Irving v. Lynch et al

Filing 21

DECISION AND ORDER denying petitioner's motion for reconsideration 13 as moot. The petition is dismissed and petitioner's leave to appeal as a poor person is denied. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 11/29/2017. (Chambers mailed a copy of the decision and order to petitioner, Lester P. Irving). (CMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
LESTER P. IRVING, A31-288-133,
Petitioner,
v.

DECISION AND ORDER
15-CV-824-V

JEFFERSON B. SESSIONS III, Attorney
General of the United States; THOMAS P.
BROPHY, Acting Director, Buffalo Field
Office, Enforcement and Removal
Operations, U.S. Immigration and Customs
Enforcement; DEPARTMENT OF
HOMELAND SECURITY;TODD
TRYON, Facility Director, Buffalo Federal
Detention Facility and ORAL PASCOE, Security
Attache for the Jamaican Embassy,
Respondents. 1
____________________________________

The pro se petitioner, Lester P. Irving, seeks reconsideration of a decision and
order issued on January 19, 2016, by United States District Judge John T. Curtin,
denying his petition for a writ of habeas corpus and dismissing the case. 2 In his petition
for a writ of habeas corpus, the petitioner sought relief from his continued administrative
custody and detention pending removal under 28 United States Code Section 2241.
For the reasons set forth below, the petitioner’s motion for reconsideration is denied as
moot.

1

The Clerk of Court shall amend the caption as set forth above. See Fed. R.
Civ. P. 25(d) (automatic substitution of public officers).
2

This case was transferred to the undersigned on July 25, 2016, due to the
retirement of Judge Curtin.

The Court incorporates by reference the "factual background" and "procedural
history" as set forth in Judge Curtin’s decision and order signed on January 13, 2016,
and filed on January 19, 2016. See Docket Item 11 at 2-7. On February 2, 2016, Irving
filed the instant motion for reconsideration. Docket Item 13. As directed by Judge
Curtin, the respondents filed their response in opposition to the motion for
reconsideration on March 2, 2016. Docket Items 15 and 16. On March 21, 2016, the
petitioner filed a reply memorandum. Docket Item 18. In its supplemental affidavit filed
on July 27, 2016, the respondents informed this Court that under the authority of a
warrant of removal and deportation, the petitioner was removed from the United States
to Jamaica on June 30, 2016. Docket Item 19. Counsel for the respondents has
submitted a copy of the United States Department of Homeland Security "Warrant of
Removal/Deportation" verifying the petitioner’s removal. Docket Item 19-1.
Accordingly, because Irving has been removed and no longer is in the custody of
the Department of Homeland Security, his motion for reconsideration of the dismissal of
his petition is moot. 3

3

See Arthur v. DHS/ICE, No. 09-CV-6130-CJS-VEB, at 5 (W.D.N.Y. April 15,
2010) (Docket Item 19, Report and Recommendation) (finding petition for writ of habeas
corpus seeking release from detention pending removal to be moot upon removal of
petitioner); Masoud v. Filip, 2009 WL 223006 (W.D.N.Y. Jan. 27, 2009) (accepting
Report and Recommendation of United States Magistrate Judge Victor E. Bianchini)
(finding petition for a writ of habeas corpus filed under 28 United States Code
Section 2241 seeking release from detention pending removal to be moot upon release
of petitioner from detention pursuant to order of supervision); see also Leybinsky v.
United States Immigration and Customs Enforcement, 553 Fed. Appx. 108 (2d Cir.,
Feb. 10, 2014) (summary order) (finding that petitioner’s release from ICE custody
pending removal pursuant to final order of removal moots petition for writ of habeas
corpus, pursuant to 28 United States Code Section 2241, and "capable of repetition yet
evading review" exception to mootness doctrine does not apply);
2

The Clerk of Court is directed to forward a copy of this order to petitioner at the
address set forth on the Western District of New York docket, 031288133 Old Porus
Road, Porius Manchester, WI, Jamaica.
The Court certifies under 28 United States Code Section 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, 443-45 (1962).
The 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 Federal Rule of Appellate Procedure 24.
This Court DENIES as moot the motion for reconsideration; DISMISSES the
petition; and DENIES leave to appeal as a poor person.
SO ORDERED.

Dated: November 29, 2017
Buffalo, New York

s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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 [petitioner] 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.").
3