Abdusalam v. Kane et al

Filing 19

ORDER denying Petitioner's 3 Motion for Preliminary Injunction. See Order for details. Signed by Judge Frederick J Martone on 09/13/12.(JAMA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Fathy Mohamed Abdusalam,
Petitioner,

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vs.

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Katrina Kane, et al.,
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Respondents.
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No. CV 12-00362-PHX-FJM
ORDER

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The court has before it petitioner's motion for preliminary injunction (doc. 3),

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respondents' response (doc. 14), and petitioner's reply (doc. 15). Petitioner seeks to enjoin

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further detention without a bond hearing while his petition for writ of habeas corpus is

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pending.

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To obtain a preliminary injunction, plaintiff must establish that (1) he is likely to

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succeed on the merits, (2) he is likely to suffer irreparable harm absent preliminary relief, (3)

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the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter

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v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008).

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Petitioner "concedes that he seeks a mandatory injunction, and that his request is subject to

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a higher degree of scrutiny" (doc. 3). Mandatory preliminary relief "should not be issued

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unless the facts and law clearly favor the moving party." Anderson v. United States, 612

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F.2d 1112, 1114 (9th Cir. 1979).

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This case presents legal issues which have not been squarely addressed by the Court

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of Appeals for the Ninth Circuit. Petitioner has not demonstrated that the law and facts

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clearly favor his position.

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There is no showing that irreparable harm is likely. Petitioner's petition for writ of

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habeas corpus and the Report and Recommendation of the United States Magistrate Judge

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are now fully briefed. A ruling on the petition will follow shortly. If petitioner's petition is

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granted, the court would order respondents to hold a bond hearing. If petitioner's petition is

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denied, he would not be entitled to a bond hearing and thus would suffer no harm. Petitioner

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has not met the standard of establishing a likelihood of irreparable harm.

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Petitioner does not show that the balance of equities tips in his favor. His argument

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focuses on his mental illness, contending that his mental health will deteriorate without

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treatment. He does not, however, argue that respondents have refused to provide treatment.

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The public interest could be harmed by releasing petitioner. He failed to attend an interview

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with USCIS and was convicted of assault by means likely to cause great bodily injury. The

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detention of criminal aliens authorized by 8 U.S.C § 1226(c) advances the goal of preventing

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removable aliens from absconding or committing additional crimes before they are removed.

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Plaintiff fails to meet the standard of Winter and the heightened standard necessary

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for a mandatory preliminary injunction.
IT IS ORDERED DENYING petitioner's motion for preliminary injunction (doc.

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3).
DATED this 13th day of September, 2012.

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