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Meza v. Nielsen

United States District Court, D. Nevada

April 20, 2018

KIRSTJEN M. NIELSEN, et al., Respondents.



         Pending 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.

         I now 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.

         I will 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 Appeals.

         Procedural History

         The 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. 2013).

         Ramos 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.

         Ramos-Meza 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).

         Meanwhile, 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 benefit.

Meza v. Sessions, 710 Fed.Appx. 759, 760 (9th Cir. 2018).

         On 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.

         At the end of the April 19 hearing, I took the matter under submission and converted the temporary restraining order into a preliminary injunction ...

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