Herrera-Castanola

MEMORANDUM *

Rene Herrera-Castanola, a native and citizen of Mexico, appeals the district court’s dismissal of his habeas petition for lack of jurisdiction. Herrera-Castanola moved from Mexico to Sparks, Nevada with his mother, a United States citizen, when he was two years old. He remained in Sparks, attending school and then working and, eventually, starting a family of his own. His mother and his adoptive father, also a United States citizen, arranged for his legal status as a long-term permanent resident but, due to INS misconduct, Herrera-Castanola never became a citizen.

Herrera-Castanola was convicted in 1997 for possession of credit cards without permission and, in 1998, for uttering a false instrument. As a result, he was ordered deported by an immigration judge (IJ). He did not appeal the IJ’s adverse determination and was deported to Mexico.

Having lived in the United States virtually all his life, Herrera-Castanola knew nothing of Mexico, did not have a strong grasp of the Spanish language, and had no family there. He had a difficult time adjusting to his new life. After he had been in Mexico for nearly two years, Herrera-Castanola learned that his mother had become…

dissenting:

Here, in a nutshell, is what happened and why there is no basis upon which this court can vacate and remand this action to the district court:

• Herrera-Castanola was convicted in 1997 of possession of credit cards without permission and in 1998 of uttering a false instrument. He was ordered removed on August 4, 1999 and was removed.

• He reentered the United States. As a result, the government indicted him for illegal reentry pursuant to 8 U.S.C. § 1326 and the INS reinstated the 1999 removal order. On May 4, 2004, the district court dismissed the indictment, finding that the government’s misconduct in the 1970s estopped it from arguing that Herrera-Castanola was an alien for purposes of the criminal proceeding.

*632 • The Bureau of Immigration and Customs Enforcement (BICE) served a notice of reinstatement of the 1999 removal order on Herrera-Castanola, and detained him.

• On May 5, 2004 Herrera-Castanola filed a petition for writ of habeas corpus in district court. His petition requests an order restraining removal while the petition is pending and release from custody during pendency of this lawsuit.

• On June 16, 2004, the district court ruled that BICE is…