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Elkimya v. Dep't of Homeland Security

October 14, 2010


The opinion of the court was delivered by: Michael A. Telesca United States District Judge


I. Introduction

Pro se petitioner Abdel Elkimya ("petitioner") filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 challenging his continued detention in custody of the United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS"). Petitioner sought an order directing respondent to release him from administrative custody pending his removal from the United States (Dkt. #1).*fn1

On October 5, 2010, respondent filed a motion to dismiss the petition on mootness grounds, stating that petitioner was released from administrative custody on September 20, 2010, and removed from the United States (Dkt. #10).

For the reasons that follow, respondent's motion to dismiss is granted.

II. Factual Background and Procedural History

Petitioner, a native and citizen of Morocco, entered the United States on October 31, 1975 as a B-2 nonimmigrant. On November 22, 1976, his status was adjusted to lawful permanent resident. See Declaration of George F. Scott ("Scott Decl.") dated 11/6/2008 at ¶ 5. Following a four-year trip to Morocco, petitioner returned to the United States and applied for admission as a lawful permanent resident in New York, New York. Scott Decl. ¶ 6.

Because petitioner was absent from the United States for approximately four years, his immigration status in the U.S. was deemed abandoned. He was consequently placed in removal proceedings*fn2 by a Notice to Appear dated July 27, 1997, charging him as a an alien not in possession of proper immigration documentation. See 8 U.S.C. § 1182(a)(7)(A)(i)(I); Scott Decl. ¶ 7. On February 15, 2000, petitioner was ordered removed from the United States by an Immigration Judge. Scott Decl. ¶ 8. Petitioner appealed that decision to the Board of Immigration Appeals ("BIA"), which dismissed the appeal and affirmed the removal order. Scott Decl. ¶ 9.

On October 30, 2002, a Form I-166 (commonly called a "bag and baggage letter") was issued, ordering petitioner to report for removal to Morocco in December, 2002. Petitioner failed to report as ordered, and was subsequently arrested on August 6, 2003 and placed in DHS custody pursuant to a Warrant of Removal/Deportation. Scott Decl. ¶ 10. A travel document was obtained from the Consulate General of Morocco on August 18, 2003, to effectuate petitioner's return to his native country. He was scheduled for removal from the United States on September 11, 2003. Scott Decl. ¶¶ 11-12.

While petitioner was awaiting removal from the U.S., he filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of New York, thereby preventing execution of the immigration order of removal and requiring cancellation of the existing travel arrangements. See Elkiyma v. DHS, No. 03-CV-6434-JWF (W.D.N.Y.). Petitioner remained in custody until March 10, 2004, when he was released from DHS administrative dentention pursuant to an Order of Supervision. Scott Decl. ¶¶ 13, 15.

On June 10, 2005, this Court transferred petitioner's habeas petition to the U.S. Court of Appeals for the Second Circuit in Accordance with the REAL ID Act of 2006. See Elkiyma v. DHS, No. 05-2983-ag (2d Cir.); Scott Decl. ¶ 16. The Second Circuit dismissed the petition, and petitioner was subsequently returned to DHS custody. Scott Decl. ¶¶ 17-18.

Petitioner then filed a motion seeking to reinstate the petition for review in the Second Circuit, which was granted on June 29, 2006. While petitioner's motion to reinstate was pending, DHS sent a new presentation packet to the Moroccan Consulate to obtain a travel document for petitioner's removal. Scott Decl. ¶¶ 19-20. The Second Circuit reviewed and ultimately denied petitioner's reinstated petition. Scott Decl. ¶ 21.

Following further, unsuccessful attempts to reopen his administrative removal proceedings before the BIA and for rehearing in the Second Circuit, DHS served petitioner with a formal Warning for Failure to Depart, advising petitioner of the possible penalties for taking any action to prevent his departure pursuant to a final order of removal. See 8 U.S.C. § 1253; Scott Decl. ¶ 22-25.

On June 19, 2008, petitioner filed a petition for review in the Second Circuit of the BIA's denial of his previous motion to reopen the removal proceedings. That petition was accompanied by a motion for a stay for removal. See Elkimya v. DHS, No. 08-3013-ag (2d Cir.). Because petitioner sought a stay of removal with his petition for review, plans for petitioner's removal to Morocco scheduled for August 22, 2008 were again cancelled. On December 30, ...

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