United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on Petitioner's Motion for
Preliminary Injunction and Emergency Temporary Restraining
Order (“TRO”). (Docket No. 2.) For the following
reasons, the Motion is transferred to the Eighth Circuit.
is a Mexican national who entered the United States in July
2000 without admission or parole. In 2015, Petitioner was
convicted of one count of perjury, and thereafter the U.S.
Immigration and Customs Enforcement (“ICE”)
alleged that Petitioner was removable as an alien convicted
of an aggravated felony. See 8 U.S.C. §
1227(a)(2)(A)(iii). ICE arrested her on July 22, 2016. After
her arrest, Petitioner sought protection from removal by
applying for a U-Visa. While that petition was pending,
Petitioner applied for asylum and withholding of removal
before an immigration judge. In October 2016, Petitioner
withdrew her applications for withholding without prejudice
to re-file, pending adjudication of her U-Visa application.
She also filed for an administrative stay of removal, which
ICE denied in December 2016. Petitioner then reraised her
withholding of removal claim by filing a motion to re-open in
her administrative immigration proceeding.
2017, U.S. Citizenship and Immigration Services
(“USCIS”) sent Petitioner a letter which stated
that her petition “seemed to demonstrate” that
she was eligible for a U-Visa. The letter did not constitute
a stay of her removal. However, Petitioner was given
“deferred action” and placed on a waiting list
because Congress has limited the number of new U-Visas to 10,
000 per fiscal year. After receiving the letter, Petitioner
filed for administrative closure of her removal proceedings
with the immigration judge, and the judge closed her
proceedings in July 2017. The Department of Homeland Security
(DHS) then sought to re-open the proceedings. After several
hearings and appeals, the immigration judge granted the
DHS's motion to re-calendar the Petitioner's case in
April 2018. On May 22, 2018, the immigration judge issued an
order denying all remaining relief from removal. Petitioner
appealed, and the Board of Immigration Appeals affirmed on
November 9, 2018, constituting a final order of removal.
Petitioner is seeking review of her final order for removal
but has not yet filed for a stay in the Eighth Circuit.
seeks a TRO that will: (1) enjoin the Government from
removing her to Mexico while she seeks relief in the Eighth
Circuit Court of Appeals regarding her final order for
removal; (2) enjoin her removal so that this Court may
consider the merits of her habeas petition; and (3) enjoin
the Government from continuing to detain her.
Government claims that this Court lacks subject-matter
jurisdiction to review the validity of Petitioner's
removal, and further claims that Petitioner's continued
detention is constitutional under 8 U.S.C. § 1231.
decide a motion for a preliminary injunction or TRO by
weighing the Dataphase factors: (1) the probability
of success on the merits; (2) whether the movant will suffer
irreparable harm; (3) the balance of the harm between the
parties; and (4) the public interest. Dataphase Sys.,
Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.
1981). However, when a district court determines that it
lacks jurisdiction over a TRO motion, it need not consider
the Dataphase factors.
immigration laws provide: “Notwithstanding any other
provision of law . . . including [28 U.S.C. § 2241], or
any other habeas corpus provision . . . a petition for review
filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for
judicial review of an order of removal.” 8 U.S.C.
§1252(a)(5). Relatedly, § 1252(g) provides:
“no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision
or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien
under this Act.” Congress subsequently amended §
1252, clarifying that the “exclusive means” of
seeking the review of a removal order, including habeas
corpus review, is by petition to the circuit court of
appeals. REAL ID Act of 2005, Pub. L. No. 109-13, div. B,
title I, § 106, 119 Stat. 311.
attempts to sidestep the jurisdictional issue by claiming
that she is not requesting review of her removal decision but
instead is challenging an agency policy under the
Administrative Procedures Act (“APA”) and the
constitutionality of her detention under the Fifth Amendment.
However, Petitioner is still asking this Court to stay the
execution of her final order of removal, and § 1252(g)
prohibits this Court from doing so; this case presents a
“cause or claim by . . . any alien arising from the
decision or action by the Attorney General to . . . execute
removal orders.” 8 U.S.C. § 1252(g).
arguments make clear that she is not only seeking a stay, but
in fact seeking review of the validity and reasoning behind
her removal order. Petitioner challenges her removal on the
grounds that (1) she has been granted “deferred
action” due to her status on the U-Visa waitlist, and
therefore her removal is improper; and (2) the Department of
Homeland Security's choice to change its policy regarding
deportation of “deferred action” aliens is
arbitrary and capricious. Petitioner argues that because she
is challenging agency action under the APA, she is not
challenging her final order for removal. However, a
petitioner may not avoid jurisdictional issues by attempting
to disguise a challenge to a removal order as an APA claim,
which is what Petitioner has done here. Balogun v.
Sessions, 330 F.Supp.3d 1211, 1217 (C.D. Cal. 2018).
These claims directly arise from the underlying removal
order, and therefore this Court lack jurisdiction to address
the merits of Petitioner's request for a TRO under §