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Pomaquiza v. Sessions

United States District Court, D. Connecticut

October 3, 2017

PEDRO POMAQUIZA, Plaintiff,
v.
JEFFERSON SESSIONS, III, et al., Defendants.

          ORDER DISMISSING COMPLAINT FOR LACK OF FEDERAL JURISDICTION

          Jeffrey Alker Meyer United States District Judge

         More than ten million immigrants live in the United States without a legal right to do so. Many have been here for decades after they came here as children or youth. They have raised families, worked hard, paid taxes, and never committed a crime.

         What to do about this has long vexed Congress and the Executive Branch. Some law-abiding immigrants get to stay. Some have to go. And it is not always clear why some get to stay while others must go.

         Four weeks ago, plaintiff Pedro Pomaquiza was told he must go. He must go back to his native country of Ecuador. It is true that he has no legal right to be here and has long been subject to a final order of removal. Yet since coming to the United States 16 years ago he has no criminal history, has built a construction business, and raised a family with five children.

         Year after year the government allowed Mr. Pomaquiza to stay. This year it suddenly changed its mind. It did so without explaining why, and it told him he had just 30 days to leave his life and his family behind.

         Mr. Pomaquiza now asks the Court for relief. But I cannot help him. Congress has very clearly divested the federal district courts of jurisdiction to review claims like his that arise from the execution of an order of removal. Whatever the equities are for Mr. Pomaquiza and his family, they are for the political branches to consider (or re-consider), and I must dismiss this case for lack of jurisdiction.

         Background

         The facts in this case are not in dispute. Plaintiff Pedro Pomaquiza is a native of Ecuador, where he became an orphan at the age of ten. After living in poverty and working for food as a teenager, Mr. Pomaquiza entered the United States without inspection in January 2001.

         Since coming to the United States, Mr. Pomaquiza has no criminal history. He has married and has five children, four of whom are United States citizens. He lives in Waterbury, Connecticut, and he supports his family through his construction business.

         Mr. Pomaquiza's immigration troubles began more than ten years ago when he was in Vermont to help some of his construction employees, and he had the misfortune to be spotted by agents of U.S. Immigration and Customs Enforcement (“ICE”). He was placed into removal proceedings in Boston, Massachusetts, and these proceedings resulted in a final order of removal. Mr. Pomaquiza appealed but he was denied relief by both the Board of Immigration Appeals and the U.S. Court of Appeals for the First Circuit.

         Now subject to a final order of removal, Mr. Pomaquiza asked for a discretionary stay of removal. In 2012, he applied for a stay of removal by filing a Form I-246, which pursuant to 8 CFR § 241.6 allows an alien subject to a final order of removal to apply for a stay of removal. The stay was granted for one year, and Mr. Pomaquiza thereafter applied for and received a stay of removal each year from 2013 through 2016.

         On August 3, 2017, Mr. Pomaquiza filed again to renew the stay of removal. But on September 5, 2017, the application was denied. The government ordered Mr. Pomaquiza to leave the country by October 5, 2017.

         Mr. Pomaquiza was not told why his application for a stay of removal was denied. When I asked counsel for the government why the application had been denied, I was told that there had been a recent shift in the federal government's immigration enforcement priorities as reflected in the so-called “Kelly Memorandum.”[1] That memorandum provides in part that “regardless of the basis of removability, Department personnel should prioritize removable aliens who: …. (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States.” Kelly Memorandum at 2.

         On September 14, 2017, Mr. Pomaquiza filed a federal court complaint seeking review of the denial of his application for a stay of removal. He does not challenge the final order of removal itself. Instead, he contends that the denial of his application for a stay of removal violated the Administrative Procedure Act and his constitutional right to due process of law. He has filed a motion for a preliminary injunction and a temporary restraining order to prevent his removal until he has the chance to litigate the claims set forth in his complaint. The government opposes the motion for ...


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