NETHAGANI v. Ashcroft, 315 F. Supp. 2d 344 (W.D.N.Y. 2004)

Richard N. Bach, Utica, NY, for Petitioner.

LARIMER, District Judge.

Petitioner Khalid Nethagani, who is currently incarcerated in Buffalo Federal Detention Facility pursuant to a final order of removal, seeks relief pursuant to 28 U.S.C. § 2241 as more fully set forth in the petition.

IT HEREBY IS ORDERED as follows:

1. Petitioner's removal or deportation is stayed pending disposition of his habeas proceeding in this Court. Respondents may, during the pendency of this proceeding in this Court, move to lift the stay of removal or deportation.

2. Within 45 days of the service of this order, respondent shall file an answer to the application with the Clerk of Court (and also serve a copy upon the petitioner) which shall respond to the allegations of the application and shall state, as to every ground raised by the petitioner, whether the petitioner has exhausted administrative remedies. If any ground is alleged not to have been exhausted, respondent shall identify such ground and expressly *345 state whether it waives the petitioner's requirement to exhaust. Alternatively, in the appropriate case, respondent may file a motion to dismiss the application, accompanied by pertinent exhibits which demonstrate that an answer to the application is unnecessary, by no later than 45 days from service of this order.

Respondent also shall file by the above date a memorandum of law with the Clerk of Court (and also serve a copy upon the petitioner) addressing each of the issues raised in the petition and including citations of relevant supporting authority. Respondent is directed to accompany all citations to sections of the Immigration and Naturalization Act with reference to the appropriate sections of 8 U.S.C.

Petitioner shall have 25 days upon receipt of the answer to file a written response to the answer and memorandum of law (or motion to dismiss).

3. The Clerk of Court shall serve a copy of the application, together with a copy of this order, by certified mail, upon the following:

• Buffalo Field Office Director, Detention & Removal Office, Immigration and Customs Enforcement Department of Homeland Security, 38 Delaware Avenue, Buffalo, N.Y. 14202;

• Secretary, U.S. Department of Homeland Security, Washington, D.C. 20528;

• Acting Director, Bureau of Immigration and Customs Enforcement, 425 I Street, NW Washington, DC 20536;

• Attorney General of the United States, Main Justice Building, 10th and Constitution Avenues N.W., Washington, DC 20530;

• United States Attorney for the Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202;

• James W. Grable, District Counsel for the Department of Homeland Security, 130 Delaware Avenue, Room 203, Buffalo, New York 14202.

THE PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENT.

IT IS SO ORDERED.