*

The Honorable Patrick J. Duggan, United States District Judge for

the Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0205P (6th Cir.)

File Name: 04a0205p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCO GARCIAECHAVERRIA,

Defendant-Appellant.

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No. 03-3655

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 01-00779—James G. Carr, District Judge.

Argued: April 23, 2004

Decided and Filed: July 1, 2004 

Before: MERRITT and MOORE, Circuit Judges;

DUGGAN, District Judge.*

2 United States v. Garcia-Echaverria No. 03-3655

_________________

COUNSEL

ARGUED: Jeffrey M. Gamso, GAMSO, HELMICK &

HOOLAHAN, Toledo, Ohio, for Appellant. Thomas O.

Secor, ASSISTANT UNITED STATES ATTORNEY,

Toledo, Ohio, for Appellee. ON BRIEF: Jeffrey M. Gamso,

GAMSO, HELMICK & HOOLAHAN, Toledo, Ohio, for

Appellant. Thomas O. Secor, ASSISTANT UNITED

STATES ATTORNEY, Toledo, Ohio, for Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. DefendantAppellant, Marco Garcia-Echaverria (“Garcia-Echaverria”),

appeals his conviction pursuant to a conditional guilty plea

for “Unlawful Reentry by an Illegal Alien,” in violation of

8 U.S.C. § 1326(b). On appeal, Garcia-Echaverria argues that

his conviction for unlawful reentry should be vacated because

(1) his initial removal was unlawful, because at the time he

was removed, the Kentucky drug conviction for which he was

removed was on direct appeal; (2) his initial removal violated

due process because at the time he was removed, his petition

for review of the Board of Immigration Appeals (“BIA”)

decision and his motion for a stay of removal were pending

before the United States Court of Appeals for the Fifth

Circuit, he had filed a petition for a writ of habeas corpus in

the United States District Court for the Southern District of

New York (“S.D.N.Y.”), which the S.D.N.Y. had transferred

to the United States District Court for the Western District of

Louisiana (“W.D. La.”), and the S.D.N.Y. had issued a stay

of removal until the W.D. La. took further action; and (3) his

indictment should have been dismissed due to violations of

§ 3161(b) of the Speedy Trial Act and Federal Rule of

Criminal Procedure 5(a) because by the time he was indicted,
No. 03-3655 United States v. Garcia-Echaverria 3

he had been in detention for thirty-three days, and by the time

he was first brought before a magistrate, he had been in

detention for thirty-five days.

For the following reasons, we AFFIRM GarciaEchaverria’s conviction.

I. BACKGROUND

In this appeal, Garcia-Echaverria challenges his conviction

for unlawful reentry. On October 3, 2001, a grand jury

returned a one-count indictment, charging Garcia-Echaverria

with being an alien found in the United States on or about

August 31, 2001, after having been deported for committing

an “aggravated felony” and without obtaining permission to

reenter from the Attorney General, in violation of 8 U.S.C.

§ 1326(b). After his motions to dismiss the indictment were

denied, Garcia-Echaverria pleaded guilty to the charge of

unlawful reentry, and the district court sentenced him to

thirty-seven months of imprisonment.

Several of Garcia-Echaverria’s arguments on appeal attack

the legality of his prior removal. Garcia-Echaverria, a native

and citizen of Mexico, entered the United States on or about

January 1, 1980, and became a lawful permanent resident on

or about January 26, 1990. On January 6, 1997, GarciaEchaverria was convicted by the State of Kentucky pursuant

to a guilty plea, entered on December 16, 1996, to the charge

of “Trafficking Marijuana over 8 ounces, less than 5 pounds,”

in violation of K.R.S. 218A.1421(3). Joint Appendix (“J.A.”)

at 125-26. On January 10, 1997, the Kentucky Circuit Court

sentenced Garcia-Echaverria to five years of imprisonment

for his Kentucky drug conviction. Several months later, on

May 7, 1997, Garcia-Echaverria filed a motion in the

Kentucky Circuit Court, requesting taped copies of the court

proceeding leading up to his Kentucky drug conviction, and

indicating that the tapes would be used to seek post-judgment

relief. Then, on July 16, 1997, Garcia-Echaverria wrote a

pro-se letter to the Kentucky Circuit Court, indicating that he

4 United States v. Garcia-Echaverria No. 03-3655

1

This motion does not appear in the Joint Appendix.

wanted to appeal his conviction, or in the alternative,

requesting shock probation. The Joint Appendix reflects that

on March 29, 2000, the Kentucky Circuit Court entered an

order overruling Garcia-Echaverria’s “motion for

appointment of counsel, motion for hearing and motion to set

aside sentence.”1 J.A. at 168. Subsequently, GarciaEchaverria filed a motion to reconsider the March 29, 2000

order, which was captioned as a “‘BELATED APPEAL RCr

11.42 MOTION TO VACATE, SE[T] ASIDE, CORRECT

SENTENCE OR SET FOR NEW TRIAL AND APPEAL’

‘APPOINTMENT COUNSEL AND MOTION FOR

HEARING.’” J.A. at 153. On April 18, 2000, the Kentucky

Circuit Court overruled this motion to reconsider.

On May 30, 2000, Garcia-Echaverria filed a Notice of

Appeal in the Kentucky Circuit Court, indicating that he

sought to appeal the March 29, 2000 and April 18, 2000

orders. The Kentucky Court of Appeals’s docket sheet also

reflects that the appeal related to the March 29, 2000 and

April 18, 2000 orders. The “General Case Information”

section of the docket sheet, however, indicates that the

document type is a “Matter of Right Appeal,” and that the

case type is a “Direct appeal - Criminal.” J.A. at 114. On

February 14, 2001, after Garcia-Echaverria had been

removed, the Kentucky Court of Appeals dismissed the

appeal upon its own motion. On August 14, 2002, the Clerk

of the Court of Appeals for Kentucky wrote a letter to the

U.S. Attorney’s Office, expressing the opinion that the appeal

docketed on May 30, 2000, “is a direct appeal from two

judgments denying relief in a collateral attack on a judgment

of conviction . . . not a direct appeal from a judgment of

conviction.” J.A. at 165.

On May 13, 1997, the Immigration and Naturalization

Service (“INS”) issued Garcia-Echaverria a Notice to Appear,

charging that he was deportable due to his Kentucky drug
No. 03-3655 United States v. Garcia-Echaverria 5

2

According to the S.D.N.Y.’s order transferring Garcia-Echaverria’s

habeas petition and granting a stay of removal, the S.D.N.Y.’s pro-se

office received the petition on July 12, 2000.

conviction under two sections of the Immigration and

Nationality Act (“INA”) — § 237(a)(2)(A)(iii) (codified as

8 U.S.C. § 1227(a)(2)(A)(iii)) for being convicted of an

“aggravated felony” and § 237(a)(2)(B)(i) (codified as 8

U.S.C. § 1227(a)(2)(B)(i)) for being convicted of controlled

substance offense. On September 7, 1999, an Immigration

Judge (“IJ”) ordered Garcia-Echaverria removed from the

United States. On July 20, 2000, the BIA dismissed GarciaEchaverria’s appeal, finding that a waiver of inadmissiblity

pursuant to § 212(c) of the INA (originally codified as 8

U.S.C. § 1182(c), but repealed by the Illegal Immigration

Reform and Immigrant Responsibility Act (“IIRIRA”), 104

Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)), was

not available to him, and that he was statutorily ineligible for

cancellation of removal pursuant to § 240A(a) of the INA

(codified at 8 U.S.C. § 1229b).

Garcia-Echaverria was removed on either August 8 or 9,

2000, after he had made filings in the Fifth Circuit and the

S.D.N.Y. On August 7, 2000, Garcia-Echaverria filed in the

Fifth Circuit a petition for review of the BIA’s decision and

a motion for a stay of removal, which were docketed on

August 10, 2000. After Garcia-Echaverria was removed, the

Fifth Circuit declared moot the motion to stay removal and

dismissed for lack of jurisdiction the petition for review.

While he was held in Oakdale, Louisiana awaiting removal,

Garcia-Echaverria sent a petition for a writ of habeas corpus

to the S.D.N.Y.2 On August 8, 2000, the S.D.N.Y. ordered

the habeas petition to be filed and docketed, transferred the

petition to the W.D. La., and stayed removal pending further

action by the W.D. La. However, neither Garcia-Echaverria’s

habeas petition nor the S.D.N.Y.’s orders transferring the

petition and granting the stay were entered on the S.D.N.Y.’s

docket sheet until August 9, 2000. The W.D. La. did not

6 United States v. Garcia-Echaverria No. 03-3655

receive the transferred habeas petition until August 14, 2000,

and dismissed the petition for non-payment of filing fees on

November 1, 2000.

Garcia-Echaverria was found in the United States on

August 31, 2001, when he was stopped for speeding by

officers of the Ohio Highway Patrol at Fremont, Ohio.

Officers of the Highway Patrol notified the INS, and GarciaEchaverria was placed in Sandusky County jail pursuant to an

INS detainer. On September 4, 2001, INS officer Matthew

Hamulak interviewed Garcia-Echaverria after administering

Miranda warnings. During this interview, Garcia-Echaverria

admitted that he had previously been removed and that he had

reentered without obtaining permission from the Attorney

General. Garcia-Echaverria also consented to having his

fingerprints taken at that time. On September 6, 2001,

Hamulak requested from INS headquarters the records

pertaining to Garcia-Echaverria’s prior removal, which he

received on September 22, 2001. On September 14, 2001,

INS officer Neal Baker sent Garcia-Echaverria an “INS

DETAINEE RESPONSE SHEET,” informing GarciaEchaverria that he would not receive an IJ hearing, that his

prior order of deportation had been reinstated, and that he was

“awaiting prosecution for Re-Entry after Deportation. No

further contact will be made with you by the Detention &

Deportation Office until that is resolved.” J.A. at 89.

The district court had jurisdiction over Garcia-Echaverria’s

criminal prosecution pursuant to 18 U.S.C. § 3231 because

Garcia-Echaverria was indicted for an offense against the

laws of the United States. This court has jurisdiction over the

appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
No. 03-3655 United States v. Garcia-Echaverria 7

II. ANALYSIS

A. Standard of Review

This court reviews de novo the denial of a motion to

dismiss an indictment and a collateral attack upon a prior

removal order underlying a conviction for unlawful reentry.

United States v. Martinez-Rocha, 337 F.3d 566, 568-69 (6th

Cir. 2003) (discussing the standard of review for a collateral

challenge under 8 U.S.C. § 1326(d)). This court also reviews

de novo the district court’s application of the Speedy Trial

Act and of the Federal Rules of Criminal Procedure. United

States v. Burke, 345 F.3d 416, 421 (6th Cir. 2003), cert.

denied, 124 S. Ct. 1731 (2004); United States v. Salgado, 250

F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 916 (2001).

B. Finality of Kentucky Drug Conviction

First, Garcia-Echaverria argues that his conviction for

unlawful reentry should be vacated because he was removed

while his Kentucky drug conviction was on direct appeal.

Garcia-Echaverria asserts that the Kentucky Court of

Appeals’s docket sheet reflects that a direct appeal was

pending at the time he was removed, and that the district court

improperly looked behind these judicial records to determine

the finality of his conviction.

To support an order of deportation, a conviction must be

final. Pino v. Landon, 349 U.S. 901 (1955). Finality requires

the defendant to have exhausted or waived his rights to direct

appeal. Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th

Cir. 1975), cert. denied, 423 U.S. 1050 (1976). The

defendant’s exercise of post-conviction remedies does not,

however, undermine the finality of his conviction. Id. The

finality of a defendant’s conviction must be determined from

court records. Id. at 570.

Contrary to Garcia-Echaverria’s assertions, AguileraEnriquez does not restrict courts to an examination of docket

8 United States v. Garcia-Echaverria No. 03-3655

3

“RCr 12.04 was amended effective January 1, 1999, to allow 30

days for taking an appeal.” Commonwealth v. Opell, 3 S.W.747, 750 n.2

(Ky. Ct. App. 1999).

4

That Garcia-Echaverria may have requested a belated appeal in

these motions does not affect the finality of his conviction.

sheets when determining the finality of a conviction. Rather

Aguilera-Enriquez provides, “The Immigration authorities

must look to judicial records to determine whether a person

has been ‘convicted’ of a crime. They may not determine on

their own an alien’s guilt or innocence.” Id. AguileraEnriquez prohibits immigration authorities from second

guessing, in the context of deportation proceedings, the

ascertainment of an alien’s guilt, but it does not prohibit the

district court from questioning, when determining finality, the

designation given to a particular action on a state court’s

docket sheet.

In this case, the district court did not contravene the

limitations imposed by Aguilera-Enriquez by examining

various records from the Kentucky Circuit Court and the

Kentucky Court of Appeals. The district court determined the

finality of Garcia-Echaverria’s conviction from court records

and did not second guess the Kentucky Circuit Court’s

ascertainment of guilt. According to Kentucky Rule of

Criminal Procedure (“RCr”) 11.42, a motion to vacate, set

aside, or correct sentence is a collateral attack and need

normally to be filed within three years of final judgment. At

the time Garcia-Echaverria was convicted, a direct appeal

from a criminal conviction was required to have been filed

within ten days of final judgment. Commonwealth v. Opell,

3 S.W.3d 747, 750 (Ky. Ct. App. 1999) (citing old RCr

12.04).3 The Kentucky Circuit Court’s March 29, 2000 order

indicates that Garcia-Echaverria’s initial motion was to set

aside his sentence, the Kentucky Circuit Court’s April 18,

2000 order disposes of a motion to reconsider that initial

motion and cites to RCr 11.42,4 and Garcia-Echaverria’s time
No. 03-3655 United States v. Garcia-Echaverria 9

for filing a direct appeal had expired in 1997. Therefore, the

district court did not err by determining that the motions

overruled on March 29, 2000 and April 18, 2000 were

collateral attacks upon Garcia-Echaverria’s conviction. On

May 30, 2000, Garcia-Echaverria filed a Notice of Appeal in

the Kentucky Circuit Court, specifying that he sought to

appeal the March 29, 2000 and April 18, 2000 orders. The

Notice of Appeal does not indicate that Garcia-Echaverria

sought to appeal his judgment of conviction entered on

January 6, 1997 or his sentence imposed on January 10, 1997.

Additionally, the Kentucky Court of Appeals’s docket sheet

indicates that the appeal pertained to the March 29, 2000 and

April 18, 2000 orders.

Garcia-Echaverria bases his entire argument that his

Kentucky drug conviction was not final upon the fact that the

“General Case Information” section of the Kentucky Court of

Appeals’s docket sheet refers to a “Matter of Right Appeal”

and a “Direct appeal - Criminal.” Aguilera-Enriquez does not

support Garcia-Echaverria’s argument that a docket sheet

notation referring to a direct appeal requires the conclusion

that his conviction was not final for removal purposes. The

Kentucky court records as a whole indicate that the appeal

pending when Garcia-Echaverria was removed pertained to

collateral attacks upon his conviction. Therefore, GarciaEchaverria’s conviction was final for removal purposes.

C. Due Process in Prior Removal

Next, Garcia-Echaverria argues that his conviction for

unlawful reentry must be vacated because he was removed in

violation of due process, as court proceedings pertaining to

his removal were pending and an order staying his removal

had been issued. In response, the government argues that

Garcia-Echaverria received due process, in that he received a

proper hearing before an IJ and an appeal to the BIA. The

government points out that the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) and the Illegal

Immigration Reform and Immigrant Responsibility Act of

10 United States v. Garcia-Echaverria No. 03-3655

5

The IIRIRA adopted “the term “removal,’ which essentially

eliminated a distinction that formerly existed between ‘deportation’

proceedings and ‘exclusion proceedings.’ Thus, a determination whether

an alien is ‘inadmissible’ (i.e., cannot, or did not, enter the country

lawfully), or ‘deportable’ (i.e., entered the country lawfully but is no

longer entitled to stay), would be determined through ‘removal’

proceedings.” Balogun v. U. S. Att’y Gen., 304 F.3d 1303, 1306-07 (11th

Cir. 2002) (citations omitted).

1996 (“IIRIRA”) strip courts of jurisdiction to review orders

of deportation/removal5 issued to aliens who have committed

certain criminal offenses, and that the IIRIRA stripped courts

of jurisdiction over claims arising from decisions by the

Attorney General to execute removal orders. The government

also recognizes, however, that the AEDPA and the IIRIRA

did not strip courts of jurisdiction over habeas corpus

petitions filed pursuant to 28 U.S.C. § 2241. The government

argues that removing Garcia-Echaverria while his petition for

review was pending before the Fifth Circuit did not deny him

due process, as the Fifth Circuit would not have had

jurisdiction over that petition. The government also contends

that removing Garcia-Echaverria after the S.D.N.Y. had

transferred Garcia-Echaverria’s § 2241 petition to the W.D.

La. and issued a stay of removal did not deny him due

process, because those orders had not been entered into the

court’s docket at the time Garcia-Echaverria was removed,

and therefore, were not yet effective.

1. Petition for Review and Motion for a Stay Pending

Before the United States Court of Appeals for the

Fifth Circuit

The Fifth Circuit’s docket sheet indicates that GarciaEchaverria’s petition for review and motion for a stay of

deportation were docketed on August 10, 2000. The Fifth

Circuit’s docket sheet further indicates that on August 11,

2000, the Fifth Circuit declared moot Garcia-Echaverria’s

motion for a stay (as Garcia-Echaverria had been removed on

August 8 or 9, 2000) and on September 12, 2000, the Fifth
No. 03-3655 United States v. Garcia-Echaverria 11

6

Nothing in the Joint Appendix indicates the basis for the Fifth

Circuit’s dismissal for lack of jurisdiction of Garcia-Echaverria’s petition

for review. We have obtained the relevant order from the Fifth Circuit

clerk’s office, but the order does not state the court’s reasoning.

Circuit granted the Attorney General’s motion to dismiss for

lack of jurisdiction Garcia-Echaverria’s petition for review.

Although we do not have the benefit of the Fifth Circuit’s

analysis,6 we conclude thatGarcia-Echaverria’s removal after

he had filed a petition for review but before the court ruled on

that petition did not deprive Garcia-Echaverria of due process.

Under the permanent provisions of the IIRIRA, serving a

petition for review on an officer or employee of the INS does

not give rise to an automatic stay of removal, although the

court may issue a stay. 8 U.S.C. § 1252(b)(3)(B); see also

Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir. 2001).

Moreover, under the permanent provisions of the IIRIRA, an

alien’s removal while his petition for review is pending

neither deprives the court of appeals of jurisdiction over that

petition nor does it necessarily render moot the claims in that

petition. Bejjani, 271 F.3d at 688-89; see also Amanfi v.

Ashcroft, 328 F.3d 719, 725 n.1 (3d Cir. 2003).

In this case, Garcia-Echaverria was not removed in

violation of an effective stay of removal issued by the Fifth

Circuit, as Garcia-Echaverria’s petition for review did not

give rise to an automatic stay and the Fifth Circuit’s docket

sheet reflects that Garcia-Echaverria was removed before the

court ruled upon his motion for a stay. It is true that GarciaEchaverria’s removal made it more difficult for him to pursue

his petition for review before the Fifth Circuit; we have relied

upon this fact when issuing stays of deportation/removal for

aliens with petitions for review pending before this circuit.

Bejjani, 271 F.3d at 688-89. However, Garcia-Echaverria’s

removal did not make it impossible for him to pursue his

petition for review, for his removal did not deprive the Fifth

12 United States v. Garcia-Echaverria No. 03-3655

7

Section 440(a) of the AEDPA provided: “Any final order of

deportation against an alien who is deportable by reason of having

committed a criminal offense covered in section 241(a)(2)(A)(iii), (B),

(C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which

both predicate offenses are covered by section 241(a)(2)(A)(i), shall not

be subject to review by any court.” AEDPA, Pub. L. No. 104-132,

§ 440(a), 110 Stat. 1214 (1996).

8

Prior to the enactment of the AEDPA and presently, the INA has

included within the definition of “aggravated felony,” “illicit trafficking

in a controlled substance (as defined in section 102 of the Controlled

Substances Act [21 USCS § 802]), including a drug trafficking crime (as

defined in section 924(c) of title 18, United States Code).” 8 U.S.C.

§ 1101(a)(43)(1995).

9

Section 306(a)(2) of the IIRIRA provides: “Notwithstanding any

other provision of law, no court shall have jurisdiction to review any final

order of removal against an alien who is removable by reason of having

committed a criminal offense covered in section 212(a)(2) or

237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section

237(a)(2)(A)(ii).” IIRIRA, Pub. L. No. 104-208, § 306(a)(2), 110 Stat.

3009 (1996). With some exceptions not relevant here, this jurisdictionCircuit of jurisdiction over that petition or render moot the

claims in that petition. Id.

Moreover, when the Fifth Circuit later ruled on GarciaEchaverria’s petition for review, it had no choice but to

dismiss that petition for lack of jurisdiction. Section

440(a)7of the AEDPA stripped courts of jurisdiction to review

final orders of deportation against aliens who are subject to

deportation for having committed certain criminal offenses,

including “aggravated felonies.”8 AEDPA, Pub. L. No. 104-

132, § 440(a), 110 Stat. 1214 (1996); Figueroa-Rubio v. INS,

108 F.3d 110, 111 (6th Cir. 1997). The AEDPA was enacted

on April 24, 1996, and the jurisdiction-stripping provisions

became effective on that date. Figueroa-Rubio, 108 F.3d at

111-12. The AEDPA did not, however, strip courts of

jurisdiction over habeas corpus petitions filed pursuant to 28

U.S.C. § 2241. INS v. St. Cyr, 533 U.S. 289, 314 (2001).

Section 306(a)(2) of the IIRIRA9further stripped courts of
No. 03-3655 United States v. Garcia-Echaverria 13

stripping provision became effective on April 1, 1997, and applied to

removal proceedings commencing on or after that date. Id. at § 309(a).

This jurisdiction-stripping provision applied to Garcia-Echaverria’s

removal proceedings. Unlike some provisions of the IIRIRA, the

jurisdiction-stripping provisions did not raise any retroactivity concerns.

Figueroa-Rubio, 108 F.3d 110, 112 (6th Cir. 1997) (noting jurisdictionstripping statutes do not affect substantive rights).

10The BIA decision indicates that removal proceedings were not

“commenced” against Garcia-Echaverria until August 11, 1999, after the

permanent provisions of the IIRIRA had become effective on April 1,

1997. It is true that removal proceedings are not “commenced” until a

charging document is filed with the Immigration Court. Asad v. Reno,

242 F.3d 702, 705 (6th Cir. 2001). There is, however, nothing in the

record to support the BIA’s finding that charging documents were not

filed in the Immigration Court until August 11, 1999. In any event,

Garcia-Echaverria was first issued a Notice to Appear on May 13, 1997,

and Garcia-Echaveria conceded in his § 2241 petition that his immigration

jurisdiction to review final orders of removal against aliens

who are subject to removal for having committed an even

greater number of criminal offenses, still including

“aggravated felonies.” IIRIRA, Pub. L. No. 104-208,

§ 306(a)(2), 110 Stat. 3009 (1996). St. Cyr, 533 U.S. at 297;

Calcano-Martinez v. INS, 533 U.S. 348, 351-52 (2001). The

IIRIRA was enacted on September 30, 1996, and the pertinent

jurisdiction-stripping provision, which was part of the

permanent rules, became effective on April 1, 1997. The

IIRIRA did not, however, strip courts of jurisdiction over

habeas petitions filed pursuant to 28 U.S.C. § 2241. St. Cyr,

533 U.S. at 314.

Garcia-Echaverria’s removal proceedings commenced no

earlier than May 13, 1997, which was after the enactment of

the AEDPA and after the permanent provisions of the IIRIRA

had become effective. Therefore, at the time GarciaEchaverria filed his petition for review in the Fifth Circuit,

courts of appeals had been stripped of jurisdiction to review

final orders of removal issued against aliens who are

removable for having committed an “aggravated felony.”10

14 United States v. Garcia-Echaverria No. 03-3655

proceedings were not commenced prior to April 1, 1997; therefore, his

removal proceedings are covered by the permanent provisions of the

IIRIRA.

11Garcia-Echaverria was charged with being removable on two bases

— for being convicted of an “aggravated felony” and for being convicted

of a controlled substance offense. Garcia-Echaverria has only contested

the BIA’s determination that his Kentucky drug conviction constituted an

“aggravated felony.” Because the BIA also determined that GarciaEchaverria was removable based upon his conviction of a controlled

substance offense, the Fifth Circuit would have held that it lacked

jurisdiction and dismissed the appeal, without determining whether

Garcia-Echaverria’s Kentucky drug conviction constituted an “aggravated

felony.” Flores-Garza v. INS, 328 F.3d 797, 802-03 (5th Cir. 2003).

The Fifth Circuit, however, retained jurisdiction to determine

its jurisdiction, including jurisdiction to determine the

existence of the jurisdictional fact of whether GarciaEchaverria had been convicted of a removable offense.

Flores-Garza v. INS, 328 F.3d 797, 802-03 (5th Cir. 2003).11

The Fifth Circuit had no choice but to conclude that GarciaEchaverria had been convicted of a removable offense, and

thus that it lacked jurisdiction over the petition for review. As

discussed in Garcia-Echaverria v. United States, No. 03-

3285, the Fifth Circuit would have inevitably found that

Garcia-Echaverria had been convicted of an “aggravated

felony,” depriving it of jurisdiction over Garcia-Echaverria’s

petition for review.

2. Stay Issued by the United States District Court for

the Southern District of New York

Despite the passage of the AEDPA and the IIRIRA, district

courts retain jurisdiction over habeas corpus petitions filed

pursuant to 28 U.S.C. § 2241. Absent special circumstances

not present here, a petition for a writ of habeas corpus is

properly filed only in a court that has personal jurisdiction

over the alien’s immediate custodian. Roman v. Ashcroft, 340

F.3d 314, 319-21 (6th Cir. 2003); Charles v. Chandler, 180
No. 03-3655 United States v. Garcia-Echaverria 15

12The Second Circuit has not yet expressly decided this issue in a

published opinion. See Henderson v. INS, 157 F.3d 106, 122-29 (2d Cir.

1998), cert. denied, 526 U.S. 1004 (1999) (holding that a habeas corpus

petition is properly filed in a district court that has personal jurisdiction

over the petitioner’s immediate custodian, but declining to answer the

question of whether an alien’s habeas corpus petition is also properly filed

in a district court that has personal jurisdiction over the Attorney

General).

F.3d 753, 756 (6th Cir. 1999).12 Garcia-Echaverria was being

held in Oakdale, Louisiana; therefore, his habeas petition was

not properly filed in the S.D.N.Y. On August 8, 2000, the

S.D.N.Y. transferred the petition to the W.D. La. and stayed

Garcia-Echaverria’s removal pending further action by the

W.D. La. However, the S.D.N.Y. did not enter these actions

into its docket until August 9, 2000. The government argues

that Federal Rule of Civil Procedure 58 provides that a

judgment is not effective until it is entered into the court’s

docket, and therefore, that the INS did not remove GarciaEchaverria in violation of an effective stay.

The S.D.N.Y.’s docket sheet indicates that GarciaEchaverria’s petition for habeas corpus, the S.D.N.Y.’s order

transferring that habeas corpus petition to the W.D. La., and

the S.D.N.Y.’s order granting a stay of removal were not

docketed until August 9, 2000. The fact that the stay had not

been entered into the S.D.N.Y.’s docket until after GarciaEchaverria was removed on August 8 or 9, 2000, alone, is not

dispositive in this case. It is the practice in this circuit and at

least at one point was the practice in the United States Court

of Appeals for the Second Circuit for the clerk’s office to

provide telephonic notice to the government when a stay has

been issued in order to avoid the situation that occurred in this

case. See, e.g., Edwards v. INS, 59 F.3d 5, 7 n.3 (2d Cir.

1995). Moreover, the Second Circuit has “rejected the idea

that an undocketed order [is] a nullity,” citing cases holding

that undocketed oral and written orders are binding on the

parties so long as the parties have actual notice of the orders.

Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 365 & n.1

16 United States v. Garcia-Echaverria No. 03-3655

(2d Cir. 2003), cert. denied, 124 S. Ct. 1047 (2004). In this

case, however, there is no evidence that the INS had actual or

constructive notice at the time it removed Garcia-Echiverria

that the S.D.N.Y. had issued a stay of removal. We conclude

that the INS was not bound then by an order of which it had

no actual or constructive notice; therefore, Garcia-Echaverria

was not removed in violation of an effective stay.

3. Petition for Habeas Corpus Pending Before the

United States District Court for the Western

District of Louisiana

Garcia-Echaverria’s removal after his petition for habeas

corpus was transferred to the W.D. La. but before that court

ruled on that petition did not deprive Garcia-Echaverria of

due process. Under the permanent provisions of the IIRIRA,

an alien’s deportation while his petition for habeas corpus

pursuant to § 2241 is pending neither deprives the court of

jurisdiction over that petition nor does it necessarily render

moot the claims in that petition. Zalawadia v. Ashcroft, __

F.3d __, No. 03-30115, 2004 WL 1115090, at *3-4 (5th Cir.

June 4, 2004). It is true that Garcia-Echaverria’s removal

made it more difficult for him to pursue his petition for

habeas corpus before the W.D. La., but it did not make it

impossible for him to pursue that petition. We recognize that

the result of our due process analysis is harsh, but it comports

with the IIRIRA’s clear goal of speeding up the removal

process. Aliens may be able to mitigate the difficulties posed

by removal prior to the conclusion of their court proceedings

by securing adequate representation.

D. Speedy Trial Act and Federal Rule of Criminal

Procedure 5(a)

Finally, Garcia-Echaverria argues that his indictment

should have been dismissed due to a violation of § 3161(b) of
No. 03-3655 United States v. Garcia-Echaverria 17

1318 U.S.C. § 3161(b) requires:

Any information or indictment charging an individual with the

commission of an offense shall be filed within thirty days from

the date on which such individual was arrested or served with a

summons in connection with such charges. If an individual has

been charged with a felony in a district in which no grand jury

has been in session during such thirty-day period, the period of

time for filing of the indictment shall be extended an additional

thirty days.

The appropriate remedy for a violation of § 3161(b) is dismissal of the

indictment. 18 U.S.C. § 3162.

14Fed. R. Crim. P. 5(a) provides:

(1) Appearance Upon an Arrest.

(A) A person making an arrest within the United States must

take the defendant without unnecessary delay before a magistrate

judge, or before a state or local judicial officer as Rule 5(c)

provides, unless a statute provides otherwise.

(B) A person making an arrest outside the United States must

take the defendant without unnecessary delay before a magistrate

judge, unless a statute provides otherwise.

the Speedy Trial Act

13and a violation of Fed. R. Crim. P.

5(a),14because he was not indicted or initially brought before

a magistrate until more than thirty days after his civil

detention had ripened into a criminal arrest. To support his

contention that he was being held for criminal prosecution,

Garcia-Echaverria points out that on September 4, 2001, an

INS agent “took [Garcia-Echaverria’s] fingerprints, and took

a statement from [Garcia-Echaverria] after providing him

with Miranda warnings,” Appellant’s Br. at 16, that on

September 14, 2001, an INS agent informed GarciaEchaverria that he was being held for criminal prosecution,

and that the INS did not immediately deport him.

Several circuits have held that § 3161(b) does not generally

apply to aliens held in civil detention, although many circuits

have indicated an exception to this general rule exists when

there is evidence of collusion between immigration and

criminal prosecution authorities demonstrating that the alien’s

civil detention is a mere ruse to avoid application of the

18 United States v. Garcia-Echaverria No. 03-3655

Speedy Trial Act. See, e.g., United States v. Dyer, 325 F.3d

464, 468-70 (3d Cir.), cert. denied, 124 S. Ct. 457 (2003)

(explaining the “ruse” exception, but declining to adopt it

because the defendant would not have qualified for the

exception); United States v. Drummond, 240 F.3d 1333,

1335-36 (11th Cir. 2001); United States v. Garcia-Martinez,

254 F.3d 16, 19-20 (1st Cir. 2001); United States v. De La

Pena-Juarez, 214 F.3d 594, 597-99 (5th Cir.), cert. denied,

531 U.S. 983 (2000); United States v. Grajales-Montoya, 117

F.3d 356, 366-67 (8th Cir.) (explaining the “ruse” exception,

but declining to adopt it because the defendant would not

have qualified for the exception), cert. denied, 522 U.S. 1007

(1997); United States v. Pena-Carrillo, 46 F.3d 879, 883 (9th

Cir.), cert. denied, 514 U.S. 1122 (1995). “Under th[is] ruse

exception, a civil detention triggers the Speedy Trial Act’s

time limit when federal criminal officials collude with civil

authorities to detain an individual pending criminal charges,

such that the primary or exclusive purpose of civil detention

is to hold the individual for future prosecution. . . . [T]he

Speedy Trial Act’s time limit is not triggered by the fact that

the INS is conducting a reasonable investigation in order to

decide whether the reentrant should be prosecuted or deported

without prosecution.” Dyer, 325 F.3d at 468-69.

Similarly, several circuits have held that Fed. R. Crim. P.

5(a) does not generally apply to aliens held in civil detention,

absent evidence of collusion between immigration and

prosecution authorities. Id. at 470; United States v.

Encarnacion, 239 F.3d 395, 398-99 (1st Cir.), cert. denied,

532 U.S. 1073 (2001); United States v. Perez-Perez, 337 F.3d

990, 996-97 (8th Cir.), cert. denied, 124 S. Ct. 336 (2003);

United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000),

cert. denied, 531 U.S. 1200 (2001).

On August 31, 2001, Garcia-Echaverria was placed in

Sandusky County Jail pursuant to an INS detainer. On

September 4, 2001,INSOfficer Hamulak interviewed GarciaEchaverria regarding his prior removal and subsequent

reentry. For purposes of this appeal, we will assume that
No. 03-3655 United States v. Garcia-Echaverria 19

15Although in United States v. Salgado, 250 F.3d 438, 454 (6th Cir.),

cert. denied, 534 U.S. 916 (2001), we held that the thirty-day rule

contained in § 3161(b) does not begin to run until a charging document

has been filed, we do not find the absence of a charging document

dispositive in this case. We note that it may be appropriate to create an

exception to Salgado’s holding — that the thirty-day rule does not begin

to run until a charging document has been filed — for situations where

there is evidence that collusion between deportation and prosecution

authorities led to a delay in filing formal charges and a simultaneous

period of prolonged detention. See, e.g., United States v. Drummond, 240

F.3d 1333, 1335-36 (11th Cir. 2001). We need not announce such an

exception in this case, as the delay was less than thirty days.

16Garcia-Echaverria was initially placed in detention on Friday,

August 31, 2001, and was first interviewed by Hamulak on Tuesday,

September 4, 2001, which due to the intervening Labor Day weekend was

the first workday following Garcia-Echaverria’s arrest.

§ 3161(b) of the Speedy Trial Act applies to persons held in

detention and awaiting removal, when there is evidence of

collusion between deportation and prosecution authorities.

15

The events that Garcia-Echaverria points to as evidence that

he was being held for criminal prosecution — giving him

Miranda warnings, taking his fingerprints, and sending him

a fax informing him that he was being held for prosecution —

all occurred on or after September 4, 2001. Assuming

without deciding that these events demonstrate collusion,

Garcia-Echaverria was indicted on October 3, 2001, within

thirty days of September 4, 2001. Any evidence of collusion

does not retroactively convert Garcia-Echaverria’s detention

prior to September 4, 2001 into a criminal arrest.16 Nor does

the fact that the INS failed to remove Garcia-Echaverria on

the same day that he was apprehended demonstrate that his

detention prior to September 4, 2001 was a criminal arrest.

Therefore, § 3161(b) of the Speedy Trial Act was not

violated, and the district court properly denied GarciaEchaverria’s motion to dismiss his indictment on that basis.

While a finding of collusion between the prosecution and

deportation authorities would indicate that Fed. R. Crim. P.

20 United States v. Garcia-Echaverria No. 03-3655

17On appeal, Garcia-Echaverria has not explicitly argued that his

detention was unlawful due to the fact that he was arrested without a

warrant and not given a probable-cause determination within forty-eight

hours as required by County of Riverside v. McLaughlin, 500 U.S. 44, 56-

57 (1991). It is not entirely clear to what extent the McLaughlin rule and

Fed. R. Crim. P. 5(a) overlap. In this case, however, any violation of the

McLaughlin rule would not require dismissal of the indictment. United

States v. Fullerton, 187 F.3d 587, 590-92 (6th Cir. 1999) (suggesting that

the proper remedy is either application of the exclusionary rule or a

Bivens action), cert. denied, 528 U.S. 1127 (2000).

5(a) was violated, Garcia-Echaverria would not be entitled to

have his indictment dismissed on that basis.17Typically, the

appropriate remedy for a violation of Fed. R. Crim. P. 5(a) is

the suppression of involuntary statements and the fruits of

such statements. Mallory v. United States, 354 U.S. 449, 453

(1957); McNabb v. United States, 318 U.S. 332, 341-47

(1943); Dyer, 325 F.3d at 470 n.2; United States v. Barlow,

693 F.2d 954, 958 (6th Cir. 1982), cert. denied, 461 U.S. 945

(1983); 1 Charles Alan Wright, Federal Practice and

Procedure: Criminal §§ 72-73, 75 (3d ed. 1999). GarciaEchaverria has not indicated what evidence should be

suppressed as the result of any violation of Fed. R. Crim. P.

5(a). While suppression of evidence in some cases may

ultimately lead to the reversal of a conviction, see, e.g.,

McNabb, 318 U.S. at 347, Garcia-Echaverria could have been

convicted of unlawful reentry absent any statements that he

made while he was unlawfully detained. Therefore, even if

we were to assume that Fed. R. Crim. P. 5(a) was violated,

the district court properly denied Garcia-Echaverria’s motion

to dismiss his indictment on that basis.

III. CONCLUSION

For the foregoing reasons, we AFFIRM GarciaEchaverria’s conviction.