Perez v. Decker
| Decision Date | 30 November 2020 |
| Docket Number | 18-cv-10683 (AJN) |
| Parties | Uriel Vazquez Perez, on his own behalf and on behalf of others similarly situated, Petitioner-Plaintiff, v. Thomas Decker, et al., Respondents-Defendants. |
| Court | U.S. District Court — Southern District of New York |
Petitioner-Plaintiff Uriel Vazquez Perez brings this class petition for habeas corpus relief and class complaint against Respondents-Defendants Thomas Decker, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, and others, alleging that ICE's practice of failing to provide prompt initial appearances before an Immigration Judge violates the Constitution, as well as the Administrative Procedure Act.1 Now before the Court is Vazquez Perez's unopposed motion to certify a class of all individuals who have been, or will be, arrested by ICE's New York Field Office and detained under Section 1226 of Title 8 of the United States Code for removal proceedings and who have not been provided an initial hearing before an Immigration Judge, as well as the parties' cross-motions for summary judgment. For the reasons set forth below, Vazquez Perez's motion for class certification isGRANTED, his motion for summary judgment is GRANTED in part and DENIED in part, and the Government's cross-motion for summary judgment is GRANTED in part and DENIED in part.
On November 15, 2018, Vasquez Perez filed a class petition for a writ of habeas corpus and class complaint for declaratory and injunctive relief. Dkt. No. 1. At the same time, he also filed a motion to certify a class of "[a]ll individuals who are, have been, or will be arrested by ICE's [New York Field Office] and detained under 8 U.S.C. § 1226 for removal proceedings before an immigration judge, and who have not been provided an initial hearing before an immigration judge." Dkt. Nos. 3-4.
On December 5, 2018, before the Government responded to either the class petition/complaint or the class certification motion, Vazquez Perez filed a motion for preliminary injunctive and declaratory relief. Dkt. No. 3. On September 30, 2019, the Court conditionally certified the putative class, see Dkt. No. 124 at 8, and denied the motion for preliminary injunctive and declaratory relief, concluding that 8 U.S.C. § 1252(f)(l) stripped it of jurisdiction to issue classwide injunctive relief, see id. at 9-17, and it could not grant preliminary declaratory relief because such relief does not exist, id. at 17-22. At the same time, the Court concluded that 8 U.S.C. § 1252(f)(1) does not strip it of jurisdiction to issue final declaratory relief on a classwide basis. Dkt. No. 124 at 17-19.
In the Court's September 30, 2019 Opinion and Order, the Court ordered the Government to comply with certain reporting requirements, including notifying the Court if any individuals have waited longer than 17 days between the filing of the notice to appear, the chargingdocument that initiates removal proceedings, and the initial hearing before an Immigration Judge and continuing to provide monthly updates on data regarding median wait times between arrest and scheduling of initial hearings. Id. at 23. The Court further ordered the parties to meet and confer and submit a proposal for the next procedural steps in this matter. See id.
The parties proposed submitting simultaneous supplemental briefing and requested that the Court convert their prior submissions on the motion for preliminary injunctive and declaratory relief, together with their supplemental briefing, into cross-motions for summary judgment and deem the motions fully submitted. See Dkt. No. 127. The Court adopted this request, see Dkt. No. 128, and on November 1, 2019, the parties filed their supplemental briefing. See Dkt. Nos. 133-135. Accordingly, the parties' cross-motions for summary judgment are now fully submitted.
The Court assumes familiarity with the pertinent facts of this case—which are undisputed unless otherwise noted—as set out in its September 30, 2019 Opinion and Order. See Dkt. No. 124. The Court revisits that factual background here as necessary and sets out further development of the record since the September 30 Opinion and Order.
The immigration laws authorize Immigration and Customs Enforcement to charge individuals as removable, arrest individuals subject to removal, and then detain them pending removal proceedings. See Demore v. Kim, 538 U.S. 510, 523-26 (2003). As relevant here, 8 U.S.C. § 1226 authorizes detention of any individual in removal proceedings and requires detention in some cases. See 8 U.S.C. §§ 1226(a), (c). Following arrest, ICE officers may release an individual detained pursuant to § 1226(a) if she "demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that [she] islikely to appear for any future proceeding." 8 C.F.R. § 236.1(c)(8). Determinations on removability and custody are made by ICE and recorded in the Notice to Appear.
Individuals who are arrested by ICE's New York Field Office and detained are placed in civil removal proceedings at the New York City Immigration Court at 201 Varick Street in Manhattan. Dkt. No. 59-1 ¶ 23; Dkt. No. 67 ¶ 16. The Immigration Court obtains jurisdiction over removal proceedings when an ICE officer files the NTA. 8 C.F.R. § 1003.14(a). While awaiting their initial appearance before the Immigration Judge, individuals are detained in criminal jails pursuant to a contract with ICE to house immigration detainees. Dkt. No. 59-1 ¶ 8.
The initial appearance, also known as the initial master calendar hearing, is the first substantive step in the removal proceedings. The initial master calendar hearing is typically an individual's first opportunity to appear before an Immigration Judge. In order to permit individuals to secure counsel before their initial master calendar hearing, 8 U.S.C. § 1229 provides that the initial master calendar hearing may not be scheduled earlier than 10 days after service of the notice to appear unless the individual requests in writing an earlier hearing date. See 8 U.S.C. § 1229(b)(1). The Government does not dispute that most detainees waive the 10-day waiting period this Section provides. See Dkt. No. 59-1 ¶ 7.
In addition to all of the procedural protections provided by Immigration Judges at the initial master calendar hearing, see Dkt. No. 124 at 3-4, these hearings are also typically the first opportunity for indigent individuals to seek pro bono legal representation, Dkt. No. 53-1 ¶ 10, and for the Immigration Judge to review ICE's custody determinations and possibly release eligible individuals on bond, Dkt. No. 53-3 ¶¶ 13-14; Dkt. No. 53-1 ¶¶ 20, 22; Dkt. No. 67 ¶ 15. Though, as discussed above, ICE makes an initial custody determination following arrest, Vazquez Perez presents uncontradicted evidence that, from 2016 until at least November 2018,ICE's New York Field Office operated under a "no bond" policy and issued bond in none of its cases. Dkt. No. 59-1 ¶ 14.
The parties agree that there have been significant delays between an individual's arrest and the initial master calendar hearing over the last few years. In 2014, the median wait time between arrest and initial master calendar hearing was 11 days, Dkt. No. 59-7 ¶ 5(a), but by 2017, the median wait time had increased to 42 days, id. ¶ 5(d). In April 2018, median wait times increased precipitously, and, as demonstrated in the table below, this increase accelerated in the spring and summer of 2018.
Dkt. No. 59-7 ¶ 5 (h)-(m). Vazquez Perez presents evidence that for initial master calendar hearings that took place between August and October 2018, wait times were over two months in 86% of cases and over three months in 38%. See id. ¶ 6. The Government attributes these delays to "a steadily increasing caseload over the past few years, a lack of resources to face the increased demands, and management and staffing challenges." Dkt. No. 71 at 14.
In August 2018, however, the Executive Office for Immigration Review, which oversees the Immigration Courts, began taking measures to address these ballooning wait times, including, among others, improving case tracking efforts, moving initial master calendarhearings to the mornings to allow for more time to complete them, and adding new courtrooms and judges. See generally Dkt. No. 71 at 15-21. It also put into place a 21-day policy, calling for all initial master calendar hearings to be held within 21 days of the Immigration Court's receipt of the NTA, see Dkt. No. 67 ¶ 34, which was reduced to a 17-day policy in early 2019, see id. ¶ 45-46; Dkt. No. 85-1 ¶ 7.
The Government offers evidence that, in response to these measures, wait times between filing of the NTA and initial master calendar hearing began trending down in October 2018 and decreased substantially from February 2019 until issuance of the Court's September 30, 2019 Opinion and Order.
Dkt. No. 130-1 ¶ 8. Nonetheless, between April and September 2019, 108 detained individuals received initial master calendar hearings more than 17 days after filing of the NTA. See Dkt. No. 130-1 ¶ 7. And these wait times do not reflect the time between arrest and filing of the NTA, which the Government's data, where available, indicates averaged...
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