that were available were ineffective. 11 WRIGHT AND MILLER, INJUNCTIONS § 2944, pp. 392-94 (1973). When the remedy sought at trial is damages, the adequacy of the remedy at law is measured by ascertaining whether the plaintiff will be made whole if he prevails on the merits. Roland, 749 F.2d at 386. Where an award of monetary or other legal damages will make the plaintiff whole after trial, an adequate remedy at law exists. In this case, no legal damages could compensate Plaintiffs for the loss of their ability to apply for suspension of deportation and their concomitant ability to remain in the United States. Neither party argued the inadequacy of the legal remedy in any depth; rather, both focused on the issue of irreparable harm. Thus, the Court next turns to this factor.
B. Plaintiffs' Irreparable Harm
Plaintiffs contend that they will suffer irreparable harm if injunctive relief is not granted because they will be forever precluded from applying for a suspension of deportation. Plaintiffs contend that, as the result of the enactment of the new immigration legislation (IIRAIRA) which becomes effective on April 1, 1997, they will no longer be eligible to apply for suspension of deportation after that date.
The IIRAIRA alters the requirements for suspension of deportation (referred to as "Cancellation of Removal and Adjustment of Status" under the new Act). Under the old Act, an alien must have been present in the United States for a continuous period of not less than seven years, must have been a person of good moral character and must have been able to show that deportation would result in extreme hardship to the alien, or his spouse, parent or child who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. § 1254(a)(1). However, under the new Act, the alien must be physically present in the United States for not less than ten years and, in addition to showing good moral character, must be able to show that removal would pose an "exceptional and extremely unusual hardship" to the alien's spouse, parent or child who is a citizen of the United States. IIRAIRA § 204A(b). Thus, Plaintiffs contend once this statute becomes effective, they will no longer be able to apply for suspension of deportation because, although Plaintiffs meet the old seven year presence requirement, they are unable to meet the ten year requirement imposed under the new Act.
In assessing whether the Plaintiffs will suffer irreparable injury as a result of this change in the law, the Court notes that the likelihood of injury must be real, not speculative. Outboard Marine Corp. v. Liberty Mutual Insurance, 536 F.2d 730 (7th Cir. 1976). There must be a clear and present need for the injunctive relief to prevent some irreparable harm. Young v. Ballis, 762 F. Supp. 823, 827 (S.D. Ind. 1990). In this case, the Plaintiffs are not facing imminent deportation, nor is there any basis to conclude that deportation proceedings will be brought at all. If no deportation proceedings are ever initiated against Plaintiffs, they will not be harmed by their inability to apply for suspension of deportation. Thus, because Plaintiffs' need for suspension of deportation becomes relevant only when they are faced with deportation, the inability to apply for such relief cannot result in irreparable injury without some showing that it is likely that deportation proceedings will be instituted against the Plaintiffs -- a showing Plaintiffs have failed to satisfy. In the absence of such a showing, the likelihood of injury is too speculative to establish a clear and present need for injunctive relief.
Additionally, the likelihood of injury becomes even more speculative in light of the fact that, contrary to Plaintiffs allegations, they will not be forever barred from applying for the relief they seek. While, under the new statute, an alien must have been in the United States for a period of ten continuous years prior to application for suspension of deportation, Plaintiffs allege they came to the United States prior to 1989 and have thus been in this country for at least eight years. Therefore, in a maximum of another two years, the Plaintiffs will once again be eligible to apply for suspension of deportation and if deportation proceedings are not initiated until after the ten year anniversary of Plaintiffs' arrival in this country, they will once again meet the presence requirement necessary to apply for suspension of deportation. Thus, there is only a narrow window during which Plaintiffs run the risk of being ineligible to apply for suspension of deportation. Because there is absolutely no evidence that deportation proceedings will be initiated against the Plaintiffs at any time, let alone, within the next two years, the Court finds the threat of injury too speculative to conclude that Plaintiffs will suffer irreparable injury if an injunction is not issued.
C. Likelihood of Success on the Merits
In addressing the fourth factor, the likelihood of success on the merits, Defendants contend that Plaintiffs cannot succeed on the merits because Plaintiffs are not statutorily entitled to the relief they seek. Defendants contend that, in order to be qualified for a suspension of deportation, an alien must be facing the threat of actual deportation from the United States. Pursuant to 8 U.S.C. § 1254(a)(1), the section under which Plaintiffs seek relief:
the Attorney General may . . ., suspend the deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and-
(1) is deportable under any law of the United States . . .; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien. . . . (emphasis added).