Lema-Guaraca v. Barr
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Petitioners filed a motion for a temporary restraining order to prevent their removal from the United States, alleging they were improperly placed in the Migrant Protection Protocols program. The court denied the TRO for failure to meet procedural requirements and instead construed the motion as a request for a preliminary injunction, ordering respondents to file a response.
| What the court decided | The model |
|---|---|
Motion for Temporary Restraining Order denied (procedurally) and construed as a Motion for Preliminary Injunction“Petitioners therefore have not satisfied the procedural requirements of Rule 65(b)(1). ... As such, the Court construes Petitioners’ motion for a temporary restraining order a motion for a preliminary injunction requiring a response from Respondents.” | agree with court The court correctly applied the procedural requirements of Federal Rule of Civil Procedure 65(b)(1), which mandates specific facts in an affidavit or verified complaint to support an ex parte TRO. Because the order recites that Petitioners failed to include such an affidavit or verified complaint, the denial of the TRO is procedurally sound. Construing the motion as a request for a preliminary injunction is a standard judicial practice to preserve the merits of the claim while adhering to the notice requirements of Rule 65(a)(1). |
Order directing Respondents to file a response to the construed Motion for Preliminary Injunction“Accordingly, the Court ORDERS Respondents to file a response no later than September 30, 2019.” | agree with court This is a procedural order necessary to facilitate the adjudication of the preliminary injunction motion. It follows directly from the court's decision to construe the TRO motion as a PI motion, which requires notice to the adverse party. |
The order itself: sound — The order is procedurally sound. It correctly identifies the deficiency in the Petitioners' filing (lack of affidavit/verified complaint) under Rule 65(b)(1) and cites appropriate authority to support the denial of the TRO. The decision to construe the motion as a preliminary injunction is a standard and defensible method to allow the court to address the underlying claims while complying with notice requirements. The order does not reach the merits of the MPP challenge, which is appropriate at this procedural stage.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SANDRA ESTEFANIA LEMA- Case No. 19-cv-01846-BAS-KSC GUARACA, et al., 12 ORDER DIRECTING RESPONSE Petitioners, TO MOTION FOR 13 v. PRELIMINARY INJUNCTION 14 [ECF No. 1] 15 WILLIAM P. BARR, Attorney General of the United States, et al., 16 Respondents. 17 18 I. BACKGROUND 19 On September 26, 2019, Petitioners Sandra Estefania Lema-Guaraca and her minor 20 child, Derick Joshua Morocho Lema, filed a motion for a temporary restraining order 21 requesting intervention by this Court to prevent their removal from the United States. (ECF 22 No. 1 at ¶ 20.) Petitioners allege that they entered without inspection on June 28, 2019 and 23 were improperly placed in the Migrant Protection Protocols (“MPP”) program. (Id. ¶ 3.) 24 Petitioners have been paroled into the United States for a hearing with an immigration 25 judge. (Id. ¶ 6.) 26 Petitioners claim that the Department of Homeland Security (“DHS”) has 27 improperly placed in MPP proceedings, forcing Petitioners “to prepare their asylum cases 28 while awaiting their removal proceedings in Mexico.” (Id. ¶ 3.) Further, Petitioners 1 contend that although the Immigration Judge presiding over their removal proceedings has 2 acknowledged that DHS lacks statutory authority for their placement of Petitioners in the 3 MPP program, he “cannot equitably remedy DHS’ actions” and instead intends to terminate 4 the proceedings. (Id. ¶ 9.) Plaintiff state that termination of their case would nevertheless 5 result in Petitioners’ return to Mexico where they would be “required to begin the entire 6 process all over again, or risk returning to their certain deaths in their home countries.” (Id. 7 ¶¶ 7, 9, 12.) 8 Petitioners allege that they “face imminent removal from the United States on this 9 date, September 26, 2019 immediately following their hearing which is scheduled to begin 10 at 1:00 p.m., at which time Petitioners anticipate that the Immigration Judge will terminate 11 their MPP cases . . . .” (Id. at ¶ 26.) Thus, Petitioners seek the instant temporary restraining 12 order until this Court “has had the opportunity to consider and rule on a preliminary 13 injunction or until an appropriate process has been implemented to determine whether, in 14 light of current conditions and circumstances, Petitioners are entitled to mandatory 15 protection from removal.” (Id. at ¶ 28.) 16 II. ANALYSIS 17 Under the Federal Rules of Civil Procedure, a court 18 may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a 19 verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in 20 opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. 21 Fed. R. Civ. P. 65(b)(1). Upon review of the instant motion, it does not appear that 22 Petitioners have included an affidavit or verified complaint establishing the specific facts 23 showing their immediate and irreparable injury. See id. Petitioners therefore have not 24 satisfied the procedural requirements of Rule 65(b)(1). See, e.g., Grande v. Sharper 25 Future, No. 2:19-CV-02471-ODW (AGR), 2019 WL 1506011, at *2 (C.D. Cal. Apr. 5, 26 2019) (denying motion for temporary restraining order where movant did not submit 27 28 1 evidence or an affidavit establishing that immediate and irreparable injury before notice 2 ||could be given to responding party). 3 As such, the Court construes Petitioners’ motion for a temporary restraining order 4 a motion for a preliminary injunction requiring a response from Respondents. See Fed. 5 ||R. Civ. P. 65(a)(1) (“The Court may issue a preliminary injunction only on notice to the 6 adverse party.”); see also Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 7 || (9th Cir. 2006) (quoting Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 8 ||(1974)) (‘The stringent restrictions imposed . . . by Rule 65 on the availability of ex parte 9 temporary restraining orders reflect the fact that our entire jurisprudence runs counter to 10 |/the notion of court action taken before reasonable notice and an opportunity to be heard 11 been granted both sides of a dispute.’’). 12 || I. CONCLUSION AND ORDER 13 Accordingly, the Court ORDERS Respondents to file a response no later than 14 || September 30, 2019. Further, the Court directs the Clerk of Court to serve a copy of this 15 || Order on the United States Attorney’s Office for the Southern District of California. 16 IT IS SO ORDERED. 17 , fl ) J 18 || DATED: September 26, 2019 (yitlug (Aaghan 6 19 United States District Judge 20 21 22 23 24 25 26 27 28