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Vega v. McAleenan

United States District Court, D. Nebraska

July 17, 2019

KEVIN MCALEENAN, Acting Secretary of Homeland Security, et al., Defendants.


          John M. Gerrard Chief United States District Judge.

         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.


         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 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 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.


         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. § 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." 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 ...

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