Abukar v. Whitaker

Background

Ayub Haji Abukar, identified in the opinion as a citizen of Somalia, entered the United States as a refugee in 1997. In 1999, he applied for adjustment of status, a waiver under section 209(c), asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge denied those applications in 2000 and ordered him removed to Somalia. The Board of Immigration Appeals affirmed. He was not deported because Somalia lacked a functioning government and was unstable and dangerous. The opinion states that he had remained under supervision or in state or Immigration and Customs Enforcement custody since then, and that Immigration and Customs Enforcement took him into custody in 2018.

On September 5, 2018, Abukar asked the Board to reopen his asylum case and to stay his removal based on changed circumstances in Somalia. The Board denied his request for a stay but had not ruled on his request to reopen. After Abukar was told that he would be deported on November 29, 2018, he filed a petition asking the federal court to stop his removal while the Board considered the reopening request. He also filed a motion for a temporary restraining order or preliminary injunction seeking to keep the removal stopped while the Board ruled and while any appeals were exhausted.

Claims and Requested Relief

Abukar alleged that removal would expose him to persecution and torture by Al-Shabaab because of his minority clan membership, Christian beliefs, and schizophrenia. He also alleged that removing him before the Board decided his pending request to reopen would violate due process.

Jurisdiction

The court applied 8 U.S.C. § 1252(g), which generally bars courts from hearing claims arising from the Attorney General’s decision or action to commence immigration proceedings, decide immigration cases, or execute removal orders. The court concluded that Abukar’s request to stop his removal was directly related to the decision to execute his removal order.

The court considered an exception recognized for habeas petitions raising a pure question of law, but found that the exception did not apply. It reasoned that Abukar was not challenging the Attorney General’s interpretation of a statute. Instead, his claims required fact-specific inquiries into whether conditions in Somalia had changed enough to prevent removal and whether he had received adequate due process.

The court also distinguished cases in which other courts had found jurisdiction and stopped removal. In those cases, the petitioners sought time to file motions to reopen or faced extraordinary problems with immigration procedures. Abukar had already filed his request to reopen, and the court found that those extraordinary circumstances were not present. Based on binding Eighth Circuit precedent, the court concluded that the procedures available under the REAL ID Act provided an adequate and effective alternative to habeas relief.

Ruling

Because it lacked jurisdiction, the court did not analyze the factors ordinarily used to decide whether to issue a temporary restraining order or preliminary injunction. It ordered that Abukar’s motion for a temporary restraining order and/or preliminary injunction was denied and that his petition was dismissed without prejudice. The order stated that judgment should be entered accordingly.