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LARA-UNZUETA v. MONICA

April 19, 2004.

MIGUEL LARA-UNZUETA, Petitioner
v.
DONALD MONICA, in his individual capacity as Local District Director of the Chicago Office for the Department of Homeland Security Bureau of Immigration and Customs Enforcement, Respondent



The opinion of the court was delivered by: WILLIAM HART, Senior District Judge

MEMORANDUM OPINION AND ORDER

Before this court is Miguel Lara-Unzueta's petition for a writ of habeas corpus related to his 1998 removal from the United States. In March 1996, based on a plea of guilty, Lara-Unzueta was convicted on state charges of attempted first-degree murder and armed violence and sentenced to six years' incarceration. Because these were aggravated felonies, the conviction made Lara-Unzueta, who was a permanent resident alien, subject to deportation. However, since he had been in the United States for more than seven years, and assuming he remained in state custody for no more than five years, Lara-Unzueta would have been eligible to apply for discretionary relief from deportation under § 212(c) of the Immigration and Naturalization Act, formerly codified as 8 U.S.C. § 1182(c). That version of § 212(c) was still in effect as of Lara-Unzueta's March 1, 1996 state conviction.

Later in 1996, prior to Lara-Unzueta's release from state custody, § 212(c) was amended twice. Initially, the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (April 24, 1996), amended § 212(c) to make persons who had been convicted of certain offenses, including the type committed by Lara-Unzueta, ineligible for § 212(c) relief. Later in the year, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996), deleted § 212(c) in its entirety and replaced it with 8 U.S.C. § 1229b. Section 1229b permits the Attorney General to cancel removal for a narrow class of people. Such discretion does not apply to persons, such as Lara-Unzueta, who have been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3). The Board of Immigration Appeals ("BIA") initially held that the AEDPA amendment was applicable to persons whose proceedings were pending on or after April 24, 1996, but that persons who had actually submitted § 212(c) applications that were pending, granted, or on appeal as of that date would be considered under the pre-AEDPA version of § 212(c). See In re Soriano, 21 I. & N. Dec. 516, 518-21 (1996). That decision was subsequently modified by an Attorney General Opinion concluding that the AEDPA amendment was also applicable to those who had pending § 212(c) applications as of April 24, 1996. See Op. Att'y Gen., 1997 WL 33347804 (Feb. 21, 1997). As to the IIRIRA amendment to § 212(c), the BIA applied it only to proceedings commenced on or after the IIRIRA's April 1, 1997 effective date. See In re Rodriguez-Carrillo, 22 I. & N. Dec. 1031 (1999).

  Lara-Unzueta's deportation (removal) proceeding was commenced in January 1997, after the April 24, 1996 effective date of the AEDPA, but prior to the effective date of the IIRIRA. Before the Immigration Judge ("IJ"), Lara-Unzueta argued in favor of being granted § 212(c) relief, expressly relying upon the pre-AEDPA version of the statute. In an August 14, 1997 oral decision, the IJ held that the AEDPA version of § 212(c) applied and that Lara-Unzueta's conviction prevented him from being eligible for consideration for § 212(c) relief. The IJ terminated Lara-Unzueta's permanent resident status and ordered him removed. Lara-Unzueta unsuccessfully appealed to the Board of Immigration Appeals ("BIA"). The issues raised before the BIA will be discussed in further detail below. On June 25, 1998, Lara-Unzueta was removed and ordered not to return to the United States without the permission of the Attorney General. In October 2002, Lara-Unzueta was found in the United States*fn1 and charged with having improperly returned in violation of 8 U.S.C. § 1326(a) and 1326(b)(2). On December 5, 2003, following a bench trial, Lara-Unzueta was found guilty as charged. An order to that effect was entered on the docket on February 6, 2004. On April 7, 2004, Lara-Unzueta was sentenced to 65 months' incarceration to be followed by 3 years' supervised release. The judgment was entered on the docket on April 9, 2004. The judgment also provides: "Upon the completion of the defendant's term of imprisonment, he is to be surrendered to a duly authorized official for deportation in accordance with the established procedures provided by the Immigration and Naturalization Act." See United States v. Lara-Unzueta, No. 02 CR 995 (N.D. Ill.). See also United States v. Lara-Unzueta, 287 F. Supp.2d 888, 892 (N.D. Ill. 2003) ("Lara-Unzueta") (denying motion to dismiss indictment).

  On August 29, 2003, Lara-Unzueta filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The named respondent is Donald Monica, who is denominated as the Local District Director of the Chicago Office for the Department of Homeland Security Bureau of Immigration and Customs Enforcement ("BICE"). This bureau performs pertinent functions pertaining to removal that were formerly performed by the Immigration and Naturalization Service ("INS"). Lara-Unzueta complains that, during the deportation proceedings leading to his 1998 removal, the IJ and BIA incorrectly applied the AEDPA in determining that he was not eligible for consideration of § 212(c) relief. Three years after his removal, the Supreme Court held that the AEDPA and IIRIRA amendments did not apply to a person, like Lara-Unzueta, who had pleaded guilty to an aggravated felony prior to April 24, 1996. See INS v. St. Cyr, 533 U.S. 289 (2001). Respondent does not dispute that, in light of St. Cyr, the rulings of the IJ and BIA as to the applicable version of § 212(c) were incorrect. If he had been granted § 212(c) relief, Lara-Unzueta could have remained in this country following his release from state custody. That would have precluded the possibility of his recent conviction for improperly returning to this country.

  In the petition, Lara-Unzueta states that he:
seeks by his petition for review to challenge the agency decision on two levels. First, that in various respects the proceedings leading to that decision violated his constitutional due process rights. Second, that the decision itself involved an abuse of agency discretion by failing properly to weigh the relevant factors.
  Lara-Unzueta is not clear as to the precise relief that he seeks. It appears that he seeks an order that effectively directs the BICE to exercise its discretion and consider his eligibility for § 212(c) relief. It does not appear that he seeks an order effectively directing the BICE to grant § 212(c) relief or vacate the removal order.*fn2

  Respondent moves to dismiss the habeas petition.*fn3 Petitioner complains that respondent improperly relies upon documents outside the petition which cannot be considered on a Fed.R.Civ.P. 12(b)(6) motion. Rules Governing Section 2254 Cases in the United States District Courts ("2254 R.") may also be applied in the present type of habeas proceedings. See 2254 R. l(b); Stewart v. Ashcroft, 2002 WL 31133105 *1 n.1 (N.D. Ill. July 17, 2002); Momennia v. Estrada, 2003 WL 21318323 *1 n.1 (N.D. Tex. May 21, 2003). It is appropriate to consider the documents that respondent has presented from the underlying removal proceeding and related criminal proceeding. See 2254 R. 5. Petitioner does not dispute the authenticity of any of the documents. Additionally, even if respondent's motion should be considered one strictly pursuant to Fed. R, Civ. P. 12(b)(6), it is appropriate to take judicial notice of such documents and consider them on a Rule 12(b)(6) motion. See United States ex rel. Bidani v. Lewis, 2001 WL 1609377 *4 (N.D. Ill. Dec. 14, 2001). Also, to the extent respondent raises jurisdictional issues, respondent's motion would be a Rule 12(b)(1) motion on which this court may consider allegations and proof outside the complaint and resolve factual issues. See English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993); Weidner Communications. Inc. v. H.R.H. Prince Bandar Al Faisal, 859 F.2d 1302, 1310 n.11 (7th Cir. 1988); Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir. 1986); United States ex rel. Bidani v. Lewis, 1998 WL 1820753 *3 (N.D. Ill. Dec. 29, 1998).

  The federal statute under which plaintiff was recently convicted contains a procedure permitting the defendant to collaterally attack the removal proceeding that provides a basis for the unlawful reentry. See 8 U.S.C. § 1326(d). In the criminal proceeding, Lara-Unzueta collaterally attacked the removal order that is the subject of the present habeas corpus proceeding. The court rejected that challenge, which requires a showing that the defendant exhausted administrative remedies, he was deprived of the opportunity for judicial review, and the removal order was fundamentally unfair. See id.; Lara-Unzueta, 287 F. Supp.2d at 891-93.

  Respondent contends that jurisdiction over the habeas corpus petition is lacking because Lara-Unzueta is not in his custody. If not in the custody of the government at the time the present petition was filed, Lara-Unzueta would have no possible basis for pursuing a habeas petition. Samirah v. O'Connell, 335 F.3d 545, 549-51 (7th Cir. 2003). Lara-Unzueta was in the custody of the United States government at the time he filed this habeas petition, but the direct basis for his custody was the criminal proceeding, not an action by the BICE. Any habeas petition based on the federal criminal conviction could not have been filed until after the criminal judgment was entered and appeals exhausted, and would have to comply with the procedural requirements of 28 U.S.C. § 2255. Moreover, jurisdiction over the present habeas petition is lacking unless Lara-Unzueta was in the custody of the named respondent at the time the petition was filed. Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 673-74 (7th Cir. 2003); Samirah, 335 F.3d at 551-52. At the time the petition was filed, Lara-Unzueta was being held at the Metropolitan Correctional Center ("MCC"), in the physical custody of the Warden of the MCC.*fn4 See Al-Marri v. Rumsfeld, 360 F.3d 707, 708-09 (7th Cir. 2004); Robledo-Gonzales, 342 F.3d at 673.

  Still, a detained person may have more than one custodian. A person in the direct physical custody of one custodian, may also be considered to be in the custody of another who has the legal right to control the detainee. See Al-Marri, 360 F.3d at 711-12. Under at least some circumstances, a person who has filed a detainer with the direct custodian may also be considered the custodian of the detainee. See Vargas v. Swan, 854 F.2d 1028, 1030-33 (7th Cir. 1988); Lopez-Moreno v. INS, 2002 WL 31133097 *1 (N.D. Ill. July 16, 2002); Setharatsomphou v. Reno, 1999 WL 755292 *3 (N.D. Ill. Sept. 27, 1999); Echenique v. Perryman, 1996 WL 554546 *3-4 (N.D. Ill. Sept. 24, 1996). On October 18, 2002, that is prior to the filing of the habeas petition, INS filed detainers with both the MCC and the Marshal. Those detainers remain pending as detainers of BICE, INS's successor. The detainers themselves do not contain sufficient information to determine that they placed Lara-Unzueta in respondent's custody. See Vargas, 854 F.2d at 1032-33. The fact that Lara-Unzueta's sentencing order provides that he is to be released to BICE for removal proceedings, however, shows that BICE presently has the intent to follow through on the detainers and take custody upon his release from incarceration. Since there is no contrary indication, the only reasonable inference is that BICE also had such an intent as of the date the habeas petition was filed.

  Based on the pending detainers, Lara-Unzueta was in the custody of the local BICE district as of the date he filed his habeas petition. Therefore, this court would not lack jurisdiction over the habeas petition based on failure to name an appropriate custodian. Even if, following his sentencing, Lara-Unzueta is transferred out of this district before the habeas proceeding is concluded, this court would retain jurisdiction. See Al-Marri, 360 F.3d at 712; Ward v. United States Parole Commission, 804 F.2d 64, 66 (7th Cir. 1986); Coburn v. Reno, 1999 WL 138808 *2 (N.D. Ill. March 5, 1999).

  Respondent also contends that jurisdiction is lacking because there is no case or controversy regarding Lara-Unzueta's 1998 deportation because he has already been removed from the United States based on that proceeding. However, even after actual removal, the 1998 removal order continues to affect Lara-Unzueta's ability to return to the United States, as well as his criminal liability in the recent criminal proceeding. Therefore, there is a live case or controversy. Swaby v. Ashcroft, 357 F.3d 156, 159-61 (2d Cir. 2004); Leitao v. Reno, 311 F.3d 453, 456 (1st Cir. 2002). See also Sekvere v. United States, 1990 WL (N.D. Ill. May 21, 1990). However, the fact that Lara-Unzueta has previously been removed based on the removal order at issue may otherwise preclude the exercise of jurisdiction. See 8 U.S.C. § 1105a(c) (1995); Robledo-Gonzales, 342 F.3d at 674 n.7 (dictum). Although respondent has not raised the applicability of § 1105a(c),*fn5 it should be considered sua sponte because it contains jurisdictional provisions. Before discussing that statute, however, preclusion should be considered since that could affect determinations pertinent to jurisdiction.

  Respondent contends that the habeas petition is barred by the res judicata effect of the criminal proceeding. Since the proceeding relied upon for a preclusive effect is a proceeding in federal court, federal law as to res judicata (claim preclusion) would apply. Heck v. Humphrey, 512 U.S. 477, 488 n.9 (1994); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1289 n.4 (7th Cir. 1993); Teamsters Local 282 Pension Trust Fund v. Angelos, 762 F.2d 522, 525 (7th Cir. 1985); International Star Registry of Illinois v. Bowman-Haight Ventures. Inc., 2001 WL 1403004 *2 (N.D. Ill. Nov. 9, 2001). A federal judgment has a res judicata effect if there is "(1) a final judgment on the merits in an earlier action, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits." Tice v. American Airlines, Inc., 162 F.3d 966, 970 (7th Cir. 1998), cert. denied, 527 U.S. 1036 (1999); Harris Chernin, 10 F.3d at 1289; International Star, 2001 WL 1403004 at *2.

  At the time it was raised, respondent's invocation of res judicata was premature. Although Lara-Unzueta had already been found guilty at the time respondent filed his motion to dismiss, there was no final judgment upon which a preclusive effect could be based until Lara-Unzueta was sentenced and the judgment entered on the docket. See Clay v. United States, 123 S.Ct. 1072, 1076 (2003); Restatement (Second) of Judgments § 13 (1981); Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 4432 (2d ed. 2002). However, now a judgment has been entered. The fact that Lara-Unzueta still has time to and may appeal his conviction, does not prevent the conviction from being a final judgment that may be accorded a preclusive effect. See Prymer v. Ogden, 29 F.3d 1208, 1213 n.2 (7th Cir.), cert. denied, 513 U.S. 1057 (1994) (dictum noting that "it is clear that the [Seventh Circuit] has adhered to the general rule in American jurisprudence that a final judgment of a court of first instance can be given collateral estoppel effect even while an appeal is pending"); Rice v. Department of Treasury, 998 F.2d 997, 999 (Fed. Cir. 1993); Berry v. Illinois Department of Human ...


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