Damus v. Nielsen

Decision Date02 July 2018
Docket NumberCivil Action No. 18–578 (JEB)
Citation313 F.Supp.3d 317
Parties Ansly DAMUS, et al., Plaintiffs, v. Kirstjen NIELSEN, Secretary of the Department of Homeland Security, et al., Defendants.
CourtU.S. District Court — District of Columbia

Dennis B. Auerbach, Philip J. Levitz, Covington & Burling LLP, Arthur B. Spitzer, American Civil Liberties Union, Stephen Bonggyun Kang, Washington, DC, Eunice Lee, San Francisco, CA, Judy Rabinovitz, Michael King Thomas Tan, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Sarah B. Fabian, Alexander James Halaska, Genevieve McCarthy Kelly, U.S. Department of Justice, Washington, DC, for Defendants.


JAMES E. BOASBERG, United States District Judge

As the events of recent months make clear, the question of how this nation will treat those who come to our shores seeking refuge generates enormous debate. While arriving foreigners may have myriad reasons for wanting to settle in the United States, a subset claims a fear of persecution in their native lands. They seek asylum here. Since 2009, the detention of those asylum-seekers has, in part, been governed by a set of principles and procedures set forth in a "Parole Directive" issued by Immigration and Customs Enforcement, a component of the Department of Homeland Security. This document establishes the process by which ICE must determine whether an individual who has passed a credible-fear interview—the first step toward gaining asylum status—will be released from detention on parole pending a full hearing.

Plaintiffs (and other members of the class they seek to represent) are noncitizens being held at five ICE Field Offices who have received a credible-fear determination but have been denied parole. Although, in the past, individuals deemed to have a "credible fear" of persecution and thus a significant possibility of being granted asylum were overwhelmingly released, Plaintiffs contend that there is a new reality in place. Pointing to the fact that parole rates have plummeted from over 90% to nearly zero, as well as to testimony from detained asylum-seekers and their counsel, they assert that the Government is no longer following its own Parole Directive. Plaintiffs allege that, rather than providing individualized determinations and procedural safeguards, DHS is now engaging in systematic detention.

Seeking the protections spelled out in the Directive, Plaintiffs have now turned to the courts. They filed suit in March of this year against DHS Secretary Kirstjen Nielsen, as well as Thomas Homan, the Acting Director of ICE, U.S. Attorney General Jefferson B. Sessions, and the directors of the five ICE Field Offices. Their Complaint alleges that Plaintiffs have been denied parole in violation of the ICE Directive, and that the Government has thereby violated the Administrative Procedure Act, the Immigration and Nationality Act, and the Due Process Clause of the Fifth Amendment. Defendants have now moved to dismiss, contending that this Court lacks subject-matter jurisdiction over the various counts and that Plaintiffs have failed to state a viable claim for relief. The asylum-seekers both oppose dismissal and request a preliminary injunction requiring DHS to comply with the Parole Directive and to provide individualized parole determinations while this suit is pending.

Finding that the circumstances here merit that extraordinary form of relief, the Court will grant Plaintiffs' Motion. In so doing, this Opinion does no more than hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance. Having extended the safeguards of the Parole Directive to asylum-seekers, ICE must now ensure that such protections are realized.

I. Background
A. Statutory and Regulatory Framework

Plaintiffs in this case are detained pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1225(b). This statute provides that if a noncitizen "who is arriving in the United States" demonstrates an intention to apply for asylum or expresses a fear of persecution or torture, he is referred for an interview to determine whether the fear is credible. See 8 U.S.C. § 1225(b)(1)(A)(ii). If the interviewing officer determines this to be the case, the INA provides that the individual "shall be detained for further consideration of the application for asylum," which includes a full asylum hearing before an immigration court and, if unsuccessful, an administrative appeal with the Board of Immigration Appeals (BIA). See 8 C.F.R. § 208.30(f) ; 8 U.S.C. § 1225(b)(1)(B)(ii). This detention requirement is not, however, entirely inflexible.

Instead, an individual detained under § 1225(b) can be paroled "into the United States temporarily" pursuant to the discretion of the Attorney General. See 8 U.S.C. § 1182(d)(5)(A). According to agency regulations, the Secretary of Homeland Security "may invoke" this parole authority for individuals who are "neither a security risk nor a risk of absconding," and who meet one or more of a series of conditions—namely, "for urgent humanitarian reasons or significant public benefit." Id.; 8 C.F.R. § 212.5(b).

It is this last factor—"public benefit"—that is the focus of the 2009 Directive, "Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture," issued by Immigration and Customs Enforcement ("ICE Directive" or "Parole Directive"). See ECF No. 22–1 (ICE Directive 11002.1). The Directive explains the agency's interpretation of "public benefit" for the purposes of determining parole and sets out a number of procedural requirements for assessing asylum-seekers' eligibility for release. On a broad level, the Directive states that "[e]ach alien's eligibility for parole should be considered and analyzed on its own merits and based on the facts of the individual alien's case," and that if an asylum-seeker establishes his identity and that he presents neither a flight risk nor a danger to the public, "[ICE] should, absent additional factors ... parole the alien on the basis that his or her continued detention is not in the public interest." Id., ¶ 6.2 (emphasis added). More specifically, the Directive sets out a series of procedures ICE must undertake to determine whether a given asylum-seeker should be granted parole, including, inter alia , that the individual shall be provided written notice of the parole process explained in a language he understands, id., ¶¶ 6.1, 8.1, shall be granted a parole interview within seven days of a credible-fear finding, id., ¶ 8.2, shall be provided written notification of a parole determination, id., ¶ 6.5, and shall be given a "brief explanation of the reasons for any decision to deny parole." Id., ¶ 6.5. As a result, although the Directive affirms that parole decisions are discretionary, it also establishes certain minimum procedures and processes that are to be utilized in making these determinations. Id., ¶ 4.4 (Directive "explains how the term [public interest] is to be interpreted by [ICE] when it decides whether to parole arriving aliens determined to have a credible fear" and "mandates uniform recordkeeping and review requirements for such decisions").

B. Plaintiffs' Detention

The nine named Plaintiffs and other members of the class they seek to represent are "asylum seekers who traveled to the United States, were found to have a credible fear of persecution, and were referred for immigration proceedings to decide their asylum claims." Compl., ¶ 2. During the pendency of their asylum determinations, however, each has remained detained, allegedly "with no individualized review of whether their detention is necessary."Id.

The lead plaintiff, Ansly Damus, is a former ethics teacher who is seeking asylum in the United States after fleeing political persecution in Haiti. Id., ¶ 11. Damus entered the United States in October 2016 and was referred for immigration proceedings after an asylum officer determined that he had a credible fear of persecution. He was subsequently granted asylum twice, but the Government appealed both determinations; meanwhile, the Detroit ICE Field Office denied his requests for parole in January 2017 and February 2018. Id. He has therefore remained detained—at this point—for over a year and a half. Id.

Plaintiff L.H.A. (the Court has permitted certain named Plaintiffs to proceed under pseudonyms) has been detained for even longer—over two years. Id., ¶ 16. He entered the United States in May 2016, upon fleeing threats in El Salvador. After receiving a credible-fear determination, L.H.A. applied for parole on June 14, 2017, but his request was denied by the El Paso Field Office and he remains detained. Id.

Plaintiffs Alexi Castro, H.A.Y., A.M.M., E.E.C.S., and L.I.L.M. have been detained for shorter periods (so far), but their experiences mirror those of Damus and L.H.A. Each was found to have a credible fear of persecution, each requested parole, and each was subsequently denied release and remains detained. Id., ¶¶ 14, 15, 17, 18. For two of the Plaintiffs, however, the story takes a slightly different twist. Abelardo Callol, who presented himself to immigration officers in December 2017 after fleeing persecution in Cuba, was denied parole and had been detained for over three months at the time the Complaint was filed. Id., ¶ 13. N.J.J.R., who presented himself to immigration in October 2017 after fleeing Venezula, had been detained for over four. Id., ¶ 12. In the time since the Complaint was filed, however, both men have been granted asylum and released from detention. See ECF No. 32 (Pl. Class Cert. Reply) at 15 n.6.

According to Plaintiffs, this shared experience of being found to have a credible fear of persecution but then being denied parole is indicative of the issue at the crux of this case—namely, the allegation that certain ICE Field Offices are no longer providing individualized parole determinations pursuant to the 2009 Directive. In support of this...

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