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Abi v. Barr

United States District Court, D. Minnesota

June 13, 2019

Abshir Hassan Abi, Petitioner,
v.
William P. Barr, Attorney General; Kevin McAleenan, Acting Secretary, Department of Homeland Security; Ronald Vitiello, Acting Director, Immigration and Customs Enforcement; Peter Berg, Director, St. Paul Field Office, Immigration and Customs Enforcement; Jason Kamerud, Sheriff, Carver County, Respondents.

          ORDER

          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge Tony Leung. (Docket No. 36.) The R&R recommends denying Petitioner's Motion for Temporary Restraining Order (“TRO”). (Docket No. 10.) Petitioner filed timely objections to the R&R. (Docket No. 40.)

         The Court must conduct a de novo review of any portion of the R&R to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review, and for the reasons set forth below, the Court overrules Petitioner's objections and adopts the R&R.

         BACKGROUND

         The full factual background of this matter is set forth in the R&R and need not be repeated here. In short, Petitioner is a citizen and native of Somalia who became a lawful permanent resident in 2008. Immigration and Customs Enforcement arrested Petitioner in February 2018 and commenced removal proceedings based on his 2010 conviction for aggravated witness tampering, a felony. Petitioner has remained in mandatory custody since that time under 8 U.S.C. § 1226(c).

         Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in April 2019, challenging the constitutionality of his continued detention. (Docket No. 1.) One day later, Petitioner filed the instant Motion for a TRO seeking essentially the same relief as the petition for writ of habeas corpus. Petitioner seeks immediate release or a bond hearing before an immigration judge to determine whether detention should be continued.

         DISCUSSION

         A. Injunctive Relief Standard

         The standard for issuing a TRO or a preliminary injunction is the same. C.S. McCrossan Constr., Inc. v. Minn. Dep't of Transp., 946 F.Supp.2d 851, 857 n.10 (D. Minn. 2013). 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). “A court issues a preliminary injunction in a lawsuit to preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the lawsuit's merits.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). When deciding whether to issue an injunction, courts consider four factors: (1) the threat of irreparable harm to the movant; (2) the balance of harm the injunction would have on the movant and the opposing party; (3) the probability that movant will succeed on the merits; and (4) the public interest. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). “The burden on the movant is a heavy one where, as here, granting the preliminary injunction will give [the movant] substantially the relief it would obtain after a trial on the merits.” Sanborn Mfg. Co. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 486 (8th Cir. 1993) (quotation omitted).

         “Failure to show irreparable harm is an independently sufficient ground upon which to deny a preliminary injunction.” Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). “The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir.1999) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). When there is an adequate remedy at law, a preliminary injunction is not appropriate. Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 738 (8th Cir.1989).

         B. Analysis

         The R&R recommends denying Petitioner's Motion for a TRO because Petitioner has failed to show that he will suffer irreparable harm in the absence of injunctive relief, and Petitioner already has an adequate remedy at law through his writ of habeas corpus. Petitioner objects, arguing that he has established a threat of irreparable harm, and that the R&R mischaracterized the “status quo” while failing to analyze Petitioner's likelihood of success on the merits under Dataphase.

         Petitioner is not attempting to “preserve the status quo” to avoid a forthcoming irreparable harm, however. Devose, 42 F.3d at 471. He is not subject to a final removal order and his removal is not otherwise imminent. Rather, Petitioner is claiming that his ongoing detention constitutes a “deprivation of liberty” which satisfies the exacting standard for irreparable harm. (Pet'r's Obj. (Docket No. 40) at 2.) Although his detention is certainly a harm, Petitioner has not established that irreparable harm will occur if he continues to be detained while his petition for writ of habeas corpus is litigated. Petitioner's habeas petition has already been fully briefed, and it is expected that the manner will be resolved expeditiously. Continued detention during the pendency of Petitioner's habeas petition, with no forthcoming removal or change in status, does not demonstrate that the harm is “certain and great and of such imminence that there is a clear and present need for equitable relief.” Roudachevski v. All-Am. Care Centers, Inc., 648 F.3d 701, 706 (8th Cir. 2011). Finally, as the R&R correctly points out, if detention during removal proceedings constitutes irreparable harm in and of itself, nearly all habeas petitioners would be entitled to injunctive relief. For these reasons, Petitioner has not shown that he will suffer irreparable harm.

         Additionally, the fact remains that a TRO is an improper vessel for the relief Petitioner seeks under these circumstances. Despite Petitioner's contentions, the “status quo” in this matter is Petitioner's mandatory detention under § 1226(c) while his removal proceedings are adjudicated. He is not seeking to preserve the status quo until his petition may be decided on the merits, which is the purpose ...


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