Neziri v. Johnson et al
Filing
34
Judge Indira Talwani: ORDER entered denying 31 Motion to Expedite; denying 32 Motion to Stay (Talwani, Indira)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GERONT NEZIRI,
Plaintiff,
v.
JEH JOHNSON, et al.,
Defendants.
*
*
*
*
*
*
*
*
*
Civil Action No. 15-cv-13282-IT
ORDER
March 4, 2016
TALWANI, D.J.
Before the court are Plaintiff’s Motion for Emergency Hearing [#31] and Plaintiff’s
Motion for Temporary Stay of Removal [#32]. Plaintiff Geront Neziri brings these motions in
response to Defendants’ Notice of Intent to Transfer for Removal [#30], filed yesterday, which
gave notice of the Department of Homeland Security’s intent to remove Plaintiff within seven
days. Plaintiff seeks an expedited hearing to “require the Defendants to defend their efforts to
remove Plaintiff while this case is pending before the Court,” Pl.’s Mot. Emergency Hearing, and
requests a stay of removal to “allow the Court time to rule on the Defendants’ pending motions
and to prevent Defendants from removing the Plaintiff while issues of his custody are pending
before the Court.” Pl.’s Mot. Temporary Stay Removal. For reasons set forth below, Plaintiff’s
motions are DENIED.
The underlying Complaint for Declaratory Judgment and Petition for Writ of Habeas
Corpus [#1] (hereinafter “Complaint”) alleges that Plaintiff is an Albanian citizen facing removal
who has been detained since December 2013. Compl. ¶ 13. Plaintiff sought declaratory
judgment declaring his asylum-only proceedings unlawful and an order terminating those
proceedings and compelling Defendants to re-institute removal proceedings. Plaintiff also
sought habeas corpus relief to seek release from prolonged and indefinite detention.
Defendants’ pending Motion to Dismiss / Motion for Summary Judgment sought
dismissal of Plaintiff’s demand for declaratory judgment on the ground that this court lacks
jurisdiction to address that demand. Defendants also sought summary judgment on the petition
for writ of habeas corpus, arguing that the length of Plaintiff’s detention is constitutionally
permissible. At the scheduling conference in the instant matter, Plaintiff’s counsel informed the
court that he intended to file with the First Circuit a Petition for Direct Review of the recent
decision of the Board of Immigration Appeals. Accordingly, this court set a hearing for March
29, 2016, but only as to the motion for summary judgment of the habeas petition.
To the extent that Plaintiff’s request for emergency relief is tied to his claim that removal
is improper, this court does not have jurisdiction. Under the Real ID Act of 2005, 8 U.S.C.
§ 1101 et seq., review of removal orders lies with the First Circuit, not this court, through a
Petition for Direct Review. 8 U.S.C. §§ 1252(a)(5), (b)(2), (9). Plaintiff filed such a petition
with the First Circuit on January 22, 2016. Accordingly, this court does not have jurisdiction to
consider Plaintiff’s request for emergency relief to allow for review of the removal order.
As to the challenge to the duration of Plaintiff’s detention, the government’s notice of its
intent to remove Plaintiff does not compel this court to hear the petition on an emergency basis.
Rather, the removal of Plaintiff, should it occur, may moot his detention challenge. That concern
does not provide grounds to defeat removal.
For the foregoing reasons, Plaintiff’s Motion for Emergency Hearing [#31] and Plaintiff’s
Motion for Temporary Stay of Removal [#32] are DENIED.
2
IT IS SO ORDERED.
March 4, 2016
/s/ Indira Talwani
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?