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Vogado Vieira v. McAleenan

United States District Court, D. Arizona

September 11, 2019

Mario Ney Vogado Vieira, Petitioner,
v.
Kevin McAleenan, et al., Respondents.

          ORDER

          Dominic W. Lanza, United States District Judge.

         Petitioner Mario Ney Vogado Vieira has filed, through counsel, a “Petition for Writs of Habeas Corpus; Writ of Mandamus, and Review of Final Agency Action” (Doc. 1) and a Motion for Temporary Restraining Order (Doc. 2). For the reasons that follow, the Petition will be dismissed and the Motion will be denied as moot.

         I. Background

         Petitioner is a native and citizen of Brazil. On May 28, 2019, he entered the United States near Itak, Arizona, and was apprehended by the United States Department of Homeland Security (“DHS”), Customs and Border Protection. Petitioner expressed a fear of persecution or torture if returned to Brazil and was detained in the CoreCivic La Palma Correctional Center in Eloy, Arizona for a credible fear determination. (Doc. 1 ¶ 1.) An asylum officer determined that Petitioner did not have a credible fear of persecution or torture, and on August 7, 2019, an Immigration Judge affirmed that determination. (Id. ¶¶ 3-4, 18.) Petitioner states “[t]he case is currently pending with USCIS [United States Citizenship and Immigration Services] based on a motion to reconsider that he has filed with the asylum office.” (Id. ¶ 18.)

         On August 22, 2019, Petitioner's spouse filed an Application for T Nonimmigrant Status (Form I-914) along with an Application for a Family Member T-1 Recipient (Form I-914, Supplement A) that lists Petitioner as the named beneficiary. (Doc. 1-3 at 1-4.)[1]

         In anticipation of his spouse's filing of those applications, Petitioner filed an application to stay his removal with United States Immigration and Customs Enforcement (“ICE”) stating that his “wife is in the process of obtaining a T-visa. After she receives her visa, [Petitioner] will be eligible to gain status through his wife.” (Doc. 1-3 at 11.) On August 22, 2019, Petitioner's stay application was denied. (Doc. 1-3 at 12.)

         II. Petition and Motion

         On September 8, 2019, Petitioner filed the “Petition for Writs of Habeas Corpus; Writ of Mandamus, and Review of Final Agency Action” and Motion for Temporary Restraining Order. In the Petition, Petitioner names Acting DHS Secretary Kevin McAleenan, Acting USCIS Director Kenneth Cuccinelli, United States Attorney General William Barr, and Acting ICE Phoenix Field Office Director Albert Carter as Respondents. He contends the Court has jurisdiction under 28 U.S.C. §§ 1331, 1361, 2201, and 2241 and the Administrative Procedures Act (“APA”). (Doc. 1 ¶ 10.)

         In Ground One, Petitioner contends that his “deportation . . . to Brazil would be a violation of the Immigration and Nationality Act, the Due Process and Suspension Clauses of the United States Constitution, and . . . fundamental human rights recognized under international law.” (Doc. 1 ¶ 25.)

         In Ground Two, Petitioner contends that “[p]rior to his removal to Brazil, [he] is entitled to an opportunity to have his T nonimmigrant status application adjudicated. His rights have been violated under the Immigration and Nationality Act, the United States Constitution's Due Process and Suspension Clauses, and . . . international law regarding immigration law.” (Doc. 1 ¶ 26.)

         In Ground Three, Petitioner contends that his “continued detention . . . would violate due process and the [I]mmigration and [N]ationality [A]ct.” (Doc. 1 ¶ 27.)

         Petitioner asks the Court to: (1) declare that his removal from the United States would “violate[] the Immigration and Nationality Act and the United States Constitution and international law” (Doc. 1 at 6); (2) order “Respondents to release Petitioner from detention during the pendency of his T nonimmigrant status application” (id.); (3) issue a writ of mandamus requiring Respondents to provide him “an individualized determination whether Petitioner should be granted derivative T nonimmigrant status” prior to removing him from the United States (id.); and (4) enjoin Respondents “from removing [him] from the jurisdiction of this court during the pendency of these proceedings” (Doc. 2 at 1).

         III. Discussion

         A. Review Under 28 ...


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