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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fathy Mohamed Abdusalam, Petitioner, 10 11 vs. 12 Katrina Kane, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-00362-PHX-FJM ORDER 15 16 The court has before it petitioner's motion for preliminary injunction (doc. 3), 17 respondents' response (doc. 14), and petitioner's reply (doc. 15). Petitioner seeks to enjoin 18 further detention without a bond hearing while his petition for writ of habeas corpus is 19 pending. 20 To obtain a preliminary injunction, plaintiff must establish that (1) he is likely to 21 succeed on the merits, (2) he is likely to suffer irreparable harm absent preliminary relief, (3) 22 the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter 23 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008). 24 Petitioner "concedes that he seeks a mandatory injunction, and that his request is subject to 25 a higher degree of scrutiny" (doc. 3). Mandatory preliminary relief "should not be issued 26 unless the facts and law clearly favor the moving party." Anderson v. United States, 612 27 F.2d 1112, 1114 (9th Cir. 1979). 28 This case presents legal issues which have not been squarely addressed by the Court 1 of Appeals for the Ninth Circuit. Petitioner has not demonstrated that the law and facts 2 clearly favor his position. 3 There is no showing that irreparable harm is likely. Petitioner's petition for writ of 4 habeas corpus and the Report and Recommendation of the United States Magistrate Judge 5 are now fully briefed. A ruling on the petition will follow shortly. If petitioner's petition is 6 granted, the court would order respondents to hold a bond hearing. If petitioner's petition is 7 denied, he would not be entitled to a bond hearing and thus would suffer no harm. Petitioner 8 has not met the standard of establishing a likelihood of irreparable harm. 9 Petitioner does not show that the balance of equities tips in his favor. His argument 10 focuses on his mental illness, contending that his mental health will deteriorate without 11 treatment. He does not, however, argue that respondents have refused to provide treatment. 12 The public interest could be harmed by releasing petitioner. He failed to attend an interview 13 with USCIS and was convicted of assault by means likely to cause great bodily injury. The 14 detention of criminal aliens authorized by 8 U.S.C ยง 1226(c) advances the goal of preventing 15 removable aliens from absconding or committing additional crimes before they are removed. 16 Plaintiff fails to meet the standard of Winter and the heightened standard necessary 17 for a mandatory preliminary injunction. IT IS ORDERED DENYING petitioner's motion for preliminary injunction (doc. 18 19 20 3). DATED this 13th day of September, 2012. 21 22 23 24 25 26 27 28 -2-

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