Carlos Cisneros v. U S Immigration Customs Enforcement
Filing
4
ORDER DENYING PETITIONERS APPLICATION FOR A TEMPORARY RESTRAINING ORDER WITHOUT PREJUDICE 3 by Judge Dean D. Pregerson (lc)
<![CDATA[
1
2
O
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
Carlos Cisneros,
12
13
14
15
16
17
Plaintiff,
v.
United States Immigration
and Customs Enforcement
Director
Defendants.
___________________________
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 11-07825 DDP (FFM)
ORDER DENYING PETITIONER’S
APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
[Motion filed on 8/21/11]
Presently before the court is Petitioner Carlos Cisneros’
18
Application for a Temporary Restraining Order (“TRO”).
19
Application states, in its entirety:
20
21
22
The
Detainee had a visa petition filed & pending on
3/21/2001. His U.S. citizen son turned 21 on
2/23/2011 (DOB 4/23/90) and is petitioning for his
father as an immediate relative. Requesting TRO and
Emergency Stay until a motion to reopen in
immigration court can be filed.
23
24
A temporary restraining order is meant to be used only in
25
extraordinary circumstances.
26
the requesting party must show (1) that he is likely to succeed on
27
the merits, (2) that he is likely to suffer irreparable harm in the
28
absence of preliminary relief, (3) that the balance of equities
To establish entitlement to a TRO,
1
tips in his favor, and (4) that an injunction is in the public
2
interest.
3
374 (2008).
4
combination of probable success on the merits and the possibility
5
of irreparable harm, or (2)raises serious questions and the balance
6
of hardships tips in favor of a TRO.
7
Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987).
8
formulations represent two points on a sliding scale in which the
9
required degree of irreparable harm increases as the probability of
Winter v. Natural Res. Defense Counsel, 129 S.Ct. 365,
A TRO may be warranted where a party (1) shows a
See Arcamuzi v. Continental
“These two
10
success decreases.”
11
party must demonstrate a “fair chance of success on the merits” and
12
a “significant threat of irreparable injury.”1
13
14
15
16
17
18
19
20
Id.
Under both formulations, however, the
Id.
Furthermore, pursuant to Federal Rule of Civil Procedure
65(b), a court may issue a temporary restraining order
without written or oral notice to the adverse party or its
attorney only if: (A) specific facts in an affidavit or a
verified complaint clearly show that immediate and irreparable
injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition; and (B) the movant’s
attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1) (emphasis added).
As an initial matter, it does not appear to the court that
21
Petitioner’s counsel ever notified Defendants of this application.
22
Basic principles of due process generally require the adverse party
23
to have notice and opportunity to be heard.
24
seeking relief has had significant notice of the impending harm, it
Where the party
25
1
26
27
28
Even under the “serious interests” sliding scale test, a
plaintiff must satisfy the four Winter factors and demonstrate
“that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
2
1
is inimical to the spirit and intent of those due process notions –
2
as well as basic concepts of fairness – for a plaintiff to take an
3
approach which avoids any chance of determination on the merits.
4
Petitioner has not provided an explanation for his failure to
5
provide notice to Defendant.
6
In addition, Plaintiff’s Application does not provide
7
sufficient information to satisfy his his burden to show that a TRO
8
is warranted.
9
Application that Petitioner has any likelihood of success on the
10
merits, that Petitioner is facing the threat of irreparable harm,
11
or that any of the other Winter factors are met.
12
Petitioner’s Application for a Temporary Restraining Order is
13
DENIED without prejudice.
The court cannot determine from the face of the
Accordingly,
14
15
16
Dated: September 23, 2011
17
DEAN D. PREGERSON
18
United States District Judge
19
20
21
22
23
24
25
26
27
28
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
