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 Abdoulmalik Ibrahim. 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 over thirteen years. Pet. ¶ 1. He applied for asylum
in February of 2004, but his application was denied and he
was ordered removed on August 9, 2004. Id. ¶
28. The Board of Immigration Appeals (BIA) denied his appeal.
Id. Immigration and Customs Enforcement (ICE) did
not immediately deport Ibrahim to Somlia, but rather placed
him on an order of supervision where he was expected to
check-in at regular intervals. Id. ¶ 29.
November 6, 2017, at a regular check-in, ICE detained Ibrahim
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, Ibrahim 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, Ibrahim 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 motions constitutes a violation
of due process, and (3) his detention is unlawful. On
December 4, 2017, Ibrahim 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, Ibrahim asks the
court to stay his removal, a claim that is directly related
to the Attorney General's ...