Ma v. Martinez et al

Northern District of California, cand-4:2015-cv-03709

ORDER by Judge Hamilton denying {{2}} Ex Parte Application for Temporary Restraining Order (pjhlc1, COURT STAFF)

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 STEPHEN SZE KIT MA, Case No. 15-cv-03709-PJH 6 Plaintiff, 7 v. ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER 8 JOHN MARTINEZ, et al., 9 Defendants. 10 11 12 Plaintiff's application for a temporary restraining order came on for hearing before Northern District of California United States District Court 13 this court on August 17, 2015. Plaintiff Stephen Sze Kit Ma appeared by his counsel 14 Anthony J. Palik, and defendants Jeh Johnson, Sarah Saldaña, Thomas D. Holman, 15 Timothy S. Aitken, and John Martinez appeared by their counsel Assistant United States 16 Attorney Robin Wall. Having read the papers submitted by plaintiff and carefully 17 considered the arguments presented at the hearing and the relevant legal authority, the 18 court hereby DENIES the application as follows for the reasons stated at the hearing. 19 Requests for temporary restraining orders are governed by the same general 20 standards that govern the issuance of a preliminary injunction. See New Motor Vehicle 21 Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg Int'l Sales Co., Inc. v. 22 John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). An injunction is a 23 matter of equitable discretion and is "an extraordinary remedy that may only be awarded 24 upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural 25 Resources Defense Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren, 553 26 U.S. 674, 689-90 (2008). 27 A plaintiff seeking a preliminary injunction must establish that he is likely to 28 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 1 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 2 the public interest. Winter, 555 U.S. at 20. Alternatively, the plaintiff may demonstrate 3 that the likelihood of success is such that "serious questions going to the merits were 4 raised and that the balance of hardships tips sharply in the plaintiff's favor," so long as 5 the other two elements of the Winter test are met. Alliance for Wild Rockies v. Cottrell, 6 632 F.3d 1127, 1131-32 (9th Cir. 2011). 7 Here, plaintiff seeks an order enjoining defendants "from taking any further action 8 to remove plaintiff" from the United States. Plaintiff concedes removability, but argues 9 that the manner in which defendants plan on executing the order of removal violates his 10 rights under the Due Process Clause of the Fifth Amendment to the United States 11 Constitution. At the hearing, plaintiff's counsel indicated that plaintiff's objection was 12 based on his belief that defendants plan on putting him on a commercial flight to China Northern District of California United States District Court 13 unaccompanied and without medical monitoring, rather than accompanying him to China 14 on a charter flight and delivering him to Chinese authorities directly; and on his belief that 15 defendants had failed to obtain a "travel certificate" from Chinese authorities pursuant to 16 which he would be admitted into China. 17 Plaintiff has not shown a likelihood of success as to either of these claims, or a 18 likelihood of irreparable harm, as he admits that neither of these procedures is required 19 by law. Moreover, Mr. Wall represented on behalf of the defendants that it is the practice, 20 when an alien who is an aggravated felon is being returned to his country under an order 21 of removal, for agents of the United States to accompany him to his destination and to 22 deliver him to the foreign customs officials. As for the issue of the government's alleged 23 inability to obtain a "travel certificate," the evidence shows that plaintiff currently has a 24 valid Chinese passport, which is the only "travel certificate" required, and that the 25 passport had not yet been issued when the government previously requested a travel 26 certificate from Chinese authorities. In addition, the fact that a commercial rather than a 27 charter flight is contemplated is of no significance given that commercial flights are 28 routinely used when the person being removed is not considered dangerous. 2 1 The parties shall meet and confer regarding whether plaintiff will file a motion for 2 preliminary injunction and a briefing schedule for said motion. This matter will otherwise 3 proceed in accordance with the Initial Case Management Scheduling Order to be issued 4 forthwith by the court. 5 6 IT IS SO ORDERED. 7 Dated: August 18, 2015 8 __________________________________ PHYLLIS J. HAMILTON 9 United States District Judge 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3