OPINION

DENNY CHIN, United States District Judge.

Petitioner Miguel Alcaide-Zelaya, an alien currently held in custody pending removal, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, vacating his order of deportation and declaring him eligible to apply for a waiver of deportation pursuant to former § 212(c) of the Immigration and Nationality Act ("INA"). Pursuant to a second petition for a writ of habeas corpus, petitioner also seeks a writ of mandamus enjoining his indefinite incarceration in the custody of the Immigration and Naturalization Service ("INS") and compelling INS to act on his request for release on bond. For the reasons stated below, the first petition is granted to the extent that INS is ordered to permit petitioner to apply for a § 212(c) waiver. The second petition is dismissed without prejudice for failure to exhaust administrative remedies with the Board of Immigration Appeals (the "BIA").

BACKGROUND

Petitioner, a native of Chile, entered the United States as a lawful permanent resident on July 29, 1977. In March 1986, he pled guilty in the United States District Court for the District of New Jersey to conspiracy to distribute cocaine and possession with intent to distribute cocaine and was sentenced to three years' imprisonment. Based on petitioner's plea, on July 29, 1986, INS ordered petitioner to show cause why he should not be deported pursuant to INA § 241(a)(11). (Declaration of Krishna Patel dated September 13, 1999 ("Patel Decl.") Ex. B at 1). On June 7, 1988, INS terminated petitioner's deportation proceedings, apparently because INS lacked petitioner's record of conviction. (Id. at 18).

Some ten years later, petitioner took a trip to Chile. When he returned to the United States at John F. Kennedy International Airport in New York on October 3, 1998, petitioner sought readmission to the United States as a returning lawful permanent resident. During his inspection at the airport, the government determined that petitioner was wanted on an active warrant in New Jersey for possession of stolen property. (Id. at 8-9). Petitioner was immediately taken into state custody in New Jersey. (Id.). It does not appear from the record before me that petitioner was processed in connection with that warrant.

Nevertheless, INS took the opportunity to re-institute deportation proceedings against petitioner based on his 1986 plea. On November 11, 1998, INS took custody of petitioner from the New Jersey authorities. (Id.). From its Newark, New Jersey office, INS issued and served on petitioner a Notice to Appear before an immigration judge in Oakdale, Louisiana charging that he was inadmissible to the United States under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182 (a)(2)(A)(i)(II), as an alien convicted of a controlled substance violation and INA § 212(a)(2)(C), 8 U.S.C. § 1182 (a)(2)(C), as an alien known or believed to be involved in illicit trafficking of a controlled substance. (Record ("R.") annexed as Ex. A to the Patel Decl. at 11, 104-08; Patel Decl. Ex. B at 8)

INS filed the notice in Oakdale and, at some point thereafter, transferred petitioner to Oakdale. A deportation hearing was scheduled for December 21, 1998 in Oakdale and adjourned several times. Petitioner, through counsel, applied for transfer of venue from Oakdale to New York City — his longtime residence — but his motion was denied by the Immigration Judge (the "IJ"). (R. at 41-42). Petitioner also applied for cancellation of his removal pursuant to INA § 240A, 8 U.S.C. § 1229b (a) (1999). (R. at 9-31). On May 10, 1999, the IJ ordered petitioner removed to his native Chile. (R. at 1).

Petitioner reserved the right to appeal the IJ's order of removal to the BIA. (R. at 1). Counsel for petitioner represents that he timely filed an appeal to the BIA on petitioner's behalf. (Transcript of Proceedings July 14, 1999 ("Tr.") at 7-8). INS, however, has no record of an appeal being filed, and counsel admits that his check was never deposited. (Patel Decl. Ex. C; Tr. at 23; Patel Decl. Ex. B. at 11). The time for appeal having expired, on July 14, 1999 INS attempted to effectuate petitioner's removal by taking him to Miami to board an airplane bound for Chile. Before petitioner could be deported, however, he filed the instant petition seeking, inter alia, a stay of deportation. I granted the stay on July 14, 1999 and petitioner was taken back to Oakdale. (Tr. at 40).

On July 26, 1999, petitioner requested that Lynn Underdown ("Underdown"), INS District Director in New Orleans, Louisiana release him from detention on bond. Underdown denied the request on August 27, 1999. Petitioner did not appeal Underdown's decision to the BIA. Instead, on September 24, 1999, petitioner filed a second habeas petition, this time challenging his continued detention.

DISCUSSION

A. First Petition

When petitioner pled guilty to conspiracy to distribute and possession with intent to distribute cocaine, the conviction rendered him deportable under the immigration laws. See INA § 241(a)(11), codified at 8 U.S.C. § 1251 (a)(11) (1990). Under the law in effect at that time, certain aliens otherwise determined to be deportable were entitled to apply to the Attorney General or her delegates for a waiver of deportation under INA § 212(c) See 8 U.S.C. § 1182 (c) (1990);St. Cyr v. INS, No. 99-2614, 2000 WL 1234850, at *4 (2d Cir. Sept. 1, 2000) (INA § 212(c) interpreted to apply to permanent residents in deportation proceedings); see also Yesil v. Reno, 958 F. Supp. 828 (S.D.N.Y. 1997) (describing § 212(c) relief), appeal dismissed as moot, 175 F.3d 287 (2d Cir. 1999). Respondents do not dispute that had INS attempted to deport petitioner in 1988 he would have been eligible to apply to the Attorney General for a waiver of deportation pursuant to § 212(c). Petitioner's 1988 deportation proceedings were terminated, however, and by the time INS reinstituted the proceedings in 1998, Congress had amended the immigration laws.

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996), a section of which "expanded the category of criminal convictions that would render an alien ineligible to apply for § 212(c) relief." St. Cyr, 2000 WL 1234850, at *4; see AEDPA § 440(d). As a result of AEDPA, aliens convicted of drug-related crimes could no longer be granted a § 212(c) waiver. See St. Cyr, 2000 WL 1234850, at *5. On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"), the permanent provisions of which repealed INA § 212(c) altogether. See id. 8 U.S.C. § 1229b (a)(3) (1999).

In his petition for habeas relief, petitioner argues that he was placed in deportation proceedings prior to AEDPA and therefore he should not be precluded from seeking a waiver of deportation pursuant to former INA § 212(c). Respondents argue that because petitioner's original deportation proceedings terminated on June 7, 1988 and began anew in 1998 — after the statutory changes — petitioner is ineligible for § 212(c) relief.

Even assuming respondents are correct that petitioner's deportation proceedings commenced after the enactment of AEDPA, recent Second Circuit case law instructs that "AEDPA § 440(d) and IIRIRA § 304 do not apply to pre-enactment guilty pleas or pleas of nolo contendere because such an application would upset reasonable, settled expectations and change the legal effect of prior conduct." St. Cyr, 2000 WL 1234850, at *15. Accordingly, under Second Circuit law petitioner is not barred from seeking § 212(c) discretionary relief.

At a conference held on October 23, 2000, the government conceded that if petitioner's case remains in the Second Circuit, St. Cyr is controlling. The government argues, however, that: (1) the petition should be dismissed because this Court lacks personal jurisdiction over the only proper respondent, petitioner's custodian — Underdown; (2) in the alternative, the petition should be transferred to the Western District of Louisiana because venue does not properly lie in the Southern District of New York; and (3) the petition should be dismissed for lack of subject matter jurisdiction due to petitioner's failure to exhaust his administrative remedies with the BIA.

1. Personal Jurisdiction

Petitioner names as respondents: Janet Reno, Attorney General of the United States; Edward McElroy, New York District Director for INS; Underdown, Louisiana District Director for INS; and INS itself. "A writ of habeas corpus is directed to the custodian of a detainee, and a writ may not issue where a court lacks personal jurisdiction over the custodian." Arias-Agramonte v. Commissioner of INS, No. 00 Civ. 2412, 2000 WL 1059678, at *6 (S.D.N.Y. Aug. 1, 2000) (citing 28 U.S.C. § 2243). Respondents contend that petitioner's custodian is the official in charge of the facility that has day-to-day control over him and who can "produce [his] actual body." Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); see Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998), cert. denied sub nom. Reno v. Navas, 536 U.S. 1004 (1999). They further contend that Underdown is the official with day-to-day control over petitioner and this Court lacks personal jurisdiction over her because she cannot be served with process in New York. (Resp. Mem. p. 8-9).

Petitioner does not argue that this Court has jurisdiction over Underdown; indeed, it does not appear that in this case Underdown has "purposefully availed [herself] of the privilege of conducting business in New York," thereby subjecting herself to New York's long-arm statute.Henderson, 158 F.3d at 124; compare Perez v. Reno, No. 97 Civ. 6712, 2000 WL 686369, at *3 (S.D.N Y May 25, 2000) (court has personal jurisdiction over New Orleans director), with Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 209 (S.D.N.Y. 1997) (court lacks personal jurisdiction over New Orleans director). Instead, petitioner contends that the Attorney General is also his legal custodian and that personal jurisdiction over her is proper.

The question of whether the Attorney General is a proper custodian of an alien detained in an INS facility has divided the courts in the Southern and Eastern Districts of New York. See Arias-Agramonte, 2000 WL 1059678, at *7-9 (discussing split in authority and citing case);compare Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (Attorney General is proper respondent); Mojica v. Reno, 970 F. Supp. 130, 166 (E.D.N Y 1997) (same); Nwankwo v. Reno, 828 F. Supp. 171, 174 (E.D.N Y 1993) (same); with Guerrero-Musla v. Reno, No. 98 Civ. 2779, 1998 WL 273038, at *1 (S.D.N.Y. May 28, 1998) (Attorney General is not proper respondent); Carvajales-Cepeda, 966 F. Supp. at 209 (same); Wang v. Reno, 862 F. Supp. 801, 812-13 (E.D.N.Y. 1994) (same); see also Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994) (Attorney General is not proper respondent); Vasquez v. Reno, 97 F. Supp.2d 142, 150 (D. Mass. Apr. 21, 2000) (following Eastern District cases holding Attorney General is proper respondent). The Second Circuit declined to resolve this "highly complex issue" in Henderson the Court did, however, discuss in depth the doctrinal and practical arguments that weigh both in favor of and against holding the Attorney General to be a proper respondent. Henderson, 157 F.3d at 124-128.

It is unnecessary to reiterate the Second Circuit's thorough analysis here; suffice it to say that in my opinion the reasons the Court articulated in support of the conclusion that the Attorney General is an appropriate respondent are the more persuasive. For example, (1) there is a preference in this area for a "practical," "flexible" approach; (2) the Attorney General has the power to produce petitioner and is undisputably the ultimate decisionmaker on matters concerning INS and petitioner's removal; (3) Congress has "consistently designated the Attorney General as the legal custodian" of aliens such as petitioner, and the Attorney General is "named as a proper respondent in most court actions reviewing the legality of removal orders"; and (4) there is a compelling practical concern that the government can "seriously undermine the remedy of habeas corpus" by detaining so large a number of aliens in one facility that the local district court is overwhelmed by a flood of habeas petitions. Id. at 125-27.

In addition to the convincing arguments raised by the Second Circuit, I add one additional concern. Although traditional venue doctrines should alleviate the concern that aliens will engage in forum shopping if permitted to bring suit against the Attorney General, it is clear that absent such a rule, there will be almost no check on the government's ability to forum shop. It is, after all, the government that directs where an alien is detained. Here, the government arrested petitioner, a long-time resident of New York, in New York, and then re-located him to a detention facility in Louisiana. The government now argues that petitioner can only seek relief in Louisiana, where petitioner has no ties and where, as the government concedes, petitioner's claims will be dismissed because of Fifth Circuit law. The government's arguments are rejected. 2. Venue

Respondents argue in the alternative that the habeas petition should be transferred to the Western District of Louisiana because venue does not lie in the Southern District of New York. In a habeas proceeding, venue is not fixed by statute; rather, a district court must apply "traditional venue considerations" to determine whether venue is proper.Arias-Agramonte, 2000 WL 1059678, at *9. These considerations include: "(1) the location where the material events took place, (2) where records and witnesses pertinent to the claim are likely to be found, (3) the convenience of the forum for respondent and petitioner, and (4) the familiarity of the court with the applicable laws." Id. (quoting Mojica, 970 F. Supp. at 167); see Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-94 (1973).

Here, venue is undoubtedly proper in the Southern District of New York. First, petitioner was a longtime resident of New York, New York (Supplemental Affidavit of Jorge Guttlein dated Sept. 22, 1999, Ex. D) and therefore "should have his case decided under Second Circuit law."Arias-Agramonte, 2000 WL 1059678, at *9 (quoting Mojica, 970 F. Supp. at 168). Second, petitioner's original deportation proceedings commenced and were terminated in New York and his second brush with INS began when he was detained in John F. Kennedy International Airport in New York upon his return to the United States in 1998. As a result of petitioner's connections with New York, any witnesses or evidence petitioner would require to establish the merit of his claim for 212(c) relief would be located in New York. Third, petitioner's current counsel is located in New York. Fourth, there is no indication that petitioner had any connection with Louisiana prior to being sent to an INS detention facility located there. Fifth, this forum is just as convenient for respondents as the Western District of Louisiana would be and there is no indication that respondents would be prejudiced in any way by being required to litigate in this Court. Sixth, this Court is certainly familiar with the applicable laws. Accordingly, venue is proper in this district.

3. Failure to Exhaust

Respondents argue that this Court lacks subject matter jurisdiction over the petition because petitioner failed to exhaust his administrative remedies by appealing his order of removal to the BIA. Petitioner asserts that he did timely file an appeal but, inexplicably, the BIA neither processed his papers nor deposited his check. Petitioner further argues that, in any event, exhaustion is unnecessary where the BIA's decision is "predetermined" against him and the BIA is incapable of hearing his constitutional claims.

I accept counsel's representations that petitioner did timely appeal the IJ's removal order to the BIA; indeed, petitioner has provided evidence in support of counsel's representation. (Petition, Ex. C). It is unclear whether the appeal papers were lost in the mail prior to reaching the BIA or whether they were lost sometime thereafter. In any event, by attempting to timely file an appeal, petitioner has fulfilled the exhaustion requirement; there are no administrative avenues still open to him. Under the circumstances — particularly in the face of evidence of petitioner's attempted filing — the BIA's failure to act on the petition is tantamount to a denial of petitioner's appeal and the agency's actions should be deemed final. More importantly, it would be against the interests of justice to dismiss a meritorious petition for failure to exhaust absent an assurance that if I were to dismiss the petition the BIA would consent to hear the matter. Accordingly, petitioner's first application for habeas relief is granted.

B. Second Petition

Petitioner's second request for habeas relief seeks a writ of mandamus requiring INS to release him or set a reasonable bail. In opposition, respondents argue, inter alia, that this Court lacks subject matter jurisdiction over the petition because petitioner failed to exhaust his administrative remedies by appealing the decision denying him release to the BIA. I agree.

Before an alien may seek habeas review of his continued detention, he is required to exhaust his administrative remedies. See Zambra v. McElroy, No. 98 Civ. 3515, 1999 WL 163565, at *2 (S.D.N.Y. Mar. 24, 1999) (citing cases); Rodriguez v. McElroy, 53 F. Supp.2d 587, 590 (S.D.N Y 1999); Giwah v. McElroy, No. 97 Civ. 2524, 1997 WL 782078, at *3-4 (S.D.N.Y. Dec. 19, 1997); but see Lin v. McElroy, No. 96 Civ. 5933, 1996 WL 546881, at *1-2 (S.D.N.Y. Sep. 26, 1996) ("exhaustion is not required for suits challenging predeportation detention"). Detained aliens under final orders of deportation, like petitioner, "may apply to the District Director for release on bond and, if denied, appeal the District Director's decision to the BIA within ten days." Zambra, 1999 WL 163565, at *2; see Ahmed v. McElroy, No. 97 Civ. 1121, 1998 WL 283283, at *1 (S.D.N.Y. June 1, 1998); 8 C.F.R. § 236.1 (1999). In contrast to the circumstances of his first habeas petition, there is no indication that petitioner ever attempted to file an appeal of his adverse custody determination to the BIA; instead, petitioner erroneously opted to proceed directly to court. It is now too late for petitioner to appeal Underdown's August 27, 1999 decision. Petitioner should instead exhaust his administrative remedies by reapplying for release and appealing any adverse decision to the BIA within ten days. See Zambra, 1999 WL 163565, at *2; Ahmed, 1998 WL 283283, at *1. Until and unless he does so, his petition for habeas relief in this respect is premature.

The fact that petitioner argues that his continued detention violates his constitutional rights does not change this result; if petitioner is successful in obtaining release from custody, his constitutional challenges will be rendered moot. See Ahmed, 1998 WL 283283, at *1; see also Rodriguez, 53 F. Supp.2d at 591 (exhaustion required before presenting constitutional claim). Accordingly, the second petition is dismissed without prejudice to renewal by petitioner upon exhaustion of his administrative remedies.

CONCLUSION

For the foregoing reasons, the first petition for a writ of habeas corpus, docket number 99 Civ. 5102, is granted to the extent that INS is ordered to promptly permit petitioner to apply for a § 212(c) waiver. Petitioner's second habeas petition, docket number 99 Civ. 9999, is dismissed without prejudice to renewal by petitioner upon exhaustion of his administrative remedies. Because petitioner's failure to exhaust in this respect is clear from the record, no certificate of appealability shall issue. The Clerk of the Court is directed to close both cases.

SO ORDERED.