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Mohamed v. Sessions

United States District Court, D. Minnesota

December 5, 2017

Abdihakim Mohamed Petitioner,
v.
Jefferson Beauregard Sessions III, Attorney General; et al. Respondents.

          Kimberly K. Hunter, Esq., John R. Bruning, Esq. and Kim Hunter Law, PLLC, St. Paul, MN 55104, counsel for petitioner.

          Ann M. Bildtsen, United States Attorney's Office, counsel for respondents.

          ORDER

          David S. Doty, Judge United States District Court

         This matter is before the court upon the motion for a temporary restraining order by petitioner Abdihakim Mohamed. Based on a review of the file, record, and proceedings herein, and for the following reasons, the motion is denied.

         BACKGROUND

         Mohamed is a citizen of Somalia who has resided in the United States for nearly twenty years. Pet. ¶ 1. He applied for asylum in October of 1999, but he was ordered removed in absentia on February 20, 2001. Id. ¶ 28. The Board of Immigration Appeals (BIA) denied his appeal. Id. Immigration and Customs Enforcement (ICE) did not immediately deport Mohamed to Somlia, but rather placed him on an order of supervision where he was expected to check-in at regular intervals. Id. ¶ 29.

         Recently, at a regular check-in, ICE detained Mohamed in order to execute the removal order.[1] Id. He was subsequently transferred to a detention facility and is expected to be deported by December 7, 2017.[2] Id. ¶ 5. On November 22, Mohamed filed motions with the BIA to reopen based on changed country conditions in Somalia and to stay removal. Id.; see Pet'r Ex. J. To date, the BIA has not ruled on either motion. On December 1, Mohamed filed a petition for habeas corpus seeking a stay of his removal and release from detention, claiming that (1) his removal subjects him to risk of persecution and torture by the terrorist group Al-Shabaab, (2) his removal before the BIA rules on his pending motions constitutes a violation of due process, and (3) his detention is unlawful. On December 4, 2017, Mohamed filed this motion for a temporary restraining order seeking a stay of his removal.

         DISCUSSION

         I. Standard of Review

         A TRO is an extraordinary equitable remedy, and the movant bears the burden of establishing its propriety. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The purpose of a TRO is to “preserve the status quo until the merits [of the case] are determined.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). In determining whether it should issue a TRO, the court considers: (1) the threat of irreparable harm to the movant in the absence of relief, (2) the balance between the harm to the movant in the absence of relief and the harm that the relief may cause the non-moving party, (3) the likelihood of the movant's ultimate success on the merits, and (4) the public interest. Id. at 114. But if a court determines it lacks jurisdiction over the matter, it need not analyze the Dataphase factors. Buezo v. Banieke, No. 08-206, 2008 WL 312808, at *2 (D. Minn. Feb. 1, 2008).

         II. Jurisdiction

         The court lacks jurisdiction over any case that challenges the decision of the Attorney General to execute a removal order.

[N]otwithstanding any other provision of law ... no 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 executive removal orders against any alien under this chapter.

8 U.S.C. § 1252(g). “A claim that is connected directly and immediately to a decision to execute a removal order arises from that decision.” Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (internal quotation marks and citation omitted). Here, Mohamed asks the court to stay his removal, a claim that is directly related to the Attorney General's ...


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