Shi'a Association of the Bay Area

Filing 18

ORDER GRANTING PLAINTIFFS' RENEWED EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER; SETTING HEARING FOR ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION re 14 RENEWED APPLICATION. Show Cause Response due by 7/9/2007. Order to Show Cause Hearing set for 7/23/2007 09:00 AM Courtroom 8, 4th Floor, San Jose before Hon. James Ware. Signed by Judge James Ware on 6/29/2007. (ecg, COURT STAFF) (Filed on 6/29/2007)

Shi'a Association of the Bay Area

Doc. 18

Case 5:07-cv-03328-JW

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Filed 06/29/2007

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Shi'a Association of the Bay Area, et al., v. Plaintiffs, NO. C 07-03328 JW ORDER GRANTING PLAINTIFFS' RENEWED EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER; SETTING HEARING FOR ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

United States District Court

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For the Northern District of California

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Michael Chertoff, et al., Defendants. /

This is an action for Declaratory, Injunctive, and Mandatory Relief under the Immigration and Administrative Procedure Act. (See Docket Item No. 1.) Before the Court is Plaintiffs' Renewed Ex Parte Application for a Temporary Retraining Order and Order to Show Cause Re: Preliminary Injunction. (See Docket No. 14.) The Court had previously denied Plaintiffs' Application, finding that the harm Plaintiffs allege they will suffer before a formal hearing is not irreparable. (See Docket Item No. 7.) Plaintiffs have renewed their motion, citing a clerical error. Plaintiffs allege that as of June 30, 2007, the Individual Plaintiffs will accrue 180 days of "unlawful presence," which will bar them from adjustment of status or re-entry into the United States for a period of 3 to 10 years. (Certification by Attorney Re: Service of TRO to Defendants.) On June 28, 2007, the Court conducted a telephonic conference with Mary Beth Kaufman, counsel for Plaintiffs, and Ila Casy Deiss, Assistant United States Attorney. It appears to the Court that the Plaintiffs are presently appealing their immigration status. During the appeal, however, they

Dockets.Justia.com

Case 5:07-cv-03328-JW

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have remained in the United States, accruing a number of "unlawful presence" days. Under the governing law, on the 180th day of being "unlawfully present," there will be a change in their legal rights. The progress of the appeal will extend beyond the 180th day. Therefore, the Plaintiffs are faced with a choice: effectively to abandon their appeal and voluntarily depart from the United States prior to the 180th day, or remain in the United States to continue to pursue their appeal and risk adverse consequences caused by staying beyond the 180th day. To preserve the ability of the Plaintiffs to move the Court for a preliminary injunction tolling the further accrual of "unlawful presence" credits, Defendants are temporarily restrained from counting the period of time between June 28 and July 23, 2007 against the Plaintiffs in calculating the period for which they have been "unlawfully present." The Temporary Restraining Order and Order to Show Cause are issued without prejudice to any challenge to the Court's jurisdiction to issue a preliminary injunction that Defendants might make. Rather, the Court finds that it has jurisdiction to decide its jurisdiction and finds it necessary to issue the Temporary Restraining Order to preserve the Court's ability to decide its jurisdiction in this matter. The Court GRANTS Plaintiffs' motion for a hearing on an Order to Show Cause Re: Preliminary Injunction. Plaintiffs shall serve Defendants a copy of the Complaint, Supporting Declarations and Memorandum, and a copy of this Order by July 9, 2007. Defendants are ordered to appear on July 23, 2007 at 9 AM and to show cause, if any, why a Preliminary Injunction should not be entered restraining Defendants from accruing against the Individual Plaintiffs days of "unlawful presence" in the United States during the pendency of this action.

United States District Court

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For the Northern District of California

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Dated: June 29, 2007

JAMES WARE United States District Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Jill Stanton Attorney at Law 400 Montgomery St , Suite810 San Francisco, CA 94104 Dated: June 29, 2007 Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

United States District Court

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For the Northern District of California

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