Opinion

Hernandez-Morales

Court
District Court, S.D. California
Filed
Oct 15, 2025
Cited by
0 cases
Authority
More cited than 35.7%

The opinion

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 NESTOR PAUL HERNANDEZ- Case No.: 25-cv-2551-BJC-MMP

MORALES,

12 ORDER DENYING PETITIONER’S

Petitioner, MOTION FOR TEMPORARY

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RESTRAINING ORDER AND

v.

14 DISMISSING PETITION

PAMELA BONDI, et al.,

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ECF Nos. 1, 2

Respondents.

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18 BACKGROUND

19 On September 26, 2025, Petitioner Nestor Paul Hernandez-Morales, a citizen of El

20 Salvador, filed a Petition for a Writ of Habeas Corpus seeking declaratory and injunctive

21 relief. ECF No. 1. Petitioner, who is subject to a removal order from 2012, alleges he has

22 lived in the United States since 2002 and is the beneficiary of an I-130 immigrant-visa

23 petition and pending Parole-in-Place application. ECF No. 1 ¶¶ 26, 29, 31. He further

24 alleges he was detained on June 18, 2025, and placed in U.S. Immigration and Customs

25 Enforcement (“ICE”) custody at the Otay Mesa Detention Center, where he remains. Id. ¶

26 33. On June 20, 2025, Petitioner filed a motion to reopen his removal proceedings before

27 the Board of Immigration Appeals (“BIA”), asserting statutory eligibility for cancellation

28 of removal, eligibility for adjustment of status, and changed country conditions in El

1 Salvador. Id. ¶ 3, 40. He further alleges the Department of Homeland Security (“DHS”)

2 indicated its intent to execute a removal order notwithstanding Petitioner’s pending motion

3 to reopen. Id. ¶¶ 6, 24, 45. The BIA denied his request for an administrative stay of

4 removal on June 23, 2025. Id. ¶¶ 4, 24, 41. Petitioner also alleges he filed a protective

5 petition for review and motion for a stay with the Ninth Circuit Court of Appeals on June

6 24, 2025. Id. ¶¶ 5, 43. On September 24, 2025, the Ninth Circuit dismissed the petition

7 as premature and lifted its temporary stay of removal. Id. ¶¶ 5, 43. Petitioner filed this

8 action seeking (1) an order barring removal from the United States until the BIA rules on

9 his pending motion to reopen, (2) preserving the stay for seven days if the motion is denied,

10 and (3) enjoining Respondents from transferring him out of the Southern District of

11 California during the pendency of this action. Id. ¶ 8.

12 On September 29, 2025, Petitioner filed an Emergency Application for a Temporary

13 Restraining Order (“TRO”). ECF No. 2. He contends “ICE acted within forty-eight hours

14 to transfer [him] to a Louisiana staging facility and was preparing to remove him.” ECF

15 2-1 at 2. Petitioner maintains nothing prevents DHS from seeking to remove him

16 immediately now that the Ninth Circuit’s emergency stay has been dissolved. Id.

17 This Court issued an order setting a briefing schedule and a hearing on the motion

18 for a TRO. ECF No. 4. The Court enjoined Respondents from removing Petitioner from

19 the United States or this District pending further order of the Court, to maintain the status

20 quo to allow the Court to hold the hearing. Id. Respondents filed a response on October

21 6, 2025. ECF No. 6. Petitioner filed a reply on October 8, 2025. ECF No. 8. The parties

22 appeared before this Court on October 9, 2025, for a hearing on the TRO motion.

23 DISCUSSION

24 Petitioner’s TRO motion seeks an order:

25 (1) enjoining Respondents from executing Petitioner’s removal until the Board of

Immigration Appeals adjudicates his pending motion to reopen, and for seven days

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thereafter to permit the filing of a petition for review if necessary, or until further

27 order of this Court;

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1 (2) enjoining Respondents from transferring Petitioner outside the Southern District

of California during the pendency of this action;

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3 (3) Issue an Order to Show Cause requiring Respondents to appear and show cause

why a preliminary injunction should not be entered; and

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5 (4) Grant such further relief as the Court deems just and proper to preserve the

Board’s jurisdiction and ensure adjudication of Petitioner’s statutory motion before

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removal.

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In response, Respondents argue the Court lacks jurisdiction over the petition

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pursuant to 8 U.S.C. § 1252(g). ECF No. 6 at 4. Specifically, Respondents argue

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Petitioner’s claim is barred by § 1252(g) because it arises from the government’s

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discretionary decision to execute his removal order. Id. at 5. They contend the petition

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and TRO motion, which seek to limit when Respondents can execute the removal order,

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are an improper attempt to impose judicial restraints on prosecutorial discretion. Id. at 5-

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6. In support, Respondents rely on the Ninth Circuit’s decision in Rauda v. Jennings, 55

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F.4th 773 (9th Cir. 2022).

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Petitioner argues § 1252(g) does not bar relief because he is not challenging DHS’s

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authority to execute removal orders but merely seeks to preserve adjudication of his motion

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to reopen. ECF No. 8 at 5, 6, 7. He maintains that courts retain jurisdiction to issue

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process-preserving injunctions in such circumstances pursuant to the Administrative

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Procedure Act and All Writs Act. Id. at 5, 7. He also argues Respondents’ reliance on

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Rauda is misplaced because the petitioner in Rauda had no pending statutory motion before

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the BIA and asserted generalized hardship, while Petitioner, here, has a “live” motion to

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reopen supported by new evidence of changed country conditions. Id. at 5. Petitioner

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further contends removal before the BIA rules on his motion to reopen will nullify his

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claims and foreclose judicial review. Id. at 7.

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Petitioner also argues DHS is attempting to reclassify him under INA § 241(a) to

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invoke § 1252(g) and divest the immigration judge and this Court of jurisdiction. Id. at 8-

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9. He contends the Ninth Circuit recognizes the right to protection under asylum and the

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1 Convention Against Torture but argues “the survival of those rights post-removal does not

2 justify bypassing pre-removal adjudication.” Id. at 9. He argues he retains the right to

3 adjudication of his claims before removal. Id.

4 Congress explicitly divested the court of jurisdiction over claims “arising from the

5 decision or action by the Attorney General to commence proceedings, adjudicate cases, or

6 execute removal orders.” 8 U.S.C. § 1252(g). In Rauda, a case involving facts

7 substantially similar to the instant action, the Ninth Circuit determined § 1252(g) deprived

8 the court of jurisdiction over the petitioner’s claims. Rauda, 55 F.4th at 778. Like

9 Petitioner here, the petitioner in Rauda was a citizen of El Salvador subject to a removal

10 order, and he sought, through a petition for a writ of habeas corpus, an order enjoining the

11 government from executing the removal order until the BIA ruled on his motion to reopen.1

12 Id. at 776. The petitioner in Rauda filed a motion to reopen with the BIA “so that it could

13 consider ‘new developments’ regarding his request for [Convention Against Torture]

14 relief,” including “claimed political changes in El Salvador.” Id. Here, Petitioner’s motion

15 to reopen seeks cancellation of removal, adjustment of status, and protection under the

16 Convention Against Torture based on “materially changed country conditions.” ECF No.1

17 ¶ 22. The Ninth Circuit, in Rauda, concluded that the district court correctly determined it

18 lacked jurisdiction over the petition despite the petitioner’s due process concerns. Rauda,

19 55 F.4th at 781.

20 Like the petitioner in Rauda, Petitioner here attempts to frame his challenge to avoid

21 § 1252(g)’s bar on review. He argues he does not challenge the discretionary authority to

22 execute the removal order but seeks to prevent removal to preserve adjudication of his

23 motion to reopen. Petitioner’s request to prevent DHS from executing the removal order

24 while the BIA adjudicates his motion to reopen challenges when the Attorney General can

25 execute the removal order. The decision when to execute a removal order is included in

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1 Contrary to Petitioner’s contention, in Rauda, the petitioner’s motion to reopen was “live” and pending

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1 the discretion to decide whether to execute a removal order, over which the Court has no

2 jurisdiction. Rauda, 55 F.4th at 778 (citing Tazu v. Att’y Gen. United States, 975 F.3d 292,

3 297 (3d Cir. 2020)).

4 Petitioner’s argument that he will be prevented from seeking judicial review if he is

5 removed from the United States (ECF No. 2-1 at 19) was specifically rejected by the court

6 in Rauda. The court noted, even if the petitioner was removed prior to the BIA adjudicating

7 his motion to reopen, he would “continue to have access to the process guaranteed to him

8 under the statute” because his presence in the United States is not required for adjudication

9 of the motion to reopen. Id. at 777. Petitioner’s motion to reopen is pending and, according

10 to the Ninth Circuit, will remain so until its adjudication, even if Petitioner is removed. Id.

11 at 781. Petitioner provides no authority to support his argument otherwise. Petitioner may

12 challenge the BIA’s final decision to the Ninth Circuit thereafter, if necessary. “This

13 statutorily provided process satisfies any demands of the Due Process Clause when an alien

14 subject to a valid, final order of removal seeks to reopen his removal proceedings.” Id. at

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16 Finally, Petitioner’s claim that DHS is retroactively reclassifying him to avoid

17 judicial review is unavailing. He contends he is still entitled to seek to reopen proceedings

18 and seek statutory protections provided by the Convention Against Torture under the new

19 classification, and those protections are not extinguished by the removal order. Petitioner

20 has already taken advantage of the statutory process and filed his motion to reopen. As

21 discussed above, his removal from the United States, if it occurs, will not extinguish the

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23 In sum, Petitioner fails to distinguish his challenge from the substantially similar

24 challenge deemed barred in Rauda, and he fails to demonstrate that his petition and TRO

25 motion do not challenge the discretionary authority to execute the removal orders. The

26 Court finds § 1252(g) bars such challenges from judicial review.

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l CONCLUSION AND ORDER

2 Based on the foregoing, the Court finds it lacks jurisdiction over Plaintiffs challenge

3 ||to the decision to remove him before the BIA adjudicates his motion to reopen.’

4 || Accordingly, the motion for a temporary restraining order is DENIED, and the petition that

5 || seeks the same relief is DISMISSED.

6 IT IS SO ORDERED.

7 Dated: October 15, 2025

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10 Honorable Benjamin J. Cheeks

11 United States District Judge

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26 |}

27 Respondents also argue the Court lacks jurisdiction because Petitioner failed to name the proper

3g || respondent in this habeas petition. ECF No. 6 at 4. Because the Court finds section 1252(g) bars judicial

review, it will not address this issue.

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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