United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE
matter comes before the court on Ludys Milargo Paz
Yanes's (“Paz Yanes”) motions for a temporary
restraining order (“TRO”), ECF No. 2, and for an
emergency stay of removal, ECF No. 3, and on defendants'
motion to dismiss, ECF No. 24. The court denies Paz
Yanes's motions and grants defendants' motion due to
the court's lack of subject matter jurisdiction over the
Yanes is a Honduran national who fled Honduras in July 2015
with her son, Aaron, fearing that her ex-partner would harm
or kill them both, due to past abuse and threats. ECF No. 2-1
at 1-4. On or about July 18, 2015 Paz Yanes and her son
entered the United States at or near Hidalgo, Texas, where
they were detained in the custody of the Department of
Homeland Security (“DHS”). Id. at 4. On
July 19, 2015, they were issued two separate Notice to Appear
documents (NTA), charging them as subject to removal from the
U.S. pursuant to section 212(a)(6)(A)(i) of the Immigration
and Nationality Act. Id. After being held in the
South Texas Family Residency Center in Dilley Texas, they
were released on a $5, 000.00 bond on about July 27, 2015.
April 19, 2016, Paz Yanes and Aaron had a hearing before an
Immigration Judge in Charlotte, North Carolina, at which Paz
Yanes received an Order of Removal. ECF No. 2-1 at 4. At the
same hearing, Aaron's case was bifurcated to allow him to
pursue Special Immigration Juvenile Status
(“SIJS”) based on abandonment or abuse by his
father. Id. On August 8, 2016, Paz Yanes was awarded
immediate custody of her minor son by the Beaufort County
Family Court in South Carolina. Id. at 2. On
September 7, 2016, Aaron's Form I-360, Petition for
Special Immigrant Status, was filed with USCIS, leading the
Immigration Judge to administratively closed Aaron's
removal proceedings on September 20, 2016. Id.
Aaron's Form I-360 application for SIJS status was
approved on October 20, 2016. Now that Aaron has achieved
SIJS status, Paz Yanes intends to file an application for him
to obtain permanent residency status. According to the April
2018 Visa Bulletin, the Department of State is working on
cases with a priority date of December 15, 2015. Id.
Aaron's priority date is September 7, 2016, at which
point he will be eligible to apply for his Permanent Resident
Card. Id. In addition to Aaron, Paz Yanes has a
two-year-old daughter named Danna, who is a United States
citizen. Id. at 8.
November 30, 2016, Paz Yanes filed a Stay of Removal
application, which was approved until January 31, 2018. On
Feb 2, 2018, she reported back to the ICE Office of
Enforcement and Removal (“ERO”) Charleston Sub
Office and she filed a second Stay of Removal application.
That application was denied on Feb 21, 2018. ECF No. 2-23.
Paz Yanes's attorney informed the court during the
hearing on this matter that he has not filed any sort of
appeal from her order of removal or the denial of her stay of
removal application. This is confirmed by the declaration of
Paul Sanichar, a Supervisory Detention and Deportation
Officer at the Charleston ERO sub-office. ECF No. 24-1
¶¶ 5-7. Paz Yanes is set to report back to ICE on
April 6, 2018, with travel plans to depart the U.S. no later
than April 30, 2018. ECF No. 2-1 at 2.
Yanes filed her complaint in this court on March 27, 2018.
ECF No. 1. That same day she filed her motions for a TRO and
motion for emergency stay of removal. ECF Nos. 2 and 3.
Defendants filed their response in the form of a motion to
dismiss on April 2, 2018. ECF No. 24. The court held a
hearing on April 2, 2018. ECF No. 25.
order to obtain a preliminary injunction, a plaintiff must
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20. These same factors guide a court's decision whether
to issue a stay of removal. For a stay of removal, “the
first two factors of the traditional standard are the most
critical.” Nken v. Holder, 556 U.S. 418, 434
(2009). In regards to the first factor, the petitioner's
chance of success on the merits must be “better than
negligible.” Id. In the same way, petitioner
must show that it is more than a mere
“possibility” that he will be harmed by removal.
The Supreme Court has noted that “although removal is a
serious burden for many aliens, it is not categorically
Yanes's motions for a TRO and stay of removal bring the
following three claims: (1) Paz Yanes should not be removed
because it would likely result in her physical harm; (2) her
removal would deny Aaron his due process right to file an
application for a green card; and (3) her removal would harm
the interests of her daughter, Danna, who is a U.S. citizen.
Although she appears to bring all of the claims on behalf of
herself, in reality only the first claim can truly be brought
by herself. The other two should be brought by her children.
Regardless of this problem, the court does not possess
jurisdiction to issue a TRO staying her removal for any
period of time.
district courts may not exercise subject matter jurisdiction
over requests to stay orders of removal. The Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) of 1996 established that “a
petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and
exclusive means for judicial review of an order of removal .
. . .” 8 U.S.C. § 1252(a)(5). The Fourth Circuit
has clearly affirmed that 8 U.S.C. § 1252 precludes a
district court from granting a stay of removal. Mapoy v.
Carroll, 185 F.3d 224, 230 (4th Cir. 1999)
(“Section 1525 provides that an alien who wishes to
challenge a final order of removal must file a petition for
review of such an order in the court of appeals.”).
District courts that have been presented with requests for a
stay of removal in situations very similar to the one
currently before the court have refused to decide upon the
merits of those cases because they lack jurisdiction. In
Hatami v. Ridge, 270 F.Supp.2d 763, 764 (E.D. Va.
2003), the plaintiff facing imminent removal from the United
States sought a temporary stay of the removal order while he
pursued his state habeas corpus petition regarding
the criminal conviction that formed the basis of his
deportation. The court held that § 1252 barred the court
from granting the stay, ...