United States District Court, D. South Carolina, Charleston Division
Yeny Gresly Garcia Solis, on behalf of her two minor children, JGGS and KSMG, and as a Friend of the Court Petitioner,
Matthew G. Whitaker, Acting Attorney General of the United States, et al, Respondents.
ORDER AND OPINION
RICHARD MXGENGEL UNITED STATESDISTRICT COURT JUDGE.
matter is before the Court on Yeny Gresly Garcia Solis'
("Garcia Solis") motions for a temporary
restraining order ("TRO") (Dkt. No. 6), Motion for
an Emergency Stay of Removal (Dkt. No. 5) and Motion to
Compel United States Immigration and Customs Enforcement
("ICE") to Grant Garcia Solis' Stay of Removal
(Dkt. No. 4). For the reasons set forth below, the Court
denies Petitioner's motions and dismisses the Complaint
for lack of subject-matter jurisdiction.
Solis is a Guatemalan national who fled Guatemala in 2015
with her daughter, JGGS. (Dkt. No. 6-1 at 4.) After entering
the United States on or about July 7, 2015, they were placed
into removal proceedings in the Charlotte Immigration Court.
(Id.) On August 26, 2016 Garcia Solis was awarded
sole custody of JGGS, and in August 29, 2016, JGGS filed a
Form I-360 to pursue Special Immigrant Juvenile Status
("SIJS"). (Id.) Garcia Solis and JGGS'
immigration cases were bifurcated to allow JGGS to pursue
SIJS. (Id.) Garcia Solis received an Order of
Removal from an immigration judge on June 20, 2016.
(Id; Dkt. No. 10-1.) Neither party asserts or
presents any evidence that Garcia Solis appealed this
decision to the Board of Immigration Appeals
("BIA"). On January 19, 2017, JGGS had her 1-360
approved, and she is currently waiting to file a Form 1-485,
which should allow her to receive a Permanent Resident Card.
(Dkt. No. 6-1 at 4 - 5.) Later in the year, on June 4, 2017,
Garcia Solis gave birth to her daughter, KSMG, a United
States citizen. (Id. at 4.)
Solis was asked to report to ICE's Enforcement and
Removal Operations office in Charleston on August 5, 2016.
(Id. at 5.) On that date, she filled out a Stay of
Removal application, which was ultimately approved through
September 20, 2017. (Id.) Garcia Solis filled out
another Stay of Removal application in 2017, which was
approved through October 15, 2018. (Id.) On October
18, 2018, Garcia Solis filled out a third Stay of Removal
application, which was denied on November 8, 2018.
(Id.) Garcia Solis is currently set to report to ICE
on December 12, 2018, with travel plans to depart the United
States no later than December 31, 2018. (Id.)
Solis filed her complaint in this Court on November 11, 2018.
(Dkt. No. 1) On the same day, she filed motions for a TRO, an
emergency stay of removal, and to compel ICE to grant her a
stay of removal. (Dkt. Nos. 4, 5, 6.) Defendants filed their
response on December 4, 2018. (Dkt. No. 10.) Defendants
opposed all of Garcia Solis' motions, and further asked
the Court to dismiss the Complaint for lack of subject matter
jurisdiction. (Dkt. No. 10 at 9.)
the widely applied test for a preliminary injunction, a
petitioner must establish:
 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
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008). Courts apply the same factors when deciding
whether to issue a stay of removal. See Nken v.
Holder, 556 U.S. 418, 434 (2009). For a stay of removal,
"the first two factors of the traditional standard are
the most critical." Id. For the first factor,
the petitioner's chance of success on the merits must be
"better than negligible." Id. Furthermore,
petitioner must show that it is more than a mere
"possibility" that she will be harmed by removal.
Solis' motion for a TRO argues that her removal should be
stayed because it would 1) violate her children's rights
under the Equal Protection clause, 2) violate her daughter
JGGS' due process rights by impacting her ability to
receive a Permanent Resident Card, 3) would violate the
constitutional right to family integrity, 4) would constitute
cruel and unusual punishment to her children, and 5) that
Garcia Solis' deportation is discriminatory. The claims
are all brought on behalf of her children, though they are
seeking review of Garcia Solis' removal. Regardless, the
Court does not possess jurisdiction to issue a TRO, to stay
her removal, or to compel ICE to stay her removal.
district courts do not have subject matter jurisdiction over
requests to stay orders of removal. 8 U.S.C. §
1252(a)(5) requires 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...." 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.").
See also Monteiro v. Attorney Gen. of U.S., 261
Fed.Appx. 368, 369 (3d Cir. 2008) ("[petitioner's]
stay motion, to the extent it could be construed as a
petition for review.. .and thus the District Court did not
have jurisdiction over the petition....").
Solis seeks to avoid the strictures of 8 U.S.C. § 1252
by arguing that while the statute prohibits courts from
reviewing removal orders, it does not prohibit the Court from
issuing a temporary stay of removal. (Dkt. No. 4 at ¶
6.) However, district courts in the Fourth Circuit confronted
with similar requests for a temporary stay of removal have
also held that they lack jurisdiction under 8 U.S.C. §
1252. In Hatami v. Ridge,270 F.Supp.2d 763, 764
(E.D. Va. 2003), a plaintiff facing imminent removal from the
United States sought a temporary stay of the removal order
while he pursued his state habeas corpus petition. The court
held that § 1252 barred the court from granting the
stay, finding that a request for a stay of a removal falls
"squarely within the terms of this section."
Id. See also Paz Yarns v. Nielsen, No.
2:18-CV-00845-DCN, 2018 WL 1640515, at *3 (D.S.C. Apr. 5,
2018) (holding that under 8 U.S.C. § 1252, "this
court clearly does not possess the jurisdiction to issue any
order regarding a stay of [petitioner's] removal.");