LEMA TEMAY v. SCOTT

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

LUIS GERMAN LEMA TAMAY, )

)

Petitioner, )

)

v. ) 2:25-cv-00438-JAW

)

RODNEY S. SCOTT, et al., )

)

Respondents. )

ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER

The court issues a temporary restraining order, restraining the respondents

from transferring the petitioner outside the state of Maine pending further order of

the court.

I. BACKGROUND1

On September 2, 2025, Luis German Lema Tamay filed a petition for a writ of

habeas corpus under 28 U.S.C. § 2241. Pet. for Writ of Habeas Corpus (ECF No. 1)

(Pet.). Mr. Tamay is currently detained in Fort Fairfield, Maine. Id. ¶ 10. The

Petitioner is an Ecuadorian national who has been in the United States since April

of 2019, more than two years. Id. ¶¶ 1, 2. Mr. Tamay alleges, on information and

belief, that Department of Homeland Security (DHS) intends to initiate Expedited

Removal proceedings against him under 8 U.S.C. § 1225(b). Id.

¶ 6. Mr. Tamay alleges that Expedited Removal proceedings are unlawful as applied

1 In ruling on the motion as quickly as possible, the Court has done its level best, but the parties

should appreciate “the temporal constraints under which the district court labored.” See Bl(a)ck Tea

Soc’y v. City of Boston, 378 F.3d 8, 15 (1st Cir. 2004).

.

to him given that he has been present in the United States for more than two years.

Id. ¶ 6. Mr. Tamay further alleges that he will be denied process in Immigration

Court because Expedited Removal orders are issued by immigration enforcement

officials rather than Immigration Judges and are not subject to appeal to the Board

of Immigration Appeals (BIA) or eligible for review by the U.S. Court of Appeals. Id.

¶ 3, 7.

Mr. Tamay alleges that his detention violates the Due Process Clause of the

Fifth Amendment. Id. ¶¶ 15-20. He seeks, inter alia, a writ of habeas corpus

preventing his transfer outside the District of Maine and ordering Rodney S. Scott,

in his official capacity as Commissioner of Customs and Border Protection, Todd

Lyons, in his official capacity as Acting Director of ICE, and Kristi Noem, in her

official capacity as Secretary of the U.S. Department of Homeland Security

(collectively, the Respondents) to release him immediately. Id.

II. LEGAL STANDARD

The Court understands the Petitioner’s motion to prohibit transfer and

removal from the state of Maine to be requesting the Court to temporarily restrain

the Respondents from taking such actions. The standard for issuing a temporary

restraining order (TRO) is the same as for a preliminary injunction and is provided

by traditional equity doctrines. Aftermarket Auto Parts All., Inc. v. Bumper2Bumper,

Inc., Civil No. 1:12-cv-00258-NT, 2012 U.S. Dist. LEXIS 143685, *3 (D. Me. Oct. 4,

2012); accord 11A WRIGHT, MILLER & KANE § 2942, at 37; Alcom, LLC v. Temple, No.

1:20-cv-00152-JAW, 2020 U.S. Dist. LEXIS 79863, at *15 (D. Me. May 6, 2020)

(collecting cases).

“A preliminary injunction is an extraordinary and drastic remedy that is never

awarded as of right.” Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-

9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc.,

645 F.3d 26, 32 (1st Cir. 2011); accord Mass. Coal. of Citizens with Disabilities v. Civ.

Def. Agency & Off. of Emergency Preparedness, 649 F.2d 71, 76 n.7 (1st Cir. 1981)

(“The authority of the District Court Judge to issue a preliminary injunction should

be sparingly exercised”)). “In order for a court to grant this type of relief, a plaintiff

‘must establish [1] that he is likely to succeed on the merits, [2] that he is likely to

suffer irreparable harm in the absence of preliminary relief, [3] that the balance of

equities tips in his favor, and [4] that the injunction is in the public interest.” Peoples

Fed. Sav. Bank, 672 F.3d at 8-9 (quoting Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008)).

“The party seeking the preliminary injunction bears the burden of demonstrating

that these four factors weigh in its favor.” Esso Standard Oil Co. v. Monroig-Zayas,

445 F.3d 13, 18 (1st Cir. 2006). “[T]rial courts have wide discretion in making

judgments regarding the appropriateness of” preliminary injunctive relief. Sanchez

v. Esso Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2010).

III. DISCUSSION

A. Likelihood of Success on the Merits

1. Jurisdiction

As an initial matter, the Court concludes that it retains jurisdiction over Mr.

Tamay’s habeas petition. “District courts are limited to granting habeas relief ‘within

their respective jurisdictions,’” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (quoting

28 U.S.C. § 2241(a)), and “with respect to habeas petitions ‘designed to relieve an

individual from oppressive confinement,’ the traditional rule has always been that

the Great Writ is ‘issuable only in the district of confinement.’” Id. (quoting Carbo v.

United States, 364 U.S. 611, 618 (1961)). Furthermore, “[u]nder habeas law,

jurisdiction in a particular district is established when a petitioner is physically

present in the district at the same moment a petition is filed there on his behalf.”

Mahmoud Khalil v. Joyce, No. 25-cv-01963 (MEF)(MAH), 2025 U.S. Dist. LEXIS

63573, at *7 (D.N.J. April 1, 2025); accord Rumsfeld, 542 U.S. at 435 (2004); United

States v. Hayman, 342 U.S. 205, 213 (1952); Ahrens v. Clark, 335 U.S. 188, 190 (1948).

Here, when Mr. Tamay filed his habeas petition, he was in custody in the

District of Maine. The Court accordingly concludes that it retains jurisdiction over

this matter.

2. The Merits of Mr. Tamay’s Habeas Petition

Within the United States Court of Appeals for the First Circuit, a likelihood of

success on the merits is both the “sine qua non” and the “most important part of the

preliminary injunction assessment”; the First Circuit has explained that “if the

moving party cannot demonstrate that he is likely to succeed in his quest, the

remaining factors become matters of idle curiosity.” Sindicato Puertorriqueño de

Trabajadores v. Fortuño, 699 F.3d 1, 7-10 (1st Cir. 2012) (quoting Jean v. Mass. State

Police, 492 F.3d 24, 27 (1st Cir. 2008); New Comm Wireless Servs. Inc. v. SPrintCom,

Inc., 287 F.3d 1, 9 (1st Cir. 2002)). To carry his burden on this factor, a plaintiff “must

establish a ‘strong likelihood’ that he will ultimately prevail.” Sindicato

Puertorriqueño de Trabajadores, 699 F.3d. at 10 (quoting Respect Maine PAC v.

McKee, 622 F.3d 13, 15 (1st Cir. 2010)). Mr. Tamay brings his habeas petition for

violation of his Due Process rights under the Fifth Amendment to the federal

Constitution; the Court thus considers Mr. Tamay’s likelihood of success on these

claims.

The Immigration and Nationality Act (INA) provides, inter alia, a statutory

scheme for removal proceedings. See 8 U.S.C. §§ 1225, 1226. In broad terms, there

are two pathways for removal of aliens. Id. Under 8 U.S.C. § 1226, individuals are

served a Notice to Appear (NTA) and placed in removal proceedings in the

Immigration Court where those individuals receive procedural protections furnished

by applicable statues. 8 U.S.C. § 1226. Under this pathway, individuals without a

criminal record or terrorism involvement are entitled to a bond hearing which may

result in release for the pendency of the removal proceedings. Id. Further, the

decision of the Immigration Court is subject to appellate review by the BIA and

subsequent petition for review to U.S. Court of Appeals. In short, removal

proceedings under 8 U.S.C. § 1226 provide a measure of due process. By contrast,

under 8 U.S.C. § 1225(b), an Expedited Removal process permits immigration

enforcement officials, rather than Immigration Judges, to issue removal decisions

that are not subject to appeal to the BIA or U.S. Court of Appeals. Expedited Removal

is limited to noncitizens who, inter alia, have not demonstrated “that the alien has

been physically present in the United States continuously for the 2-year period

immediately prior to the date of the determination of inadmissibility . . ..” U.S.C. §

1225(b)(1)(A)(iii)(II).

Based on the evidence in the record, the Court concludes that the Petitioner

has evidenced a likelihood of success on his claim, as the Respondents have not

produced evidence that Mr. Tamay has arrived in the United States within two years,

subjecting him to Expedited Removal.

B. Likelihood of Irreparable Harm

Mr. Tamay argues that it is important for the Court to preserve its jurisdiction

over the pending habeas petition until the Court has the opportunity to evaluate his

claims. Pet. (ECF No. 1). The Court concludes that Mr. Tamay has demonstrated

likelihood of irreparable harm absent temporary injunctive relief. Absent a TRO, Mr.

Tamay faces irreparable harm because an enforcement official could send him

anywhere in the world as soon as tomorrow, without due process.

C. The Balance of the Equities and the Public Interest2

Finally, upon consideration of the last two factors, the balance of the equities

weighs in favor of granting the Petitioner’s TRO, and a TRO would serve the public

interest. To obtain preliminary injunctive relief, a petitioner must also show “the

balance of equities tips in [its] favor.” Winter, 555 U.S. at 20. This involves weighing

“the balance of relevant hardships as between the parties.” Vaqueria Tres Monjitas,

Inc. v. Fabre Laboy, 587 F.3d 464, 482 (1st Cir. 2009). Furthermore, “[i]n exercising

their sound discretion, courts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S.

2 The Supreme Court has instructed that the last two factors in the TRO analysis “merge when

the Government is the party opposing the [TRO]”; the Court follows this instruction and reviews the

balance of the equities and the public interest in tandem. Nken v. Holder, 556 U.S. 418, 435 (2009).

at 24. Injunctive relief is “an extraordinary remedy that may only be awarded upon

a clear showing that the plaintiff is entitled to such relief.” Id. at 22 (citing Mazurek

v. Armstrong, 520 U.S. 968, 972 (1997)).

Here, as discussed above, the hardship to Mr. Tamay absent a TRO is obvious:

if his removal does not comply with due process, he risks removal to an uncertain

destination, on an uncertain timeline, through unspecified means. The relative

hardship to the Respondents, in contrast, is slight. Furthermore, in cases implicating

removal, “there is a public interest in preventing aliens from being wrongfully

removed, particularly to countries where they are likely to face substantial harm.”

Nken v. Holder, 556 U.S. 418, 436 (2009); accord D.V.D. v. United States Dep’t of

Homeland Sec., Civil Action No. 25-10676-BEM, 2025 U.S. Dist. LEXIS 74197, at *54

(D. Mass. April 18, 2025) (same).

There is a tension between the “public interest in prompt execution of removal

orders,” Nken, 556 U.S. at 436, the petitioner’s allegation that he may be subject to

an illegal and unconstitutional removal. As the United States Supreme Court has

written, “our system does not permit agencies to act unlawfully even in pursuit of

desirable ends.” Alabama Ass’n of Realtors v. HHS, 594 U.S. 758, 766 (2021); see also

NFIB v. Dep’t of Labor, 595 U.S. 109, 120-21 (2022) (staying an illegal vaccine

mandate even though the Government said the mandate would save more than 6,500

lives); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952) (affirming

district court’s preliminary injunction of an illegal executive order even though a

wartime president said his order was “necessary to avert a national catastrophe”).

Further, “[t]he fact that [Plaintiff] has shown a likelihood of success on the merits

strongly suggests that a TRO would serve the public interest.” New York v. Trump,

No. 25-cv-39, 2025 U.S. Dist. LEXIS 17593, at *17 (D.R.I. Jan. 31, 2025); accord

League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“[T]here is

a substantial public interest in having governmental agencies abide by the federal

laws that govern their existence and operations”) (internal quotation marks omitted).

The Court does not assume that the Government would violate the legal or

constitutional rights of the petitioner; however, for the moment and without having

heard the Government’s position, these final factors in the analysis lean in the

Petitioner’s favor.

IV. LIMITATIONS OF RELIEF

“[An] injunction should issue only where [it is] essential in order effectually to

protect . . . rights against injuries otherwise irremediable.” Weinberger v. Romero-

Barcelo, 456 U.S. 305, 312 (1982) (quoting Cavanaugh v. Looney, 248 U.S. 453, 456

(1919)). Here, the “irremediable” injury would be deportation without due process,

notice, and a meaningful opportunity to be heard.

Accordingly, the Court circumscribes its remedy, at this time, to prevent the

U.S. Department of Homeland Security from removing Mr. Tamay from the District

of Maine before the Court has had the opportunity to issue a ruling on his habeas

petition. See, e.g., Lynch v. Dukakis, 719 F.2d 504, 514 (1st Cir. 1983) (“The

‘principles of equity jurisprudence’ suggest that ‘the scope of injunctive relief is

dictated by the extent of the violation established . . . [and] the relief afforded [may

not be] more burdensome than necessary to redress the complaining parties’”) (citing

Califano v. Yamasaki, 442 U.S. 682, 702, (1979); Milliken v. Bradley, 433 U.S. 267,

280-81 (1977)).

V. BOND REQUIREMENT

Pursuant to Federal Rule of Civil Procedure 65(c), “[t]he court may issue a

preliminary injunction or a temporary restraining order only if the movant gives

security in an amount that the court considers proper to pay the costs and damages

sustained by any party found to have been wrongfully enjoined or restrained.” FED.

R. CIV. P. 65(c). The First Circuit has explained “[t]he purpose of such a bond is to

ensure that the enjoined party may readily be compensated for the costs incurred as

a result of the injunction should it later be determined that it was wrongfully

enjoined.” Axia NetMedia Corp. v. Mass. Tech. Park Corp., 889 F.3d 1, 11 (1st Cir.

2018); accord Edgar v. MITE Corp., 457 U.S. 624, 649 (1982) (Stevens, J., concurring)

(“The bond, in effect, is the moving party’s warranty that the law will uphold the

issuance of the injunction”).

The First Circuit has previously indicated “there is ample authority for the

proposition that the provisions of Rule 65(c) are not mandatory and that a district

court retains substantial discretion to dictate the terms of an injunction bond,” Int’l

Ass’n of Machinists & Aerospace Workers v. E. Airlines, Inc., 925 F.2d 6, 9 (1st Cir.

1991) (collecting cases), but the district courts in this circuit have generally required

a bond to be posted. See WEX Inc. v. HP Inc., No. 2:24-cv-00121-JAW, 2024 U.S. Dist.

LEXIS 119715, at *99-100 (D. Me. July 9, 2024) (collecting cases). At the May 27,

2025 conference of counsel, the Government represented that, should the Court grant

the Petitioner’s motion to prohibit Mr. Tamay’s transfer or removal, it would seek the

posting of bond authorized under Rule 65.

District courts are vested with “wide discretion” to set the amount of the bond.

Axia NetMedia, 889 F.3d at 11; accord Totem Forest Prods. v. T & D Timber Prods.,

No. 2:17-cv-00070-JDL, 2017 U.S. Dist. LEXIS 26062, at *5 (D. Me. Feb. 24, 2017)

(“The Court has discretion to determine the amount of the security”). Typically, in

determining the appropriate amount of bond, district courts consider “the potential

incidental and consequential costs as well as [] the losses the unjustly enjoined or

restrained party will suffer during the period the party is prohibited from engaging

in certain activities.” 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY

KANE, FEDERAL PRACTICE AND PROCEDURE § 2954 (3d ed. 2013); accord WEX Inc.,

2024 U.S. Dist. LEXIS 119715, at *99-100. However, the First Circuit has recognized

a trend in “suits to enforce important federal rights or ‘public interests’” to not require

posting of a substantial bond. See Crowley v. Local No. 82, Furniture & Piano Moving,

679 F.2d 978, 999-1000 (1st Cir. 1982) (collecting cases), rev’d on other grounds, 467

U.S. 526 (1984); accord Sanchez, 2010 U.S. Dist. LEXIS 9942, at *36-37 (“As

recognized by the First Circuit in Crowley v. Local No. 82, Furniture & Piano Moving,

there is a trend in ‘public interest’ litigation to only require nominal security or to

completely dispense with the security requirement”). This trend extends to other

federal courts. See, e.g., Alabama ex rel. Baxley v. Corps of Eng’rs of U.S. Army, 411

F. Supp. 1261, 1275-76 (N. D. Ala. 1976) (collecting cases); South Carolina v. United

States, 329 F. Supp. 3d 214, 238 n.35 (D.S.C. 2018) (same), vacated on other grounds,

912 F.3d 720 (4th Cir. 2019); Nat’l Ass’n of Diversity Officers in Higher Educ. v.

Trump, Civ. No. ABA-25-0333, 2025 U.S. Dist. LEXIS 31747, at *85 (D. Md. Feb. 21,

2025).

The Crowley Court provided a three-factor test to aid the district court’s

determination of whether to impose a substantial bond requirement: (1) “the possible

loss to the enjoined party together with the hardship that a bond requirement would

impose on the applicant”; (2) “the impact that a bond requirement would have on the

enforcement of a federal right”; and (3) whether the likelihood of success on the merits

of the claims at issue is “extraordinarily high.” Crowley, 679 F.2d at 1000 & n.25;

accord Sanchez, 2010 U.S. Dist. LEXIS 9942, at *37.

Applying these factors to the case at bar, the Court concludes that a nominal

bond is appropriate. It is true that the temporary restraining order risks a harm to

the Government by temporarily foreclosing its ability to deport Mr. Tamay. However,

the ultimate costs associated with the Government’s action are too complex to

calculate in this expedited proceeding and imposition of a substantial bond would

plainly have a significant effect on Mr. Tamay’s assertion of his federal right to due

process. Accordingly, the Court will require the Plaintiff to post a bond of $100 within

48 hours of the issuance of this Order pursuant to Federal Rule of Civil Procedure

65(c).

VI. CONCLUSION

The Court ORDERS that the Respondents in this matter are hereby

ENJOINED from removing Luis German Lema Tamay from the District of Maine

pending further order of this Court. The Court will schedule a further conference of

counsel as soon as it becomes clear whether this order has been effective in its relief.

Finally, under Rule 65(b)(1)(A-B), a court may issue a TRO “only if,” “specific

facts in an affidavit or 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 “the movant’s attorney certifies in writing any efforts

made to give notice and the reasons why it should be required.” The petition for writ

of habeas corpus fails to comply with these two preconditions of the issuance of a

TRO. Therefore, this TRO will become effective only upon petitioner’s full compliance

with Rule 65(b)(1)(A-B).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 2nd day of September, 2025