United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
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.
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.
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.
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.
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 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.
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.
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 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.
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
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).
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. §
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).
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."
SeeMhanna 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 ...