Jimenez v. Cronen, C.A. No. 18–10225–MLW

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation317 F.Supp.3d 626
Docket Number C.A. No. 18–10307–MLW,C.A. No. 18–10225–MLW
Parties Lilian Pahola Calderon JIMENEZ and Lucimar De Souza, et al., Petitioner–Plaintiffs, v. Christopher CRONEN, et al., Respondent–Defendants Eduardo Ralph Junqueira, Petitioner, v. Steven Souza, et al., Respondents.
Decision Date11 June 2018

317 F.Supp.3d 626

Lilian Pahola Calderon JIMENEZ and Lucimar De Souza, et al., Petitioner–Plaintiffs,
Christopher CRONEN, et al., Respondent–Defendants

Eduardo Ralph Junqueira, Petitioner,
Steven Souza, et al., Respondents.

C.A. No. 18–10225–MLW
C.A. No. 18–10307–MLW

United States District Court, D. Massachusetts.

Filed June 11, 2018

317 F.Supp.3d 632

Stephanie E.Y. Marzouk, Marzouk Law LLC, Somerville, MA, Todd C. Pomerleau, Rubin Pomerleau PC, Boston, MA, for Petitioner.

Mary Larakers, U.S. Department of Justice, Office of Immigration Litigation District Court Section, Washington, DC, for Respondents.




This country was born with a declaration of universal human rights, proclaiming that: "all men are created equal, that they are endowed by their Creator with certain unalienable rights," and that "among these" is "Liberty." U.S.C.A. Declaration of Independence (177 6). This concept was codified in the Fifth Amendment to the United States Constitution, which states in part that "no person shall be ... deprived of ... liberty ... without due process of the law." U.S. Const. Amend. V. As the Supreme Court has written, "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). As the words "no person" indicate, and as the Supreme Court has confirmed, "the Due Process Clause applies to all ‘persons’ within the United States whether their presence here is lawful, unlawful, temporary, or permanent." Id. at 693, 121 S.Ct. 2491.

The United States has historically been distinguished by its dedication to treating lawfully and fairly all among us, including aliens who are in the country illegally. However, as Supreme Court Justice Louis D. Brandeis observed, in each generation we "must labor to possess that which [we] have inherited." Paul Freund, "Mr. Justice Brandeis," in On Law and Justice at 119

317 F.Supp.3d 633

(1968). These cases are a reminder that Justice Brandeis was right.

Lucimar De Souza, a Brazilian national, entered the United States unlawfully in 2002. She alleges that she did not receive notice of the hearing to determine whether she should be deported from the United States. In any event, in June 2002, De Souza was ordered to leave the country and did not.

Eduardo Junqueira, who was also born in Brazil, entered the United States unlawfully in 2004. He was apprehended and deported later that year. Junqueira soon reentered the United States unlawfully.

In 2006, De Souza married a United States citizen. They have an 11–year old son who is a United States citizen. Junqueira also married a United States citizen. They have two children, ages 10 and 12, who are United States citizens. Neither De Souza nor Junqueira has ever violated any law other than by entering and remaining in the United States illegally.

De Souza and Junqueira present the United States with dilemmas. As generous as the United States has traditionally been in admitting immigrants and refugees, it cannot accommodate everyone who aspires to live here. Therefore, its immigration laws must be enforced. However, the country also has a strong interest in not destroying families by deporting the wives, husbands, mothers, and fathers of United States citizens.

To reconcile these competing interests, the United States has established a process for determining whether aliens in the country illegally should be allowed to remain here with their families and become lawful Permanent Residents. The first step in that process requires the alien to prove to United States Citizenship and Immigration Services ("CIS"), an agency of the Department of Homeland Security ("DHS"), that his or her marriage is bona fide, rather than a sham to obtain immigration benefits. Both De Souza and Junqueira have attempted to utilize this process.

On January 30, 2018, at a scheduled appointment at a CIS office, De Souza and her husband were found to have a genuine marriage. De Souza was, however, immediately arrested there by another agency of DHS, Immigration and Customs Enforcement ("ICE"). Similarly, on February 1, 2018, Junqueira and his wife were at a CIS office for a scheduled interview concerning their marriage. Before the interview began, ICE arrested Junqueira.

De Souza and Junquiera each filed petitions for habeas corpus asserting they are being detained by ICE in violation of the Constitution and laws of the United States, and seeking an order directing ICE to release them. De Souza is also attempting to represent a putative class in challenging the authority of ICE to arrest aliens at CIS offices and, wherever they are arrested, to deport them before CIS decides whether to grant them provisional waivers that would allow them to seek to remain in the United States with their families.

Federal law also creates a process for determining whether aliens like De Souza and Junqueira, who have been ordered removed, should be detained while the government attempts to effectuate their removal. A federal statute, 8 U.S.C. § 1231(a)(2), requires that an alien ordered removed from the United States be detained for up to 90 days, ordinarily starting on the date the order becomes final. These 90 days are defined by the statute as the "removal period." Id. § 1231(a)(1). ICE must give an alien notice and an opportunity to be heard before detaining him or her for longer than 90 days. See 8 C.F.R. § 241.4. At the time of the May 8, 2018 hearing in these cases,

317 F.Supp.3d 634

ICE had detained De Souza and Junqueira for more than 90 days without following the process prescribed by its regulations.

ICE initially argued that the regulations do not apply to De Souza, and that they had not been violated with respect to Junqueira. ICE subsequently acknowledged that the regulations do apply and, even on its interpretation, which may be incorrect, the regulations were violated in each case. See May 8, 2018 Tr. at 15–18, 22–25, 35–36. However, ICE contends that the court does not have the power to provide a remedy for the unlawful detention of an alien who has not been in custody for at least six months. ICE relies on the Supreme Court's decision in Zadvydas in making this claim.

ICE's argument is unmeritorious. The Fifth Amendment guarantee of due process has two components. The substantive component prohibits restrictions on liberty that are not narrowly tailored to serve a compelling state interest, no matter what process is employed in deciding to impose them. In addition, a person who is detained has a right to procedural due process, meaning a right to a fair process for challenging the reasons for detention. Fundamental features of procedural due process are fair notice of the reasons for the possible loss of liberty and a meaningful opportunity to address them. Zadvydas addressed the substantive due process component of the Fifth Amendment. The Supreme Court held, in effect, that an alien's right to substantive due process could be violated by prolonged detention even if the alien's right to procedural due process had been satisfied. See 533 U.S. at 697, 121 S.Ct. 2491. Implicitly assuming that the alien had been afforded procedural due process, the Court found that detention of an alien for up to six months is presumptively reasonable for the purpose of the substantive due process analysis. Id. at 701, 121 S.Ct. 2491.

However, as Justice Anthony Kennedy wrote in his dissent in Zadvydas, without dispute from the majority, "[w]ere the [DHS], in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures ..." Id. at 724–25, 121 S.Ct. 2491. Justice Kennedy's position was a particular application of a long line of Supreme Court and other decisions holding that regulations are laws that the government must obey. In the "McCarthy era," the Supreme Court held that having issued regulations delegating to the Board of Immigration Appeals (the "BIA") the discretion to decide whether an alien should be deported, the Attorney General could not dictate the BIA's decisions. See Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 502–04, 98 L.Ed. 681 (1954). During the "Watergate" era, the Attorney General issued regulations delegating to a Special Prosecutor the authority to conduct investigations relating to the 1972 election of President Richard Nixon. See United States v. Nixon, 418 U.S. 683, 694–96, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). This authority included the power to issue subpoenas and to seek judicial enforcement of them, including by contesting any assertion of Executive Privilege. Id. at 694–95, 94 S.Ct. 3090. The President claimed that he had the unreviewable power to assert that privilege and refuse to comply with the Special Prosecutor's subpoena for tapes the President secretly made in the Oval Office. Id. at 693, 94 S.Ct. 3090. The Supreme Court rejected this claim, holding that the regulation had "the force of law," the "Executive Branch [was] bound by it," and the Court was "bound to respect and...

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