

[00:28:53] Speaker 03:
a more than one district rule.

[00:28:55] Speaker 03:
We're defending a rule that is based on the presence of the FOD in the territorial jurisdiction of the district court.

[00:29:03] Speaker 04:
So... I think we can wrap up.

[00:29:05] Speaker 04:
I think you've exceeded your time.

[00:29:06] Speaker 03:
You can make your final point.

[00:29:07] Speaker 03:
Oh, I apologize, Your Honor.

[00:29:10] Speaker 03:
So just to wrap up, you know, for centuries, courts, the Supreme Court and the King's bench before it, defended and ensured ready access to the habeas corpus writ.

[00:29:23] Speaker 03:
The founders of this country codified the writ in the Constitution.

[00:29:27] Speaker 03:
It's one of the only individual rights actually codified in the Constitution.

[00:29:29] Speaker 03:
It ensures the separation of powers.

[00:29:31] Speaker 03:
They put that in the First Judiciary Act.

[00:29:34] Speaker 03:
It has, for time immemorial, protected encroachments on personal liberty.

[00:29:39] Speaker 03:
And the Supreme Court has said that there is no higher duty than for the courts to safeguard habeas corpus and access to it.

[00:29:48] Speaker 03:
In this case, when the field office director takes someone who is in their custody and moves them from one facility to another facility to another facility, but nevertheless retains custody over that person for all legal and factual purposes, he remains subject to a habeas corpus lawsuit as the respondent and Northern District of California with territorial jurisdiction over him, properly exercised jurisdiction in this case.

[00:30:16] Speaker 03:
We ask the court to affirm.

[00:30:30] Speaker 02:
Your Honors, I want to just briefly make four points in response to Petitioner's argument.

[00:30:35] Speaker 02:
Number one, when he says that if a habeas petition does not result in immediate release, then it's outside the court of habeas, that's just not correct.

[00:30:43] Speaker 02:
This comes up routinely in criminal cases where people seek habeas petitions seeking release unless they get resentenced or retried, and those fall within the court of habeas and are required to follow the 2241 rules.

[00:30:58] Speaker 02:
Point number two, Petitioner makes the argument that this issue has not been thoroughly examined.

[00:31:04] Speaker 02:
That's also just wrong.

[00:31:05] Speaker 02:
This issue has been very thoroughly examined in Koliavsky, the Seventh Circus decision in that.

[00:31:11] Speaker 02:
And precisely the exact same situation as here.

[00:31:14] Speaker 02:
Petitioner has no response to that.

[00:31:16] Speaker 00:
The petitioner referenced the Sixth Circuit decision?

[00:31:19] Speaker 02:
Yes, that was my point number three.

[00:31:21] Speaker 02:
So point number three with respect to Roman.

[00:31:22] Speaker 02:
Three sub points with respect to Roman.

[00:31:25] Speaker 02:
Number one, it was a pre-Padilla case.

[00:31:27] Speaker 02:
Number two, it was not a core habeas petition.

[00:31:29] Speaker 02:
In fact, the petitioner there specifically expressly said he was not challenging his detention.

[00:31:34] Speaker 02:
And number three, it achieved exactly the opposite result that petitioner is asking for here.

[00:31:39] Speaker 02:
The FOD or the FOD equivalent there was in the Eastern District of Louisiana.

[00:31:43] Speaker 02:
the district of confinement was in the Western District, and the Sixth Circuit held that the proper district was the District of Confinement, not the District of the Fod.

[00:31:50] Speaker 02:
So petitioner says there's a circuit split, that's absolutely not correct.

[00:31:53] Speaker 02:
Every single circuit, First, Third, Sixth, Seventh, D.C., and of course this circuit, have all held

[00:31:59] Speaker 02:
that the proper district is the district of confinement.

[00:32:03] Speaker 02:
And finally, with respect to the panel's questions about, is this an immigration-based exception?

[00:32:08] Speaker 02:
Are they asking for an immigration-based exception?

[00:32:10] Speaker 02:
Are they asking for a private prison exception?

[00:32:14] Speaker 02:
Is there jurisdiction in ED Cal?

[00:32:17] Speaker 02:
And they weren't able to answer those questions.

[00:32:19] Speaker 02:
And this shows what Petitioner is seeking is a very results-based theory that

[00:32:24] Speaker 02:
Somehow under some theory and they can't articulate exactly what there's jurisdiction here But they don't have the theoretical underpinning and the Supreme Court and this court had been very clear It's a bright line very simple rule name the warden and file in the district of confinement And because the district court did not do that here.

[00:32:41] Speaker 04:
We urge this court to reverse the district court's decision Great, thank you both for the excellent argument the case has been submitted.

[00:32:49] Speaker 02:
Thank you guys.

[00:32:49] Speaker ?:
I