Palamaryuk v. Kelly et al

Filing 7

AMENDED ORDER granting Plaintiff's 2 Motion for Temporary Restraining Order. Defendants are ENJOINED and RESTRAINED from transferring Mr. Palamaryuk outside of this judicial district. This order shall be considered issued at 7:30 p.m. on March 20, 2017. It shall expire 14 days from issuance unless, before that time, Mr. Palamaryuk shows good cause for a 14-day extension or Defendants consent to a longer extension. See Fed. R. Civ. P. 65(b)(2). No security bond is required under Federal Rule of Civil Procedure 65(c). Signed by Judge James L. Robart. (PM) cc: Judge Donohue

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DAVID PALAMARYUK,

Case No. C17-441-JLR-JPD
Plaintiff,

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v.
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AMENDED ORDER GRANTING
MOTION FOR TEMPORARY
RESTRAINING ORDER

JOHN KELLY, et al.,
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Defendants.
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I.

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INTRODUCTION

After court hours on March 20, 2017, Plaintiff David Palamaryuk, a lawful permanent

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resident who is detained at the Northwest Detention Center, filed a complaint for declaratory and

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injunctive relief (Dkt. # 1), and an ex parte motion for a temporary restraining order (“TRO”)

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enjoining Defendants from transferring him outside of this judicial district (Dkt. # 2). At

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approximately 7:30 p.m., on March 20, 2017, the court granted Mr. Palamaryuk’s motion for a

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TRO. (Dkt. # 6.) The court now issues the following amended order granting Mr. Palamaryuk’s

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motion for a TRO, which supersedes the order issued last night.

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ORDER - 1

II.

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BACKGROUND

Mr. Palamaryuk submitted a declaration attesting that he was the victim of two serious

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assaults, one in 2009 and a second in 2013, which resulted in head injuries. (Dkt. # 3 at 1.)

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After the second assault, Mr. Palamaryuk began having intermittent memory problems, difficulty

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understanding oral and written communication, and trouble writing down his thoughts. (Id. at 1,

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4-5.)

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In March 2016, the government initiated removal proceedings against Mr. Palamaryuk

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and detained him at the Northwest Detention Center. (Id. at 6-7.) Proceeded pro se, he applied

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for asylum. (Id. at 7.) At the merits hearing before the Tacoma Immigration Court, he had

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difficulty explaining himself and understanding what the government attorney and the judge

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were saying. (Id.) The immigration judge denied his claim for asylum and ordered him removed

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to Ukraine. (Id.)

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In October 2016, Mr. Palamaryuk’s family hired an attorney, Minda Thorward, to

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represent him in an appeal to the Board of Immigration Appeals (“BIA”) and help him apply for

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a U visa. (Id.; Dkt. # 4 at 1.) Mr. Palamaryuk’s family paid Ms. Thorward a flat fee. (Dkt. # 3

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at 8.) Mr. Palamaryuk and Ms. Thorward are currently working on preparing a U visa petition,

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and Ms. Thorward will represent Mr. Palamaryuk at a bond hearing in a few weeks. (Id. at 7.) If

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Mr. Palamaryuk does not prevail on his appeal to the BIA, Ms. Thorward may file a motion to

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reopen the immigration proceedings on Mr. Palamaryuk’s behalf. (Id.)

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On March 13, 2017, Defendants issued a “Detainee Transfer Notification” indicating that

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Mr. Palamaryuk was being transferred to a detention center in Alabama. (Id.; Dkt. # 4-7.) Mr.

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Palamaryuk and Ms. Thorward repeatedly asked Defendants to permit Mr. Palamaryuk to remain

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ORDER - 2

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at the Northwest Detention Center, but Defendants only agreed to delay Mr. Palamaryuk’s

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transfer for one week. (Dkt. # 4-6.)

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On March 20, 2017, the day Mr. Palamaryuk was scheduled to be transferred to Alabama,

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Mr. Palamaryuk filed the instant action, alleging violations of the Administrative Procedure Act

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(“APA”), the Rehabilitation Act (“RA”), and Due Process. (Dkt. # 1.) He also filed an ex parte

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motion for a TRO enjoining Defendants from removing him from this judicial district. (Dkt. 2.)

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Both Mr. Palamaryuk and Ms. Thorward have submitted declarations attesting that, because of

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Mr. Palamaryuk’s cognitive difficulties, in-person communication is essential for Ms. Thorward

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to represent him. (Dkt. # 3 at 8-9; Dkt. # 4 at 2.)
III.

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DISCUSSION

The standard for issuing a TRO is the same as the standard for issuing a preliminary

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injunction. See New Motor Vehicle Bd. of Cal v. Orrin W. Fox Co., 434 U.S. 1345, 1347 n.2

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(1977). A TRO is “an extraordinary remedy that may only be awarded upon a clear showing that

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the plaintiff is entitled to such relief.” Winter v. Nat, Res. Def. Council, Inc., 555 U.S. 7, 24

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(2008). “The proper legal standard for preliminary injunctive relief requires a party to

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demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer

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irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his

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favor, and (4) that an injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d

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1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 20).

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As an alternative to this test, a preliminary injunction is appropriate if “serious questions

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going to the merits were raised and the balance of the hardships tips sharply in the plaintiff’s

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favor,” thereby allowing preservation of the status quo when complex legal questions require

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further inspection or deliberation. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35
ORDER - 3

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(9th Cir. 2011). However, the “serious questions” approach supports the court’s entry of a TRO

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only so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the

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injunction is in the public interest. Id. at 1135. The moving party bears the burden of persuasion

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and must make a clear showing that it is entitled to such relief. Winter, 555 U.S. at 22.

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The court finds that Mr. Palamaryuk has satisfied the Cottrell test. Mr. Palamaryuk has

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established at least serious questions going to the merits of his claims under the APA, the RA,

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and the Due Process Clause that his transfer would interfere with his established attorney-client

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relationship with Ms. Thorward. In addition, there is a likelihood of irreparable injury absent a

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TRO because Mr. Palamaryuk requires face-to-face contact with Ms. Thorward in order for her

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to represent him in his ongoing immigration proceedings. Finally, the balance of equities tips

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sharply in Mr. Palamaryuk’s favor and the TRO is in the public interest. The status quo should

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be maintained pending resolution of a fully briefed motion for preliminary injunction.
IV.

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It is hereby ORDERD:

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(1)

TEMPORARY RESTRAINING ORDER

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Mr. Palamaryuk’s ex parte emergency motion for a TRO (Dkt. # 2) is

GRANTED.
(2)

Defendants are ENJOINED and RESTRAINED from transferring Mr.

Palamaryuk outside of this judicial district.
(3)

This order shall be considered issued at 7:30 p.m. on March 20, 2017. It shall

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expire 14 days from issuance unless, before that time, Mr. Palamaryuk shows good cause for a

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14-day extension or Defendants consent to a longer extension. See Fed. R. Civ. P. 65(b)(2).

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(4)

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ORDER - 4

No security bond is required under Federal Rule of Civil Procedure 65(c).

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(5)

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James P. Donohue.

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The Clerk shall direct copies of this order to the parties and to the Honorable

Dated this 21st day of March, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 5