Chan v. Department of Homeland Security et al

Filing 5

ORDER re 4 Report and Recommendations, signed by Judge Richard A Jones. While the court declines to adopt the R&R, the court will not grant an emergency stay of removal on the facts now before the court. The court declines to adopt the R&R, but nonetheless DENIES Petitioners motion for an emergency stay of removal. The court refers this action back to Judge Donohue for further proceedings.(LMK) Modified on 5/17/2012;Copy of Order mailed to Petitioner. (LMK).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SARITH S. CHAN,
Case No. C12-847-RAJ

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Petitioner,
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v.

ORDER

DEPARTMENT OF HOMELAND
SECURITY, NATHALIE ASHER, Field Office
Director, NORTHWEST DETENTION
CENTER,
Respondents.

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The court has reviewed the Report & Recommendation (“R&R”) (Dkt. # 4) of the
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Honorable James P. Donohue, United States Magistrate Judge. The R&R recommends that the

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court deny Petitioner’s motion for an emergency stay of removal because the court lacks subject

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matter jurisdiction. The R&R declares that Petitioner is subject to a final order of removal dated

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May 19, 1998, and that 8 U.S.C. § 1252 strips this court of jurisdiction to review actions taken to

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enforce that order.

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This court is currently unable to verify whether Petitioner is subject to a final order of

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removal and the legal basis for that order of removal. Moreover, while the R&R may be correct
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in its assumption that Petitioner has opened an impermissible collateral attack on his removal

TEMPORARY RESTRAINING ORDER - 1

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order, the court currently has no way of verifying the nature of the collateral attack. The court is

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therefore unable to determine whether the jurisdiction-stripping provisions of 8 U.S.C. § 1252

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apply. Accordingly, the court is unable to verify whether it has subject matter jurisdiction. The

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court notes that it has, at a minimum, subject matter jurisdiction to decide whether the

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jurisdiction-stripping procedures of 8 U.S.C. § 1252 apply.

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Nonetheless, Petitioner cannot obtain injunctive relief without establishing at least a

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possibility of success on the merits of his claim. Petitioner claims that he has asked the “Board
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of Immigration” to reopen his claim on the basis that he is a citizen of the United States.

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Petitioner provides no evidence or other basis for the court to believe he has any possibility of

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succeeding on that claim or any other claim for relief. Accordingly, while the court declines to

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adopt the R&R, the court will not grant an emergency stay of removal on the facts now before

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the court.

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The court declines to adopt the R&R, but nonetheless DENIES Petitioner’s motion for an

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emergency stay of removal. The court refers this action back to Judge Donohue for further
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proceedings.
DATED this 17th day of May, 2012.

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A

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The Honorable Richard A. Jones
United States District Court Judge

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TEMPORARY RESTRAINING ORDER - 2