MOTION FOR TEMPORARY ORDER STAYING 

THE REMOVAL OF HARSHADBHAI PATEL - 1 

Piston & Carpenter P.C. 

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Troy, MI 48098 

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Michael E. Piston 

Blaine Coleman 

Piston & Carpenter P.C. 

4000 Livernois, Suite 110 

Troy, MI 48098 

(248) 524-1936 

UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF MICHIGAN 

HARSHADBHAI PATEL and DIPTI 

PATEL, 

 Plaintiffs, 

 vs. 

JANET NAPOLITANO, Secretary 

of Homeland Security, MICHAEL 

AYTES, Acting Deputy Director, 

United States Citizenship and 

Immigration Services, F. GERARD 

HEINAUER, Director of the 

United States Citizenship and 

Immigration Services’ Nebraska 

Service Center and VINCENT 

CLAUSEN, Detroit Field Office 

Director for the Immigration and 

Customs Enforcement Agency 

 Defendants 

 

MOTION FOR TEMPORARY 

RESTRAINING ORDER STAYING 

THE OF REMOVAL OF 

HARSHADBHAI PATEL 

Case No. 2:09-cv-13018

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MOTION FOR TEMPORARY RESTRAINING ORDER STAYING 

THE REMOVAL OF HARSHADBHAI PATEL

Harshadbhai Patel, through his attorneys, moves this Court 

pursuant to FRCP 65(b) and 28 U.S.C. § 1651, the “All Writs Act”1, 

to issue an immediate order restraining the Department of 

Homeland Security from removing him during the pendency of this 

action. This is an action in the nature of mandamus to direct the 

USCIS to adjudicate Mr. Patel and his wife’s applications for 

adjustment of status2, form I-485, as well as Mrs. Patel’s employer’s 

immigrant visa petition upon her behalf, form I-140. Mr. Patel’s 

removal would be deemed an abandonment of his application. 8 

C.F.R. § 245.2(a)(4)(ii)(A). The All Writs Act must be “directed at 

conduct which, left unchecked, would have had the practical effect 

of diminishing the court's power to bring the litigation to a natural 

conclusion.” ITT Community Dev. Corp. v. Barton, 569 F.2d 1351, 

1359 (5th Cir.1978)(footnote omitted). Since Mr. Patel’s removal 

would in fact eliminate any power of this Court to bring this 

litigation to a conclusion on any basis except a dismissal for 

mootness, the issuance of a Temporary Restraining Order 

 

1 This Act provides in relevant part that “The Supreme Court and all courts 

established by Act of Congress may issue all writs necessary or appropriate in 

aid of their respective jurisdictions and agreeable to the usages and principles 

of law.” 28 U.S.C. § 1651(a).

2 As well as his wife’s prospective employer’s petition for immigrant, form I-140, 

upon her behalf, the approval of which is a necessary precursor to the approval 

Mrs. Patel’s application for adjustment of status and therefore Mr. Patel’s. 

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prohibiting Mr. Patel’s removal from the United States is fully 

authorized by the All Writs Act. 

FRCP 65(b) provides an alternative basis for a temporary 

restraining order. In determining whether to issue a temporary 

restraining order, a district court must consider four factors, 

balancing each factor against the other: (1) the likelihood that the 

moving party will succeed on the merits of the claim; (2) the 

likelihood the moving party will suffer irreparable injury if 

injunctive relief is not granted; (3) whether granting the relief will 

cause substantial harm to others; and (4) whether granting the 

relief would serve the public interest. Suster v. Marshall, 149 F.3d 

523, 528 (6th Cir. 1998), cert. denied, 525 U.S. 1114 (1999); 

Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir. 1994). As the 

Sixth Circuit has held, however, the four considerations are factors 

to be balanced, not prerequisites that must be met. In re: DeLorean 

Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). Therefore, the 

degree of likelihood of success required to support a grant of 

injunctive relief may depend on the strength of the other factors 

considered. Id. 

As we will show, Mr. Patel has a strong likelihood of success 

on the merits and will suffer irreparable harm if he is removed. By 

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contrast the government will suffer little or no detriment as a result 

of a stay. Therefore an order for stay of removal should issue. 

A copy of Mr. Patel’s complaint and this motion has been 

served upon the United States Attorney’s office, which is 

representing the defendants in this matter, and it is believed that 

this is sufficient notice to enable the defendants to be heard. 

BRIEF STATEMENT OF PERTINENT FACTS

Harshadbhai Patel arrived in the United States on August 6, 

2001 without a visa and was initially taken into custody.3 However, 

following a finding that he had a credible fear of returning to India, 

he was paroled into the United States on August 13, 2001.4 He was 

subsequently ordered removed by an Immigration Judge as a 

person without a valid entry document on May 19, 2005.5 This 

order was affirmed by the Board of Immigration Appeals on 

December 18, 2006. 6 Thereafter, on January 3, 2007, Mr. Patel 

filed with the United States Citizenship and Immigration Services’ 

 

3 See Notice to Appear attached as Exhibit 1. 

4 See Parole document, attached as Exhibit 2. 

5 See Decision of Immigration Judge, attached as Exhibit 3. 

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(USCIS) Nebraska Service Center (NSC) an application to adjust his 

immigration status to permanent resident under 8 U.S.C. § 1255(i) 7

as the dependent of his wife, whose application for adjustment of 

status had been filed with NSC on June 29, 2005.8 Mrs. Patel’s 

application was based upon a petition for immigrant worker, form I1409, which had been filed by her prospective employer upon her 

behalf seeking to classify her as a skilled worker on September 29, 

200410. The Sixth Circuit Court of Appeals subsequently upheld Mr. 

Patel’s removal order on April 21, 200812. 

Meanwhile Mr. Patel’s application for adjustment of status 

continues to remain pending unadjudicated before the USCIS, as 

does his wife’s application and the petition filed upon her behalf by 

her prospective employer. Since the normal processing time for an 

 

6 See Decision of Board of Immigration Appeals attached as Exhibit 8. 

7 See Mr. Patel’s Form I-485 and supporting documents and fee receipt, all 

attached as Exhibit 4. 

8 See Mrs. Dipti Patel’s Form I-485 and supporting documents and fee receipt, 

all attached as Exhibit 5. 

9 See the form I-140 fee receipt, filed upon behalf of Mrs. Patel, attached as 

Exhibit 6. 

10 The “priority date” of this petition was April 30, 2001, the date her employer 

filed an application for alien employment certification upon her behalf. 8 C.F.R. 

§ 204.5(d). A copy of that approved application is attached as Exhibit 7. 

12 See Decision of the Sixth Circuit Court of Appeals, attached as Exhibit 9. 

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I-140 for a skilled worker is 4 months, and Mrs. Patel’s petition has 

been pending for nearly 5 years, it is well beyond normal processing 

times. So too are Mr. and Mrs. Patel’s forms I-485, inasmuch as the 

NSC is currently adjudicating employment based forms I-485 it 

received on September 8, 2007.13

 On July 27, 2009 Mr. Patel was arrested by DHS and is 

currently being held in Battle Creek, Michigan, in the custody of the 

Calhoun County sheriff, facing imminent removal from the United 

States. 

ARGUMENT

I. MR. PATEL IS LIKELY TO SUCCEED ON THE MERITS OF HIS

COMPLAINT 

 

13 See USCIS Processing Time Information for the Nebraska Service Center 

Posted: July 16, 2009, attached as Exhibit 10. The currently available 

processing times should be available online at 

https://egov.uscis.gov/cris/processTimesDisplay.do. 

15 Had the NSC processed the Patels’ applications and petitions within the 

same time frames it is currently deciding such matters, Mrs. Patel’s I-140 

would have been adjudicated by February, 2005, her I-485 by May, 2006, and 

Mr. Patel’s I-485 by December, 2007. 

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The Administrative Procedure Act, 5 U.S.C. § 706(1), the 

Federal Question statute, 28 U.S.C. § 1331 and the Mandamus Act, 

28 U.S.C. § 1361, all provide subject matter jurisdiction for this 

Court to require the defendants to conclude plaintiff’s application 

for adjustment of status (and his wife’s petition and application, 

upon which it relies) within a reasonable time. 

Title 28, section 1361 of the United States Code states that 

"the district courts shall have original jurisdiction of any 

action in the nature of mandamus to compel an officer or 

employee of the United States or any agency thereof to perform 

a duty owed to the plaintiff." To establish mandamus 

jurisdiction, a petitioner must establish that: (1) he has a clear 

right to relief; (2) the defendant has a clear, non-discretionary 

duty to act; and (3) there is no other adequate remedy 

available. Heckler v. Ringer, 466 U.S. 602, 616-17, 80 L. Ed. 

2d 622, 104 S. Ct. 2013 (1984); In re Bankers Trust Co., 61 

F.3d 465, 469 (6th Cir. 1995). 

Nelson v. United States, 107 Fed. Appx. 469, 471 (6th Cir. 2004). 

5 U.S.C. § 555(b) requires administrative agencies to conclude 

all matters before them within a “reasonable time”, and 5 U.S.C. § 

706(1) authorizes this Court to compel agency action “unreasonably 

delayed”. 

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The fact that neither the statute nor the regulations quantify 

what is a reasonable time in which to decide an application for 

adjustment of status simply makes it a question of fact to be 

determined under all of the circumstances. As this Court held in 

reference to the National Traffic Motor Vehicle Safety Act ‘neither 

the statute nor the regulations provide a time frame for deciding 

petitions.’ The petition has been pending in this case for over 

seventeen months. In the absence of language setting forth a time 

frame, the Court looks to the Administrative Procedure Act for 

further guidance, which, as noted earlier, authorizes a court to 

‘compel agency action unlawfully withheld or unreasonably 

delayed.’ 5 U.S.C. § 706(1). The statutory language implies that an 

agency of government is charged with the duty of acting reasonably; 

therefore, the Court determines that in the absence of a specific 

timetable, the agency has a duty to decide the petition within a 

reasonable time.” Intermodal Technologies., Inc. v. Mineta, 413 F. 

Supp. 2d 834, 842 (D. Mich. 2006). 

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What is a “reasonable time” is certainly a matter to be 

determined under all of the applicable circumstances. However, it 

should be self-evident that a time which is not only well beyond the 

agency’s own normal processing periods for similar applications, 

but is so delayed that the application is in imminent peril of being 

mooted, is not “within a reasonable time” for the USCIS to conclude 

Mr. Patel’s application for adjustment of status, nor his wife’s form 

I-140 and I-485. See Paunescu v. I.N.S, 76 F.Supp.2d 896 (N.D.Ill. 

1999). 

In Paunescu, winners of the diversity visa lottery brought an 

action in federal court seeking a mandamus order against the 

Immigration and Naturalization Service requiring them to complete 

the plaintiffs’ applications for adjustment of status to permanent 

resident based upon their diversity visa lottery success before it 

became mooted by the passage of time, in that the visa numbers for 

that category ceased to exist at the end of that fiscal year, 

September 30, 1998. The Court ordered the INS to complete 

adjudication of the plaintiffs’ applications by that date. Although 

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nowhere was it specifically stated as such, it is apparent that the 

Court determined that the INS had a duty to the plaintiffs to 

adjudicate their applications for adjustment of status before the 

passage of time rendered them nonapprovable. The Court’s finding 

“that defendants owe plaintiffs a non-discretionary duty to complete 

the processing of their applications”, Id., 76 F.Supp.2d at 903, 

necessarily meant that the defendants had a duty to complete that 

processing before it was mooted by the passage of time. 

By the same token, it should be self-evident that the reasonable 

time in which defendant Department of Homeland Security’s USCIS 

branch has a duty to adjudicate Mr. Patel’s form I-485, together 

with any necessary prerequisites, is prior to the application being 

mooted by the actions of its own Immigration and Customs 

Enforcement branch’s removal of Mr. Patel, thereby causing him to 

abandon his application, 8 C.F.R. § 245.2(a)(4)(ii)(A), and subjecting 

him to a ten year bar on re-admission to the U.S. 8 U.S.C. § 

1182(a)(9)(A). 

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Finally, the Secretary of Homeland Security should not be 

permitted to default on her duty to adjudicate Harshadbhai Patel’s 

application for adjustment of status by the simple expedient of 

removing him from the United States, particularly after she has 

accepted a premium fee from him under 8 U.S.C. § 1255(i) to 

adjudicate his petition despite the fact he was removable. 

This application was filed pursuant to newly promulgated 

regulations expressly intended to permit certain “arriving aliens”, 

such as Mr. Patel to apply for adjustment of status with USCIS even 

if they were under removal proceedings or, indeed, even if they had 

been ordered removed from the United States. See 71 Fed Reg. 

27585, 27591(May 12, 2006). The regulation was adopted by the 

Department of Homeland Security in response to a series of judicial 

decisions holding that its prior regulatory prohibition preventing 

arriving aliens in removal proceedings from applying for adjustment 

of status was contrary to the express intent of Congress in enacting 

8 U.S.C. § 1255(a) to permit foreign nationals such as Harshadbhai 

Patel who were paroled into the United States, from adjusting 

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status in this country. See 71 Fed Reg. 27585, 27587(May 12, 

2006), Scheerer v. U.S. Atty. Gen., 445 F.3d 1311 (11th Cir. 2006); 

Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Zheng v. Gonzales, 

422 F.3d 98 (3d Cir. 2005); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 

2005). 

Permitting Secretary Napolitano to evade this requirement by 

simply delaying a decision on Mr. Patel’s application with her USCIS 

hand whilst she removes him with her Immigration and Customs 

Enforcement hand would be a blatant evasion both of the judicial 

decisions giving rise to said rule and the intention of Congress which 

these decisions vindicated. Such transparent gamesmanship should 

not be tolerated by this Court. 

II. MR. PATEL WILL UNQUESTIONABLY SUFFER IRREPARABLE 

INJURY IF THE INJUNCTIVE RELIEF IS NOT GRANTED 

As explained above, if Mr. Patel is removed from the United 

States he will be unable to complete his adjustment of status 

application. Nor will he be able to apply for an immigrant visa at a 

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U.S. consulate after his wife’s adjustment is completed, because he 

will be barred by the execution of the removal order from returning 

to the U.S. for 10 years. Therefore the harm Mr. Patel will suffer by 

removal, the loss of U.S. permanent resident status for at least ten 

years is, literally, irreparable, in that there is no mechanism for 

reimbursing him or otherwise ameliorating his loss if he is removed. 

III. STAYING MR. PATEL’S REMOVAL WILL NOT CAUSE 

SUBSTANTIAL HARM TO OTHERS 

Granted, there is a DHS and public interest in the prompt 

execution of removal orders. However, the DHS’s failure to take any 

action to remove or even detain Mr. Patel until July 27, 2009, 

despite being legally able to do so since the Board of Immigration 

Appeals decision upholding his removal order on December 18, 

2006, demonstrates the low priority it attaches to his removal and 

the lack of a threat he poses to the public at large. 

Finally, a stay of removal serves the public interest of ensuring 

that the DHS complies with the law. Bejjani v. I.N.S. 271 F.3d 670, 

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689 (6th Cir. 2001). Here this will be impossible if a stay is not 

granted since Mr. Patel’s removal will moot the instant controversy 

as it pertains to him and bring his part of the case to a close 

without any finding as to whether the DHS unreasonably delayed 

his application for adjustment of status. 

IV. JURISDICTION 

It is anticipated that the government will challenge this 

Court’s jurisdiction both to grant Mr. Patel a stay of removal on the 

basis of 8 U.S.C. § 1252(g) and to hear this action at all on account 

of 8 U.S.C. § 1252(a)(2)(B). As we will now show however, any such 

jurisdictional challenges would be misplaced in light of controlling 

Sixth Circuit authority. 

A. THIS COURT HAS JURISDICTION TO STAY REMOVAL OF MR. 

PATEL DURING THE PENDENCY OF THIS ACTION DESPITE § 

1252(g) 

As can be seen, the gravaman of Mr. Patel’s complaint is that 

the USCIS has improperly delayed the adjudication of his and his 

wife’s applications for adjustment of status as well as her 

employer’s immigrant visa petition upon her behalf. Accordingly, 

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this Court has jurisdiction to grant him a stay of removal pursuant 

to the 6th Circuit’s decision in Mustata v. U.S. Dept. of Justice, 179 

F.3d 1017 (6TH Cir. 1999), nothwithstanding the bar on the review

of the execution of removal orders contain in 8 U.S.C. § 1252(g). 

In Mustata, the petitioners brought a habeas corpus petition 

claiming that they had been persuaded to abandon their application 

for asylum due to ineffective assistance of counsel. The district 

court held that it lacked jurisdiction under 8 U.S.C. § 1252(g) to 

grant the petitioners a stay of removal and the Sixth Circuit 

reversed. The Court of Appeals carefully analyzed the Supreme 

Court's decision in Reno v. American Arab Anti-Discrimination 

Committee, Inc., 525 U.S. 471 (1999), and the three discreet actions 

with which § 1252(g) prescribed judicial interference. The Court 

concluded that none of these prohibitions were applicable to the 

petitioners’ case. In particular, it found that the petitioners’ action 

was not one to review the Attorney General's decision or action to 

execute a removal order because: 

The facts relevant to their claim - essentially that their counsel 

failed to investigate and present relevant evidence - took place 

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well before any decision by the Attorney General to execute a 

removal order. Moreover, the Mustatas are not claiming that 

the Attorney General should grant them discretionary, 

deferred-action-type relief. That is, they are not asking the 

Attorney General to exercise her discretion to allow them to 

remain in the United States. The fact that the Mustatas in 

their petition seek a stay of deportation does not make their 

claim one against the decision to execute a removal order. The 

substance of their claim is that their counsel's failure to 

investigate and present relevant evidence resulted in a 

violation of their due process rights. Whether or not the 

Attorney General executes a removal order against the 

Mustatas is immaterial to the substance of this claim. 

Respondents' argument to the contrary confuses the 

substance of the Mustatas' claim with the remedy requested. 

Mustata, 179 F.3d 1022-23. 

Here the USCIS’s failure to adjudicate Mr. Patel’s and his 

wife’s applications for adjustment of status and his wife’s immigrant 

visa petition began well before any decision by the Secretary of 

Homeland Security to execute his removal order.15 Moreover, Mr. 

Patel is not claiming that the Secretary should grant him 

discretionary, deferred-action-type relief. That is, he is not asking 

the Secretary of Homeland Security to exercise her discretion to 

allow him to remain in the United States. The fact that Mr. Patel in 

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his petition seeks a stay of removal does not make his claim one 

against the decision to execute a removal order. The substance of 

his claim is that the USCIS has unduly delayed a decision on his 

and his wife’s applications for adjustment of status, and her 

petition for immigrant worker. Whether or not the Secretary of 

Homeland Security executes a removal order against Mr. Patel is 

immaterial to the substance of this claim, except to the extent that 

the execution of that order will render it moot. 

Accordingly, 8 U.S.C. § 1252(g) is no bar to this Court staying 

Mr. Patel’s removal during the pendency of this action. 

B. THE COURT HAS JURISDICTION OVER THIS ACTION 

DESPITE 8 U.S.C. § 1252(a)(2)(B) 

Mr. Patel is unaware of any basis for questioning this Court’s 

jurisdiction to require USCIS to adjudicate the petition for 

immigrant worker filed upon Mrs. Patel’s behalf by her employer, 

which has been pending with the NSC for over 4 1⁄2 years, even 

though it claims to be adjudicating such petitions within 4 

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Troy, MI 48098 

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months.16 However, some Courts have found actions to compel 

adjudication of applications for adjustment of status to be barred 

under 8 U.S.C. § 1252(a)(2)(B). E.g. Safadi v. Howard, 466 

F.Supp.2d 696, 698 (E.D.Va.2006); Grinberg v. Swacina, 478 

F.Supp.2d 1350 (S.D.Fla.2007); Li v. Chertoff 482 F.Supp.2d 1172 

(S.D.Cal.2007); Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J.,2007); 

Sharif v. Chertoff, No. 07 C 1690, 2007 WL 2045489 (N.D.Ill. Jul 18, 

2007); Narra v. Gonzalez, No. 4:06CV3289, 2007 WL 1959255 

(D.Neb. July 3, 2007); Zhang v. Dist. Dir., USCIS, No. 07-362(SDW), 

2007 WL 1797655, (D.N.J. June 20, 2007); Elzerw v. Mueller, No. 

07-00166,2007 WL 1221195 (E.D.Pa. Apr. 23, 2007); Romanovich v. 

Gonzales, No. 07-60224, 2007 WL 1229047 (S.D.Fla. April 4, 2007); 

Zaytsev v. Gantner, No.4 civ 7101, 2004 WL 2251665 (S.D.N.Y. 

Sept.24, 2004). 

 

16 Mrs. Patel, as the beneficiary of this petition, whose application for 

adjustment of status has been delayed awaiting its adjudication, has standing 

to sue for a prompt decision on the petition. See Bangura v. Hansen, 434 F.3d 

487, 500 (6th Cir. 2006)(beneficiary of alien relativ has standing to seek review 

of its denial in Federal Court), Ghaly v. INS, 48 F.3d 1426, 1434 n. 6 (7th 

Cir.1995) (holding that immigrant beneficiary of an employer's visa application 

fell within the visa statute's “zone of interest,” and thus, had standing to 

challenge the visa's revocation under the APA); Taneja v. Smith, 795 F.2d 355, 

358 n. 7 (4th Cir.1986) (same). 

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However, whatever the merits of this argument may be in 

other jurisdictions, it is plainly foreclosed in the 6th Circuit in light 

of our Court of Appeals’ recent decision narrowly construing 8 

U.S.C. § 1252(a)(2)(B) to apply only to discretionary decisions: 

[A]s the heading of the underlying provision suggests, see id. § 

1252(a)(2)(B) (“Denials of discretionary relief”), the statute 

prevents us from reexamining only discretionary decisions by 

the agency, including discretionary denials of an application 

for cancellation of removal. “[N]on-discretionary decisions,” by 

contrast, are within our purview, even where they “underlie 

determinations that are ultimately discretionary.” BillekeTolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004); see also 

Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 

2005) (holding that § 1252(a)(2)(B) “divests jurisdiction of a 

court to review judgments regarding the granting of

discretionary relief, including the cancellation of removal,” but 

does not remove jurisdiction to review the non-discretionary 

fact of an alien's continuous presence in the United States). 

Aburto-Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008). 

Even though it is within the discretion of the Secretary of 

Homeland Security as to how she will decide an application for 

adjustment of status, she certainly has no discretion not to decide it 

all. Here 8 U.S.C. § 1255(a) provides that: 

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The status of an alien who was inspected and admitted or 

paroled into the United States or the status of any other alien 

having an approved petition for classification as a VAWA selfpetitioner may be adjusted by the Attorney General, in his 

discretion and under such regulations as he may prescribe, to 

that of an alien lawfully admitted for permanent residence if 

(1) the alien makes an application for such adjustment, 

(2) the alien is eligible to receive an immigrant visa and is 

admissible to the United States for permanent residence, and 

(3) an immigrant visa is immediately available to him at the 

time his application is filed. 

Thus there is no statutory language authorizing the Secretary 

of Homeland Security to shelve an application for adjustment of 

status and pay it no mind whatsoever. The statute states simply 

that the Secretary may deny or grant an application for reasons 

within her discretion. In fact, 8 U.S.C § 1103 states that "[t]he 

Attorney General shall be charged with the administration and 

enforcement of this chapter and all other laws relating to the 

immigration and naturalization of aliens." which certainly requires 

that the Secretary of Homeland Security act upon applications for 

adjustment of status which are properly filed under the Act, since 

this is a duty inherent in the administration and enforcement of 

immigration laws. 

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Likewise, the Code of Federal Regulations provide that "the 

applicant shall be notified of the decision of the director (on his 

application for adjustment of status), and, if the application is 

denied, the reasons for the denial." 8 C.F.R. § 245.2 (parenthetical 

material added for clarity). In other words, the statutes and the 

regulation provide that certain actions shall be taken by the 

Secretary even if the ultimate determination of how she will act is 

committed to her discretion. Accordingly, regardless of her ultimate 

decision, the Secretary of Homeland Security has a 

nondiscretionary duty to act on applications for adjustment of 

status. Yu v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999), 

Alsharqawi v. Gonzales, 2007 U.S. Dist. LEXIS 29808 (D. Tex. 

2007). 

Yet by ignoring Mr. Patel’s application for adjustment of status 

until he is removed from the country (by the Secretary herself) the 

Secretary of Homeland Security is in effect deciding to not 

adjudicate his application for adjustment of status. This is not a 

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decision she has the discretion to make and therefore it is one 

reviewable by this Court under Aburto-Rocha, regardless of 8 U.S.C. 

§ 1252(a)(2)(B). See also, e.g. Nigmadzhanov v. Mueller, 550 

F.Supp.2d 540 (S.D.N.Y.2008) (finding subject matter jurisdiction to 

order mandamus pertaining to applications of adjustment of 

status); Kashkool v. Chertoff, 553 F.Supp.2d 1131 (D.Ariz.2008) 

(same); Bondarenko v. Chertoff, No. 07-mc-00002, 2007 WL 

2693642, 2007 U.S. Dist. LEXIS 67143 (W.D.N.Y. Sept. 11, 2007) 

(same); Koren v. Chertoff, No. 3:07cv157 (PCD), 2007 WL 1431948, 

2007 U.S. Dist. LEXIS 35128 (D.Conn. May 14, 2007) (same); 

Zaigang Liu v. Novak, 509 F.Supp.2d 1 (D.D.C.2007) (same); Shah v. 

Hansen, No. 1:07 CV 1576, 2007 WL 3232353, 2007 U.S. Dist. 

LEXIS 80636 (N.D.Ohio 2007) (same); Belegradek v. Gonzales, 523 

F.Supp.2d 1364 (N.D.Ga.2007) (same); Toor v. Still, No. C07-0645 

BZ, 2007 WL 2028407, 2007 U.S. Dist. LEXIS 53173 (N.D.Cal. July 

10, 2007) (same); Ma v. Gonzales, No. C07-122RSL, 2007 WL 

1655188, 2007 U.S. Dist. LEXIS 41103 (W.D. Wash. June 5, 2007). 

CONCLUSION

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 This Court needs to act immediately to stay Harshadbhai 

Patel’s removal from the United States if it is even to have the 

opportunity to review his claim that his application for adjustment 

of status, and the petition for immigrant worker and application for 

adjustment of status of his wife, have been unduly delayed. Since 

Mr. Patel is likely to prevail on the merits of his complaint, and will 

suffer irreparable harm if he is removed (in that his claim will be 

mooted by his removal), while the government will suffer little or no 

detriment by staying his removal, it is respectfully requested that 

this Court issue a Temporary Restraining Order staying Mr. Patel’s 

removal during the pendency of this action or, in the alternative, 

until a hearing can be held on a preliminary injunction. 

Respectfully submitted, 

Dated this 30th day of July, 2009 

s/Michael E. Piston

Michael E. Piston P34568 

Piston & Carpenter P.C. 

4000 Livernois Road, Ste. 110 

Troy, MI 48098 

(248)524-1936 telephone 

(248) 680-0627 facsimile 

 michael@piston.net 

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CERTIFICATE OF SERVICE

I, Michael E. Piston, hereby certify that I served a true and accurate 

copy of the attached Motion for Temporary Restraining Order 

Staying the Removal of Harshadbhai Patel via postage paid first 

class certified mail/return receipt requested to: 

 

Janet Napolitano, Secretary 

Department of Homeland Security 

Washington, DC 20528 

Michael Aytes, Acting Deputy Director 

U.S. Citizenship & Immigration Services 

20 Massachusetts Avenue, N.W. 

Washington, DC 20529 

F. Gerard Heinauer, Director 

U.S. Citizenship & Immigration Services 

Nebraska Service Center 

950 S Street 

Lincoln, NE 68508 

Vincent Clausen, Director 

Immigration & Customs Enforcement 

Detroit District 

333 Mount Elliott Street, 2nd Floor 

Detroit, MI 48207 

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U.S. Attorney 

211 West Fort Street, Suite 2001 

Detroit, MI 48226 

U.S. Attorney General 

U.S. Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington, D.C. 20530-0001 

on this 30th day of July, 2009. 

 

 s/Michael E. Piston

Michael E. Piston P34568 

Piston & Carpenter P.C. 

4000 Livernois Road, Ste. 110 

Troy, MI 48098 

(248)524-1936 telephone 

(248) 680-0627 facsimile 

 michael@piston.net 

 

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