United States District Court, W.D. New York
June 16, 2005.
JOSE PEREZ, also known as Yeiro Christian Mendez-Lora, also known as Mendez Lora, also known as Yeiro Christian, Petitioner,
BUREAU of IMMIGRATION and CUSTOMS ENFORCEMENT (BICE), Respondent.
The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
Petitioner commenced this action on November 9, 2004, by filing
a petition ("the Petition") pursuant to 28 U.S.C. § 2241, seeking
habeas relief. Specifically Petitioner, who has received a grant
of Conditional Parole for Deportation Only from the New York
State Board of Parole, seeks an order compelling the Department
of Homeland Security ("the DHS") Board of Immigration and Customs
Enforcement ("BICE") to take custody of Petitioner and remove him
from the United States to Dominican Republic. Petition at 4-5. On
February 9, 2005, the parties to this action consented to proceed
before the undersigned.
On February 25, 2005, Respondent filed a motion to dismiss the
action for mootness or, alternatively, lack of jurisdiction.
(Doc. No. 11). The motion was supported by the attached affidavit
of Assistant United States Attorney Gail Y. Mitchell ("Mitchell
Affidavit") and a separately filed Memorandum of Law (Doc. No.
12) ("Respondent's Memorandum"). Respondent explained in support
of the motion to dismiss that on February 4, 2005, the DHS took
custody of Petitioner and Petitioner's removal to Dominican
Republic was scheduled for February 23 or 24, 2005, thereby rendering the Petition moot; alternatively, the relevant statute
rendered the court without jurisdiction over the Petition.
Mitchell Affidavit ¶¶ 6-9; Respondent's Memorandum at 36-. On
March 16, 2005, Assistant United States Attorney Gail Y. Mitchell
filed a second affidavit (Doc. No. 13) ("Second Mitchell
Affidavit"), advising that on February 23, 2005, Petitioner was
removed to Dominican Republic. Second Mitchell Affidavit ¶ 5.
Attached as Exhibit A to the Second Mitchell Affidavit is
documentation of Petitioner's removal, consisting of a copy of a
computer printout from the DHS BICE computer record system
confirming Petitioner's removal. According to Mitchell, as the
relief requested in the Petition has been granted, the Petition
should be dismissed as moot. Second Mitchell Affidavit ¶¶ 7-8. By
Order filed March 18, 2005, Petitioner was given until April 22,
2005 to respond to the motion to dismiss. On March 30, 2005, the
March 18, 2005 Order sent to Petitioner was returned as
undeliverable as Petitioner had been deported.
The court is without jurisdiction over this action.*fn1 In
particular, with respect to a district court's jurisdiction to
review habeas claims brought by aliens, 8 U.S.C. § 1252(g) ("§
1252(g)") provides that "no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings,
adjudicate cases or execute removal orders against any alien under this chapter." See Reno v. American-Arab
Anti-Discrimination Committee, 525 U.S. 471, 482-85 (1999)
(construing § 1252(g) as depriving federal courts of jurisdiction
over the three discrete actions which the Attorney General may
take, including decisions to "commence proceedings, adjudicate
cases, or execute removal orders."). In the instant case,
petitioner's challenge to Respondent's failure to take him into
custody so as to execute the removal order is, in actuality, a
challenge to the Attorney General's decision regarding the
execution of the removal order pending against Petitioner. As
such, the court is without jurisdiction over the Petition.
Alternatively, as Petitioner has already received the relief
requested in the Petition, i.e., that the DHS BICE take custody
of Petitioner and removed him to Dominican Republic, the Petition
Respondent's motion to dismiss the petition for lack of
jurisdiction and, alternatively, for mootness, is GRANTED and the
Petition is DISMISSED. The Clerk of the Court is directed to
close the file.
Any petition for permission to appeal with the Circuit Clerk,
United States Court of Appeals for the Second Circuit, New York,
New York, must be filed within sixty (60) days of the date of
judgment in this action. See Fed.R.App. 5(a)(1) & (2).
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 Rule 24 of the Federal Rules
of Appellate Procedure.