UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
December 3, 2010
ANDRE HARRISON, PETITIONER,
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 .*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.
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."
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.
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.
/s/ Jeremiah J. McCarthy