Case 1:25-cv-01935-JMF Document 31 Filed 03/12/25 Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MAHMOUD KHALIL,
Petitioner,
No. 25 Civ. 1935 (JMF)
- against -
WILLIAM P. JOYCE, et al.,
Respondents.
RESPONDENTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO
DISMISS OR TO TRANSFER THE CASE
MATTHEW PODOLSKY
Acting United States Attorney for the
Southern District of New York
Attorney for Respondents
86 Chambers Street, Third Floor
New York, New York 10007
Tel: (212) 637-2695/2743
JEFFREY OESTERICHER
BRANDON M. WATERMAN
Assistant United States Attorneys
– Of Counsel –
Case 1:25-cv-01935-JMF Document 31 Filed 03/12/25 Page 2 of 15
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................2
A. Khalil’s immigration detention ................................................................................2
B. Khalil’s habeas petition............................................................................................3
ARGUMENT
THE COURT SHOULD DISMISS THIS ACTION OR
ALTERNATIVELY TRANSFER THIS ACTION ............................................................3
A. Venue is Improper in this Court...............................................................................3
B. The Court Should Either Dismiss or Transfer this Action .......................................9
CONCLUSION ..............................................................................................................................11
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TABLE OF AUTHORITIES
Page(s)
Cases:
Adikov v. Mechkowski,
No. 16 Civ. 3797 (JPO), 2016 WL 3926469 (S.D.N.Y. July 18, 2016) ................................................ 7
Ali v. Dep’t of Justice,
No. 19 Civ. 8645 (LGS), 2020 WL 3057383 (S.D.N.Y. June 9, 2020) .............................................. 10
Alvarado v. Gillis,
No. 22 Civ. 10082 (JLR) (KHP), 2023 WL 5417157 (S.D.N.Y. Aug. 3, 2023) ................................. 10
Andoh v. Barr,
No. 19 Civ. 8016 (PAE), 2019 WL 4511623 (S.D.N.Y. Sept. 18, 2019) ............................................. 5
Azize v. Bureau of Immigration and Naturalization Service,
No. 04 Civ. 9684 (SHS) (JCF), 2005 WL 3488333 (S.D.N.Y. Oct. 7, 2005) ................................. 9, 10
Bacuku v. Shanahan,
No. 16 Civ. 0305 (LGS), 2016 WL 1162330 (S.D.N.Y. Mar. 1, 2016) ................................................ 7
Benitez v. An Unknown Immigration Officer,
No. 19 Civ. 3153 (GHW), 2019 WL 3450743 (S.D.N.Y. July 22, 2019) ............................................. 7
Cesar v. Shanahan,
No. 17 Civ. 7974 (ER), 2018 WL 1747989 (S.D.N.Y. Feb. 5, 2018) ................................................... 7
Chan Lo v. Sessions,
No. 17 Civ. 6746 (GHW), 2017 WL 8786850 (S.D.N.Y. Sept. 15, 2017) ........................................... 7
Concepcion v. Aviles,
No. 14 Civ. 8770 (AT), 2015 WL 7766228 (S.D.N.Y. Mar. 12, 2015) ................................................ 7
Drakoulis v. Ashcroft,
356 F. Supp. 2d 367 (S.D.N.Y. 2005) ................................................................................................... 8
Excellent v. Gonzales,
No. 04 Civ. 9748 (VM), 2006 WL 238986 (S.D.N.Y. Jan. 31, 2006) .................................................. 8
Farez-Espinoza v. Chertoff,
600 F. Supp. 2d 488 (S.D.N.Y. 2009) ............................................................................................... 5, 6
Fortune v. Lynch,
No. 15 Civ. 8134 (KPF), 2016 WL 1162332 (S.D.N.Y. Mar. 22, 2016) .............................................. 7
Freire v. Terry,
756 F. Supp. 2d 585 (S.D.N.Y. 2010) ................................................................................................... 8
German v. Green,
No. 15 Civ. 4691 (WHP), 2015 WL 7184992 (S.D.N.Y. Oct. 30, 2015) ............................................. 8
ii
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Guo v. Napolitano,
No. 09 Civ. 3023 (PGG), 2009 WL 2840400 (S.D.N.Y. Sept. 2, 2009) ....................................... 5, 6, 7
Henderson v. I.N.S.,
157 F.3d 106 (2d Cir. 1998) .................................................................................................................. 6
Kolev v. Sessions,
No. 17 Civ. 9477 (RA), 2019 WL 1748436 (S.D.N.Y. Apr. 16, 2019) ................................................ 7
Medina-Valdez v. Holder,
No. 12 Civ. 6002 (RA), 2012 WL 4714758 (S.D.N.Y. Oct. 1, 2012) ................................................... 7
Phrance v. Johnson,
No. 14 Civ. 3569 (TPG), 2014 WL 6807590 (S.D.N.Y. Dec. 3, 2014) ................................................ 7
Rone v. Holder,
No. 15 Civ. 2815 (ER), 2015 WL 13722402 (S.D.N.Y. June 5, 2015) ................................................ 7
Rumsfeld v. Padilla,
542 U.S. 426 (2004) .......................................................................................................... 1, 4, 5, 6, 8, 9
S.N.C. v. Sessions,
325 F. Supp. 3d 401 (S.D.N.Y. 2018) ................................................................................................... 7
Shehnaz v. Ashcroft,
No. 04 Civ. 2578 (DLC), 2004 WL 2378371 (S.D.N.Y. Oct. 25, 2004) .......................................... 8, 9
Sikivou v. Dep’t of Homeland Security,
No. 06 Civ. 5530 (PKC), 2007 WL 2141564 (S.D.N.Y. July 25, 2007) .............................................. 7
Singh v. Holder,
No. 12 Civ. 4731 (JMF), 2012 WL 5878677 (S.D.N.Y. Nov. 21, 2012) ...................................... 1, 5, 6
Washington v. District Director, INS,
No. 04 Civ. 3492 (RMB) (MHD), 2005 WL 2778747 (S.D.N.Y. Oct. 19, 2005) ................................ 8
Statutes:
8 U.S.C. § 1226 ........................................................................................................................................... 2
8 U.S.C. § 1227 ........................................................................................................................................... 2
28 U.S.C. § 2241 ................................................................................................................................. 1, 3, 4
iii
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Preliminary Statement
The petitioner brings this habeas action under 28 U.S.C. § 2241 to challenge his detention
by U.S. Immigration and Customs Enforcement (“ICE”) during the pendency of his removal
proceedings. But this Court is not the proper forum for this habeas action. Federal district courts
possess limited authority to grant writs of habeas corpus within their respective jurisdictions. As
the Supreme Court has explained, “the default rule is that the proper respondent is the warden of
the facility where the prisoner is being held, not the Attorney General or some other remote
supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). And for challenges to
detention, “jurisdiction lies in only one district: the district of confinement.” Id. at 443.
At the time that this action was filed, the petitioner was physically present and detained at
the Elizabeth Detention Facility in Newark, New Jersey. He was not in the Southern District of
New York. Thus, this Court did not acquire habeas jurisdiction over this matter, and venue is
improper in this district. This Court has already decided the precise legal issue underlying the
government’s motion in at least five cases. See Thomas v. Decker, No. 19 Civ. 8690 (JMF), ECF
No. 26 (S.D.N.Y. Oct. 16, 2019); Tazu v. Barr, No. 19 Civ. 1716 (JMF), ECF No. 16 (S.D.N.Y.
Mar. 1, 2019); Traore v. Decker, No. 18 Civ. 7909 (JMF), ECF No. 9 (S.D.N.Y. Sept. 13, 2018);
Suraiya v. Cioppa, No. 18 Civ. 6628 (JMF), ECF Nos. 17 (Order), 18 (Transcript) (S.D.N.Y. July
31, 2018); Singh v. Holder, No. 12 Civ. 4731 (JMF), 2012 WL 5878677, at *2 (S.D.N.Y. Nov. 21,
2012). There has been no intervening change in controlling law, and thus this Court should adhere
to its prior decisions and conclude that this action cannot proceed in this Court.
Accordingly, this Court should dismiss this action without prejudice for lack of
jurisdiction/venue, or alternatively transfer it. If the Court decides to transfer the case, to minimize
any delay, the government respectfully requests that the Court waive the seven-day waiting period
contained in Local Civil Rule 83.1.
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BACKGROUND
A. Khalil’s immigration detention
Mahmoud Khalil (“Khalil”), a native of Syria and citizen of Algeria, entered the United
States on a student visa in December 2022. See Declaration of Acting Field Office Director
William Joyce (“Joyce Decl.”) ¶ 5. He adjusted to lawful permanent resident status in November
2024. Id. ¶ 6. On March 8, 2025, Special Agents from the U.S. Immigration and Customs
Enforcement (“ICE”) Homeland Security Investigations (“HSI”) Office of the Special Agent in
Charge for the New York Area of Responsibility arrested Khalil at 8:35 p.m. in front of 195
Claremont Avenue in Manhattan, New York, for the purpose of placing him in removal
proceedings. Id. ¶ 7. HSI transported him to 26 Federal Plaza at 8:44 p.m. for processing. Id.
While at 26 Federal Plaza, HSI served Khalil with a Notice to Appear (“NTA”), the charging
document used to commence removal proceedings, which charged him as being removable
pursuant to 8 U.S.C. § 1227(a)(4)(C)(i), in that the Secretary of State has reasonable grounds to
believe that his presence or activities in the United States would have potentially serious adverse
foreign policy consequences for the United States. Id. ICE also served Khalil with a Notice of
Custody Determination, notifying Khalil that his detention was governed by 8 U.S.C. § 1226(a)
(immigration custody during removal proceedings). Id.
Upon completion of processing, ICE transported Khalil from 26 Federal Plaza to Elizabeth
Detention Facility in Newark, New Jersey,1 where he was physically present and booked into the
detention facility at 2:20 a.m. Eastern Standard Time (3:20 a.m. Eastern Daylight Time) on
1
Elizabeth Detention Facility has comprehensive overnight accommodations for detainees,
such as bends and 24-hour medical staff, whereas 26 Federal Plaza is a Hold Room facility used
for detention of individuals awaiting removal, transfer, immigration court hearings, medical
treatment, intra-facility movement, or other processing into or out of a facility, and it does not have
beds or overnight medical staff. Joyce Decl. ¶ 10.
2
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March 9, 2025. Id. ¶ 8. Shortly before noon on March 9, Khalil departed Elizabeth Detention
Facility and was brought to the airport to be transported to the Central Louisiana ICE Processing
Facility in Jena, Louisiana. Id. ¶ 10. Khalil was booked into the Central Louisiana ICE Processing
Facility at 12:33 a.m. on March 10, 2025, and he remains detained at that facility. Id. ¶ 11.
B. Khalil’s habeas petition
At 4:41 a.m. on March 9, 2025, Khalil’s attorney filed the instant habeas petition under 28
U.S.C. § 2241, while Khalil was physically present and detained in New Jersey. Joyce Decl. ¶¶ 8-
9; see also ECF No. 11 at 6 (“Counsel filed the instant habeas corpus petition on Mr. Khalil’s
behalf on March 9, 2025, at 4:41 a.m.”). By her account, Khalil’s attorney filed the instant habeas
petition in this District, because (i) DHS agents had previously told Khalil’s wife that he was being
sent to 26 Federal Plaza (as he was), and (ii) the public “ICE Online Detainee Locator System”
had not yet been updated at that hour to show he had been transferred to New Jersey. Greer Decl.
(ECF 11-1) ¶¶ 7, 9. Khalil’s petition challenges his current immigration detention as unlawful, and
he seeks an order from this Court requiring ICE to immediately release him. Pet. (ECF No. 2).
ARGUMENT
THE COURT SHOULD DISMISS THIS ACTION OR ALTERNATIVELY
TRANSFER THIS ACTION
A. Venue is Improper in this Court
A habeas petition brought under 28 U.S.C. § 2241 challenging detention must be brought
against the immediate custodian and filed in the district in which the petitioner is detained. Venue
is improper in the Southern District of New York because Khalil was not detained in this district
at the time he filed his habeas petition. Joyce Decl. ¶ 9. Rather, the petitioner’s attorney filed the
habeas petition in this Court while Khalil was physically present in and confined at the Elizabeth
Detention Facility in Newark, New Jersey. Id. ¶ 8; ECF No. 11 at 6. Thus, the Court lacks
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jurisdiction over the habeas petition and the Southern District of New York is not the proper venue
for this habeas action. Consequently, the Court should either dismiss this action or transfer it.
The Supreme Court has made clear that in “core” habeas petitions—i.e., petitions like the
instant one that challenges the petitioner’s present physical confinement—the petitioner must file
the petition in the district in which he is confined (i.e., the district of confinement) and name his
warden as the respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004). In Padilla, the
Supreme Court described habeas petitions challenging a petitioner’s present physical confinement
(i.e., detention) as “core” habeas petitions. Id. at 445. For review of such “core” petitions,
“jurisdiction lies in only one district: the district of confinement.” Id. at 443. Accordingly,
“[w]henever a § 2241 habeas petitioner seeks to challenge his present physical custody within the
United States, he should name his warden as respondent and file the petition in the district of
confinement.”2 Id. at 447; see also id. at 443 (explaining that “[t]he plain language of the habeas
statute thus confirms the general rule that for core habeas petitions challenging present physical
confinement, jurisdiction lies in only one district: the district of confinement”).
In embracing the “immediate custodian” rule, the Supreme Court explained that limiting a
district court’s jurisdiction to issue a writ to custodians within their jurisdiction “serves the
important purpose of preventing forum shopping by habeas petitioners.” Padilla, 542 U.S. at 447
(observing that the result of disregarding the immediate custodian rule “would be rampant forum
shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and
embarrassment Congress sought to avoid when it added the jurisdictional limitation [in 1867]”).
2
In adopting the “immediate custodian” rule, the Supreme Court rejected the “legal reality
of control” standard and held that legal control does not determine the proper respondent in a
habeas petition that challenges present physical confinement. See Padilla, 542 U.S. at 437-39; see
also id. at 439 (“In challenges to present physical confinement, we reaffirm that the immediate
custodian, not a supervisory official who exercises legal control, is the proper respondent.”).
4
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Although Padilla addressed a habeas petition outside of the immigration context, based on
Padilla’s holding and logic, a “clear majority of district courts” within the Second Circuit have
applied “the immediate custodian rule to habeas petitions filed by incarcerated aliens challenging
their physical detention prior to deportation.” Guo v. Napolitano, No. 09 Civ. 3023 (PGG), 2009
WL 2840400, at *3 (S.D.N.Y. Sept. 2, 2009) (collecting cases). “The substantial majority of
judges in this District to consider this question have reached the same conclusion, holding that a
[petitioner] detained in New Jersey who seeks to challenge his detention, even if under the
supervision of ICE personnel in this District, must bring a habeas action in the District of New
Jersey.” Andoh v. Barr, No. 19 Civ. 8016 (PAE), 2019 WL 4511623, at *2 (S.D.N.Y. Sept. 18,
2019).
This Court has addressed this exact issue in at least five cases: Thomas v. Decker, No. 19
Civ. 8690 (JMF), ECF No. 26 (S.D.N.Y. Oct. 16, 2019); Tazu v. Barr, No. 19 Civ. 1716 (JMF),
ECF No. 16 (S.D.N.Y. Mar. 1, 2019); Traore v. Decker, No. 18 Civ. 7909 (JMF), ECF No. 9
(S.D.N.Y. Sept. 13, 2018); Suraiya v. Cioppa, No. 18 Civ. 6628 (JMF), ECF Nos. 17 (Order), 18
(Transcript) (S.D.N.Y. July 31, 2018); Singh v. Holder, No. 12 Civ. 4731 (JMF), 2012 WL
5878677, at *2 (S.D.N.Y. Nov. 21, 2012). In Singh, this Court held that the proper forum for a
habeas petition brought by an alien challenging his continued physical detention—i.e., “core”
habeas claims—was “the district of confinement.” 2012 WL 5878677, at *2; see also id.
(“Applying the ‘immediate custodian’ rule, the Court therefore holds that jurisdiction lies only in
the Northern District of Alabama, where Petitioner is detained, and that the only proper respondent
is Petitioner’s immediate custodian, Warden Scott Hassel.”). In reaching this conclusion, the Court
noted that it was unpersuaded by the analysis in Farez-Espinoza v. Chertoff, 600 F. Supp. 2d 488
(S.D.N.Y. 2009), where Judge Baer had reasoned that the Attorney General and Secretary of the
5
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Department of Homeland Security were proper respondents in an immigration habeas action, and,
despite the petitioner’s detention in New Jersey on the day the petition was filed, held that the
Southern District of New York was the proper venue based on a finding that the “traditional
principles of venue” governed immigration habeas cases. See id. at 495-97. This Court found the
analysis in Farez-Espinoza to be flawed because that decision relied on cases that pre-dated
Padilla and that were otherwise inapplicable to venue consideration in immigration detention
challenges. See Singh, 2012 WL 5878677, at *2; see also Guo, 2009 WL 2840400, at *4-5 (finding
Farez-Espinoza unpersuasive for the additional reason that it relied on Henderson v. I.N.S., 157
F.3d 106 (2d Cir. 1998), which was issued six years prior to Padilla, and which relied on the “legal
control” argument that Padilla subsequently rejected).
Similarly, in Suraiya, this Court held a conference eight days after the petition was filed at
which the Court acknowledged its application of Padilla in its prior ruling in Singh, “a case
bringing pretty much the same exact nature of claim,” and then explained “that the immediate
custodian rule applies to challenges of this nature and that jurisdiction is proper only in the district
where the immigrant is detained.” Transcript (attached), Suraiya v. Cioppa, No. 18 Civ. 6628
(JMF) (S.D.N.Y. July 31, 2018) (ECF No. 18) at 2:21-3:4. This Court proceeded similarly in
Traore and Tazu. See Transcript of Proceedings (Sept. 6, 2018), Traore v. Decker, No. 18 Civ.
7909 (JMF) (S.D.N.Y. Sept. 21, 2018) (ECF No. 10) at 2:14-23; Transfer Order, Traore v. Decker,
No. 18 Civ. 7909 (JMF) (S.D.N.Y. Sept. 13, 2018) (ECF No. 9); Transcript of Proceedings (Mar.
1, 2019), Tazu v. Decker, No. 19 Civ. 1716 (JMF) (S.D.N.Y. Mar. 19, 2018) (ECF No. 16) at 2:25-
3:10; Transfer Order, Tazu v. Decker, No. 19 Civ. 1716 (JMF) (S.D.N.Y. Mar. 1, 2019) (ECF No.
14). Lastly, in Thomas, this Court received full briefing and was ultimately unpersuaded to change
its position. Thomas v. Decker, No. 19 Civ. 8690 (JMF) (ECF No. 26) (S.D.N.Y. Oct. 16, 2019).
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Moreover, in cases similar to this matter—where immigration habeas petitioners detained
outside of the Southern District of New York nonetheless brought actions in this District
challenging their present physical confinement—courts have routinely held that venue in this
district is improper. These cases include challenges to immigration detention where aliens are
currently in removal proceedings, as well as cases where aliens are subject to a final order of
removal and awaiting removal. See, e.g., Benitez v. An Unknown Immigration Officer, No. 19 Civ.
3153 (GHW), 2019 WL 3450743, at *1 (S.D.N.Y. July 22, 2019) (“The majority of courts in this
district that have considered the issue have held that habeas petitions which challenge an alien’s
detention pending removal are subject to the immediate custodian rule, and thus jurisdiction over
such a claim lies only in the district where Petitioner is physically confined.”); Kolev v. Sessions,
No. 17 Civ. 9477 (RA), 2019 WL 1748436, at *1 (S.D.N.Y. Apr. 16, 2019); S.N.C. v. Sessions,
325 F. Supp. 3d 401, 410 (S.D.N.Y. 2018) (same); Cesar v. Shanahan, No. 17 Civ. 7974 (ER),
2018 WL 1747989, at *1 (S.D.N.Y. Feb. 5, 2018) (same); Chan Lo v. Sessions, No. 17 Civ. 6746
(GHW), 2017 WL 8786850, at *1 (S.D.N.Y. Sept. 15, 2017) (same); Adikov v. Mechkowski, No.
16 Civ. 3797 (JPO), 2016 WL 3926469, at *1 (S.D.N.Y. July 18, 2016) (same); Fortune v. Lynch,
No. 15 Civ. 8134 (KPF), 2016 WL 1162332, at *2 (S.D.N.Y. Mar. 22, 2016) (same); Bacuku v.
Shanahan, No. 16 Civ. 0305 (LGS), 2016 WL 1162330, at *1 (S.D.N.Y. Mar. 1, 2016) (same);
Rone v. Holder, No. 15 Civ. 2815 (ER), 2015 WL 13722402, at *1 (S.D.N.Y. June 5, 2015) (same);
Concepcion v. Aviles, No. 14 Civ. 8770 (AT), 2015 WL 7766228, at *1 (S.D.N.Y. Mar. 12, 2015)
(same); Phrance v. Johnson, No. 14 Civ. 3569 (TPG), 2014 WL 6807590, at *2 (S.D.N.Y. Dec. 3,
2014) (same); Medina-Valdez v. Holder, No. 12 Civ. 6002 (RA), 2012 WL 4714758, at *1-2
(S.D.N.Y. Oct. 1, 2012) (same); Guo, 2009 WL 2840400, at *5 (same); Sikivou v. Dep’t of
Homeland Security, No. 06 Civ. 5530 (PKC), 2007 WL 2141564, at *3 (S.D.N.Y. July 25, 2007)
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(same); Excellent v. Gonzales, No. 04 Civ. 9748 (VM), 2006 WL 238986, at *1 (S.D.N.Y. Jan. 31,
2006) (same); Washington v. District Director, INS, No. 04 Civ. 3492 (RMB) (MHD), 2005 WL
2778747, at *2 (S.D.N.Y. Oct. 19, 2005) (same); Drakoulis v. Ashcroft, 356 F. Supp. 2d 367, 370-
71 (S.D.N.Y. 2005) (same); Shehnaz v. Ashcroft, No. 04 Civ. 2578 (DLC), 2004 WL 2378371, at
*4 (S.D.N.Y. Oct. 25, 2004) (same); cf. German v. Green, No. 15 Civ. 4691 (WHP), 2015 WL
7184992, at *2 (S.D.N.Y. Oct. 30, 2015) (“Since [petitioner] mailed his petition to this Court while
physically detained in New Jersey . . . this Court has no jurisdiction over this case.”); Freire v.
Terry, 756 F. Supp. 2d 585 (S.D.N.Y. 2010) (dismissing habeas petition for lack of jurisdiction,
without prejudice to refiling in the district of confinement)
There is no basis for this Court to depart from this practice in this case. During the
March 12 conference, the Court raised Justice Kennedy’s concurrence in Padilla—and how it
contemplated an exception to the district-of-confinement rule in the face of certain governmental
misconduct. But this “proposed” exception—from a concurring opinion where the Justices joined
the majority opinion in full—is not the law. Padilla, 542 U.S. at 436.
And in all events, nothing here would implicate the concerns behind Justice Kennedy’s
concurrence. As the above makes clear, Khalil was transferred from a processing facility in New
York City to a detention facility in New Jersey. And, as explained too, the reasons that the petition
was filed in this District were that (i) Khalil’s wife was told by DHS officials that he was being
taken to 26 Federal Plaza (a completely accurate statement), and (ii) the ICE website had not
updated with accurate information at that hour (around 4am on a weekend). In stark contrast to
this, Justice Kennedy’s concurrence raises the prospect of a narrow exception “in an exceptional
case” for prolonged, wrongful conduct—i.e., a sustained governmental effort to evade habeas
jurisdiction. Id. at 454 (Kennedy, J.). That is not this case here: Over the span of a day, Khalil
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was processed and transferred, after an overnight stay, to a detention facility where he will be held
for the foreseeable future; and where he can file a proper petition in that District (as discussed
next). His detention is not unique in any way that would provide a basis for departure from the
district-of-confinement/immediate custodian rule. Id. at 454; see also id. at 442.
This case thus provides no basis for deviating from the “the default rule . . . that the proper
respondent is the warden of the facility where the prisoner is being held.” Id. at 435 (opinion of
the Court); see also id. at 447 (“Whenever a § 2241 habeas petitioner seeks to challenge his present
physical custody within the United States, he should name his warden as respondent and file the
petition in the district of confinement.”). Because the petitioner was detained in New Jersey at the
time he filed this habeas petition, the Court lacks habeas jurisdiction over this matter and venue is
not proper in the Southern District of New York.
B. The Court Should Either Dismiss or Transfer this Action
Because this Court lacks jurisdiction and is not the proper forum for this habeas action, the
Court should either dismiss this action without prejudice or transfer the petition forthwith.3 See
Shehnaz, 2004 WL 2378371, at *4.
Should the Court consider transferring the petition, the proper venue is the Western District
of Louisiana. See Azize v. Bureau of Immigration and Naturalization Service, No. 04 Civ. 9684
(SHS) (JCF), 2005 WL 3488333, at *1 (S.D.N.Y. Oct. 7, 2005) (noting that “Padilla controls,”
and transferring detention challenge to the Western District of Louisiana, which was the place of
petitioner’s “present physical custody”). In Padilla, the Supreme Court recognized a “limited”
exception to the district-of-confinement rule, only “when the Government moves a habeas
3
Should the Court transfer the case, to minimize any delay in having the case heard in the
proper forum, the government respectfully requests that the Court waive the seven-day waiting
period contained in Local Civil Rule 83.1.
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petitioner after she properly files a petition naming her immediate custodian.” Id. at 441 (emphasis
added) (discussing Ex Parte Endo, 323 U.S. 283 (1944)). In that event, the court where jurisdiction
originally vested can retain the case.
Here, the petitioner did not properly file a petition naming his immediate custodian because
the habeas petition was filed in this District when Khalil was being detained in New Jersey.
Accordingly, jurisdiction did not vest in the District of New Jersey because he did not file his
petition in that court. Consequently, the District of New Jersey cannot “retain[]” habeas
jurisdiction, as it never acquired it to begin with. Id.
A proper course is thus to transfer this case to the Western District of Louisiana—i.e., the
only district where Khalil could refile a petition today, if this Court were to dismiss his improper
one. Put simply, “jurisdiction lies in only one district: the district of confinement.” Id. at 443.
The District of New Jersey has been raised as a potential proper forum. Given that the
District of New Jersey never acquired jurisdiction over this case, and does not have jurisdiction
over Khalil’s present custodian, it is difficult to see how that court could adjudicate this dispute,
simply because Khalil was present there at the time of his original (improper) filing.4
Nevertheless, in the event the Court harbors doubt about whether New Jersey or Louisiana
is the proper forum, what should be plain is that venue does not lie in this Court. And if this Court
4
It is true that in at least two cases in this District, judges concluded that, notwithstanding
(i) an improperly filed petition in this District because the petitioner was detained elsewhere, and
(ii) a subsequent transfer of the petitioner after the habeas petition was filed to a different facility
in another District, the case should be transferred to the District where the petitioner was detained
at the moment the original habeas petition was filed. See, e.g., Alvarado v. Gillis, No. 22 Civ.
10082 (JLR) (KHP), 2023 WL 5417157 (S.D.N.Y. Aug. 3, 2023), rep. and rec. adopted at ECF
16 (S.D.N.Y. Aug. 22, 2023); Ali v. Dep’t of Justice, No. 19 Civ. 8645 (LGS), 2020 WL 3057383,
at *2 (S.D.N.Y. June 9, 2020). In these cases, however, the government did not seek transfer to
the district of confinement and therefore the court did not address the issue presented here.
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Case 1:25-cv-01935-JMF Document 31 Filed 03/12/25 Page 15 of 15
is inclined to transfer this case to the District of New Jersey, the government respectfully preserves
the right to argue there that transfer is proper to the Western District of Louisiana.
CONCLUSION
For the foregoing reasons, the Court should either dismiss this action or transfer the
petition.
Dated: March 12, 2025
Respectfully submitted,
YAAKOV M. ROTH MATTHEW PODOLSKY
Acting Assistant Attorney General Acting United States Attorney
Civil Division Southern District of New York
Attorney for Respondents
By: /s/ Brandon M. Waterman
JEFFREY OESTERICHER
BRANDON M. WATERMAN
Assistant United States Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10007
Tel.: (212) 637-2695/2743
[email protected] [email protected] 11
