Ayala v. Lynch et al
DECISION AND ORDER granting respondents' motion to dismiss the petition on grounds of mootness 11 . 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, Omar Ayala). (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
OMAR AYALA, A205-708-832,
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, Omar Ayala, seeks relief from his continued administrative
custody and detention pending removal under 28 United States Code Section 2241.
For the reasons set forth below, the respondents’ motion to dismiss is granted, and
Ayala’s petition is dismissed as moot.
On February 19, 2015, after he was released from custody by the New York
State Department of Corrections and Community Supervision, Ayala 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 March
25, 2015, Ayala was ordered removed to his native country, Honduras. 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 January 5, 2016, Ayala filed the instant
petition challenging his continued administrative custody and detention pending
removal. Id. 2
The respondents now have moved to dismiss the petition as moot because Ayala
was removed to Honduras on or about May 12, 2017. Docket Items 11 and 11-1.
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 Item 11-1.
Accordingly, because Ayala 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 Ayala 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 3; 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
November 29, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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