Document Type



This article argues that the immediate custodian rule has no place in the adjudication of immigration-related habeas actions. I propose that in place of this rule, courts should require only that an appropriate respondent, which may include the Attorney General, be served within the court's jurisdiction; after that, the proper forum should be determined through a venue analysis that considers factors such as the location of witnesses, the location of evidence, and convenience to the parties. Part I provides a brief overview of the use of habeas corpus petitions by INS detainees. Part II situates the custodian debate within relevant developments in habeas corpus jurisprudence over the past half-century. In Part III, I introduce the immediate custodian rule and describe two distinct lines of cases, one following the rule and the other departing from its formalism in favor of a more functional approach. Part IV considers and responds to the arguments that the First Circuit relied on in applying the immediate custodian rule to bar INS detainees from naming the Attorney General as a respondent. Part V proposes that courts replace the immediate custodian rule with an "appropriate respondent" rule and use venue factors to decide whether to hear a particular case.

Date of Authorship for this Version



immediate custodian rule, immigration, habeas corpus, Law

Original Citation

Originally published in:, New York University Review of Law & Social Change, Vol. 27, No. 4, pp. 543-586, 2001-2002