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Morillo v. DHS & Bice Detention Center

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


April 17, 2006

CESAR DE LEON MORILLO, PETITIONER,
v.
DHS & BICE DETENTION CENTER; THOMAS HOGAN, WARDEN, RESPONDENTS.

The opinion of the court was delivered by: Norman A. Mordue, Chief United States District Judge

DECISION AND ORDER

Currently before the Court is Petitioner Cesar De Leon Morillo's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Dkt. No. 1. When Petitioner mailed this Petition to the Court, he was apparently confined at York County Prison in York, Pennsylvania. Dkt. No. 1 at 1. Petitioner seeks review of his order of deportation or removal.*fn1 Dkt. No. 1. Specifically, Petitioner states that he "is contesting the charges of deportability brought against him by Immigration and Custom Enforcement...." Id.

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*fn2 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).*fn3

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, *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, *1 (W.D.N.Y. Aug. 15, 2005) (same); McDonald v. Mule, No. 05-CV-6367, 2005 WL 1971896, *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 would also be 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, *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).*fn4

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

Since this action is dismissed, Petitioner's in forma pauperis application is denied as moot. WHEREFORE, it is hereby ORDERED, that Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his removal is DENIED AND DISMISSED WITHOUT PREJUDICE to Petitioner refiling the petition in the appropriate Circuit Court of Appeals; and it is further

ORDERED, that Petitioner's request to proceed with this action in forma pauperis is DENIED as moot; and it is further

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


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