Yang v. Lynch et al
-CLERK TO FOLLOW UP---DECISION AND ORDER GRANTING 6 Respondents' MOTION to Dismiss the Petition on Grounds of Mootness. The petition is dismissed. Leave to appeal as a poor person is denied. The Clerk is directed to forward a copy of this Order to petitioner at the address set forth in the Order of Supervision. Signed by Hon. John T. Curtin on 12/4/2015. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MR. WEI JIAN YANG,
MRS. LORETTA E. LYNCH, et al.,
Petitioner, Wei Jian Yang, 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. Dkt. #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 and Addendum issued on November
25, 2015. See Dkt. #6 (Affidavit of Gail Y. Mitchell, Esq.), ¶¶ 2-8. Attached to the motion
is a copy of the Order of Supervision and Addendum verifying the petitioner’s release. Id.,
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 enter judgment in favor of respondents.
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; and
FURTHER, that the Clerk of the Court forward a copy of this Order to petitioner at
the address set forth in the Order of Supervision:
164 Mosel Ave.
Staten Island, New York 10304.
See Emeni v. Holder, 2014 WL 347799, at *3 (W.D.N.Y. Jan.31, 2014) (“Because [alien released
pursuant to order of supervision] no longer suffers, or is threatened with, an actual injury traceable to the
respondent and likely to be redressed by a favorable judicial decision, he cannot meet Article III's
case-or-controversy requirement. His petition therefore is moot.” (Internal quotation marks and citation
omitted)); 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).
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
December 2, 2015
Buffalo, New York
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?