Saustegui Vega v. McAleenan et al

Filing 18

MEMORANDUM AND ORDER - that Suastegui Vega's motion for a temporary restraining order and preliminary injunction (filing 15 ) is denied. Ordered by Chief Judge John M. Gerrard. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PABLO SUASTEGUI VEGA,
Plaintiff,

8:19-CV-189

vs.
MEMORANDUM AND ORDER
KEVIN MCALEENAN, Acting
Secretary of Homeland Security, et
al.,
Defendants.
The plaintiff, Pablo Suastegui Vega, is suing a number of government
officials, asserting claims arising from his detention, pending deportation, and
application for adjustment of status. Before the Court now is Suastegui Vega's
motion (filing 15) for injunctive relief, asking the Court to order the
government "to maintain the status quo by barring his removal, or further
transfer, until he has been given full and fair consideration of his statutory
claim to adjustment of status." Filing 15 at 3. But the Court lacks authority to
grant that relief, and will deny the motion.
BACKGROUND
Suastegui Vega entered the United States on February 2, 2016, fleeing
gang violence in his hometown of Acapulco. Filing 17 at 6. He presented
himself at a border crossing station and asked for asylum. Filing 17 at 6. He
was 17 years old at the time. Filing 17 at 6. A month later, he was released
into the custody of his aunt in Omaha. Filing 17 at 6, 12. On February 2, 2017,
Suastegui Vega's aunt was appointed as his guardian by the County Court of
Douglas County. Filing 17 at 24-26. Accordingly, he became eligible for "special

immigrant juvenile" status pursuant to 8 U.S.C. § 1101(a)(27)(J). He applied
for that status on March 17, 2017 (while he was still a juvenile) and it was
granted on March 8, 2018. Filing 17 at 32, 34.
That, in turn, made Suastegui Vega eligible for an adjustment of status
to lawful permanent resident pursuant to 8 U.S.C. § 1255, so he applied for
that on December 14, 2018. Filing 17 at 36. But he'd had some brushes with
the law. He'd received several traffic citations—each time including a charge
for driving without a license—and on November 24, 2018, he'd been arrested
at a cockfight. Filing 17 at 7-8. On December 18, he was convicted in the
County Court of Cass County of one count of animal neglect in violation of Neb.
Rev. Stat. § 28-1009. Filing 17 at 52. He was fined $500 and sentenced to 5
days' time served. Filing 52 at 17. But he wasn't released—instead, he was
detained by immigration authorities, and has been in detention since then.
Filing 17 at 8.
Suastegui Vega was again subject to removal proceedings, pending his
asylum claim. He moved to terminate the removal proceedings, citing his
pending application for adjustment of status, but the immigration judge denied
that motion on March 1, 2019, noting that he had no legal basis to terminate
the removal proceedings because jurisdiction over Suastegui Vega's
application for adjustment of status lay with Citizenship and Immigration
Services (USCIS). Filing 17 at 56-58. Then, on March 5, the immigration judge
denied Suastegui Vega's application for asylum and ordered him removed to
Mexico. Filing 17 at 60-70. Suastegui Vega says that his removal order has
been appealed to the Board of Immigration Appeals (BIA). See filing 16 at 10.
Suastegui Vega filed this suit on April 26. Filing 1. His application for
adjustment of status had been pending for a little over 4 months, but he
nonetheless alleged in his complaint that his application had not been

-2-

adjudicated within a "reasonable time." Filing 1. USCIS had held up the case
for at least some of that time because of pending litigation that, according to
Suastegui Vega, doesn't actually affect his case. See filing 17 at 86-88.
Suastegui Vega was also unable to appear for his scheduled biometrics
appointments because of his detention, and ICE refused to transport him.
Filing 17 at 90-97.
But much of that was mooted on June 13, when USCIS notified
Suastegui Vega that it intended to deny his application for adjustment of
status. Filing 17 at 99. Pursuant to § 1255(a), an alien's status may be adjusted
at the Attorney General's discretion if the alien (1) applies, (2) is statutorily
eligible for an immigrant visa and admissible for permanent residence, and (3)
an immigrant visa is immediately available. The notice provided by the USCIS
field office director noted those criteria, but did not make a finding as to
Suastegui Vega's statutory eligibility for adjustment of status—rather, the
director noted that adjustment of status is a "discretionary benefit," and
explained that Suastegui Vega's case presented "significant adverse factors
which show that discretion should not be exercised in [his] favor." Filing 17 at
100. Specifically, the director noted Suastegui Vega's repeated citations for
driving without a valid registration or operator's license, which "show[ed]
disrespect for the law." Filing 17 at 100. And the director discussed the facts of
Suastegui Vega's animal neglect conviction, describing the scene in somewhat
brutal terms, and noting that Suastegui Vega had not only been present, but
"fled and attempted to evade arrest" when authorities arrived. Filing 17 at 100.
That determination has also been appealed to the BIA. See filing 17 at
106-117. And, during Suastegui Vega's appeal from the order of removal, his
removal is stayed. See 8 C.F.R. § 1003.6(a). But, he says, the Department of
Homeland Security has asked that his appeal be summarily denied. Filing 15

-3-

at 2. So, he wants the Court to enjoin his removal pending his appeal from
denial of his application for adjustment of status. Filing 15 at 3.
DISCUSSION
Ordinarily, in determining whether to grant a temporary restraining
order, the Court must consider the factors set forth in Dataphase Systems, Inc.
v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981). Those factors include:
"(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest." Id. at 114.
But the calculus is different when a removal order is at issue. Pursuant
to 8 U.S.C. § 1252(a)(5), the "sole and exclusive means for judicial order of an
order of removal" is an appeal to the appropriate Court of Appeals from the
final order of removal. And "[n]otwithstanding any other provision of law, no
court shall enjoin the removal of any alien pursuant to a final order under this
section unless the alien shows by clear and convincing evidence that the entry
or execution of such order is prohibited as a matter of law." § 1252(f)(2).
Of course, there is no final order of removal for Suastegui Vega yet,
because the BIA has not yet reviewed the immigration judge's order. See
Solano-Chicas v. Gonzales, 440 F.3d 1050, 1054 (8th Cir. 2006) (citing §
1101(a)(47)). But that doesn't help Suastegui Vega, because that means he's
asking the Court to enjoin something that doesn't exist yet. Given that §
1252(f)(2) quite clearly precludes enjoining a final order of removal, the Court
is not persuaded that Suastegui Vega can avoid that preclusion by asking the
Court to enjoin the order of removal before it becomes final—because, simply
put, except as provided in § 1252, "no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from" a removal order. §
-4-

1252(g); cf. Lang v. Napolitano, 596 F.3d 426, 428-30 (8th Cir. 2010); cf. also
Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017).1
That leaves Suastegui Vega—even leaving aside the problem of enjoining
an order that's not enforceable yet—staring down § 1252(f)(2), and its burden
of showing "by clear and convincing evidence that the entry or execution of [the
removal] order is prohibited as a matter of law." See Mhanna v. U.S. Dep't of
Homeland Sec., No. 10-CV-292, 2010 WL 584034, at *12 (D. Minn. Feb. 16,
2010). That's a bar he doesn't clear, and his brief doesn't even try. See filing 16.
But even if the Court transposes his arguments for "likelihood of success on
the merits" into a § 1252(f)(2) argument, they don't carry enough weight.
To begin with, there's something of a disconnect between Suastegui
Vega's operative pleadings and his motion for injunctive relief, because while
his amended complaint expressly "is not challenging his removal order," filing
9 at 5, his motion for injunctive relief is doing precisely that. And as noted
above, Suastegui Vega's initial complaint had focused on USCIS's failure to
adjudicate his application for adjustment of status in what he considered to be
a reasonable time. See filing 1. After USCIS notified him of its intent to deny
his application, however—undercutting his "failure to adjudicate" claim—he
filed an amended complaint. See filing 9.

1

That would not, of course, preclude Suastegui Vega from attempting to persuade the Court

of Appeals to stay execution of a final removal order, during an appeal from that order. See
Nken v. Holder, 556 U.S. 418 (2009). And that might be his better choice. It made some sense
to litigate in district court when the gravamen of the case was a "failure to adjudicate," given
the caselaw discussed in more detail below. But the situation has obviously changed, and
Suastegui Vega isn't obliged to stay in district court just because he started here. Choice of
forum shouldn't be based on inertia.

-5-

Suastegui Vega's amended complaint asserts four claims, two of which
still arise out of alleged delay in adjudicating his application for adjustment of
status. See filing 9 at 30-33. One of those claims, at least, might have been
justiciable here, although opinions differ. See Debba v. Heinauer, No. 8:08-cv304, 2009 WL 146039, at *3 (D. Neb. Jan. 20, 2009), aff'd, 366 F. App'x 696
(8th Cir. 2010); see also Irshad v. Napolitano, 8:12-cv-173, 2012 WL 4593391,
at *5 (D. Neb. Oct. 2, 2012), aff'd sum nom. Irshad v. Johnson, 754 F.3d 604
(8th Cir. 2014); al Kurdy v. USCIS, No. 8:07-cv-225, 2008 WL 151277, at *3-4
(D. Neb. Jan. 10, 2008); Qijuan Li v. Chertoff, No. 8:07-cv-50, 2007 WL
2123740, at *3 (D. Neb. Jul. 19, 2007); see generally Labaneya v. USCIS, 965
F. Supp. 2d 823, 826-33 (E.D. Mich. 2013) (collecting cases). But see Yang v.
Gonzalez, No. 4:06-cv-3290, 2007 WL 1847302, at *1-2 (D. Neb. Jun. 25, 2007).
But even if the claim was justiciable, it's not particularly persuasive. The
Eighth Circuit has affirmed denial of relief after far, far longer than 4½
months. See Irshad, 754 F.3d at 607 (4½ years); Debba, 366 F. App'x at 699
(8½ years). And "[t]here is no indication that the deliberative process of the
government officials in this case is a sham." Irshad, 754 F.3d at 607.
In short, the Court has nothing before it that would allow it to conclude
that USCIS has unreasonably delayed or unlawfully withheld agency action.
See Org. for Competitive Markets v. U.S. Dep't of Ag., 912 F.3d 455, 461-63 (8th
Cir. 2017). And in any event, at least as far as USCIS is concerned, this claim
is moot. See Mamigonian v. Biggs, 710 F.3d 936, 942 (9th Cir. 2013); Ferry v.
Gonzales, 457 F.3d 1117, 1133 (10th Cir. 2006); Mohammed v. Frazier, No. 07CV-3037, 2008 WL 11349969, at *2 (D. Minn. Mar. 17, 2008); Bouguettaya v.
Chertoff, 472 F. Supp. 2d 1, 2 (D.D.C. 2007); Woods v. Moyer, No. 4:05-CV-723,
2006 WL 2473426, at *2 (E.D. Mo. Aug. 24, 2006); see also Ayyoubi v. Holder,

-6-

712 F.3d 387, 391 (8th Cir. 2013); Li v. Chertoff, No. 07-cv-2523, 2008 WL
465261, at *2 (D. Minn. Feb. 15, 2008).2
Suastegui Vega's next claim is styled as a claim under the
Administrative Procedure Act (APA) based on USCIS's decision to deny his
application for adjustment of status without providing him a personal
interview. Filing 9 at 31. But the Eighth Circuit has held that even the Court
of Appeals lacks jurisdiction to review a discretionary decision regarding
adjustment of status. Mutie-Timothy v. Lynch, 811 F.3d 1044, 1048 (8th Cir.
2016). And the Eighth Circuit has rejected the argument that due process is
violated by refusing to terminate removal proceedings pending adjudication of
an application for status adjustment, holding that an alien "has no
constitutionally-protected liberty interest in the discretionary relief of
adjustment of status." Hanggi v. Holder, 563 F.3d 378, 384 (8th Cir. 2009).
That holding is applicable both to Suastegui Vega's larger claim, and his
specific argument that due process is required in the context of an application
for discretionary adjustment of status. See Nativi-Gomez v. Ashcroft, 344 F.3d
805, 809 (8th Cir. 2003).
Suastegui Vega attempts to present this claim to the Court as a question
of law instead of a discretionary decision, by asserting that USCIS found him
statutorily "ineligible for adjustment of status." See filing 9 at 31. A
discretionary denial of adjustment of status may be reviewable—at least, by a
Court of Appeals—if "the petition for review raises a constitutional claim or

2

The Court notes that the Eighth Circuit's recent decision in Haroun v. U.S. Dep't of

Homeland Sec. is clearly distinguishable, because it arose from an application for citizenship,
and the statutory scheme for deciding naturalization applications expressly provides both for
de novo review by the district court and for the district court to act when USCIS doesn't rule
on an application within 120 days. No. 17-3133, slip op. at 4-7 (8th Cir. Jul. 15, 2019).

-7-

question of law." Mutie-Timothy, 811 F.3d at 1048; see Abdelwahab v. Frazier,
578 F.3d 817, 820 n.4 (8th Cir. 2009); cf. Dominguez-Herrera v. Sessions, 850
F.3d 411, 414-15 (8th Cir. 2017). Of course, there is no final decision to deny
here, and this is not a Court of Appeals. But even setting that aside, Suastegui
Vega's argument for judicial review gains little traction.
Suastegui Vega relies on the Second Circuit's decision in Yang v.
Mukasey, which he cites for the proposition that a Court of Appeals "retain[s]
jurisdiction over denials of status applications even when the denial is based
on part on a matter of discretion when the discretionary determination is based
on the same grounds as the eligibility determination." 514 F.3d 278, 279 (2d
Cir. 2008) (per curiam). Suastegui Vega argues that this is such a case—that
is, that USCIS decided he was legally ineligible for adjustment of status, and
its decision was legally incorrect. See filing 16 at 23. So, he concludes, his claim
that the USCIS erred in denying his adjustment of status is reviewable, he
says he's likely to prevail on that claim, and that in turns means the Court
should enjoin removal.
But to begin with, that argument rests on a misconstruction of the
director's decision, which did not find Suastegui Vega ineligible for adjustment.
Rather, the decision did not discuss eligibility—it only discussed (at length) the
director's exercise of discretion. Filing 17 at 100-01. And the USCIS was not
required to make a determination on statutory eligibility where it determined
that the application should be denied as a matter of discretion instead. See
Immigration and Naturalization Serv. v. Bagamasbad, 429 U.S. 24, 25-26
(1976).
So, this is not a case in which the USCIS made "a putative discretionary
denial wholly predicated upon the same facts as it would have had to rely to
find inadmissibility or statutory ineligibility." Filing 16 at 27. It is, rather, a

-8-

case like Yang—in which the Second Circuit dismissed the applicant's appeal
upon finding that the decision to deny the application was based upon
"independent, discretionary reasons," including uncharged criminal conduct.
Compare Yang, 514 F.3d at 279-80, with Singh v. Gonzales, 468 F.3d 135, 13738 (2d Cir. 2006) (finding jurisdiction where the decisionmaker found the
applicant statutorily ineligible and pretermitted the application, and the sole
basis for the "discretionary" ruling made obiter dictum was the same as the
basis for the eligibility determination). This case plainly involves a
discretionary decision, and "factual arguments couched in legal or
constitutional terms are insufficient to overcome the jurisdictional bar." See
Mutie-Timothy, 811 F.3d at 1048-49.
Furthermore, Suastegui Vega's argument is premised on an illogical
understanding of the Attorney General's discretionary authority to adjust
status. The gist of Suastegui Vega's argument is that because his criminal
convictions fall within a statutory exception to ineligibility for adjustment of
status, "USCIS does not have the discretion to override that exception by
styling an otherwise non-disqualifying criminal conviction as a negative
discretionary factor that can justifying denial of an adjustment application."
Filing 16 at 29-30. But the implication of that argument is that USCIS's
"discretion" only extends as far as statutory ineligibility—a position rejected
by the Second Circuit authority upon which Suastegui Vega relies. The
Attorney General's discretion to deny adjustment of status would be nugatory
if it could not be based on facts that weren't sufficient to render the applicant
legally ineligible for adjustment. It is, in fact, evident that even when an alien
satisfies the statutory requirements of eligibility for an adjustment of status,
the application can still be denied as a matter of discretion. See Drax v. Reno,
338 F.3d 98, 113 (2d Cir. 2003).

-9-

In short, the Court finds little reason to believe that Suastegui Vega's
claim regarding his eligibility for adjustment of status is subject to judicial
review, even by the Court of Appeals following a final determination. Of course,
Suastegui Vega could always succeed in persuading the BIA that the Attorney
General's discretion should be exercised in his favor. But the Court has little
basis to conclude one way or the other whether he's likely to succeed in doing
so—and more importantly, the possibility of BIA reaching a different decision
on the merits falls well short of demonstrating by "clear and convincing
evidence" that Suastegui Vega's removal from the United States is "prohibited
as a matter of law." See § 1252(f)(2).
The final claim in Suastegui Vega's amended complaint asserts
constitutional and statutory rights to an individualized bond hearing pending
adjudication of the removal order. Filing 9 at 33-35. Maybe, maybe not. There
is certainly reason to question whether Suastegui Vega has a constitutional
right to a bond hearing while removal proceedings are pending (at least in the
absence of more prolonged detention than Suastegui Vega has endured to this
point). See Demore v. Kim, 538 U.S. 510, 517-530 (2003). He also asserts a
statutory claim pursuant to 8 U.S.C. § 1226(a), claiming that provision (which
provides for apprehension and detention of aliens already admitted to the
United States) applies to him because he was paroled into the United States
as a special immigrant juvenile. Filing 9 at 34; see 8 U.S.C.A. § 1255(h)(1)
(providing that special immigrant juveniles are deemed "paroled" into the
United States). But there is a difference in immigration law between being
"paroled" into the United States and being "admitted." See § 1101(a)(13)(B); 8
C.F.R. § 1001.1(q). So, Suastegui Vega may still be an "arriving alien" seeking
asylum, whose detention is governed by 8 U.S.C. § 1225(b)(1) instead—and it

- 10 -

"says [no]thing whatsoever about bond hearings." Jennings v. Rodriguez, 138
S. Ct. 830, 842 (2018).
But the record is not complete on that issue, and the Court need not wade
into those murky statutory waters (especially without the benefit of briefing)
at this point because, as the Court reads Suastegui Vega's motion, it doesn't
implicate his claim for a bond hearing. Instead, he prays only "to maintain the
status quo by barring his removal, or further transfer"—which is not directed
at the harms associated with his continued detention.
Finally, the Court has also noted the protest from Suastegui Vega's
counsel that by transporting Suastegui Vega from Cass County to Hall County
in late June, after the notice of intent to deny adjustment was issued, the
government has "further frustrat[ed his] efforts at obtaining a full and fair
adjudication of his adjustment application." Filing 16 at 7. It doesn't appear,
however, that Suastegui Vega seeks to address that problem with his motion
either, except to enjoin "further transfer." But there is no indication that
further transfer is imminent—and, while the Court has some sympathy for
counsel having to drive an extra two hours each way to visit their client, the
Court isn't persuaded that the inconvenience imposed at this point would
warrant judicial intervention.
CONCLUSION
In sum, the Court finds that even if Suastegui Vega was subject to a final
order of removal, the Court could only enjoin enforcement of the order on "clear
and convincing evidence that the entry or execution of such order is prohibited
as a matter of law." § 1252(f)(2). None of Suastegui Vega's arguments persuade
the Court that he cannot, as a matter of law, be removed. Accordingly,

- 11 -

IT IS ORDERED that Suastegui Vega's motion for a temporary
restraining order and preliminary injunction (filing 15) is denied.
Dated this 17th day of July, 2019.
BY THE COURT:

John M. Gerrard
Chief United States District Judge

- 12 -