Families for Freedom v. Napolitano

• Decision Date: 25 June 2009
• Docket Number: No. 08 Civ. 4056 (DC).,08 Civ. 4056 (DC).
• Citation: 628 F.Supp.2d 535
• Parties: FAMILIES FOR FREEDOM et al., Plaintiffs, v. Janet NAPOLITANO, Secretary of Homeland Security, Defendant.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — Southern District of New York

628 F.Supp.2d 535

FAMILIES FOR FREEDOM et al., Plaintiffs, v. Janet NAPOLITANO, Secretary of Homeland Security, Defendant.¹

No. 08 Civ. 4056 (DC).

United States District Court, S.D. New York.

June 25, 2009.

Jerome N. Frank Legal Services Organization by Michael Wishnie, Esq., Anand Balakrishnan, Jeffrey Kahn, Lindsay Nash, Law Student Interns, New Haven, CT, Attorneys for Plaintiffs.

Lev L. Dassin, Esq., Acting United States Attorney for the, Southern District of New York by David Bober, Esq., Assistant United States Attorney, New York, NY, for Defendant.

MEMORANDUM DECISION

CHIN, District Judge.

In this case, plaintiffs—two immigrant advocacy organizations and two former immigration detainees—contend that substandard and abusive conditions exist in facilities that house detained immigrants. Consequently, on January 25, 2007, plaintiffs petitioned the Department of Homeland Security ("DHS") pursuant to the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "APA"), to promulgate regulations to govern the conditions in immigration detention facilities. When DHS still had not responded more than a year later, plaintiffs sued in this Court under the APA, seeking an order requiring DHS to decide their petition, or, in the alternative, declaring that DHS's failure to respond constituted a constructive denial of their petition in violation of the APA.

DHS still has not, as of this date, granted or denied plaintiffs' petition.

DHS moves to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) for lack of subject matter jurisdiction and standing, and for failure to state a claim upon which relief may be granted. For the reasons set forth below, DHS's motion is denied. Moreover, I conclude that DHS's delay of almost two-and-one-half years is unreasonable as a matter of law, and order DHS to decide plaintiffs' petition within thirty days.

BACKGROUND

A. Facts

The underlying facts alleged in the complaint are assumed to be true for purposes of this motion. The procedural facts are not in dispute.

1. Parties

Plaintiff Families for Freedom is a nonprofit organization based in New York that serves immigrants and their families. (Compl. ¶ 14). Plaintiff National Immigration Project of the National Lawyer's Guild is a non-profit organization based in Boston that defends immigrants facing removal and incarceration. (Id. ¶ 12). Plaintiff Rafiu Abimbola is a Nigerian national who was held in DHS detention facilities for more than six years. (Id. ¶ 10). Plaintiff Carnal Marchabeyoglu is a lawful permanent resident who was detained by DHS several times between 1998 and 2004. (Id. ¶ 11).

DHS is an agency of the United States responsible for, inter alia, federal immigration policy. (Id. ¶ 17). Immigration and Customs Enforcement ("ICE") is a division within DHS responsible for, inter alia, detaining non-citizens accused of immigration violations. (Id. ¶ 18).

2. DHS's Detention Standards

ICE operates numerous detention facilities, either itself or through private contractors. It also contracts with state, county, and local jails to house detained immigrants. (Id. ¶¶ 19-20). The detention of immigrants in facilities controlled by different entities "has led to inconsistent conditions of confinement, substandard and abusive detention conditions, and widespread detainee mistreatment." (Id. ¶ 33). Immigrant detainees have been subjected to verbal and physical abuse and denied adequate medical care. (Id. ¶ 34).

The Immigration Naturalization Service ("INS"), the predecessor to ICE, acknowledged the problems with the immigrant detention system, and in 1998 adopted detention standards. (Id. ¶ 35). These standards were inadequate, however, because they did not apply to detainees in state and local jails—where most of the problems occur—and so, in 2000, INS adopted new standards. (Id. ¶¶ 36, 39). The new standards applied to state and local jails holding immigration detainees, but only those that held detainees for more than 72 hours. (Id. ¶ 40).

In 2003, ICE issued a "Detention and Removal Strategic Plan for 2003-2012" to address continuing problems with detention facilities. (Id. ¶ 42). Plaintiffs allege that the 2003 plan is inadequate, however, because it only provides guidelines—as opposed to mandatory standards—for detention facilities, and did not establish any enforcement mechanism. (Id. ¶¶ 44-46). Moreover, ICE does not even train its employees based on the guidelines. (Id. ¶ 48). The 2003 plan is the most recent set of guidelines immigration authorities have issued regarding standards in detention facilities.

Since 2003, problems in detention facilities have been persistent and widespread. In a 2006 report, the DHS Office of Inspector General issued a report detailing significant problems in ICE detention facilities. (Id. ¶¶ 53-57). The report found, for example, that at a number of facilities, officials did not respond to non-emergency medical requests by detainees within the time required by DHS guidelines. (Id. ¶ 55). Problems with detainee medical care have also been chronicled by the news media, which have reported a number of instances in which immigration detainees have been seriously injured or died while in the custody of immigration authorities. See, e.g., Dana Priest & Amy Goldstein, Suicide Points to Gaps in Treatment: Errors in Psychiatric Diagnoses and Drugs Plague Strained Immigration System, Wash. Post, May 13, 2008, at A1; Nina Bernstein, Ill and In Pain, Detainee Dies in U.S. Hands, N.Y. Times, Aug. 13, 2008, at A1; Nina Bernstein, Another Jail Death, and Mounting Questions, N.Y. Times, Jan. 28, 2009, at A14.

3. Plaintiffs' Petition for Rulemaking

In light of these persistent problems in detention facilities, on January 25, 2007, plaintiffs petitioned DHS, pursuant to 5 U.S.C. § 553(e),² to promulgate binding regulations governing detention conditions and standards for detained immigrants. (Compl. ¶ 69). On January 31, 2007, the American Bar Association (the "ABA") sent DHS a letter "in strong support" of plaintiffs' petition. (Bober Decl. Ex. B).

On March 19, 2007, DHS responded to the ABA's letter, stating that it would "consider" the petition, and went on to discuss in general terms DHS's efforts to ensure adequate conditions in detention facilities. (Bober Decl. Ex. C). DHS did not, however, respond directly to plaintiffs.

B. Procedural History

Plaintiffs filed the complaint in this action on April 30, 2008, invoking the Court's jurisdiction under 28 U.S.C. § 1331, and asserting two claims. First, they claim that DHS's delay in responding to their petition was unreasonable and asked the Court, pursuant to Section 706(1) of the APA, to compel DHS to respond. (Compl. ¶¶ 82-87). Second, they claim that DHS's failure to respond constituted a constructive denial that was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (Id. ¶¶ 88-92).

On July 15, 2008, two-and-one-half months after plaintiffs filed this lawsuit, and almost eighteen months after plaintiffs submitted their petition, DHS finally communicated with plaintiffs. (Bober Decl. Ex. D). DHS wrote a letter to plaintiffs stating that "DHS and ICE continue to study the possibility of commencing a rulemaking action" and discussing, in general terms, DHS's efforts to improve conditions in detention facilities. (Id.). While the letter is a "response" within the literal meaning of the word, the letter does not grant or deny plaintiffs' petition.

DHS moved to dismiss on October 15, 2008. I held oral argument on December 18, 2008, and reserved decision, as I urged the parties to try to resolve the matter.

On December 30, 2008, DHS informed the Court that it would issue a final decision on plaintiffs' petition by January 16, 2009, and requested that the Court refrain from ruling on DHS's motion in the interim. On January 16, 2009, DHS requested an additional five days to issue its decision. On January 21, 2009, DHS informed the Court that, while its previous letters were accurate representations of DHS's position "at the time," it could neither meet the January 21, 2009 deadline nor "commit to a specific date by which it will render a final decision on plaintiffs' petition." (1/21/09 Ltr. at 1).

DISCUSSION

DHS moves to dismiss on three grounds. First, it argues that plaintiffs' complaint amounts to a "broad programmatic attack" of agency action that is precluded from judicial review under the APA. Second, it argues that there is no "final action" for the Court to review because DHS has' not yet responded to plaintiffs' petition. Finally, DHS argues that plaintiffs lack standing to pursue their claims.

DHS's arguments are all directed at plaintiffs' second cause of action. Plaintiffs, in opposition to DHS's motion to dismiss, argue principally that the relief they seek is on their first cause of action— that DHS either grant or deny their petition. They argue that, under 5 U.S.C. § 555(b), an agency presented with a petition for rulemaking must, at a minimum, respond to that petition, and that the petitioning party has standing to compel a response unreasonably withheld.

For the reasons that follow, DHS's motion to dismiss is denied. Moreover, I conclude that plaintiffs are entitled to judgment in their favor as to the first count of their complaint. Specifically, I conclude that DHS is required to grant or deny plaintiffs' petition, and that its delay in doing so is unreasonable as a matter of law.

Because I find for plaintiffs on the first count of their complaint, I dismiss as moot, and without prejudice, the second count.

A. DHS's Motion to Dismiss

Courts differ as to whether a motion to dismiss an action brought under 5 U.S.C. § 706(1) is based on lack of standing, subject matter jurisdiction, or failure to state a claim. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (upholding district court's...