Antwi v. Lynch et al
DECISION AND ORDER granting respondents' motion to dismiss the petition on grounds of mootness 9 . 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, Michael Antwi). (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL ANTWI, A073-149-503,
DECISION AND ORDER
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; and TODD
TRYON, Facility Director, Buffalo Federal
The pro se petitioner, Michael Antwi, seeks relief from his continued
administrative custody/detention pending removal under 28 United States Code
Section 2241. For the reasons set forth below, the respondents’ motion to dismiss is
granted, and Antwi’s petition is dismissed as moot.
On February 27, 2015, after he was released from custody by the New York
State Department of Corrections and Community Supervision, Antwi was taken into
custody by the U.S. Department of Homeland Security, Immigration and Customs
Enforcement. See Docket Item 1. Following removal proceedings, on or about June
19, 2015, Antwi was ordered removed to his native country, Ghana. Id. His actual
The Clerk of Court shall amend the caption as set forth above. See Fed. R.
Civ. P. 25(d) (automatic substitution of public officers).
removal took some time, however, and on December 21, 2015, Antwi filed the instant
petition challenging his continued administrative custody/detention pending removal.
The respondents now have moved to dismiss the petition as moot because Antwi
was removed to Ghana on or about August 29, 2017. Docket Items 9 and 9-1. 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
Accordingly, because Antwi now has been removed and no longer is in the
custody of the United States Department of Homeland Security, his petition is moot, the
respondents’ motion to dismiss the petition is granted, and the petition is dismissed. 3
Because Antwi did not challenge his final order of removal in this Court, and
because this Court would not have had jurisdiction to address such a challenge had it
been brought, a stay of removal was not entered. See Docket Item 2; see, e.g., Morillo
v. DHS & Bice Det. Ctr., 2006 WL 1007645, at *1 (N.D.N.Y. Apr. 17, 2006) ("Moreover,
to the extent that [p]etitioner is only seeking a stay of his removal, this Court would also
be without jurisdiction to address this request."); Aime v. DHS, 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, [Section] 106(b) . . . this Court has no jurisdiction to review
the merits of the petition or to stay the order of removal.").
See Arthur v. DHS/ICE, 713 F. Supp. 2d 179 (W.D.N.Y. 2010) (accepting report
and recommendation) (finding petition for a 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)
(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. ICE,
553 Fed. Appx. 108 (2d Cir. 2014) (summary order) (finding that petitioner’s release
from ICE custody pending removal following final order of removal moots petition for a
writ of habeas corpus under 28 United States Code Section 2241, and "capable of
repetition but evading review" exception to mootness doctrine does not apply).
The Court hereby 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 (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 DISMISSES the petition and DENIES leave to appeal as a poor
Dated: November 29, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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?