SPECIAL UPDATE: First Positive Victory Against IMBRA

[Gary Bala]

http://fianceevisalawyer.com/

Best regards to all,
GB

[OldSchool]

RussianLadies.com (European Connections)takes lead in IMBRA fight. Restraining order pushes date back to March 20.
http://www.russianladies.com/imbra.cfm

[doombug]

From GB's site"

The Court found that Plaintiff has a "substantial liklihood of success on the merits" of the First and Fifth Amendment constitutional claims (free speech and equal protection.) This means that the Court is very inclined to agree with the principal constitutional arguments against IMBRA as the case proceeds forward, and the prospects for final victory at least in this court look bright.

Awesome! :wink:

From the Order:

A. Substantial Likelihood of Success on the Merits
The Court believes that there is a substantial likelihood that Plaintiff will
prevail on the merits of its First and Fifth Amendment claims. Courts use the fourprong
test articulated in Central Husdon Gas & Elec. Corp. v. Public Serv. Comm’n,
447 U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed.2d 341 (1980) to determine if
commercial speech is protected by the First Amendment. Specifically, a court must
determine the following: (1) whether the speech concerns lawful activity and is not
misleading; (2) whether the regulation serves a substantial governmental interest;
(3) whether the regulation directly and materially advances the state’s asserted
interest; and (4) whether the regulation is no more extensive than necessary to serve
that interest. See This That and Other Gift and Tobacco, Inc. v. Cobb County, 285
F.3d 1319, 1323 (11th Cir. 2000).
This Court does not believe that the Act meets the last two steps of Central
Hudson. As an initial matter, it appears to the Court that there is no governmental
interest suitably furthered by the distinctions made by the Act as to the brokers
covered by the Act. That is, the distinctions contained in the Act as to the entities,
persons, and groups qualifying as IMBs under the Act are not rationally related to
the harm Congress sought to prevent by passing the Act. As with the legislation addressed by the Supreme Court in Greater New Orleans Broadcasting Ass’n v.
United States, 527 U.S. 173, 190, 119 S. Ct. 1923, 144 L. Ed. 2d 161 (1999), the
operation of the Act “is so pierced by exemptions and inconsistencies that the
Government cannot hope to exonerate it.” Additionally, at this stage, the Court is
of the opinion that the Act is more extensive than necessary to serve the
governmental interest in protecting immigrant women from domestic abuse by
United States males in that the disclosures required to be made by the IMBs are
overbroad.
- 5 -
B. Irreparably Injury
Plaintiff has also shown that it will suffer irreparably injury if a temporary
restraining order is not issued. In Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L.
Ed. 2d 547 (1976), the Supreme Court held that “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Id. at 373; see also Tillman v. Miller, 917 F. Supp. 799, 801 (N.D. Ga. 1995)
(“It is widely recognized that a violation of the First Amendment free speech rights
of a citizen of the United States is the type of inquiry [sic] that cannot be remedied
merely by money damages but instead is properly corrected only through the
equitable powers of the federal courts.”). Insofar as this case implicates the loss of
Plaintiff’s First Amendment freedoms, the Court finds that irreparable injury has
been shown.
C. Balance of the Harms
The Court similarly finds that the threatened injury to Plaintiff outweighs the
harm that the temporary restraining order would inflict on Defendants. The
threatened injury to Plaintiff is irreparable, while the damage that would be inflicted
on Defendants is minimal. See Tillman, 917 F. Supp. at 801 (“The harm that would
befall Plaintiff from the loss of his First Amendment rights far outweighs any harm
that the State might suffer from a delay in the effective date of the statute.”).
D. Public Interest
Finally, the issuance of a temporary restraining order would serve the public
interest because the public has a strong interest in assuring that Plaintiff’s First
Amendment rights are not violated. See Suntrust Bank v. Houghton Mifflin Co., 268
F.3d 1257, 1276 (11th Cir. 2001) (“the public interest is always served in promoting
First Amendment values”); see also Tillman, 917 F. Supp. at 801 (“There is no harm
to the public from granting an injunction that would prohibit enforcement of the
Statute until the Court has evaluated its constitutionality, especially when the
Statute could impair a fundamental constitutional right to free speech as guaranteed
under the First Amendment.”).

Double awesome! :wink:  :wink:

[Brazilophile]

The following was posted on the European Connections website.  That is the agency that is challenging the IMBRA law.

"Update 3/20/2006

The hearing for the permanent injunction was scheduled for today (March 20) but the Federal Attorney did not show up. The Judge extended the Temporary Injunction indefinitely until the Federal Attorney requests a new date for the Permanent Injunction hearing. "

So it looks like IMBRA is no more until Gonzalez wants / decides to make something of it.  I hope Gary Bala can fill us in on some details soon.

[Brazilophile]

According to Gary Bala's website, the new IMBRA injunction hearing is next Monday, April 3.


The Court's Hearing on Preliminary Injunction scheduled on March 20, 2006 was postponed by the Court at the request of the Government (Defense Counsel) with the consent of Plaintiff to the new date of April 03, 2006 at 9:30 AM. Defense Counsel had failed to file with the Court Clerk an "Entry of Appearance", and thus was not provided notice of the hearing date by the Clerk's Office. On March 22, 2006, the Government, through Assistant U.S. Attorney Alonzo Long, filed an "Entry of Appearance" with the Court Clerk's Office. The Temporary Restraining Order (TRO) will continue, by consent of the parties, until April 03, 2006. Per Order of Cooper, D.J., March 22, 2006.