A. Motion to Dismiss
The Government's argument in support of its motion to dismiss is that this court does not have jurisdiction over this matter because this action is, in effect if not in name, a petition for habeas corpus and the court does not have personal jurisdiction over the plaintiff's custodian. The court rejects the Government's argument. This is not a petition for habeas corpus. The plaintiff is not requesting his release, but rather that a bond determination be made considering the particular facts and circumstances of his case and accordingly, the conclusive presumption in Section 1252(a)(2), which stands between the plaintiff and any bond hearing, be declared unconstitutional. Moreover, the government's claim that the court does not have jurisdiction over the plaintiff's custodian is also without merit. The government argues that the custodian is located in Oakdale, Louisiana, but it is clear from the statute itself that the custodian is the Attorney General of the United States, who is certainly subject to the jurisdiction of this and other United States courts. 8 U.S.C. § 1252(a)(2). Finally, the government's arguments that the plaintiff was convicted and sentenced in New York; served his term of imprisonment in Connecticut; and is now being held in Louisiana do not defeat this court's jurisdiction and are more appropriately considered in the context of venue.
This case raises important issues as to venue. Venue is normally appropriate for judicial review of immigration decisions in either the district where the plaintiff resides or where the administrative proceedings were initiated. See e.g. Maldonado-Perez v. INS, 275 U.S. App. D.C. 109, 865 F.2d 328, 337 (D.C. Cir. 1989); Randall v. Meese, 272 U.S. App. D.C. 63, 854 F.2d 472, 478 (D.C. Cir. 1988); cert. denied, 491 U.S. 904, 109 S. Ct. 3186, 105 L. Ed. 2d 694 (1989). Agunobi argues that he retains his residence prior to his incarceration, which was Chicago, Illinois. An action may be brought against government officials acting in their official capacities in the judicial district where the plaintiff resides pursuant to 28 U.S.C. § 1391(e). Thus, the issue resolves itself to whether the plaintiff retained his residence prior to his incarceration or, if his residence is the place of his incarceration (Danbury, Connecticut) for the underlying criminal conviction or, if the plaintiff now resides in Oakdale, Louisiana. The government does not address this issue, but rather appears to accept plaintiff's argument that Chicago, Illinois is his residence. (Government's Memorandum, p. 6) The court notes that there is a split of authority as to whether a prisoner retains his residence when he is incarcerated. Compare O'Brien v. Schweiker, 563 F. Supp. 301 (E.D. Pa. 1983); with In re Pope, 188 U.S. App. D.C. 357, 580 F.2d 620 (D.C. Cir. 1978). The circumstances of this case, however, make the finding that the plaintiff has retained his residence in Chicago, Illinois most reasonable. Accordingly, venue is proper in this district.
C. " Completion of Sentence "
Agunobi argues that the INS has unlawfully applied Section 1252(a)(2) to the facts of his case in that Agunobi has not "completed his sentence" within the meaning of the statute, because Agunobi has not completed his term of supervised release. Thus, the issue is whether "upon completion of the alien's sentence" means completion of the term of incarceration only, or completion of the entire sentence, including supervised release. The Board of Immigration Appeals has found that "sentence" as used in the statute means term of imprisonment. Matter of Eden, Interim Decision No. 3137 (BIA 1990).
This issue is addressed indirectly in the statute itself. Section 1252(h) provides as follows:
An alien sentenced to imprisonment shall not be deported until such imprisonment has been terminated by the release of the alien from confinement. Parole, supervised release, probation, or possibility of rearrest or further confinement in respect of the same offense shall not be a ground for deferral of deportation.