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Gabriel Lee v. Eric H. Holder

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


April 10, 2013

GABRIEL LEE, PETITIONER,
v.
ERIC H. HOLDER, ET AL., RESPONDENTS.

The opinion of the court was delivered by: John T. Curtin United States District Judge

ORDER

Petitioner, Gabriel Lee, filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, challenging his continued administrative custody/detention pending removal. (Docket No. 1). *fn1 Respondents have filed a motion to dismiss the petition as moot inasmuch as petitioner's removal was effected on or about March 28, 2013, by the Department of Homeland Security/Immigration and Customs Enforcement ("DHS/ICE"). (Docket No. 6, Motion to Dismiss, Affidavit of Gail Y. Mitchell, Esq., sworn to April 4, 2013, ¶ ¶ 4-5, and Exhibit A, Warrant of Removal/Deportation). Respondents' counsel has submitted a copy of the Warrant/Removal Deportation of DHS/ICE verifying the petitioner's removal. ( Id. , Exhibit A).

Accordingly, in light of the fact that petitioner's removal has been effected and he no longer is in the custody of the Department of Homeland Security, the respondents' motion to dismiss the petition is granted and the petition is dismissed. *fn2

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States , 369 U.S. 438 (1962).

Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within sixty (60) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

IT HEREBY IS ORDERED, that the petition is dismissed; and FURTHER, that leave to appeal as a poor person is denied. SO ORDERED.

John T. Curtin


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