United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Petitioner's Motion for
Temporary Restraining Order, Preliminary Injunction, and
Order to Show Cause (ECF No. 10). For the reasons below, the
Court denies the injunctive relief requested but orders
Respondents to show cause why Petitioner's Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF
No. 1) should not be granted.
I.
LEGAL STANDARD
To
obtain a temporary restraining order or injunctive relief in
any other form, a party must establish “(1) a
substantial likelihood of prevailing on the merits; (2)
irreparable harm unless the injunction is issued; (3) that
the threatened injury outweighs the harm that the preliminary
injunction may cause the opposing party; and (4) that the
injunction, if issued, will not adversely affect the public
interest.” Diné Citizens Against Ruining Our
Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir.
2016) (quotation omitted). Because a preliminary injunction
is an extraordinary remedy, the party's right to relief
must be clear and unequivocal. Schrier v. Univ. of
Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
Further,
because the fundamental purpose of preliminary injunctive
relief is to preserve the relative positions of the parties
until a trial on the merits can be held, this circuit has
identified three types of injunctions that are specifically
disfavored: “(1) preliminary injunctions that alter the
status quo; (2) mandatory preliminary injunctions; and (3)
preliminary injunctions that afford the movant all the relief
that [he] could recover at the conclusion of a full trial on
the merits.” Id. at 1258-59 (quotation
omitted). To get a disfavored injunction, the moving party
faces and even heavier burden of showing that the first and
third factors above tilt in his favor. Free the
Nipple—Fort Collins v. City of Fort Collins, 916
F.3d 792, 797 (10th Cir. 2019).
II.
BACKGROUND
Petitioner,
a citizen of Mexico, is currently in the custody of
Immigration and Customs Enforcement (“ICE”). His
request for a bond was denied after a hearing before an
immigration judge on July 26, 2019.
Petitioner
filed his habeas petition on December 23, 2019. He contends
that his continued detention without bond is unconstitutional
because the immigration judge failed to allocate to the
government the burden of proving “by clear and
convincing evidence that he is a danger to others or a flight
risk, and that even if he is, no combination of conditions
will reasonably assure his future appearance and the safety
of the community, ” and that the immigration judge
failed to consider “his ability to pay any bond amount
and whether alternative forms of supervised release are
sufficient.” (ECF No. 1 at ¶ 29.) Petitioner
further contends that his continued detention violates the
Immigration and Nationality Act and the Administrative
Procedure Act. He requests the following forms of relief: (1)
an order compelling Respondents to provide a
“constitutional” bond hearing within seven days
or to release him, (2) a declaration that the government
bears the burden to justify his continued detention, and (3)
an order directing Respondents not to transfer him out of the
jurisdiction while these proceedings are pending.
Petitioner
filed the current motion on January 6, 2020. He requests that
this Court order his release from detention, require a bond
hearing in which the government would be held to the burden
of proof stated above, or issue an order to show cause,
within three days, why the writ of habeas corpus should not
issue.
III.
DISCUSSION
The
Court denies Petitioner's motion as to injunctive relief
for three reasons.
First,
Petitioner seeks an injunction that would alter the status
quo, be mandatory, and afford him essentially all the relief
he requests in his habeas petition. Thus, it qualifies as
each type of disfavored injunction identified above and is
subject to heightened scrutiny. The Court does not believe
this heightened standard has been met.
Second,
Petitioner cites no binding authority showing he is entitled
to relief. Indeed, with respect to some of the conditions
which the motion seeks to have the Court impose (e.g.,
release conditions and consideration of financial status), no
authority is presented. Even if Petitioner could establish a
likelihood of success on the merits such that he would be
entitled to injunctive relief in an ordinary case, the Court
finds he has not sufficiently shown a likelihood of success
that satisfies the heightened requirements for disfavored
injunctions.
Third,
granting Petitioner's motion would bypass the usual and
preferred process for resolving a habeas petition on the
merits. The Court is disinclined to grant the relief
requested when it has not yet heard from Respondents ...