Edwin Merritt v. USICE

CLD-192 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 18-1139 ___________ EDWIN KOTATEE MERRITT, Appellant v. UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-17-cv-03293) District Judge: Honorable Gene E.K. Pratter ____________________________________ Submitted on a Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 April 26, 2018 Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges (Opinion filed: June 11, 2018) _________ OPINION* _________ PER CURIAM Edwin Merritt appeals from an order of the United States District Court for the Eastern District of Pennsylvania, which dismissed his mandamus petition for lack of * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. jurisdiction. Because no substantial question is presented by this appeal, we will grant the Government’s motion to summarily affirm the District Court’s judgment. See Third Circuit LAR 27.4. Merritt, a citizen of Liberia, was placed in removal proceedings in 2015 based on a criminal conviction. Rather than pursue any relief, Merritt, through counsel, executed a motion for a Stipulated Removal Order (“SRO”), which included a waiver of a hearing and appeal. See 8 C.F.R. § 1003.25(b). The Immigration Judge granted that motion on September 16, 2015. Over a year and a half later, Merritt appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed his appeal as untimely on July 21, 2017. In August 2017, Merritt filed the petition for a writ of mandamus at issue here, pursuant to 28 U.S.C. § 1361. Merritt claimed that United States Immigration and Customs Enforcement (“ICE”) had a clear duty to return him to the United States because it had failed to respect an automatic stay of removal that was supposed to be in place while his appeal was pending with the BIA, pursuant to 8 C.F.R. § 1003.6(a).1 The Government argued that the District Court lacked jurisdiction to consider the mandamus petition, and the District Court agreed. Merritt timely appealed. 1 Notably, that regulation states that “the decision in any proceeding under this chapter from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal unless a waiver of the right to appeal is filed, nor shall such decision be executed while an appeal is pending or while a case is before the Board by way of certification.” 8 C.F.R. § 1003.6(a) (emphasis added). 2 We have jurisdiction to review the District Court’s final order, and we may affirm for any reason supported by the record. See 28 U.S.C. § 1291; Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011). We agree with the District Court that the sole means of challenging a removal order is through a petition for review, filed with the appropriate Court of Appeals. See 8 U.S.C. § 1252(a)(5). Thus, to the extent Merritt was seeking ...

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