United States District Court, D. Minnesota
Kimberly K. Hunter and John R. Bruning, KIM HUNTER LAW,
P.L.L.C., for petitioner.
Voss and Ann M. Bildtsen, UNITED STATES ATTORNEY'S
OFFICE, for respondents.
Patrick J. Schiltz United States District Judge
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
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.
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.
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.
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.
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
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.
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.
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).
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. This Court agrees with those decisions on
all issues save one, but that disagreement dictates a
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 ...