Lyon v. U.S. Immigration & Customs Enforcement

• Decision Date: 18 March 2016
• Docket Number: Case No. 13-cv-05878-EMC
• Citation: 171 F.Supp.3d 961
• Parties: Audley Barrington Lyon, et al., Plaintiffs, v. U.S. Immigration and Customs Enforcement, et al., Defendants.
• Court: U.S. District Court — Northern District of California

171 F.Supp.3d 961

Audley Barrington Lyon, et al., Plaintiffs,

v.U.S. Immigration and Customs Enforcement, et al., Defendants.

Case No. 13-cv-05878-EMC

United States District Court, N.D. California.

Signed March 18, 2016

Alexis Jeuk-Ling Yee-Garcia, Christine Melissa Smith, Robert P. Varian, Orrick, Herrington and Sutcliffe LLP, Julia Harumi Mass, Esq., American Civil Liberties Union of Northern California, Inc., Marc Vanderhout, Megan Elaine Sallomi, Van Der Hout, Brigagliano, & Nightingale, LLP, Michael Temple Risher, ACLU Foundation of Northern California, Inc., San Francisco, CA, Angelica H. Salceda, ACLU of Northern California, Fresno, CA, Carl Takei, American Civil Liberties Union, Christopher Joseph Siebens, Orrick Herrington Sutcliffe, Washington, DC, Charles J. Ha, David S. Keenan, Orrick Herrington and Sutcliffe LLP, Seattle, WA, Jaya N. Kasibhatla, Orrick, Herrington, Sutcliffe LLP, New York, NY, for Plaintiffs.

Jennifer A. Bowen, Katherine J. Shinners, Brian Christopher Ward, Katherine Ann Smith, Lauren Crowell Bingham, Ben Franklin Station, U.S. Department of Justice, Civil Divisionoffice of Immigration Litigation, Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Docket Nos. 120, 139

EDWARD M. CHEN

, United States District Judge

I. INTRODUCTION

The instant action is brought on behalf of a certified class of adult immigration detainees who are or will be held by Defendant United States Immigration and Customs Enforcement (ICE) in Contra Costa County, Kern County, Sacramento County, or Yuba County. Docket No. 99 (First Supplemental Complaint) (Compl.) at ¶ 90.

The Immigration and Nationality Act (INA) grants the Attorney General the discretionary authority, transferred to the Department of Homeland Security (DHS), to detain any alien in removal proceedings pending a final order. 8 U.S.C. § 1226(a)

. At issue are conditions at four detention facilities used to hold adult immigration detainees: Yuba County Jail (Yuba), Rio Cosumnes Correctional Center (RCCC) in Sacramento County, West County Detention Facility (Contra Costa), and Mesa Verde Detention Facility (Mesa Verde) in Bakersfield County (collectively, Facilities). See FAC at ¶¶ 31-32. Plaintiffs' cases are venued at the San Francisco Immigration Court; thus, Contra Costa, RCCC, Yuba, and Mesa Verde are respectively 21, 83, 123, and 282 driving miles from San Francisco. See Docket No. 100 (Answer) at ¶ 33. Because of this distance, Plaintiffs allege that in-person visits are “impractical at best,” making telephone access “critical to Plaintiffs' ability to locate, retain, and seek advice from legal counsel” and “essential to gather the evidence and government documents necessary to defend[ ] against removal charges, locate witnesses, and do other things necessary to represent themselves in complex legal proceedings.”¹ FAC at ¶ 3.

However, because of restrictions on telephone access, Plaintiffs contend that they are unable to retain or communicate with counsel, or to gather evidence to be presented in removal proceedings or that is otherwise necessary for relief. Id. at ¶ 6. Plaintiffs specifically allege the following limitations: (1) high rates and fees for paid calls from Housing Unit Phones; (2) technical barriers and payment restrictions on Housing Unit Phones, such as a “positive acceptance” requirement where the individual being called must accept the call; (3) inadequacies of the free call or pro bono platforms; (4) limits on hours of telephone access; (5) lack of privacy; (6) inability to receive incoming calls or timely messages; and (7) failure to provide notice of calling options for detainees with limited English or Spanish language skills. Plaintiffs Mot. at 6. As a result of these alleged restrictions, Plaintiffs who would be eligible for relief are deported or unnecessarily detained as they seek continuances in order to find counsel and gather evidence. Compl. at ¶¶ 5, 6.

Based on these allegations, Plaintiffs bring three claims for relief: (1) the right to representation of counsel, (2) the right to a full and fair hearing, and (3) the right to petition the government for redress of grievances. Id. at ¶¶ 100-112. The Court certified a class of “all current and future immigration detainees who are or will be held by ICE in Contra Costa, Sacramento, and Yuba Counties” in April 2014 under Federal Rule of Civil Procedure 12(b)(2)

, and expanded the class definition to include detainees who are or will be held in Bakersfield County. See Docket Nos. 31, 98.

The parties' cross-motions for summary judgment came on for hearing before the Court on February 11, 2016. See Docket Nos. 120 (Plaintiffs Mot.), 139 (Defendants Mot.). For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment, and DENIES Plaintiffs' motion for summary judgment.

II. BACKGROUND²

A. Undisputed Facts

The Court finds that the following facts are not in dispute.

1. General Matters

1. Many of the detainees were arrested for a crime or are being held by the ICE after serving time for their crimes. See Docket No. 139–2 (Shinners Dec.), Exh. 1 (Vaughn Dep.) at 175:25-176:4.

2. Of the individuals held between December 10, 2012 through August 31, 2014, 10.54% were classified low risk, 20.5% were medium-low risk, 35.7% were medium-high risk, and 33.27% were high risk.³ Shinners Dec., Exh. 32.

3. Each of the Facilities provide access to telephones in or near the common areas of their housing units (Housing Unit Phones). See Docket No. 119–5, Exh. A (Berg Report) at 6-11.

4. Since this action was filed, ICE also began offering access to telephones outside of the housing units at Yuba, Contra Costa, and Mesa Verde. Id. at 12-15.5. Detainees at all four facilities also have access to a “Free Call Platform” or “Pro Bono Platform” from the Housing Unit Phones and some Phone Rooms, which allows free direct calls to a pre-programmed set of speed dial numbers. See Shinners Dec., Exh. 6 (Landy Dep.) at 159:16-20.

6. Detainees may also request to be transported to the ICE Field Office to make telephone calls.⁴ See Shinners Dec., Exh. 31 (Butler Dep.) at 87:13-22. Detainees at all facilities also have access to legal mail and attorney visits, although there is some evidence that these services are inadequate substitutes for telephone access due to the delay in responses and distance between the Facilities and where attorneys are located. See Docket No. 120–17 (Supp. Vincent Dec.) at ¶ 11.

2. Contra Costa

7. Contra Costa is an open, campus-style facility. Shinners Dec., Exh. 20 (Bonthron Dep.) at 45:19. Because of this open layout, Contra Costa only houses detainees who fall into certain security classifications, and does not house any ICE detainees classified as high risk, have accumulated a significant number of disciplinary incident reports, have medical or mental health needs, or have been violent against other inmates or staff. Id. at 45:18-46:14; 118:18-22.

8. Housing Unit Phones are located in dayrooms on each tier of the housing units. Berg Report at 6. They are typically set up in pairs facing each other, and are often located only a few feet from the door of the nearest cell. Id. The Housing Unit Phones are also located within auditory range of the common-area tables and televisions. Id. ; see also Docket No. 124–5 (Takei Dec.) at DSC00452, 484, 504, 535. All Housing Unit Phone calls are monitored and recorded. Berg Report at 7.

9. In order to use the Housing Unit Phone, detainees must pay an initiation fee of $2.60-$3.00, and per-minute rates ranging from $.05-$.025. Docket No. 119–10 (Phillips Dec.), Exh T.

10. Housing Unit Phone calls must be paid for by the recipient. Ha Dec., Exh. 35 (Bonthron Dep.) at 165:20-25. Thus, detainees can only call individuals or offices that agree to accept collect calls or have a prepaid account. Berg Report at 7.

11. Housing Unit Phones have a positive acceptance requirement; the phone plays an outgoing message identifying the caller as an “inmate” calling from Contra Costa jail, before prompting the call recipient to affirmatively accept the call by pressing a numbered key on his or her phone. See Ha Dec., Exh. 36 (Neria-Garcia Dep.) at 169:22-24; Ha Dec., Exh. 35 (Bonthron Dep.) at 167:8-21.

12. The positive acceptance requirement makes it impossible for detainees to navigate automated telephone systems to dial an extension or leave a voicemail message. Ha Dec., Exh. 35 (Bonthron Dep.) at 167:22-168:4 (explaining that calls which go to voice mail or offices that use a phone tree system will not connect); Berg Report at 7-8, 10.

13. Detainees are not permitted to make three-way calls.⁵ Ha Dec., Exh. 31 (Philbin Dep.) at 85:9-11 (“Q: So is it your understanding that all facilities do not allow three-way calls? A: That is my understanding.”); Phillips Dec., Exh. D (Contra Costa Detainee Handbook) at 14.

14. Detainees are only permitted to use the Housing Unit Phones during designated free time hours. Ha Dec., Exh. 35 (Bonthron Dep.) at 38:1-13. Free time hours are limited to Monday through Wednesday and Friday between 3:30 p.m. and 5:00 p.m. and 6:30 p.m. to 9:00 p.m., Thursday between 6:30 p.m. and 9:00 p.m., and Saturday and Sunday between 10:30 a.m. and 11:30 a.m., 1:30 p.m. to 2:50 p.m., 3:30 p.m. to 5:00 p.m., to 6:45 p.m. and 10:00 p.m. Ha Dec., Exh. 35 (Bonthron Dep.) at 60:1-8.

15. From the Housing Unit Phones, detainees can access the Talton Free Call Platform, which allows direct calls to a limited set of speed-dial numbers, made up primarily of federal government offices connected with immigration, the immigration court system, foreign consulates, and several free legal services providers. Berg Report at 6; see also Takei Dec. at DSC00434, 555. The free call numbers do not include local government offices or local courts. See Takei Dec. at DSC00434, 555. The free legal service...