United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2006 Decided July 7, 2006
No. 04-5300
IN RE: BILLY G. ASEMANI
PETITIONER
On Petition for Writ of Mandamus
(No. 04cv00485)
Jeffrey T. Green, appointed by the court, argued the cause as
amicus curiae for the petitioner.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the respondent. Kenneth L. Wainstein,
United States Attorney, and Roy W. McLeese, III, Assistant
United States Attorney, were on brief.
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Ghafour “Billy” Asemani, born in Iran, currently in prison and
scheduled to be deported from this country pursuant to a
removal order entered by the Board of Immigration Appeals
(BIA), petitions for a writ of mandamus seeking to undo the
district court’s transfer of his habeas corpus petition for relief
2
from the BIA’s removal order to the Middle District of
Pennsylvania. For the following reasons, we conclude that we
are without jurisdiction to consider Asemani’s petition and,
accordingly, dismiss the petition.
I.
Asemani has filed habeas petitions challenging his detention
and impending removal by the Department of Homeland
Security (DHS) in four different district courts, creating a
procedural tangle.1 Asemani entered the United States on a
student visa, married a lawful permanent resident (LPR) in
1991, registered for selective service the same year and gained
LPR status himself in 1994. He filed a declaration of intent to
apply for U.S. citizenship in April 1996 and an initial
application for naturalization in August 1997 but completed
neither. In October 1999 Asemani was indicted on twelve
counts of criminal health-care fraud for practicing dentistry
without a license. After his indictment he went to Iran.2 Upon
his return to the U.S. in October 2000, he pleaded guilty to
eleven counts and was sentenced to thirty months’ imprisonment
in May 2001. While Asemani was in federal custody, the
1
See Asemani v. Ridge, No. 03-CV-6833 (E.D. Pa. Oct. 1, 2004);
Asemani v. Ridge, No. 3-CV-04-0135 (M.D. Pa. Jan. 30, 2004);
Asemani v. DHS, No. 04-CV-00485 (D.D.C. filed Mar. 23, 2004),
Supplemental App. to Amicus for Appellant’s Br. (SA) 1; Asemani v.
BICE, No. 05-CV-00987 (D. Md. filed Apr. 11, 2005), R. Material
Submitted by Resp’t (R.), Tab 15.
2
An immigration judge found Asemani went to Iran to avoid
prosecution on the fraud charges. SA 17.
3
Bureau of Immigration and Customs Enforcement (BICE)3
instituted removal proceedings against him in Philadelphia,
charging him as an alien deportable under the Immigration and
Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(i)(I), for
having committed crimes involving moral turpitude within ten
years of acquiring LPR status. Supplemental App. to Amicus
for Appellant’s Br. (SA) 15.
In September 2001 Asemani filed suit against Iran under the
Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602
et seq., alleging that, while in that country, he was tortured and
falsely detained by Iranian government officials because of his
religious beliefs. Asemani v. Islamic Republic of Iran, 266 F.
Supp. 2d 24 (D.D.C. 2003). Only United States nationals can
bring an action against a foreign government for such conduct
under the FSIA.4 The district court, reviewing Asemani’s length
of residence in the U.S., his registration for selective service and
his incomplete applications for U.S. citizenship, determined he
was a U.S. national and therefore had standing to bring a claim
3
BICE was formerly the Immigration and Naturalization Service
(INS). It is now part of DHS and has since been renamed U.S.
Immigration and Customs Enforcement (ICE).
4
FSIA provides that “a foreign state shall not be immune from the
jurisdiction of courts of the United States” from suits “in which money
damages are sought” for “personal injury or death that was caused by
an act of torture” unless, inter alia, “neither the claimant nor the victim
was a national of the United States (as that term is defined in section
101(a)(22) of the Immigration and Nationality Act) when the act upon
which the claim is based occurred.” 28 U.S.C. § 1605(a)(7)(B)(ii).
The Immigration and Nationality Act defines “national of the United
States” as either a United States citizen or “a person who, though not
a citizen of the United States, owes permanent allegiance to the United
States.” 8 U.S.C. § 1101(a)(22).
4
under the FSIA. Id. at 27. The district court, however,
specifically denied without prejudice Asemani’s motion for a
judicial declaration of nationality under 8 U.S.C. § 1503(a) and
28 U.S.C. § 2201.5 See id. (“[P]laintiff has demonstrated his
permanent allegiance to the United States sufficient to constitute
him a ‘national’ within the meaning of the FSIA. . . . That is all
that this Court must decide at this time for purposes of the
current case.”) (emphasis added).
After the district court’s determination, Asemani, whom
DHS had taken into custody, moved to terminate the removal
proceedings based on the district court’s determination that he
was a U.S. national, arguing BICE could not remove him
because he was not subject to its jurisdiction.6 On September 5,
2003 an immigration judge agreed, granting his motion and
ordering his release from DHS custody. SA 18. DHS appealed
the immigration judge’s determination, SA 21, and on December
12, 2003 the BIA reversed and vacated the immigration judge’s
decision, concluding that the district court’s determination as to
5
8 U.S.C. § 1503(a) allows “any person who is within the United
States claim[ing] a right or privilege as a national of the United States
and is denied such right or privilege by any department or independent
agency, or official thereof, upon the ground that he is not a national of
the United States” to bring an action for a declaratory judgment under
28 U.S.C. § 2201 “against the head of such department or independent
agency for a judgment declaring him to be a national of the United
States.”
6
Because DHS took custody of Asemani, his immigration case was
transferred from Philadelphia, where it was proceeding while he was
in prison for health care fraud, to York, Pennsylvania. See SA 15,
17–18.
5
Asemani’s status as a national applied only to the FSIA. SA 23-
28.
On March 23, 2004, while the immigration proceedings were
ongoing and before a final order of removal issued, Asemani
filed a petition for a writ of habeas corpus in the D.C. district
court. SA 01. He argued that DHS had unlawfully detained him
under section 236 of the INA, claiming that section 236 applied
only to “foreign ‘aliens.’ ” SA 02. Because he was not an alien,
Asemani argued, his continued confinement was unlawful.7 In
response the government filed a motion to transfer the case to
the Eastern District of Pennsylvania. U.S.’s Mot. to Transfer
Pet. for Writ of Habeas Corpus, R. Material Submitted by Resp’t
(R.) Tab 5. Transfer was warranted, DHS claimed, because
Asemani was incarcerated in the Eastern District of
Pennsylvania and therefore the D.C. district court lacked
jurisdiction over his custodian.8 Id. at 2 (citing In re Tripati, 836
F.2d 1406, 1407 (D.C. Cir. 1988) (“A habeas petition may be
adjudicated only in the district in which [petitioner’s] immediate
custodian, his warden, is located.”)). Meanwhile, on June 1,
2004, the U.S. Immigration Court in York, Pennsylvania ordered
Asemani’s removal from the United States. R. Tab 8.
On July 16, 2004 the district court granted DHS’s motion to
transfer Asemani’s habeas corpus case to the Eastern District of
7
Section 236 of the Immigration and Nationality Act provides that
“[t]he Attorney General shall take into custody any foreign alien who
is deportable” for, inter alia, having been “convicted of a crime
involving moral turpitude committed within . . . 10 years in the case
of an alien provided lawful permanent resident status.” 8 U.S.C. §§
1226(c), 1227(a)(2)(A)(i)(I).
8
A writ of habeas corpus must be “directed to the person having
custody of the person detained.” 28 U.S.C. § 2243.
6
Pennsylvania. Asemani v. DHS, No. 04-CV-00485 (D.D.C. July
16, 2004), reprinted at R. Tab 6. In so doing, the court noted
that the general rule “that the proper respondent in federal
habeas cases is the petitioner’s warden” compelled transfer to
the federal judicial district in which Asemani was confined at
the time he filed his habeas petition. Id. at 2. On August 18
Asemani filed a “Motion for Leave of Court to Reveal a
Significant Procedural Defect in the Court’s July 16, 2004
Transfer Order,” which alleged that the July 16 order was
flawed because at the time he filed his petition he was being
held in the Middle District of Pennsylvania. R. Tab 7. In an
August 18, 2004 order the district court amended its July 16,
2004 transfer order, ordering the case transferred to the Middle
District of Pennsylvania.9 Order on Pending Mots. and Am.
Transfer Order, R. Tab 1. Pursuant to its amended transfer order
the district court electronically transferred the case to the Middle
District of Pennsylvania on August 26. The day after the
electronic transfer, on August 27, the district court received and
docketed a “notice of appeal in the form of an emergency
petition for a supervisory writ of mandamus,” in which Asemani
stated his intent to contest the transfer order via a petition for
writ of mandamus. On the same day, August 27, this court
received and docketed Asemani’s petition for a writ of
mandamus. Emergency Pet. for Supervisory Writ of Mandamus
Pursuant to All Writs Act, 28 U.S.C. § 1651(a) (mandamus
petition). In his petition Asemani claimed that the DHS
Secretary was the proper respondent because DHS dictated the
9
When he filed his petition, Asemani was incarcerated at a
correctional facility in Carbon County, Pennsylvania, located in the
Middle District of Pennsylvania. He was subsequently transferred to
Berks County, Pennsylvania, located in the Eastern District. R. Tab
6.
7
conditions of his confinement and that the district court erred in
transferring his case. Id. at 3. On September 16, Asemani filed
an emergency motion with this court, asking us to order the
district court to “retrieve” its transfer order. Emergency Mot. to
Compel the Court Below to Reverse its Premature Electronic
Transfer of the Case, R. Tab 3. (Emergency Motion). He
challenged the validity of the electronic transfer “given the fact
that it stands in violation of the Court’s twenty-day automatic
abeyance rule.” R. Tab 3 at 3–4 (citing Starnes v. McGuire, 512
F.2d 918 (D.C. Cir. 1974)). By order dated October 19, 2005,
this court referred Asemani’s filings to a merits panel,
instructing the parties to address, inter alia, the issues raised in
Asemani’s mandamus petition and in his Emergency Motion.
II.
A petitioner seeking mandamus must show his “right to
issuance of the writ is clear and indisputable” and that “no other
adequate means to attain the relief exist[s].” In re: Sealed Case,
151 F.3d 1059, 1063 (D.C. Cir. 1998) (quotations omitted).
Before considering whether mandamus relief is appropriate,
however, we must be certain of our jurisdiction. See In re:
Executive Office of the President, 215 F.3d 20, 25 (D.C. Cir.
2000) (dismissing mandamus petition because jurisdiction
lacking). Because Asemani’s habeas petition was correctly
transferred to the Middle District of Pennsylvania, we are
without jurisdiction over his petition for mandamus relief.
In In re Sosa, 712 F.2d 1479 (D.C. Cir. 1983), Ramon Sosa
petitioned for a writ of mandamus to compel vacatur of the
district court’s order transferring his underlying case to the
Western District of Oklahoma. On March 11, 1983 the district
court ordered Sosa to show cause why his complaint should not
be transferred and ordered the transfer to the Oklahoma district
court one week later; on April 25 the record was physically
8
transferred by court order. Sosa filed his petition for mandamus
relief six weeks thereafter. We dismissed the petition for lack
of jurisdiction because the “physical transfer of the original
papers” in the case to a permissible transferee forum deprived us
of jurisdiction to review the transfer. Id. at 1480. Sosa sought
vacatur of the D.C. district court order of transfer but only the
Oklahoma transferee court had jurisdiction once the transfer was
effected. Id.; see also Starnes, 512 F.2d at 924 (“[P]hysical
transfer of the original papers in a case to a permissible
transferee forum deprives the transferor circuit of jurisdiction to
review the transfer.”). Here the district court transferred
Asemani’s habeas petition to the Middle District of
Pennsylvania on August 26, see Order, Asemani v. DHS, No. 04-
CV-00485 (D.D.C. Sept. 14, 2004), R. 10, the day before we
docketed his mandamus petition on August 27, see U.S. Court
of Appeals for the D.C. Circuit, Docket Sheet No. 04-5300, R.
Tab 4, which deprives us of jurisdiction to review the transfer.
The Sosa rule is subject to one exception. In In re Briscoe,
976 F.2d 1425 (D.C. Cir. 1992), we noted that where there was
a “substantial issue whether the district court had power to order
the transfer, we will not consider the clerk’s compliance with the
order as destroying our jurisdiction.” Id. at 1427 (internal
quotation omitted). Seeking to come within the Briscoe
exception, Asemani makes two arguments that the district court
was without authority to transfer his case; neither has merit.
Asemani’s first argument—that the district court was without
authority to transfer because, under Rule 4(c)(1) of the Federal
Rules of Appellate Procedure, Asemani’s notice of appeal is
considered filed on the date it is placed in the prison mail system
rather than the postmark date—is waived because it was made
for the first time in his reply brief. See Rollins Envtl. Servs. v.
EPA, 937 F.2d 649, 653 n.2 (D.C. Cir. 1991) (“Issues may not
be raised for the first time in a reply brief.”). His second
9
argument—that the district court’s transfer failed to comply with
the procedural rule set out in Starnes, 512 F.2d at 934-35,
recommending a twenty-day delay between the transfer order
and the physical transfer of a prisoner’s case—was included in
his September 16, 2004 Emergency Motion but not in his
mandamus petition. See Emergency Motion, R. Tab 3, at 3–4.
Even if we read Asemani’s pro se pleadings liberally and
consider the Starnes argument as part of his petition for
mandamus relief, however, it does not raise a “substantial issue”
regarding the district court’s transfer power. The Starnes rule
was adopted in order to “allow the [transferring] judge to
consider any late-arriving briefs in opposition to the transfer
which may have been delayed by inefficiencies in the [prison]
mail services.” Starnes, 512 F.2d at 934-35; see also Briscoe,
976 F.2d at 1427 (transfer before Starnes twenty-day period runs
“ordinarily would deprive [the court] of jurisdiction”) (emphasis
added); cf. In re Nine Mile Ltd., 673 F.2d 242, 243 (8th Cir.
1982) (mandamus relief granted to petitioner in diversity case
seeking review of transfer because transfer effected on same day
as transfer order; “physical transfer of the file should be delayed
for a period of time after entry of the transfer order so that
review may be sought in the transferor circuit”) (citing Starnes).
Although only eight days elapsed between the electronic transfer
of Asemani’s case on August 26 and the amended transfer order
of August 18, the original transfer order was entered on July 16,
2004—forty-one days before the case was electronically
transferred. In other words, the district court had plenty of time
to consider a brief in opposition to the transfer. In fact it
considered just such a submission, namely, Asemani’s motion
to amend the transfer order to name “an appropriate transferee
court.” See R. Tab 7 at 5. It stretches the Starnes rule beyond
its limit to allow a petitioner like Asemani, the author of more
than a dozen pro se filings in this case, to claim he was not
10
given enough time to respond to or seek review of the transfer
order.10
For the foregoing reasons, Asemani’s petition is dismissed.
So ordered.
10
Asemani challenges the electronic transfer of his case; in fact, at
the time of oral argument before us the district court’s docket sheet did
not indicate a physical transfer of Asemani’s paper file. See Asemani
v. DHS, 04-CV-00485, Docket Sheet, 8/26/04 (showing electronic
transfer to Middle District of Pennsylvania). Asemani’s mandamus
petition does not challenge the completeness of the transfer, however,
but instead the legitimacy of a completed transfer. See Drabik v.
Murphy, 246 F.2d 408, 409 (2d Cir. 1957) (where plaintiff served
motion on defendant “after the papers had been lodged in the office of
the clerk of the District Court for the Eastern District of
Louisiana . . . . the District Court for the Southern District of New
York had already lost all jurisdiction over the action because the
transfer was then complete”) (emphasis added).