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