Edwin Merritt v. USICE

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, GREENAWAY JR. and FUENTES, Circuit Judges. Total Pages: 3. CLD-192. To the extent that Merrit's response requests time to file a brief, that request is denied.

Case: 18-1139

CLD-192

Document: 003112952838

Page: 1

Date Filed: 06/11/2018

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1139
___________
EDWIN KOTATEE MERRITT,
Appellant
v.

UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-17-cv-03293)
District Judge: Honorable Gene E.K. Pratter
____________________________________
Submitted on a Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 26, 2018
Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges
(Opinion filed: June 11, 2018)
_________
OPINION*
_________
PER CURIAM
Edwin Merritt appeals from an order of the United States District Court for the
Eastern District of Pennsylvania, which dismissed his mandamus petition for lack of

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 18-1139

Document: 003112952838

Page: 2

Date Filed: 06/11/2018

jurisdiction. Because no substantial question is presented by this appeal, we will grant
the Government’s motion to summarily affirm the District Court’s judgment. See Third
Circuit LAR 27.4.
Merritt, a citizen of Liberia, was placed in removal proceedings in 2015 based on a
criminal conviction. Rather than pursue any relief, Merritt, through counsel, executed a
motion for a Stipulated Removal Order (“SRO”), which included a waiver of a hearing
and appeal. See 8 C.F.R. § 1003.25(b). The Immigration Judge granted that motion on
September 16, 2015. Over a year and a half later, Merritt appealed to the Board of
Immigration Appeals (“BIA”). The BIA dismissed his appeal as untimely on July 21,
2017.
In August 2017, Merritt filed the petition for a writ of mandamus at issue here,
pursuant to 28 U.S.C. § 1361. Merritt claimed that United States Immigration and
Customs Enforcement (“ICE”) had a clear duty to return him to the United States because
it had failed to respect an automatic stay of removal that was supposed to be in place
while his appeal was pending with the BIA, pursuant to 8 C.F.R. § 1003.6(a).1 The
Government argued that the District Court lacked jurisdiction to consider the mandamus
petition, and the District Court agreed. Merritt timely appealed.

Notably, that regulation states that “the decision in any proceeding under this chapter
from which an appeal to the Board may be taken shall not be executed during the time
allowed for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall
such decision be executed while an appeal is pending or while a case is before the Board
by way of certification.” 8 C.F.R. § 1003.6(a) (emphasis added).
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Case: 18-1139

Document: 003112952838

Page: 3

Date Filed: 06/11/2018

We have jurisdiction to review the District Court’s final order, and we may affirm
for any reason supported by the record. See 28 U.S.C. § 1291; Brightwell v. Lehman,
637 F.3d 187, 191 (3d Cir. 2011). We agree with the District Court that the sole means
of challenging a removal order is through a petition for review, filed with the appropriate
Court of Appeals. See 8 U.S.C. § 1252(a)(5). Thus, to the extent Merritt was seeking to
challenge his removal order, the District Court lacked jurisdiction to consider his petition.
Moreover, to the extent Merritt argued that ICE violated the automatic stay, that
claim “aris[es] from the decision or action by the Attorney General to . . . execute
removal orders.” 8 U.S.C. § 1252(g). Section 1252(g) explicitly provides that
“notwithstanding . . . [28 U.S.C.] section[] 1361,” “no court shall have jurisdiction to
hear” a claim “arising from” a decision to execute a removal order. So the District Court
lacked jurisdiction for that reason, too. Cf. Silva v. United States, 866 F.3d 938, 940 (8th
Cir. 2017) (pursuant to § 1252(g), district court lacked jurisdiction to consider alien’s
Federal Tort Claims Act claim that Government violated 8 C.F.R. § 1003.6(a)’s
automatic stay by removing him while appeal to BIA was pending).
For the foregoing reasons, we will affirm the District Court’s judgment.2

2

To the extent that Merritt’s response requests time to file a brief, that request is denied.
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