United States of America v. Marco Garcia- Echa Verria

*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 GARCIA-
ECHA VERRIA,
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. Defendant-
Appellant, 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,

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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 Garcia-
Echaverria’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, Garcia-
Echaverria 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
1This 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, Garcia-
Echaverria 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

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No. 03-3655 United States v. Garcia-Echaverria 5
2According to the S.D.N .Y.’s order transferring Garcia-E chaverria’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 Garcia-
Echaverria’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 Garcia-
Echaverria 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 Garcia-
Echaverria 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.

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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, Aguilera-
Enriquez does not restrict courts to an examination of docket
8 United States v. Garcia-Echaverria No. 03-3655
3“RCr 12.0 4 was amended effective January 1, 199 9, to allow 30
days for taking an appeal.” Comm onwealth v. Opell, 3 S.W .747 , 750 n.2
(Ky. Ct. App. 1999).
4That 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. Aguilera-
Enriquez 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

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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, Garcia-
Echaverria’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
5The IIRIRA adopted “the term “remov al,’ which essentially
eliminated a distinction that formerly existed between ‘deportation’
proceedings and ‘exclusion p roceed ings.’ 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 ‘remo val’
proceed ings.” Balogun v. U. S. Att’y Gen., 304 F.3d 130 3, 13 06-0 7 (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 Garcia-
Echaverria’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

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No. 03-3655 United States v. Garcia-Echaverria 11
6Nothing in the Joint Appendix indicates the basis for the Fifth
Circuit’s dismissal for lack of jurisdiction of Garcia-E chaverria’s petition
for review. We have obtained the relevant o rder 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 that Garcia-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 Garcia-
Echaverria’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
7Section 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 pred icate 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).
8Prior to the enactment of the AEDP A and presently, the INA has
included within the d efinition of “aggravated felony,” “illicit trafficking
in a controlled substance (as defined in section 10 2 of the Controlled
Substances Act [21 USC S § 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).
9Section 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, § 30 6(a)(2), 110 Stat.
3009 (1996). W ith some exceptions not relevant here, this jurisdiction-
Circuit of jurisdiction over that petition or render moot the
claims in that petition. Id.
Moreover, when the Fifth Circuit later ruled on Garcia-
Echaverria’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 IIRIRA9 further stripped courts of

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No. 03-3655 United States v. Garcia-Echaverria 13
stripping provision became effective on April 1, 1997, and ap plied to
removal proceedings com mencing on or after that date. Id. at § 309(a).
This jurisdiction-stripping provision applied to G arcia-E chaverria’s
removal proceed ings. Unlike some provisions of the IIRIRA, the
jurisdiction-stripp ing pro visions d id not raise any retroactivity concerns.
Figuero a-R ubio , 108 F.3d 110, 112 (6th Cir. 1997) (noting jurisdiction-
stripping 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 o f the IIRIRA had b ecome effective on April 1,
1997. It is true that removal proceed ings are not “co mmenced” 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 Garcia-
Echaverria 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 Ap ril 1, 1997; the refore, 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 Garcia-
Echaverria 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 79 7, 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 Garcia-
Echaverria 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 Garcia-
Echaverria 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

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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 10 6, 122-29 (2d Cir.
199 8), 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 corp us 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 Garcia-
Echaverria in violation of an effective stay.
The S.D.N.Y.’s docket sheet indicates that Garcia-
Echaverria’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 Garcia-
Echaverria 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

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No. 03-3655 United States v. Garcia-Echaverria 17
1318 U .S.C. § 31 61(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) A ppe arance Upon an Arrest.
(A) A person m aking an arrest within the United States m ust
take the defendant without unnecessary delay before a magistrate
judge, or be fore a state or lo cal jud icial 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 Act13and 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 Garcia-
Echaverria 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, INS Officer Hamulak interviewed Garcia-
Echaverria regarding his prior removal and subsequent
reentry. For purposes of this appeal, we will assume that

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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) d oes 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 do es 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 d etention on F riday,
August 31, 2 001 , and was first interviewed by Hamulak on Tuesday,
September 4, 2001, which due to the intervening Labor Day weekend was
the first workday following Ga rcia-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 Garcia-
Echaverria’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. McLaugh lin, 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) o verlap . 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 (6 th Cir. 1999) (suggesting that
the proper remedy is either application of the exclusionary rule or a
Bivens action), cert. denied, 528 U.S. 112 7 (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). Garcia-
Echaverria 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 Garcia-
Echaverria’s conviction.

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