United States District Court, S.D. New York
November 3, 2004.
EDDY BELLO NOLASCO, Petitioner,
UNITED STATES OF AMERICA Respondent.
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
Pro se petitioner Eddy Bello Nolasco*fn1 seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 challenging a June 20,
1997 Order*fn2 of the Immigration Judge ("IJ") deporting him
from the United States to the Dominican Republic. See Record at
28. To challenge his order of deportation, Nolasco filed a
petition pursuant to 28 U.S.C. § 2255 in the United States
District Court for the District of New Jersey on February 22,
2002. That court transferred the case to the Southern District of
New York because it found that Nolasco was then detained in this district. The District Court of New Jersey construed
Nolasco's petition as a writ of habeas corpus under
28 U.S.C. § 2241.*fn3 Magistrate Judge Debra Freeman agreed with this
construction. See Report and Recommendation ("R&R") at 1 n. 1.
I also agree.
The sole issue raised in his habeas petition is the validity of
this deportation order. Nolasco's petition asserts that his due
process and equal protection rights were violated during his
deportation proceedings because the IJ and the BIA erroneously
considered him ineligible for discretionary relief under former
section 212(c) of the Immigration and Nationality Act of 1952
The petition was referred to Magistrate Judge Freeman who
issued an R&R on November 3, 2003, familiarity with which is
assumed. Judge Freeman recommended that the petition be granted
and the matter be remanded to the BIA for consideration of
Nolasco's eligibility for relief from deportation under both
former section 212(c) and section 245(a) of the INA, what in
combination is known as Gabryelsky relief.*fn4
On December 18, 2003, the Government objected to Judge
Freeman's Report on the following grounds: (1) St. Cyr and
Drax*fn5 do not apply because Nolasco's order of
deportation was executed prior to the date of these decisions;
(2) the United States of America is not a proper respondent; (3)
this Court lacks subject matter jurisdiction because the
reinstatement statute, INA § 241(a)(5),*fn6 bars reopening
or review of the deportation order; (4) Nolasco's September 17,
1999 conviction for illegal reentry after deportation precludes
him from challenging the validity of his June 20, 1997
deportation order under principles of res judicata; and (5) it would be futile to reopen Nolasco's
deportation proceedings because he cannot avoid deportation for
several reasons. See Respondent's Objections to the Magistrate
Judge's November 4 [sic], 2003 Report and Recommendation
Petitioner filed a response to the Government's Objections on
May 28, 2004, see Petitioner's Response to the Objections
("Response"), to which the Government replied on June 25, 2004,
see Government's Reply to Nolasco's Response to Objections to
the Magistrate Judge's November 4 [sic], 2003 Report and
Recommendation ("Reply"). Pursuant to 28 U.S.C. § 636(b)(1) and
Rule 72(b) of the Federal Rules of Civil Procedure, this Court
reviewed the petition and the R&R de novo, as well as the
Objections, Response and Reply. For the following reasons, Judge
Freeman's R&R is adopted in its entirety.
A. Nolasco's Criminal History
On September 21, 1995, in the New Jersey Superior Court, Hudson
County, Nolasco pled guilty to the possession of cocaine with
intent to distribute within 1,000 feet of a school, and to the
unlawful possession of a handgun. See Record at 56, 52. On
January 26, 1996, Nolasco was sentenced to five years
imprisonment on the drug charge and eighteen months on the
handgun charge, to be served concurrently. See id. It appears that he was paroled
on these charges on February 5, 1998, but was then taken into
custody by the INS on a detainer. See New Jersey State Records,
Department of Corrections, Ex. P to the Declaration of Assistant
United States Attorney Patricia L. Buchanan dated December 18,
2003 ("Buchanan Decl.").
B. Nolasco's Deportation Proceedings
On January 2, 1997, the Immigration and Naturalization Service
("INS") served Nolasco with an Order to Show Cause charging him
with being deportable on the following grounds: (1) his
conviction for unlawful possession of a handgun; (2) his
conviction for possession of a controlled substance; and (3) his
conviction for an aggravated felony as defined in section
101(a)(43) of the INA. See Record at 70-78. These are
deportable offenses pursuant to sections 241(a)(2)(C),
241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA. See
8 U.S.C. §§ 1251(a)(2)(C), 1251(a)(2)(B)(i), and 1251(a)(2)(A)(iii).
On March 6, 1997, immigration proceedings commenced before IJ
Daniel Meisner in Newark, New Jersey. See Record at 33-37. The
proceedings were adjourned several times and concluded on June
20, 1997. See id. at 41-51. Nolasco admitted the allegations
and conceded all three charges contained in the Order to Show
Cause. See id. at 44. The following colloquy occurred at the
June 20th hearing:
[Nolasco]: I have my whole family here.
[IJ]: You know I understand that, but the law has
changed from what it had been a year or so ago. And
the law now indicates that if you have been convicted
of a serious crime called an aggravated felony, like
possession of drugs with intent to distribute near a
school, and you've been sentenced to a year or more
on that crime, then you can't present an application
to stay here based on your family, or equities, the
hardship in leaving.
[Nolasco]: Well, I'd like to do that.
[IJ]: And the fact that on the drug charge you're
sentenced to possibly serve up to five years, really
bars you from any type of relief that I can think of.
And, therefore, no matter how sympathetic I am to
your situation, the fact that you have lived here a
long time, and you have your whole family here, I
just cannot exercise discretion in your favor. I
can't grant the case, no matter how compelling it is,
because the application just cannot be filed under
the new law.
Id. at 46-47. At the end of the hearing, the IJ issued an oral
decision finding Nolasco deportable based on all three charges
contained in the Order to Show Cause. See id. at 29-30. The IJ
further found that because Nolasco had been convicted of an
aggravated felony, namely, possession of cocaine with intent to distribute within 1,000 feet of a school, he was ineligible for a
waiver under former section 212(c) of the INA. See id. at 30.
Nolasco was ordered deported to the Dominican Republic. See id.
Through counsel, Nolasco appealed the IJ's decision to the BIA.
See id. at 24-27. On appeal, Nolasco's sole argument was that
he should have been permitted to seek section 212(c) relief from
deportation. See id. at 6-19. By decision dated May 4, 1998,
the BIA affirmed the IJ's decision. See id. at 3. Relying on
Matter of Soriano, 21 I. & N. Dec. 516, 533 (Op. Att'y Gen.
Feb. 21, 1997),*fn7 the BIA found Nolasco statutorily barred
from relief from deportation under section 212(c) by operation of
section 440(d) of the AEDPA.*fn8 Nolasco did not initially
file a writ of habeas corpus or a petition for review challenging
the order of deportation. C. Nolasco's Deportation and Subsequent Conviction for Illegal
On July 2, 1998, Nolasco was deported from the United States to
the Dominican Republic pursuant to a final order of deportation
issued on May 4, 1998. See Warrant of Removal/Deportation and
INS printout, Ex. C to Buchanan Decl. On July 31, 1999, Nolasco
entered the United States at JFK International Airport by using
an altered United States passport claiming to be a United States
citizen named "Gilberto Valentin." See Passport, Ex. F to
Buchanan Decl. The INS detected Nolasco's fraud and placed him
under arrest. See INS Memo to File dated August 1, 1999, Ex. E
to Buchanan Decl. On August 2, 1999, the INS released Nolasco to
the custody of the United States Marshal for criminal prosecution. See Notice of Detainer Against Alien Paroled in
Custody for Prosecution, Ex. H to Buchanan Decl.
On August 2, 1999, a Complaint was filed against Nolasco in the
United States District Court for the Eastern District of New York
charging him with illegal re-entry. See Complaint, Ex. J to
Buchanan Decl. Nolasco pled guilty, pursuant to
8 U.S.C. § 1326(a), and (b), to illegal re-entry after being deported
subsequent to a conviction for an aggravated felony. On March 28,
2000, he was sentenced to seventy-seven months in prison. See
Judgment of Conviction, Ex. K to Buchanan Decl. Nolasco did not
appeal his conviction or sentence.*fn10
D. Reinstatement of the Prior Deportation Order
On March 25, 2002, one month after he filed the instant
petition, the INS served Nolasco with notice that the Attorney
General intended to reinstate the prior order of deportation
pursuant to section 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5). See Notice of Intent/Decision to Reinstate Prior
Order, Ex. I to Buchanan Decl. On March 27, 2002, the prior order
of deportation was reinstated. See id.
II. LEGAL STANDARD
The writ of habeas corpus has always been available
to review the legality of Executive detention.
Federal courts have been authorized to issue writs of
habeas corpus since the enactment of the Judiciary
Act of 1789, and § 2241 of the Judicial Code provides
that federal judges may grant the writ of habeas
corpus on the application of a prisoner held "in
custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2241.
Before and after the enactment in 1875 of the first
statute regulating immigration, 18 Stat. 477, that
jurisdiction was regularly invoked on behalf of
noncitizens, particularly in the immigration context.
St. Cyr, 533 U.S. at 305 (citations and footnote omitted).
A. St. Cyr and Drax Are Applicable to Nolasco's Order
The Government claims that Judge Freeman erred by applying St.
Cyr*fn11 and Drax*fn12 because Nolasco's order of
deportation was executed on July 2, 1998, before these cases were decided. The Government argues that
under established principles of finality, see Harper v. Virginia
Dep't of Taxation, 509 U.S. 86, 97 (1993), the rule announced in
St. Cyr does not apply retroactively to aliens already
deported. In the Government's view, Nolasco cannot rely on St.
Cyr because he did not have an appeal pending at the time it was
The Government errs in its view that St. Cyr and Drax
announced new rules of law. St. Cyr interpreted a statute: as a
result, its holding did not change the law. "Rather, St. Cyr
`finally decided what [IIRIRA] had always meant and explained
why the [BIA and the] Courts of Appeals had misinterpreted the
will of the enacting Congress.'" United States v. Lopez-Ortiz,
313 F.3d 225, 230 (5th Cir. 2002) (quoting Rivers v. Roadway
Express, Inc., 511 U.S. 298, 313 (1994) (emphasis in Rivers;
alterations by Lopez-Ortiz)). See also United States v. Garcia-Jurado, 281 F. Supp. 2d 498, 510 n. 11 (E.D.N.Y. 2003).
The same is true of Drax it did not state a new rule of law.
Accordingly, it was not error to apply either case to Nolasco's
In sum, St. Cyr established Nolasco's eligibility for section
212(c) relief at the time of his deportation while Drax
afforded a petitioner the opportunity to pursue Gabryelsky
relief before an IJ. Here, both the IJ and the BIA erred in
finding Nolasco ineligible for section 212(c) relief. The rule
against retroactivity cannot bar application of either St. Cyr
or Drax. The Government's objection on this ground is therefore
dismissed.*fn13 B. The Government Has Waived Its Objection Concerning Personal
The Government argues that the United States is not a proper
respondent in this habeas proceeding.*fn14 According to the
Government, the proper respondent in a habeas corpus proceeding
is the official with direct control over the petitioner's
detention. See Henderson v. INS, 157 F.3d 106, 122 (2d Cir.
1998) ("In general, courts have treated the individual with
day-to-day control over the petitioner as the custodian for
habeas purposes"). See also 28 U.S.C. § 2243 ("The writ . . .
shall be directed to the person having custody of the person
detained."). Because the United States of America is not a
"person," the Government contends that it is not a proper
respondent in a habeas petition. The Government is effectively
arguing that this Court does not have personal jurisdiction over
the named respondent. "A court has personal jurisdiction in a habeas case `so long as
the custodian can be reached by service of process.'"
Henderson, 157 F.3d at 122 (quoting Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 499 (1973)).
"Historically, the question of who is `the custodian,' and
therefore the appropriate respondent in a habeas suit, depends
primarily on who has power over the petitioner. . . ."
Henderson, 157 F.3d at 122. "While . . . the custodian for
habeas purposes has generally been the party in direct control of
the petitioners, it is also true that the concept of `in custody'
for habeas purposes has broadened in recent years." Id. at 124.
Regarding the role of the Attorney General, the Henderson court
[A]dditional factors relating to the unique role that
the Attorney General plays in immigration matters may
be taken to suggest that she may be a proper
respondent in alien habeas cases.
There is also no question that the Attorney General
has the power to produce the petitioners, remains the
ultimate decisionmaker as to matters concerning the
INS, see 8 U.S.C. § 1103(a)(1), and is commonly
designated a respondent in these cases, even when
personal jurisdiction over the immediate custodian
clearly lies. In this respect, the extraordinary and
pervasive role that the Attorney General plays in
immigration matters is virtually unique. Thus, the
Attorney General continues to be in complete charge
of the proceedings leading up to the order directing
the  removal [of aliens] from the country and has
complete discretion to decide whether or not removal
shall be directed.
Id. at 125-26 (internal quotation marks and citation omitted,
alterations in original).
Jurisdiction over a habeas petition lies concurrently: (1) in
the court for the district in which the petitioner is confined at
the time the petition is filed; and (2) in the court for the
district in which the petition was convicted and sentenced. See
R&R at 7 (citing Braden, 410 U.S. at 499 n. 15). Furthermore,
any defects in personal jurisdiction can be waived by the
Government. See Simon v. United States, 359 F.3d 139, 143 n. 9
(2d Cir. 2004) (citing Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982)
(holding that, unlike subject matter jurisdiction, any defects in
personal jurisdiction can be waived)). Here, the Government has
waived its objection to any defect in personal jurisdiction in
the Preliminary Statement to its Objections. See Objections n.
1 ("The Government, however, does not contest jurisdiction in the
Southern District of New York. . . .").
When Nolasco filed his petition on February 22, 2002, he was
detained at Allenwood which is located in Pennsylvania, where he
remained through May 14, 2002, at which time he was transferred
to another facility. See Inmate Data, Ex. O to Buchanan Decl.
Allenwood is located in the jurisdiction of the Philadelphia field office of the Bureau of Immigration and
Customs Enforcement ("BICE"). Arguably, then, Nolasco's custodian
is the Interim Field Office Director of the BICE Philadelphia
Office, the person with authority in the jurisdiction where
Nolasco was detained at the time he filed his petition. See
Objections at 10-11.
However, earlier in its Objections, the Government took the
As will be discussed more fully below, the proper
respondent is Edward McElroy, Interim Field Office
Director, Bureau of Immigration and Customs
Enforcement, Department of Homeland Security. The
Government, however, does not contest jurisdiction in
the Southern District of New York and respectfully
requests that the Court substitute Edward McElroy for
the "United States of America."
Objections at 1 n. 1 (emphasis added). This contradicts the
Government's later argument that the proper respondent is
"Theodore Nordmark, the Interim Field Office Director for the
Philadelphia Office of the Bureau of Immigration and Customs
Enforcement, Department of Homeland Security." Id. at 9-10.
The case law regarding the proper respondent in immigration
habeas petitions is unclear at best. See Ali v. Ashcroft,
346 F.3d 873, 887-88 (9th Cir. 2003) ("[A]lthough the principle that
the immediate custodian is the proper respondent to a habeas petition is clear, the application of this
principle in immigration habeas petitions does not lead to a
simple resolution of how to identify the proper respondent.")
(emphasis added). There are several possible respondents: the
Attorney General of the United States; the Secretary of the
Department of Homeland Security ("DHS"); the warden of the
federal correctional institution where the alien is incarcerated;
and, as the Government urges, the Interim Field Office Director
for the local BICE office in the jurisdiction where the alien was
incarcerated at the time the petition was filed. The Supreme
Court and the Second Circuit have both reserved judgment on
whether the Attorney General may be named as a respondent in an
immigration habeas petition. See Rumsfeld v. Padilla,
124 S. Ct. 2711, 2718 n. 8 (2004) ("In Ahrens v. Clark, 335 U.S. 188
(1948), we left open the question whether the Attorney General is
a proper respondent to a habeas petition filed by an alien
detained pending deportation. . . . Because the issue is not
before us today, we again decline to resolve it.); Henderson,
157 F.3d at 130 ("We decline at this time to resolve the issue of
whether the Attorney General is a proper respondent for habeas
actions brought by aliens facing deportation.").
The Supreme Court noted that the lower courts have divided on
this question, "with the majority applying the immediate
custodian rule and holding that the Attorney General is not a proper respondent."
Rumsfeld, 124 S. Ct. at 2718 n. 8 (citing Robledo-Gonzales v.
Ashcroft, 342 F.3d 667 (7th Cir. 2003); Roman v. Ashcroft,
340 F. 3d 314 (6th Cir. 2003); Vasquez v. Reno, 233 F.3d 688 (1st
Cir. 2000); and Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994)). In
Robledo-Gonzales, the court held that the proper respondent was
the "warden of the [federal correctional] facility in which Mr.
Robledo-Gonzales was being held." 342 F.3d at 673. In finding
that the Attorney General was not the proper respondent, however,
the court noted that, "neither the "INS nor its successor agency,
the Department of Homeland Security, has taken even the
preliminary step of filing a notice of detainer with the criminal
authorities." Id. at 674. In Roman, the court held that the
"the INS District Director for the district where a detention
facility is located `has power over' alien habeas corpus
petitioners." 340 F.3d at 320. However, the Sixth Circuit noted
that "[i]n light of the degree of control which the Attorney
General has over an alien's immediate custodian, we believe that
it may be appropriate to recognize the Attorney General as a
proper respondent to an alien's habeas corpus petition under
certain circumstances." 340 F.3d at 324-25. In Vasquez and
Li, the courts held that the proper respondent was the
superintendent or warden of the prison or facility where the
detainee was being held.*fn15 See Vasquez, 233 F.3d at 692; Yi,
24 F.3d at 507.
In Ali, the Government argued that the Attorney General and
the Commissioner of the INS were not proper respondents because
they did not have "day-to-day control" over petitioners. The
Ninth Circuit disagreed, holding that the Attorney General was a
proper respondent given his "unique role as the ultimate
decision-maker." 346 F.3d at 888. The reasoning in Ali is
persuasive. See id. ("Because immigration detainees are often
transferred between different institutions around the country,
the local INS District Director is a `local figurehead' who is
not an appropriate respondent.").
Given the advanced posture of this case, it makes no sense to
transfer it to another district where the habeas proceedings
would have to begin anew. The choice, here, is therefore between
the Attorney General and the Secretary of DHS. The Secretary of
DHS, rather than the Attorney General, is now charged with the
administration and enforcement of all laws relating to the
immigration and naturalization of aliens. See
8 U.S.C. § 1103(a)(1); see also Patterson v. INS, No. 03CV1363, 2004 WL
1114575, at *2 n. 2 (D. Conn. May 14, 2004) (noting that under the current regime, the Secretary of DHS serves a similar
role to that of the Attorney General). However, it is the
Attorney General who continues to detain and maintain custody of
aliens. See 8 U.S.C. § 1226. Moreover, as noted earlier, the
Government has waived its objection regarding personal
jurisdiction. Because this Court has personal jurisdiction over
the respondent, whether it be the Attorney General or the
Secretary of DHS, the petition will not be dismissed for failure
to name the proper respondent.*fn16 See Walters v.
Ashcroft, 291 F. Supp. 2d 237 (S.D.N.Y. 2003) ("The Court is persuaded that the Attorney
General is a custodian of all aliens seeking review of final
orders of removal, given the need for a flexible, practical
approach to determining the proper custodian for habeas
petitions. . . ."). Accordingly, the objection regarding the
proper respondent is dismissed.
B. The Reinstatement Statute Does Not Bar This Court From
Reviewing Nolasco's Petition
The Government argues that Nolasco is not entitled to
collaterally attack the June 20, 1997 deportation order because
the reinstatement statute provides that a "prior order of removal
is reinstated from its original date and is not subject to being
reopened or reviewed. . . ."*fn17 See INA § 241(a)(5).
According to the Government, Congress has enacted a legislative
rule of finality that precludes courts from testing the validity
of a prior order once an alien has been deported from the country
and illegally reenters.*fn18 See Objections at 12-13. In support of its position, the Government cites the following
cases: Padilla v. Ashcroft, 334 F.3d 921, 924 (9th Cir. 2003)
(reinstatement statute bars review of the prior removal order
either directly or collaterally if that order satisfied due
process); Briones-Sanchez v. Heinauer, 319 F.3d 324, 327 (8th
Cir. 2003) ("[Petitioner's] choice to reenter the country
illegally effectively precluded any further rights he may have
had to seek review of his initial removal proceedings.");
Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002)
("A fair interpretation of § 242 grants this court the authority
to review the lawfulness of the reinstatement order. However, §
241(a)(5) limits that review to the reinstatement order itself;
this court cannot `reopen or review' the merits of [petitioner's]
1984 deportation order."); Alvarenga-Villalobos v. Ashcroft,
271 F.3d 1169, 1173 (9th Cir. 2001) ("We agree that § 241(a)(5)
bars reexamining the original deportation order.").
The Ninth Circuit has retreated from the position it took in
Alvarenga-Villalobos. In Arreola-Arreola v. Ashcroft, No.
01-71596, 2004 WL 1977663, at *1 (9th Cir. Sept. 8, 2004), petitioner sought review
of an immigration officer's decision to reinstate a prior order
of removal on the ground, inter alia, that he was deprived of
due process in his underlying removal proceeding. The court,
citing Alvarenga-Villalobos, 271 F.3d at 1174, recognized that
"the reinstatement proceeding comports with due process when the
alien has received due process in his underlying removal
proceeding." Id. Accordingly, "[t]he validity of the
reinstatement order thus depends on the validity of the prior
removal order." Id. at *2. The court held that habeas
jurisdiction exists for the district court to review petitioner's
collateral attack on his underlying removal order. See id. at
*6. In so holding, the Ninth Circuit stated:
Recognizing that aliens must have one full and fair
hearing prior to being removed, see Getachew v.
[INS, 25 F.3d 841, 845 (9th Cir. 1994)], we
previously have held that the reinstatement order, as
implemented by the INS under 8 C.F.R. § 241.8,
satisfies due process as long as the underlying
deportation or removal proceeding itself satisfied
due process. See Alvarenga-Villalobos,
271 F.3d at 1174; United States v. Luna-Madellaga,
315 F.3d 1224, 1226-27 (9th Cir. 2003); Padilla v. Ashcroft,
334 F.3d 921, 924 (9th Cir. 2003). Therefore, because
the constitutionality of a reinstatement order
depends on whether an alien was afforded all the
process to which he or she was entitled in the prior
removal proceeding, the INS cannot reinstate a prior
order of removal that did not comport with due
process. Thus, an alien must have some forum in which
he or she is permitted to show that he or she was
denied due process in the prior removal proceeding.
Id. at *4. The court concluded that "[a]n interpretation of §
241(a)(5) to preclude all judicial review would raise serious
constitutional concerns because it would potentially deprive an
alien of the full and fair hearing guaranteed to him by the
Constitution." Id. at *5.
The Ninth Circuit relied, in part, on the Fourth Circuit's
decision in Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002),
where the petitioner challenged the government's motion to
reinstate his deportation order by filing a habeas petition with
the district court. In Smith, as here, the BIA concluded that
the AEDPA's amendments to section 212(c) precluded petitioner
from presenting his case for a discretionary waiver from
deportation. See id. at 426. Finding that the district court
had habeas jurisdiction over petitioner's claim, the court
Smith contends that his Fifth Amendment right to due
process was violated by the 1998 deportation
proceedings because he was not given court review of
the BIA ruling that he was not entitled to
discretionary relief. The Act [8 U.S.C. § 1231(a)(5)]
currently prohibits direct judicial review of this
claim because it implicates the validity of a prior
order of removal . . . This section precludes direct,
non-habeas judicial review of any irregularities
associated with the 1998 deportation order. Thus, if
we do not find habeas jurisdiction, Smith, like the
petitioner in St. Cyr, is left without an available
forum for adjudication of this purely legal question.
To construe the Act to preclude all review of this
claim would raise constitutional concerns similar to those expressed by the St. Cyr Court.
Id. at 428-29. See also Sifuentes-Barraza v. Garcia,
252 F. Supp. 2d 354 (W.D. Tex. 2003) (holding that the district court
may properly exercise habeas jurisdiction to collaterally review
the underlying order of deportation when the INS seeks to
reinstate that order pursuant to section 241(a)(5)).
The Government also argues that compelling policy
considerations underpinning the reinstatement statute preclude
review of an executed order of deportation. Arguably, granting
this petition would provide an incentive for deported aliens,
such as Nolasco, to illegally reenter the United States after the
Government has executed an order of deportation. The Government
posits that Congress codified the principle of finality in
immigration proceedings by enacting section 241(a)(5). If not for
this section, according to the Government, aliens would have
endless opportunities to revisit the legality of their prior
deportation orders. See Objections at 13-14 (citing Matter of
Yih-Hsiung Wang, 17 I. & N. Dec. 565, 567, 1980 WL 121938 (BIA
1980) (stating that an alien's deportation or removal imparts
finality to deportation proceedings which serves to discourage
aliens from reentering the country illegally)).
The Government's policy arguments are flawed for two reasons.
First, it ignores the fact that aliens who are convicted of
illegal reentry are generally sentenced to substantial terms of imprisonment. This
fact, in itself, should discourage aliens from illegal reentry.
Second, it also ignores the fact that an alien can collaterally
attack an underlying deportation order in his criminal case for
illegal reentry proceedings if he satisfies three requirements.
See 8 U.S.C. § 1326.*fn19 The Government's arguments,
while initially appealing, do not justify divesting this Court of
habeas jurisdiction over Nolasco's petition. The reasoning in Arreola-Arreola and Smith are persuasive.
Here, petitioner sought collateral review of his underlying
deportation order before the INS decided to reinstate it.
Petitioner is entitled to a judicial forum in which to challenge
the constitutionality of his original deportation
D. Nolasco's Conviction for Illegal Reentry After Deportation
Does Not Preclude Him from Challenging the Validity of His
The Government argues that Nolasco's conviction for illegal
reentry after deportation precludes him from challenging the
validity of his deportation order. The Government reasons that
because the validity of Nolasco's deportation was a necessary
element of his criminal conviction for illegal reentry, although
the order itself was never challenged, he cannot attack his
deportation order in a subsequent proceeding under principles of
res judicata. In support of this argument, the Government cites
DiGrado v. Ashcroft, 184 F. Supp. 2d 227, 233 (N.D.N.Y.
2002),*fn21 where the court applied res judicata in the
context of immigration proceedings.*fn22 "`Under the doctrine of res judicata, a judgment on the merits
in a prior suit bars a second suit involving the same parties or
their privies based on the same cause of action.'" Semtek Int'l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001) (quoting
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979)).
The touchstone of a res judicata determination is whether the
merits of the contested issue of fact or law were heard in the
first litigation. See Medina v. INS, 993 F.3d 499, 503 (5th
There is no dispute that the IJ's and the BIA's erroneous
conclusion that Nolasco was ineligible for former section 212(c)
relief was never litigated in the course of the criminal
proceedings against Nolasco for illegal reentry. Nolasco was
sentenced on March 28, 2000. St. Cyr was not decided until June
25, 2001. Accordingly, even if Nolasco had sought to collaterally
attack his deportation order under 8 U.S.C. § 1326(d),*fn23
the ground that he now asserts was not yet clearly articulated. Res judicata would apply if Nolasco had
unsuccessfully challenged his deportation order under section
1326(d) and then sought to invalidate that order in a subsequent
habeas petition brought under 28 U.S.C. § 2241. See Natatanzi v.
INS, No. 3:02CV1452, 2002 WL 32086509, at *1 (D. Conn. Nov. 18,
2002) (declining to review petitioner's habeas petition on
grounds of res judicata where another district court already
ruled on the BIA's decision affirming a deportation order). But
that is not the case here. There never was a judicial
determination of the validity of Nolasco's deportation order
notwithstanding his criminal conviction for illegal reentry. This
Court's review of the instant petition is not barred by res
E. It Would Not Necessarily Be Futile to Reopen Nolasco's
The Government finally argues that it would be futile to reopen
Nolasco's deportation proceedings because he cannot avoid
deportation for the following reasons: (1) his conviction for illegal reentry; (2) he
has served at least five years in prison based on his aggravated
felony convictions; (3) he made a false claim of United States
citizenship when he sought admission on July 31, 1999; and (4) he
is not prima facie eligible for an adjustment of status. While
the first three reasons make Nolasco ineligible for section
212(c) relief, they are not relevant to the instant petition
which only concerns Nolasco's original deportation order and
its reinstatement. As Judge Freeman properly stated, "[t]he Court
is not aware of the commencement of any new removal proceedings
subsequent to Nolasco's re-entry and arrest in 2000, or of the
issuance of any subsequent order of removal." R&R at 17. While
petitioner will undoubtedly have to serve his entire sentence for
illegal reentry, the immigration authorities may decide not to
bring new removal proceedings if his original deportation order
is found to have been issued in error, especially in light of the
mitigating circumstances present here.*fn24 This Court
cannot, and should not, speculate as to whether new removal
charges will be lodged against Nolasco in the future.
The Government opposes remand to the BIA based on the ground
that Nolasco has not shown that he is eligible for adjustment of
status. If the Court were to accept this argument, it would effectively usurp the
authority of the BIA, the BICE, and/or the Department of Homeland
Security. It is up to the United States immigration authorities,
not this Court, to determine whether Nolasco qualified for relief
from deportation. If this Court were to dismiss the instant
petition, it would usurp the decision-making authorities of these
For the reasons stated above, the Government's Objections are
dismissed and Judge Freeman's Report and Recommendation is
adopted in its entirety. Accordingly, the matter is remanded to
the BIA, or a successor entity, for consideration of Nolasco's
eligibility for relief from deportation under both former section
212(c) and section 245(a) of the INA. The Clerk of the Court is
directed to close this case.