Luo v. Sessions et al
Filing
8
DECISION AND ORDER granting 5 MOTION NOTICE OF MOTION TO DISMISS THE PETITION ON GROUNDS OF MOOTNESS re 1 Petition for Writ of Habeas Corpus filed by Department of Homeland Security, Joe Koson, Thomas P. Brophy, Jeff Sessions 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 JIAN LUO, A208-900-897,
Petitioner,
v.
17-CV-755-V
DECISION AND ORDER
JEFF SESSIONS, Attorney General of the
United States; THOMAS P. BROPHY,
Field Office Director for Detention and
Removal, Buffalo Field Office, Bureau of
Immigration and Customs Enforcement;
DEPARTMENT OF HOMELAND
SECURITY; and JOE KOSON, Facility
Director, Buffalo Federal Detention
Facility,
Respondents.
The pro se petitioner, XIAO JIAN LUO, 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 Luo’s
petition is dismissed as moot.
On April 21, 2016, Luo was taken into custody by the U.S. Department of
Homeland Security, Immigration and Customs Enforcement near Hidalgo, Texas. See
Docket Item 1. At that time, Luo claimed a fear of returning to China and sought asylum
in the United States. Id. Following an interview by the Newark Asylum Office in or
about June 2016, the Newark Asylum Office concluded that Luo had demonstrated a
credible fear of persecution or torture. Id. On or about November 30, 2017, Luo was
ordered removed to his native country, People’s Republic of China. Id. His actual
removal took some time, however, and on August 4, 2017, Luo filed the instant petition
challenging his continued administrative custody and detention pending removal. Id. 1
The respondents now have moved to dismiss the petition as moot because Luo
was removed to People’s Republic of China on or about December 5, 2017. Docket
Item 5. 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 5-1.
Accordingly, because Luo 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
1
Because Luo 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
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 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).
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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