Nicholas L. L. v. Barr

Background

Nicholas L. L. said he was a victim of human trafficking and was being held by Immigration and Customs Enforcement (ICE). He had a final order requiring his removal to Mexico. In August 2019, he applied to U.S. Citizenship and Immigration Services (USCIS) for T-1 nonimmigrant status, a visa classification that can provide immigration relief to victims of severe human trafficking. He also asked ICE to stay, or pause, his removal while USCIS made an initial “bona fide” determination about his application.

Nicholas alleged that members of a drug cartel kidnapped him in Mexico, forced him to traffic drugs into the United States, and later abandoned him after he injured his leg. He argued that removing him before USCIS made the initial determination would prevent him from continuing to pursue the T visa. USCIS had not yet made that determination, and ICE denied his request for a stay of removal.

Nicholas filed a petition seeking relief under federal habeas statutes and moved for an emergency temporary restraining order and preliminary injunction. Because the government received notice and had an opportunity to respond, Judge Tostrud treated the motion as one for a preliminary injunction. During the proceedings, the government stated that Nicholas would not be removed until the court decided the motion.

Jurisdiction

The court explained that federal law generally makes a petition for review in the appropriate federal court of appeals the exclusive method for challenging a removal order. It also limits district-court jurisdiction over claims arising from the government’s decision to execute a removal order.

Controlling Eighth Circuit precedent recognizes an exception for “purely legal questions.” The court described such a question as one involving the meaning of a statute, regulation, or legal rule that can be answered without resolving factual disputes.

The court found that most of Nicholas’s claims were not purely legal. Those claims required factual determinations, including whether an investigation into his alleged traffickers was occurring, whether Nicholas might be needed for that investigation, whether his application appeared fraudulent, whether it presented initial evidence of each eligibility requirement, and whether USCIS had unreasonably delayed its initial determination. The court concluded it lacked subject-matter jurisdiction—authority to hear those claims—because they were fact-based challenges connected to the execution of the removal order.

The court found jurisdiction over one claim: whether a T-visa applicant may legally be removed before USCIS makes a bona fide determination. The court considered that an abstract legal question requiring only recognition that Nicholas was a T-visa applicant facing imminent removal.

Preliminary-Injunction Analysis

A preliminary injunction is an extraordinary order intended to preserve the situation until the court can decide the underlying dispute. The court applied four factors: the likelihood that the person seeking relief will win, the risk of harm without an injunction, the balance of harms, and the public interest. It emphasized that likelihood of success was the most important factor here.

The court concluded that Nicholas had not shown a likelihood of success on his claim that a T-visa applicant cannot be removed before USCIS makes a bona fide determination. The relevant regulations state that filing a T-visa application does not automatically stop execution of a final removal order. They provide that an automatic administrative stay begins if USCIS later determines that the application is bona fide.

The court also rejected Nicholas’s due-process argument as insufficient to establish likely success. It noted that the Eighth Circuit had held there was no constitutionally protected liberty interest in discretionary immigration relief. Nicholas had not explained why the existing procedures—including his ability to request an administrative stay from ICE—were constitutionally inadequate. The court also found that the authority Nicholas cited from another federal district court was not persuasive under Eighth Circuit precedent and did not adequately address the regulations or available procedures.

Disposition

Judge Eric C. Tostrud denied Nicholas L. L.’s Emergency Motion for Temporary Restraining Order and Preliminary Injunction. The order did not state that the habeas petition itself was dismissed or otherwise finally resolved.