Rombot v. Souza, Civil Action No. 17–11577–PBS

• Decision Date: 08 November 2017
• Docket Number: Civil Action No. 17–11577–PBS
• Citation: 296 F.Supp.3d 383
• Parties: Terry Helmuth ROMBOT, Petitioner, v. Steven J. SOUZA, Respondent.
• Court: U.S. District Court — District of Massachusetts

296 F.Supp.3d 383

Terry Helmuth ROMBOT, Petitioner,

v.Steven J. SOUZA, Respondent.

Civil Action No. 17–11577–PBS

United States District Court, D. Massachusetts.

Signed November 8, 2017

William A. Hahn, Hahn & Matkov, Boston, MA, for Petitioner.

MEMORANDUM

Patti B. Saris, Chief United States District Judge

INTRODUCTION

On October 30, 2017, Petitioner Terry Rombot, an Indonesian citizen who has lived in the United States for approximately sixteen years, moved to be released from Immigration and Customs Enforcement ("ICE") detention. See Docket No. 42. Rombot was in custody at the Bristol County House of Corrections. He based his challenge on violations of the Due Process Clause of the Fifth Amendment and ICE's promises, policies, and procedures.¹

After an evidentiary hearing on October 20, 2017, and a hearing on November 1, 2017, the Court allowed Rombot's Motion for Release and/or Bond Determination (Docket No. 42).² See Docket No. 49. During the November 1, 2017 hearing, the Court stated its reasons for release and added that a memorandum with further discussion of its reasons would be issued.

FACTUAL BACKGROUND

The factual background is taken from the allegations in Rombot's petition, documents he allegedly received from ICE, and the testimony of Supervisory Detention and Deportation Officer Timothy Stevens at the evidentiary hearing.

Rombot received his final order of removal in 2008. Then, in 2010, as part of "Operation Indonesian Surrender," Rombot voluntarily surrendered to ICE officials and was given an Order of Supervision.

Operation Indonesian Surrender was an ICE program involving a population of Indonesian Christians who say they feared religious persecution in Indonesia. The program grew out of cooperation between ICE and New Hampshire churches serving Indonesian Christians. It was branded by ICE as "a humanitarian effort" with a purpose of "bringing folks out of the shadows." Docket No. 1–2 at 1. For a few weeks in 2010, ICE set up a mobile command center in the parking lot of the Strafford County district courthouse in Dover, New Hampshire. Indonesian nationals living in New Hampshire under final orders of removal were invited to report to ICE during or soon after the mobile command center initiative. In exchange for their voluntary surrender, they would receive Orders of Supervision if they did not have a criminal history. Rombot's Order of Supervision required him to check in periodically with ICE and stated that his "failure to comply with the terms of [the] order may subject [him] to a fine, detention, or prosecution." Docket No. 1–6 at 1.

A few years later, the United States Attorney for New Hampshire prosecuted Rombot for failure to depart the United States, a violation of 8 U.S.C. § 1253(a)(1). Rombot spent approximately two months in jail, and on May 21, 2015, was sentenced to time served by Judge Paul J. Barbadoro, based on the Government's recommendation. See Docket No. 1–3 at 2:25–3:13, 8:5–14. That same month, Rombot was put on an airplane in New York City to leave the United States. Rombot was removed from the airplane, however, when ICE officials in Washington, D.C. overruled the local office and decided that Rombot should be allowed to stay in the United States.

On May 28, 2015, Rombot was released from custody and received a "Release Notification" from ICE. The Release Notification stated that "[a] violation of one of [sic] more of [the supervision] conditions, or of any local, state or federal law may result in [Rombot] being taken back into custody and any bond that [he] may have posted being forfeited." Docket No. 1–5 at 1. Importantly, the Release Notification also said that Rombot would "be given an opportunity to prepare for an orderly departure" when he had to leave the United States. Id. Rombot alleges that he at all times has complied with the requirements of his Release Notification and Order of Supervision. At the evidentiary hearing, Officer Stevens confirmed Rombot's full compliance.

Rombot reported to the Manchester, New Hampshire ICE office, as required by his Order of Supervision, on August 1, 2017. Without advance notice, he was detained, placed in shackles, and later given a "Notice of Revocation of Release." Field Office Director Christopher Cronen wrote that Rombot was being revoked because "ICE ha[d] determined that there [was] a significant likelihood of removal in the foreseeable future in [his] case." Docket No. 1–9 at 1. According to the Notice of Revocation of Release, dated August 1, 2017, Rombot was detained "pursuant to 8 CFR 241.13 [sic]" and would "promptly be afforded an informal interview at which [he would] be given the opportunity respond [sic] to the reasons for the revocation." Id. Rombot remained in ICE custody from August 1, 2017 to November 1, 2017. There is no evidence in the record that he was given an informal interview.

While he was in custody, Rombot also received a "Notice to Alien of File Custody Review" dated October 13, 2017. The notice read: "If ICE has not removed you from the United States within the removal period ... the ICE Deciding Official will review your case for consideration of release on an Order of Supervision." Docket No. 43–1 at 1. According to the notice, Rombot's custody status would be reviewed on or about October 30, 2017. See id. The notice further stated that Rombot could "submit any documentation [he] wish[ed] to be reviewed in support of [his] release, prior to" October 30, 2017. Id.

Prematurely, on October 24, 2017, Field Office Director Cronen issued a "Decision to Continue Detention."³ In the decision, ICE claimed that it was "based on a review of [Rombot's] file and/or [his] personal interview and consideration of any information [he] submitted to ICE reviewing officials." Docket No. 50 at 1. Field Office Director Cronen further wrote that after reviewing the facts in Rombot's case, "including [his] criminal arrests for obstructing a court order and failure to appear," Field Office Director Cronen decided that Rombot "would pose a safety risk to the community" if released from custody. Id. Nothing in the record supports the reasons in the decision, which are directly contradicted by Officer Stevens' testimony at the evidentiary hearing that Rombot had complied with his conditions of release.

DISCUSSION

I. Statutory Framework

After an alien is ordered removed, Congress mandated that, in general, ICE "shall remove the alien from the United States within a period of 90 days," 8 U.S.C. § 1231(a)(1)(A), which begins on "[t]he date the order of removal becomes administratively final," the date of a court's final disposition if the removal order is judicially reviewed, or "the date the alien is released from [non-immigration] detention," whichever comes latest, id. § 1231(a)(1)(B). The removal period may be extended "and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents ... or conspires or acts to prevent the alien's removal." Id. § 1231(a)(1)(C). If, however, the alien is not removed by ICE during the 90–day removal period, "pending removal, [he] shall be subject to supervision under regulations prescribed by the Attorney General." Id. § 1231(a)(3) (emphasis added); see also 8 C.F.R. § 241.5(a) (setting conditions to be included in an order of supervision).

In some cases, aliens "determined ... to be a risk to the community or unlikely to comply with the order of removal," inadmissible aliens, or removable aliens "may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." Id. § 1231(a)(6). ICE contends Rombot is "inadmissible" under 8 U.S.C. § 1182. The Supreme Court has determined that ICE cannot indefinitely detain these classes of aliens in the post-removal period. See Zadvydas v. Davis, 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Rather, the Court has set the "presumptively reasonable period of detention" under section 1231(a)(6) to be six months. Id. ICE has its own regulations for the process that must be afforded to aliens held under section 1231(a)(6). See 8 C.F.R. § 241.4.

Finally, the Supreme Court has made it clear that "the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491.

II. Rombot's Detention

ICE maintains that it had statutory authority to detain Rombot under either 8 U.S.C. § 1231(a)(1)(C) or 8 U.S.C. § 1231(a)(6). The government argues that the removal period has been extended beyond the typical 90 days, because Rombot "act[ed] to prevent" his removal by filing applications for administrative stays. See Rodriguez–Guardado v. Smith, No. 17-11300-RGS, 271 F.Supp.3d 331, 334–35, 2017 WL 4225626, at *2 (D. Mass. Sept. 22, 2017) (holding that "[s]eeking and securing a discretionary stay unquestionably prevents petitioner's removal" and citing favorably cases that "have found delays attributable to an alien's legal challenges to a removal order to extend the 90–day removal period"). However, the argument that the removal period was extended and detention was therefore justified under section 1231(a)(1)(C) is foreclosed by Rombot's Order of Supervision, where ICE made the decision not to deport him before the removal period expired: "Because [ICE] has not effected your deportation or removal during the period prescribed by law, it is ordered that you be placed under supervision ...." Docket No. 1–6 at 1. Based on the evidence in the record, including ICE's own statements, the Court concludes that 8 U.S.C. § 1231(a)(1)(C) is inapplicable.

ICE also argues that 8 U.S.C. § 1231(a)(6) grants it authority to detain Rombot beyond the removal period. While this is true, the agency also has the statutory authority to release aliens "subject to the terms of supervision in [ 8...