Moreno v. Napolitano

• Decision Date: 30 September 2016
• Docket Number: Case No. 11 C 5452
• Citation: 213 F.Supp.3d 999
• 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); David C. Palmatier, Unit Chief, Law Enforcement Support Center (LESC); Ricardo Wong, Chicago Field Office Director, in their official capacities, Defendants.
• Court: U.S. District Court — Northern District of Illinois

213 F.Supp.3d 999

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); David C. Palmatier, Unit Chief, Law Enforcement Support Center (LESC); Ricardo Wong, Chicago Field Office Director, in their official capacities, Defendants.

Case No. 11 C 5452

United States District Court, N.D. Illinois, Eastern Division.

Signed September 30, 2016

Raymond C. Perkins, Joanna Rubin Travalini, Lee Benjamin Muench, Linda T. Coberly, Winston & Strawn LLP, Claudia Valenzuela, Charles Roth, Mark M. Fleming, Chicago, IL, for Plaintiffs.

Colin Abbott Kisor, United States Navy, Office of the Judge Advocate General, Jacob A. Bashyrov, Katherine Elizabeth Goettel, Lana Lunskaya Vahab, William Charles Silvis, U.S. Department of Justice, Civil, Office of Imm. Lit., Washington, DC, Craig Arthur Oswald, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, United States District Judge

Congress has given the Immigration and Customs Enforcement Division (ICE) of the United States Department of Homeland Security (DHS) the authority to arrest and detain any individual whom ICE has probable cause to believe is a removable alien. As a purported exercise of this authority, ICE issues "immigration detainers" to local law enforcement agencies (LEAs). An immigration detainer is a request that the agency hold an inmate, whom ICE suspects of being a removable alien, for up to forty-eight hours after the inmate otherwise would be released, in order to give ICE the opportunity to take the alien into custody. Plaintiffs—a class of individuals who have been targeted by ICE detainers—challenge ICE's authority to issue these detainers on multiple constitutional and statutory grounds.

Currently before the Court are Defendants' motion to decertify the class and Plaintiffs' motion for summary judgment. As explained below, the Court concludes that the certified class continues to satisfy the requirements of Federal Rule of Civil Procedure 23 for the purposes of Plaintiffs' statutory claim that the detainer program, as it currently operates, exceeds the statutory authority Congress has granted to DHS by seeking to detain individuals without a warrant and without a determination by ICE that the individuals are "likely to escape" within the meaning of 8 U.S.C. § 1357(a)(2). The Court also concludes that Plaintiffs are entitled to summary judgment as to this claim. As a result, the Court denies Defendants' motion to decertify the class and grants Plaintiffs' motion for summary judgment.

I. Factual & Procedural Background

In 2011, Plaintiff Jose Jimenez Moreno, an American citizen, was in the custody of the Sheriff of Winnebago County, Illinois, when ICE issued an immigration detainer against him. The same year, Plaintiff Maria Jose Lopez, a lawful permanent resident, was serving a sentence at a federal correctional center in Tallahassee, Florida, when she also became the subject of an ICE immigration detainer. These detainers requested that the respective recipients hold Moreno and Lopez for up to forty-eight hours after they would otherwise be released in order to give ICE the opportunity to take custody of them.

Neither Moreno nor Lopez was in fact a removable alien. While still incarcerated for the non-immigration offenses, they filed this lawsuit on behalf of themselves and other similarly situated individuals, claiming that ICE's issuance of detainers violated the Fourth, Fifth, and Tenth Amendments to the United States Constitution and exceeded ICE's statutory authority.

When Moreno and Lopez filed suit, the immigration detainers issued against them were still in place, though the detainers had not yet extended their incarceration. Soon after they filed, however, ICE rescinded their detainers and moved to dismiss their complaint for lack of jurisdiction, arguing that Moreno and Lopez lacked standing and, alternatively, that their claims had been mooted by the rescission of their detainers.

On the question of standing, the Court explained that standing is assessed only with regard to the date the complaint was filed. Moreno v. Napolitano , No. 11 C 5452, 2012 WL 5995820, at *4–5 (N.D. Ill. Nov. 30, 2012). Moreno and Lopez, the Court concluded, had standing when they filed their complaint because they faced imminent detention pursuant to the detainers issued against them. Id. On the question of mootness, the Court explained that, although the detainers targeting Moreno and Lopez had been rescinded, the "inherently transitory" exception to mootness applied. Id. at *6–7. Defendants' motion to dismiss therefore was denied.

In another opinion, the Court denied Plaintiffs' motion for partial judgment on the pleadings, explaining that the factual record would need to be developed before Plaintiffs' claims could be decided. Moreno v. Napolitano , No. 11 C 5452, 2014 WL 4814776, at *1, *4 (N.D. Ill. Sept. 29, 2014). In the same opinion, the Court granted in part Defendants' cross-motion for partial judgment on the pleadings, dismissing Plaintiffs' Tenth Amendment claim. Id. at *1, *5. The Tenth Amendment claim had been premised on the idea that ICE unconstitutionally commandeered state officials by requiring them to detain suspected removable aliens, but Plaintiffs had since conceded that the immigration detainers were mere requests to local law enforcement rather than orders. Id. at *5.

In the most recent opinion in this case, the Court granted Plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23(b)(1) and (b)(2). Moreno v. Napolitano , No. 11 C 5452, 2014 WL 4911938, at *1 (N.D. Ill. Sept. 30, 2014). One of Defendants' arguments in opposition to certification was that the "commonality" and "typicality" requirements of Rule 23(a) could not be met because ICE's immigration detainer forms had changed since the original detainers targeting Moreno and Lopez had been issued. Id. at *8. The form used against Moreno and Lopez had stated only that an "investigation has been initiated" into their immigration status, resulting in the issuance of the detainer, while the new form stated that ICE "has reason to believe" that the target of the detainer is subject to removal. Id. at *9. But the Court rejected this argument because ICE witnesses testified that the actual process for issuing detainers had not changed. Id.

Another of Defendants' arguments in opposition to class certification was that the "adequacy" requirement of Rule 23(a)(4) was not satisfied because ICE had rescinded Moreno's and Lopez's detainers, meaning that their stake in the case was small compared to the interests of other class members. But the Court rejected this argument as well, explaining that the existence of a live controversy on the day Moreno and Lopez filed suit was enough to make them adequate class representatives. Id. at *10–11.

The Court then provided this definition of the certified class:

All current and future persons against whom Immigration and Customs Enforcement (ICE) has issued an immigration detainer of the Chicago Area of Responsibility where: (1) ICE has instructed the law enforcement agency (LEA) to continue to detain the individual after the LEA's authority has expired; (2) where ICE has not served a Notice to Appear or other charging documents, has not served a warrant of arrest for removal proceedings, and/or has not obtained an order of deportation or removal with respect to the individual; and (3) where the LEA cooperates with ICE in complying with detainers.

Id. at *12.

Since this class was certified, ICE has again created new immigration detainer forms. One of the new forms, DHS Form I-247D, is used to request detention of a subject for up to forty-eight hours, when the subject is considered to be a priority for removal because he or she is suspected of terrorism, has a prior felony conviction, or has three prior misdemeanor convictions. See Defs.' Ex. B, DHS Form I-247D. Another form, DHS Form I-245X, is used to request a detention of up to forty-eight hours, when the subject is a removal priority for some other reason, such as having committed a significant abuse of a visa program. See Defs.' Ex. C, DHS Form I-245X. A third, DHS Form I-247N, is used simply to request advance notification of the subject's release date. See Defs.' Ex. A, DHS Form I-247N.

Both of the new forms that request detention state that the issuing immigration officer has developed probable cause to believe that the targeted individual is a removable alien. Both forms also include check boxes for the issuing officer to indicate the basis for the probable cause determination. The choices are (1) the existence of a final order of removal, (2) the pendency of ongoing removal proceedings, (3) biometric confirmation that the subject is a person known to be removable, (4) statements made by the subject that indicate removability, and (5) "other reliable evidence" of removability. Defs.' Ex. B, DHS Form I-247D; Defs.' Ex. C, DHS Form I-245X. Additionally, the current forms state that they are not effective unless and until they are served on the subject, whereas the earlier version merely asked that the form be served on the subject. And the current forms request that the subject be detained up to forty-eight hours including weekends and holidays, whereas the previous versions excluded weekends and holidays from the detention calculation.

II. Analysis

A. Motion To Decertify Class

Defendants have moved to decertify Plaintiffs' class, arguing that the "commonality" requirement of Rule 23(a)(2) is no longer satisfied. Defs.' Mem. Supp. Decert. at 9–11. "Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury." Wal – Mart Stores, Inc. v. Dukes , 564 U.S. 338, 349–50, 131 S.Ct. 2541, 180 L.Ed.2d 374 (201...