United States District Court, D. Minnesota
Nicholas L. L., Petitioner,
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.
L. Wilson and Brittany S. Bakken, Wilson Law Group LLC,
Minneapolis, MN, for Petitioner Nicholas L. L.
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
C. TOSTRUD UNITED STATES DISTRICT COURT JUDGE.
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
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.
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].
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.
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.
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.
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. 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).
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