United States District Court, N.D. Mississippi, Greenville Division
STEFANY VEGA DURON, a Minor, and BRITTANY ELIZABETH VEGA DURON, a Minor, by and Through Their Father and Next Friend, MARTIN DURON ESPARZA, and by and Through Their Next Friends, TROY BROWN and CHRIS BROWN PLAINTIFFS
RON JOHNSON, Individually, and in His Official Capacity as Director of the Mississippi Field Office of the United States Immigration and Custom Enforcement Division of the United States Department of Homeland Security; and DERRICK McCLUNG, an Immigration Officer of the Mississippi Field Office of the United States Immigration and Custom Enforcement Division of the United States Department of Homeland Security DEFENDANTS
MICHAEL P. MILLS UNITED STATES DISTRICT COURT.
30, 2017, the two minor plaintiffs in this case filed a
complaint seeking for this court to enter an order enjoining
defendants from removing their father Martin Duron Esparza, a
citizen of Mexico, from the United States. In their
complaint, plaintiffs assert that their father has been
provided with written notice that he has until June 1, 2017,
i.e. tomorrow, to leave this country. Plaintiffs'
complaint describes the severe personal hardships that the
deportation of their father would have upon their lives, and
this court is certainly sympathetic to their plight.
having considered plaintiffs' arguments in their motion
for Temporary Restraining Order, and at an emergency hearing
held today to consider that motion, this court concludes that
they have failed to submit precedent indicating that this
court has authority to decide this matter.
the government submitted authority at the hearing held this
afternoon which appears to suggest that this court does not
even have jurisdiction to decide this matter. In
particular, the government cites Fifth Circuit case law which
clearly held that:
A United States citizen child's constitutional rights are
not implicated by the deportation of a parent, even where a
de facto deportation of the child would surely occur.
Gonzalez-Cuevas v. INS, 515 F.2d 1222, 1224 (5th
Cir.1975); Perdido v. INS, 420 F.2d 1179, 1181 (5th
Cir.1969). Chavez's conclusional and unsupported
allegations are insufficient to present a colorable
constitutional or legal question. Cf. Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir.1990). Therefore, we
lack jurisdiction to consider this claim in the instant
petition for review. See § 1252(a)(2)(B)(i);
Falek v. Gonzales, 475 F.3d 285, 289 n. 2 (5th Cir.
De Chavez v. Holder, 514 F.App'x 449, 451 (5th
Cir. 2013). The Fifth Circuit's precedent in this context
involves an application of 8 U.S.C. §1252(a)(2)(B),
which provides in pertinent part that:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by
the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under this
court has had a very short period of time to consider the
government's arguments and authority, but it does appear
to indicate that it lacks jurisdiction to hear this matter.
court therefore concludes that it does, in fact, lack
jurisdiction to consider this matter, and it will accordingly
not issue a formal ruling on the motion for TRO.
Nevertheless, this court has sufficient uncertainty about
whether the rule stated above is a truly categorical bar,
it will briefly note its impression that, even assuming that
it has jurisdiction to decide this case, there are serious
weaknesses in plaintiff's request for a TRO which would
likely preclude it from being granted on its merits.
even assuming for the sake of argument that a U.S. district
judge might, in an appropriate case, enjoin an immigration
removal in a procedural context similar to the one here,
plaintiffs' motion fails to cite any cases in which
district courts have actually done so, based upon the sort of
constitutional claims which they assert in their
complaint. Before a temporary restraining order or
preliminary injunction can be entered, the plaintiffs must
substantial likelihood of prevailing on the merits; (2) a
substantial threat of irreparable harm if the injunction is
not granted; (3) that the threatened injury outweighs any
harm that may result from an injunction; and (4) that the
injunction will not undermine the interest of the public.
Clark v. Prichard, 812 F.2d 991, 993 (5th Cir.
1987). It appears to this court that there are serious
weaknesses in plaintiffs' case with regard to the first
of these four prongs.
court concludes that, in order to demonstrate a substantial
likelihood of success on the merits, it would be incumbent
upon plaintiffs to provide it with authority arising from
cases at least reasonably analogous to this one. In their
motion, plaintiffs rely instead upon generalized
constitutional principles, asserted in legal contexts very
different from this one, which are of questionable relevance
to this case. For example, plaintiffs rely heavily upon
Plyler v. Doe, 457 U.S. 202, 220 (1982), which
involved the right of children in this country to receive a
public education, regardless of the immigration status of
their parents. Plaintiffs also cite decisions which broadly
support the importance of familial relationships and the
rights of parents to rear their children as they see fit.
See e.g. Crowe v. County of San Diego, 608 F.3d 406,
441 (9th Cir. 2010). However, none of these cases are
factually similar to this one, involving an application of
immigration laws passed by Congress.
further appears to this court that prior litigation involving
Duron Esparza's immigration status would be a very
serious obstacle to plaintiffs' claim in this case, were
it to consider those claims on their merits. Indeed, in their
complaint, plaintiffs make clear that their father had an
opportunity to raise his personal hardship arguments before
U.S. immigration judges but that he did not succeed in
obtaining an order barring his removal. Specifically,
plaintiffs allege that:
Duron has made multiple attempts to obtain legal status in
the United States, all of which have been futile. Of
significance to this case, Duron made an application for
cancellation of removal under the Immigration and
Documentation Act. An immigration judge denied the
application on the grounds of his (incorrect) finding that
Duron had exceeded the allowable time for visits to Mexico.
In the same opinion, however, the immigration judge found
that Plaintiff Brittany Duron, due to “acute asthma,
” would suffer hardship by Duron's being deported
to Mexico. (See Oral Decision of the Immigration
Judge, attached hereto as Exhibit “A.”) An