Mellon v. Lynch et al

Filing 12

DECISION AND ORDER: The government's Motion to Dismiss 9 , 10 is granted, as this case has become moot. No certificate of appealability shall issue, as Petitioner has failed to make a substantial showing of a denial of a constitutional right. The Clerk of Court is directed to close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/26/17. A copy of this Decision and Order has been mailed to the pro se Petitioner. (SCE)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HERVE MELLON,
Petitioner.

Case # 16-CV-471-FPG

v.
DECISION AND ORDER
JEFFERSON B. SESSIONS,
Attorney General of the United States, et al.,
Respondents.

Pro se Petitioner Herve Mellon (“Petitioner”) has filed this action seeking a Writ of
Habeas Corpus under 28 U.S.C. § 2241. ECF No. 1. Petitioner alleges that he was ordered
removed to Haiti, but he has not yet been removed, and instead has remained in the custody of
the Department of Homeland Security (“DHS”) for over six months pending his deportation. Id.
Due to this delay, Petitioner seeks to be released from custody.
The government has moved to dismiss this case because Petitioner has now been
deported to Haiti, making this action moot. See ECF Nos. 9, 10. Petitioner did not respond to
the government’s motion.
“Where an alien challenging his detention under 28 U.S.C. § 2241 is released during the
pendency of his petition under an order of supervision, the petition is rendered moot.” Harvey v.
Holder, 63 F.Supp. 3d 318, 320 (W.D.N.Y. 2014).

Here, the uncontroverted evidence

demonstrates that Petitioner was removed from the United States on a flight chartered by
Immigration and Customs Enforcement that departed from the Miami International Airport on
December 20, 2016. See ECF No. 9-1. As such, this action has become moot, and must be
dismissed.

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CON
NCLUSION
N
The governm
T
ment’s Motio to Dismiss (ECF N
on
Nos. 9, 10) is granted, as this case has
e
become moot. No certificate of appealabi
o
ility shall is
ssue, as Peti
itioner has f
failed to ma a
ake
substanti showing of a denial of a constitu
ial
o
utional right . The Clerk of Court is directed to close
this case.
.
IT IS SO ORD
T
DERED.
DATED:
:

Roche
ester, New York
Y
May 26, 2017
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__________
__________
___________
__________
_
HON. FRAN P. GER
ANK
RACI, JR.
Chief Judge
e
United State District C
es
Court

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