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Neville Sylvester Leslie v. Eric H. Holder

August 27, 2012

NEVILLE SYLVESTER LESLIE, PETITIONER,
v.
ERIC H. HOLDER, JR., ET AL., RESPONDENTS.



The opinion of the court was delivered by: (judge Conaboy)

(Magistrate Judge Carlson)

MEMORANDUM

Here we consider the Report and Recommendation (Doc. 47) filed by Magistrate Judge Martin C. Carlson on April 9, 2012. Magistrate Judge Carlson recommended that the Petitioner, who had been detained pursuant to 8 U.S.C. § 1226(c) and released following a hearing held on March 28, 2012 (Doc. 41), remain released on the conditions previously imposed by the Court. (Doc. 47 at 32.) Respondents filed objections to the Report and Recommendation (Doc.

52), and Petitioner responded to the objections (Doc. 53). With the timely filing of Respondents' reply brief (Doc. 55) on May 21, 2012, the Report and Recommendation became ripe for disposition.

On May 23, 2012, Respondents filed Notice of Administrative Decision (Doc. 56) indicating that the Board of Immigration Appeals ("BIA") had issued a decision in Petitioner's underlying removal proceedings. Respondents reported that the BIA had dismissed Petitioner's appeal which rendered Petitioner's removal order final for administrative purposes. (Doc. 56 at 1.) Respondents also asserted that "[t]he BIA's decision may have the ultimate effect of mooting Leslie's case, as the decision shifts the statutory authority for Leslie's detention from the pre-removal order detention statute, 8 U.S.C. § 1226, to the post-removal order detention statute, 8 U.S.C. § 1231." (Id. at 1 n.1.) Petitioner responded to Respondents' Notice with the supplemental information that Petitioner had filed a petition for review and a motion for a stay of the BIA's decision with the Third Circuit Court of Appeals. (Doc. 57 at 1-2.)

Based on these filings, the Court issued an Order directing the parties to file status reports and briefs concerning the effect of the BIA's decision and Petitioner's related motions and/or appeals on the habeas petition which was the subject of the pending Report and Recommendation. (Doc. 58.) The Court also gave the parties an opportunity to file responsive briefs on or before July 26, 2012, (id.) and the parties did so (see Docs. 58-62). With this Memorandum, we consider these filings as well as those directly related to the Report and Recommendation.

I. Background

Magistrate Judge Carlson set out an extensive factual and procedural background in his Report and Recommendation (Doc. 47 at 1-9.) Because the parties did not object to this portion of the Report and Recommendation, we adopt the Magistrate Judge's background recitation.

In addition to the information set out by Magistrate Judge Carlson in his Report and Recommendation, subsequent filings indicate that, after Petitioner was released on March 29, 2012, the BIA issued a decision in his underlying removal proceedings. (Doc. 59 at 4.) With this May 14, 2012, BIA decision, the immigration judge's removal order of December 15, 2011, became administratively final. (Doc. 59 at 4-5.)

On May 21, 2012, Petitioner filed a petition for review with the Third Circuit Court of Appeals (Case No. 12-2448), seeking judicial review of the BIA's decision. (Doc. 59 at 5.) On the same date, he also filed a "Motion for Stay of Removal Pending Resolution of Petition for Review" with the Third Circuit. (Id.) On June 25, 2012, the Court of Appeals denied the motion for a stay of removal. (Doc. 59-1.) The Circuit Court concluded that Petitioner had not "shown that the four factors of Nken v. Holder, 556 U.S. 418, 434 (2009), fall in his favor. More specifically, he has not made a strong showing that he is likely to succeed on the merits of his petition for review or that removal from the United States would result in irreparable injury, the two 'most critical' factors in determining whether a stay of removal is warranted." (Doc. 59-1.) Petitioner's petition for review of the BIA's decision remains pending in the Third Circuit Court of Appeals.

II. Discussion

Because Respondents maintain that the Court does not have jurisdiction over Petition's habeas petition because it became moot upon his release (Doc. 59, 62), we address this jurisdictional issue before considering the Report and Recommendation and objections thereto.

A. District Court Jurisdiction

Respondents assert that this Court lacks jurisdiction to consider Petitioner's habeus corpus petition and the issues considered in the Report and Recommendation based on the mootness doctrine. (See Docs. ...


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