Aguilar v. U.S. Immig. and Customs Enforcement

Decision Date27 November 2007
Docket NumberNo. 07-1819.,07-1819.
Citation510 F.3d 1
PartiesNolberta AGUILAR et al., Petitioners, Appellants, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF the DEPARTMENT OF HOMELAND SECURITY et al., Respondents, Appellees.
CourtU.S. Court of Appeals — First Circuit

Bernard J. Bonn, III and Harvey Kaplan, with whom Michael Shin, Matthew M. Lyons, Dechert LLP, Kaplan, O'Sullivan & Friedman, Nancy Kelly, John Willshire, Greater Boston Legal Servs., John Reinstein, Laura Rótolo, American Civil Liberties Foundation of Mass., Iris Gomez, Mass. Law Reform Inst., Ondine Sniffin, and Catholic Social Servs. of Fall River were on brief, for petitioners.

Thomas H. Dupree, Jr., Deputy Assistant Attorney General, with whom Peter D. Keisler, Assistant Attorney General, Daniel J. Davis, Counsel to the Assistant Attorney General, David J. Kline, Principal Deputy Director, Office of Immigration Litigation, Elizabeth J. Stevens, Attorney, Office of Immigration Litigation, Michael J. Sullivan, United States Attorney, and Mark Grady, Assistant United States Attorney, were on brief, for respondents.

Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Senior Circuit Judge.

This appeal has its genesis in a dramatic raid on a leather goods factory in New Bedford, Massachusetts. Enforcement of the immigration laws is difficult and oftentimes controversial work. So it was here: the raid led to the detention of hundreds of undocumented aliens and put significant strains on those involved and those who wished to help. In short order, the detainees (many of whom were whisked away to distant places) brought a civil action alleging abridgement of a constellation of constitutional and statutory rights.

Confronted with a maze of issues, the district court patiently sorted through them and, in a thoughtful rescript, eventually dismissed the action for want of subject matter jurisdiction. Aguilar v. U.S. Immigr. & Customs Enf. Div. of Dep't of Homeland Sec., 490 F.Supp.2d 42, 48 (D.Mass.2007). The detainees (whom we sometimes shall refer to as "the petitioners") now challenge that ukase. Their appeal raises novel and important questions concerning the scope, reach, and interpretation of the immigration laws. In particular, it requires us to disentangle the Gordian knot of jurisdictional provisions created by recent amendments to the Immigration and Nationality Act (INA).

We discern no simple, one-size-fits-all answer to the questions presented by the parties. After careful perscrutation of a scumbled record, we conclude that some of the petitioners' claims are unpreserved, some are subject to a jurisdictional bar, and others are simply not actionable. The common denominator is that none of the claims can proceed in the district court. Thus, while our reasoning differs somewhat from that of the court below — and our opinion should not be read as an unqualified endorsement of the way in which immigration officials handled the matter — we affirm the judgment of dismissal. The tale follows.

I.

We rehearse here only those facts needed to place this appeal in workable perspective. On March 6, 2007, federal officers conducted a raid as part of "Operation United Front." The raid targeted Michael Bianco, Inc., a Department of Defense contractor suspected of employing large numbers of illegal aliens. Immigration and Customs Enforcement (ICE) agents, armed with search and arrest warrants, appeared unannounced at the factory, arrested five executives on immigration-related criminal charges, and took more than 300 rank-and-file employees into custody for civil immigration infractions. The ICE agents cast a wide net and paid little attention to the detainees' individual or family circumstances.

The government's subsequent actions regarding the undocumented workers who were swept up in the net lie at the epicenter of this litigation. After releasing dozens of employees determined either to be minors or to be legally residing in the United States, ICE transported the remaining detainees to Fort Devens (a holding facility in Ayer, Massachusetts). Citing a shortage of available bed space in Massachusetts, ICE then began transferring substantial numbers of aliens to faraway detention and removal operations centers (DROs). For example, on March 7, 90 detainees were flown to a DRO in Harlingen, Texas, and the next day 116 more were flown to a DRO in El Paso, Texas.

ICE attempted to coordinate its maneuvers with the Massachusetts Department of Social Services (DSS) to ensure the proper care of family members. It took steps to address concerns about child welfare and released several detainees for humanitarian reasons. Still, the petitioners allege (and, for present purposes, we accept) that ICE gave social welfare agencies insufficient notice of the raid, that caseworkers were denied access to detainees until after the first group had been transferred, and that various ICE actions temporarily thwarted any effective investigation into the detainees' needs. As a result, a substantial number of the detainees' minor children were left for varying periods of time without adult supervision.

With respect to the detainees themselves, the petitioners aver that ICE inhibited their exercise of the right to counsel. According to the petitioners, a squad of volunteer lawyers who had offered to provide the detainees with guidance was turned away from Fort Devens on March 7. The next day, the lawyers were allowed to meet with those detainees (some thirty in number) who had expressly requested legal advice. The petitioners allege that, notwithstanding this largesse, some detainees were denied access to counsel after they arrived in Texas.

On the afternoon of March 8, the Guatemalan consul, acting as next friend of the detainees (many of whom were Guatemalan nationals), filed a petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief in the United States District Court for the District of Massachusetts. The action sought the detainees' immediate release or, in the alternative, a temporary restraining order halting further transfers. The district court enjoined ICE from moving any of the remaining detainees out of Massachusetts pending further order of the court.

On March 13, the plaintiffs filed an amended complaint, fashioned as a class action, and withdrew their plea for immediate release. The amended complaint named ICE and various other federal agencies and actors as respondents (for ease in exposition, we sometimes refer to the defendants, collectively, as "ICE" or "the government"). In that pleading, the petitioners alleged that ICE's actions had violated certain of the petitioners' constitutional and statutory rights, including: (i) the right to be free from arbitrary, prolonged, and indefinite detention; (ii) the right to a prompt bond hearing, that is, one held in Massachusetts prior to any transfer; (iii) the right to counsel; and (iv) the right of family integrity. The amended complaint further alleged that it was "the established policy and practice of the [government] to conduct large scale `sweeps' or `raids' in which large numbers of persons suspected of being unlawfully present in the United States" are held "at facilities which are some distance from the site of arrest and under conditions where access to counsel . . . is impracticable, if not impossible."

On March 16, the government filed an omnibus motion to dismiss for want of personal and subject matter jurisdiction and for failure to state any claim upon which relief might be granted. In due course, the district court allowed the motion to dismiss on the ground that it lacked subject matter jurisdiction. Aguilar, 490 F.Supp.2d at 48. The court also dissolved the temporary restraining order that it previously had issued.

The linchpin of the lower court's decision was its conclusion that the INA, as amended by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 302, stripped it of both habeas and federal question jurisdiction to hear the petitioners' claims. Aguilar, 490 F.Supp.2d at 46, 48 (citing 8 U.S.C. § 1252(b)(9)); id. at 47-48 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)). In its rescript, the court rejected the petitioners' attempted re-characterization of their remonstrances as pattern and practice claims, that is, claims alleging a collective denial of rights collateral to removal proceedings. Id. at 48. In that regard, the court concluded that the petitioners had failed to link these class-wide pattern and practice claims to any specific constitutional violation that might be ripe for review. Id.

The district court paid special heed to the absence of any Sixth Amendment right to counsel in removal proceedings, the absence of any constitutional right to release on bond, and the absence of any constitutional right to have a removal proceeding held in a particular venue. Id. And while acknowledging that the petitioners were entitled to the due process guarantees of the Fifth Amendment as well as to certain statutory protections, the district court concluded that those rights were personal to the petitioners and, as such, had to be exhausted administratively before the courts could become involved. Id.

This timely appeal ensued. In it, the petitioners assign error to the lower court's conclusion that it lacked subject matter jurisdiction over their claims and relatedly, to its conclusion that the petitioners are only entitled to judicial review on an individualized basis after exhausting their administrative remedies. Overall, the petitioners urge us to hold that they have stated cognizable claims that are ripe for judicial review and that their action should, therefore, be allowed to proceed in the district court.

II.

Conscious of our role as a court of limited jurisdiction, we begin our analysis with the multi-part question of whether and to what extent the district...

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