Aracely v. Nielsen

• Decision Date: 03 July 2018
• Docket Number: Civil Action No.: 17–1976 (RC)
• Parties: ARACELY, R., et al., Plaintiffs, v. Kirstjen NIELSEN, Secretary, United States Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

319 F.Supp.3d 110

ARACELY, R., et al., Plaintiffs,

v.Kirstjen NIELSEN, Secretary, United States Department of Homeland Security, et al., Defendants.

Civil Action No.: 17–1976 (RC)

United States District Court, District of Columbia.

Signed July 3, 2018

Catherine D. Norris, Peter E. McGraw, Texas RioGrande Legal Aid, Inc., Brownsville, TX, Jennifer K. Harbury, Texas RioGrande Legal Aid, Inc., Mercedes, TX, for Plaintiff.

Sheetul Sheth Wall, U.S. Department of Justice Immigration Litigation–District Court Section, William M. Martin, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

DENYING DEFENDANTS' MOTION TO TRANSFER VENUE; GRANTING PLAINTIFFS' MOTIONS TO SUPPLEMENT THEIR PRELIMINARY INJUNCTION APPLICATION AND EXHIBITS; AND GRANTING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

Every day, individuals fleeing persecution and violence in their home countries seek asylum within our borders. And every day, United States immigration officials must determine whether to admit these individuals or reject them. This case concerns what happens to these individuals while their requests for asylum are considered. Plaintiffs undertook perilous journeys to reach our borders, submitted asylum petitions, and were detained in what they claim to be prison-like conditions for an extended period of time while their petitions were evaluated. They contend that their detention without access to a bond hearing before an immigration judge violated their constitutional rights. They also contend that immigration officials routinely and systematically failed to abide by a binding, official agency directive governing parole determinations, and instead applied an unwritten, unconstitutional policy promulgated by top policy makers. In the absence of this unwritten policy, Plaintiffs argue, they would have been conditionally paroled into the United States.

Presently before the Court are two preliminary motions. First, Defendants seek to transfer this litigation's venue from the District of Columbia to the Southern District of Texas. Second, Plaintiffs seek preliminary injunctive relief granting them bond hearings before immigration judges, and compelling Defendants to comply with the official directive and halt the alleged unwritten policy. For the reasons explained below, the Court denies Defendants' motion, and grants Plaintiffs' motion in part.

II. BACKGROUND

A. Statutory and Regulatory Framework

This case concerns statutes and regulations within the scope of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101 et seq. The INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States, and it grants the Department of Homeland Security ("DHS") the discretion to initiate removal proceedings. See, e.g., id. §§ 1181–1182, 1184, 1225, 1227–1229, 1306, 1324–25. Within DHS, Immigration and Customs Enforcement ("ICE") is the department that is primarily charged with administering the INA. See 6 U.S.C. §§ 111, 251, 291. The interactions relevant to this action involved ICE officials.

Plaintiffs are "arriving aliens" from outside of the United States who surrendered to ICE at United States ports of entry, sought asylum ("POE asylum seekers"), and were detained pursuant to 8 U.S.C. §§ 1158(a)(1) and 1225(b).¹ Section 1225(b) provides that if a non-citizen "who is arriving in the United States" indicates an intention to apply for asylum or expresses a fear of persecution or torture, the individual must be interviewed to determine whether he or she has a "fear of persecution."² 8 U.S.C. § 1225(b)(1)(A)(ii). If the individual is determined to have a credible fear of persecution, he or she "shall be detained for further consideration of the application for asylum." Id. § 1225(b)(1)(B)(ii). ICE officials determined that each Plaintiff had a credible fear of persecution, so Plaintiffs' detentions were governed by § 1225(b)(1)(B)(ii).

An individual detained under § 1225(b)(1)(B)(ii) can be paroled "into the United States temporarily" by the Attorney General "in his discretion." Id. § 1182(d)(5)(A).³ Agency regulations provide that the Secretary of Homeland Security "may invoke" this parole authority for an individual who is "neither a security risk nor a risk of absconding" and meets one or more of a series of conditions, one of which is that "continued detention is not in the public interest." 8 C.F.R. § 212.5(a), (b)(5).⁴ Plaintiffs contend that they met, and continue to meet, this condition.

Parole under § 212.5, however, "shall not be regarded as an admission of the alien." 8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, "the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States." Id. Further, immigration judges do not have authority under § 1225(b)(1)(B)(ii) to review ICE's parole decisions for POE Asylum Seekers. See 8 C.F.R. § 1003.19(h)(2)(i)(B). In other words, a POE asylum seeker may be paroled into the United States after passing a credible fear interview, but that individual is still considered an "arriving alien" under the law, ICE may revoke the parole at any time, and ICE's parole determination is not subject to review by an immigration judge.

A 2009 directive issued by ICE sets forth certain procedures that must be utilized and factors that, according to Plaintiffs, must be considered when evaluating parole requests under 8 C.F.R. § 212.5. ICE Directive No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture ("Morton Directive" or the "Directive) (Dec. 8, 2009), Pls. Am. Mem. P. & A. Supp. Mot. Prelim. Inj. ("Pls.' Am. Mem.") Ex. 13, ECF No. 74–16. More specifically, the Morton Directive explains how the term "public interest" in § 212.5(b)(5) is to be interpreted. According to the Directive, when an arriving alien found to have a credible fear of persecution establishes, to the satisfaction of ICE, his or her identity and that he or she presents neither a flight risk nor a danger to the community, "[ICE] should, absent additional factors ... parole the alien on the basis that his or her continued detention is not in the public interest." Id. ¶ 8.3.

B. Factual Background and Procedural History

Plaintiffs are three aliens—Mikailu J., Aracely R., and Sadat I.—who came to the United States seeking asylum. The following is a brief description of each Plaintiff's journey to this country.

Aracely R.

Aracely R. fled Guatemala by car in 2016 with her eight-year old daughter. Decl. of Celinda Aracely R. ("Aracely Decl.") ¶ 2, Pls.' Am. Mem. Ex. 1, ECF No. 74–2. While driving through Mexico on the way to the United States, their car overturned, killing Aracely's daughter and severely injuring Aracely's leg. Id. Aracely ultimately reached Hidalgo, Texas, requested asylum at the border, passed her credible fear interview, and was detained under § 1225(b)(1)(B)(ii). Id. ¶ 6. According to Aracely, she submitted to ICE officials two sponsorship letters from family members, and a copy of her national identification card in support of her request for parole. Id. She was detained for nearly a year, despite requesting parole at least once. Id. ; Decl. of Deborah Achim ("Achim Decl.") ¶ 6, Defs.' Opp'n Pls.' Mot. Prelim. Inj. ("Defs.' Opp'n"), ECF No. 63–1. In early 2018 her injured leg required emergency surgery, so she was paroled and permitted to travel to California to receive treatment. Pls.' Am. Mem. at 2 n.4, ECF No. 74–1.

Mikailu J.

Mikailu J. fled Sierra Leone in early 2017. Decl. of Mikailu J. ("Mikailu Decl.") ¶ 4, Pls.' Am. Mem. Ex. 4, ECF No. 74–6. He requested asylum at the Brownsville, Texas port of entry, passed his credible fear interview, and was detained pursuant to § 1225(b)(1)(B)(ii). Id. ¶¶ 5–7. According to Mikailu, he submitted to ICE officials copies of his national identification card, his press card, his school identification card, and a letter from a relative offering him full sponsorship in the United States in support of his requests for parole. Id. ¶ 8. He has been denied parole three times, and is currently detained in the Laredo, Texas Detention Center. Id. ¶¶ 8–9; Achim Decl. ¶ 8.

Sadat I.

Sadat I. fled Ghana in late 2015. Decl. of Sadat I. ("Sadat Decl.") ¶ 4, Pls.' Am. Mem. Ex. 3, ECF No. 74–5. After an arduous journey, Sadat requested asylum at the San Diego, California port of entry, passed his credible fear interview, and was detained pursuant to § 1225(b)(1)(B)(ii). Id. ¶¶ 5–7. According to Sadat, he submitted to ICE officials his national identification card, a copy of his passport, a criminal background check, and sponsorship letters from his uncle and a non-governmental organization in Texas in support of his request for parole. Id. ¶ 8. Although he requested parole, he never received it. Id. ¶¶ 7–8. Plaintiffs do not clearly explain his current status, but it appears that his petition for asylum was denied in 2016, and he remains detained pending a motion in the Eleventh Circuit to re-open his petition. Id. ¶ 11; Pls.' Am. Mem. at 7 n.13. If this is true, his detention is pursuant to § 1231(a)(6) rather than § 1225(b), and his parole is governed by 8 C.F.R. § 241.4 rather than § 212.5. Id.

Former Plaintiffs

In addition to these three individuals, Plaintiffs have submitted declarations from two former plaintiffs, Hatim B. and Junior M., who also requested asylum at a port of entry, passed their credible fear interviews, and were detained without parole. Hatim B. was granted asylum in early 2018 and has been fully released into the United States. See Pls.' Am. Mem. at 9 n.14. Junior M. returned to his home country of Honduras. Id. at 3.

Plaintiffs claim that they were denied parole because of a de facto immigration policy promulgated...