Kimone G. v. United States

Background

Kimone G., whom the court anonymized for privacy, is a native and citizen of Jamaica. She entered the United States in 2018 while possessing about a pound of cocaine and later pleaded guilty in 2020 to two drug-trafficking offenses in the Eastern District of New York.

The government began removal proceedings after her conviction. The immigration judge denied her application for asylum, found that she was not entitled to protection under regulations implementing the Convention Against Torture, and ordered her removed because she had committed particularly serious crimes. The Board of Immigration Appeals affirmed that order on September 29, 2023, making it final.

Kimone G. was also pursuing a T visa, which is available to victims of human trafficking. The court explained that a T-visa applicant must be physically present in the United States or at a port of entry, so removal to Jamaica would make her ineligible for that visa. She filed this case under 28 U.S.C. § 2241 seeking to delay removal while the visa application remained pending. She did not ask the district court to invalidate the final removal order or decide that she was eligible for a T visa.

Claims and emergency-relief request

Kimone G. moved for a temporary restraining order, an emergency order that would have prevented the government from removing her in the immediate future. The court applied four factors: likelihood of success, irreparable harm without relief, the balance of harms, and the public interest. It stated that likelihood of success was the most important factor.

The court adopted the reasoning of a prior related proceeding in the District of Minnesota involving a similar request to stay removal while a T-visa application was pending. Under 8 U.S.C. § 1252(a)(5) and § 1252(g), district courts generally lack jurisdiction to review final removal orders and claims closely connected to those orders. The court recognized an Eighth Circuit exception allowing a district court to consider a purely legal question of statutory construction.

The court concluded that most of Kimone G.’s claims were outside its jurisdiction because they were not purely legal questions. It identified one potentially reviewable legal question: whether a T-visa applicant may lawfully be removed before a bona fide determination is made on the visa application. On that question, the court held that federal regulations allow removal in at least some circumstances while a T-visa application remains pending. It further adopted the prior proceeding’s conclusion that the regulations had not been shown to conflict with federal law or violate constitutional rights.

The court rejected Kimone G.’s reliance on decisions from other circuits. It explained that those decisions did not control in the Eighth Circuit and that one involved an interim removal before any final removal order, unlike Kimone G.’s case. The court also stated that it could not decide whether her T-visa application was bona fide because that was not a purely legal issue within its jurisdiction.

The court found that removal could cause irreparable harm because Kimone G. would lose eligibility for a T visa. It also found possible harm to the government from the costs of detention or supervision during an indefinite stay and recognized a public interest in efficient immigration-law administration. Those factors did not overcome the absence of any likelihood of success.

Rulings and disposition

Judge Paul A. Magnuson denied the petition for a writ of habeas corpus. He also denied the motion for a temporary restraining order and the motion to appoint counsel because appointment was not likely to substantially advance Kimone G.’s claims. He granted the application to proceed in forma pauperis, meaning Kimone G. did not have to pay the filing fee and would not need to request that status again if she appealed. The order states that the matter was dismissed and directed entry of judgment.

The classification is mixed because the court treated most claims as outside its jurisdiction but also reached the merits of the purely legal question it considered reviewable.