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Nicholas L. L. v. Barr

United States District Court, D. Minnesota

October 7, 2019

Nicholas L. L., Petitioner,
v.
William P. Barr, Kevin McAleenan, Matthew T. Albence, Peter Berg, Department of Homeland Security, Immigration and Customs Enforcement, Michael Paul, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Respondents.

          David L. Wilson and Brittany S. Bakken, Wilson Law Group LLC, Minneapolis, MN, for Petitioner Nicholas L. L.

          Adam J. Hoskins, Ana H. Voss, and Ann M. Bildtsen, United States Attorney's Office for Respondents.

          William P. Barr, Kevin McAleenan, Matthew T. Albence, Peter Berg, Department of Homeland Security, Immigration and Customs Enforcement, Michael Paul, Kenneth T. Cuccinelli, and U.S. Citizenship and Immigration Services.

          OPINION AND ORDER

          ERIC C. TOSTRUD UNITED STATES DISTRICT COURT JUDGE.

         Nicholas L.L. claims to be a victim of human trafficking. He is in the custody of United States Immigration and Customs Enforcement (“ICE”). He has been ordered removed from the United States to Mexico, and his removal is imminent. Nicholas alleges that his removal would violate federal law because it would prevent him from continuing to pursue a visa for which he has applied that is available to victims of human trafficking (a “T visa”). By law, that type of visa is unavailable to persons who are not physically present in the United States or at a port of entry to the United States. Nicholas here seeks a temporary restraining order preventing ICE from removing him from the United States until United States Citizenship and Immigration Services (“USCIS”) makes a preliminary or “bona fide” determination regarding his pending application for a T visa. If made in Nicholas's favor, that determination would by law stay execution of the removal order. Because the Government received notice of the motion and had the opportunity to respond, the motion will be treated as one for a preliminary injunction. See Fed. R. Civ. P. 65. Nicholas's motion will be denied. Under a federal statute and controlling Eighth Circuit precedent interpreting that statute, the federal district courts have subject-matter jurisdiction to review only “purely legal questions” arising from the decision to execute an order of removal. Most of Nicholas's claims raise questions that are not purely legal. Though Nicholas seems to assert one purely legal question, he has not shown that he is likely to prevail on the merits of that claim, making the entry of a preliminary injunction inappropriate.

         I

         Nicholas is a native and citizen of Mexico who, as far as the record reflects, first entered the United States in August 2005. Bakken Decl., Ex. D [ECF No. 3-4]. In April 2011, an immigration judge issued an order of removal, and Nicholas was removed from the United States on April 27, 2011. Id.; see also O'Denius Decl., Ex. B [ECF No. 15-2]. Nicholas re-entered the United States on March 15, 2019. Bakken Decl., Ex. D. ICE detained him until March 26, when he was served with a notice of ICE's intent to reinstate the previous order of removal entered against him and released on an order of supervision. Id. On July 17, ICE notified Nicholas that his order of supervision had been revoked and detained him. O'Denius Decl., Ex. E [ECF No. 15-5]. Nicholas has since remained in ICE custody.

         On August 6, Nicholas applied for a T visa by filing an I-914 application for T-1 nonimmigrant status. Bakken Decl., Ex. B. [ECF No. 3-2]. As part of his application, Nicholas described how human traffickers forced his March 2019 entry into the United States. According to Nicholas, members of a drug cartel, believing he was wealthy, kidnapped him in Mexico City and brought him to a house near the United States border. Id. at 30. The kidnappers demanded ransom, but after Nicholas persuaded them that he did not have money to pay a ransom, the kidnappers forced him to traffic drugs into the United States. Id. at 31. On their return trip to Mexico, Nicholas injured his leg and became unable to walk, and the kidnapper-traffickers abandoned him. Id. The next day, Nicholas flagged down a passing driver and asked the driver to contact United States immigration authorities. Id. Immigration officers brought Nicholas to a hospital where doctors performed surgery on his leg; after surgery, he was placed in ICE custody. Id. at 31-32. At the time he applied for a T visa, Nicholas also filed an I-246 application with ICE for a stay of deportation or removal pending a bona fide determination by USCIS on his T-visa application. Id., Ex. C [ECF No. 3-3].

         On September 10, Nicholas appeared before an immigration judge for review of a reasonable-fear determination made by the Department of Homeland Security (“DHS”). See O'Denius Decl., Ex. F [ECF No. 15-6]. The immigration judge found that Nicholas had not “established a reasonable possibility that he[] would be persecuted on the basis of his[] race, religion, nationality, membership in a particular social group, or his[] political opinion, or a reasonable possibility that he[] would be tortured in the country of removal.” Id. The immigration judge returned Nicholas's case to DHS for execution of his removal order. Id.

         On September 13, ICE denied Nicholas's request for a stay for removal. Bakken Decl., Ex. G [ECF No. 3-7]. Upon being notified of the denial four days later, Nicholas's attorney contacted USCIS to request an expedited bona fide determination on Nicholas's T-visa application. Id., Ex. F [ECF No. 3-6]. USCIS has not yet made a bona fide determination regarding the T-visa application.

         On September 17, Nicholas filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 1651 and Article I, Section 9, Clause 2 of the United States Constitution (“the Suspension Clause”). Habeas Pet. ¶ 1 [ECF No. 1]. He also filed an Emergency Motion for Temporary Restraining Order and Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65, seeking to prevent ICE from removing him from the United States while his T-visa application and habeas petition are pending. Mot. for TRO & Prelim. Inj. [ECF No. 2]. On September 18, Nicholas was placed on a flight to execute his removal. He was removed from the flight prior to departure, and he remains in ICE custody pending resolution of this motion. Nicholas filed an amended petition for a writ of habeas corpus late on October 1, the night before the hearing on his motion. First Am. Pet. [ECF No. 16]. At that hearing, the Government volunteered that, while it maintains an interest in the expeditious resolution of this matter, Nicholas would not be removed until a decision is made on his motion.

         II

         A

         Nicholas seeks a preliminary injunction preventing ICE from removing him from the United States until USCIS makes a “bona fide determination” regarding his T-visa application.[1] T-1 nonimmigrant status is a visa classification that provides non-citizen victims of severe trafficking with immigration relief. An alien is eligible for T-1 nonimmigrant status if the alien demonstrates that he or she “is or has been a victim of a severe form of trafficking in persons, ” “is physically present in the United States or at a port-of-entry thereto, ” “has complied with any reasonable request for assistance” in an investigation or prosecution of an act involving trafficking of persons, and “would suffer extreme hardship involving unusual and severe harm upon removal.” 8 C.F.R. § 214.11(b); see also id., § 214.11(f)-(i); 8 U.S.C. § 1101(a)(15)(T). An alien is rendered ineligible for a T visa “if there is substantial reason to believe that the alien has committed an act of a severe form of trafficking in persons.” 8 C.F.R. § 214.11(b)(5).

         An alien “subject to a final order of removal . . . may file an application for T-1 nonimmigrant status directly with USCIS.” Id., § 214.11(d)(1)(ii). USCIS has “sole jurisdiction over all applications for T nonimmigrant status.” Id., § 214.11(d). “The filing of an application for T nonimmigrant status has no effect on DHS authority or discretion to execute a final order of removal, although the alien may request an administrative stay of removal pursuant to 8 C.F.R. 241.6(a).” Id., § 214.11(d)(1)(ii). “Neither an immigration judge nor the Board [of Immigration Appeals (“BIA”)] has jurisdiction to ...


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