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Mohamed v. Sessions

United States District Court, D. Minnesota

July 25, 2018

Abdullahi Abukar Mohamed, Petitioner,
v.
Jefferson Beauregard Sessions, III, Attorney General; Kirstjen Nielsen, Secretary, Department of Homeland Security; Thomas Homan, Acting Director, Immigration and Customs Enforcement; Scott Baniecke, Director, St. Paul Field Office, Immigration and Customs Enforcement; Brian Acuna, Director, New Orleans Field Office, Immigration and Customs Enforcement, Respondents.

          David L. Wilson, Esq. and Wilson Law Group, counsel for petitioner.

          Ana H. Voss, United States Attorney counsel for respondents.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the motion for a temporary restraining order by petitioner Abdullahi Abukar Mohamed. Based on a review of the file, record, and proceedings herein, and for the following reasons, the motion is denied.

         BACKGROUND

         Mohamed is a citizen of Somalia who has resided in the United States since 2014. Pet. ¶ 1. On March 23, 2014, he applied for asylum in San Ysidro, California, based on his membership in a minority clan in Somalia. Id. ¶ 29; Wilson Decl. Ex. F at 2. He also filed applications for withholding of removal and protection under the Convention Against Torture. Pet. ¶ 29. The immigration judge (IJ) denied the applications on October 18, 2016, and ordered Mohamed's removal. Id. Mohamed did not appeal that decision.

         In 2017, Mohamed filed for an adjustment of status based on his marriage to a United States citizen. See Wilson Decl. Ex. G. He was taken into custody by Immigration and Customs Enforcement (ICE) in March 2018 when he appeared for an interview relating to his marriage-based petition. That petition remains pending.

         He thereafter filed a motion to reopen his asylum case in the San Diego Immigration Court based on changed circumstances in Somalia. Id. Ex. H. On April 23, 2018, the IJ denied the motion. Id. Ex. F. Mohamed filed an appeal with the Board of Immigration Appeals (BIA) challenging the denial. Id. Ex. E. That appeal is pending. He also filed requests to stay his removal pending final resolution of his marriage-based application and his appeal. Those requests have been denied. Id. Exs. A, C. Mohamed is currently awaiting removal in a detention center in Louisiana. Pet. ¶ 1.

         On June 26, 2018, Mohamed filed a petition for habeas corpus seeking a stay of his removal and release from detention, claiming that (1) his removal subjects him to risk of persecution and torture by the terrorist group Al-Shabaab, (2) his removal before the BIA rules on his pending motions constitutes a violation of due process, and (3) his detention is unlawful. The same day, Mohamed filed this motion for a temporary restraining order (TRO) seeking a stay of his removal.[1]

         DISCUSSION

         I. Standard of Review

         A TRO is an extraordinary equitable remedy, and the movant bears the burden of establishing its propriety. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). The purpose of a TRO is to “preserve the status quo until the merits [of the case] are determined.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). In determining whether it should issue a TRO, the court considers: (1) the threat of irreparable harm to the movant in the absence of relief, (2) the balance between the harm to the movant in the absence of relief and the harm that the relief may cause the non-moving party, (3) the likelihood of the movant's ultimate success on the merits, and (4) the public interest. Id. at 114. But if a court determines it lacks jurisdiction over the matter, it need not analyze the Dataphase factors. Buezo v. Banieke, No. 08-206, 2008 WL 312808, at *2 (D. Minn. Feb. 1, 2008).

         II. Jurisdiction

         The court lacks jurisdiction over any case that challenges the decision of the Attorney ...


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