UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HARSHADBHAI PATEL and

DIPTI PATEL, 

Plaintiffs,

Case No. 09-13018

vs.

HON. GEORGE CARAM STEEH

JANET NAPOLITANO, Secretary

of Homeland Security, et al.,

Defendants.

____________________________/

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY

RESTRAINING ORDER STAYING THE REMOVAL OF HARSHADBHAI PATEL

Plaintiffs filed a motion for temporary restraining order staying the removal of Mr.

Harshadbhai Patel on July 30, 2009. Plaintiffs seek a stay of removal pending a ruling on

their complaint for mandamus, which seeks an order compelling adjudication of Mrs. Dipti

Patel’s Form I-140 (Immigration Petition for Alien Worker), her Form I-485 (Application to

Adjust Status), and Harshadbhai Patel’s Form I-485, which application is derivative of Dipti

Patel’s Form I-485. The Court heard oral argument on plaintiffs’ motion for temporary

restraining order on August 18, 2009. The parties both filed supplemental briefs which

were considered by the Court. For the reasons stated below, plaintiffs’ motion for

temporary restraining order is DENIED. 

I. Factual and Procedural Background

A. Mrs. Dipti Patel

Mrs. Dipti Patel is a citizen of India who entered the United States in November 1998

without inspection and authorization by an immigration officer. On April 30, 2001, Mrs.

Patel’s employer, Dunkin Donuts, filed a Form ETA-750 Application for Alien Employment

Certification with the U.S. Department of Labor. Dunkin Donuts alleged that it attempted

but was unable to find a skilled U.S. worker able, willing and qualified to decorate pastries.

April 30, 2001 became the “priority date” of Mrs. Patel’s application, putting her in line with

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other aliens from India waiting for a visa number under an annual immigrant worker quota

set by Congress. April 30, 2001 was also the date of a special law permitting aliens to

adjust status without having to return to their home country and get a visa, which placed

Mrs. Patel’s application in a large backlog of cases. (Decl. Of F. Gerard Heinauer). 

The cake decorator position was certified by the U.S. Department of Labor on April

22, 2004. On September 29, 2004, Dunkin Donuts filed a Form I-140 visa petition on Mrs.

Patel’s behalf. Dunkin Donuts provided a letter from a bakery in India as evidence that

Mrs. Patel had the required two years of experience as a pastry decorator. Investigations

in other skilled worker cases had revealed that fraudulent employment experience

verification documents from overseas employers had been submitted to show the required

experience for I-140 visa petitioners. On January 20, 2005, an adjudications officer

reviewed the Form I-140 submitted by Dunkin Donuts and referred it to the Fraud Detection

Unit for possible overseas verification of the validity of the employment experience letter.

Due to lack of agency resources, an investigation was declined and the I-140 was returned

to the adjudications work queue on May 13, 2009. (Decl. Of F. Gerard Heinauer).

On August 21, 2009, the Nebraska Service Center sent Dunkin Donuts a request

for additional evidence in the Form I-140 visa petition proceeding. Dunkin Donuts is

required to respond by October 2, 2009. A decision on the Form I-140 will be made shortly

after October 2, 2009.

B. Mr. Harshadbhai Patel

 Mr. Patel is a native and citizen of India who attempted to enter the U.S. at the

Miami International Airport on August 6, 2001 without valid entry documents. Mr. Patel was

paroled into the country on August 13, 2001, after he expressed a credible fear of

persecution. He was served with a Notice to Appear dated June 21, 2002, charging him

with being subject to removal. Venue was changed from Miami to Detroit. At a May 13,

2003 master calendar hearing, plaintiff conceded removability and submitted a draft asylum

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application outside the one-year period. On November 25, 2003, the Immigration Judge

concluded that because the asylum application was filed outside the one-year period, he

would treat it as an application for withholding removal.

On January 19, 2005, the plaintiffs married. At his merits hearing on May 19, 2005,

Mr. Patel withdrew with prejudice his asylum and withholding applications and sought a

continuance to obtain evidence that his wife’s employer had filed an I-140 on her behalf

(which if approved would allow her to apply to adjust status and him to apply to adjust

derivatively). The Judge denied the motion and ordered plaintiff removed. The Board of

Immigration Appeals (BIA) affirmed the removal order on December 18, 2006. 

On January 3, 2007, Mr. Patel filed a Form I-485, application for adjustment of

status, as the dependent of his wife, who filed a Form I-485 on June 29, 2005. Mr. Patel

filed with the BIA a motion to reopen his removal proceedings and remand for consideration

of another motion for continuance. The BIA denied the motion to reopen. The Sixth Circuit

denied a motion for stay and a petition for review on April 21, 2008, rendering Mr. Patel’s

removal order final. 

On September 25, 2008, Mr. Patel was convicted in 41A District Court in Sterling

Heights for Disorderly Person - Jostling. He was fined and sentenced to 60 days in jail and

12 months probation. On March 2, 2009, ICE issued a Warrant of Removal/Deportation

for Mr. Patel.

On July 27, 2009 Mr. Patel was arrested by ICE officers. Because Mr. Patel’s

passport had expired, ICE requested a travel document from India for Mr. Patel in order to

execute his removal order. Mr. Patel is in the custody of the Calhoun County sheriff in

Battle Creek, Michigan pending his removal. 

Plaintiffs contend that Mrs. Patel’s I-140 has been pending for over four years and

the normal processing time for such petition is four months. Plaintiffs make a similar

argument with regard to their I-485 applications. Plaintiffs’ complaint for mandamus seeks

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an order compelling United States Citizenship and Immigration Services (“USCIS”) to

process plaintiffs’ applications prior to Mr. Patel’s application being mooted by the actions

of ICE in removing Mr. Patel from the country. 

If Mr. Patel is removed from the country, thus causing him to abandon his

application, he will be subject to a ten-year bar on re-admission. 8 U.S.C. § 1182(a)(9)(A).

II. Jurisdiction

The government argues that this Court has no jurisdiction to enter a stay of removal.

8 U.S.C. § 1252(g) provides:

Except as provided in this section and notwithstanding any other provision of

law (statutory or nonstatutory), . . . 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 or commence proceedings, adjudicate cases, or

execute removal orders against any alien under this chapter. 

Plaintiffs rely on a Sixth Circuit case to avoid the jurisdiction stripping provisions of §

1252(g), Mustata v. U.S. Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999). 

In Mustata, the petitioners sought district court habeas review of their removal

orders, as well as a stay of removal, on the basis that ineffective assistance of counsel at

their administrative immigration hearing resulted in a denial of due process. The Sixth

Circuit found that 8 U.S.C. § 1252(g) did not strip the district court of jurisdiction to hear the

challenge to petitioner’s removal orders because the petitioners did not seek review of the

Attorney General’s “decision or action” to “commence proceedings, adjudicate cases, or

execute removal orders against any alien under his chapter.” Rather, the petitioners

challenged the process by which their removal order was obtained, and thereby the validity

of the removal order. The petition seeking a stay of deportation in Mustata was not a claim

against the decision to execute a removal order, but rather a claimed violation of their due

process rights arising from a failure of counsel to present relevant evidence. 

The substance of Mr. Patel’s claim in this case is that the USCIS has unduly delayed

a decision on his and his wife’s applications for adjustment of status, and her petition for

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immigrant worker. Like in Mustata, plaintiffs’ claim is not one against the decision to

execute a removal order, other than the fact that the execution of the removal order will

render the substance of this claim moot. The Court agrees with the plaintiffs’ argument that

it has jurisdiction to consider a stay of the removal order in this case.

III. Stay of Removal

The Court considers four factors in determining whether to grant a stay of removal:

(1) whether the stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the public interest

lies. 

Nken v. Holder, __ U.S. __; 129 S.Ct. 1749, 1756, 1761 (2009) (quoting Hilton v. Braunskill,

481 U.S. 770 (1987)). “The first two factors of the traditional standard are most critical. It

is not enough that the chance of success on the merits be ‘better than negligible.’” Id. at

1761 (citation omitted). 

The Administrative Procedures Act requires administrative agencies to conclude all

matters before them within a “reasonable time,” and authorizes the Court to compel agency

action “unreasonably delayed.” 5 U.S.C. §§ 555(b); 706(1). The Mandamus Act gives the

district courts jurisdiction to compel an agency to perform a duty owed to a plaintiff when

a petitioner has a clear right to relief; the defendant has a clear, non-discretionary duty to

act; and there is no other adequate remedy available. 28 U.S.C. § 1361. 

This Court has previously found that in the absence of deliberate inaction or bad

faith, the time USCIS takes to decide an application to adjust status, as well as the decision

on the application itself, falls within the agency’s discretion under 8 USC § 1255(a). Xu v.

Chertoff, 2007 WL 2221401, *3 (E.D. Mich. July 31, 2007). In Xu, the Court was faced with

an applicant for adjustment of status who filed a mandamus action so he could get a

decision as quickly as possible. This Court found that there was no federal question

involving the APA or the Mandamus Statute, and subject matter jurisdiction did not exist,

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because the delay as pled was within the defendant’s discretion. Id. 

The plaintiffs in this case filed their action so they may obtain a decision on the

merits of Mr. Patel’s application for adjustment of status, not more quickly as in Xu, but ab

initio. As plaintiffs phrase the issue in this case, does the Secretary of Homeland Security

have the discretion not to decide Mr. Patel’s application on the merits at all. It is plaintiffs’

position that the Secretary may not evade her obligation simply by delaying Mr. Patel’s

application for adjustment of status, and his wife’s petition for immigrant worker upon which

it depends, long beyond normal processing times with her USCIS right hand, while she

removes him with her ICE left hand. 

The Court first notes that there is no basis for granting a temporary restraining order

in this case based on Mrs. Patel’s circumstances because she is not being removed. Mrs.

Patel, in fact, holds an employment authorization document to work for any U.S. employer

due to her status as an adjustment of status applicant, valid through July 29, 2010, and

renewable upon request. (Decl. Of F. Gerard Heinauer). It is only Mr. Patel’s removal that

would support the relief sought by the plaintiffs. Second, the I-140 filed on behalf of Mrs.

Patel was in the hands of the USCIS Fraud Detection Unit for most of the time the

application has been pending. The application was returned to the adjudications work

queue on May 13, 2009 and is on schedule for a decision shortly after October 2, 2009.

There is no evidence of any wrongful handling of Mrs. Patel’s I-140 by the defendant arising

from sending the application to the Fraud Detection Unit. Nor is there any evidence that

the Fraud Detection Unit engaged in any wrongful behavior with regard to the application.

There is also no evidence that the defendant has failed to act on Mrs. Patel’s I-140

in order to delay Mr. Patel’s adjustment of status application, or because there is a removal

order pending against Mr. Patel. Mr. Patel filed his Form I-485 adjustment of status petition

on January 3, 2007, after his wife’s I-140 had been referred to the Fraud Detection Unit.

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The significant delay that took place because of the suspicion of fraud had already been

set into motion before Mr. Patel filed his Form I-485. Similarly, Mr. Patel’s removal order

became final on April 21, 2008, also during the time that his wife’s I-140 was with the Fraud

Detection Unit. It defies common sense to argue that the defendant delayed action on the

I-140 application in this case because of the removal order against Mr. Patel inasmuch as

the referral to the fraud unit could not reasonably be related to the renewal order or the

filing of the I-485 petition by Mr. Patel. Finally, defendant has no ability to act on either of

the pending I-485 adjustment of status petitions until Mrs. Patel’s I-140 application has

been resolved, and then only if the I-140 is adjudicated in the employer’s favor. 

The Court finds that the plaintiffs do not have a likelihood of success on the merits

of their claim that the defendant has failed to adjudicate Mr. Patel’s form I-485, together

with the prerequisite I-140, within a reasonable time such that Mr. Patel’s I-485 will become

moot due to his removal, which will cause him to abandon his application. The Court is not

persuaded that the time involved in processing the I-140 in this case, although lengthy, is

unreasonable under the circumstances. Nor have plaintiffs shown a likelihood of

demonstrating that the government delayed action on the I-140 for the purpose of avoiding

its duty to process Mr. Patel’s I-485. As stated above, the I-485 application does not even

become justiciable until the I-140 from which it derives has been granted. 

IV. Conclusion

For the reasons stated above, plaintiffs’ motion for temporary restraining order

staying the removal of Harshadbhai Patel is DENIED.

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Dated: September 9, 2009

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

September 9, 2009, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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