Federal Court in Colorado Explains TRO Against Immediate Deportation of Mohamed Soliman's Family, Transfers Case to Western District of Texas

From today's decision by Judge Gordon Gallagher (D. Colo.) in Dvortsin v. Noem:

Ms. El Gamal is the spouse of Mohamed Soliman, a man accused of and charged with a horrific June 1, 2025 antisemitic fire-bombing attack "against a peaceful gathering of individuals commemorating Israeli hostages." This Court is aware that Mr. Soliman was taken into custody on June 1, 2025, at the scene of the attack. At some point on June 3, 2025, immigration authorities detained Ms. El Gamal and her children….

On June 3, 2025, at 2:12 p.m. MDT, the official Twitter/X account for the White House posted an update on the family's detention:

Then, at 2:42 p.m. MDT, the official Twitter/X account for the White House posted a further update:

The Petition alleges that "Ms. El Gamal and her five children—E.S., A.S., H.S., O.S., H.S.—entered the United States with B-1 visitor visas in 2022, have resided continuously in the United States for more than two years, and are therefore not subject to expedited removal.

And the Petition, which attaches a copy of the relevant visa application (D. 2-3 at 2), goes on to state that "Ms. El Gamal is a network engineer with a pending EB-2 visa, available to professionals with advanced degrees. Mr. Soliman filed an asylum application, and Ms. El Gamal and all five children are dependents on that application. The application is still pending." …

[The Due Process Clause] requires the Government to follow fair procedures before depriving any person of life, liberty, or property. See Trump v. J.G.G. (2025) ("'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings."). At bottom, those procedures include some sort of notice, an opportunity to be heard, and a decision by a neutral party. Much like the carpentry metaphor of measuring twice and cutting once, the purpose of procedural due process is to ensure that courts and other decisionmakers, in a deliberative fashion, reach the correct answers without making unnecessary mistakes….

[W]hile the Government may make rules in the immigration-detention context that it could not constitutionally apply to United States citizens, and while the Government need not treat all noncitizens alike, due process nevertheless requires the Government to comply with its own laws….

Petitioner presented evidence that Ms. El Gamal and her children have resided in the United States for over two years. For that reason alone, it would seem that Respondents could not legally place them in expedited removal proceedings. See 8 U.S.C. § 1225(b)(1)(A)(iii)(II) (conditioning the Attorney General's ability to apply expedited removal procedures to non-arriving noncitizens on those noncitizens' having been present in the United States for under two years); see also 8 C.F.R. § 235.3(b)(1)(2) (providing that expedited removal proceedings may only be applied to "arriving aliens" and "as specifically designated by the Commissioner, aliens who have not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the two-year period immediately prior to the date of determination of inadmissibility"). Yet the Government expressly stated that this was what it was doing—per the White House, ICE "captured" Ms. El Gamal and her children and was detaining them "for expedited removal" as early as the night of June 3, 2025.

To protect the status quo (and to afford Ms. El Gamal and her children an opportunity to challenge the apparent illegality of the Government's stated efforts to remove them on an expedited basis, as opposed through conventional removal proceedings before an immigration judge, at which they could presumably assert defenses to removal), the Court entered a TRO enjoining Respondents from removing Ms. El Gamal and her children from the United States or transferring them out of Colorado. That was all the TRO did—the Court did not rule on the other relief Petitioner asked the Court for, including "preliminary relief permitting counsel access to Ms. El Gamal and ordering release of Ms. El Gamal." Ms. El Gamal and her children—so far as the Court is aware—remain secure in ICE custody.

{The Government now concedes that "[b]ased on the information currently available to ICE, Ms. El Gamal and her children are not eligible for 'expedited' removal proceedings under 8 U.S.C. § 1225(b)." The Government further states that Ms. El Gamal and her family have been placed in conventional—as opposed to expedited—removal proceedings and suggests that this was the plan all along. But the Government's brief entirely ignores the White House's pronouncements to the contrary, and it was these pronouncements that justified issuing the TRO in the first instance. The Government brief does not disavow the White House's earlier pronouncements that it intends to attempt expedited removal or remove Ms. El Gamal and her children immediately despite apparently recognizing that such processes would not comport with due process. While, as discussed infra, the propriety of continued injunctive relief is ultimately an issue for another court, the lack of clarity (and seeming conflict in position among Government actors as to the plan for removing Ms. El Gamal and her family) militates in favor of keeping the existing TRO in place for now.} …

If Respondents had resorted to expedited removal and summarily deported Ms. El Gamal and her children to Egypt (as the Government expressly threatened to do), Respondents likely would have violated Ms. El Gamal's and her children's due process rights….

The court, however, transfers the habeas corpus petition to the U.S. District Court for the Western District of Texas, because that's where they seem to be in ICE custody, and the place of custody drives the proper venue for habeas. (The court notes that "this Court has been presented with no evidence to indicate that some sort of shell-game is occurring with the current place of confinement. Ms. El Gamal and children were moved once, to Texas, and, as far this Court knows, there they remain.") And the court adds,

While the Court's original TRO required that Ms. El Gamal and her children remain in Colorado, that portion of the Order was unknowingly moot before it was even entered as they were already in Texas. The Government can and should read the Order to require maintenance of the family in Texas until this issue is further addressed by the transferee court.

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