Mukoma v. Holder et al

Filing 6

-CLERK TO FOLLOW UP---DECISION AND ORDER granting Respondent's 4 MOTION to Dismiss the Petition on Grounds of Mootness. 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 10/30/2013. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MOHINA NOOR MUKOMA, A94-662-916,
Petitioner,
-v-

13-CV-964-JTC
ORDER

ERIC H. HOLDER, Attorney General
of the United States, et al.,
Respondents.

Petitioner, Muhina Noor Mukoma (a/k/a Noor Mukoma Muhina), 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 (“DHS/ICE”) pending removal. Item 1.1
Respondents have filed a motion to dismiss the petition as moot inasmuch as petitioner
has been released from the custody of DHS/ICE pursuant to conditions of release under
an Order of Supervision on or about October 21, 2013. Item 4 (Affidavit of Gail Y. Mitchell,
Esq.), ¶¶ 4-8. Respondents’ counsel has submitted a copy of the Order of Supervision
verifying the petitioner’s release. Id., Exh. A.

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 has been released from administrative
detention and he no longer is in the custody of the Department of Homeland Security, the
respondents’ motion to dismiss the petition is granted and the petition is dismissed.2
The Clerk of the Court is directed to forward a copy of this Order to petitioner at the
address set forth in the Order of Supervision:
St. Francis Center/Shelter
547 Joseph Avenue
Rochester, NY 14605
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.

2

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).

-2-

SO ORDERED.

_______\s\ John T. Curtin____________
JOHN T. CURTIN
United States District Judge
DATED:

__October 30______, 2013
Buffalo, New York

p:\pending\2013\13-964.2241.moot.oct30.2013

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