Abdi v. Nielsen

• Decision Date: 09 February 2018
• Docket Number: 1:17–CV–0721 EAW
• Citation: 287 F.Supp.3d 327
• Parties: Hanad ABDI and Johan Barrios Ramos, on behalf of himself and all other similarly situated, Petitioners, v. Kirstjen NIELSEN, in her official capacity as Secretary of U.S. Department of Homeland Security; Thomas Brophy, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; Jeffrey Searls, in his official Capacity as Acting Administrator of the Buffalo Federal Detention Facility; and Jefferson Sessions, in his official capacity as Attorney General of the United States, Respondents.
• Court: U.S. District Court — Western District of New York

287 F.Supp.3d 327

Hanad ABDI and Johan Barrios Ramos, on behalf of himself and all other similarly situated, Petitioners,

v.Kirstjen NIELSEN,¹ in her official capacity as Secretary of U.S. Department of Homeland Security; Thomas Brophy, in his official capacity as Acting Director of Buffalo Field Office of Immigration and Customs Enforcement; Jeffrey Searls, in his official Capacity as Acting Administrator of the Buffalo Federal Detention Facility; and Jefferson Sessions, in his official capacity as Attorney General of the United States, Respondents.

1:17–CV–0721 EAW

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

Signed February 9, 2018

Aadhithi Padmanabhan, Christopher T. Dunn, Paige Austin, Robert Andrew Hodgson, New York Civil Liberties Union Foundation, Deepa Alagesan, Mariko Hirose, International Refugee Assistance Project, New York, NY, for Petitioner.

Stacey Ilene Young, Tashiba Monique Peoples, U.S. Department of Justice Office of Imigration Litigation—District Court Section, J. Max Weintraub, U.S. Department of Justice—Civil Division, Nicole N. Murley, U.S. Department of Justice, Washington, DC, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

PROCEDURAL BACKGROUND

Petitioners Hanad Abdi ("Abdi") and Johan Barrios Ramos ("Barrios Ramos") brought this action seeking relief on behalf of themselves individually and on behalf of a proposed class of similarly situated asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York. (Dkt. 17). On November 17, 2017, the Court issued a Decision and Order denying Respondents' motion to dismiss and granting Petitioners' motion for a preliminary injunction (the "November 17, 2017, Decision"). (Dkt. 56). The Court ordered Respondents to immediately adjudicate or readjudicate the parole applications of all members of the putative class of asylum-seekers detained at the Buffalo Federal Detention Facility in conformance with their legal obligations, including their obligations under ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009) (the "ICE Directive"). (Id. at 65). The Court also ordered Respondents to provide individualized bond hearings to members of the putative subclass who have been detained for six months or more, as required by 8 U.S.C. § 1225(b). (Id. at 66). Familiarity with the November 17, 2017, Decision is presumed for purposes of this Decision and Order.

Thereafter, on December 19, 2017, the Court issued a Decision and Order granting Petitioners' motion for class certification. (Dkt. 66). Specifically, the Court defined the certified class as follows: "All arriving asylum-seekers who have passed a credible fear interview and who are or will be detained at the Buffalo Federal Detention Facility and who have not been granted parole." (Id. at 23). The Court also defined the certified subclass as follows: "All arriving asylum-seekers who are or will be detained at the Buffalo Federal Detention Facility, have passed a credible fear interview, and have been detained for more than six months without a bond hearing before an immigration judge." (Id. ).

On January 8, 2018, Petitioners filed a motion to clarify the preliminary injunction (Dkt. 67), and a motion to expedite consideration of their motion to clarify (Dkt. 68). The Court granted, in part, Petitioners' motion to expedite, setting a briefing schedule for response and reply papers as well as a motion hearing date of January 26, 2018. (Dkt. 73). On January 11, 2018, Respondents filed an interlocutory appeal from this Court's November 17, 2017, Decision. (Dkt. 74). Respondents have since submitted response papers in opposition to Petitioners' motion to clarify (Dkt. 76), and Petitioners have submitted reply papers (Dkt. 78). On January 26, 2018, the Court held argument on the motion to clarify and reserved decision.

During oral argument, Respondents contended that the Court should not decide the motion without reviewing transcripts of the bond proceedings held before the Immigration Judges ("IJ"), which Respondents had neither submitted nor prepared in connection with this motion. The Court granted Respondents an opportunity to file a supplemental submission containing these transcripts. The Court has since received and reviewed the transcripts of the bond hearings of five subclass members.

Before turning to the substantive issues raised by Petitioners' motion for clarification, the Court emphasizes the narrow scope of Petitioners' motion. Petitioners do not argue that any particular subclass member is entitled to alternative conditions of release or a reduction in the amount of bond. The sole question put to this Court is whether the November 17, 2017, Decision requires an IJ conducting a Lora -style bond hearing to consider alternative conditions of release and a detainee's ability to pay in setting bond after determining that release of the subclass member is appropriate. The Court answers that question in the affirmative, and, for the following reasons, the motion to clarify the preliminary injunction (Dkt. 67) is granted.

DISCUSSION

I. Jurisdiction Pending Interlocutory Appeal

The Court first addresses its jurisdiction to entertain Petitioners' motion in view of Respondents' pending appeal. "Generally, the filing of an effective notice of appeal divests the court of jurisdiction over the case." Exp.–Imp. Bank of Republic of China v. Cent. Bank of Liberia , No. 1:15-CV-09565 (ALC), 2017 WL 6398726, at *2 (S.D.N.Y. Dec. 13, 2017) (citing Negron v. United States, 394 Fed.Appx. 788, 792 (2d Cir. 2010) ). "[O]nce a notice of appeal has been filed, a district court ... may not ‘adjudicate substantial rights directly involved in the appeal.’ " Int'l Ass'n of Machinists & Aerospace Workers, AFL–CIO v. E. Air Lines, Inc., 847 F.2d 1014, 1017 (2d Cir. 1988) (quoting Newton v. Consol. Gas Co., 258 U.S. 165, 177, 42 S.Ct. 264, 66 L.Ed. 538 (1922) ). However, "[a] trial court has a long established right to make orders appropriate to preserve the status quo while a case is pending on appeal. This right is codified by Fed. R. Civ. P. 62(c)." Barringer v. Griffes, 810 F.Supp. 119, 120 (D. Vt. 1992) (citation and footnote omitted); see Cullman Ventures, Inc. v. Columbian Art Works, Inc., No. 89 CIV. 312(KC), 1989 WL 94902, at *3 (S.D.N.Y. July 28, 1989) ("[T]his Court has jurisdiction, notwithstanding the Notice of Appeal, to supervise the enforcement of its injunction and to preserve the status quo pending appeal."); 11 Charles A. Wright, et al., Federal Practice & Procedure § 2904, at 675 (3d ed. 2012) (stating that Rule 62(c)"codifies the inherent power of courts to make whatever order is deemed necessary to preserve the status quo and to ensure the effectiveness of the eventual judgment").

Rule 62(c) of the Federal Rules of Civil Procedure provides that "[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights." "The district court's power to modify an injunction to preserve the status quo necessarily includes the lesser power to clarify the injunction to supervise compliance." Wash. Metro. Area Transit Comm'n v. Reliable Limousine Serv., LLC, 985 F.Supp.2d 23, 29 (D.D.C. 2013) ; see Meinhold v. U.S. Dep't of Def., 34 F.3d 1469, 1480 n.14 (9th Cir. 1994) ("[The defendant] also contends that the district court lacked jurisdiction to issue its amended order, which broadened the scope of injunctive relief, because an appeal had already been taken from the original order. As the district court issued the amended order to clarify its original injunction and to supervise compliance in the wake of [the plaintiff]'s motion for contempt, it did not lack jurisdiction.").

Although the parties' submissions do not discuss the effect of Respondents' interlocutory appeal on this Court's jurisdiction to entertain Petitioners' motion to clarify, the Court finds that it has jurisdiction to resolve Petitioners' motion pursuant to its intrinsic authority to supervise compliance with its original order, and "to ensure the effectiveness of the eventual judgment." Wright, et al., § 2904, at 675 ; see Wash. Metro. Area Transit Comm'n, 985 F.Supp.2d at 29 ; Cullman Ventures, Inc., 1989 WL 94902, at *3 ; see also Does 1–10 v. Univ. of Wash., No. C16-1212JLR, 2018 WL 453451, at *2 (W.D. Wash. Jan. 17, 2018) (applying Rule 62(c) to a motion to clarify). As will be discussed below, Petitioners' motion to clarify does not raise new claims, but rather seeks clarification of the scope and effect of the Court's November 17, 2017, Decision. (Dkt. 67). Whether the Court's original order requires an IJ to consider the financial circumstances of each subclass member or alternatives to detention so as to properly effectuate the injunctive relief granted therein is a question fully within this Court's jurisdiction to answer in order "to supervise the enforcement of its injunction and to preserve the status quo pending appeal." Cullman Ventures, Inc., 1989 WL 94902, at *3 ; see also Sys. Fed'n No. 91, Ry. Emp. Dep't, AFL–CIO v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961) ("There is also no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief."); Meinhold, 34 F.3d at 1480 n.14 (determining that the district court "did not lack jurisdiction" to issue an "amended order to...