R.I.L-R v. Johnson

Decision Date20 February 2015
Docket NumberCivil Action No. 15–11 JEB
Citation80 F.Supp.3d 164
PartiesR.I.L–R, et al., Plaintiffs, v. Jeh Charles Johnson, et al., Defendants.
CourtU.S. District Court — District of Columbia
MEMORANDUM OPINION

JAMES E. BOASBERG United States District Judge

The United States saw a surge in immigration in the summer of 2014 as people fled increased lawlessness in Honduras, Guatemala, and El Salvador. Plaintiffs (and other members of the class they seek to represent) are mothers and their minor children who escaped violence and persecution in these countries to seek asylum in the United States. After entering this country unlawfully and being apprehended, each was found to have a “credible fear” of persecution, meaning there is a significant possibility that she will ultimately be granted asylum here. Although, in the past, individuals in this position were generally released while their asylum claims were processed, Plaintiffs were not so lucky. Instead, for each family, Immigration and Customs Enforcement determined that interim detention was the appropriate course.

Chasing liberty, Plaintiffs turned to the courts. They filed suit on January 6, 2015, naming the Secretary of the Department of Homeland Security and two ICE officials as Defendants. The Complaint alleges that Plaintiffs' detention resulted from an unlawful policy that DHS adopted in June 2014 in response to the immigration spike. Pursuant to that policy, Plaintiffs claim, DHS is detaining Central American mothers and children with the aim of deterring potential future immigrants. According to Plaintiffs, such detention violates the Fifth Amendment to the United States Constitution, the Immigration and Nationality Act, the Administrative Procedure Act, and applicable DHS regulations.

They now seek a preliminary injunction to prevent DHS from applying this policy until a final determination has been reached on the merits of this action. Finding that the circumstances here merit that extraordinary form of relief, the Court will grant Plaintiffs' Motion.

I. Background
A. Statutory and Regulatory Framework

Unlawful presence in the United States does not itself constitute a federal crime, although it can trigger the civil remedy of removal. See Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 2505, 183 L.Ed.2d 351 (2012) ; Ortega Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir.2012) ; 8 U.S.C. §§ 1182(a)(6)(A)(I), 1227(a)(1)(B), (C). The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., sets forth the conditions under which a foreign national may be admitted to and remain in the United States and grants the Department of Homeland Security the discretion to initiate removal proceedings. See, e.g., id. §§ 1181 –1182, 1184, 1225, 1227 –1229, 1306, 1324 –25.

Under the INA, a foreign national apprehended shortly after entering the United States without valid documentation is initially subject to a streamlined removal process dubbed “expedited removal.” See id. § 1225(b)(1)(A)(i)-(iii) ; 69 Fed. Reg. 48,877 (Aug. 11, 2004). If, however, she can demonstrate a “credible fear” of persecution in her home country during the initial screening, see 8 U.S.C. § 1225(b)(1)(A) & (B) ; 8 C.F.R. § 208.30(d)-(g), she is transferred to “standard” removal proceedings pursuant to 8 U.S.C. § 1229a. Once reclassified, the foreign national is entitled to a full asylum hearing before an immigration court, and, if unsuccessful, she may file an administrative appeal with the Board of Immigration Appeals (BIA).See 8 C.F.R. § 208.30(f) ; 8 U.S.C. § 1225(b)(1)(B)(ii). She may also petition for review of any removal order entered against her in the appropriate court of appeals. See 8 U.S.C. § 1252(a) -(b).

This case revolves around what happens to these aliens between their initial screening and these subsequent proceedings. Detention authority over such individuals is governed by 8 U.S.C. § 1226(a), which instructs:

Pending a decision on whether the alien is to be removed from the United States[,] ... the Attorney General
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole....

Per the Homeland Security Act of 2002, the Secretary of DHS shares the Attorney General's authority under § 1226(a) to detain or release noncitizens during the pendency of removal proceedings. See Pub.L. No. 107–296, § 441, 116 Stat. 2135, 2192. By regulation, the Secretary's authority is delegated to individual officers within Immigration and Customs Enforcement, a component of DHS. See 8 C.F.R. § 1236.1. For each noncitizen who passes the threshold “credible-fear” screening, an ICE officer is tasked with making an initial custody determination. The officer “may, in [his] discretion, release an alien ... under the conditions at [8 U.S.C. § 1226(a)(2)(A) & (B) ]; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8).

If ICE denies release or sets bond that the noncitizen cannot pay, she remains in custody pending a final asylum determination. While the regulations do not provide for further review within DHS, the alien has the options of requesting a custody redetermination from an immigration judge within the Department of Justice and appealing an adverse redetermination decision to the Board of Immigration Appeals. See id. §§ 1003.19(a), 1236.1(d). DHS may also appeal the IJ's custody decision and may automatically stay the decision (and thus the individual's release) pending the appeal. See id. §§ 1003.19(f), 1003.19(i)(2).

B. Plaintiffs' Detention

The ten named Plaintiffs and other members of the class they seek to represent are mothers accompanied by minor children who fled severe violence and persecution in their Central American home countries. See Am. Compl., ¶ 1. In the fall of 2014, after crossing the border and entering the country without documentation, each family unit was apprehended by U.S. Customs and Border Protection (CBP). See id., ¶¶ 41, 58, 67, 75, 83. All crossed the border with the intent to seek asylum. See id., ¶ 27. None has a criminal history, and all have family members residing in the United States who stand ready to provide shelter and support through their immigration proceedings. See id., ¶¶ 62–63, 70–71, 78–79, 87–88. Although initially referred to expedited removal proceedings, each subsequently went on to establish a “credible fear” of persecution. Id., ¶¶ 42, 59, 68, 76, 84. That showing made, Plaintiffs were transferred to standard removal proceedings. Id.

It is here that their quarrel with Defendants begins. Each and every family was refused bond after an ICE custody hearing and was detained at the Karnes County Residential Facility in Texas. See Am. Compl., ¶¶ 60, 69, 77, 85; Pl. Mot at 10–11. Although all were subsequently released several weeks or months later as a result of IJ custody-redetermination hearings, see Def. Opp. & Mot., Exhs. A–C (IJ Custody Redetermination Hearings), ICE's initial denials form the crux of Plaintiffs' case.

In years past, say Plaintiffs, ICE did not generally detain families apprehended in the interior of the United States who were found to have a credible fear of persecution. Instead—as explained by experienced immigration practitioners—after an individualized assessment of their potential flight risk and danger to the community, the majority of such families was released on bond or their own recognizance. See, e.g., Pl. Mot., Exh. 1 (Declaration of Michelle Brané), ¶¶ 11–12; id., Exh. 4 (Declaration of Barbara Hines), ¶¶ 8–15. Plaintiffs claim that an abrupt about-face occurred in June 2014, when DHS adopted an unprecedented “No–Release Policy” in response to increased immigration from Central America. According to Plaintiffs, the No–Release Policy directs ICE officers to deny release to Central American mothers detained with their minor children in order to deter future immigration—that is, to send a message that such immigrants, coming en masse, are unwelcome. See Brané Decl., ¶¶ 12, 22–23; Hines Decl., ¶¶ 13–15. They claim that this policy led to ICE's denial of release in each of their cases.

On January 6, 2015, Plaintiffs brought a class-action suit in this Court, alleging, inter alia, that the No–Release Policy violates the Immigration and Nationality Act and the Due Process Clause of the Constitution. They further claim that the policy is contrary to law and arbitrary and capricious, and thus constitutes illegal agency action under the Administrative Procedure Act. Presently before the Court are Plaintiffs' Motions for a preliminary injunction barring the continued implementation of the No–Release Policy during the pendency of this suit, as well as for provisional class certification for purposes of the requested injunction. Defendants oppose both Motions and separately seek dismissal of the suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In keeping with the expedited nature of a preliminary-injunction proceeding, the parties filed briefs on an accelerated timetable, and the Court held a hearing on February 2, 2015. This Opinion now follows.

II. Legal Standard

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). The plaintiff “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 374. When moving for a preliminary injunction, the plaintiff “bear[s] the burdens of production and persuasion.” Qualls...

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