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Andre Harrison v. Martin D. Herron

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


December 3, 2010

ANDRE HARRISON, PETITIONER,
v.
MARTIN D. HERRON, DIRECTOR OF BUFFALO FEDERAL DETENTION CENTER, ET AL., MICHAEL T. PHILLIPS, ICE, FIELD OFFICE DIRECTOR, ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENTS.

The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

Petitioner Andre Harrison, who is presently being detained at the Buffalo Federal Detention Facility pending removal, has filed a petition for habeas corpus pursuant to 28 U.S.C. § 1447. Petition [1].*fn1 Petitioner has filed two identical motions for a stay of removal pending resolution of his petition for habeas corpus relief [5, 6]. For the following reasons, petitioner's motions to stay his removal are denied, without prejudice.

ANALYSIS

This court lacks jurisdiction to consider petitioner's motions to stay his removal. "[E]ven if Petitioner were challenging an order of removal, the district court would not have jurisdiction to enter a stay of deportation. The so-called 'Real ID Act of 2005' . . . under which the circuit courts were vested with exclusive authority to review orders of removal . . . has been construed to mean that only the circuit court may issue such a stay." Thomas v. Spitzer, 2008 WL 4360550, *2 (S.D.N.Y. 2008). See Al-Garidi v. Holder, 2009 WL 1439216, *1 (W.D.N.Y. 2009)(Larimer, J.)("This Court and other district courts throughout the country have routinely held that because district courts have no jurisdiction to review final orders of removal, they have no jurisdiction to review requests for stays of removal"). Therefore, petitioner's motions to stay his removal must be denied.

CONCLUSION

For these reasons, petitioner's motions to stay his removal [5, 6] are denied, without prejudice to re-filing with the appropriate Circuit Court of the United States Court of Appeals.

SO ORDERED.

/s/ Jeremiah J. McCarthy


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