United States District Court, W.D. Texas, El Paso Division
C. GUADERRAMA, UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner Guled Ahmed Mohumud's
"Motion for a Temporary Restraining Order and/or Stay of
Removal and Request for Emergency Hearing"
("Motion") (ECF No. 2) filed on March 29, 2018.
Therein, Petitioner requests that the Court grant a temporary
restraining order ("TRO") or a stay of removal
preventing Respondents from deporting him. Mot. at 1-3. For
the reasons that follow, the Court DENIES
Petitioner's Motion and DISMISSES THE CAUSE
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute...."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citations omitted). The burden of
establishing a federal court's jurisdiction rests upon
the party that invokes jurisdiction. Hartford Ins. Group
v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir. 2002)
(per curiam). Accordingly, Petitioner must prove
that jurisdiction does in fact exist. Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980). "A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case." Krim
v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005)
the threshold issue in this case is whether or not the Court
has jurisdiction to hear this case. In his complaint,
Petitioner alleges that the Court has federal question
jurisdiction through his Petition for a Writ of Habeas
Corpus, under 28 U.S.C. § 2241 et seq.; the
Administrative Procedures Act ("APA"), 5 U.S.C. 701
et seq.; the United States Constitution; the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1101 et
seq.; the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment ("CAT"), Dec.
10, 1984, S. Treaty Doc. 100-20 (1988), 1465 U.N.T.S. 85; and
the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.
Petition at 3-4, ECF No. 1. However, "[t]he passage of
the REAL ID Act divested district courts of jurisdiction over
removal orders and designated the courts of appeals as the
sole forums for such challenges via petitions for
review." Moreira v. Mukasey, 509 F.3d 709, 712
(5th Cir. 2007). Therefore, the current state of the law is
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or action
by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this
8 U.S.C. § 1252(g) (emphasis added). This prohibition
extends to habeas petitions under 28 U.S.C. § 2241. 8
U.S.C. § 1252(a)(5); 8 U.S.C. § 1252(b)(9). It also
extends to actions brought under CAT. 8 U.S.C. §
1252(a)(4) ("[A] petition for review filed with an
appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of
any cause or claim under the United Nations Convention
Against Torture and Other Forms of Cruel, Inhuman, or
Degrading Treatment or Punishment"). The Fifth Circuit
has further held that the prohibition strips district courts
of the jurisdiction to consider requests for a stay of
removal proceedings. Idokogi v. Ashcroft, 66
Fed.Appx. 526 (5th Cir. 2003) (per curiam)
("The district court therefore correctly determined that
it lacked jurisdiction to stay the order of removal.");
Fabuluje v. Immigration & Naturalization Agency,
244 F.3d 133 (5th Cir. 2000) (per curiam)
("[T]he district court correctly determined that it was
without jurisdiction to consider Fabuluje's request for a
stay of the removal proceedings.").
the REAL ID Act stripped this Court of jurisdiction to decide
Petitioner's request for a stay of removal and a TRO. The
Court cannot "hear any cause or claim by or on behalf of
any alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute
removal orders against any alien." See 8 U.S.C.
§ 1252(g). Further, this prohibition also strips the
Court of jurisdiction to hear Petitioner's claims under
the APA and the Declaratory Judgment Act. See Rios v.
Roark, No. 310-CV-402-M, 2010 WL 2900348, at *2 (N.D.
Tex. June 24, 2010) ("[T]he APA does not provide
jurisdiction to review Plaintiffs claim. The APA does not
apply to the extent that other 'statutes preclude
judicial review' .... Finally, the Declaratory Relief Act
also does not provide jurisdiction. As the Fifth Circuit has
stated, '[a] declaratory judgment claim is not
jurisdiction-conferring; there must be an independent basis
for federal jurisdiction.'"). Accordingly, 8 U.S.C.
§ 1252(g) has stripped the Court of jurisdiction to hear
there is an open question as to whether 8 U.S.C. §
1252(g) is unconstitutional as applied to this set of facts
under the Suspension Clause. See U.S. Const, art. I,
§ 9, cl. 2 ("The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require
it."). The factually-analogous cases interpreting the
Suspension Clause do not provide the Court with a clear
answer. See Higgins v. Strafford Cty. Dep't of
Corr., No. 18-CV-147-PB, 2018 WL 1278302, at *2 (D.N.H.
Mar. 12, 2018) (holding against jurisdiction); Sheikh v.
Sessions, No. 17-CV-5330 (JNE/HB), 2017 WL 6033674, at
*2 (D. Minn. Dec. 6, 2017) (holding the same); Mohamedv.
Sessions, No. CV 17-5331(DSD/BRT), 2017 WL 6021293, at
*2 (D. Minn. Dec. 5, 2017) (holding the same); Ibrahim v.
Sessions, No. CV 17-5333(DSD/TNL), 2017 WL 6021314, at
*2 (D. Minn. Dec. 5, 2017) (holding the same); Adan v.
Sessions, No. CV 17-5328 (MJD/BRT), 2017 WL 6001740, at
*3 (D.Minn. Dec. 4, 2017) (holding the same). But see
Sied v. Nielsen, No. 17-CV-06785-LB, 2018 WL 1142202, at
*25 (N.D. Cal. Mar. 2, 2018) (holding in favor of
jurisdiction); Ibrahim v. Acosta, No. 17-CV-24574,
2018 WL 582520, at *6 (S.D. Fla. Jan. 26, 2018) (holding the
same); Ali v. Sessions, No. 17-CV-5334 (PJS/KMM),
2017 WL 6205789, at *6 (D. Minn. Dec. 7, 2017) (holding the
same); Devitri v. Cronen, No. CV 17-11842-PBS, 2017
WL 5707528, at *5 (D. Mass. Nov. 27, 2017) (holding the
same); Hamama v. Adducci, 258 F.Supp.3d 828, 842
(E.D. Mich. 2017) (holding the same). Nevertheless, the Court
sees a distinguishing factor in this case that did not exist
in the others-an immigration judge considered
Petitioner's Motion to Reopen and denied it; Petitioner
next filed an appeal and a Motion for a Stay of Removal
before the Board of Immigration Appeals (the
"BIA"); and finally, the BIA denied his Motion for
a Stay of Removal. Petition at 4; BIA Order at 1, ECF No.
5-4. The Supreme Court has held that Congress stripping
federal courts of habeas jurisdiction does not violate the
Suspension Clause when it provides litigants with an adequate
and effective substitutionary remedy. Swain v.
Pressley, 430 U.S. 372, 381-82 (1977). In the instant
case, Petitioner had an adequate and effective
substitutionary remedy. An immigration judge heard and ruled
on his Motion to Reopen, and the BIA heard and denied his
Motion for a Stay of Removal. Petitioner now, in essence,
asks the Court to overturn the BIA's determination.
Congress has explicitly stripped the Court of jurisdiction to
do that. Therefore, 8 U.S.C. § 1252(g) bars the Court
from hearing this case.
IT IS ORDERED that Petitioner Guled Ahmed
Mohumud's "Motion for a Temporary Restraining Order
and/or Stay of Removal and Request for Emergency
Hearing" (ECF No. 2) is DENIED.
IS THEREFORE ORDERED that any and all claims against
Respondents are HEREBY DISMISSED WITHOUT
PREJUDICE because the Court does not have
jurisdiction to hear this matter.
IS FURTHER ORDERED that any and all pending motions
are DENIED AS MOOT.
IS FINALLY ORDERED that the Clerk of the Court
SHALL CLOSE this case.
SO ORDERED and SIGNED.