Yi v. Maugans , 24 F.3d 500 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-4-1994
Yi, et al v. Maugans, et al
Precedential or Non-Precedential:
Docket 94-7060
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 94-7060
____________
YANG YOU YI, YEE BONG WON, LI GUANG FENG,
CHEN CHU SU, PIN LIN, YONG ZHONG PAN a/k/a
PU WING CHUN, SO GEE DONG, CHANG CHUN LU,
XIN-FEI ZHANG a/k/a XIN-FUEI ZARANG, TONG
WAI ZHANG, DAI MIN LU, SHI CHUN ZHENG,
CHUN HUA LIN, CHEN ZING, SHUIDI ZHENG,
GUO ZHEN XIE, A-72-761-974, LI YUN-YOU,
LIN MING LONG,
v.
GEORGE MAUGANS, District Counsel of the
United States Immigration and Naturalization
Service, Baltimore District; DAVID L.
MILHOLLEN, Director of the Executive Office
for Immigration Review and Chairman of the
Board of Immigration Appeals; RICHARD J.
SHARKEY, District Counsel of the United
States Immigration and Naturalization
Service, Philadelphia District; J. SCOTT
BLACKMAN, District Director of the United
States Immigration and Naturalization
Service, Philadelphia District; UNITED STATES
IMMIGRATION AND NATURALIZATION SERVICE; and
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW;
JANET RENO, Attorney General of the United
States; DORIS MEISSNER, Commission of
the United States Immigration and
Naturalization Service
____________
YONG ZHONG PAN a/k/a Pu Wing Chun,
Appellant
v.
GEORGE MAUGANS, District Counsel of the
United States Immigration and Naturalization
Service, Baltimore District; RICHARD J.
SHARKEY, District Counsel of the United
States Immigration and Naturalization
1
Service, Philadelphia District; DAVID L.
MILHOLLEN, Director of the Executive Office
for Immigration Review and Chairman of the
Board of Immigration Appeals;
____________
Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. No. 93-cv-01702 and 93-cv-01766
____________
Argued March 24, 1994
Before: HUTCHINSON, ROTH, and ROSENN, Circuit Judges
Opinion Filed: May 5, 1994
____________
DAVID H. WEINSTEIN, ESQUIRE (Argued)
ROBERT S. KITCHENOFF, ESQUIRE
Kohn, Nast & Graf, P.C.
1101 Market Street, Suite 2400
Philadelphia, PA 19107
FRANCES P. RAYER, ESQUIRE
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
LORY D. ROSENBERG, ESQUIRE
American Immigration Law Foundation
Legal Action Center
1400 Eye Street, NW
Washington, D.C. 20005
SHARON J. PHILLIPS, ESQUIRE
513 East 86th Street, # 3C
New York, New York 10028
Attorneys for Appellant
FRANK W. HUNGER, ASSISTANT ATTORNEY GENERAL
DAVID M. BARASCH, UNITED STATES ATTORNEY
MICHAEL JAY SINGER, ATTORNEY
THOMAS M. BONDY, ATTORNEY (Argued)
Appellate Staff
Civil Division, Room 3343
Department of Justice
Washington, DC 20530
Attorneys for Appellees
2
____________
OPINION OF THE COURT
3
ROSENN, Circuit Judge.
In February 1993, the Golden Venture, a ship bearing
human cargo of approximately 300 Chinese nationals, left the
waters of Thailand bound for the distant shores of the United
States. The petitioner Yong Zhong Pan (Pan), one of its
passengers, together with hundreds of other Chinese nationals,
had made a dangerous journey from the People's Republic of China
(PRC) across the mountains and borders of Burma into Thailand.
There, they embarked aboard the Golden Venture, which attempted
unlawfully to smuggle them into the United States. After more
than one hundred days at sea, the ship, within sight of its final
destination, ran aground off the New York harbor. Its passengers
were thrown or jumped into the sea, but most of them managed to
survive and safely reach shore. The Immigration and
Naturalization Service (INS) took these aliens into custody,
detained them, and commenced exclusion proceedings against them.
Approximately one hundred twenty of the Golden Venture
passengers, including Pan, were transferred to the York County
Prison on June 7, 1993. The York County Prison is located in the
Middle District of Pennsylvania where many of the detainees,
including Pan, filed claims for asylum which were rejected. After
exhausting their administrative remedies, they individually filed
habeas corpus actions in the United States District Court for the
Middle District of Pennsylvania challenging the final orders of
exclusion. Because the petitioners raised many similar issues
and filed many similar motions for relief, the district court
4
consolidated the individual actions under the above-entitled
caption.
On November 17, 1993, Pan filed an amended petition and
a separate complaint seeking nationwide class certification and
interim class relief. Pending a determination of the court's
jurisdiction, it initially granted conditional class
certification limited to those aliens in the Middle District who
had exhausted their administrative remedies. Contemporaneously,
the court issued a temporary restraining order barring the
Government from deporting any class members before December 1993,
which date it later extended. The court subsequently declined on
jurisdictional grounds to certify the requested nationwide class;
it decertified the conditionally certified class and accordingly
lifted the temporary restraining order as moot. Pan timely
appealed to this court. We affirm.
I.
In his application for asylum, Pan claimed that he was
persecuted and has a well-founded fear of future persecution by
the Chinese government, if denied asylum, because of his
opposition to its birth control policies. Specifically, Pan
averred that after the birth of their first child, he and his
wife fled to avoid sterilization. While in hiding, Mrs. Pan bore
a second son. At the hospital where the child was born, she was
forced to undergo sterilization. The Pans were also ordered to
pay heavy fines. Because the Pans were unable to pay the full
amount, officials came to their home, confiscated some furniture
and demolished parts of the house. Fearing arrest, exorbitant
5
fines, and harsh physical punishment, Pan decided to leave his
homeland and family to come to the United States.
On August 9, 1993, an Immigration Judge (IJ) heard and
rejected Pan's asylum claim. Pan appealed to the Board of
Immigration Appeals (BIA) which found that Pan's testimony lacked
plausibility, accuracy, and truthfulness in light of the evidence
of record regarding general conditions in China. The Board
therefore held that Pan failed to meet his burden of establishing
his eligibility for asylum. Furthermore, the Board reaffirmed
its adherence to Matter of Chang, Int. Dec. No. 3107 (BIA 1989).
In Matter of Chang, the BIA determined that the People's Republic
of China's one couple, one child policy was not, on its face,
persecutive within the meaning of the relevant asylum statutes
and regulations.
In his amended petition/complaint seeking certification
of a nationwide class of Chinese aliens, Pan broadly defined the
class to include:
All persons who, as nationals of the PRC, are
or in the future may be applicants for
withholding of deportation from and/or for
asylum in the United States, in whole or in
part because they have a clear probability
(for withholding of deportation) or well
founded fear (for asylum) of persecution on
account of coerced population control
policies of the PRC.
The class complaint essentially challenged the BIA's reliance and
application of its decision in Chang. In addition, Pan sought a
preliminary injunction forbidding the INS from deporting any
member of the nationwide class.
6
In rejecting a nationwide class certification, the
court reasoned that the nationwide scope of the requested class
was inconsistent with the statutory limitations for judicial
review. Specifically, the court noted that 8 U.S.C. § 1105a(b)
requires that judicial review of an exclusion order may be
obtained only "by habeas corpus proceedings and not otherwise"
and that 8 U.S.C. § 1105a(c) mandates that for an order of
exclusion to be reviewed by a court, aliens must exhaust all
administrative remedies available to them. Thus, because the
proposed nationwide class would include those aliens who are not
within the court's habeas jurisdiction and who have not satisfied
the exhaustion requirement, the court concluded that its
jurisdiction would not extend to them. On the appeal before us
now, the issues raised are whether the district court erred in
denying Pan's motion for nationwide class certification and
injunctive relief.
II.
We have jurisdiction to hear this appeal from the
district court's denial of Pan's motion for a preliminary
injunction pursuant to 28 U.S.C. § 1292(a)(1). Because the
district court's ruling denying class certification is
inextricably bound up in our review of the denial of the
injunction, we have jurisdiction to address that determination
too. Cohen v. Board of Trustees, 867 F.2d 1455, 1468 (3d Cir.
1989) (in banc).
On appeal, Pan disputes the district court's
determination that it lacked jurisdiction to certify a nationwide
7
class of Chinese aliens. He invokes 8 U.S.C. § 1329 (immigration
matters), 28 U.S.C. § 1331 (federal question jurisdiction), and 5
U.S.C. § 701-06 et seq (Administrative Procedure Act) as
authority on which the district court could have based subject
matter jurisdiction. Our review of the district court's
determination regarding subject matter jurisdiction is plenary.
See Sinclair v. Soniform, Inc., 935 F.2d 599, 601 (3d Cir 1991).
We begin, as the district court did, with a review of
the specific jurisdictional limitations applicable to alien
exclusion proceedings. Chief Judge Rambo of the district court
noted that, although Congress has provided judicial review of
agency determinations of excludability in the context of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.,
it also imposed specific limitations on the timing and scope of
such a review. First, an alien subject to a final order of
exclusion may seek review of the determination only in a habeas
corpus proceeding. 8 U.S.C. § 1105a(b) ("[A]ny alien against
whom a final order of exclusion has been made . . . may obtain
judicial review of such order by habeas corpus proceeding and not
otherwise."). A district court's habeas corpus jurisdiction is
territorially limited and extends only to persons detained and
custodial officials acting within the boundaries of that
district. 28 U.S.C. § 2241(a) ("Writs of habeas corpus may be
granted by . . . the district courts . . . within their
respective jurisdictions.") (emphasis supplied); see also Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 493-95 (1973)
8
(holding that habeas jurisdiction proper where court issuing writ
has jurisdiction over custodian).
Second, courts are empowered to review orders of
exclusion only for those individuals who have exhausted their
administrative remedies. 8 U.S.C. § 1105a(c) ("An order of
deportation or of exclusion shall not be reviewed by any court if
the alien has not exhausted the administrative remedies available
to him as of right under the immigration laws or regulations. . .
."). Thus, aliens who have received an adverse decision from an
immigration judge must first exercise their right to take an
administrative appeal to the BIA. Only after the BIA affirms the
IJ's decision would an alien be entitled to judicial review. See
Alleyne v. United States Immigration & Naturalization Service,
879 F.2d 1177 (3d Cir. 1989) (§ 1105a(c) precludes judicial
review when there is no appeal to the Board).
Read together, these two statutory provisions would bar
the district court from certifying appellant's class insofar as
the proposed class would include Chinese aliens, or their
custodians, not within the Middle District of Pennsylvania and
Chinese aliens who have not yet received a final BIA decision.
Accordingly, the district court concluded correctly that since
the proposed class included individuals over whom it had no
jurisdiction, the class could not be certified. See Califano v.
Yamasaki, 442 U.S. 682, 701 (1979) (explaining that class may
only be certified where court has jurisdiction over the claim of
each individual member of the class).
9
Notwithstanding these provisions limiting jurisdiction,
Pan contends that the general jurisdictional provision of 8
U.S.C. § 1329 is applicable to this action. The language of
§1329 is broad. The statute states that "[t]he district courts
of the United States shall have jurisdiction of all causes, civil
and criminal, arising under any of the provisions of the [INA]."
It is substantially similar to 28 U.S.C. § 1331 which confers
jurisdiction on district courts over "all civil actions arising
under the Constitution, laws, or treaties of the United States."
Pan's argument, although superficially appealing, does not
withstand scrutiny.
Pan cannot simply ignore statutory provisions that are
averse to his position.1 The statute must be construed so as to
give effect to each provision. See United States v. Alcan
1
Congress did not haphazardly restrict an alien in exclusion
proceedings to the writ of habeas corpus for judicial review.
Congress was disturbed with the growing frequency of judicial
actions initiated by aliens where cases had no legal basis or
merit, but which were brought solely to prevent or delay
indefinitely their deportation. It carefully concluded that
habeas corpus not only gave the alien the privilege of testing
the legality of the proceedings, but also an opportunity for a
fair hearing. "Such a restriction to habeas corpus does not
deprive the alien of any constitutional rights. It is well
settled that aliens seeking admission to the United States cannot
demand that their applications for entry be determined in a
particular manner or by use of a particular type of proceedings."
H.R. Rep. No. 1086, 87th Cong., 1st Sess., reprinted in 1961
U.S.C.C.A.N. 2950, 2976.
The Committee on the Judiciary attached "special significance . .
. that habeas corpus actions are necessarily determined in the
locality where the alien is, where he has been excluded, and
where he 'knocking at the door.' This prevents a process of
'shopping around' by an applicant for admission for a court in
which he may seek to file repetitive declaratory judgment
actions." Id. at 2977.
10
Aluminum Corp., 964 F.2d 252, 265 (3d Cir. 1992). To hold
otherwise would render the jurisdiction and exhaustion provisions
of §§ 1105a(b) and (c) superfluous. Id. Interpreting the
statute in a manner that harmonizes all its provisions, we hold
that, in enacting §§ 1105a(b) and (c), Congress permitted
judicial challenges of orders of exclusion solely by way of
habeas proceedings and only to those aliens who have exhausted
their administrative remedies.
Pan, citing to a number of a cases, persists in
arguing, however, that where, as here, his claims not only
challenge excludability but also raise a challenge to the
Government's programmatic application of Chang as an arbitrary
barrier to asylum claims grounded in the "one child" policy,
jurisdiction should not be limited to a habeas proceeding, but
rather should be deemed proper under § 1331. The cases Pan
relies upon for support are inapposite.
In McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479
(1991), the Supreme Court upheld district court jurisdiction
under § 1331 in the face of another provision of the INA similar
to § 1105a(b). The provision in question barred judicial review
of an administrative decision denying legal status to special
agricultural workers (SAW), except when reviewing an order of
exclusion or deportation. Id. at 486. The court found that the
provision did not preclude it from exercising jurisdiction over a
class action complaint alleging various procedural abuses, which
effectively precluded an alien from making an adequate record for
11
appeal. Id. at 487-89. The Court's holding was influenced by a
number of factors.
First, the Court stated that the provision limiting
review except in the context of an order of deportation or
exclusion was narrowly drawn. It referred to "a determination"
which connotes a single act. Because the plaintiffs were
challenging a practice or procedure rather than a denial based on
the factual merits of an individual application, the statutory
provision limiting review was not applicable to them. The Court
reasoned that, had Congress intended the review provisions to
apply to INS procedures and practices, it could have easily
drafted broader exclusionary language.
Moreover, the Court held that because the relief that
the aliens were seeking was procedural and collateral to the
merits of the denial of legal status for SAW, the aliens were not
required to exhaust their administrative remedies. Furthermore,
the Court was reluctant to limit judicial review because to do
so, would, as a practical procedural matter, have amounted to a
complete denial of meaningful judicial review. This was the case
because, under the INA, review was limited to the administrative
record which the aliens alleged was incomplete and inadequate.
These factors, however, are not applicable here.
To begin with, the provision limiting review to habeas
corpus is broad enough to encompass aliens with appellant Pan's
status. Section 1105a(b) clearly states that "any alien against
whom a final order of exclusion has been made . . . may obtain
judicial review of such order by habeas corpus and not
12
otherwise." (emphasis added). Thus, because Pan is subject to an
order of exclusion, he should not be able to circumvent the
explicit language of the statute and the intent of Congress.
Moreover, Pan's claim that the BIA is impermissibly
applying Chang is neither procedural nor collateral. It is, at
bottom, a substantive challenge to the legal standard employed by
the Government in adjudicating asylum claims. To describe this
challenge as procedural because appellant is not challenging his
order of exclusion but rather the legal standard upon which his
order was based, is not persuasive. If appellant's
characterization is correct, the review provisions of an order of
exclusion or deportation could simply be elided by characterizing
the challenge as a collateral attack on the legal standard rather
than a direct assault on the order. This result is indefensible.
Our reasoning is bolstered by the Supreme Court's
construction of "final orders of deportation." In INS v. Chadha,
462 U.S. 919 (1983), the Court held that the term includes "all
matters on which the validity of the final order is contingent."
Id. at 938. This point applies with equal force in the context
of orders of exclusion. Here, the BIA's decision in Chang is,
according to Pan, the predicate for the order of exclusion being
entered against him. In reality, Pan, therefore, challenges the
final order and squarely falls within § 1105a(b).
Finally, a denial of the class certification would not
foreclose all forms of meaningful judicial review. Regardless of
whether a class is certified, the district court would have the
authority and opportunity to review the validity of Chang to
13
determine whether the INA extends asylum to aliens who flee their
country to avoid persecution on account of their opposition to
their country's policy of coercive population control. In fact,
in an individual habeas corpus action commenced by another alien
who arrived on the Golden Venture, the United States District
Court for the Eastern District of Virginia, in concluding that
the alien was eligible for asylum, held that Chang is not
controlling and that the BIA's interpretation of the Act merits
no judicial deference. Guo Chun Di v. Carroll, 842 F. Supp. 858
(E.D. Va. 1994). This decision fortifies our position that
restricting review to a habeas corpus proceeding does not deny
appellant effective review of his claim. Thus, the case sub
judice is distinguishable in significant respects from McNary.
Although we realize that Chinese aliens who do not file
habeas petitions will be unable to obtain judicial review of
their claims -- and it is for this reason that Pan seeks a
nationwide class of all Chinese aliens, including those who have
not filed habeas petitions -- we are, nevertheless, restrained
from acting. By limiting review to those aliens who have filed
habeas petitions, Congress intended to foreclose all other
avenues of relief and it obviously realized that some aliens may
not have their day in court. Although Pan suggests that this is
a harsh result, the scheme enacted by Congress strikes a careful
balance, ensuring judicial review for those aliens who seek it,
while sheltering the judicial system from being overpowered with
frivolous claims of asylum.
14
As further support for his position that declaratory
relief is appropriate, Pan cites Brownell v. We Shung, 352 U.S.
180 (1956), where the Supreme court recognized the existence of
jurisdiction in the district courts to entertain either habeas
corpus actions or actions for declaratory and injunctive relief,
in the context of exclusion proceedings. Shung's precedential
value, however, is suspect inasmuch as it was decided before the
enactment of § 1105a(b). Although at least one case decided
after the enactment of § 1105a(b) has cited Shung with approval,
Pizarro v. District Director Of U.S. Immigration and
Naturalization Service, 415 F.2d 481 n.1 (9th Cir. 1969), we
believe that Congress intended to supersede Shung. See Garcia v.
Smith, 674 F.2d 838 (11th Cir. 1982), modified on other grounds,
680 F.2d 1327 (11th Cir. 1982); Jean v. Nelson, 711 F.2d 1455,
1503 (11th Cir. 1983), on reh'g, en banc, 727 F.2d 957 (11th Cir.
1984), and aff'd, 472 U.S. 846 (1985); see also H.R. Rep. No.
1086, 87th Cong., 1st Sess., reprinted in 1961 U.S.C.C.A.N. 2950,
2974 (§ 1105a restores law to the position it occupied prior to
the Supreme Court's decision in Shung).
In any event, Shung is inapposite. The relevant
statute in Shung required aliens who hold "certificates of
identity" to test the validity of their exclusion by habeas
corpus only. Shung, 352 U.S. at 183. The alien in question did
not possess the certificate and therefore did not fall within the
purview of the statute. Id. Not wanting to conclude that Shung
would be deprived of judicial review, the Court determined that
he could proceed via a declaratory action. Id. In the case sub
15
judice, however, Pan falls squarely within the statute requiring
him to file a habeas petition. Moreover, by filing a habeas
petition, Pan will obtain judicial review. Thus, the holding in
Shung does not implicate our present situation. Rather, it
addresses the same concerns identified by the Court in McNary,
and can be distinguished in the same manner.
Nor would any of the other cases cited by Pan provide
the court with authority to ignore the explicit requirements of
§1105a in favor of a general grant of authority under § 1331.
Courts invoking § 1331 jurisdiction have done so only when the
challenged administrative practice, policy or regulation
precluded adequate development of the administrative record and
consequently meaningful review through the procedures set forth
in § 1105a, and/or when the challenged practice was collateral
and divorced from the substantive aspects underlying the alien's
claim of asylum. In this sense, the holdings are similar to
McNary, and thus would be inapplicable in circumstances, as those
present here, where judicial review is adequate and where the
challenge relates to the merits of the final order. See, e.g.,
El Rescate Legal Servs., Inc. v. Executive Office of Immigration
Review, 959 F.2d 742, 746-47 (9th Cir. 1992) (§ 1331 jurisdiction
proper in class challenge alleging systematic inadequate
translation of immigration proceedings by INS); Montes v.
Thornburgh, 919 F.2d 531, 535 (9th Cir. 1990) (§ 1331
jurisdiction proper in class challenge to action of individual
Immigration Judge who refused to accept certain documents); Jean
v. Nelson, 727 F.2d 957, 979-80 (11th Cir. 1984) (en banc) (§
16
1331 jurisdiction proper in class challenge to INS failure to
give notice of right to apply for asylum), aff'd, 472 U.S. 846
(1985) (expressing no view on jurisdictional issues); Haitian
Refugee Center v. Smith, 676 F.2d 1023, 1033 (5th Cir. 1982) (§
1331 jurisdiction proper in class challenge to expedited
administrative procedure employed by the INS), disapproved on
other grounds, Jean, 727 F.2d at 976 n.27.
It is noteworthy that Smith, the case expansively cited
as authority by other courts and whose holding that § 1331
jurisdiction is proper in spite of the limitations contained in
§1105a, emphasized the narrowness of its holding and refused to
condone "any such end-run around the administrative process."
Smith, 676 F.2d at 1033. Heeding Smith's admonition, we deny
jurisdiction where, as here, the challenge by the aliens is
neither procedural nor collateral to the merits and where
application of the specific statutory provisions would not
preclude meaningful judicial review.2
Nor would the APA, which provides for judicial review
of "[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court," 5
U.S.C. § 704, supply the district court with jurisdiction to
certify a class claim. Pan does not deny that habeas review of
the BIA's decision would be sufficient; rather he claims that
aliens are entitled to due administrative, i.e., BIA,
2
We find it significant, as did the district court, that no
court ever approved the exercise of § 1331 jurisdiction over the
claims of an alien subject to a final order of exclusion.
17
consideration in the first instance. The cited provision,
however, provides no authority to allow courts to fashion
alternatives to the scheme specified by Congress when the review
procedure is adequate. Whitney National Bank v. Bank of New
Orleans and Trust Co., 379 U.S. 411, 420 (1965). Thus, the
district court did not err in denying class certification of
Pan's proposed class and requiring members of the proposed class
to follow the procedures set forth in § 1105a.
Pan's assertion that a class action would promote
judicial economy consistent with Congress' goal of eliminating
piecemeal proceedings does not convince us otherwise. Even
assuming, arguendo, that there are tangible efficiency gains in
this case, in the long run, extending a district court's
jurisdiction may well prove harmful to Congress' aim. Granting
an additional layer of judicial review will, in the end,
frustrate the policy of curtailing repetitious and unjustified
appeals. If Congress is convinced that the procedures can be
improved upon, then it and only it should provide for an
alternative framework. Our duty, however, is to apply faithfully
the procedural requirements put in place by the legislature.
Although there is some authority that would allow
class-wide habeas relief, Nguyen Da Yen v. Kissinger, 528 F.2d
1194, 1202 (9th Cir. 1975), the district court declined to
certify a habeas class. The court, seeing no advantage to a
class-wide habeas action subject to exhaustion and jurisdictional
limits, instead consolidated all similar claims within its
district. We do not believe the court in the instant case abused
18
its discretion in refusing to certify this class, even though the
court, for some reason, had decided provisionally to certify a
habeas class.
Pan contends, however, that contrary to the district
court's assertion it did not have to limit its habeas territorial
jurisdiction to aliens held in the Middle District of
Pennsylvania. He reasons that because a writ of habeas acts upon
the custodian of the detainee, the writ should issue to the
district director of the INS, over whom the court did have
personal jurisdiction, and thus detainees under the constructive
custody of the district director, even those not within the
court's district, should be subject to the court's habeas
jurisdiction. This argument has no merit.
It 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. See Ex Parte Endo, 323 U.S. 283,
306 (1944) (writ is directed to prisoner's "jailer"). This is
because it is the warden that has day-to-day control over the
prisoner and who can produce the actual body. See Brittingham v.
United States, 982 F.2d 378 (9th Cir. 1992); Guerra v. Meese, 786
F.2d 414 (D.C. Cir. 1986) (Parole Commission is not custodian
despite its power to release the petitioner). That the district
director has the power to release the detainees does not alter
our conclusion. Otherwise, the Attorney General of the United
States could be considered the custodian of every alien and
prisoner in custody because ultimately she controls the district
directors and the prisons. Thus, the district court correctly
19
held that its habeas jurisdiction is limited to the Middle
District of Pennsylvania.
Pan also suggests, without providing any support, that
we direct the district court to certify a class-wide habeas
action by first certifying a defendant class consisting of
various district directors around the country who are responsible
for the custody of Chinese aliens. Once a defendant class is
certified, Pan claims that a nationwide plaintiff class can
properly be certified. Pan's contention is circuitous and
illogical and we reject it. If, as discussed above, a nationwide
plaintiff class can not be certified on its own merits, due to
the court's territorial limitations, we fail to see how the
certification of a defendant class would make any difference. In
any event, as previously discussed the district directors are not
the proper parties upon whom writs of habeas corpus should be
served.
Finally, because Pan's motion for injunctive relief is
premised on the granting of class certification which we deny, we
deny this relief too.
Accordingly, the judgment of the district court will be
affirmed.
20