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
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
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,
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
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 ...