Chen v. United States et al

Filing 11

DECISION AND ORDER granting 9 MOTION NOTICE OF MOTION re 1 Petition for Writ of Habeas Corpus filed by United States and dismissing the petition. The Clerk of Court is hereby directed to close this case. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 9/7/2018. (APG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

XIAO LIANG CHEN,
Petitioner,
v.

17-CV-601
DECISION AND ORDER

JEFFREY B. SESSIONS, US
ATTORNEY GENERAL; JOHN F KELLY,
Secretary of Homeland Security;
THOMAS P. BROPHY, ICE ERO Field
Office Director – Buffalo; and ROBERT F.
JUDGE, ICE Assistant Field Officer
Director,
Respondents.

The pro se petitioner, Xiao Liang Chen, seeks relief from his continued
administrative custody and detention pending removal under 28 U.S.C. § 2241. For the
reasons set forth below, the respondents’ motion to dismiss is granted, and Xiao Liang
Chen’s petition is dismissed as moot.
On April 22, 2016, after he was released from custody by the Federal Bureau of
Prisons, Chen was taken into custody by the U.S. Department of Homeland Security,
Immigration and Customs Enforcement. See Docket Item 1. Since April 22, 2016,
Chen was held at the Buffalo Federal Detention Facility awaiting an immigration
decision. Id. His actual removal took some time, however, and on June 30, 2017, Chen
filed the instant petition challenging his continued administrative custody. Id. 1

1

Because Chen 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 1; see, e.g., Morillo

Following removal proceedings on or about November 16, 2017, Chen was removed to
his native country, China. Docket Item 9-1.
The respondents now have moved to dismiss the petition as moot because Chen
was removed to China on or about December 5, 2017. Docket Item 9. 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 9-1.
Accordingly, because Chen 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. 2
The Court hereby certifies under 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).

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.").
2

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 U.S.C. § 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.
App'x 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 U.S.C. § 2241, and "capable of repetition but evading review"
exception to mootness doctrine does not apply).
2

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
person.

SO ORDERED.
Dated:

September 7, 2018
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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