McDermott v. Lynch et al
Filing
9
-CLERK TO FOLLOW UP---DECISION AND ORDER granting Respondents' 7 Motion to Dismiss, and the Petition is dismissed. The Clerk is directed to enter judgment in favor of respondents. 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 3/18/2016. (JEC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MERRICK McDERMOTT, A205-708-820
Petitioner,
15-CV-1043-JTC
ORDER
-vMS. LORETTA LYNCH,
MICHAEL PHILIPS, and
TODD TRYON,
Respondents.
Petitioner, Merrick McDermott, 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’s removal was effected on or about March 10, 2016, by the
Department of Homeland Security/Immigration and Customs Enforcement (“DHS/ICE”)
See Dkt. #7 (Affidavit of Gail Y. Mitchell, Esq.), ¶¶ 2-7. Attached to the motion is a copy
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.”).
of the Warrant of Removal/Deportation of DHS/ICE verifying the petitioner’s removal. Id.,
Exh. A.
Accordingly, in light of the fact that the 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.
2
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).
-2-
SO ORDERED.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
DATED:
March 18 2016
Buffalo, New York
-3-
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