Torres v. U.S. Dep't of Homeland Sec.

• Decision Date: 24 October 2019
• Docket Number: Case No. EDCV 18-2604 JGB (SHKx)
• Citation: 411 F.Supp.3d 1036
• Parties: Ernesto TORRES, et al. v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.
• Court: U.S. District Court — Central District of California

411 F.Supp.3d 1036

Ernesto TORRES, et al.

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.

Case No. EDCV 18-2604 JGB (SHKx)

United States District Court, C.D. California.

Signed October 24, 2019

Annie Shi, Grace Chang, Jayashri Srikantiah, Jennifer L. Stark, Josh Walden, Lisa Weissman Ward, Stanford Law School, Stanford, CA, Christopher M. Assise, Pro Hac Vice, Theodore R. Scarborough, Jr., Pro Hac Vice, Sidley Austin LLP, Chicago, IL, Christopher Michael Griffin, Nicholas S. Willingham, Sean A. Commons, Sidley Austin LLP, Eva Lucia Bitran, Michael Bryan Kaufman, Zoe Nicole McKinney, ACLU Foundation of Southern California, Los Angeles, CA, for Ernesto Torres, et al.

Aaron Kollitz, Joanne I. Osinoff, Joseph Anton Darrow, AUSA - Office of US Attorney, Stacey Hsiang Chun Wang, Holland and Knight LLP, Alexander L. Linhardt, Robert J. Herrington, Greenberg Traurig LLP, David T. Van Pelt, Michael L. Gallion, Akerman LLP, Los Angeles, CA, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, John M. Donohue, Pro Hac Vice, Shannon L. Armstrong, Pro Hac Vice, Holland and Knight LLP, Portland, OR, for United States Department of Homeland Security, et al.

Proceedings: Order (1) DENYING Federal Defendants' Motion to Dismiss (Dkt. No. 79) and (2) GRANTING in Part and DENYING in Part GEO's Motion to Dismiss (Dkt. No. 80) (IN CHAMBERS)

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

Before the Court are a motion to dismiss by Defendants U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Kirstjen M. Nielsen, Ronald D. Vitiello, and David Marin, ("DHS's Motion," Dkt. No. 79), and a motion to dismiss by Defendant GEO Group, Inc. ("GEO"), ("GEO's Motion," Dkt. No. 80). The Court held a hearing on the Motions on October 21, 2019. After considering the oral argument and papers filed in support of, and in opposition to, the Motions, the Court DENIES DHS's Motion and GRANTS in part and DENIES in part GEO's Motion.

I. BACKGROUND

A. Procedural Background

This is a conditions of confinement case brought by immigrant detainees and legal organizations. On December 14, 2018 Plaintiffs Jason Nsinano, Desmond Tenghe, Ernesto Torres, American Immigration Lawyers Association ("AILA"), and Immigration Lawyers Association ("Imm Def") filed a putative class action complaint against Defendants. ("Complaint," Dkt. No. 1.) Plaintiffs filed a first amended complaint on February 28, 2019, which added Plaintiff Yakubu Raji. ("FAC," Dkt. No. 62.) Plaintiffs' FAC alleges six causes of action related to their detention at Immigration and Customs Enforcement ("ICE") contract detention facilities in the southern California region: (1) violation of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1229a(b)(4)(A)-(B), 1362 ; (2) violation of the Due Process Clause of Fifth Amendment of the U.S. Constitution ("procedural due process claim"); (3) violation of the Due Process Clause of the Fifth Amendment of the U.S. Constitution ("substantive due process claim"); (4) violation of the First Amendment of the U.S. Constitution, on behalf of AILA and Imm Def; (5) violation of the First Amendment of the U.S. Constitution, on behalf of individual Plaintiffs; and (6) violation of the Administrative Procedure Act ("APA"), as to Defendant ICE. Plaintiffs seek declaratory and injunctive relief, including that Defendants undertake measures to improve conditions of confinement. (FAC at 63-64.) Plaintiffs do not seek to overturn any decision in an immigration proceeding. (Id. )

DHS and GEO filed their Motions concurrently on May 31, 2019. (Dkt. Nos. 79, 80.) On July 8, 2019, the parties stipulated to dismiss Defendant Orange County Sheriff's Department ("OCSD"). (Dkt. No. 88.) On July 23, 2019, Plaintiffs voluntarily dismissed the claims of Yakubu Raji. (Dkt. No. 89.) Three days later, Plaintiffs filed an opposition to DHS's Motion, ("Opposition to DHS's Motion," Dkt. No. 90), and an opposition to GEO's Motion, ("Opposition to GEO's Motion," Dkt. No. 91). Defendants timely replied. ("DHS's Reply," Dkt. No. 96; "GEO's Reply," Dkt. No. 97.)

B. Factual Allegations

Plaintiffs allege as follows. There is an immigration detention facility in San Bernardino County, "Adelanto," that can house approximately 1,900 individuals. (Id. ¶¶ 85, 88-90.) Two OCSD jails in Orange County also hold immigrants. (Id. at ¶ 4.) DHS and ICE detain immigrants in removal proceedings under color of federal immigration law. The government has a contract with GEO, which operates Adelanto, and OCSD, which operates the Orange County jails. Ernesto Torres ("Torres"), Desmond Tenghe ("Tenghe"), and Jason Sinagwana Nsinano ("Nsinano"), are immigrants formerly or currently detained under color of immigration law at these ICE contract detention facilities. (FAC ¶¶ 18-56.) Organizational Plaintiffs AILA and Imm Def are legal services organizations whose members advise, represent, and advocate for detained immigrants. (Id. ¶¶ 73-75.)

Defendants control the conditions of Plaintiffs' confinement: they restrict access to incoming and outgoing telephone calls, in-person attorney visitation, and legal mail inside Adelanto. (Id. at ¶ 4.) ICE has promulgated Performance-Based National Detention Standards ("PBNDS"), which GEO is contractually obligated to follow, but in practice Adelanto fails to comply with these standards in numerous respects. (Id. ¶ 92.) Defendants limit the duration of calls, sometimes to less than ten minutes, (id. ¶ 4), prevent detained immigrants from making free legal calls (even if they are indigent), (id. ¶¶ 94-98), restrict the availability and hours during which immigrants in administrative segregation can make paid or collect calls, (id. ¶¶ 105-06), charge expensive rates, (id. ¶ 101), impose onerous requirements (such as the "positive acceptance requirement" that a live person answer the phone, preventing immigrants from leaving voicemail), (id. ¶ 103), prevent detained immigrants from receiving incoming calls and messages, (id. ¶¶ 107-10), deny detained immigrants confidentiality during their legal calls by monitoring and recording them, (id. ¶¶ 4, 111, 115-16), and fail to maintain phone connectivity and do not ensure phones are in good working order, (id. ¶¶ 116-19). For in-person legal visits, there are insufficient confidential visiting rooms, (id. at 120), and attorneys with appointments are at times forced to wait up to four-and-a-half hours to see their clients; those without appointments can wait even longer. (Id. ¶¶ 129-31.) Defendants frequently change or delay security clearances for interpreters, which hinders attorneys from speaking with clients for days or weeks. (Id. ¶ 132.) Legal mail is on occasion returned to sender though it is properly addressed, may arrive weeks late, and is at times opened, so it is not a reliable alternative method of communication. (Id. ¶¶ 133, 135). Nor is email a possible alternative, as the detainees do not have access to the Internet. (Id. ¶¶ 6, 134.)

The communication failures tolerated by Defendants have the effect of disrupting Immigrant Plaintiffs' representation—with lasting consequences not only for bond and removal proceedings, (id. ¶¶ 152-56), but also for legal matters outside immigration court. Immigrants detained at Adelanto may have pending habeas petitions, custody matters, criminal appeals, civil rights actions, family-court actions, and petitions for benefits, among other legal matters. (See, e.g., id. ¶¶ 165-66.) For unrepresented immigrants, contact with the outside world is even more critical: they must rely on the limited access Defendants provide to find representation and, when that fails, contact family members and friends to gather evidence in support of their cases (both in immigration court and in ancillary proceedings). (See id. ¶¶ 143-51, 157-64.)

Defendants' policies and procedures are so needlessly restrictive as to be punitive. Conditions at Adelanto—including for attorney visitation rooms and phone bays—are virtually indistinguishable from those imposed on pretrial detainees and convicted prisoners. (See id. ¶¶ 167-70.) ICE's 2011 PBNDS provide a less restrictive model that Defendants are contractually bound to follow, but in practice violate. (See id. ¶¶ 92, 96, 97, 101, 108, 120, 136, 170.) ICE knows of the violations of the PBNDS at Adelanto as well as two other contract facilities operated by the OCSD. (Id. )

II. LEGAL STANDARD

Defendant moves to dismiss the FAC pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction, without which, a federal district court cannot adjudicate the case before it. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Sierra v. Dep't. of Family and Children Servs., 2016 WL 3751954, at *3 (C.D. Cal. Feb. 26, 2016) (quoting Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ). Thus, a jurisdictional challenge can be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the moving party asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When evaluating a facial attack, the court must accept the factual allegations in the plaintiff's complaint as true. Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1189 (N.D. Cal. 2009).

"By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual challenge, the court "need...