Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duron v. Johnson

United States District Court, N.D. Mississippi, Greenville Division

May 31, 2017

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
v.
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

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT COURT.

         On May 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.[1] 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.

         Nevertheless, 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.

         Indeed, 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. 2007).

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 chapter.

         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.

         This 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, [2]that 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.

         Indeed, 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.[3] Before a temporary restraining order or preliminary injunction can be entered, the plaintiffs must clearly demonstrate:

         (1) a 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.

         This 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.

         It 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.