United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Ryan Alexander Simpson's Motion
for Temporary Restraining Order (“TRO”). ECF No.
The Court ruled on the motion in part on April 8, 2019,
denying Petitioner's request to stay his pending
deportation. ECF No. 8. The Court simultaneously deferred
ruling on Petitioner's request for relief from his
detention pending deportation, ordering that Respondents
provide notice of Petitioner's deportation status and
detention status. Id. Having reviewed the subsequent
notices and briefs form the parties, for the reasons stated
below, the Court denies the Motion.
April 5, 2019, Petitioner filed a writ of habeas corpus,
asserting the following bases for relief: (1) violation of
the Immigration and Nationality Act and its applicable
regulations; (2) violation of the Due Process Clause as to
Petitioner's removal from the United States; (3)
violation of the Administrative Procedure Act as to
Petitioner's removal from the United States; (4)
violation of the Suspension Clause, Article I, § 9,
Clause 2 of the federal constitution as to Petitioner's
removal from the United States; (5) violation of the
Immigration and Nationality Act and its applicable
regulations as to Petitioner's detention; and (6)
violation of the Due Process Clause as to Petitioner's
detention. ECF No. 1. Petitioner originally sought a TRO that
stayed his deportation until resolution of pending
applications to adjust his immigration status and that
released him from custody pending this action. Id.
The Court previously denied the request for a stay of
Petitioner's order of removal on April 8, 2019, finding
that Petitioner failed to show any basis rendering the order
of removal unlawful. ECF No. 8. Petitioner now seeks a TRO
that releases him from custody and asks the Court to
reconsider its denial of his request for a stay of his
deportation. ECF No. 1; see also ECF Nos. 11, 19.
Court incorporates its factual findings from its April 8,
2019 Order and makes the following additional findings:
Petitioner has been detained subject to a final order of
removal for over ninety days. He was initially detained for
approximately eighty days in 2017. The order of removal was
deferred, and Petitioner was released from custody. The
deferral expired on October 11, 2018. After failing to attend
a scheduled hearing regarding his pending application to
adjust his immigration status on January 8, 2019, Petitioner
was detained by ICE for the second time on February 11, 2019.
Through counsel, Petitioner filed an application to stay his
removal. The application was denied. He also sought to
rescind the order of removal. The request was also denied.
Petitioner was then scheduled for imminent deportation.
the Court denied Petitioner's request to stay his
deportation in its April 8, 2019 Order, Respondents noticed
the Court that it attempted to remove Petitioner from the
country by flight on April 9, 2019. Immigration and Customs
Enforcement (“ICE”) failed to transport
Petitioner to the flight in time. ICE also noticed the Court
of its intent to conduct a post-order custody review under 8
U.S.C. § 1231(a)(3) given that Petitioner had been
detained for over ninety days under the authority of the
order of removal. However, instead of conducting the review
ICE instead served Petitioner with a Notice of Imminent
Removal under the authority provided in 8 C.F.R. §
241.4(g)(4). Given that Petitioner is now scheduled for
imminent removal on April 24, 2019, ICE determined that the
circumstances did not warrant release.
has since filed, or intends to file, applications to adjust
his status and for stateside waiver.
analysis for a temporary restraining order is
“substantially identical” to that of a
preliminary injunction. Stuhlbarg Intern. Sales Co, Inc.
v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7
(9th Cir. 2001). A preliminary injunction is “an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 22 (2008). To obtain a preliminary injunction, a plaintiff
must establish four elements: “(1) a likelihood of
success on the merits, (2) that the plaintiff will likely
suffer irreparable harm in the absence of preliminary relief,
(3) that the balance of equities tips in its favor, and (4)
that the public interest favors an injunction.”
Wells Fargo & Co. v. ABD Ins. & Fin. Servs.,
Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as
amended (Mar. 11, 2014) (citing Winter, 555
U.S. 7, 20 (2008)). A preliminary injunction may also issue
under the “serious questions” test. Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134
(9th Cir. 2011) (affirming the continued viability of this
doctrine post-Winter). According to this test, a
plaintiff can obtain a preliminary injunction by
demonstrating “that serious questions going to the
merits were raised and the balance of hardships tips sharply
in the plaintiff's favor, ” in addition to the
other Winter elements. Id. at 1134-35
Court first declines to reconsider its denial of
Petitioner's request to stay his deportation.
Petitioner's initial application to adjust status was
denied. Thus, while Petitioner has submitted additional
applications to adjust his status, “a pending
application for immigration status does not entitle an alien
to a stay of deportation.” Armstrong v. Immigration
& Naturalization Serv., 445 F.2d 1395, 1396 (9th
Cir. 1971) (cited with approval by Mahroozadeh v.
I.N.S., 15 F.3d 1087 n.1 (9th Cir. 1993)).
Court now turns to Petitioner's request for relief from
detention pending his removal. Under 8 C.F.R. §
241.4(g)(4), a post-custody review will not be conducted if
the detained alien is notified that an order of removal is
ready to be executed. Petitioner has been notified of his
imminent removal, most recently on April 11, 2019. Petitioner
therefore fails to show a likelihood of success on the merits
of his claims; he has not demonstrated that his continued