United States v. Oscar Rivero-Nunez

605 F.2d 152, 1979 U.S. App. LEXIS 11271

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 11, 1979
• Docket: 79-3058
• Status: Published

Opinion

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.