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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