Irving v. Philips et al

Filing 46

DECISION AND ORDER. On January 10, 2017, the Court issued a Decision and Order 45 that directed Plaintiff to file with the Court by April 14, 2017 a copy of the written consent of the United States Attorney General or a designee for Plaintiff to re apply for admission into the United States. This deadline has passed and Plaintiff has not communicated with the Court or filed any documents. Accordingly, this case is DISMISSED WITH PREJUDICE for Plaintiff's inability to prosecute. SO ORDERED. A copy of this Order and NEF have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 5/1/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LESTER PAUL IRVING,
Plaintiff,
Case # 15-CV-6413-FPG
v.
DECISION AND ORDER
MICHAEL PHILIPS, et al.,
Defendants.

By Decision and Order dated January 10, 2017, the Court notified pro se Plaintiff Lester
Paul Irving (“Plaintiff”) that it was taking judicial notice of a separate action in this district that
demonstrated that the Department of Homeland Security removed Plaintiff from the United
States on June 30, 2016. ECF No. 45. Thus, as a result of his removal/deportation, Plaintiff is
not legally permitted to be present in the United States and currently resides in Jamaica.
As noted in the January 10, 2017 Order, if this action proceeded Plaintiff would have to
physically appear before the Court for any potential trial to present his claims and to testify in
support of his claims. If he failed to appear, the action would have to be dismissed even if
Plaintiff’s non-appearance was the result of his deportation. Further, since Plaintiff has been
deported or removed from the United States, if he re-entered the United States without the prior
express written permission of the United States Attorney General, Plaintiff would be committing
a felony offense. See 8 U.S.C. § 1326(a). Thus, due to his deportation, the Court noted that it
was unlikely that Plaintiff could ever appear before it to present his claims.
However, the Court was mindful that re-entry of a previously deported alien could be
permitted if “the Attorney General has expressly consented to such alien’s reapplying for
admission.” See 8 U.S.C. § 1326(a)(2). Under this statute, a procedure exists for a deported
alien to be lawfully readmitted to the United States and the Executive Branch has the discretion
to grant re-entry. Because the law affords Plaintiff a way to potentially obtain lawful re-entry

into the United States to appear in person for a trial of this case, the Court allowed him the
opportunity to obtain lawful re-admission to the United States before dismissing his case.
Specifically, the January 10, 2017 Order directed Plaintiff to file with the Court a copy of
the written consent of the United States Attorney General or a designee for Plaintiff to reapply
for admission into the United States. The Order warned Plaintiff that if this written consent was
not filed on or before April 14, 2017, his case would be dismissed for his inability to prosecute.
The April 14, 2017 deadline has passed and Plaintiff has not communicated with the
Court or filed any documents. Because Plaintiff failed to file the written consent of the United
States Attorney General or a designee for him to reapply for admission into the United States, the
Court concludes that Plaintiff cannot appear at any potential trial of this matter. Accordingly,
this case is dismissed. See, e.g., Kuar v. Mawn, No. 08-CV-4401 JFB ETB, 2012 WL 3808620,
at *6 (E.D.N.Y. Sept. 4, 2012) (“The Court concludes that, where there is no reasonable
possibility that a pro se plaintiff can appear at trial because of deportation, the court may dismiss
the case for failure to prosecute after providing plaintiff with a reasonable time to rectify the
order of deportation.”).
CONCLUSION
This case is DISMISSED WITH PREJUDICE for Plaintiff’s inability to prosecute.

IT IS SO ORDERED.
Dated: May 1, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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