United States District Court, D. Minnesota
A. Nielson, Esq., and Herbert A. Igbanugo, Esq., Igbanugo
Partners Int'l Law Firm, PLLC, counsel for Plaintiff.
Voss and Ann M. Bildtsen, Assistant United States Attorneys,
United States Attorney's Office, counsel for Defendants.
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Jesus Lara
Nieto's Emergency Motion for Temporary Restraining Order
(the “Motion”). (Doc. No. 5.) After a hearing on
July 9, 2018, the Court issued an Order briefly detailing the
Court's denial of Plaintiff's Motion. (Doc. No. 22.)
For the reasons set forth below, the Court finds that it
lacks subject matter jurisdiction over Plaintiff's
Jesus Lara Nieto, a native and citizen of Mexico, first
entered the United States in 1993 without inspection. (Doc.
No. 1 (“Compl.”) ¶ 6.) In 1998, Lara Nieto
married his United States citizen wife, Blanca Lara, in
Dallas, Texas. (Id.) Plaintiff filed for lawful
permanent resident status, but the application was eventually
denied because Plaintiff and his wife lacked a financial
sponsor with sufficient income. (Id.) The couple has
three United States citizen children. (Id.)
Plaintiff does not allege, however, that he has ever had
legal status within the United States.
February 20, 2003, Plaintiff was convicted of Assault-Family
Violence in McLennan County, Texas. (Id., ¶ 7.)
Plaintiff was sentenced to 12 months in prison.
(Id.) On June 3, 2003, the former Immigration and
Naturalization Service (“INS”) issued a Notice of
Intent to Issue a Final Administrative Removal Order (the
“Notice”) against Plaintiff. (Doc. No. 15
(“O'Denius Decl.”) ¶ 2, Ex. 3.) The
Notice indicated that Plaintiff was removable based upon his
Assault-Family Violence conviction. The Notice, citing 8
U.S.C. § 1227(a)(2)(A)(iii), stated that Plaintiff was
eligible for removal as an aggravated felon. (Id.)
However, the Notice incorrectly cited 8 U.S.C. §
101(a)(43)(B), relating to drug-trafficking crimes, as the
underlying aggravated felony. (Id.)
1, 2003, INS issued a final Administrative Order of Removal
(the “2003 Final Order”). (Compl. ¶ 7;
O'Denius Decl. ¶ 3, Ex. 4.) The 2003 Final Order
remedied the error from the Notice and cited 8 U.S.C. §
101(a)(43)(F), relating to crimes of violence, as the
underlying aggravated felony making Plaintiff eligible for
removal. (O'Denius Decl., Ex. 4.) On July 15, 2003,
Plaintiff was removed to Mexico. (Compl. ¶ 7;
O'Denius Decl. ¶ 4, Ex. 5.)
or June of 2005, Plaintiff reentered the United States
without inspection. (Compl. ¶ 8.) Since 2005, Plaintiff
has lived with his U.S. citizen wife and children, most
recently in Cottage Grove, Minnesota. (Id.)
Plaintiff does not allege that he attained legal status
during the past thirteen years.
April 27, 2018, Immigration and Customs Enforcement
(“ICE”) arrested Plaintiff during a vehicle stop.
(Id., ¶ 10; O'Denius Decl. ¶ 6, Ex.
6.) On the same day, ICE issued Plaintiff a Notice of
Intent/Decision to Reinstate Prior Order. (O'Denius Decl.
¶ 7, Ex. 7.) Plaintiff requested a reasonable fear
determination before U.S. Citizenship and Immigration
Services (“USCIS”), which USCIS conducted on May
8, 2018. (Id. ¶ 8-9.) USCIS subsequently found
that Plaintiff had not established a reasonable fear of
persecution. (Id. ¶ 9, Ex. 8.) On May 31, 2018,
the immigration judge denied Plaintiff's appeal.
(Id. ¶ 10, Ex. 9.) The immigration judge's
order noted that, pursuant to 8 U.S.C. § 1252, Plaintiff
could file a petition for review in the Eighth Circuit.
7, 2018, Plaintiff filed his petition for review and a motion
for stay of removal. See Lara-Nieto v. Sessions,
18-2232 (8th Cir. 2018); (O'Denius Decl. ¶ 12, Ex.
10), Plaintiff raises substantially similar arguments in his
motion for stay of removal to the Eighth Circuit as he does
in his pleadings to this Court. (Compare id.,
with Doc. Nos. 5, 5-1.) The Eighth Circuit granted
the stay to allow the Government to submit a response. Order,
Lara-Nieto, 18-2232 (June 7, 2018). On June 26,
2018, the Eighth Circuit denied the stay of removal. Order,
Lara-Nieto, 18-2232 (June 26, 2018). Plaintiff's
petition for review remains pending.
3, 2018, Plaintiff filed his Complaint and an Emergency
Motion for Temporary Restraining Order Removal Imminent.
(Doc. Nos. 1, 5.) In the Complaint, Plaintiff asks the Court
to review the reinstatement order and brings a collateral
attack on the validity of his underlying removal order. (Doc.
No. 1.) On July 9, 2018, the Court held a hearing on
Plaintiff's Emergency Motion for Temporary Restraining
Order Removal Imminent. (Doc. No. 5.) Due to the imminence of
Plaintiff's removal, the Court issued a brief order