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Nieto v. Nielsen

United States District Court, D. Minnesota

July 16, 2018

Jesus Lara Nieto [A 079-039-862, Plaintiff,
Kirstjen Nielsen, Secretary, Department of Homeland Security; Peter Berg, District Director, U.S. Immigration & Customs Enforcement (ICE); Jefferson Beauregard Sessions, III, United States Attorney General, Defendants.

          Jason A. Nielson, Esq., and Herbert A. Igbanugo, Esq., Igbanugo Partners Int'l Law Firm, PLLC, counsel for Plaintiff.

          Ana H. Voss and Ann M. Bildtsen, Assistant United States Attorneys, United States Attorney's Office, counsel for Defendants.




         This 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 Motion.


         Plaintiff 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.

         On 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.)

         On July 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.)

         In May 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.

         On 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. (Id.)

         On June 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.

         On July 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 ...

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