United States District Court, D. Nevada
SERVICE ORDER [ECF NO. 1]
Jennifer A. Dorsey United States District Judge.
Raul Horta-Castrejon is currently detained by Immigration and
Customs Enforcement (ICE) on charges of illegal reentry after
he was deported from the United States and twice
reentered. Horta-Castrejon brings this 28 U.S.C.
§ 2241 immigration habeas claim and alleges that his
substantive and procedural due-process rights were violated
because he would be a derivative citizen through his
native-born American adoptive father and naturalized-citizen
mother if the government had not mishandled his application
for citizenship. Horta-Castrejon paid the filing fee, so I
now review his petition.
remains unsettled in the Ninth Circuit as to the appropriate
respondent or respondents that must be named by an
immigration detainee challenging his detention on behalf of
federal immigration authorities. In Armentero v. INS
(Armentero I), the Ninth Circuit initially held that
the Attorney General and the Secretary of Homeland Security
were the proper respondents. But the Supreme Court's
subsequent decision in Rumsfeld v. Padilla
hypothesized that the proper respondent instead might be the
petitioner's immediate physical custodian, but the Court
expressly reserved the issue with respect to immigration
habeas petitions. The Ninth Circuit accordingly granted
rehearing en banc in Armentero but did not
reach and resolve the issue a second time, leaving
Armentero I as nonbinding precedent and the issue
undetermined in this circuit.
names as respondents the United States Attorney General, the
district director for the United States Citizenship and
Immigration Services (USCIS), the USCIS field office
director, and the Attorney General for the State of Nevada.
Given the unresolved state of the law, it may have been
preferable for Horta-Castrejon to name the Secretary of
Homeland Security in addition to the United States Attorney
General (as in Armentero I) as well as his immediate
physical custodian (as in Rumsfeld v. Padilla). But,
in light of the delay in reaching this matter and 28 U.S.C.
§ 2243's directive that prompt response is required,
this matter will be served for a response regardless of the
potential proper-respondent issue, which does not appear to
go to jurisdiction over the subject matter.
that said, the immigration habeas service order used in this
district directs service under Rule 4(i)(2) for service on a
federal agency, with service in this context on the United
States Attorney General, the Secretary of the Department of
Homeland Security, and the local United States Attorney. As
the disposition paragraphs reflect, service will not be
directed on any otherwise unserved persons named as a
respondent in the petition unless it is necessary to
jurisdiction over the case or to secure a response. I express
no opinion about whether the state attorney general in
particular is a proper respondent.
IT IS HEREBY ORDERED that the Clerk of Court
is directed to SERVE a copy of this
order and the petition upon respondents: (1) by
having the United States Marshal, by the close of business on
November 3, 2017, deliver it to the United States Attorney
for the District of Nevada or to the person designated
thereby for acceptance of service; (2) by certified mail upon
the Hon. Jeff Sessions, Attorney General of the United
States, U.S. Department of Justice, 950 Pennsylvania Avenue,
NW, Washington, DC 20530-0001; and (3) by certified mail upon
the Hon. Elaine C. Duke, Acting Secretary of Homeland
Security, Washington, D.C. 20528. No formal service will be
directed on any otherwise unserved respondents named in the
petition unless it is demonstrated that it is a necessary
predicate to jurisdiction over the case or to secure a
response on the merits.
FURTHER IS ORDERED under 28 U.S.C. § 2243 that
the served respondents will have 3 business days from receipt
of the petition to ANSWER or otherwise RESPOND and SHOW CAUSE
why relief should not be granted.
 ECF No. 1 at 5.
 Id. at 7-8.
 See Armentero v. INS, 340
F.3d 1058, 1071 (9th Cir. 2003) (Armentero I),
opinion withdrawn on grant of en banc rehearing, 382
F.3d 1153 (9th Cir. 2004), appeal dismissed per fugitive