* (c) 2004 Nancy Morawetz, Professor of Clinical Law, New York University School of Law. The author gratefully acknowledges the financial support of the Filomen D'Agostino and Max E. Greenberg Research Fund of New York University School of Law; the excellent research assistance of Shannon McKinnon; the thoughtful comments from the Immigration Professors Workshop held in June, 2004; and the careful review by the editors of the Boston College Third World Law Journal. Portions of this Article were previously published in 8 Bender’s Immigr. Bull. 6 (2004).
1 124 S. Ct. 2686, 2688–89 (2004). Individuals held in custody “in violation of the Constitution or the laws and treaties of the United States” may apply to the courts for a writ of habeas corpus to secure judicial review of the Executive action responsible for their detention. Id. at 2692 (citing 28 U.S.C.  2241(a), (c)(3) (2000)).
2 See 124 S. Ct. 2633, 2648 (2004).
3 Linda Greenhouse, Access to the Courts, N.Y. Times, June 29, 2004, at A1; Charles Lane, Justices Move to Define Detainees’ Court Access: Order Seeks Opinion From 9th Circuit About Where a Case Should Be Heard, Wash. Post, July 1, 2004, at A7; Editorial, The Due Process Rights Affirmed, Hartford Courant, June 30, 2004, at A12.
4 See Greenhouse, supra note 3; see also Andrew McCarthy, A Mixed Bag, Nat’l Rev. Online, June 30, 2004, 2, 5–6, 23 at http://www.nationalreview.com/mccarthy/
mccarthy200406300915.asp. (“In the most interesting case, Rumsfeld v. Padilla, the court issued its least interesting decision–ducking [the question] on procedural grounds . . . .”). At least one legal commentator, however, has recognized the significance of the procedural issues in the court of appeals’ decision in Padilla. See Brian O'Donoghue, Who’s the Boss?: Armentero, Padilla and the Proper Respondent in Federal Habeas Corpus Law, 22 Yale L. & Pol’y Rev. 441, 441 (2004).

5 See Rumsfeld v. Padilla, 124 S. Ct. 2711, 2727 (2004) (Stevens, J., dissenting).
6 See id. at 2722.
7 Id. at 2716, 2724. The court applied the “immediate custodian” rule, under which habeas claims that are “core challenges” to physical custody must be brought against the detainee’s warden in the absence of any applicable exceptions to the rule. Id. at 2718, 2724.
8 See id.
9 See Vasquez v. Reno, 233 F.3d 688, 690 (1st Cir. 2000); Roman v. Ashcroft, 340 F.3d 314, 316 (6th Cir. 2003).
10 See, e.g., Vasquez, 233 F.3d at 694 (asserting, ironically, that to allow habeas petitioners to name the Attorney General rather than their immediate custodian as respondent would encourage rampant forum shopping among petitioners).
11 See discussion infra Section I.
12 See Padilla, 124 S. Ct. at 2717 n.7 (noting that subject matter jurisdiction is not involved); id. at 2729 (Kennedy, J., concurring) (suggesting circumstances in which the Padilla rule would not be applied). Justice Kennedy explains that, because the locus of habeas actions turns on personal jurisdiction or venue, other federal courts still retain subject matter jurisdiction and might be able to hear cases, for example, when the government is obstructive. Id. (Kennedy, J., concurring).
13See generally Federal Bureau of Prisons, Weekly Population Report, at www.bop.gov/
weekly.html (last visited Sept. 2, 2004) (providing weekly updates on prison populations at various federal prison sites).

14 See Mark Dow, American Gulag: Inside U.S. Immigration Prisons 176–77 (2004) (describing Pine Prairie facility).
15 See discussion infra Section I.
16 Transfer to Oakdale has many other consequences. As others have documented, detention generally limits access to counsel. See Margaret H. Taylor, Promoting Legal Representation for Detained Aliens: Litigation and Administrative Reform, 29 Conn. L. Rev. 1647, 1664–65 (1997). Although there is a modest project to provide representation to these detainees during their immigration proceedings, there is no legal service provider who will take a case to court. See Frank Etheridge, Exile in Oakdale, Gambit Wkly., Aug. 10, 2004,  22, at http://www.bestofneworleans.com/dispatch/2004-08-10/cover_story.html (reporting that the Catholic Legal Immigration Network’s attorney who provides legal rights presentations at the Oakdale facility is not permitted to engage in any one-on-one consultations with detainees). In addition, those transferred do not have access to witnesses and documents for their hearings and lack basic human contact with friends and family. See id.
17 See Zalawadia v. Ashcroft, 371 F.3d 292, 301 (5th Cir. 2004). The WDLA refused to grant Zalawadia a stay of deportation and dismissed his habeas claim. Id. at 296. Zalawadia was deported while his Fifth Circuit appeal was pending. Id.
18 Id. at 301.
19 See id. at 295–96; INS v. St. Cyr, 533 U.S. 289, 292, 325 (2001) (holding that discretionary relief extends to aliens whose convictions were obtained through plea agreements and who would have been eligible for such relief at the time of their plea).
20 See St. Cyr, 533 U.S. at 292; Zalawadia, 371 F.3d at 295–96.
21 Zalawadia, 371 F.3d at 295–96.
22 Id. at 296.
23 Id. at 296, 301.
24 The government appears to recognize the far-reaching and troubling implications of the language used in the Zalawadia opinion. In its opposition to rehearing in that case, the government argued that it made no practical difference for Zalawadia whether the court exercised broader remedial power. Response of Respondent-Appellee to Petition for Panel Rehearing, Zalawadia (No. 03-30155). Zalawadia himself did not object to purchasing his own ticket, and, in the context of that case, the government had already made arrangements with Zalawadia’s counsel that would ease proof of his status for purposes of traveling to the United States. Furthermore, the legal error in Zalawadia’s case was denial of a hearing, for which he remained eligible under the government’s promised restoration of lawful permanent resident status. One can only hope that the sweeping language of the court’s opinion will be read in light of these specific circumstances. For petitioners of lesser means in cases with lower profiles, only a court order requiring the government to arrange their return and requiring the provision of travel documents has any chance of remedying a wrongful removal.
25 I am indebted to Hiroshi Motomura, for coining a similar phrase in connection to a discussion of this paper at the University of Maryland’s 2004 Immigration Professors Workshop.
26 See St. Cyr, 533 U.S. at 325; Zalawadia, 371 F.3d at 301.
27 See, e.g., Armentero v. INS, 382 F.3d 1153 (9th Cir. 2004) (vacating prior decision on proper custodian and deferring resubmission of case pending oral argument); Bell v. Ashcroft, 2003 WL 22358800, appeal docketed, No. 03-2737 (2d Cir. 2004).
28 This finding was reported in an earlier publication, Nancy Morawetz, Oakdale Justice: Routine Vacatur of Stays in the Western District of Louisiana, 8 Bender’s Immigr. Bull. 6 (2004).
29 See Immigration and Nationality Act (INA)  242(g), 8 U.S.C.  1252(g) (1998) (“Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”). Pursuant to the Supreme Court’s decision in Reno v. American-Arab Anti-Discrimination Committee (AADC), this provision only bars review over discretionary decisions regarding the commencement, continuation or execution of removal orders. See 525 U.S. 471, 471–72 (1999).
30 See, e.g., Solis v. Ashcroft, No. 2:01 Civ. 1732, at 1, 2 (W.D. La. Dec. 21, 2001); Bennett v. Ashcroft, No. 2:01 Civ. 1747, at 1, 2 (W.D. La. Dec. 7, 2001); Bello v. Reno, No. 2:01 Civ. 1297, at 1, 2 (W.D. La. Aug. 7, 2001).
31 See generally INS v. St. Cyr, 533 U.S. 289 (2001); Flores-Garza v. INS, 328 F.3d 797 (5th Cir. 2003). The first period included all cases on PACER that were docketed in the WDLA between July 1, 2001 and December 31, 2001, and in which the words “Reno,” “Ashcroft,” or “immigration” appeared in the caption. The second period includes all cases docketed between May 1, 2003 and August 1, 2003 in which the words “Ashcroft” or “immigration” appear in the caption.
32 See St. Cyr, 533 U.S. at 312 (holding that federal courts have habeas jurisdiction under 28 U.S.C. 2241 notwithstanding the provisions of 8 U.S.C.  1252).
33 See, e.g., Flores-Garza, 328 F.3d at 801; Zalawadia, 371 F.3d at 296.
34 Flores-Garza, 328 F.3d at 799, 802–03.
35 Cases in the WDLA are assigned to one of five divisions of that court. Interview with Robert Shemwell, Clerk of the Court, The District Court for the Western District of Louisiana (Nov. 24, 2003). Cases of detainees housed at the Federal Detention Center in Oakdale are assigned to the Lake Charles Division. Id. During the time period following the St. Cyr decision, Judge James T. Trimble, Jr. and Judge Edwin F. Hunter, Jr. served as the district court judges in that division. Currently, Judge Trimble and Judge Patricia Minaldi handle the cases in this division. See Robert H. Shemwell, Guide to Practice in the Western District of Louisiana, at v (2003), available at http://www.lawd.uscourts.gov/guide/guide.pdf (showing that the only judges currently in the Lake Charles Division are Senior Judge Trimble, Judge Minaldi, and Magistrate Judge Alonzo P. Wilson). In all cases in the study, Magistrate Judge Wilson wrote the recommended decisions in the cases of Oakdale detainees whose cases were transferred to the WDLA. See id. I have identified one case filed by counsel in another division of the WDLA where a temporary restraining order was granted in a removal case that included Oakdale detainees among the petitioners. See Mohamed v. Ashcroft, No. 02 Civ. 2484, slip op. at 1 (W.D. La. Aug. 4, 2003) (granting petitioners’ motion to stay removal); Mohamed, No. 02 Civ. 2484, slip op. at 1, 5–6 (W.D. La. July 27, 2003)(denying petitioners’ motion to stay removal in case challenging removal of Somalis to a country without a functioning government). Mohamed was filed in the Monroe Division of the WDLA by attorneys on behalf of detainees in the WDLA with claims regarding removal to Somalia. See Mohamed, No. 02 Civ. 2484, slip op. at 1, 5–6 (W.D. La. July 27, 2003). When cases are filed by individuals pro se or are transferred by other courts, they are invariably assigned to the Lake Charles Division.
36 Solis, No. 2:01 Civ. 1732, at 1 (W.D. La. Dec. 21, 2001); Bennett, No. 2:01 Civ. 1747, at 1 (W.D. La. Dec. 7, 2001); Olendan-Moore v. Ashcroft, No. 01 Civ. 1893, at 1 (W.D. La. Dec. 7, 2001); Riley v. Ashcroft, No. 01 Civ. 1549, at 1 (W.D. La. Dec. 7, 2001); Jacques v. Ashcroft, No. 01 Civ. 2160, at 1 (W.D. La. Oct. 30, 2001); Bettune v. Ashcroft, No. 01 Civ.1474, at 1 (W.D. La. Sept. 13, 2001); Sanchez v. Ashcroft, No. 01 Civ. 1476, at 1 (W.D. La. Sept. 13, 2001); Rezzouq v. Ashcroft, No. 01 Civ. 1262, at 1 (W.D. La. Sep. 7, 2001); Bello v. Reno, No. 2:01 Civ. 1297, at 1 (W.D. La. Aug. 7, 2001).
37 See cases cited supra note 36.
38 Gelin v. Ashcroft, No. 01 Civ. 2243, at 1 (W.D. La. Jan. 24, 2002); Llewellyn v. Ashcroft, No. 2:01 Civ. 2244, at 1 (W.D. La. Jan. 22, 2002); Williams v. Ashcroft, No. 01 Civ. 2319, at 1 (W.D. La. Jan. 18, 2002); Gajadhar v. INS, No. 2:01 Civ. 2157, at 1 (W.D. La. Jan. 2, 2002); Benavides-Rodriguez v. Ashcroft, No. 01 Civ. 2032, at 1 (W.D. La. Dec. 26, 2001); Balfour v. Ashcroft, No. CV-2:01 Civ. 1519, at 1 (W.D. La. Dec. 21, 2001); Tavares v. Ashcroft, No. CV-2:01 Civ. 1521, at 1 (W.D. La. Dec. 21, 2001); Llewellyn v. Ashcroft, CV-01-2244 (W.D. La. Jan. 22, 2002); Gomes v. Reno, No. CV-01 Civ. 2069, at 1 (W.D. La. Nov. 16, 2001); Ozuru v. Reno, No. CV-2:01 Civ. 1983, at 1 (W.D. La. Nov. 7, 2001).
39 See cases cited supra note 38.
40 See Gelin, No. 01 Civ. 2243, at 1 (W.D. La. Jan. 24, 2002); Llewellyn, No. 2:01 Civ. 2244, at 1 (W.D. La. Jan. 22, 2002); Williams, No. 01 Civ. 2319, at 1 (W.D. La. Jan. 18, 2002); Gajadhar, No. 2:01 Civ. 2157, at 1 (W.D. La. Jan. 2, 2002); Benavides-Rodriguez, No. 01 Civ. 2032, at 1 (W.D. La. Dec. 26, 2001); Balfour, No. 2:01 Civ. 1519, at 1 (W.D. La. Dec. 21, 2001); Solis, No. 2:01 Civ. 1732, at 1 (W.D. La. Dec. 21, 2001); Tavares, No. 2:01 Civ. 1521, at 1 (W.D. La. Dec. 21, 2001); Bennett, No. 2:01 Civ. 1747, at 1 (W.D. La. Dec. 7, 2001); Olendan-Moore, No. 01 Civ. 1893, at 1 (W.D. La. Dec. 7, 2001); Riley, No. 01 Civ. 1549, at 1 (W.D. La. Dec. 7, 2001); Gomes, No. 01 Civ. 2069, at 1 (W.D. La. Nov. 16, 2001); Ozuru, No. 2:01 Civ. 1983, at 1 (W.D. La. Nov. 7, 2001); Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Oct. 30, 2001); Bettune, No. 01 Civ. 1474, at 1 (W.D. La. Sept. 13, 2001); Sanchez, No. 01 Civ. 1476, at 1 (W.D. La. Sept. 13, 2001); Rezzouq, No. 01 Civ. 1262, at 1 (W.D. La. Sept. 7, 2001); Bello, No. 01 Civ. 1297, at 1 (W.D. La. Aug. 7, 2001). Similar language is found in a published decision from the WDLA, issued prior to St. Cyr. See Naidoo v. INS, 39 F. Supp. 2d 755, 762 (W.D. La. 1999).
41 See INA  242(g), 8 U.S.C.  1252(g); Gelin, No. 01 Civ. 1262, at 1 (W.D. La. Jan. 24, 2002); Llewellyn, No. 2:01 Civ. 2244, at 1 (W.D. La. Jan. 22, 2002); Williams, No. 01 Civ. 2319, at 1 (W.D. La. Jan. 18, 2002); Gajadhar, No. 2:01 Civ. 2157, at 1 (W.D. La. Jan. 2, 2002); Benavides-Rodriguez, No. 01 Civ. 2032, at 1 (W.D. La. Dec. 26, 2001); Balfour, No. 2:01 Civ. 1519, at 1 (W.D. La. Dec. 21, 2001); Solis, No. 2:01 Civ. 1732, at 1 (W.D. La. Dec. 21, 2001); Tavares, No. 2:01 Civ. 1521, at 1 (W.D. La. Dec. 21, 2001); Bennett, No. 2:01 Civ. 1747, at 1 (W.D. La. Dec. 7, 2001); Olendan-Moore, No. 01 Civ. 1893, at 1 (W.D. La. Dec. 7, 2001); Riley, No. 01 Civ. 1549, at 1 (W.D. La. Dec. 7, 2001); Gomes, No. 01 Civ. 2069, at 1 (W.D. La. Nov. 16, 2001); Ozuru, No. 2:01 Civ. 1983, at 1 (W.D. La. Nov. 7, 2001); Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Oct. 30, 2001); Bettune, No. 01 Civ. 1474, at 1 (W.D. La. Sept. 13, 2001); Sanchez, No. 01 Civ. 1476, at 1 (W.D. La. Sept. 13, 2001); Rezzouq, No. 01 Civ. 1262, at 1 (W.D. La. Sept. 7, 2001); Bello, No. 01 Civ. 1297, at 1 (W.D. La. Aug. 7, 2001).
42 See INA  242(a)(2)(B), (f), 8 U.S.C.  1252(a)(2)(B), (f); Gelin, No. 01 Civ. 1262, at 1 (W.D. La. Jan. 24, 2002); Llewellyn, No. 2:01 Civ. 2244, at 1 (W.D. La. Jan. 22, 2002); Williams, No. 01 Civ. 2319, at 1 (W.D. La. Jan. 18, 2002); Gajadhar, No. 2:01 Civ. 2157, at 1 (W.D. La. Jan. 2, 2002); Benavides-Rodriguez, No. 01 Civ. 2032, at 1 (W.D. La. Dec. 26, 2001); Balfour, No. 2:01 Civ. 1519, at 1 (W.D. La. Dec. 21, 2001); Solis, No. 2:01 Civ. 1732, at 1 (W.D. La. Dec. 21, 2001); Tavares, No. 2:01 Civ. 1521, at 1 (W.D. La. Dec. 21, 2001); Bennett, No. 2:01 Civ. 1747, at 1 (W.D. La. Dec. 7, 2001); Olendan-Moore, No. 01 Civ. 1893, at 1 (W.D. La. Dec. 7, 2001); Riley, No. 01 Civ. 1549, at 1 (W.D. La. Dec. 7, 2001); Gomes, No. 01 Civ. 2069, at 1 (W.D. La. Nov. 16, 2001); Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Oct. 30, 2001); Bettune, No. 01 Civ. 1474, at 1 (W.D. La. Sept. 13, 2001); Sanchez, No. 01 Civ. 1476, at 1 (W.D. La. Sept. 13, 2001); Rezzouq, No. 01 Civ. 1262, at 1 (W.D. La. Sept. 7, 2001).
43 See, e.g., Gelin, No. 01 Civ. 1262, at 1 nn.1, 2 (W.D. La. Jan. 24, 2002); Williams, No. 01 Civ. 2319, at 1 nn.1, 2 (W.D. La. Jan. 18, 2002); Balfour, No. 2:01 Civ. 1519, at 1 nn.1, 2 (W.D. La. Dec. 21, 2001); Tavares, No. 2:01 Civ. 1521, at 1 nn.1, 2 (W.D. La. Dec. 21, 2001); Olendan-Moore, No. 01 Civ. 1893, at 1 nn.1, 2 (W.D. La. Dec. 7, 2001); Riley, No. 01 Civ. 1549, at 1 nn.1, 2 (W.D. La. Dec. 7, 2001); Gomes, No. 01 Civ. 2069, at 1 nn.1, 2 (W.D. La. Nov. 16, 2001); Jacques, No. 01 Civ. 2160, at 1 nn.1, 2 (W.D. La. Oct. 30, 2001); Bettune, No. 01 Civ. 1474, at 1 nn.1, 2 (W.D. La. Sept. 13, 2001); Sanchez, No. 01 Civ. 1476, at 2 nn.1, 2 (W.D. La. Sept. 13, 2001); Rezzouq, No. 01 Civ. 1262, at 2 nn.1, 2 (W.D. La. Sept. 7, 2001). This study did not seek to assess whether stays ought to have been granted in these cases. This question turns on a number of factors, including the proper standard for the issuance of stays. According to the WDLA’s stated policy, no stay would be granted regardless of the strength of the claim. See cases cited supra note 41.
44 See Andrade, No. 2:03 Civ. 1307, at 1 (W.D. La. Aug. 25, 2003); Byfield v. Ashcroft, No. 2:03 Civ. 1283, at 1 (W.D. La. Aug. 14, 2003); Telfort v. Ashcroft, No. 2:02 Civ. 801, at 1 (W.D. La. June 23, 2003); Roberts v. Ashcroft, No. 03 Civ. 1115, at 2 (W.D. La. June 21, 2003) (report and recommendation); Roberts, No. 03 Civ. 1115 (W.D. La. Aug. 27, 2003); Lopez-Jaramillo v. Ashcroft, No. 2:03 Civ. 1013, at 1 (W.D. La. July 17, 2003).
45 See cases cited supra note 44.
46 Andrade, No. 2:03 Civ. 1307, at 1 (W.D. La. Aug. 25, 2003); Byfield, No. 2:03 Civ. 1283, at 1 (W.D. La. Aug. 14, 2003); Roberts, No. 03 Civ. 1115, at 2 (W.D. La. June 21, 2003) (report and recommendation).
47 Telfort, No. 2:02 Civ. 801, at 1 (W.D. La. June 23, 2003); Lopez-Jaramillo, No. 2:03 Civ. 1013, at 1 (W.D. La. July 17, 2003). Many more petitioners might have sought a stay if the standard pro se habeas form indicated that it was available. The WDLA requires pro se petitioners to file their habeas petition on a standard form. It treats habeas filings that are not on such forms, including those in transferred cases, as “deficient pleadings.” On the standard form, there is no space to mark that one is seeking a stay nor is there any indication that the petitioner could seek a stay.
48 See cases cited supra note 44.
49 See Andrade, No. 2:03 Civ. 1307, at 1 (W.D. La. Aug. 25, 2003) (Trimble, J.); Byfield v. Ashcroft, No. 2:03 Civ. 1283, at 1 (W.D. La. Aug. 14, 2003) (Minaldi, J.); Telfort v. Ashcroft, No. 2:02 Civ. 801, at 1 (W.D. La. June 23, 2003) (Minaldi, J.); Telfort, No. 2:02 Civ. 801 (W.D. La. Aug. 27, 2003) (accepting proposed conclusions of law) (Trimble, J.); Roberts v. Ashcroft, No. 03 Civ. 1115, at 2 (W.D. La. June 21, 2003) (report and recommendation); Roberts, No. 03 Civ. 1115 (W.D. La. Aug. 27, 2003); Lopez-Jaramillo, No. 2:03 Civ. 1013, at 1 (W.D. La. July 17, 2003) (Minaldi, J.).
50 Andrade, No. 2:03 Civ. 1307, at 1 (W.D. La. Aug. 25, 2003); Byfield, No. 2:03 Civ. 1283, at 1 (W.D. La. Aug. 14, 2003); Roberts, No. 2:03 Civ. 1115, at 2 (W.D. La. June 21, 2003) (report and recommendation).
51 See Lopez-Jaramillo, No. 2:03 Civ. 1013, at 1 (W.D. La. July 17, 2003).
52 See Lopez-Jaramillo, No. 2:03 Civ. 1013 (W.D. La. July 11, 2003) (report and recommendation). Courts are divided on the issue of whether St. Cyr extends to cases where the detainee sought a trial, or whether it is limited to cases where the individual pleaded guilty to a deportable offense. Compare Ponnapula v. Ashcroft, 373 F.3d 480, 494–97 (3d Cir. 2004) (extending the holding of St. Cyr), with Rankine v. Reno, 319 F.3d 93, 100–02 (2d Cir. 2003) (limiting St. Cyr to its facts).
53 Lopez-Jaramillo, No. 2:03 Civ. 1013, at 1 (W.D. La. July 17, 2003).
54 Id.
55 See Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003); Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir. 2002); Mohammed v. Reno, 309 F.3d 95, 98 (2d Cir. 2002); Beijani v. INS, 271 F.3d 670, 687 (6th Cir. 2001).
56 Four courts of appeals have ruled that the standard for a stay is similar to the standard for a preliminary injunction. See Arevalo, 344 F.3d at 7 (First Circuit); Maharaj, 295 F.3d at 965 (Ninth Circuit); Mohammed, 309 F.3d at 100 (Second Circuit); Beijani, 271 F.3d at 687–88 (Sixth Circuit). The Court of Appeals for the Eleventh Circuit has adopted the view that a stay requires a showing of clear and convincing evidence that the removal is illegal. See Weng v. U.S. Atty. Gen., 287 F.3d 1335, 1337 (11th Cir. 2002). In each of these cases, the reported decisions describe the government’s position as advocating a higher standard of proof. See Arevalo, 344 F.3d at 7; Maharaj, 295 F.3d at 965; Mohammed, 309 F.3d at 100; Weng, 287 F.3d at 1337; Beijani, 271 F.3d at 687–88. There is, however, no suggestion that the district court lacks jurisdiction to enter a stay. See Arevalo, 344 F.3d at 7; Maharaj, 295 F.3d at 965; Mohammed, 309 F.3d at 100; Weng, 287 F.3d at 1337; Beijani, 271 F.3d at 687–88.
57 See Reno v. AADC, 525 U.S. 471 (1999); Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2002); Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999).
58 See Sharif, 280 F.3d at 788 (holding that an administrative basis existed for issuing a stay).
59 See id. at 787. These factors distinguish the Sharif case from a typical habeas case that challenges the legality of a removal order. Even in situations where the petitioner is only seeking a stay, however, other courts have recognized the power of courts to enter stays where necessary to preserve their jurisdiction. See, e.g., Michael v. INS, 48 F.3d 657, 663–64 (2d Cir. 1994).
60 See Arevalo, 344 F.3d at 7 (citing unpublished opinion of the Seventh Circuit).
61 Alvidres-Reyes, 180 F.3d at 205–06 (5th Cir. 1999).
62 See id. at 206.
63 See id. at 205; Sharif, 280 F.3d at 787. The WDLA decisions also cite to Reno v. AADC, 525 U.S. 471 (1999). See, e.g., Andrade v. Ashcroft, No. 2:03 Civ. 1307, at 1 (W.D. La. Aug. 25, 2003); Byfield v. Ashcroft, No. 2:03 Civ. 1283, at 1 (W.D. La. Aug. 14, 2003); Telfort v. Ashcroft, No. 2:02 Civ. 801, at 1 (W.D. La. June 23, 2003); Lopez-Jaramillo v. Ashcroft, No. 2:03 Civ. 1013, at 1 (W.D. La. July 17, 2003) The AADC court, however, drew a sharp distinction between its power when asked to review a discretionary decision to commence removal proceedings and its powers when asked to review the outcome of those proceedings. See 525 U.S. at 486–88. Nothing in AADC suggests that the removal order itself cannot be reviewed. See id.
64 See, e.g., Andrade, No. 03 Civ. 1307; Byfield, No. 03 Civ. 1283.
65 See Idokogi v. Ashcroft, No. 02-30553, at 1 (5th Cir. 2003) (per curiam).
66 See id. at 1, 2; St. Cyr, 533 U.S. at 293.
67 See Docket Proceedings at 3, Idokogi v. Ashcroft, No. 02 Civ. 205, PACER v.2.3a-WDLA (docket as of Aug. 28, 2003).
68 See Idokogi, No. 02-30553, at 1.
69 See id. at 3.
70 Id. at 1; INA  242(a)(2)(C), 8 U.S.C.  1252(a)(2)(C).
71 Idokogi, No. 02-30553, at 2–3.
72 See, e.g., Andrade v. Ashcroft, No. 2:03 Civ. 1307 (W.D. La. Aug. 15, 2003).
73 See, e.g., Docket Proceedings at 3–4, Roberts v. Ashcroft, No. 03 Civ. 1115, PACER v2.3a-WDLA (Sept. 9, 2003); Docket Proceedings at 3, Jacques v. Ashcroft, No. 01 Civ. 2160, PACER v2.3a-WDLA (Nov. 6, 2002).
74 See sources cited supra note 73.
75 See sources cited supra note 73.
76 See Dennis v. INS, No. 301CV279SRU, 2002 WL 295100, at *2 (D. Conn. Feb. 19, 2002); Fuller v. INS, 144 F. Supp. 2d 72, 75 (D. Conn. 2000).
77 See Fuller, 144 F. Supp. 2d at 79.
78 See, e.g., Byfield v. Ashcroft, No. 03 Civ. 4666, at 1 (S.D.N.Y. July 3, 2003) (renumbered No. 2:03 Civ. 1283).
79 See Smabaly v. Ashcroft, No. 02 Civ. 9353, 2002 WL 31729591, at *1 (S.D.N.Y. Dec. 3, 2002) (issuing a stay to preserve the court’s jurisdiction).
80 In the six months following St. Cyr, the Southern District of New York transferred several cases with stays to the WDLA. See, e.g., Solis v. Ashcroft, No. 2:01 Civ. 1732, at 1 (W.D. La. Dec. 21, 2001); Bennett v. Ashcroft, No. 2:01 Civ. 1747, at 1 (W.D. La. Dec. 7, 2001); Riley v. Ashcroft, No. 01 Civ. 1549, at 1 (W.D. La. Dec. 7, 2001); Sanchez v. Ashcroft, No. 01 Civ. 1476, at 1 (W.D. La. Sept. 13, 2001). Four stays were vacated sua sponte. See Solis, No. 2:01 Civ. 1732, at 1; Bennett, No. 2:01 Civ. 1747, at 1; Riley, No. 01 Civ. 1549, at 1; Sanchez, No. 01 Civ. 1476, at 1.
81 Interview with James C. Francis IV, Magistrate Judge for the Southern District of New York (Oct. 8, 2004).
82 See St. Cyr, 533 U.S. at 289; Verified Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief and Stay of Deportation at 4–10, Jacques v. Ashcroft, No. 3:01 Civ. 958 (filed D. Conn. May 25, 2001; renumbered No. 01 Civ. 2160). According to the papers in the case, Jacques came to the United States at the age of five and was raised in Stamford, Connecticut by his father and stepmother. Letter Re: Emergency Stay of Deportation at 1, Jacques (received D. Conn. June 19, 2001) (No. 3:01 Civ. 958; renumbered No. 01 Civ. 2160). His father naturalized when he was ten. Id. Jacques had filed two prior habeas petitions, one in Connecticut and one in the WDLA. See Verified Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief and Stay of Deportation at 4–10, Jacques (W.D. La. Oct. 30, 2001) (No. 01 Civ. 2160). The Connecticut petition was transferred to the WDLA. See id. In both cases, the WDLA dismissed the case following the Fifth Circuit’s pre-St. Cyr rule that there was no habeas jurisdiction for those persons barred by state from pursuing a petition for review in the court of appeals. See Max-George v. Reno, 205 F.3d 197 (5th Cir. 2000), vacated and remanded, 533 U.S. 945 (2001) (articulating the pre-St. Cyr rule); Jacques, No. 01 Civ. 2160, at 1 (W.D. La Oct. 30, 2001) (dismissing first habeas petition); Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Jan. 28, 2002) (dismissing second habeas petition).
83 See Jacques, No. 2:01 Civ. 875, at 1 (W.D. La. May 11, 2001) (renumbered No. 01 Civ. 2160) (vacating stay issued by transferring court).
84 Response to Court Order to Show Cause at 1, Jacques (W.D. La. May 24, 2002) (No. 01 Civ. 2160).
85 See id. at 4.
86 Id. at 1–3.
87 See Jacques, No. 3:01 Civ. 958, at 1 (D. Conn. Sept. 26, 2001) (renumbered No. 01 Civ. 2160) (ordering transfer).
88 See Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Oct. 30, 2001) (denying motion for stay).
89 Jacques, No. 01 Civ. 2160, at 2 (W.D. La. Dec. 26, 2001) (report and recommendation).
90 Id. at 5.
91 Id.; Jacques, No. 01 Civ. 2160 (W.D. La. Jan. 28, 2002).
92 Information on the BIA motion was obtained through the BIA case information phone number.
93 See Jacques, No. 01 Civ. 2160, at 1 (W.D. La. May 24, 2002).
94 Id.
95 See Docket Proceedings at 3, Jacques, No. 01 Civ. 2160, PACER v2.3a-WDLA (W.D. La. Nov. 6, 2002).
96 See Jacques, No. 01 Civ. 958, at 1 (D. Conn. Oct. 16, 2001) (renumbered No. 01 Civ. 2160) (ordering transfer).
97 See Response to Court’s Order to Show Cause at 5, Jacques (No. 01 Civ. 958) (renumbered No. 01 Civ. 2160).
98 See Jacques, No. 01 Civ. 2160, at 3, 5 (W.D. La. Dec. 26, 2001) (report and recommendation); Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Jan. 28, 2002).
99 Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus and With Stay of Deportation Until Final Decision at 5, Roberts v. Ashcroft, No. 02 Civ. 2171 (D.D.C. Nov. 5, 2002) (renumbered No. 03 Civ. 1115).
100 Id. at 2.
101 United States’ Opposition to Petition to Stay Deportation at 1–2, Roberts, No. 02 Civ. 2171 (D.D.C. June 6, 2003) (renumbered No. 03 Civ. 1115).
102 Id.
103 See id.
104 See Roberts, No. 03 Civ. 1115, at 1 (W.D. La. July 21, 2003) (report and recommendation).
105 Id. at 2.
106 Id.
107 See Docket Proceedings at 3, Roberts, No. 03 Civ. 1115, PACER v2.3a-WDLA (Sept. 9, 2003).
108 There is a division of authority on whether a habeas court can entertain claims of citizenship and nationality. Compare Lee v. Ashcroft, No. 01 CV. 0997, 2003 WL 21310247, at *6 (E.D.N.Y. May 27, 2003) (finding district court jurisdiction), with Marquez-Almanzar v. Ashcroft, No. 03 Civ. 1601, 2003 WL 21283418, at *2 (S.D.N.Y. June 03, 2003) (finding no district court jurisdiction and transferring to the Second Circuit). Those courts that view the court of appeals as the proper jurisdiction frequently transfer cases to that court when there is a citizenship question. See, e.g., Marquez-Almanzar, 2003 WL 21283418, at *7; Alvarez-Garcia v. INS, 234 F. Supp. 2d 283, 290 (S.D.N.Y. 2002); see also Andrade v. Ashcroft, 270 F. Supp. 2d 344, 346 (E.D.N.Y. 2003) (stating expectation that the WDLA would determine whether transfer of a citizenship claim was appropriate).
109 See Roberts, No. 03 Civ. 1115, at 2 (W.D. La. July 21, 2003) (report and recommendation).
110 See sources cited supra note 73.
111 See, e.g., Docket Proceedings at 3, Jacques, No. 01 Civ. 2160, PACER v2.3a-WDLA (docket as of Nov. 6, 2002).
112 Zalawadia v. Ashcroft, 371 F.3d 292, 296 (5th Cir. 2004).
113 See id. at 293. The law firm of Bretz and Coven, LLP represented the petitioners in Calcano-Martinez, which was consolidated with St. Cyr.
114 See Zalawadia, 371 F.3d at 296.
115 Id. at 301.
116 Id.
117 See id.
118 See INS v. St. Cyr, 533 U.S. 289, 326 (2001).
119 See, e.g., Zalawadia, 371 F.3d at 296.
120 28 U.S.C.  2243 (2000).
121 See id. The Zalawadia court makes several errors in its analysis. First, it assumes that limits on the scope of review translate into limits on the remedial power of the court. See Zalawadia, 371 F.3d at 300. The fact that habeas courts are limited in the kinds of issues they can address, however, has no particular implication for what they can do once they find a violation. Second, the Zalawadia court makes the mistake of assuming that jurisdiction for a person who is no longer in physical custody is dependent on collateral consequences. See id. Collateral consequences may be enough to keep jurisdiction, but they are not the only restraints on liberty that give rise to habeas jurisdiction. Since habeas serves as a method to review the legality of the removal order, it is the removal order itself that is properly at issue, and for which the court can issue a remedy. See Morawetz, supra note 28, at 10.
122 See supra note 24.
123 See Rumsfeld v. Padilla, 124 S. Ct. 2711, 2724 (2004).
124 See id. at 2718, 2724.
125 See, e.g., Jacques v. Ashcroft, No. 3:01 Civ. 958 (D. Conn. Sept. 26, 2003) (renumbered No. 01 Civ. 2160) (ordering transfer); Roberts v. Ashcroft, No. 03 Civ. 1115, at 1 (W.D. La. July 21, 2003) (report and recommendation); Jacques, No. 01 Civ. 2160, at 3, 5 (W.D. La. Dec. 26, 2001) (report and recommendation); see also sources cited supra note 73.
126 See, e.g., Lopez-Jaramillo v. Ashcroft, No. 02 Civ. 0205, at 3 (N.D. Ga. May 22, 2003) (renumbered No. 2:03 Civ. 1013) (ordering transfer); Jacques, No. 01 Civ. 958, at 1 (D. Conn. Oct. 16, 2001) (renumbered No. 01 Civ. 2160) (ordering transfer).
127 See, e.g., Roberts v. Ashcroft, No. 03 Civ. 1115, at 1 (W.D. La. July 21, 2003) (report and recommendation); Jacques v. Ashcroft, No. 01 Civ. 2160, at 3, 5 (W.D. La. Dec. 26, 2001) (report and recommendation); Docket Proceedings at 4, Roberts, No. 03 Civ. 1115, PACER v2.3a-WDLA (docket as of Sept. 9, 2003); Docket Proceedings at 3, Jacques, No. 01 Civ. 2160, PACER v2.3a-WDLA (docket as of Nov. 6, 2002).
128 See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004) (denying U.S. Government attempts to limit degree to which habeas courts can review claims brought by U.S. citizens held as “enemy combatants”); Rasul v. Bush, 124 S. Ct. 2686, 2688–89 (2004) (rejecting U.S. Government argument that detainees held in Guantanamo Bay, Cuba cannot bring habeas corpus claims to challenge their detention); Padilla, 124 S. Ct. at, 2717 (acknowledging the Second Circuit’s analysis of limits on executive power, but not reaching the merits for lack of jurisdiction).
129 See Padilla, 124 S. Ct. at 2718 (discussing immediate custodian rule); Jacques, No. 3:01 Civ. 958 (D. Conn. Sept. 26, 2003) (renumbered No. 01 Civ. 2160) (ordering transfer); Jacques, No. 01 Civ. 2160, at 1 (W.D. La. Oct. 30, 2001) (denying stay for lack of jurisdiction); Roberts,, No. 03 Civ. 1115, at 1 (W.D. La. July 21, 2003) (report and recommendation) (denying stay for lack of jurisdiction); Docket Proceedings at 4, Roberts, No. 03 Civ. 1115, PACER v2.3a-WDLA (docket as of Sept. 9, 2003) (indicating deportation of petitioner); Docket Proceedings at 3, Jacques, No. 01 Civ. 2160, PACER v2.3a-WDLA (docket as of Nov. 6, 2002) (indicating removal of petitioner).