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BATISTA-TAVERAS v. ASHCROFT

September 22, 2004.

RAMON ANTONIO BATISTA-TAVERAS, Petitioner,
v.
JOHN ASHCROFT, et al., Respondents.



The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

The petitioner in this case, who at one time was a permanent resident alien and who had spent much of his life in the United States, was removed from this country, apparently in consequence of failings by his former counsel, and in violation of an express undertaking given by the United States Attorney's Office. The question now before the Court is what if anything can be done about it in the context of this habeas corpus proceeding. Facts

  Petitioner was born in 1967 and is a citizen of the Dominican Republic. He was brought here as a child in 1970, lived here almost his entire life, and became a lawful permanent resident of the United States in 1990. On February 26, 2002, he was convicted in New York Supreme Court, Queens County, of criminal possession of a controlled substance in the third degree which, so far as the record discloses, was his only brush with the law.

  A. The Initial Removal Proceedings

  On June 11, 2002, while petitioner was in state custody on the possession conviction, a notice to appear charging him with removability was issued. He appeared before an Immigration Judge ("IJ"), sitting at the Ulster Correctional Facility, on October 28, 2002, at which time he was represented by Mr. Guttlein. Although petitioner conceded his removability, the IJ found that he was eligible for cancellation of removal under Section 240A of the Immigration and Nationality Act (the "Act").*fn1 He directed Mr. Guttlein to file a completed Form EOIR-42A with the Court no later than November 27, 2002 and set December 16, 2002 for the individual hearing.*fn2 There was no ambiguity about the filing requirement. As the IJ later put it, he "informed [Mr. Guttlein], on the record, that the application for relief was due at the court no later than November 27."*fn3 On November 12, 2002, petitioner was released from New York State custody and transferred to INS custody at the Pike County Jail in Pennsylvania. Three days later, the INS moved in the Immigration Court ("IC") to transfer venue from Ulster to York, Pennsylvania. The motion, however, was not ruled upon. Mr. Guttlein inexplicably failed to file the Form 42A in the IC in Ulster County, where petitioner's case still was pending. Accordingly, on December 10, 2002, the IJ issued an order of removal against petitioner after noting Mr. Guttlein's failure. No appeal was taken from that order.*fn4

  On or about December 31, 2002, Mr. Guttlein filed with the IJ a motion to reopen, reconsider and vacate the removal order and to stay removal, arguing that he had failed to file the Form 42A (seeking cancellation of removal) because he had assumed that the motion to transfer venue to York, Pennsylvania, would be granted and that he would file it there.*fn5 The IJ denied the motion on January 22, 2003, noting that he expressly had directed Mr. Guttlein to file the application for cancellation of removal in his court "no later than November 27."*fn6 He found further that counsel's assumption that the Form 42A should be filed in the York IC after transfer of venue was erroneous and, in any case, could not be reconciled with the clear direction that it be filed in the Ulster IC by November 27, 2002.

  On February 3, 2003, petitioner filed a notice of appeal to the Board of Immigration Appeals ("BIA") from the order denying the motion to reopen, reconsider and vacate. On February 20, 2003, the BIA denied petitioner's application for a stay of removal pending appeal, essentially on the ground that he had no likelihood of success on appeal. On April 22, 2003, it dismissed the appeal because Mr. Guttlein failed to file a brief.

  B. The Stay in this Court and Subsequent Events

  1. Initial Proceedings

  On March 20, 2003, petitioner, still represented by Mr. Guttlein, filed in this Court a petition for a writ of habeas corpus. By order to show cause, he sought a stay of deportation [sic] pending determination of the appeal to the BIA. The sole grounds for relief asserted were the contentions that the IC in Ulster County lacked jurisdiction over the petitioner and that the entry of the order of removal in the absence of the petitioner and his counsel violated the Due Process Clause and the Sixth Amendment, this despite the fact that the hearing had been held on October 28, 2002 with both petitioner and Mr. Guttlein present.

  At the hearing on the application for a stay pending appeal to the BIA, it became apparent that there was a substantial question whether petitioner had been deprived of due process in the proceedings before the INS by the ineffective assistance of Mr. Guttlein.*fn7 Accordingly, the Court stayed the order of removal pending the filing by petitioner, on or before April 15, 2003, of:

  (a) an amended petition in this Court setting forth precisely what relief he sought here and the jurisdictional and legal basis therefor; (b) before the IC and/or the BIA, as might be appropriate, an application to reopen the removal proceeding and vacate the order of removal on the ground of ineffective assistance of counsel; and

  (c) before the IC and/or the BIA, as might be appropriate, an application for a stay of removal pending determination of the application referred to in (b).

  The order provided further that, if the requisite filings were timely made, the stay would continue until two days after the IC or the BIA, as the case might be, ruled on the application for a stay ...


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