United States District Court, D. Minnesota
Kimberly K. Hunter, Esq., John R. Bruning, Esq. and Kim
Hunter Law, PLLC, St. Paul, MN 55104, counsel for petitioner.
Bildtsen, United States Attorney's Office, counsel for
S. Doty, Judge United States District Court
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.
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.
at a regular check-in, ICE detained Mohamed in order to
execute the removal order. Id. He was subsequently
transferred to a detention facility and is expected to be
deported by December 7, 2017. 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.
Standard of Review
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).
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
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 ...