Ramos v. Department of Homeland Security Bureau of Immigration & Customs Enforcement

179 F. App'x 239

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 2006
• Docket: 05-10464
• Status: Unpublished

Opinion

PER CURIAM: *

Faustino Ramos appeals the denial of a temporary restraining order (TRO), seeking to enjoin the Department of Homeland Security, Bureau of Immigration and Customs Enforcement, from detaining him and removing him from the United States pending a decision on his adjustment-of-status application. Although his notice of appeal states he is also appealing the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241, the district court did not rule on that petition. Therefore, only the TRO-denial is at issue.

We lack jurisdiction over a TRO-denial because the ruling does not qualify as an “injunction” under 28 U.S.C. § 1292(a)(1). Faultier v. Johnson, 178 F.3d 741, 742 (5th Cir.) (“[I]t is well settled that this court has no appellate jurisdiction over the denial of an application for a temporary restraining order”.) (citing In re Lieb, 915 F.2d 180, 183 (5th Cir.1990)), cert, denied, 527 U.S. 1018, 119 S.Ct. 2363, 144 L.Ed.2d 768 (1999). On the other hand, the denial of a preliminary injunction is ordinarily appealable immediately. See Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir.1991). Construing the district court’s order as the denial of a preliminary injunction, appealable under 28 U.S.C. § 1292(a), the motion was properly denied. See United States v. Wood, 295 F.2d 772, 778 (5th Cir.1961) (construing the denial of a TRO as a final order for appealability purposes in order to preserve determination of the parties’ substantial rights), cert, denied, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1962).

An injunction-denial will be reversed only on showing the district court abused its discretion. Lakedreams, 932 F.2d at 1107. As the district court reasoned in denying relief, Ramos did not show a substantial threat that failure to enjoin his detention would result in irreparable injury. Nor did he show a substantial likelihood of success on the merits of his claim, brought under 28 U.S.C. § 2241, challenging his detention and removal as unlawful. Cf. Cardoso v. Reno, 216 F.3d 512, 516-17 (5th Cir.2000) (affirming dismissal of action for lack of jurisdiction under 8 U.S.C. § 1252(g) by plaintiff subject to removal order and seeking adjustment of status to avoid removal order).

AFFIRMED

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.