Gao v. Holder et al
-CLERK TO FOLLOW UP---DECISION AND ORDER granting Respondents' Motion to Dismiss, and the Petition is dismissed. Leave to appeal as a poor person is denied. Petitioner must file a notice of appeal within 60 days of the date of the judgment of this action with the U.S. Court of Appeals for the Second Circuit. Signed by Hon. John T. Curtin on 5/8/2013. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
XIANG LE GAO, A47-003-256,
ERIC H. HOLDER, Attorney General
of the United States, et al.,
Petitioner, Xiang Le Gao, filed a petition for habeas corpus relief, pursuant to 28
U.S.C. § 2241, challenging his continued administrative detention in the custody of the
Department of Homeland Security/Immigration and Customs Enforcement (collectively,
“DHS”) pending removal to his native country. Item 1.1 Respondents have filed a
motion to dismiss the petition as moot inasmuch as petitioner has been released from
administrative custody pursuant to an Order of Supervision and Addendum executed on
April 26, 2013. Item 10 (Affidavit of Gail Y. Mitchell, Esq.), ¶¶ 2-4. Respondents’
counsel has submitted a copy of the Order and Addendum verifying the petitioner’s
release and the conditions of supervision imposed. Id., Exh. A (Item 10-1).
Because petitioner could not and did not challenge his final order of removal in this Court, a stay of
removal was not entered. See, e.g., Sikder v. Gonzalez, 2006 WL 1149153, at *5 (D. Col., April 28 ,2006)
(“Nevertheless, pursuant to the [REAL ID] Act, this court is without jurisdiction to hear the petitioner’s claims
or to grant him the relief he seeks in his motion, such as a stay of the order of removal.”) (Order Affirming and
Adopting Magistrate Judge’s Report and Recommendation) (citations omitted); Morillo v. DHS & Bice
Detention Center, 2006 WL 1007645, at *1 (N.D.N.Y., April 17, 2006) (“[m]oreover, to the extent that Petitioner
is only seeking a stay of his removal, this Court would also be without jurisdiction to address this request.”);
Aime v. Department of Homeland Security, 2005 WL 1971894, *1 (W.D.N.Y. Aug. 16, 2005) (“since petitioner
challenges an order of removal within the meaning of the REAL ID Act, § 106(b) . . . this Court has no
jurisdiction to review the merits of the petition or to stay the order of removal.”).
Accordingly, in light of the fact that petitioner no longer is in DHS’ custody, the
relief requested in the petition has been granted, and the petition has been rendered
moot. Respondents’ motion to dismiss the petition is therefore granted, and the petition
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this judgment would not be taken in good faith and therefore denies leave to
appeal as a poor person. Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk's Office, United States
District Court, Western District of New York, within sixty (60) days of the date of
judgment in this action. Requests to proceed on appeal as a poor person must be filed
with the United States Court of Appeals for the Second Circuit in accordance with the
requirements of Rule 24 of the Federal Rules of Appellate Procedure.
IT HEREBY IS ORDERED, that the petition is dismissed; and
FURTHER, that leave to appeal as a poor person is denied.
See Arthur v. DHS/ICE, No. 09-CV-6130-CJS-VEB (W.D.N.Y. April 15, 2010) (Dkt. #19, Report and
Recommendation) (petition for a writ of habeas corpus seeking release from detention pending removal moot
upon removal of petitioner); Masoud v. Filip, 2009 WL 223006 (W.D.N.Y., January 27, 2009) (confirming
Report and Recommendation of U.S.M.J. Victor E. Bianchini) (petition for a writ of habeas corpus filed under
28 U.S.C. § 2241 seeking release from detention pending removal moot upon release of petitioner from
detention pursuant to an Order of Supervision). See also So v. Reno, 251 F. Supp. 2d 1112, 1124 (E.D.N.Y.
2003) (“[petitioner’s] challenge to the lawfulness of the length of time that he has been held in the physical
custody of the INS is moot. Since Mr. So has already been deported, it is impossible to grant his request for
supervised release or release on bond or supervision until he can be deported.”).
_______\s\ John T. Curtin________
JOHN T. CURTIN
United States District Judge
May 8, 2013
Buffalo, New York
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