Opinion
20-CV-01131-LJV
08-28-2020
MAULIKKUMAR BHARATBHAI PATEL, Petitioner, v. WILLIAM P BARR, et al., Respondents.
ORDER
The petitioner, Maulikkumar Bharatbhai Patel, is a civil immigration detainee currently held at the Buffalo Federal Detention Facility. He seeks relief under 28 U.S.C. § 2241, claiming that his continued detention in U.S. Immigration and Customs Enforcement custody, pending removal, violates 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Docket Item 1. The petitioner has paid the $5.00 filing fee.
Patel also has moved for an order "staying [his] removal . . . during the pendency of this habeas." Docket Item 1 at 10. That motion is denied without prejudice to refiling. The Real ID Act of 2005, 8 U.S.C. § 1252, strips district courts of jurisdiction to review a final order of deportation. See De Ping Wang v. Dep't of Homeland Sec., 484 F.3d 615, 615-16 (2d Cir. 2007). As a consequence, except under narrow circumstances district courts "have no jurisdiction to review requests for stays of removal." Al-Garidi v. Holder, No. 09-CV-6160L, 2009 WL 1439216, at *1 (W.D.N.Y. May 15, 2009). Patel does not advance the basis for his motion, so this Court cannot find that any of the fact-specific exceptions apply. He may renew his motion, however, to articulate an exception.
ORDER
IT IS HEREBY ORDERED that Patel's motion for a stay of removal is DENIED; and it is further
ORDERED that within 45 days of the date of this order, the respondents shall file and serve an answer responding to the allegations in the petition; and it is further
ORDERED that within 45 days of the date of this order, the respondents shall file and serve, in addition to their answer, a memorandum of law addressing each of the issues raised in the petition and including citations to supporting authority and applicable sections of the Immigration and Nationality Act; and it is further
ORDERED that within 45 days of the date of this order, instead of their answer, the respondents may file a motion to dismiss the petition, accompanied by appropriate exhibits, demonstrating that an answer to the petition is unnecessary; and it is further
ORDERED that the petitioner shall have 25 days after his receipt of the respondents' answer or motion to dismiss to file a written reply; and it is further
ORDERED that the Clerk of Court shall serve a copy of the petition, together with a copy of this order, electronically via a notice of electronic filing to the United States Attorney's Office, Western District of New York, at USANYW-Immigration-Habeas@usdoj.gov.
SO ORDERED. Dated: August 28, 2020
Buffalo, New York
/s/ Lawrence J . Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE