Americans for Immigrant Justice v. U.S. Dep't of Homeland Sec.
| Decision Date | 01 February 2023 |
| Docket Number | Civil Action 22-3118 (CKK) |
| Parties | AMERICANS FOR IMMIGRANT JUSTICE, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Several legal services organizations have moved for preliminary injunctive relief in the form of an order mandating that four civil-detention facilities (collectively “Facilities”) institute a swath of policies and mechanisms related to communications between the organizations and detainees housed at those facilities. Asserting third-party standing, Plaintiffs mainly argue that current conditions violate detainees' Fifth Amendment substantive rights to full and fair legal proceedings and to be free from punitive detention. Two of these organizations argue that current conditions violate certain detainees' rights under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. Finally, Plaintiffs bring an Accardi claim under the Administrative Procedure Act, 5 U.S.C. §§ 555 et seq., arguing that Defendants' purported failure to implement certain governing attorneyaccess measures at each of the four facilities is (1) a final agency action not in accordance with the law and/or (2) a final agency action unlawfully withheld. Again asserting third-party standing, two of these organizations argue that current conditions violate certain detainees' rights under the Rehabilitation Act, 29 U.S.C §§ 701 et seq. Defendants maintain that Plaintiffs have not shown a likelihood of success on any of these claims, irreparable harm, or that the public interest weighs in favor of preliminary relief.
In brief, the Court concludes that one of these organizations has shown a clear likelihood of success on the merits of its substantive due process claim, but that no other organization has made such a showing as to any other claim. The Court therefore crafts a narrow injunctive relief in favor of one Plaintiff only and as to one facility only. Accordingly, and upon consideration of the briefing,[1]the relevant authorities, and the entire record, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' [55] Motion for Preliminary Injunction.
Over the course of almost one thousand pages of briefing, five distinct legal services organizations seek wide-ranging equitable relief at four separate immigration detention facilities in four different states collectively housing thousands of immigrants to this country. In the broadest possible terms, they seek an entire overhaul of all communications policies, technology, and access at each facility, nominally on behalf of clients they never identify and, in part, to ameliorate legal proceedings they barely describe. Although each facility is ultimately answerable to Defendants-the Department of Homeland Security (“DHS”), the Secretary of Homeland Security, Immigration and Customs Enforcement (“ICE”), and the Acting Director of ICE-they are nevertheless separate entities, two of which are run relatively autonomously by private companies. None of these facilities or any individual remotely tied to them is named as a defendant. With the mammoth task ahead of it, the Court will endeavor to set out only those facts necessary to resolve the pending motion for preliminary relief.
The Court first begins with Plaintiffs: Americans for Immigrant Justice (“AIJ”), Florence Immigrant and Refugee Rights Project (“FIRRP”), Immigration Justice Campaign (“ICJ”), Immigration Services and Legal Advocacy (“ISLA”), and Refugee and Immigrant Center for Education and Legal Services (“RAICES”).
AIJ is a non-profit law firm “that protects and promotes the basic rights of immigrants through direct representation, impact litigation, advocacy, and outreach.” Declaration of Andrea Jacoski, ECF No. 55-3 ¶ 3 (“Jacoski Decl.”). Relevant here, AIJ runs a “Detention Program” which “advises and represents” “at any given time” between “fifteen to twenty clients” in civil immigration detention at the Krome North Service Processing Center in Miami, Florida (“Krome”). See id. ¶ 4-5. Among the legal services provided, AIJ represents clients before the Executive Office for Immigration Review (“EOIR”) Immigration Court, in bond hearings and parole applications, and “files lawsuits to remedy inhumane conditions.” Id. ¶ 5. Though less relevant here, AIJ also engages in various advocacy and public policy activities in favor of detained immigrants throughout the United States. Id. AIJ does not state how many clients they currently represent or otherwise describe the proceedings in which AIJ ostensibly presently represents those clients. AIJ does, however, state that they represent four clients with mental health disorders, one of whom is also blind. Id. ¶¶ 45, 55.
Before turning to AIJ's specific allegations involving restrictions at Krome, the Court must note that this is not the first time AIJ has sued to better conditions of confinement at Krome on behalf of current or future clients. With others, AIJ filed one such action in 2020 in the United States District Court for the Southern District of Florida to challenge COVID-19-related conditions at Krome. Gayle v. Meade, Civ. A. No. 20-cv-21553 (MGC). Notably, it was AIJ's actual clients who were the plaintiffs in action in both cases, and AIJ (with other plaintiffs) appended substantial declarations from those clients. See Notice, ECF No. 64, Civ. A. No. 20-cv-21553 (MGC) (Apr. 22, 2020). That record, which Magistrate Judge Jonathan Goodman initially found insufficient for the entirety of preliminary relief requested,[2]stands in marked contrast to the dearth of declarations from individual clients here.
Without such supporting declarations, AIJ nevertheless contends that Krome is noncompliant with ICE's 2011 Performance-Based National Detention Standards (“PBNDS”) as amended in 2016.[3]See Mot. at 9-11. The PBNDS “establish consistent conditions of confinement, program operations[,] and management expectations” at DHS-run immigration detention facilities. ICE, “Summary of Revisions to the ICE Performance-Based National Detention Standards (Feb. 18, 2022) available at https://www.ice.gov/detain/detention-management/2011 (last accessed January 25, 2023 12:15 PM ET). Of these standards, at issue in this suit are sections 5.1, governing “correspondence and other mail,” 5.6, governing “telephone access” and 5.7, governing “visitation.”
Taking visitation first, AIJ alleges that Krome's attorney visitation rooms are not “[p]rivate” in violation of section 5.6(J)(9), and that Krome does not reliably allow AIJ interpreters to accompany AIJ attorneys, in violation of section 5.6(J)(3)(c). See Jacoski Decl. ¶¶ 34, 47. AIJ maintains that interpreters and support staff are subject to a “preapproval process” to accompany attorneys that may take up to two weeks to complete. Id. ¶ 37. If such a preapproval process were applied uniformly, that requirement would go beyond a “procedure for random criminal background and warrant checks” envisioned in sections 5.6(I)(3) and (J)(3)(c). AIJ also complains that its attorneys cannot bring laptops or phones with them into visitation rooms, which is not required by the PBNDS, and that AIJ attorneys have had to wait up to an hour-and-a-half to use an attorney-client visitation room. Id. ¶¶ 34, 39. The PBNDS do not require facilities to permit anything beyond pen and paper in a visitation room and do not speak to wait times. AIJ's allegations regarding in-person visitation are largely unanswered or explicitly conceded. See Declaration of Acting Assistant Field Office Director Jonathan Ruiz, ECF No. 66-2 ¶¶ 23-30 (“Ruiz Decl.”).
As for telephonic and VTC communications, AIJ alleges that detainees “must make calls from telephones located in the open housing unit, which are within an earshot of other detained individuals and guards;” detainees are not permitted to make phone calls from an administration office. Jacoski Decl. ¶ 15. AIJ further alleges that these telephones are both next to a recreational television and a guard station. Id. ¶¶ 16-17. If true, Krome does not “provid[e] a reasonable number of telephones on which detainees can make [legal] calls without being overheard by staff or other detainees,” in violation of section 5.6(F)(2). Calls to pro bono legal service providers must also be “free” pursuant to section 5.6(E)(3), and AIJ maintains that the instructions to access a free line are so complicated as to actually prevent detainees from making free legal calls. Jacoski Decl. ¶ 25. Finally, AIJ complains that calls have occasionally dropped. Id. For its part, Krome maintains that it does in fact offer a free pro bono line, that it posts instructions on how to use the pro bono line, and that phone banks generally permit private calls. Ruiz Decl. ¶¶ 15-22. Defendants agree that there is no VTC conferencing available for legal communications. Id. ¶ 24.
Lastly, as to communication of legal documents, Defendants appear to concede that Krome does not permit detainees to use fax or email for legal purposes, which is not required by the PBNDS.
Like AIJ, FIRRP is a nonprofit law firm that “provide[s] free legal and social services to [] thousands of adults and children detained immigration custody in Arizona.” Declaration of Laura St. John, ECF No. 55-9 ¶ 2 (“St. John Decl.”). FIRRP specializes in representing “immigrants who are held in geographically isolated detention centers in Eloy and Florence Arizona.” Id. ¶ 5. FIRRP represents their clients before EOIR in “bond proceedings, requests for parole, petitions for release[,] credible fear interviews, reasonable fear interviews, and removal defense.” Id. Despite insisting that FIRRP's clients...
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