19-3547
    Troy v. Barr

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 22nd day of September, two thousand twenty.

    PRESENT:
                ROBERT D. SACK,
                RICHARD C. WESLEY,
                RICHARD J. SULLIVAN,
                      Circuit Judges.
    _____________________________________________

    John Troy, as Next Friend on behalf of Xue Hui
    Zhang,

                         Petitioner-Appellant,

                   v.                                                     19-3547

    William P. Barr, in his official capacity as the
    Attorney General of the United States, United States
    Department of Homeland Security, Gwynne DiNolfo,
    Director of the Albany Field Office of the U.S. Immigration
    and Customs Enforcement, Chad F. Wolf, Matthew T.
    Albence, Acting Director of the U.S. Immigration and
    Customs Enforcement, Carmen Whaling, Director of the
    Buffalo Field Office of the U.S. Immigration and Customs
    Enforcement, Patrick A. Russo, Sheriff of the Rensselaer
    County Sheriff of the Rensselaer County,

                         Respondents-Appellees,
Kirstjen Nielsen, Thomas E. Feeley,

                       Respondents.

_____________________________________________

FOR PETITIONER-APPELLANT:                           John Troy, Aaron Schweitzer, Troy Law,
                                                    PLLC, Flushing, NY.

FOR RESPONDENTS-APPELLEES:                          Karen Folster Lesperance, Assistant United
                                                    States Attorney, of Counsel, for
                                                    Grant C. Jaquith, United States Attorney for the
                                                    Northern District of New York, Albany, NY.



       Appeal from a judgment of the United States District Court for the Northern District of

New York (Sannes, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Xue Hui Zhang appeals the district court’s judgment dismissing in part and denying in part

his 28 U.S.C. § 2241 petition for a writ of habeas corpus and denying his motion for a preliminary

injunction and temporary restraining order.         We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       “On appeal from the denial of a habeas petition brought pursuant to 28 U.S.C. § 2241, we

review the merits of the petition and any other legal questions pertaining to subject matter

jurisdiction de novo.” Kuhali v. Reno, 

, 99 (2d Cir. 2001); see also Ragbir v. Homan,

, 62 (2d Cir. 2019). “[N]o court shall have jurisdiction to hear any cause or claim by

or on behalf of any alien arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g).

Section 1252(g) is a jurisdictional limitation that applies “to three discrete actions that the Attorney
General may take: [the] ‘decision or action’ to ‘commence proceedings, adjudicate cases, or

execute removal orders.’” Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 

, 482 (1999) (quoting 8 U.S.C. § 1252(g)). A stay of removal is a request to delay the

execution of a removal order. See Sharif ex rel. Sharif v. Ashcroft, 

, 787 (7th Cir.

2002). A petitioner may not bypass the jurisdictional limitation of § 1252(g) to challenge the

execution of a removal order “because it was allegedly made based on unlawful considerations.”

.

       We affirm for substantially the same reasons stated by the district court in its thorough

October 15, 2019 decision. Zhang sought to stay his removal, arguing that U.S. Immigration and

Customs Enforcement (“ICE”) detained him, released him under an order of supervision, and will

remove him in the interest of his employer as retaliation for his labor law action for unpaid wages

and overtime. The district court properly concluded that it lacked jurisdiction to stay Zhang’s

removal regardless of whether ICE located and detained him as a result of his employer’s

retaliatory actions. See

not present the rare case where the jurisdictional limit

in § 1252(g) may be overcome by “outrageous” government conduct. See

(finding

“outrageous” government officials’ decision to execute petitioner’s deportation order in retaliation

for his protected speech); see also 

. Indeed, he did not even argue as much

until his reply brief. See Reply at 5–7; Conn. Bar. Ass’n v. United States, 

, 91 n.13

(2d Cir. 2010) (“Issues raised for the first time in a reply brief are generally deemed waived.”).

       Although ICE retains custody of Zhang through an order of supervision that requires him

to report regularly, his request for a stay was outside the court’s jurisdiction. In addition, Zhang’s

release from detention mooted his requests for release and for a declaration that his ongoing

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detention was unlawful. Consequently, all that remained was his request for damages, which the

court properly found were not available through a habeas petition. See Preiser v. Rodriguez, 

, 494 (1973); Cody v. Henderson, 

, 720 (2d Cir. 1991). Finally, we find no

merit to Zhang’s suggestion that his order of supervision is unconstitutional.



       Accordingly, we AFFIRM the judgment of the district court.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




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