Opinion

Jumale v. Barr

Court
District Court, W.D. New York
Filed
Oct 28, 2019
Cited by
0 cases
Authority
More cited than 27.8%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MOHAMED JUMALE,

Petitioner,

Case # 19-CV-1229-FPG

v.

DECISION AND ORDER

WILLIAM P. BARR, et al.,

Respondents.

INTRODUCTION

On September 12, 2019, Petitioner Mohamed Jumale, a lawful permanent resident

currently detained at the Buffalo Federal Detention Facility, brought a petition for a writ of habeas

corpus under 28 U.S.C. § 2241 seeking his unconditional release. ECF No. 1. Petitioner claims

his due process rights compel immediate and unconditional release because an Immigration Judge

(IJ) found him not deportable since a prior conviction undergirding his deportation is not final. Id.

The Government subsequently appealed the IJ’s finding to the Board of Immigration Appeals

(BIA). Id.

The next day—September 13, 2019—Petitioner simultaneously filed motions for a

preliminary injunction and expedited hearing. ECF Nos. 3, 5. The preliminary injunction motion

seeks identical relief on identical grounds.

On September 26, 2019, Respondents responded by moving to stay the case. ECF No. 9.

Petitioner countered Respondents’ Motion on October 3, 2019, and Respondents replied and

moved to dismiss the Petition on October 8, 2019. ECF Nos. 12, 13.

Although both parties have moved for various forms of relief, the Court rules only on

Petitioner’s Motions for a Preliminary Injunction and to Expedite and Respondent’s Motion to

Stay. For the following reasons, those Motions are DENIED.

DISCUSSION

I. Motion to Stay

Respondents move to stay this litigation because Petitioner is intentionally delaying the

progress of his state-level appeal of his conviction and the Government’s appeal of the IJ’s

removability finding.

Generally, a district court will grant a motion to stay if the movant meets her burden by

satisfying several factors. Saget v. Trump, 345 F. Supp. 3d 287, 304 (E.D.N.Y. 2018). In the

context of petitions for writs of habeas corpus, petitioners—not respondents—typically move to

stay; they often move to stay the case so that they may exhaust claims raised in their petitions or,

in immigration cases, to stay removal. See, e.g., Ryan v. Gonzalez, 568 U.S. 57, 73-77 (2013);

Maldonado-Padilla v. Holder, 651 F.3d 325, 328 (2d Cir. 2011). In the Court’s review of the

relevant case law, it could find no case where a respondent moved to stay in a context similar to

this case.

Respondents, who bear the burden here, do establish that district courts have the “inherent

power” to stay litigations surrounding a habeas petition. ECF No. 9-1 at 4-5 (citing Carter v.

Bradshaw, 583 F. Supp. 2d 872, 882 (N.D. Ohio 2008)). But the Carter court analyzed whether

to stay the case based on its finding that the petitioner was mentally incompetent. Carter, 583 F.

Supp. 2d at 882.

More importantly, Carter has an extensive appellate history on the very issue for which

Respondents hold it out: district courts’ ability to grant stays in federal habeas proceedings. In the

Ryan decision, the Supreme Court weighed Carter and another, similar case appealed from the

Court of Appeals for the Ninth Circuit. 568 U.S. at 60-64. Regarding the stay granted in Carter,

the Supreme Court found the district court’s stay inappropriate based in part on a stay’s propensity

to frustrate timely review of a petition. Id. at 75-77. In other words, Ryan advocates against

granting stays for federal habeas claims, not for them. Granted, Ryan analyzes stays in the context

of habeas petitions it concluded were designed to delay a petitioner’s execution, which varies

vastly from the issues before this Court. Id. at 76. Ryan demonstrates, however, that Respondents

were required to do more to meet their burden here.

They did not do so. There is no case law before this Court to support the relief Respondents

seek, and the Court finds that the record before it does not warrant a stay. Respondents’ Motion

is therefore denied.

II. Motions for a Preliminary Injunction and to Expedite

Petitioner moves for a preliminary injunction and to expedite the Court’s consideration of

the Motion. In support, Petitioner argues that (1) the IJ found he was not removable, (2) there are

no other avenues leading to release available to him, and (3) the Court should therefore release

him unconditionally. ECF No. 3-1 at 5-7.

To secure a preliminary injunction, a movant must show he will suffer “irreparable harm”

without the preliminary injunction and either (1) “a likelihood of success on the merits” or (2)

“sufficiently serious questions going to the merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly in the movant’s favor.” Kelly v. Honeywell Int’l, Inc., 933

F.3d 173, 183-84 (2d Cir. 2019) (citation and quotation marks omitted). Establishing irreparable

harm is “the single most important prerequisite” for a preliminary injunction. Faiveley Transport

Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009). It is established only when the

movant shows the harm is “actual and imminent” and neither “remote [n]or speculative” nor a

harm that can be remedied with monetary damages or later in the litigation. Id. (citation and

quotation marks omitted).

Here, Petitioner has not demonstrated irreparable harm for two reasons. First, contrary to

Petitioner’s arguments, the IJ’s ruling is not final. The Immigration Court procedural rules hold

that an IJ’s decision is not final if it is certified to the BIA. 8 C.F.R. § 1003.39. Consequently,

since the Government appealed the IJ’s decision to the BIA, the IJ’s decision is not and cannot be

final until the appeals process concludes. Hurtado-Ruiz v. Holder, No. 10-CV-0554-PHX-PGR

(MHB), 2011 WL 671746, at *2 (D. Ariz. Feb. 16, 2011) (“Because the government’s appeal is

still pending, Petitioner is not subject to a final removal order.”).

Second, various courts have held that continued detention due to administrative delay does

not constitute irreparable harm. See, e.g., Torres v. Decker, No. 18-CV-10026 (VEC), 2018 WL

6649609, at *4 n.4 (S.D.N.Y. Dec. 19, 2018) (“Contrary to Petitioner’s suggestion . . . the fact that

it may take several months for the BIA to process Petitioner’s bond appeal is not enough to

establish irreparable harm . . . .”).

Consequently, Petitioner has not met his burden of demonstrating he is suffering

irreparable harm. His Motions are therefore DENIED.

CONCLUSION

For the foregoing reasons, Petitioner’s Motions for a Preliminary Injunction and to

Expedite, ECF Nos. 3, 5, and Respondent’s Motion to Stay, ECF No. 9, are DENIED.

IT IS SO ORDERED.

Dated: October 28, 2019

Rochester, New York

HON| FRAY K P. GERACL, JR. (/

Chief Jide

United States District Court

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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