Ibrahim v. Sessions et al

Filing 16

ORDER denying 4 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. 17-5333(DSD/TNL)
Abdoulmalik Ibrahim
Petitioner,
v.

ORDER

Jefferson Beauregard Sessions III,
Attorney General; et al.
Respondents.

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
respondents.

This

matter

is

before

the

court

upon

the

motion

for

a

temporary restraining order by petitioner Abdoulmalik Ibrahim.
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the motion is denied.

BACKGROUND
Ibrahim is a citizen of Somalia who has resided in the United
States for over thirteen years.

Pet. ¶ 1.

He applied for asylum

in February of 2004, but his application was denied and he was
ordered removed on August 9, 2004.

Id. ¶ 28.

Immigration Appeals (BIA) denied his appeal.

Id.

The Board of
Immigration and

Customs Enforcement (ICE) did not immediately deport Ibrahim to

Somlia, but rather placed him on an order of supervision where he
was expected to check-in at regular intervals.

Id. ¶ 29.

On November 6, 2017, at a regular check-in, ICE detained
Ibrahim in order to execute the removal order.

Id.

He was

subsequently transferred to a detention facility and is expected to
be deported by December 7, 2017.1

Id. ¶ 5.

On November 22,

Ibrahim filed motions with the BIA to reopen based on changed
country conditions in Somalia and to stay removal.
Ex. J.

Id.; see Pet’r

To date, the BIA has not ruled on either motion.

On

December 1, Ibrahim 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 Al-Shabaab, (2) his removal before the BIA
rules on his motions constitutes a violation of due process, and
(3) his detention is unlawful.

On December 4, 2017, Ibrahim filed

this motion for a temporary restraining order seeking a stay of his
removal.

DISCUSSION
I.

Standard of Review
A TRO is an extraordinary equitable remedy, and the movant

1

At
would be
petition
deported

the hearing, the government’s counsel stated that Ibrahim
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.
2

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.
at 114.

Id.

But if a court determines it lacks jurisdiction over the

matter, it need not analyze the Dataphase factors.

Buezo v.

Banieke, No. 08-206, 2008 WL 312808, at *2 (D. Minn. Feb. 1, 2008).
II.

Jurisdiction
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
that decision.”

Silva v. United States, 866 F.3d 938, 940 (8th

Cir. 2017) (internal quotation marks and citation omitted).

Here,

Ibrahim asks the court to stay his removal, a claim that is
3

directly related to the Attorney General’s decision to execute a
removal order.

As a result, the court lacks jurisdiction over his

claim.2
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.
petitioner

in

Jama,

Silva, 866 F.3d at 941.

Ibrahim

does

not

challenge

Unlike the
the

Attorney

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.
Ibrahim 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
order.

The court finds that those cases are distinguishable.

First, petitioners in those cases sought injunctive relief so that
they could file a motion to reopen their cases with the BIA,
something that Ibrahim has already done.
at 830; Devitri, 2017 WL 5707528, at *1.

2

Hamana, 258 F. Supp. 3d
Second, the courts in

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).
4

Hamana and Devitri concluded that the immigration procedures under
the

REAL

ID

Act

were

inadequate

and

ineffective

under

the

extraordinary circumstances presented. 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).
Such extraordinary circumstances are not present here.

Thus, the

court is bound to apply Eighth Circuit precedent holding that the
procedures provided for under the REAL ID Act afford an adequate
and effective 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.”).

As a result, the court must deny injunctive relief.

5

CONCLUSION
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. 4] is denied.
Dated: December 5, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court

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