Towet v. Casselle

Filing 4

MEMORANDUM AND ORDER ENTERED: Petitioner's motion for leave to proceed in forma pauperis (Doc. #3 ) is granted. Petitioner's emergency motion for preliminary injunction (Doc. #2 ) is liberally construed as a motion for a temporary restraining order and is granted. The Court hereby enjoins the respondent from detaining petitioner due to his failure to produce documentation explaining the failure of Kenyan authorities to issue travel documents. Respondent is granted to and including October 26, 2020, to file a response to the petition, and the Court will conduct a hearing to consider whether the injunctive relief granted in this order should be extended. The hearing will be held on October 30, 2020, at 1:00 p.m. in Courtroom #440, Robert J. Dole Courthouse, 500 State Avenue, Kansas City, Kansas. Signed by District Judge John W. Lungstrum on 10/16/2020. Mailed to pro se party Erick Towet by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ERICK TOWET,
Petitioner,
v.

CASE NO. 20-3258-JWL

KATY CASSELLE, Deportation Officer,
Respondent.

MEMORANDUM AND ORDER
This matter is before the Court on a petition for habeas corpus
filed under 28 U.S.C. § 2241. Petitioner proceeds pro se, and the Court
grants leave to proceed in forma pauperis. Petitioner

has submitted

an emergency motion for preliminary injunction. For the reasons that
follow, the Court grants a temporary restraining order and directs
a responsive pleading.
Nature of the Petition
Petitioner is a native of Kenya. He brings this action to
challenge verbal notice by the respondent, an officer of the United
States Customs and Immigration Enforcement, that his order of
supervision is subject to revocation and that he is subject to
detention on October 19, 2020, unless he produces a written statement
from the Kenyan consulate explaining its refusal to issue travel
documents to him.
Petitioner explains that he contacted the consulate on September
2, 2020, and was told no such document would be provided. He states
that he then sought assistance through counsel, who contacted the
Harambe House Central Headquarters, as directed by the consulate. That
effort also was unsuccessful. In light of those refusals, petitioner

seeks immediate injunctive relief to prevent his detention.
Discussion
The Court liberally construes the request for emergency relief
as a request for a temporary restraining order (TRO). A TRO may be
issued without notice to the opposing party and is limited to fourteen
days. See Fed. R. Civ. P. 65 (b)(1)-(2).
The standards governing the issuance of a TRO are essentially
the same as those for a request for preliminary injunctive relief.
See People’s Trust Fed. Credit Union v. Nat’l Credit Union Admin. Bd.,
350 F. Supp. 3d 1129, 1138 (D.N.M. 2018). To obtain relief, the moving
party must show four factors: (1) the movant is substantially likely
to succeed on the merits; (2) the movant will suffer irreparable injury
if the relief is denied; (3) the movant's threatened injury outweighs
any injury to the opposing party from the injunction; and (4) the
injunction is in the public interest. Because this relief is an
extraordinary remedy, the movant's right to relief must be clear and
unequivocal. Tickets for Less, LLC v. Cypress Media, LLC, No.
20-2047-JAR-GEB, 2020 WL 528449, at *2 (D. Kan. Feb. 3, 2020)).
The Court finds the balance of these factors weighs in favor of
the

petitioner.

First,

given

the

apparent

refusal

of

Kenyan

authorities to comply with the request for documentation, it appears
petitioner is not at fault and is likely to prevail on the merits.
Next, the threat of detention represents a significant hardship and
is one that cannot be easily remedied. Third, petitioner is the sole
employed person in his household, and the threatened injury to him
arising from detention far outweighs any detriment to the opposing
party. Finally, a TRO is consistent with the public interest, as it
appears that petitioner has taken all available steps to comply with

the respondent’s request for documentation and has remained otherwise
compliant with the terms of his release. Therefore, in order to
preserve the status quo in this matter, the Court will grant a TRO
preventing petitioner’s detention on the ground that he failed to
provide the documentation sought by the respondent. See Keirnan v.
Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir. 2003)(“‘In issuing
a preliminary injunction, a court is primarily attempting to preserve
the power to render a meaningful decision on the merits.’”)(quoting
Tri-State Generation & Transmission Ass'n v. Shoshone River Power,
Inc., 805 F.2d 351, 355 (10th Cir. 1986)).
In addition, the Court finds a responsive pleading is necessary
in this matter to allow a determination whether any additional relief
is appropriate.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for
leave to proceed in forma pauperis (Doc. 3) is granted.
IT

IS

FURTHER

ORDERED

petitioner’s

emergency

motion

for

preliminary injunction (Doc. 2) is liberally construed as a motion
for a temporary restraining order and is granted. The Court hereby
enjoins the respondent from detaining petitioner due to his failure
to produce documentation explaining the failure of Kenyan authorities
to issue travel documents.
IT IS FURTHER ORDERED respondent is granted to and including
October 26, 2020, to file a response to the petition, and the Court
will conduct a hearing to consider whether the injunctive relief
granted in this order should be extended. The hearing will be held
on October 30, 2020, at 1:00 p.m. in Courtroom #440, Robert J. Dole
Courthouse, 500 State Avenue, Kansas City, Kansas.
The clerk of the court shall transmit copies of this Memorandum

and Order to the parties and to the U.S. Attorney for the District
of Kansas.
IT IS SO ORDERED.
DATED:

This 16th day of October, 2020, at Kansas City, Kansas.

S/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge