United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE
Abubakar Sheikh seeks an Emergency Motion for Temporary
Restraining Order to stay his removal from the United States.
Because this Court lacks jurisdiction, and for the reasons
set forth below, Petitioner's motion is denied.
is a Somali national who came to the United States as a
refugee in 1997. In 1999, he was convicted of a misdemeanor
and taken into Immigration and Naturalization Service
(“INS”) custody. While in removal proceedings, he
applied for asylum. He was ordered removed on March 12, 2003.
He appealed to the Board of Immigration Appeals
(“BIA”) and was denied on May 26, 2004. The
Eighth Circuit Court of Appeals denied his petition for
review on November 2, 2005.
to the removal order, Sheikh routinely reported to U.S.
Immigration and Customs Enforcement (“ICE”) as
part of his order of supervision. In August 2017, he reported
to one of his routine check-ins and was taken into ICE
custody. On September 29, 2017, he filed a motion to reopen
his case before the BIA. He also filed a motion to stay his
deportation. Both motions are still pending.
Government has informed Sheikh's counsel that his removal
will take place on December 7, 2017. Sheikh contends that if
he is removed to Somalia, he faces significant risk of
persecution and torture. Specifically, he alleges that after
two decades in the United States, he will be seen as a
“westernized” infidel by the Muslim extremist
group Al-Shabaab, which was formed in 2006.
seeks an emergency TRO to stay his removal at least until the
BIA renders a decision on his motion to reopen. His principal
argument is that failure to stay his removal pending the
BIA's decision violates his constitutional right to due
process and his rights, under the Immigration and Nationality
Act and the Convention Against Torture, not to be removed to
a country where he is likely to be persecuted or tortured.
motion must be denied on jurisdictional
grounds. Under 8 U.S.C. § 1252(g), “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 . . . execute removal orders
against any alien under this chapter.” Because this
action arises from the execution of a removal order, this
Court lacks jurisdiction.
advances several arguments to support his position that this
Court retains jurisdiction. First, he contends that he is not
challenging the removal order, but instead is challenging his
deprivation of constitutional due process and his statutory
right not to be removed to a country where he is likely to be
subjected to persecution or torture. But § 1252(g)
removes jurisdiction over “any cause or claim”
that arises from the execution of a removal order. As the
Eighth Circuit has recently explained, “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) (quoting Humphries v. Various Fed. USINS
Emps., 164 F.3d 936, 943 (5th Cir. 1999)). Here,
Sheikh's claim arises from the execution of a removal
order, despite the fact that it takes the form of a habeas
petition. As such, it falls within the scope of §
1252(g), and the Court lacks jurisdiction.
next argues that the Court has jurisdiction via an exception
to § 1252(g) for “habeas claims raising a pure
question of law, ” recognized by the Eighth Circuit.
Silva v. United States, 866 F.3d 938, 941 (8th Cir.
2017) (describing the holding in Jama v. Immigration
& Naturalization Service, 329 F.3d 630 (8th Cir.
2003)). Sheikh's position is that he is challenging
“the act of removal, rather than the decision to
execute a removal order, ” and that this falls into the
Jama carve-out. But Sheikh's claim is not a pure
question of law. It is a fact-intensive inquiry involving an
assessment of changed country conditions. In this way, it
stands in sharp contrast to the issue in Jama, which
was a statutory construction question about the Attorney
General's “legal conclusion” that an alien
petitioner could be returned to a country before it was
established that the country would accept him.
Silva, 866 F.3d at 941. Accordingly, jurisdiction
over Sheikh's claim cannot be established via the purely
legal question exception to § 1252(g).
urges the Court to follow the decisions in two recent federal
district court cases outside of this circuit: Hamama v.
Adducci, 258 F.Supp.3d 828 (E.D. Mich. 2017) and
Devitri v. Cronen, 2017 WL 5707528 (D. Mass. Nov.
27, 2017). The courts in both cases retained jurisdiction
over challenges to removal orders, principally on the grounds
that denying a stay would violate the Suspension Clause of
the United States Constitution. Sheikh maintains that here,
as in Hamama and Adducci, denial of his
stay will violate the Suspension Clause because there is no
adequate or efficient alternative for appeal. But
Sheikh's reliance on those cases is misplaced. First,
both decisions are at odds with clear Eighth Circuit
precedent regarding district court habeas jurisdiction over
removal orders. See, Tostado v. Carlson, 481 F.3d
1012 (8th. Cir 2007) (“Under § 106(c) of the REAL
ID Act, district courts no longer have habeas jurisdiction to
review final orders of review. . . .”). The decisions
also conflict with the Eighth Circuit's conclusion that
the mechanism for appeal provided by the REAL ID Act is an
adequate and effective substitute for habeas - a holding that
undercuts the rationale in Hammer and
Adducci. See Mohamed v. Gonzales, 477 F.3d
522, 526 (8th Cir. 2007). Moreover, even if Eighth Circuit
precedent were not an obstacle, Hammer and
Adducci are distinguishable because the sudden
policy shift that triggered removal orders of the aliens in
those cases is not replicated here.
Sheikh contends that his due process argument is bolstered
because the Eighth Circuit still enforces the so-called
“departure bar” rule of 8 C.F.R. §
1003.2(d), under which motions to reopen cannot be made after
an alien has departed from the United States. Sheikh argues
that because this rule eliminates his options for appeal
after removal, he will not be afforded due process. The Court
disagrees. Every circuit court that has addressed the issue
has declined to enforce the departure bar. The Eighth Circuit
has not had occasion to rule on the question. But in
Gomez-Gutierrez v. Lynch, the Eighth Circuit did
note the out-of-circuit unanimity on the departure bar
question. 811 F.3d 1053, 1057, n.3 (8th Cir. 2016) (citing
Toor v. Lynch, 789 F.3d 1055, 1056-57 (9th Cir.2015)
for the proposition that “every other circuit that has