Pelletier v. USA

Filing 8

ORDER denying 2 Plaintiff's Motion for TRO by Judge William J. Martinez on 5/25/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-01377-WJM-CBS
GLEN PELLETIER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ORDER DENYING PLAINTIFF’S EMERGENCY MOTION FOR
TEMPORARY RESTRAINING ORDER

Before the Court is Plaintiff’s Emergency Motion for Temporary Restraining
Order. (ECF No. 2.) The Court held a hearing on Plaintiff’s Motion on May 25, 2011.
(ECF No. 4.) For the reasons set forth below, the Court hereby DENIES the Motion.
I. JURISDICTION
The Court preliminarily finds that it has jurisdiction over this case based on a
federal question. 28 U.S.C. § 1331. Plaintiff has alleged that the United States
Department of Homeland Security’s (“DHS”) policy of not issuing certain immigration
documents to Canadian citizens violates his equal protection rights under the
Fourteenth Amendment. The Court finds that it has jurisdiction over this constitutional
issue for the purposes of ruling on Plaintiff’s Motion for Temporary Restraining Order.

II. FACTUAL BACKGROUND
Plaintiff Glen Pelletier is a Canadian citizen that has traveled frequently between
the United States and Canada for most of his adult life. He is married to an American
citizen and is the step-father of an American citizen. (Compl. (ECF No. 1) ¶ 19.)
In August 2008, DHS commenced removal proceedings pursuant to Section 240
of the Immigration and Nationality Act against Plaintiff by filing an I-265 in Utah
Immigration Court. (ECF No. 1-1 at 6-8.) The I-265 alleged that Plaintiff arrived in the
United States on or about January 2, 1996; that he is an immigrant not in possession of
a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid
entry document required by the Immigration and Nationality Act; that he was unlawfully
present in the United States for an aggregate period of more than one year (from
January 2, 1996 to August 29, 2008); that he last departed from the United States on
January 2, 1996; that he entered the United States without being admitted on or after
January 2, 1996. (Id.)
On Plaintiff’s Motion, the Immigration Court transferred his case from Utah to
Colorado. (Compl. ¶ 35.) A Master Calendar Hearing was set in Colorado Immigration
Court for May 25, 2011.
In October 2010, Plaintiff filed a Freedom of Information Act (“FOIA”) request for
any documents in DHS’s possession regarding his entries and/or exits from the United
States. (ECF No. 1-1 at 24.) On April 28, 2011, because he had not received a
response to his FOIA request, Plaintiff filed a Motion for Continuance of the May 25,

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2011 hearing. (ECF No. 1-1 at 21-22.) On May 10, 2011, the Immigration Judge
denied Plaintiff’s request for a continuance. Plaintiff received the requested documents
on May 23, 2011. (ECF No. 1-1 at 18-30.)
On May 24, 2011, Plaintiff filed the above-captioned action in this Court. (ECF
No. 1.) He contemporaneously filed the instant Emergency Motion for Temporary
Restraining Order asking the Court to enjoin the immigration court from conducting the
May 25, 2011 Master Calendar Hearing. (ECF No. 2.)
III.

LEGAL STANDARD

To prevail on a motion for injunctive relief, the movant must establish that four
equitable factors weigh in his favor: (1) he is substantially likely to succeed on the
merits; (2) he will suffer irreparable injury if the injunction is denied; (3) his threatened
injury outweighs the injury the opposing party will suffer under the injunction; and (4) the
injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake,
552 F.3d 1215, 1224 (10th Cir. 2009). “[B]ecause a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and unequivocal.” Greater
Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). If the moving
party demonstrates that the second, third, and fourth factors “tip strongly in his favor,
the test is modified,” and the moving party “may meet the requirement for showing
success on the merits by showing that questions going to the merits are so serious,
substantial, difficult, and doubtful as to make the issue for litigation and deserving of

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more deliberate investigation.”1 Okla. ex rel. Okla. Tax Comm’n v. Int’l Registration
Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006).
IV.

ANALYSIS

The moving party bears the burden of persuasion as to each of the four
elements of injunctive relief. Heideman v. South Salt Lake City, 348 F.3d 1182, 1189
(10th Cir. 2003); Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). The Court will
examine each factor in turn below.
A.

Irreparable Harm
“[T]he party seeking injunctive relief must show that the injury complained of is of

such imminence that there is a clear and present need for equitable relief to prevent
irreparable harm.” Heideman, 348 F.3d at 1189 (quotations and citations omitted).
“Irreparable harm, as the name suggests, is harm that cannot be undone, such as by
an award of compensatory damages or otherwise.” Salt Lake Tribune Publ’g Co. v.
AT&T Corp., 320 F.3d 1081, 1105 (10th Cir. 2003). Harm that is merely “serious or
substantial” is not irreparable. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d
1234, 1250 (10th Cir. 2001).
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The Court notes that the continuing validity of this doctrine is questionable in light of
Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365 (2008). See Predator Intern., Inc. v.
Gamo Outdoor USA, Inc., 669 F. Supp. 2d 1235, 1243 (D. Colo. 2009) (noting that Winter may
affect the viability of the relaxed standard for success on the merits). However, since Winter,
the Tenth Circuit has continued to refer to the relaxed standard. See RoDa Drilling Co. V.
Siegal, 552 F.3d 1203, 1209 n.3 (10th Cir. 2009). Accordingly, the relaxed standard appears to
continue to be binding law in this circuit. See San Luis Valley Ecosystem Council v. U.S. Fish
and Wildlife Servs., 657 F. Supp. 2d 1233, 1239 n.1 (D. Colo. 2009) (“[T]he Tenth Circuit
appears to recognize the continuing validity of the modified success-on-the-merits formula
notwithstanding the Winter decision.”).

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At this point in this case, the Court has no evidence supporting Plaintiff’s
contention that the failure to award a temporary restraining order will result in
irreparable harm. Plaintiff’s Complaint makes allegations of irreparable harm but is
unverified and, as such, it cannot serve as the evidence on which the Court grants
injunctive relief. See 11A Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2949 (2d ed. 1995) (“Evidence that goes beyond the unverified allegations
of the pleadings and motion papers must be presented to support or oppose a motion
for a preliminary injunction.”). Plaintiff was present in person at the hearing on the
Motion and Plaintiff’s counsel was offered the opportunity to call Plaintiff as a witness
but declined to do so.
When asked what evidence Plaintiff was relying on in support of his Motion,
Plaintiff’s counsel responded that he intended to rely on the documents attached to the
Complaint and Plaintiff’s “Affidavit”.2 Plaintiff’s “Affidavit” is not notarized and does not
state that it is signed under penalty of perjury. Thus, it does not meet the requirements
of 28 U.S.C. § 17463.

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At the hearing, the Court denied Plaintiff’s request to admit additional documents
because Plaintiff’s counsel made no attempt to authenticate the documents or establish a
foundation for the documents. Moreover, the stack of documents Plaintiff offered for admission
had not been numbered or subdivided in any way. It was simply a stack of records that
Plaintiff’s counsel contended would show that Plaintiff had traveled between the United States
and Canada since 1996.
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28 U.S.C. § 1746 provides:

Wherever, under any law of the United States or under any rule, regulation, order, or
requirement made pursuant to law, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn declaration, verification, certificate, statement,

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As such, the Court is left only with the documents attached to the Complaint.
(ECF Nos. 1-1 and 1-2.) These documents are largely illegible. The best the Court can
discern, the documents include: records from his ongoing immigration proceedings; a
credit card statement showing some charges from New Brunswick, Canada; Plaintiff’s
Canadian driver’s license and birth certificate; and U.S. Customs and Border
Protection’s response to Plaintiff’s FOIA request. The contents of these documents go
principally to the issue of whether Plaintiff is likely to succeed on the merits. Nothing in
those documents establishes that Plaintiff is likely to suffer irreparable harm if the Court
declines to issue a temporary restraining order.

oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath
of office, or an oath required to be taken before a specified official other than a notary public),
such matter may, with like force and effect, be supported, evidenced, established, or proved by
the unsworn declaration, certificate, verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated, in substantially the following
form:
(1) If executed without the United States: “I declare (or certify,
verify, or state) under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.
Executed on (date).

(Signature)”.

(2) If executed within the United States, its territories,
possessions, or commonwealths: “I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and
correct. Executed on (date).

(Signature)”.

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Moreover, at the hearing on the Motion, counsel for the Government represented
that he had spoken with counsel for DHS and had been assured that Plaintiff would not
be ordered removed at the May 25, 2011 hearing. In fact, the Government represented
its understanding that the May 25, 2011 immigration hearing was very preliminary in
nature. Plaintiff’s counsel admitted at the hearing that his client was without any proof
or evidence to the contrary.
“To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical.” Scrier v. University of Colorado, 427 F.3d 1253, 1267 (10th Cir. 2005). At
the hearing, Plaintiff’s counsel argued that it was possible that the immigration judge
might make a finding at the May 25, 2011 hearing that Plaintiff had entered the country
illegally. If such finding occurred, Plaintiff may not be eligible to adjust his immigration
status and/or may be subject to a higher burden in that he would be required to show by
clear and convincing evidence that he had lawfully entered the United States. Even
taking Plaintiff’s counsel’s representations as true, the threat of harm to Plaintiff if the
hearing proceeds is uncertain at best. Plaintiff’s counsel is simply speculating about
what the immigration judge may or may not do at the May 25, 2011 hearing. He has
offered no evidence showing that there is a certain, great, actual, and not theoretical
likelihood of irreparable harm.
“[A] showing of irreparable harm is the single most important prerequisite for the
issuance of a preliminary injunction.” Dominion Video Satellite, Inc. v. Echostar
Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004). Plaintiff’s failure to meet his

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burden with respect to showing irreparable harm, in and of itself, is sufficient basis for
the Court to deny Plaintiff’s request for injunctive relief. See Kearns v. Shukla, 2008
WL 4186214, *3 (W.D. Okla. Sept. 5, 2008) (declining to address remaining three
factors when plaintiff failed to show that refusal to grant injunctive relief would result in
irreparable harm).
B.

Likelihood of Success on the Merits
Plaintiff alleges that the Government’s practice of not issuing I-94 documents to

Canadian citizens upon their boarder crossings unfairly discriminates against Canadian
citizens in that the lack of records prejudices their ability to rebut charges of illegal entry
in subsequent immigration cases.
The Fourteenth Amendment to the United States Constitution declares that “[n]o
State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” The Equal Protection Clause “keeps governmental decision makers from
treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn,
505 U.S. 1, 10 (1992). Laws that differentiate amongst individuals based on their
alienage are subject to strict scrutiny. Graham v. Richardson, 403 U.S. 365, 371-72
(1971) (“Aliens as a class are a prime example of a ‘discrete and insular’ minority for
whom such heightened judicial solicitude is appropriate.”). Under strict scrutiny, the
government has the burden of proving that the disputed policy is “narrowly tailored” to
serve a “compelling governmental interests.” Adarand Constructors, Inc. v. Peña, 515
U.S. 200, 227 (1995). However, governmental actions that do not implicate a suspect

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class are subject only to the rational basis test. KT&G v. Attorney General of State of
Oklahoma, 535 F.3d 1114, 1137 (10th Cir. 2008). Under the rational basis test, the
disputed policy “need only be rationally related to a legitimate government purpose.”
Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2002).
Plaintiff has failed to offer any evidence supporting his claim that he is likely to
succeed on the merits. At the hearing, Plaintiff argued that there is a policy requiring
the Government to issue an I-94 to every person that crosses the border, but that
Government officials selectively enforce that policy and arbitrarily decline to issue such
documents to Canadian citizens. However, he has offered no evidence supporting this
contention.
Moreover, on the record before the Court, it is unclear whether the lack of
records of Plaintiff’s border crossings is due to his alienage or due to geography. As
noted by Government counsel, there is no evidence that the lack of records for
Plaintiff’s border crossings is based on his Canadian alienage and not on the fact that
he crossed at a border town with less stringent security measures. As such, the record
is insufficient to allow the Court to determine what level of scrutiny should apply in this
case. For obvious reasons, Plaintiff’s likelihood of success in showing that a policy fails
the strict scrutiny analysis is significantly different than if he is required to show that
there is no rational basis for that policy.
On the record presently before the Court, the Court finds that Plaintiff has failed
to show a likelihood of success on the merits.

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C.

Balance of Interests and the Public Interest
The third prong requires that the possible harm to the Plaintiff if the injunction is

not entered be balanced against the possible harm to the Defendant if the injunction is
entered. In a case which involves a government agency, this factor is often intertwined
with fourth factor—the public interest consideration. See Baker v. School Board of
Marion County, 48 F. Supp. 380, 383 (M.D. Fla. 1980). As such, the Court will consider
the two factors together.
The Court finds that these factors do not weigh heavily in favor of either granting
or denying the Motion. Plaintiff has not offered any evidence showing that the failure to
enjoin the May 25, 2011 hearing will result in significant harm to him. He has offered
only a number of plausible scenarios for what might occur at the May 25, 2011 hearing.
Many of these scenarios would not result in significant harm to the Plaintiff. The
Government has represented that the purpose of the May 25, 2011 hearing is only to
inform the Plaintiff of the claims against him and allow him to admit or deny the claims.
Certainly there is the potential for harm in the longer term in that Plaintiff may be
removed from the United States and separated from his wife and step-son. However,
there is no evidence that such removal is likely to occur at the May 25, 2011 hearing. In
fact, the Government made an affirmative representation4 that Plaintiff’s removal would

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Counsel for the Government stated that he would attempt to obtain an affidavit from
the Department of Homeland Security stating that Plaintiff would not be ordered to be removed
at the May 25, 2011 hearing if the Court desired. He represented that he was unable to obtain
the affidavit in advance of the hearing on the instant Motion solely due to time constraints.

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not be ordered at the May 25, 2011 hearing.
The Government (and the public) has an interest in speedy disposition of
immigration cases and enjoining Plaintiff’s immigration proceedings would interfere with
that speedy disposition.
Plaintiff bears the burden of establishing that each of the four prongs weigh in
favor of issuing injunctive relief. Given the lack of evidence presented in this case,
especially with respect to a non-theoretical harm, the Court finds that Plaintiff has failed
to meet his burden.
V. CONCLUSION
There is no evidence in the attachments to the Complaint or otherwise before the
Court regarding three of the four prongs of the test for injunctive relief: (1) irreparable
injury absent injunctive relief; (2) whether injury to Plaintiff outweighs potential injury to
the Government; and (3) public interest. As such, on the record currently before the
Court, Plaintiff has utterly failed to meet his burden of showing that injunctive relief is
warranted. Plaintiff’s Motion for Temporary Restraining Order is therefore DENIED.

Dated this 25th day of May, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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