Onosamba-Ohindo v. Barr, 1:20-CV-00290 EAW

Decision Date02 September 2020
Docket Number1:20-CV-00290 EAW
Parties Junior ONOSAMBA-OHINDO, on behalf of himself and all others similarly situated, and Antonio Lopez Agustin, on behalf of himself and all others similarly situated, Petitioners/Plaintiffs, v. William BARR, in his official capacity as Attorney General of the Department of Justice, et al., Respondents/Defendants.
CourtU.S. District Court — Western District of New York

Megan Elaine Sallomi, Amy Louise Belsher, Christopher T. Dunn, Victoria Marie Roeck, New York Civil Liberties Union Foundation, New York, NY, Phil Telfeyan, Equal Justice Under Law, Washington, DC, for Petitioners/Plaintiffs.

David M. Coriell, U.S. Attorney's Office, Buffalo, NY, United States Attorney's Office (e-service), Western District of New York, for Respondents/Defendants.


ELIZABETH A. WOLFORD, United States District Judge


Petitioners/plaintiffs Junior Onosamba-Ohindo ("Class Petitioner") and Antonio Lopez Agustin ("Subclass Petitioner") (collectively "Petitioners") have filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and complaint for declaratory and injunctive relief, purportedly on behalf of themselves and all other persons similarly situated. (Dkt. 1 ("Petition")). At the time the Petition was filed, Petitioners were both civil immigration detainees held under 8 U.S.C. § 1226(a) pending their removal proceedings. Petitioners seek: class certification; a declaratory judgment that the "actions, practices, policies, and/or omissions" of defendants/respondents William Barr, the United States Department of Justice ("DOJ"), James McHenry, the Executive Office for Immigration Review ("EOIR"), Matthew Albence, Chad F. Wolf, and Jeffrey Searls (collectively "Respondents") violate the Immigration and Nationality Act ("INA") and its implementing regulations, the Administrative Procedure Act ("APA"), and the Fifth Amendment to the U.S. Constitution; a declaratory judgment that each class member is entitled to a custody hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detained individual is a danger to others or a flight risk; and an order stating that each class member must be released unless provided with such a custody hearing. (Id. at 18-19).

Presently pending before the Court are Petitionersmotion for class certification (Dkt. 2), Petitionersmotion for a preliminary injunction (Dkt. 15), and Respondentsmotion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 22). For the reasons that follow, the Court grants in part and denies in part Respondentsmotion to dismiss; grants in part, denies in part, and reserves decision in part on Petitionersmotion for class certification; and grants in part and denies in part Petitionersmotion for a preliminary injunction.

I. Factual Background
A. Detention Hearings Pursuant to 8 U.S.C. § 1226(a)

The federal government has authority under the INA to detain people during immigration proceedings that may result in their removal. See generally 8 U.S.C. § 1226. The INA requires that certain immigration detainees—namely, people who were present in the United States before their arrest, are currently in removal proceedings, and lack certain criminal convictions that would otherwise subject them to mandatory detention—receive an initial determination from United States Immigration and Customs Enforcement ("ICE") regarding whether they may be released while their removal cases proceed. See id. If ICE does not release an individual, that person may ask an immigration judge ("IJ") to review ICE's custody determination in a bond hearing. See id. § 1226(a) ; 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1). IJs are employees of DOJ that, among other things, decide whether an alien is removable from the United States. 8 U.S.C. §§ 1101(18), 1229a(c)(1)(A). They are attorneys appointed by the Attorney General and "act as the Attorney General's delegates in the cases that come before them." 8 C.F.R. § 1003.10(a).

The Board of Immigration Appeals ("BIA") is an administrative appellate body within EOIR that reviews the decisions of IJs. See 8 C.F.R. § 1003.1(a)(1). Members of the BIA are also attorneys appointed by the Attorney General who "act as the Attorney General's delegates in the cases that come before them." Id. Current BIA decisional precedent holds that during a bond hearing, the burden is on the detainee "to show to the satisfaction of the [IJ] that he or she merits release on bond," and that an IJ "must consider whether an alien who seeks a change in custody status is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk." In re Guerra , 24 I. & N. Dec. 37, 40 (BIA 2006).

The Buffalo, New York area has two immigration courts. (Dkt. 1 at ¶ 19). The Batavia Immigration Court is located inside the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York, and hears mostly cases by detained individuals. (Id. ). The Buffalo Immigration Court is located in Buffalo, New York, and hears mostly cases by non-detained individuals, although Buffalo IJs also hear cases by detained individuals primarily via video feed. (Id. ). Between approximately March 2019 and December 2019, the Batavia and Buffalo Immigration Courts also heard custody and removal proceedings for about 1,000 people detained at the Richwood Correctional Center ("RCC") in Monroe, Louisiana. (Id. at ¶ 21). Typically during these proceedings, the detainee would appear via video from the RCC while the IJ and attorneys would appear in person at the BFDF courtroom. (Id. ).

At the time the Petition was filed, Class Petitioner was arrested by ICE and detained under 8 U.S.C. § 1226(a) at the BFDF. (Dkt. 1 at ¶ 41). On February 10, 2020, Class Petitioner appeared before IJ Susan Aikman for a custody hearing. (Id. at ¶ 42). At the hearing, Class Petitioner presented evidence that he was homeless and living in a refugee shelter. (Id. at ¶ 43). He asked the court to consider releasing him with conditions other than a money bond, suggesting either an ankle monitor or regular in-person ICE check-ins, or alternatively with the minimum bond allowed under the statute, $1,500. (Id. ); see 8 U.S.C. § 1226(a)(2)(A). The government did not file any evidence at his custody hearing and conceded Class Petitioner had no criminal history. (Dkt. 1 at ¶ 44). The IJ stated that she could not consider those alternatives to a money bond and set bond at $8,000. (Id. at ¶ 45). Petitioners contend the IJ set an $8,000 bond in part because she had placed the burden on Class Petitioner to prove that he was not a flight risk and was not a danger to others, rather than imposing that burden on the government. (Id. at ¶ 46).

At the time the Petition was filed, Class Petitioner remained detained because he could not afford the $8,000 bond. (Id. at ¶ 47). Petitioners allege that during Class Petitioner's detention, he suffered from chest pains, back pains, and migraines without adequate medical treatment, and that separation from his wife and community also caused him "severe hardship." (Id. at ¶ 48). Additionally, Class Petitioner's detention severely inhibited his ability to gather evidence for his underlying application for immigration relief and to assist his attorney in assembling his materials, a difficulty compounded by the fact that he speaks little English. (Id. at ¶ 49). On March 16, 2020, Class Petitioner was released from immigration custody after the Brooklyn Bail Fund posted his bond. (Dkt. 15-10 at ¶¶ 2-4). Class Petitioner presently lives with his wife in Buffalo, New York. (Id. at ¶ 5).

B. The "No Bond" Policy

Petitioners further allege that two IJs in this District—Philip Montante ("IJ Montante") and Mary Baumgarten ("IJ Baumgarten")—have adopted a policy of "denying bond in almost every case and very rarely altering ICE initial custody determinations (with respect to either the grant of bond or the amount of bond)." (Dkt. 1 at ¶ 27). According to Petitioners, these two IJs have "foregone individualized review in favor of effectively rubber-stamping ICE's initial custody determination." (Id. ). In support of this claim, Petitioners note that these two IJs "have denied release in 95% of the cases before them." (Id. at ¶ 25). Moreover, of the 204 IJs across the country who decided 50 or more cases in this same period, "[IJs] Montante and Baumgarten have the third and fourth lowest grant[ ] rate, respectively." (Id. ). In contrast, the five other IJs who decided cases at Batavia and Buffalo during this same period granted bond 51.3%, 45.7%, 40.9%, 28.1%, and 18% of the time. (Id. at ¶ 26). Petitioners contend that because IJs Montante and Baumgarten deny bond in almost every case and very rarely alter initial custody determinations, they have "abdicat[ed] [their] responsibility to serve as neutral adjudicators in custody determinations." (Id. at ¶ 27).

Subclass Petitioner is a 36-year-old man who came to the United States in 1999. (Id. at ¶ 50). He has lived in the United States for over twenty years and has an eight-year-old daughter who is a citizen of the United States. (Id. ). On August 7, 2019, ICE arrested Subclass Petitioner after a raid at his workplace and detained him at the RCC. (Id. at ¶ 51). Subclass Petitioner has several traffic infractions and one misdemeanor conviction for possessing false identification from 2005 but has no violent or dangerous criminal history. (Id. ). ICE made the initial custody determination to detain Subclass Petitioner without bond. (Id. ).

Subclass Petitioner found an attorney working in Washington, D.C., willing to represent him pro bono at his custody hearing before IJ Baumgarten. (Id. at ¶¶ 53-54). However, IJ Baumgarten would not allow his attorney to appear...

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