UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
OSCAR RIVERO-NUNEZ, DEFENDANT-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A removal order and a district court's order staying a hearing on a removal order are not appealable.
Appellant sought to appeal an order staying a Magistrate's order concerning a defendant's claim of unlawfully secured presence in the district. The Ma…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Appealability Of Orders cases and more on FLexlaw
PER CURIAM:
Appellant Rivero-Nunez seeks to appeal from an order of the district court staying an order of the Magistrate in a F.R.Crim.P. Rule 40(b) matter. The Magistrate had ordered a hearing on defendant’s claim that his presence in the district had been unlawfully secured.
A removal order is not an appealable order. U. S. v. McCray, 458 F. 2d 389 (CA9, 1972), cert. denied, 409 U.S. 865, 93 S.Ct. 158, 34 L.Ed.2d 113; In re Ellsberg, 446 F. 2d 954 (CA1,1971); Galloway v. U. S., 302 F. 2d 457 (CA10, 1962); C. Wright, 3 Federal Practice and Procedure § 653 at 11 (1969). Nor do we perceive that an order of a district judge staying a proposed hearing on a removal order is appealable.
We, therefore, deny the motion of the United States to expedite the appeal and order the appeal dismissed.
We express no opinion on whether a district court has jurisdiction to reverse or revise a Rule 40(b) order of a Magistrate. See Bruno v. Hamilton, 521 F. 2d 114 (CA8, 1975); United States v. Canada, 440 F.Supp. 22 (N.D.Ill., 1977).
The appeal is DISMISSED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- In re Ellsberg, 446 F.2d 954 (1st Cir. 1971)
- Bruno v. Hon. Calvin K. Hamilton, 521 F.2d 114 (8th Cir. 1975)
- Donohoe v. United States, 409 U.S. 865 (U.S. 1972)
- Dawn v. Sterling Drug, Inc., 409 U.S. 865 (U.S. 1972)
- Galloway v. United States, 302 F.2d 457 (10th Cir. 1962)
- United States v. McCRAY, 458 F.2d 389 (9th Cir. 1972)