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Nwankoso v. Department of Homeland Security

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 25, 2006

JERRY NWANKOSO, PETITIONER,
v.
DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RESPONDENTS.

DECISION AND ORDER

A. The Petition for a Writ of Habeas Corpus.

Currently before the Court is Petitioner Jerry Nwankoso's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Dkt. No. 1. Petitioner apparently is confined at the Federal Detention Center in Batavia, New York. See Dkt. No. 1.

Petitioner has been ordered removed to Nigeria. See Dkt. No. 1 at 3. No other petition for review of the removal order is currently pending.

On May 11, 2005, Congress enacted the Real ID Act (the "Act"), which became effective that same day. See Real ID Act of 2005, Pub. L. No. 109-13, § 106(b), 119 Stat. 231 (2005). Section 106 of the Act amended 8 U.S.C. § 1252 by adding the following jurisdictional provision:

(5) Exclusive means of review

Notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals*fn1 in accordance with this section shall be the sole and exclusive means of judicial review of an order of removal entered or issued under any provision of this chapter, . . .

8 U.S.C. § 1252(a)(5).*fn2

Thus, to the extent that Petitioner is directly or indirectly challenging his removal order, he may not do so in this Court. See Munoz v. Gonzalez, No. 05 Civ. 6056, 2005 WL 1644165, at *1 (S.D.N.Y. July 11, 2005) (district court lacks jurisdiction to review merits of a petition challenging a removal order or to stay the order of removal); Robinson v. Mule, 05-CV-0536A, 2005 WL 1971893, at *1 (W.D.N.Y. Aug. 15, 2005) (same); McDonald v. Mule, No. 05-CV-6367, 2005 WL 1971896, at *1 (W.D.N.Y. Aug. 9, 2005) (same).

Moreover, to the extent that Petitioner is only seeking a stay of his removal, this Court is also without jurisdiction to address this request. As one court in this Circuit recently noted, "[b]y depriving district courts of jurisdiction to hear cases challenging final orders of removal, Congress necessarily deprived district courts of jurisdiction to grant stays of removal in such cases. Under INA § 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B), the only court that may issue a stay is the court that will issue a 'decision on the petition.'" Rodney v. Gonzalez, No. 05 CV 3407, 2006 WL 73731, at *2 (E.D.N.Y. Jan. 10, 2006); see also Munoz, 2005 WL 1644165, at *1 (effective May 11, 2005, a district court lacks jurisdiction to stay an order of removal).*fn3

Accordingly, for all the above-stated reasons, the Court dismisses the petition without prejudice to Petitioner refiling it in the appropriate court of appeals.

B. Petitioner's in Forma Pauperis Application.

In light of the foregoing, the Court will deny Petitioner's in forma pauperis application as moot.

C. Pending Motion for an Emergency Stay.

The Court must deny the pending motion for an emergency because the Court has dismissed this petition for lack of jurisdiction, the Court denies the motion for an emergency stay as moot.

D. Conclusion.

Accordingly, for all of the above-stated reasons, it is hereby ORDERED that Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Dkt. No. 1), in which he is seeking a stay of removal is DENIED AND DISMISSED WITHOUT PREJUDICE to Petitioner refiling the petition in the appropriate Circuit Court of Appeals; and the Court further

ORDERED that Petitioner's request to proceed with this action in forma pauperis (Dkt. No. 2) is DENIED; and the Court further

ORDERED that the motion for an emergency stay of removal is DENIED AS MOOT; and the Court further

ORDERED that the Clerk of the Court serve a copy of this Order on Petitioner. IT IS SO ORDERED.


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