Opinion
CIVIL ACTION NO. 3:19-CV-1236
10-29-2019
ANTONINO SALVATORE GRECO, A # 024-574-463, Petitioner, v. CLAIR DOLL, et al., Respondents.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
On July 18, 2019, the Court received and filed the instant undated pro se petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241. (Doc. 1). At the time of filing, petitioner Antonino Salvatore Greco, a native and citizen of Italy, was being held in the custody of United States Immigration and Customs Enforcement ("ICE") at York County Correctional Facility, located in York County, Pennsylvania. In his petition, Greco challenged his continued detention in ICE custody after entry of a final removal order and asked that the removal order be enjoined. On October 11, 2019, the undersigned issued an Order directing service of the petition and Respondents to respond to the petition by answer, motion, or other response to the allegations of the petition. (Doc. 4). On October 28, 2019, Respondents filed a suggestion of mootness, in which they report that Greco was deported to Italy on August 27, 2019, and as such, his petition is moot. (Doc. 6).
Before directing service of Greco's petition, the Court searched ICE's Online Detainee Locator System and found no record of his continued detention. The Court searched for Greco using the two spellings of his first name that are reflected in his petition and exhibits—Antonino and Antonio—as well as the two Alien Registration Numbers ("A-" numbers) by which he has been identified—024-574-463 and 031-115-934. While recognizing that Greco's petition was probably moot, the Court nevertheless directed service given that Greco's petition is based, in part, on confusion surrounding his A- numbers, and also to address the allegations of the petition beyond his continued detention.
In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court found that a petitioner's release in and of itself did not render moot his habeas petition. Rather, the Court stated that "[t]he more substantial question ... is whether petitioner's subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution." Spencer, at 7. To the extent that Greco is challenging his detention post removal proceedings, his deportation does render his petition moot. See Lindaastuty v. Attorney Gen., 186 F. App'x 294, 298 (3d Cir. 2006); Audain v. Decker, No. 3:12-CV-02301, 2013 WL 5656128, at *2 (M.D. Pa. Oct. 15, 2013).
With regard to his challenge to the final removal order, the Third Circuit Court of Appeals has explained that when Congress enacted the Real ID Act, it "eliminated availability of habeas corpus relief in the district courts for aliens seeking to challenge orders of removal. Instead, Congress substituted petitions for review, filed with the courts of appeals within the first 30 days after issuance of an order of removal, as the sole vehicle whereby aliens could challenge their removal." Ademiju v. Lowe, No. CV 3:19-1481, 2019 WL 4034429, at *3 (M.D. Pa. Aug. 27, 2019); quoting Kolkevich v. Att'y Gen. of the United States, 501 F.3d 323, 326 (3d Cir. 2007). Specifically, the law provides: "Notwithstanding any other provision of law ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal[.]" 8 U.S.C. § 1252(a)(5). District Courts such as this Court, therefore, have no role in the appeal of a removal order process, and this Court is not the court authorized to make such decisions. See Vasquez v. Napolitano, Slip Copy, 2010 WL 3946276 *4 (E.D. Pa. October 8, 2010) ("Indeed, it seems plain that any stay of the removal order must be appended to a request for judicial review of that order, which 8 U.S.C. § 1252(a) (5) dictates can only be pursued in the Court of Appeals. Thus, subject matter jurisdiction to issue a stay of a removal order, like any other challenge to a removal order, lies exclusively with the court of appeals."). The court in which Petitioner may seek relief is the Court of Appeals.
As noted by Respondents, Greco did, in fact, seek review by the Third Circuit, albeit unsuccessfully. This Court is without authority to overrule the Third Circuit.
Based on the foregoing, it is recommended that the petition (Doc. 1) be DISMISSED and the case file be closed.
BY THE COURT:
Dated: October 29, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 29, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: October 29, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge