Aquilar v. U.S. Immigration and Custom Enforcement

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Stearns
• Citation: Aquilar v. U.S. Immigration and Custom Enforcement, 490 F.Supp.2d 42 (D. Mass. 2007)
• Decision Date: 07 May 2007
• Docket Number: Civil Action No. 07-10471-RGS.
• Parties: Nolberta AQUILAR, et al. v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE DEPARTMENT OF HOMELAND SECURITY; Julie L. Myers, Assistant Secretary of Homeland Security for Immigration and Customs Enforcement; Bruce Chadbourne, Field Office Director for Detention and Removal, Boston Field Office, Immigration and Customs Enforcement; Michael Chertoff, Secretary, Department of Homeland Security; and Alberto Gonzales, Attorney General of the United States.

490 F.Supp.2d 42

Nolberta AQUILAR, et al. v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE DEPARTMENT OF HOMELAND SECURITY; Julie L. Myers, Assistant Secretary of Homeland Security for Immigration and Customs Enforcement; Bruce Chadbourne, Field Office Director for Detention and Removal, Boston Field Office, Immigration and Customs Enforcement; Michael Chertoff, Secretary, Department of Homeland Security; and Alberto Gonzales, Attorney General of the United States.

Civil Action No. 07-10471-RGS.

United States District Court, D. Massachusetts.

May 7, 2007.

Bernard J. Bonn, III, Dechert, LLP, Harvey Kaplan, Kaplan, O'Sullivan & Friedman Matthew M. Lyons, Michael S. Shin, Dechert LLP, John Reinstein, Laura Rotolo, American Civil Liberties Union, Boston, MA, John Reinstein, American Civil Liberties Union, Boston, MA, for Petitioners.

Frank Crowley, Immigration and Customs Enforcement, Dept. of Homeland Secur, Mark J. Grady, United States Attorney's Office, Barbara Healy Smith, United States Attorney's Office, John Joseph, Moakley Federal Courthouse, Boston, MA, for Respondents.

ORDER ON MOTION TO DISMISS

STEARNS, District Judge.

On March 6, 2007, agents of the United States Immigration and Customs Enforcement Division (ICE) of the Department of Homeland Security (DHS) arrested several hundred undocumented aliens who were employed at Michael Bianco, Inc. (Bianco), a leather goods factory in New Bedford, Massachusetts.¹ Most of those detained were taken to a holding facility at Ft. Devens in Ayer, Massachusetts. Within forty-eight hours, 210 of the detainees were flown from Massachusetts to detention centers in Harlingen and El Paso, Texas.

On March 8, 2007, Carlos Enrique Avila Sandoval, the Consul General of Guatemala, acting as "next friend" of the detainees, filed a petition for writ of habeas corpus seeking a temporary restraining order (TRO) halting any further transfers of the detainees.² The Complaint asserted violations of the detainees' rights under United States laws and the Constitution. The Complaint also alleged that the transfers to holding centers in remote areas of Texas impeded the detainees' right of access to counsel and opportunity to obtain conditional release on bond. Respondents now move to dismiss the case for lack of subject matter jurisdiction.

BACKGROUND

On March 6, 2007, hundreds of ICE agents took part in "Operation United Front" in New Bedford, Massachusetts. Their target was Bianco, a Department of Defense subcontractor alleged to employ large numbers of illegal immigrants. The agents executed a search warrant and arrested five Bianco managers for violations of the immigration laws. During the sweep, some 360 Bianco employees were taken into custody. Dozens were quickly released when they were determined to be minors or lawful residents of the United States. The remainder were transported to Ft. Devens.

Complications quickly arose. In planning the sweep, ICE "took steps to determine whether arrestees had minor dependents" and had asked the assistance of the Massachusetts Department of Social Services (DSS) in "address[ing] any issues of unattended children."³ The coordination with DSS, however, proved inadequate. DSS caseworkers who arrived at Ft. Devens on the evening of March 7, 2007, were initially denied access to the detainees.⁴ They were permitted to interview those detainees who had requested DSS intervention only after a group of ninety detainees had been flown to an ICE Detention and Removal Operations (DRO) center in Harlingen, Texas.⁵ Caseworkers were eventually able to interview forty detainees. DSS requested that twenty-six of these detainees be released because of child care issues or medical complications.⁶

Shortly after 4:00 p.m. on the afternoon of March 8, 2007, Sandoval filed this action. He requested an emergency hearing on the motion for a TRO. Approximately an hour after the lawsuit was filed, a group of 116 detainees was flown to a DRO holding facility in El Paso, Texas.⁷ This court convened a hearing on Sandoval's motion at 5:45 p.m. Counsel for the government agreed that no further transfers would take place before a hearing scheduled by the court for noon the following day.

At the March 9, 2007 hearing, the court heard testimony from Susan Getman, a DSS Deputy Commissioner, regarding the logistical difficulties and failed communications that had resulted in some minor children being stranded without adult supervision. She also testified about DSS's frustration at the lack of adequate warning and an opportunity to investigate the detainees' needs. Petitioners' counsel accused ICE of transferring the detainees to Texas as part of a deliberate strategy to defeat the jurisdiction of the court, to deny access to counsel, and to make it more difficult for the detainees to obtain release on bond. Respondents argued that the detainees had been transferred from Massachusetts because of a shortage of bed space. They also contended that the detainees would receive the same procedural protections in immigration proceedings in Texas as they would in Massachusetts.⁸

Immediately after the hearing, the court issued a TRO barring any further out-of-state transfers without prior notice to the court.⁹ The court ordered that no undue restrictions be placed on the detainees' access to counsel. The court also directed ICE and DSS to work collaboratively to resolve any remaining issues involving unattended minor children and to file a Status Report with the court on or before March 13, 2007.¹⁰ The court then entered a briefing schedule limited to the issue of its jurisdiction.

On March 13, 2007, petitioners filed the Amended Class Petition. On March 16, 2007, petitioners filed an emergency motion asking that the court enjoin all removal proceedings in Texas pending a resolution of the jurisdictional issues. The court held a hearing on the motion that afternoon. At the hearing, respondents represented that ICE intended to remove only those aliens who were the subject of final removal orders entered prior to March 6, 2007. Consequently, the court denied petitioners' request for a TRO.¹¹

The court held a status conference on March 21, 2007. Petitioners requested leave to conduct limited discovery on jurisdictional issues. The court permitted petitioners to take the deposition of Bruce Chadbourne on an expedited basis and scheduled a hearing and briefing schedule on respondents' motion to dismiss.¹²

On March 23, 2007, respondents filed a notice of their intent to deport detainees otherwise covered by the court's TRO who had agreed to voluntary deportation after waiving their right to appeal a final order of removal. On March 28, 2007, petitioners moved for a TRO seeking to enjoin respondents from executing final removal orders for any of these detainees. Petitioners maintained that many of the detainees who had agreed to voluntary removal had been intimidated or coerced into waiving their right to a full hearing. On April 6, 2007, the court heard argument on the motion as well as on a motion filed by petitioners for additional discovery "to establish habeas jurisdiction over the Plaintiffs in detention in Port Isabel/Harlingen, Texas." At the conclusion of the hearing, the court ordered respondents to provide petitioners' counsel with the identities and locations of the detainees scheduled for voluntary removal and to permit petitioners' counsel to meet with any detainees who wished to consult an attorney regarding his or her legal rights.

On April 19, 2007, the court held a hearing on respondents' motion to dismiss, petitioners' motion for further discovery, and petitioners' request that the April 6, 2007 TRO be extended pending the court's ruling on the motion to dismiss. Petitioners' counsel also reported that pursuant to the court's order of April 6, 2007, they had interviewed seventy-five detainees in Texas whom ICE had identified as having agreed to voluntary removal. Of these detainees, fifty-four stated that they had not knowingly and voluntarily waived their rights. At the conclusion of the hearing, the court entered an order staying the removal of any of the non-Massachusetts detainees who now wished to contest deportation.¹³ On May 2, 2007, the parties completed the briefing schedule on the motion to dismiss for want of subject matter jurisdiction. The motion is now ripe.

DISCUSSION

Petitioners fall into three classes: (1) the ninety detainees who were transported to Harlingen, Texas, before the lawsuit was filed;¹⁴ (2) the 116 detainees who were moved to El Paso, Texas, after the filing of the suit;¹⁵ and (3) the ninety detainees who remained in Massachusetts after the court issued the TRO halting any further transfers. Although the Amended Complaint is broadly framed, the immediate relief sought affects only the first two classes of detainees. It is important to a resolution of the instant motion to understand precisely what is being claimed by both sides. That in turn requires a brief explication of recent amendments to the INA stripping the courts of jurisdiction to review enforcement actions undertaken by the Attorney General.

In 2005, Congress — frustrated by persistent delays resulting from legal challenges to orders of removal — passed the REAL ID Act (RIDA), Pub.L. No. 109-13, Div. B., 119 Stat. 302 (2005). RIDA limits the habeas jurisdiction of the district courts in immigration cases. It also strips the courts of subject matter jurisdiction over certain discretionary decisions of the Attorney General and the Secretary of DHS.¹⁶ Under RIDA, the Courts of Appeals now have original subject matter jurisdiction over "all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States," and respecting "any cause or claim by or on behalf of any alien arising from the decision or action...