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Ali v. Sessions

United States District Court, D. Minnesota

December 7, 2017

YONIS ALI, Petitioner,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General; ELAINE C. DUKE, Acting Secretary, Department of Homeland Security; THOMAS HOMAN, Director, Immigration and Customs Enforcement; SCOTT BANIECKE, Director, St. Paul Field Office, Immigration and Customs Enforcement; and BRIAN ACUNA, Director, New Orleans Field Office, Immigration and Customs Enforcement, Respondents.

          Kimberly K. Hunter and John R. Bruning, KIM HUNTER LAW, P.L.L.C., for petitioner.

          Ana H. Voss and Ann M. Bildtsen, UNITED STATES ATTORNEY'S OFFICE, for respondents.

          ORDER

          Patrick J. Schiltz United States District Judge

         Petitioner Yonis Ali is a citizen of Somalia who entered the United States in 1995 and was granted lawful permanent resident status as the spouse of a refugee. In 2010, Ali was ordered removed from the United States after the Board of Immigration Appeals (“BIA”) determined that he had committed fraud in the course of applying for refugee status. Ali was not immediately removed from the United States, however, because Somalia would not agree to accept his return. Instead, Ali was allowed to remain free under an order of supervision.

         Ali was taken into custody by Immigration and Customs Enforcement (“ICE”) in September or October 2017 after Somalia agreed to accept his return. After being taken into custody, Ali filed a motion with the BIA to reopen his case and stay his removal. Ali also filed a habeas action in this Court and moved for a stay of removal and a temporary restraining order (“TRO”). ECF No. 3 (“TRO Mot.”). That motion is now before the Court. Because the government received notice of the motion and had the opportunity to respond, the Court will treat the motion as a motion for a preliminary injunction. See Fed. R. Civ. P. 65.

         In opposing Ali's motion, the government argues only that this Court does not have jurisdiction over Ali's habeas action. See ECF No. 8. Because the Court finds that it does, in fact, have jurisdiction over one of Ali's habeas claims-and because the government has made no other argument in opposing Ali's motion-the Court grants Ali's motion and enjoins respondents from removing him from the United States until the BIA issues a decision on his motion to reopen.

         I. BACKGROUND

         Ali is a citizen of Somalia. TRO Mot., Ex. I (“IJ Decision”) at 2. On or about June 20, 1995, Ali entered the United States under the name “Hussein Mohamud, ” purportedly as the spouse of a refugee. Id. Ali was later granted lawful permanent resident status with a retroactive date of June 20, 1995. Id.

         In 2007, the Department of Homeland Security (“DHS”) began removal proceedings against Ali after discovering that he had committed fraud during his naturalization process. Id. at 2. While the removal proceedings were still pending, Ali applied for asylum, for withholding of removal, and for relief under the Convention Against Torture. Id. at 2-5. An immigration judge (“IJ”) ordered Ali removed on June 10, 2010. Id. at 13. The IJ found that Ali was “not credible” because of the “numerous inconsistencies within his testimony and with prior statements and evidence submitted by both parties.” Id. at 7. The IJ was thus “unable to determine the name, birth date, marital status, or clan membership of Mr. Ali.” Id. at 11. The IJ also made the alternative finding that Ali had failed to show that he suffered “past persecution” or that he had a “‘well-founded fear' of future persecution” in Somalia. Id. at 12.

         On November 16, 2011, the BIA dismissed Ali's appeal. TRO Mot., Ex. I (“BIA Decision”) at 1. The Eighth Circuit denied Ali's petition for review in 2012. Ali v. Holder, 686 F.3d 534 (8th Cir. 2012). At that point, Ali had been ordered removed, and he had exhausted his administrative and judicial remedies. But Somalia would not agree to accept Ali's return, so ICE permitted Ali to continue residing in Minnesota subject to an order of supervision. ECF No. 13 (“Mem. ISO TRO Mot.”) at 2-3.

         In September or October 2017, after ICE learned that Somalia had decided to accept Ali's return, ICE took Ali into custody. See ECF No. 8 at 4; ECF No. 9 ¶ 13; ECF No. 13 at 2. In late November 2017, ICE transported Ali from Minnesota to Louisiana, in anticipation of removing him to Somalia. ECF No. 9 ¶ 15. On December 1, 2017, Ali filed a motion with the BIA to reopen his case and stay removal. TRO Mot., Exs. F-G, J. Ali seeks to establish that changed conditions in Somalia (namely the rise of Al-Shabaab and its persecution of “Westernized” Somalis such as Ali) warrant the reopening of his immigration case and entitle him to remain in the United States. See Id. Both motions remain undecided.

         Also on December 1, 2017, Ali filed in this Court a petition for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. Ali argues that he “cannot be removed to Somalia without being afforded a process to determine whether, based on current conditions and circumstances, the danger he would face entitles [him] to protection from removal.” Id. ¶ 10.

         Ali now moves the Court to enjoin respondents from removing him to Somalia until the BIA rules on his pending motion to reopen. He argues that failure to stay his removal will “deprive him of due process of law and violate U.S. law.” Mem. ISO TRO Mot. at 3. Specifically, Ali argues (among other things) that, if he is deported, he will be deprived of his statutory right to a decision on his motion to reopen because of the “departure bar”-a regulation under which Ali's motion to reopen will be deemed withdrawn as soon as he is deported. See 8 C.F.R. § 1003.23(b)(1).

         II. DISCUSSION

         Ali's habeas action is one of five that were filed in this District on December 1, 2017, all on behalf of petitioners whose removal to Somalia was imminent. In all five cases, the petitioner moved for a TRO to block his removal, and in all five cases, the government opposed the motion by arguing that the Court did not have jurisdiction over the habeas action. In four of the cases, judges of this District have agreed with the government and denied the petitioner's motion for a TRO.[1] This Court agrees with those decisions on all issues save one, but that disagreement dictates a different result.

         To begin, this Court agrees that, on its face, the jurisdiction-stripping provision codified at 8 U.S.C. § 1252(g) deprives this Court of jurisdiction over ...


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