Moreno v. Napolitano
| Decision Date | 30 September 2014 |
| Docket Number | Case No. 11 C 5452 |
| Parties | JOSE JIMENEZ MORENO and MARIA JOSE LOPEZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. JANET NAPOLITANO, Secretary of the Department of Homeland Security (DHS); JOHN MORTON, Director of U.S. Immigration and Customs Enforcement (ICE) and Removal Operations (ERO); DAVID C. PALMATIER, Unit Chief, ICE/ERO Law Enforcement Support Center (LESC); RICARDO WONG, ICE/ERO Director, Chicago Field Office, in their official capacities, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Jose Jimenez Moreno was in the custody of the Winnebego County Sheriff when the Immigration and Customs Enforcement Division ("ICE") of the United States Department of Homeland Security ("DHS") issued a Form I-247 immigration detainer requesting that the Sheriff maintain custody of Moreno, upon his release from state custody, for up to forty-eight hours to provide DHS time to assume custody of him. Plaintiff Maria Jose Lopez, who was serving time at a federal correctional center in Tallahassee, Florida, was also the subject of an ICE Form I-247 detainer, requesting that the correctional center maintain custody of her, upon her release, for up to forty-eight hours. Moreno and Lopez filed this lawsuit, on behalf of themselves and other similarly situated individuals, against the Secretary of DHS1 and otherfederal officials responsible for ICE, alleging that the issuance of the detainers exceeded ICE's statutory authority under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706(2)(A)-(D), and the Immigration and Naturalization Act ("INA"), 8 U.S.C. §§ 1226(a), 1357(a)(2), and 1357(d), and violated their constitutional rights under the Fourth, Fifth, and Tenth Amendments.
Before the Court is Plaintiffs' amended motion for class certification pursuant to Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2). For the reasons provided herein, the Court grants Plaintiffs' motion, but modifies the class definition proposed by Plaintiffs. The Court declines to certify Plaintiffs' proposed sub-class.
ICE is the division of DHS charged with identifying and removing unlawfully present aliens from the United States. Am. Compl. ¶ 15. As part of carrying out that task, ICE's division of Enforcement and Removal Operations ("ERO") issues Form I-247 immigration detainers to federal, state, and local law enforcement agencies ("LEAs"). Id. The detainers, which were revised in August 2010, December 2011, and December 2012, contain two main sections. See Pl.'s Mem. Supp. Class Cert., Exs. A, B, C.
The first section advises an LEA that DHS has taken an action concerning an individual in the LEA's custody. Id. The August 2010 version of the detainer form, which was issued to Moreno and Lopez, lists four checkboxes ("[ ]") corresponding to various actions undertaken by DHS: (1) commencement of an investigation to determine whether the individual is subject to removal from the United States; (2) issuance of a Notice to Appear or other charging document initiating removal proceedings; (3) issuance of a warrant of arrest in removal proceedings; and (4) issuance of an order of deportation or removal from the United States. Id., Ex. A. ICEindicates which of these actions are applicable by checking the box next to the corresponding action. Id. In December 2012, ICE revised the first checkbox to state that ICE has "[d]etermined that there is reason to believe the individual is an alien subject to removal from the United States." Id., Ex. C.
The second section of the detainer form requests that the LEA take certain actions. See id., Exs. A, B, C. DHS can request the LEA to: (1) maintain custody of an individual for a period not to exceed forty-eight hours (excluding Saturdays, Sundays, and Federal holidays) to provide adequate time for DHS to assume custody of the individual pursuant to 8 CFR § 287.7; (2) sign and return a copy of the form; (3) notify DHS of the time of release at least thirty days prior to release or as far in advance as possible; (4) notify DHS in the event of the inmate's death or transfer to another institution; and (5) cancel the detainer. Id. Like the first section, ICE indicates what action it requests the LEA to take by checking a box next to the appropriate action(s). Id.
In December 2011, ICE modified the detainer form to request that the LEA provide a copy of the detainer form to the detained individual. Id., Exs. B, C. ICE also added a section entitled "Notice to the Detainee" and included a telephone number by which the individual could contact ICE if he or she believed the detainer to be improper. Id.
In November 2010, Plaintiff Maria Lopez pleaded guilty to the federal offense of "misprision of a felony." Am. Compl. ¶ 14. On January 25, 2011, she surrendered herself to the Federal Correctional Institution ("FCI") in Tallahassee, Florida, to serve a year-long sentence.Id. On February 1, 2011, ICE's Chicago Area of Responsibility ("AOR")2 issued an I-247 immigration detainer against Lopez to the FCI. Id., Ex. A.
In the first section of the detainer, DHS advised the FCI that an "[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States." Id., Ex. A. In the second section of the detainer, DHS requested that the FCI: (1) maintain custody of Lopez pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Lopez; (2) notify DHS at least thirty days prior to Lopez's release or as soon as possible; and (3) notify DHS in the event of Lopez's death or transfer to another institution. Id., Ex. A.
On March 21, 2011, Plaintiff Jose Moreno was arrested in Rockford, Illinois, and taken into state custody. Id. ¶ 13. The next day, he was indicted by the State of Illinois for two felonies: cocaine possession and threatening a public official. Defs.' Opp'n 4. That same day, ICE's Chicago AOR issued a Form I-247 immigration detainer against Moreno to the Winnebago County Sheriff. Am. Compl. ¶ 13, Ex. A.
The first section of the detainer advised the Sheriff that an "[i]nvestigation has been initiated to determine whether this person is subject to removal from the United States." Id, Ex. A. In the second section, DHS requested that the Sheriff: (1) maintain custody of Moreno pursuant to 8 CFR § 287.7 for a period not to exceed forty-eight hours to provide DHS time to assume custody of Moreno; (2) complete, sign, and return the form; (3) notify DHS at least thirtydays prior to Moreno's release or as soon as possible; and (4) notify DHS in the event of Moreno's death or transfer to another institution. Id., Ex. A.
In August 2011, after this case was filed, ICE lifted the detainer against Moreno. Defs.' Opp'n 5. On November 22, 2011, ICE lifted the detainer against Lopez. Id. 6.
In their amended motion for class certification, Plaintiffs request that the Court certify the following class:
All current and future persons against whom ICE has an active immigration detainer that was issued out of its Chicago Area of Responsibility (AOR) where ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA's detention authority has expired and where ICE has not served a Notice to Appear or other charging document, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal.
Pls.' Am. Mot. Class Cert. 5.
Moreno also seeks to represent a sub-class consisting of:
Plaintiffs seek class certification under Fed. R. Civ. P. 23, Rule 23(b)(1) and (2). To be certified, the proposed class first must meet each of the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). Once these elements are satisfied, Plaintiffs must also demonstrate that class certification is appropriate under Rule 23(b)(1) or Rule 23(b)(2).3
In so doing, Plaintiffs bear the burden of showing that a proposed class satisfies the requirements of Rule 23 by a preponderance of the evidence. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The Court must engage in a "rigorous analysis" to ensure that the requirements of Rule 23 have been satisfied. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 493 (7th Cir. 2012). A "rigorous analysis" helps protect "absent class members whose rights may be affected by the class certification." Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (internal citation omitted).
That said, the Court should not "turn the class certification proceedings into a dress rehearsal for the trial on the merits." Messner, 669 F.3d at 811. Of course, the "boundary between a class determination and the merits may not always be easily discernible." Retired Chi. Police Ass'n v. City of Chi., 7 F.3d 584, 599 (7th Cir. 1993) (internal citations and quotations omitted). Consequently, "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Id.; see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (). And, as the Seventh Circuit has held, "a district court must make whatever factual and legal inquiries are necessary to ensure that requirements for class certification are satisfied before deciding whether a class should be certified, even if those considerations...
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