United States District Court, D. Nevada
ORDER (1) DENYING MOTION TO EXTEND TIME AND MOTION
FOR INJUNCTIVE RELIEF, (2) DENYING PETITIONS FOR HABEAS
CORPUS, AND (3) GRANTING TEMPORARY STAY FOR THE LIMITED
PURPOSE OF OBTAINING A STAY PENDING APPEAL FROM THE NINTH
CIRCUIT (ECF NOS. 1, 2, 12, 14)
P. GORDON UNITED STATES DISTRICT JUDGE.
before me court are Miguel Ramos Meza's original petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
(ECF No. 1), his emergency motion for stay of removal and for
temporary restraining order and for preliminary injunction
(ECF No. 2), his motion to extend time (ECF No. 12), and his
amended petition for writ of habeas corpus (ECF No. 14). I
previously ordered the Government not to deport Ramos Meza
while I resolved whether I have jurisdiction over this case.
ECF No. 8. The parties filed various briefs and I conducted a
hearing on April 19, 2018. At the end of the hearing, I
orally extended my "no deportation" order while I
further considered the parties' briefs and arguments.
deny Ramos Meza's motions to extend time and for
injunctive relief. I lack jurisdiction to grant the relief
requested in the original petition to release Ramos Meza from
custody and to stay his final order of removal. I therefore
dismiss the original petition for lack of jurisdiction.
However, I have jurisdiction over the claim in Ramos
Meza's amended petition, which asserts that his due
process rights would be violated if he were removed from the
country while his motion to reopen his removal proceedings is
pending before the Board of Immigration Appeals (BIA).
Although I have jurisdiction, Ramos Meza has not shown a
likelihood of success on this claim because he does not have
a liberty or property interest in the discretionary decision
of the BIA to sua sponte reopen his removal
proceedings. Even if he does have a liberty or property
interest in his pending motion to reopen his removal
proceedings, he has a meaningful opportunity to be heard
because (1) there is no allegation that he will be tortured
or killed if removed to Mexico such that his removal while
his motion is pending would deny him the ability to resort to
available process, and (2) he can pursue that motion even
after he is removed from the United States because the BIA
cannot apply the departure bar in 8 C.F.R. § 1003.3(d)
to a person who is involuntarily removed from the United
States. As a result, Ramos Meza has not shown a likelihood of
success on his claim that removing him before his motion to
reopen is adjudicated would deprive him of due process.
Because the stay of removal pending adjudication of his
motion to reopen is the relief Ramos Meza seeks through his
amended petition, I deny the petition because, as a matter of
law, he is not entitled to the relief he seeks.
grant a limited continuation of my "no deportation"
order for the sole purpose of allowing Ramos Meza time to
request a stay pending appeal from the Ninth Circuit Court of
parties are familiar with the procedural background and it is
set out in the respondents' April 19 response. ECF No.
19. Ramos Meza became subject to a final order of removal
from the United States. He petitioned the court of appeals
both for review of the final order of removal and for review
of the BIA's decision not to reopen proceedings. The
court of appeals denied the petition for review of the final
order of removal and granted the petition for review of the
denial of the motion to reopen. The court of appeals remanded
to the BIA for reconsideration of Ramos Meza's motion to
reopen. Meza v. Holder, 544 Fed.Appx. 716 (9th Cir.
Meza's wife applied for a visa under 8 U.S.C. §
1101(a)(15)(U)(i) ("U visa") because she was a
victim of a crime. On September 19, 2016, that application
was approved. She is on a waiting list for an actual U visa
because of the statutory annual cap on the number of U visas
that may be issued.
applied for a U visa under 8 U.S.C. §
1101(a)(15)(U)(ii)(II), as the spouse of a victim of criminal
activity. As a spouse, Ramos Meza needs to demonstrate that
he is admissible to the United States. 8 C.F.R. §
214.14(f)(1)(H). But he is not admissible, due to the final
order of removal. However, he requested a waiver of
inadmissibility by filing Form 1-192, Application for Advance
Permission to Enter as a Non-Immigrant, in accordance with 8
C.F.R. § 212.17. 8 C.F.R. § 214.14(f)(3)(H). The
Form 1-192 was denied on February 15, 2017. A motion to
reconsider the denial of the Form 1-192 was denied on
September 12, 2017. Ramos Meza filed a Form I-290B, Notice of
Appeal or Motion, on October 16, 2017, which was denied on
April 18, 2018 (dated to be entered on April 23, 2018).
the BIA (in the proceedings remanded from the court of
appeals) again denied Ramos Meza's motion to reopen. He
petitioned the court of appeals for review of that denial,
but the court of appeals denied it. Of note to the current
petition, the court of appeals held:
2. The BIA did not mischaracterize as a negative factor
Ramos's potential eligibility for derivative U visa
relief. Rather, the BIA acknowledged that Ramos's
potential eligibility for such relief was a favorable factor,
but appropriately noted the mitigating fact that the U visa
application at issue "was submitted some 14 years after
the events underlying the wife's potential for a U
visa." See 8 C.F.R. § 1003.2(c)(1) (2017)
("A motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former
hearing...."); INS v. Doherty, 502 U.S. 314,
323-25, 112 S.Ct. 719. 116 L.Ed.2d 823 (1992).
3. Likewise, the BIA did not abuse its discretion by
reasoning that Ramos's pattern of misrepresentation
continued even after his true citizenship was exposed at the
removal hearing. In his supplemental U visa application,
Ramos falsely indicated that he had not misrepresented a
material fact for the purpose of obtaining an immigration
Meza v. Sessions, 710 Fed.Appx. 759, 760 (9th Cir.
April 9, 2018, Ramos Meza was taken into custody pending
removal, and was told he would be removed on April 12 or
April 13, 2018. He then commenced this action, asking the
court to order him released from custody and to enjoin the
Government from enforcing the final administrative removal
order. Because Ramos Meza was in custody and facing imminent
removal, I granted a temporary restraining order preventing
his removal while I determined whether I had jurisdiction in
this matter. I ordered the Government to file a response by
the morning of April 19 and set the hearing for that
afternoon. A few hours after the Government filed its
response, Ramos Meza filed a reply, a motion to extend time,
and an amended petition.
end of the April 19 hearing, I took the matter under
submission and converted the temporary restraining order into
a preliminary injunction ...