Florencio Reyna v. Joe Klauser

70 F.3d 1279, 1995 U.S. App. LEXIS 39417

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 1995
• Docket: 95-35753
• Status: Unpublished

Opinion

70 F.3d 1279

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Florencio REYNA, Petitioner-Appellant,
v.
Joe KLAUSER, Respondent-Appellee.

No. 95-35753.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 20, 1995.*
Decided Nov. 24, 1995.

Before: PREGERSON, NORRIS and REINHARDT, Circuit Judges.

MEMORANDUM**

Appellee's motion to dismiss this appeal for lack of jurisdiction is denied. See 28 U.S.C. Sec. 1292(a)(1) (order denying request for preliminary injunction is appealable). Because the petition seeks relief from the deportation order pursuant to 28 U.S.C. Sec. 2241, a certificate of probable cause is not required to pursue this appeal. Fed.R.App.P. 22(b).

This court has reviewed the record and the briefing in this appeal and hereby vacates and remands the district court's June 8, 1995 order denying preliminary injunctive relief for failure to demonstrate the likelihood of immediate harm to petitioner. Although appellant's earliest possible parole date is May 1996, the district court did not guarantee that the action would be resolved on the merits by that time. See Privitera v. California Board of Medical Quality Assurance, 926 F.2d 890, 897 (9th Cir.1991) (immediacy of injury not required to enjoin future act or event if event may occur prior to disposition of merits of action).

Accordingly, this case is remanded to permit the district court to enter an order which either assures the resolution of this action prior to appellant's possible parole date or addresses the motion for preliminary injunction on its merits.

VACATED and REMANDED.

* The panel finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4; 9th Cir.R. 3-3(d)

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3