Nancy Morawetz*

Abstract:  In the wake of the recent Supreme Court decisions on the legal rights of “enemy combatants,” this Article highlights the continuing problems of immigration detainees and their lack of access to adequate judicial process. Based on the author’s extensive research into habeas corpus actions filed by inmates in the Oakdale Federal Detention Facility, this Article explores the consequences of limiting habeas actions to courts in the territorial site of the prison. Because the federal district court for the Western District of Louisiana refuses to issue stays of removal, detainees are deported before their habeas actions can be judged on the merits, and consequently are denied an adequate remedy for illegal government action.


The year 2004 will be remembered for the landmark cases that decided whether the government can create a legal black hole in which the claims of “enemy combatants” are either fully insulated from the courts or are subjected to review that lacks any element of standard conceptions of due process. In Rasul v. Bush, the Supreme Court rejected the government’s argument that detainees held in Guantanamo Bay, Cuba, cannot bring habeas corpus claims to challenge their detention.1 In Hamdi v. Rumsfeld, it rejected the government’s effort to limit drastically the degree to which habeas courts can review claims brought [*PG2]by U.S. citizens held as “enemy combatants.”2 The Court’s rulings were widely hailed as preserving the rule of law.3 While commentators recognized the importance of the Rasul and Hamdi decisions, they gave short shrift to the decision in a companion case, Rumsfeld v. Padilla. The press viewed the Padilla decision as a “nonruling,” in which the Court had simply concluded that Padilla’s lawyers had chosen the wrong court.4 The underlying implication was that, should the case be filed in the correct court, all of Padilla’s substantive rights, as well as those of other U.S. citizens held as enemy combatants, would be protected.

But the seemingly technical ruling in Padilla is, in fact, of enormous importance.5 The Court held that Padilla had to file his habeas claim wherever the government chose to detain him.6 According to the Court, because he was taken to South Carolina and held there in a military brig, the only proper respondent to a habeas petition was the brig’s commander, and the only proper court was the district court in South Carolina.7

The practical question left open by the Padilla decision is whether the government’s power to choose the site of detention, and hence the venue for a habeas action, will leave petitioners with adequate access to judicial review.8 Some may suspect that the government selected the South Carolina site for Padilla’s detention precisely because it helped to compel litigation in a court that was sympathetic to the government. [*PG3]Time will tell what kind of a hearing Padilla and others similarly situated will receive in the government’s chosen court.

With respect to detainees in immigration cases, however, a factual record is developing of the impact of limiting habeas claims to courts sitting in the territorial site of the detained individual. Before the Padilla decision was issued, many courts, including the circuit where this conference was held, took the position that habeas actions by noncitizens who are challenging their deportation must be filed in the court where those individuals are detained.9 Since the government has broad authority to detain immigrants challenging deportation orders, the courts that followed this approach essentially allowed the government to select the district court that would review habeas challenges to the legality of deportation orders.10

The impact of these pre-Padilla decisions has not been studied exhaustively. Evidence indicates, however, that the pre-Padilla decisions that transferred immigration cases to the site of detention allowed the government to execute removal orders prior to any judicial scrutiny of those orders’ legality.11 This record demonstrates the grave dangers of extending the rule of Padilla beyond that case and into any situation in which the government has the power to choose the situs of detention. It also demonstrates the wisdom of the Court’s conclusion that any rule on the locus of habeas actions is not a matter of subject matter jurisdiction and should be relaxed when it would reward abuse by the government or otherwise fail to provide fair access to the writ.12

The Oakdale Federal Detention Facility (“Oakdale”), built in a remote region of Louisiana, houses over eight hundred detainees at any one time.13 Local parish jails and private facilities in the area house [*PG4]additional detainees.14 In a study of habeas actions docketed in the courts in the Western District of Louisiana (WDLA), I learned that the federal district court that handles cases of pro se Oakdale detainees takes the position that immigration law bars a habeas court from issuing a stay of deportation.15 As a result, little doubt exists that when the government chooses to transfer a detainee to Oakdale, it greatly increases the chances that the individual will be deported prior to any substantive review of the case.16

The consequences of these stay practices were magnified when the reviewing court for cases from the WDLA, the Court of Appeals for the Fifth Circuit, issued its decision in Zalawadia v. Ashcroft.17 In Zalawadia, the court held that if a person is deported during the pendency of a habeas action, the court loses jurisdiction to provide a judicial remedy other than vacating the illegal removal order.18 Zalawadia’s claim was similar to that of Enrico St. Cyr, who had prevailed in 2001 in his case before the Supreme Court.19 Like St. Cyr, Zalawadia argued that he should have been allowed to present equities that counseled against his deportation, and that the Attorney General improperly concluded that she lacked the power to conduct a hearing into such equities.20

[*PG5]Zalawadia did all he could to preserve his rights; he retained counsel and pursued appeals up through the court system, including to the Supreme Court.21 His case was held in abeyance pending the outcome in St. Cyr, after which it was remanded for reconsideration.22 Through counsel, Zalawadia continued to argue his case through both the district court and the Fifth Circuit, ultimately persuading the court that he had been deported improperly.23 The court issued an opinion with broad language stating that the only relief Zalawadia could obtain was vacatur of his removal order. The court refused to order Zalawadia’s return or any other relief to ensure preservation of his rights.

The combined effect of the stay practices of the Western District of Louisiana and the Zalawadia decision is to give the government the power to move noncitizens to a law-free zone.24 Although immigration detainees can nominally take their case to court, the court can neither protect them from removal prior to, nor at the conclusion of their case.25

As of this writing, the circuit courts are considering whether immigration habeas cases fit within the “territorial” jurisdiction rule that was applied in Padilla.26 However that issue is decided, the reality that [*PG6]no petitioner can obtain a stay in the WDLA and real possibility that the Fifth Circuit will deny a full judicial remedy at the end of the proceedings means that the WDLA is a far different habeas forum from those that offer petitioners a chance to prevent inappropriate deportations and to be released into their communities when they prevail in their cases.

Part I of this Article reviews the results of the study of stay practices in the WDLA. Part II discusses the Zalawadia case and how it has magnified the consequences of application of a rule mandating that habeas actions be brought where the government has chosen to detain immigrants. Part III explores the implications of the WDLA’s stay practices and Zalawadia for rules governing the choice of forum in immigration habeas actions.

I.  Stay Practices in the Western District of Louisiana

All Oakdale detainees whose cases are transferred to the WDLA face a court that, as a matter of policy, will not provide a stay of removal.27 The district court for the WDLA takes the position that under INA  242(g), no power exists to stay deportation irrespective of the merits of the case.28 As a result, no one who seeks a stay in the court that handles Oakdale detainees succeeds. Similarly, as a matter of sua sponte practice, the district court vacates stays entered by other courts.29

This study looked systematically at cases during two specific time intervals: the six months following the decision in INS v. St. Cyr and the three months following the Fifth Circuit’s decision in Flores-Garza v. INS.30 The first period represents the time in which the Supreme [*PG7]Court had made it clear that habeas jurisdiction existed as a means to challenge the legality of deportation orders.31 Over the course of these six months, detainees’ arguments often contended that their cases should fall within the ambit of the St Cyr ruling.32 The second time period focuses on the time in which the Fifth Circuit had further clarified the scope of habeas jurisdiction, rejecting government requests to dismiss not only petitions for review, but also habeas actions by individuals who argued that their removal orders were illegal.33 For both intervals, I examined cases that had been transferred from other courts. Cases from both time periods revealed that, when confronted with a question of whether a habeas petitioner can obtain a stay of removal, the district court judges handling the cases of detainees at Oakdale uniformly ruled that they lacked jurisdiction to enter a stay.34 As a result, stays entered by the transferring court were consistently vacated and applications for stays denied.

[*PG8]Table 1 presents data on cases transferred in the six-month period following the St. Cyr decision.

Table 1: Stay Decisions by the WDLA in cases of Oakdale detainees transferred from other courts and docketed between 7/1/01 and 12/31/01
WDLA rulings on stays Finding no jurisdiction for stay Finding jurisdiction and deciding stay issue on merits
Ruling in cases transferred with stays 935 936 0
Rulings in cases transferred without stays 937 938 0
Total WDLA rulings of stay requests in transferred cases 18 18 0

Every opinion issued by the WDLA on the stay issue for Oakdale detainees states the same view: that there is no jurisdiction to issue a stay in a case that challenges a removal order.39 In every opinion re[*PG9]ferred to in Table 1, the district court states that INA  242(g) bars courts from interfering with the execution of a removal order.40 After concluding that there is no jurisdiction under any circumstances to issue a stay, the opinions issued during this time period generally also cited INA  242(a)(2)(B) as making stay decisions purely discretionary and INA  242(f) as requiring a showing that the removal order is prohibited as a matter of law.41 Notably, however, these alternative grounds were often merely footnoted.42

[*PG10]In the more recent time period studied—cases docketed between May 1, 2003 and August 1, 2003—the WDLA judges hearing pro se cases from Oakdale detainees as well as cases transferred from other courts continued to reiterate the view that they lack jurisdiction to stay a removal order.43 During this time period, the WDLA issued four opinions and one additional report and recommendation on stays of removal sought by Oakdale detainees.44 Three of these cases involved cases transferred from other districts with a stay of removal.45 Two involved stay requests adjudicated in the WDLA.46 All of the opinions concluded that a habeas court has no power to issue a stay, and none stated any alternative grounds for denial.47 This conclusion is found in opinions issued by both of the current judges in the Lake Charles Division of the WDLA, the court that handles all habeas petitions filed by Oakdale detainees.48 In any case wherein the transferring court had issued a stay, the WDLA predictably lifted the stay.49

[*PG11]The following quotation from Lopez-Jaramillo v. Ashcroft is exemplary.50 Lopez challenged his removal on the ground that the ruling in St. Cyr should extend to cases in which the individual made a decision to go to trial.51 With respect to his request for a stay, the court stated:

This court lacks jurisdiction to grant petitioner the relief he seeks. Title 8 U.S.C.  1252(g) deprives federal courts of jurisdiction to entertain claims directed towards the “commencement of proceedings,” the “adjudication of cases,” or the “execution of a removal order.” Reno v. American-Arab Anti-Discrimination Committee, 119 S. Ct. 936 (1999); Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999); Sharif v. Ashcroft, 280 F.3d 786 (7th Cir. 2002). Petitioner’s request for a stay is directed at the Attorney General’s decision to execute petitioner’s deportation/removal order. Sharif, supra at 787.52

Accordingly, the court rejected the request for a stay.53

What is striking about these decisions is that they adopt a reading of INA  242(g) that, to my knowledge, has not been advanced by the government in any case, including those cases in which the WDLA has announced that it has no power to issue a stay. In many cases, the government argued that INA  242(f) requires clear and convincing evidence that the remand order is illegal.54 But it has never, to my knowledge, argued that a habeas court has no jurisdiction to order a stay in a case that challenges the legality of the removal order itself. Furthermore, of the courts that have considered the question, a clear majority have rejected the idea that INA  242(f) imposes such a high standard for stays, finding instead that stays of removal in habeas cases [*PG12]should be issued under the traditional standard for preliminary injunctions.55

The published cases the WDLA relied on in its general opinion asserting its lack of jurisdiction to issue stays all involved challenges to removal that did not question the legality of the removal itself.56 For instance, in Sharif v. Ashcroft, the petitioners had already pursued an administrative reopening through which a stay was available.57 Thus, the Seventh Circuit was not presented with a challenge to the underlying removal order, but was asked only to stay removal.58 In contrast, in cases where petitioners challenged the removal itself, the Seventh Circuit has issued stays of removal.59 Similarly, the Fifth Circuit found in Alvidres-Reyes v. Reno that it lacked jurisdiction over a suit that it construed as seeking to require commencement of proceedings against individuals eligible to apply for a suspension of deportation.60 Specifically, it concluded that INA  242(g) precluded suits that involved the commencement of proceedings.61 Neither of these published opinions concerned a challenge to the legality of a removal order.62

[*PG13]The WDLA also relies on an unpublished opinion issued in 2003 by the Fifth Circuit, Idokogi v. Ashcroft.63 The petitioner challenged his removal on several bases, including a claim that he was not convicted of an aggravated felony, and that he was therefore eligible for a hearing on the cancellation of removal.64 In this way, Idokogi’s claim resembled Enrico St. Cyr’s claim, as both petitioners alleged that they had been denied an opportunity for a hearing on relief from removal.65 Idokogi filed his case originally in the Eastern District of New York, where the court concluded that the case should be transferred to the WDLA because Idokogi lacked ties to its jurisdiction.66 The court transferred the case with a stay, which the WDLA promptly vacated.67 On appeal, the Fifth Circuit affirmed the decision in an unpublished opinion.68 The panel acknowledged that the legal issue in the case was whether the petitioner was properly classified as an “aggravated felon,” a classification that would render him ineligible for cancellation of removal.69 Nonetheless, the panel stated that “the relief sought by Idokogi is connected ‘directly and immediately’ with the Attorney General’s decision to commence removal proceedings against him . . . . The district court therefore correctly determined that it lacked jurisdiction to stay the order of removal.”70 In subsequent decisions, the WDLA district court has read this statement from a nonprecedential unpublished opinion as endorsing its view that removal orders cannot be stayed.71

Once stays are denied or lifted, a petitioner may be deported prior to the adjudication of his or her habeas case, and the case may be dis[*PG14]missed for failure to prosecute.72 Often, the last entry on the docket sheet discloses that mail has been returned to the court because the petitioner is no longer at the Oakdale facility.73 In some cases, the entry specifically states that the person was removed or deported.74

No evidence in any of the cases suggests that the transferring court was aware the WDLA’s refusal to grant stays, or that the government attorneys informed the court of this practice. Indeed, the WDLA’s standard practice starkly contrasts with the norms regarding stays as understood by many transferring courts. In the District of Connecticut, for example, the court has noted the procedures instituted by the local United States Attorney’s Office that assure the court of notification of potential deportation of a person seeking a stay, even if the court has yet to rule on the stay.75 That court plainly presumes that there will be an adjudication on the merits of stay requests.76 Similarly, in the Southern District of New York, pro se cases of Oakdale detainees in the study were typically transferred with stays by the Chief Judge’s order, with a proviso allowing the government to seek vacatur of the stay for good cause shown.77 This mechanism was designed to assure an adjudication on the merits of a stay request.78 Once transferred to the WDLA, however, the stay is vacated sua sponte by the WDLA based on its absolute position that jurisdiction to issue a stay is never present79. The Southern [*PG15]District has now altered its practice of sua sponte transfers and now refers such cases to individual judges.80

The consequences of the WDLA’s practice are illustrated by a case transferred from the U.S. District Court for the District of Connecticut. In Jacques v. Ashcroft, a Connecticut resident filed a habeas petition in the District of Connecticut shortly after the St. Cyr decision, based on the denial of eligibility for relief under section 212(c) of the INA, a claim of derivative citizenship and other claims regarding eligibility for relief from removal.81 The District of Connecticut stayed removal.82 In response, the government sought transfer of the case to the WDLA.83 It acknowledged that Jacques had a legitimate claim for INA  212(c) relief, because his removal order was based on a plea that pre-dated the 1996 changes in the immigration laws.84 The government argued, however, that the case should be transferred to WDLA because Jacques was detained in the Oakdale facility.85 The district judge transferred the case, stating that on transfer, any remanded proceeding could consider the citizenship claim.86 Five days [*PG16]later, the WDLA vacated the stay in accordance with its position that no jurisdiction exists to grant stays in habeas petitions.87 The WDLA later dismissed the citizenship claim with prejudice, stating that it should have been pursued in a petition for review to the court of appeals.88 Regarding the INA  212(c) claim, the WDLA concluded that the petitioner should seek to reopen before the Board of Immigration Appeals (BIA).89 It therefore dismissed that claim as well.90 Jacques, who, despite the vacatur of the stay, had not yet been deported, filed a motion to reopen, which the BIA denied.91 Jacques then filed a supplemental pleading in the district court.92 The court rejected it on the ground that the case was closed.93 According to the docket sheet, Jacques was removed before he received notice of the court’s rejection of his last pleading.94

Had the Connecticut district court known that the WDLA would summarily vacate the stay and then dismiss rather than remand the case, it might have retained jurisdiction to assure that Jacques received a hearing on the merits of his claims.95 Indeed, given the government’s position in its papers filed in the district court in Connecticut, the transferring court likely presumed that there would be a stipulated remand, and that the only question was which court would “so order” the remand.96 Instead, Jacques lost the protection of the stay and was deported without an adjudication of either his claim of citizenship or his claim for relief under INA  212(c).97

[*PG17]In another case, Roberts v. Ashcroft, the petitioner claimed that he was born in St. Thomas and was therefore a United States citizen and not subject to deportation.98 Roberts filed his habeas petition in Washington, D.C., and asserted that venue was proper in that district because it was his place of residence.99 The government, however, sought transfer of the case to the WDLA, where the petitioner was detained.100 The government opposed a stay, but stated that it had been informed that deportation would not happen for sixty days; it asserted as well that if a plan to deport Roberts materialized, the government would notify the transferee court.101 No mention was made of the WDLA’s practice of denying stays, which rendered such notice meaningless.102 The U.S. District Court for the District of Columbia transferred the case to the WDLA and ordered a stay of deportation.103 Following transfer, the magistrate judge in the WDLA recommended dismissal on the ground that the proper court was not the habeas court but rather the court of appeals through a petition for review.104 He also recommended vacatur of the stay.105 Upon this recommendation, the petitioner abandoned his legal battle and was deported despite his citizenship claim.106

Had the D.C. district court known that the WDLA would view itself as lacking jurisdiction over the citizenship claim, perhaps it would have retained the case or transferred it to another court that would exercise jurisdiction. Indeed, the D.C. district court likely assumed that the transferee court would be similarly concerned with assuring an adjudication of the merits of a claim of citizenship and, if necessary, would [*PG18]transfer the case again with a stay.107 But the WDLA saw no need to assure that any court would adjudicate the merits of the case.108

II.  Zalawadia and the Consequences of Stay Denials

Without a stay, Oakdale detainees with cases in the Western District of Louisiana are subject to deportation prior to the adjudication of their cases.109 In many cases, the last entry on the docket simply states that mail from the court was returned stamped “removed.”110 Those contesting their deportation, generally without counsel or resources, appear simply to have given up.

In a few rare cases, detainees have been represented by counsel who continued to argue their cases even after deportation. Once such detainee was Jaysukh Zalawadia, who received no stay and continued to challenge his removal after he had been deported.111 Zalawadia was represented by the same counsel who represented some of the individuals in the consolidated cases heard in St. Cyr.112 Zalawadia’s counsel petitioned for writ of certiorari and continued to represent him after his case was remanded to the lower courts.113 Ultimately, the Fifth Circuit ruled that Zalawadia should have had a hearing on the equities of his case prior to his deportation.114 But because he had been deported, the court ruled that it would only vacate the removal [*PG19]order and would not order Zalawadia’s return or the provision of a new hearing.115

Zalawadia underscores the critical role that stays play. Without a stay, a noncitizen faces not just deportation but lack of access to a practical remedy for the deportation.116 Those who had stays when St. Cyr was decided received the benefit of that decision.117 Those who did not and were deported, at least in the Fifth Circuit, will not obtain relief.118 Of course, powerful arguments refute Zalawadia’s broad language. The general habeas statute provides that the court “may dispose of the matter as law and justice requires.”119 Where the challenge is to the removal order, it seems fairly obvious that the broad power to do as “law and justice require” includes a remedy to the removal itself.120 But even if the Fifth Circuit retreats from the broad language of the Zalawadia opinion, Oakdale detainees who are transferred to the Western District of Louisiana presently face a district court that, as a matter of policy, vacates stays and then refuses to provide adequate relief even for those who continue to fight their cases from abroad.121

III.  Implications of Stay Practices for Choosing an Appropriate Forum

The study of transferred cases shows that district courts should understand that when they transfer a case of an Oakdale detainee to the WDLA, they are basically allowing the government to deport that individual without the possibility of a stay and without the possibility [*PG20]of a judicial remedy requiring that person’s return. The question is: does this matter? Do the consequences of the transfer have any bearing on what courts should do?

After Padilla, there can be little question that it does matter. Padilla makes it clear that rules for choosing the forum in habeas challenges are not a matter of subject matter jurisdiction.122 Instead they are matters of convention in which an “immediate custodian” rule has emerged for core cases that are simple challenges to physical custody.123 The cases of Oakdale detainees illustrate how far immigration challenges are from “core challenges” to present physical custody and how great the danger is of distorting the rule of law through mindless application of an “immediate custodian” rule.124 For Oakdale detainees, courts applying a version of the immediate custodian rule have sent cases to be heard by the court with the least connection to the case.125 The Western District of Louisiana’s physical connection to the detainee is, at most, happenstance. Its practices seek to sever that physical relationship from the start by failing to do anything to prevent deportation pending resolution of the case.126 Meanwhile, allowing the government to achieve this result through detention in Louisiana provides the Executive with the frightening power to choose a court that will prevent the petitioner from obtaining relief. Hopefully, the greater message of the triumvirate of cases announced in June 2004—namely that no government is above the law—will prevent procedural rules that provide such insulation from judicial scrutiny.127

[*PG21]Outside of the immigration field, the experience of the Oakdale detainees should serve as a sober reminder of the degree to which substantive protection from illegal government action depends not just on substantive judicial rulings, but also on the procedural rules that will determine whether courts ever reach the merits of a case and will have the power to remedy legal wrongs. Padilla-like rules, which allow the government to choose the court that will review the legality of controversial government policies, lend themselves to abuse.128 They provide an easy means for government forum shopping that limits judicial scrutiny. Whether or not the Oakdale experience is the product of a conscious effort to choose a forum that would deprive access to a fair ruling on the merits, or the happenstance of government detention policies that had no connection to efforts to secure a litigation advantage, the result is clear. When it is able to compel litigation in the Western District of Louisiana, the government—whose powers the writ of habeas corpus is designed to limit—has access to a court that views itself as largely without power. These experiences should not be repeated.

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