United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY
L. ROBART UNITED STATES DISTRICT JUDGE.
a native and citizen of El Salvador who was removed from the
United States to El Salvador in June 2017, brings this action
to obtain a court order requiring defendants to facilitate
and pay for his return to the United States so that he can
participate in his pending immigration proceedings.
See Dkt. 1. Currently before the court is
plaintiff's motion for a temporary restraining order
directing defendants to facilitate his return prior to his
August 29, 2019, immigration hearing. Dkt. 12. Defendants
oppose the motion. Dkt. 16.
considered the parties' submissions, the balance of the
record, and the governing law, the court DENIES the motion
without prejudice, as explained below.
arrived in the United States as a 14-year-old unaccompanied
minor in May 2012 near Hidalgo, Texas. Dkt. 1 at ¶¶
10-11; Dkt. 13 at ¶ 4. Upon his arrival, he was placed
into removal proceedings and detained in the custody of the
Office of Refugee Resettlement in San Antonio, Texas. Dkt. 1
at ¶ 11. In August 2012, he was released into the
custody of his mother, who lived in Seattle. Id. at
¶ 12. In November 2016, the Seattle Immigration Court
ordered him removed in abstentia. Id. at
¶ 16; Dkt. 13 at ¶ 5.
plaintiff learned that he had been ordered removed, he timely
filed a motion to reopen his removal proceedings and rescind
his in abstentia order so that he would have an
opportunity to apply for asylum, withholding of removal, and
relief under the Convention Against Torture. Dkt. 13 at
¶ 6. After he filed the motion to reopen, defendants
took him into custody. Dkt. 1 at ¶ 19. On March 13,
2017, the immigration judge (“IJ”) denied his
motion to reopen. Dkt. 13 at ¶ 7. Plaintiff filed a
timely notice of appeal to the Board of Immigration Appeals
(“BIA”). Id. In June 2017, while his
appeal was pending, defendants executed the removal order and
removed him to El Salvador. Id. at ¶ 8.
April 13, 2018, the BIA granted plaintiff's appeal,
vacated the in abstentia order, and remanded his
case to the immigration court for further proceedings. Dkt.
13-2. Plaintiff subsequently retained the Northwest Immigrant
Rights Project to represent him in his removal proceedings.
Dkt. 13 at ¶ 11. Plaintiff's counsel made numerous
efforts to obtain defendants' agreement to facilitate his
return to the United States, but defendants did not agree.
See Id. at ¶¶ 12-15; Dkts. 13-4, 13-5,
immigration court scheduled a master calendar hearing for
August 1, 2018. Dkt. 13 at ¶ 15. Counsel for plaintiff
appeared and informed the IJ that plaintiff had been removed
during the pendency of his appeal and that she was attempting
to facilitate his return to the United States. Id.
The IJ continued plaintiff's proceedings and scheduled
another hearing for January 2, 2019. Id. Defendants
moved to dismiss his removal proceedings, and plaintiff moved
to obtain a subpoena ordering him to appear for his
immigration proceedings. See Dkt. 13-3. On November
14, 2018, the IJ denied defendants' motion and granted
plaintiff's motion, noting that plaintiff “can seek
an order through a United States District Court to enforce a
subpoena.” Id. at 5-6 (citing Grace v.
Sessions, No. 18-1853, 2018 WL 3812445, at *2-*4 (D.D.C.
Aug. 9, 2018)). The IJ issued a subpoena ordering plaintiff
to appear at the January 2, 2019 hearing “to give
testimony in connection with the removal proceedings being
conducted . . . concerning your asylum application,
testimony, and presentation of evidence.” Id.
at 3. The subpoena did not order defendants to take any
action to facilitate plaintiff's return. See id.
December 12, 2018, the immigration court rescheduled
plaintiff's January 2, 2019 hearing to August 29, 2019.
initiated this action on April 18, 2019. Dkt. 1. He claims
that defendants' refusal to facilitate his return to the
United States so that he can participate in his removal
proceedings violates the Immigration and Nationality Act, the
Administrative Procedures Act, the Fifth Amendment, the
Mandamus Act, and the All Writs Act. Id. On July 26,
2019, defendants filed a motion to dismiss for lack of
subject matter jurisdiction, or alternatively, for failure to
state a claim. Dkt. 9. The motion to dismiss is noted for
August 23, 2019. Plaintiff filed the instant motion for a
temporary restraining order on July 30, 2019. Dkt. 12.
Defendants filed their opposition on August 1, 2019. Dkt. 16.
standard for issuing a temporary restraining order is the
same as that for a preliminary injunction. Stuhlbarg
Int'l Sales Co. v. John D. Brush & Co., 240 F.3d
832, 839 n.7 (9th Cir. 2001). “A plaintiff seeking a
preliminary injunction must establish that h is likely to
succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A
plaintiff may also qualify for a preliminary injunction by
showing that there are serious questions going to the merits
of his claim and that the balance of hardships tips sharply
in his favor, so long as the irreparable harm and the public
interest factors in Winter are also met.
Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1134-35 (9th Cir. 2011).
request for a mandatory injunction seeking relief well beyond
the status quo is disfavored in the law and shall not be
granted unless the facts and law clearly favor the moving
party. Stanley v. Univ. of S. Cal., 13 F.3d 1313,
1319-20 (9th Cir. 1994). In general, mandatory injunctions
should not be granted “unless extreme or very serious
damage will result” and should not be issued “in
doubtful cases or where the injury complained of is capable
of compensation in damages.” Anderson v. United
States, 612 F.2d 1112, 1115 (9th Cir. 1979); see
also Little v. Jones, 607 F.3d ...