Lara-Saavedra v. Sessions

Background

Francisco Lara-Saavedra, a Mexican citizen, was taken into immigration custody on April 24, 2018, and detained without bond. He had applied for a U visa, which the opinion describes as a visa for a crime victim; that application remained pending. An immigration judge denied relief from removal and ordered him removed to Mexico. Lara-Saavedra appealed to the Board of Immigration Appeals, arguing that his removal proceedings should be closed while his U-visa application was pending and that his immigration attorney had provided ineffective assistance.

Lara-Saavedra later filed a petition challenging his continued detention under 28 U.S.C. § 2241 and asking to be released under supervision while his removal decision was pending. After the Board of Immigration Appeals dismissed his appeal, he filed the motion addressed in this order. He asked for an emergency temporary restraining order or preliminary injunction to stop his removal while he prepared a motion to reopen before the Board and while his U-visa application was considered.

Court’s analysis

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 carry out a removal order. It also relied on 8 U.S.C. § 1252(a)(5), which identifies a petition for review in the appropriate federal appeals court as the sole and exclusive means of obtaining judicial review of a removal order.

The court explained that the Eighth Circuit may consider a request to stay removal while a petition for review is pending. It distinguished claims presenting a pure legal question from Lara-Saavedra’s claims, which concerned whether the Board erred regarding his attorney’s performance and whether removal should be delayed while his U-visa application was considered. The district court concluded that it lacked jurisdiction over those issues. It also stated that Lara-Saavedra’s original challenge to the length of his detention would become moot because he was expected to be removed within the following week.

Disposition

The court denied without prejudice Lara-Saavedra’s motion for an emergency temporary restraining order or preliminary injunction. It canceled the hearing scheduled for February 13, 2019, and ordered the clerk to transfer the action to the United States Court of Appeals for the Eighth Circuit for review of the Board’s decision and the request for a stay. The district court did not decide the merits of Lara-Saavedra’s ineffective-assistance or U-visa-related arguments.