Mohamed v. Sessions

Background

Abdullahi Abukar Mohamed, a citizen of Somalia who had lived in the United States since 2014, entered through Mexico and applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge denied those applications on October 18, 2016, ordered his removal, and Mohamed did not appeal that decision.

Mohamed later applied to adjust his immigration status based on his marriage to a United States citizen. Immigration and Customs Enforcement took him into custody in March 2018 when he appeared for an interview related to that application. The application remained pending, although United States Citizenship and Immigration Services had indicated that it intended to deny it.

Mohamed also moved to reopen his asylum case based on changed circumstances in Somalia. The immigration judge denied that motion, and Mohamed appealed to the Board of Immigration Appeals. That appeal, along with motions asking the immigration authorities to stay his removal and to terminate the removal proceedings, remained pending when he filed his amended petition in federal court.

Mohamed sought a temporary restraining order, an emergency order intended to preserve the existing situation while a case proceeds, to stop his removal and obtain release from detention. He argued that removal could expose him to persecution and torture by Al-Shabaab; that removing him before the Board of Immigration Appeals ruled on his pending matters would violate due process; that his continued detention violated the Immigration and Nationality Act and due process; and that the government had interfered with his ability to pursue provisional waivers and lawful permanent-resident status.

Court’s analysis

The court explained that a temporary restraining order requires consideration of four factors: possible irreparable harm, the balance of harms, the likelihood of success on the merits, and the public interest. But it stated that those factors need not be analyzed if the court lacks jurisdiction.

The court relied on 8 U.S.C. § 1252(g), which generally bars courts from hearing claims arising from the Attorney General’s decision to begin immigration proceedings, decide immigration cases, or execute removal orders. The court determined that Mohamed’s request to stay his removal was directly related to the Attorney General’s decision to execute the removal order. It rejected Mohamed’s framing of his claims as unrelated to that order and characterized them as collateral attacks on the Board of Immigration Appeals’ removal determination.

Disposition

The court concluded that it lacked jurisdiction over Mohamed’s claim. It therefore denied, rather than granted, his renewed motion for a temporary restraining order. The order did not state that the underlying amended petition was dismissed, nor did it decide the merits of Mohamed’s allegations about persecution, due process, detention, or immigration benefits.

Judge David S. Doty signed the order on October 15, 2018.