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Alvarez-Marquez v. Wolf

United States District Court, S.D. New York

January 7, 2020

DIANA ALVAREZ-MARQUEZ et al., Plaintiffs,
CHAD WOLF, et al., Defendants.

          Julie Goldberg Eric Hisey Goldberg & Associates Counsel for Plaintiffs

          Michael Byars U.S. Attorney's Office, SDNY Counsel for Defendants

          OPINION & ORDER


         I. Background and Procedural History

         Plaintiffs commenced this action by filing a petition for writ of mandamus on December 23, 2019.[1] (See Doc. 1.) On December 24, 2019, a date on which the court was closed, Plaintiffs moved for emergency ex parte relief and submitted an application, a notice of motion, a memorandum of points and authorities in support (“Pls.' Mem.”), and a declaration from Plaintiffs' counsel, Julie A. Goldberg (“Goldberg Decl.”), with exhibits.[2] Specifically, they requested an order (1) requiring the Department of Homeland Security (“DHS”) to accept the bond payment of $5, 000 ordered by Immigration Judge Thomas J. Mulligan (“Judge Mulligan”) on December 23, 2019; and (2) mandating that the Enforcement and Removal Operations (“ERO”) New York Field Office of U.S. Immigration and Customs Enforcement (“ICE”), complete processing and posting of Plaintiff Henry Yuviny Marquez Paredes's bond payment and all other required activities in accordance with regulations by 3:00 p.m. Eastern Standard Time on December 24, 2019.

         Later that day, in my capacity as Part I Judge, I held a telephone conference on Plaintiffs' application.[3] Counsel for Plaintiffs and for the Government appeared at the telephone conference. At the conference, I issued an oral decision denying Plaintiffs' application. I now issue this written order to document and amplify the bases for that oral decision.

         II. Legal Standard

         The standard for the issuance of a temporary restraining order (“TRO”) requires Plaintiffs to demonstrate: “(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.” MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d Cir. 2004) (citation omitted); see AFA Dispensing Grp. B.V. v. Anheuser-Busch, Inc., 740 F.Supp.2d 465, 471 (S.D.N.Y. 2010) (“It is well established that the standard for an entry of a temporary restraining order is the same as for a preliminary injunction.”). “[A] TRO, perhaps even more so than a preliminary injunction, is an ‘extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'” Free Country Ltd v. Drennen, 235 F.Supp.3d 559, 565 (S.D.N.Y. 2016) (quoting JBR, Inc. v. Keurig Green Mountain, Inc., 618 Fed. App'x. 31, 33 (2d Cir. 2015)). Moreover, a plaintiff seeking a mandatory injunction-one that will alter, rather than maintain, the status quo-must make a heightened showing of success on the merits, demonstrating a “clear” or “substantial” likelihood of success. See N. Am. Soccer League v. U.S. Soccer Fed'n, 883 F.3d 32, 32 (2d Cir. 2018). This heightened showing is also required where, as here, injunctive relief would provide “substantially all the relief” sought in the action. Abdul Wali v. Coughlin, 754 F.2d 1015, 1026 (2d Cir. 1985), overruled on other grounds, O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

         “Irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999) (per curiam) (internal quotation marks omitted); accord Naden v. Numerex Corp., 593 F.Supp.2d 675, 680 (S.D.N.Y. 2009) (citing Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981)) (noting that “[t]he threat of irreparable injury is a sine qua non”). “To satisfy the irreparable harm requirement, Plaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotation marks omitted). The movant must establish a likelihood of irreparable harm before the other requirements for the issuance of a preliminary injunction will be considered. See Rodriguez, 175 F.3d at 234. Where mandatory injunctive relief is sought, courts in this circuit require a “strong showing” of irreparable injury. New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015).

         III. Discussion

         A. Summary of Plaintiffs' Factual Assertions and Arguments

         Plaintiffs are Henry Yuviny Marquez Paredes (“Paredes”), who is currently in ICE custody, and his wife, Diana Alvarez-Marquez (“Alvarez-Marquez”).[4] (See Doc. 1.) They state that on December 23, 2019, at noon, counsel for Plaintiffs appeared before Judge Mulligan for a bond hearing. (Goldberg Decl. ¶¶ 3, 10.) At that hearing, bond was granted in the amount of $5, 000. (Id. ¶ 3.) However, when Plaintiffs' counsel went to the appropriate ICE office with two bond supporters, they found that the office was closed. (Id.) Specifically, Attorney Goldberg asserts that after the bond was granted, she “immediately made [her] way to the ninth floor, at 26 Federal Plaza, with a cashier's check in the amount of $5, 000.00 made out to Department of Homeland Security along with [her] client's spouse and two of their bond supporters.” (Id.) Attorney Goldberg alleges that she was then informed that the office had closed early, and saw a posted notice stating that the office had stopped accepting new bonds at 12 p.m. that day “due to the holidays.” (Id.; Id. Ex. C.)[5]

         Plaintiffs argue that Defendants' early closure of the bond office prevented Paredes from posting his bond and resulted in his being “unlawfully held in detention through Christmas and Christmas Eve, ” in violation of ICE's procedures and Plaintiffs' Fifth Amendment due process rights. (See Pls.' Mem. Part I.)[6] Specifically, Plaintiffs contend that the early closure violates a provision in ICE's Enforcement and Removal Operations Bond Management Handbook (the “Handbook”) that states that “[a]ll ERO offices that accept bonds must serve the public from 9:00 a.m. to 3:00 p.m. local time.” (Pls.' Mem. Part VI.B.2; Goldberg Decl. Ex. B.)[7]

         B. Irr ...

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