Ma v. Martinez et al

Filing 11

ORDER by Judge Hamilton denying 2 Ex Parte Application for Temporary Restraining Order (pjhlc1, COURT STAFF) (Filed on 8/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN SZE KIT MA,

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Case No. 15-cv-03709-PJH

Plaintiff,

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v.

ORDER DENYING APPLICATION FOR
TEMPORARY RESTRAINING ORDER

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JOHN MARTINEZ, et al.,

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Defendants.

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United States District Court
Northern District of California

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Plaintiff’s application for a temporary restraining order came on for hearing before

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this court on August 17, 2015. Plaintiff Stephen Sze Kit Ma appeared by his counsel

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Anthony J. Palik, and defendants Jeh Johnson, Sarah Saldaña, Thomas D. Holman,

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Timothy S. Aitken, and John Martinez appeared by their counsel Assistant United States

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Attorney Robin Wall. Having read the papers submitted by plaintiff and carefully

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considered the arguments presented at the hearing and the relevant legal authority, the

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court hereby DENIES the application as follows for the reasons stated at the hearing.

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Requests for temporary restraining orders are governed by the same general

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standards that govern the issuance of a preliminary injunction. See New Motor Vehicle

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Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2 (1977); Stuhlbarg Int’l Sales Co., Inc. v.

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John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). An injunction is a

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matter of equitable discretion and is “an extraordinary remedy that may only be awarded

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upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural

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Resources Defense Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren, 553

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U.S. 674, 689-90 (2008).

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A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of

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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

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the public interest. Winter, 555 U.S. at 20. Alternatively, the plaintiff may demonstrate

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that the likelihood of success is such that “serious questions going to the merits were

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raised and that the balance of hardships tips sharply in the plaintiff's favor,” so long as

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the other two elements of the Winter test are met. Alliance for Wild Rockies v. Cottrell,

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632 F.3d 1127, 1131-32 (9th Cir. 2011).

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Here, plaintiff seeks an order enjoining defendants “from taking any further action

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to remove plaintiff” from the United States. Plaintiff concedes removability, but argues

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that the manner in which defendants plan on executing the order of removal violates his
rights under the Due Process Clause of the Fifth Amendment to the United States

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United States District Court
Northern District of California

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Constitution. At the hearing, plaintiff’s counsel indicated that plaintiff’s objection was

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based on his belief that defendants plan on putting him on a commercial flight to China

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unaccompanied and without medical monitoring, rather than accompanying him to China

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on a charter flight and delivering him to Chinese authorities directly; and on his belief that

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defendants had failed to obtain a “travel certificate” from Chinese authorities pursuant to

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which he would be admitted into China.

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Plaintiff has not shown a likelihood of success as to either of these claims, or a

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likelihood of irreparable harm, as he admits that neither of these procedures is required

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by law. Moreover, Mr. Wall represented on behalf of the defendants that it is the practice,

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when an alien who is an aggravated felon is being returned to his country under an order

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of removal, for agents of the United States to accompany him to his destination and to

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deliver him to the foreign customs officials. As for the issue of the government’s alleged

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inability to obtain a “travel certificate,” the evidence shows that plaintiff currently has a

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valid Chinese passport, which is the only “travel certificate” required, and that the

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passport had not yet been issued when the government previously requested a travel

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certificate from Chinese authorities. In addition, the fact that a commercial rather than a

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charter flight is contemplated is of no significance given that commercial flights are

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routinely used when the person being removed is not considered dangerous.
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The parties shall meet and confer regarding whether plaintiff will file a motion for

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preliminary injunction and a briefing schedule for said motion. This matter will otherwise

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proceed in accordance with the Initial Case Management Scheduling Order to be issued

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forthwith by the court.

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IT IS SO ORDERED.

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Dated: August 18, 2015

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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