United States District Court, D. Arizona
DAVID G. CAMPBELL UNITED STATES DISTRICT JUDGE
Pending before the Court is Petitioner’s Motion for Emergency Injunctive Relief (Doc. 16). The Court will deny the motion.
Petitioner, a native of Poland and lawful permanent resident, was taken into ICE custody on June 7, 2013 and placed in removal proceedings under Section 240 of the Immigration and Nationality Act (“INA”). (Doc. 1 at 30.) Petitioner was issued a Notice to Appear, alleging that he is deportable because he is a citizen of Poland, not a citizen of the United States, and on July 18, 2012, he was convicted of possession of drug paraphernalia in Maricopa County Superior Court. (Id.)
On December 30, 2013, Petitioner appeared for a bond hearing before an Immigration Judge (IJ). Petitioner testified that he had obtained United States citizenship through his father, Adam Kostewicz, and that the record before the court showing that Mr. Kostewicz was neither his biological father nor his adoptive father was based on “fraudulent findings.” (Doc. 1 at 38.)
The IJ found that “based on the evidence of record, [Petitioner] ha[d] not met his burden” of establishing that he had derived citizenship from Mr. Kostewicz or from Petitioner’s biological mother, who had naturalized after Petitioner’s 18th birthday. (Id. at 41.)
In his underlying Petition for Writ of Habeas Corpus, Petitioner argues that under Flores-Torres v. Mukasey, ICE lacks jurisdiction to detain him as an alien. Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008). In his motion for injunctive relief, Petitioner alleges that his detention is unlawful because of the “document fraud” that has occurred through “brib[ing] two DHS employees to file false documents” in his immigration file. (Doc. 16 at 1.) As a consequence, Petitioner seeks to be released into the FBI’s custody or entry into the witness protection program.
II. Motion for Preliminary Injunction.
A. Legal Standard.
“‘[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed. 1995)). To obtain a preliminary injunction, the moving party must show “that he 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. Natural Resources Def. Council, Inc., 555 U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).
The Ninth Circuit’s “serious questions” version of the sliding-scale test for preliminary injunctions remains viable after the Supreme Court’s decision in Winter. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). Under that test, a preliminary injunction is appropriate when a plaintiff demonstrates that “‘serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor.’” Id. at 1134-35 (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc)). The movant must also satisfy the other two Winter factors-likelihood of irreparable harm and that an injunction is in the public interest. Id. With respect to the irreparable harm prong, Winter specifically rejected the Ninth Circuit’s “possibility of irreparable injury” standard. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). Under Winter, a party seeking preliminary relief must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. The Court explained that “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id.
Additionally, because Petitioner seeks a mandatory injunction-an injunction altering the status quo-a “heightened standard” applies. Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1156 (9th Cir. 2007). A mandatory injunction is “‘particularly disfavored’” and a “district court should deny such relief ‘unless the facts and law clearly favor the moving party.’” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir. 1994) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). At this stage of the proceedings the facts and law do not clearly favor Petitioner.
B. Likelihood of Success on the Merits.
In his underlying Petition for Writ of Habeas Corpus, Petitioner argues that under Flores-Torres, ICE lacks jurisdiction to detain him as an alien because he acquired derivative citizenship through his stepfather, Adam Dostewicz, whom Plaintiff asserts is his birth father. In his motion, Petitioner does not address his underlying citizenship claim. Rather, he seeks release to the custody of the FBI or the Witness Protection Program. This is not relief that is contemplated in Flores-Torres, which holds only that, notwithstanding 8 U.S.C. § 1252(b)(5), district courts retain habeas corpus jurisdiction to determine whether ...