Mohamed v. Sessions et al
ORDER denying 10 Motion for TRO (Written Opinion). Signed by Senior Judge David S. Doty on 12/5/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 17-5331(DSD/BRT)
Jefferson Beauregard Sessions III,
Attorney General; et al.
Kimberly K. Hunter, Esq., John R. Bruning, Esq. and Kim Hunter
Law, PLLC, 656 Selby Avenue, Suite 100, St. Paul, MN 55104,
counsel for petitioner.
Ann M. Bildtsen, United States Attorney’s Office, 300 South 4th
Street, Suite 600, Minneapolis, MN 55415, counsel for
temporary restraining order by petitioner Abdihakim Mohamed. Based
on a review of the file, record, and proceedings herein, and for
the following reasons, the motion is denied.
Mohamed is a citizen of Somalia who has resided in the United
States for nearly twenty years.
Pet. ¶ 1.
He applied for asylum
in October of 1999, but he was ordered removed in absentia on
February 20, 2001.
Id. ¶ 28.
(BIA) denied his appeal.
The Board of Immigration Appeals
Immigration and Customs Enforcement
(ICE) did not immediately deport Mohamed to Somlia, but rather
placed him on an order of supervision where he was expected to
check-in at regular intervals.
Id. ¶ 29.
Recently, at a regular check-in, ICE detained Mohamed in order
transferred to a detention facility and is expected to be deported
by December 7, 2017.2
Id. ¶ 5.
On November 22, Mohamed filed
motions with the BIA to reopen based on changed country conditions
in Somalia and to stay removal.
Id.; see Pet’r Ex. J.
the BIA has not ruled on either motion.
On December 1, 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 AlShabaab, (2) his removal before the BIA rules on his pending
motions constitutes a violation of due process, and (3) his
detention is unlawful.
On December 4, 2017, Mohamed filed this
motion for a temporary restraining order seeking a stay of his
The exact date on which ICE detained Mohamed is unclear.
the hearing, the government’s counsel stated that Mohamed
deported no earlier than December 7. According to the
for habeas corpus, it was believed that he would be
by December 6. See id. ¶ 5.
Standard of Review
A TRO is an extraordinary equitable remedy, and the movant
bears the burden of establishing its propriety.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003).
Watkins Inc. v.
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.
But if a court determines it lacks jurisdiction over the
matter, it need not analyze the Dataphase factors.
Banieke, No. 08-206, 2008 WL 312808, at *2 (D. Minn. Feb. 1, 2008).
The court lacks jurisdiction over any case that challenges the
decision of the Attorney General to execute a removal order.
[N]otwithstanding any other provision of law ... 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 executive removal orders against any
alien under this chapter.
8 U.S.C. § 1252(g).
“A claim that is connected directly and
immediately to a decision to execute a removal order arises from
Silva v. United States, 866 F.3d 938, 940 (8th
Cir. 2017) (internal quotation marks and citation omitted).
Mohamed asks the court to stay his removal, a claim that is
directly related to the Attorney General’s decision to execute a
As a result, the court lacks jurisdiction over his
Although the Eighth Circuit in Silva recognized that Jama v.
Immigration and Naturalization Service, 329 F.3d 630 (8th Cir.
2003) carved out an exception to § 1252(g) for habeas claims that
raise a pure question of law, the court does not find that the
exception applies here.
Silva, 866 F.3d at 941.
General’s construction of a statute, rather his claims are based on
the fact-intensive inquiry into whether conditions in Somalia have
changed such that his removal should be prevented.
See Jama, 329
F.3d at 632-33.
Mohamed cites to Hamana v. Adducci, 258 F. Supp. 3d 828 (E.D.
Mich. 2017) and Devitri v. Cronen, No. 17-11842-PBS, 2017 WL
5707528 (D. Mass. Nov. 27, 2017) where the district courts, finding
that they had jurisdiction, stayed the execution of a removal
The court notes its agreement with the reasoning of Judge
Michael J. Davis who, in a nearly identical case, denied a
temporary restraining order based on a lack of jurisdiction. See
Adan v. Sessions, No. 17-5328 (MJD/BRT) (D. Minn. Dec. 4, 2017).
The court finds that those cases are distinguishable.
First, the petitioners in those cases sought injunctive relief so
that they could file a motion to reopen with the BIA, something
that Mohamed has already done.
Hamana, 258 F. Supp. 3d at 830;
Devitri, 2017 WL 5707528, at *1.
Second, the courts in Hamana and
Devitri concluded that the immigration procedures under the REAL ID
See Hamana, 258 F. Supp. 3d at 840-41
(discussing that the government’s execution of removal affected
1,444 persons consequently overwhelming the immigration system and
that the aliens had difficulty obtaining and communicating with
counsel); Devitri, 2017 WL 5707528, at *7 (discussing the concern
that the BIA’s emergency procedures may not apply to petitioners
because they were not in physical custody).
circumstances are not present here.
Thus, the court is bound to
apply Eighth Circuit precedent holding that the procedures provided
alternative to habeas relief.
See Mohamed v. Gonzalez, 477 F.3d
522, 526 (8th Cir. 2007) (“Congress has created a remedy as broad
in scope as a habeas petition.
It is an adequate and effective
substitute to test the legality of a person’s detention.”).
result, the court must deny injunctive relief.
Accordingly, based on the above and as stated at the hearing,
IT IS HEARBY ORDERED that petitioner’s motion for a temporary
restraining order [ECF No. 10] is denied.
Dated: December 5, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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