Sheikh et al v. Sessions et al

Filing 19

ORDER: Petitioner's Emergency Motion for Temporary Restraining Order and Stay of Removal [ECF No. 3 ] is DENIED. (Written Opinion) Signed by Judge Joan N. Ericksen on December 6, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ABUBAKAR SHEIKH,
Petitioner,
v.

Case No. 17-cv-5330 (JNE/HB)
ORDER

JEFFERSON BEAUREGARD SESSIONS, III
Attorney General,
Respondent.

Petitioner Abubakar Sheikh seeks an Emergency Motion for Temporary
Restraining Order to stay his removal from the United States. Because this Court lacks
jurisdiction, and for the reasons set forth below, Petitioner’s motion is denied.

BACKGROUND
Sheikh is a Somali national who came to the United States as a refugee in 1997. In
1999, he was convicted of a misdemeanor and taken into Immigration and Naturalization
Service (“INS”) custody. While in removal proceedings, he applied for asylum. He was
ordered removed on March 12, 2003. He appealed to the Board of Immigration Appeals
(“BIA”) and was denied on May 26, 2004. The Eighth Circuit Court of Appeals denied
his petition for review on November 2, 2005.

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Subsequent to the removal order, Sheikh routinely reported to U.S. Immigration
and Customs Enforcement (“ICE”) as part of his order of supervision. In August 2017, he
reported to one of his routine check-ins and was taken into ICE custody. On September
29, 2017, he filed a motion to reopen his case before the BIA. He also filed a motion to
stay his deportation. Both motions are still pending.
The Government has informed Sheikh’s counsel that his removal will take place
on December 7, 2017. Sheikh contends that if he is removed to Somalia, he faces
significant risk of persecution and torture. Specifically, he alleges that after two decades
in the United States, he will be seen as a “westernized” infidel by the Muslim extremist
group Al-Shabaab, which was formed in 2006.

DISCUSSION
Sheikh seeks an emergency TRO to stay his removal at least until the BIA renders
a decision on his motion to reopen. His principal argument is that failure to stay his
removal pending the BIA’s decision violates his constitutional right to due process and
his rights, under the Immigration and Nationality Act and the Convention Against
Torture, not to be removed to a country where he is likely to be persecuted or tortured.
Sheik’s motion must be denied on jurisdictional grounds. 1 Under 8 U.S.C. §
1252(g), “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 . . . execute

1

The Court’s analysis benefits from the December 5, 2017 Order issued by Judge Michael J.
Davis in a substantially similar case, Adan v. Sessions, No. 17-CV-5328.
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removal orders against any alien under this chapter.” Because this action arises from the
execution of a removal order, this Court lacks jurisdiction.
Sheikh’s advances several arguments to support his position that this Court retains
jurisdiction. First, he contends that he is not challenging the removal order, but instead is
challenging his deprivation of constitutional due process and his statutory right not to be
removed to a country where he is likely to be subjected to persecution or torture. But
§ 1252(g) removes jurisdiction over “any cause or claim” that arises from the execution
of a removal order. As the Eighth Circuit has recently explained, “A claim that is
‘connected directly and immediately’ to a decision to execute a removal order arises from
that decision.” Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (quoting
Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 943 (5th Cir. 1999)). Here,
Sheikh’s claim arises from the execution of a removal order, despite the fact that it takes
the form of a habeas petition. As such, it falls within the scope of § 1252(g), and the
Court lacks jurisdiction.
Sheikh next argues that the Court has jurisdiction via an exception to § 1252(g) for
“habeas claims raising a pure question of law,” recognized by the Eighth Circuit. Silva v.
United States, 866 F.3d 938, 941 (8th Cir. 2017) (describing the holding in Jama v.
Immigration & Naturalization Service, 329 F.3d 630 (8th Cir. 2003)). Sheikh’s position
is that he is challenging “the act of removal, rather than the decision to execute a removal
order,” and that this falls into the Jama carve-out. But Sheikh’s claim is not a pure
question of law. It is a fact-intensive inquiry involving an assessment of changed country
conditions. In this way, it stands in sharp contrast to the issue in Jama, which was a
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statutory construction question about the Attorney General’s “legal conclusion” that an
alien petitioner could be returned to a country before it was established that the country
would accept him. Silva, 866 F. 3d at 941. Accordingly, jurisdiction over Sheikh’s claim
cannot be established via the purely legal question exception to § 1252(g).
Sheikh urges the Court to follow the decisions in two recent federal district court
cases outside of this circuit: Hamama v. Adducci, 258 F.Supp.3d 828 (E.D. Mich. 2017)
and Devitri v. Cronen, 2017 WL 5707528 (D. Mass. Nov. 27, 2017). The courts in both
cases retained jurisdiction over challenges to removal orders, principally on the grounds
that denying a stay would violate the Suspension Clause of the United States
Constitution. Sheikh maintains that here, as in Hamama and Adducci, denial of his stay
will violate the Suspension Clause because there is no adequate or efficient alternative for
appeal. But Sheikh’s reliance on those cases is misplaced. First, both decisions are at
odds with clear Eighth Circuit precedent regarding district court habeas jurisdiction over
removal orders. See, Tostado v. Carlson, 481 F.3d 1012 (8th. Cir 2007) (“Under § 106(c)
of the REAL ID Act, district courts no longer have habeas jurisdiction to review final
orders of review. . . .”). The decisions also conflict with the Eighth Circuit’s conclusion
that the mechanism for appeal provided by the REAL ID Act is an adequate and effective
substitute for habeas – a holding that undercuts the rationale in Hammer and Adducci. See
Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007). Moreover, even if Eighth
Circuit precedent were not an obstacle, Hammer and Adducci are distinguishable because
the sudden policy shift that triggered removal orders of the aliens in those cases is not
replicated here.
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Lastly, Sheikh contends that his due process argument is bolstered because the
Eighth Circuit still enforces the so-called “departure bar” rule of 8 C.F.R. § 1003.2(d),
under which motions to reopen cannot be made after an alien has departed from the
United States. Sheikh argues that because this rule eliminates his options for appeal after
removal, he will not be afforded due process. The Court disagrees. Every circuit court
that has addressed the issue has declined to enforce the departure bar. The Eighth Circuit
has not had occasion to rule on the question. But in Gomez-Gutierrez v. Lynch, the Eighth
Circuit did note the out-of-circuit unanimity on the departure bar question. 811 F.3d
1053, 1057, n.3 (8th Cir. 2016) (citing Toor v. Lynch, 789 F.3d 1055, 1056-57 (9th
Cir.2015) for the proposition that “every other circuit that has addressed” the departure
bar issue has held it invalid). Therefore, this Court anticipates that the Eighth Circuit
would not decide the departure bar question contrary to the holding in Toor and the
related cases from other circuits.

CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated
above, IT IS ORDERED THAT:
Petitioner’s Emergency Motion for Temporary Restraining Order and Stay of
Removal [ECF No. 3] is DENIED.

Dated: December 6, 2017

s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
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