Jimenez Moreno et al v. Napolitano et al

Filing 1

COMPLAINT filed by Jose Jimenez Moreno, Maria Jose Lopez; Filing fee $ 350, receipt number 0752-6274187. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Valenzuela Rivas, Claudia)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE JIMENEZ MORENO AND MARIA JOSE
LOPEZ,

)
)
)
)
on behalf of themselves and all others
similarly situated,
)
)
)
Plaintiffs / Petitioners
)
)
v.
)
)
JANET NAPOLITANO, SECRETARY OF THE
DEPARTMENT OF HOMELAND SECURITY (DHS); )
JOHN MORTON, DIRECTOR OF U.S.
)
IMMIGRATION AND CUSTOMS ENFORCEMENT )
(ICE) AND ITS OFFICE OF ENFORCEMENT AND )
REMOVAL OPERATIONS (ERO); DAVID C.
)
PALMATIER, UNIT CHIEF, ICE/ERO LAW
)
ENFORCEMENT SUPPORT CENTER (LESC);
)
RICARDO WONG, ICE/ERO DIRECTOR,
)
CHICAGO FIELD OFFICE,
)
)
in their official capacities,
)
)
Defendants / Respondents.
)

CASE NO:

COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF AND
PETITION FOR WRIT OF HABEAS
CORPUS

STATEMENT OF THE CASE
1.

This complaint presents a challenge to the U.S. Immigration and Customs

Enforcement’s (ICE’s) assertion of general authority to instruct federal, state, and local
law enforcement agencies (LEAs) to continue to detain individuals in the LEAs’ jails,
after no other basis for custody exists, in order for ICE to investigate their immigration
status and possibly assume direct physical custody. ICE’s statutory authority to issue
detainers, without an arrest warrant, is limited. 8 U.S.C. § 1357(d); 8 U.S.C. § 1226(c); 8
U.S.C. 1357(a). As set forth below, ICE’s exercise of detainer authority, however,
regularly exceeds its statutory authority. In addition, ICE’s conscription of state and

local LEAs to detain individuals for civil immigration purposes violates separation of
powers limits under the Tenth Amendment. Finally, the extended detention, unsupported
by probable cause, that ICE’s detainers cause plaintiffs and those similarly situated to
them violates their rights under the Fourth and Fifth Amendments and/or entitle them to
habeas relief.
2.

A detainer lodged by ICE instructs an LEA to detain an individual after

the period for the agency’s lawful custody over the individual has expired while ICE
assesses whether the individual is subject to removal proceedings and whether it will
assume direct, physical custody.
3.

The named plaintiffs in this case, Jose Jimenez Moreno and Maria Jose

Lopez (hereinafter “Plaintiffs/Petitioners”), are individuals being held by LEAs, against
whom ICE has placed immigration detainers, without lawful authority or any legal basis
to do so. The Defendants in this case are federal officials responsible for ICE’s issuance
of detainers, named because their inclusion is potentially required to effectuate the forms
of relief this complaint requests.
4.

As to each Plaintiff/Petitioner, ICE has justified the detainer it has placed

on them based solely on its initiation of an investigation to determine whether they are
subject to removal from the United States.

ICE has not accompanied any of the

Plaintiffs/Petitioners’ detainers with an administrative arrest warrant, a Notice to Appear
or other charging document, or a final removal order. ICE does not require notice of the
immigration detainer to Plaintiffs/Petitioners.

Moreover, ICE has not provided the

Plaintiffs/Petitioners with a means to challenge the immigration detainers lodged against
them.

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5.

Plaintiffs/Petitioners seek on their behalf and similarly situated

individuals, who have immigration detainers lodged against them that were issued from
ICE’s Chicago Area of Responsibility (AOR) including its sub-offices, declaratory and
injunctive relief under the Administrative Procedures Act, 5 U.S.C. §706(a), under the
Fourth, Fifth and Tenth Amendments for the ongoing violation of their rights, pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) and Bond v. United States,
131 S.Ct. 2355 (June 16, 2011), or, in the alternative, habeas corpus relief.

JURISDICTION AND VENUE
6.

This Court has subject matter jurisdiction of this action pursuant to 28

U.S.C. § 1331 because it arises under the Constitution and laws of the United States.
7.

This Court has authority to grant declaratory relief pursuant to 28 U.S.C.

§§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.
8.

This Court has authority to grant injunctive relief in this action pursuant to

5 U.S.C. § 702, and Rule 65 of the Federal Rules of Civil Procedure.
9.

Alternatively, this Court has subject matter jurisdiction of this action

pursuant to 28 U.S.C. § 2241, as the issuance of a detainer requiring or requesting
detention places the Plaintiffs/Petitioners in a form of custody.
10.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2)

because a substantial part of the events and omissions giving rise to Plaintiffs/Petitioners’
claims occurred, and continue to occur, in this District.
11.

Venue is proper in this judicial district because the principal custodian of

the Plaintiffs/Petitioners (i.e., the individual under whose authority the detainer was

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PARTIES
12.

Plaintiffs/Petitioners are individuals against whom federal immigration

officials have issued immigration detainers (Form I-247). The sole stated basis of their
detainers is that ICE has initiated an investigation into their removability from the United
States, requiring an LEA to maintain custody of the Plaintiffs/Petitioners for up to 48
hours, excluding weekends and federal holidays, after their LEA authority expires, so that
ICE can assume physical custody. ICE did not require that Plaintiffs/Petitioners be given
notice of the immigration detainers nor has it provided a means by which to challenge the
lawfulness of the detainers. Plaintiffs/Petitioners immigration detainers were issued from
the ICE Chicago AOR.
13.

Plaintiff/Petitioner Jose Jimenez Moreno is a 34-year old United States

citizen who is being detained at the Winnebago County Jail in Illinois with an ICE I-247
immigration detainer lodged against him. Mr. Jimenez was arrested on March 21, 2011
in Rockford, Illinois. Without ever interviewing or speaking to him, ICE issued an
immigration detainer against Mr. Jimenez on March 22, 2011. To date, ICE has never
had contact with Mr. Jimenez. Because of his detainer, at the end of his term of lawful
custody, Mr. Jiminez is unlawfully subject to being held an additional 48 hours or more
in the custody of the Winnebago County Jail when, but for the detainer, he would
otherwise be released.
14.

Plaintiff/Petitioner Maria Jose Lopez is a 29-year old Legal Permanent

Resident who is being detained at the Federal Correctional Institution in Tallahassee,

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15.

Defendant Janet Napolitano is the Secretary for the Department of

Homeland Security (DHS), which houses the office of Immigration and Customs
Enforcement (ICE) and ICE’s division of Enforcement and Removal Operations (ERO),
the entities which issue the I-247 immigration detainers to federal, state and local law
enforcement.

Secretary Napolitano is ultimately responsible for how immigration

regulations are applied and the approval of the use of the standard I-247 detainer form
under which authority the Plaintiffs/Petitioners are detained.
16.

Defendant John Morton is the Director of Immigration and Customs

Enforcement for DHS. As part of Director Morton’s responsibilities, he establishes
immigration detainer policy for ICE and its subdivisions, including the application of the

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17.

Defendant David C. Palmatier, based on information and belief, is the Unit

Chief for ICE/ERO’s Law Enforcement Support Center (LESC) located in Vermont. In
his official capacity, Chief Palmatier oversees the issuance of thousands of immigration
detainers out of the LESC pursuant to law enforcement inquiries from throughout the
United States. Based on information and belief, LESC is listed as the ICE custodian on
detainers issued from the LESC and is listed as emergency custodian for many detainers
issued from ICE/ERO Field Offices, including Chicago AOR.
18.

Defendant Ricardo Wong is the Field Office Director (FOD) of the

ICE/ERO Chicago AOR Field Office, which has responsibility for Illinois, Indiana,
Wisconsin, Missouri, Kentucky, and Kansas. In his official capacity, FOD Wong has
ultimate responsibility for all immigration detainers issued out of the Chicago AOR,
including its sub-offices and the ICE Detention Enforcement and Processing Offender by
Remote Technology (DEPORT) center. Based on information and belief, the Chicago
Field Office is listed as the principal ICE custodian on detainers issued out of its area of
responsibility.

FACTUAL ALLEGATIONS
19.

Pursuant to 8 U.S.C. § 1103(a), DHS, through its division of ICE, has the

authority to issue immigration detainers in accordance with the intent and requirements of
the Immigration and Nationality Act (INA).
20.

Plaintiffs/Petitioners were all stopped or arrested by LEAs. Based on

information and belief, the LEAs had communications with ICE and then ICE issued

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[f]ederal regulations (8 CFR 287.7) request that you [LEA] detain the alien for a
period not to exceed 48 hours (excluding Saturdays, Sundays, and Federal
holidays) to provide adequate time for ICE to assume custody of the alien. You
may notify ICE by calling [local ICE/ERO Field Office telephone number]
during business hours or [typically ICE Law Enforcement Support Center
telephone number] after hours in an emergency.

21.

None of the Plaintiffs/Petitioners’ I-247 immigration detainers were issued

pursuant to a Notice to Appear (NTA) or other charging document, warrant of arrest in
removal proceedings, or a deportation order.
22.

The I-247 detainer form does not require notice of the immigration

detainers to the Plaintiffs/Petitioners.

Based on information and belief, ICE never

required the LEAs to provide the Plaintiffs/Petitioners with notice of the detainers lodged
against them nor does ICE have a written policy or procedure requiring that the
Plaintiffs/Petitioners and similarly situated individuals be provided notice of immigration
detainers lodged against them.
23.

ICE does not provide an administrative procedure for challenging the

issuance of a detainer. Likewise, the Board of Immigration Appeals (BIA) has ruled that
it does not have jurisdiction to consider challenges to detainers because it has found that
individuals held on detainers are not in federal immigration custody. Matter of Sanchez,
20 I. & N. Dec. 223, 225 (BIA 1990).

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24.

The I-247 detainer form states that ICE “requests” 1 that the LEA detain

the individual for an additional 48 hours, excluding weekends and holidays, so ICE can
assume direct, physical custody of the individual. However, the regulation cited on the I247 detainer form mandates that the LEAs detain the individual on ICE’s behalf. The
regulation states: “such [criminal justice] agency shall maintain custody of the alien for a
period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to
permit assumption of custody by [ICE].” 8 C.F.R. § 287.7(d)(emphasis added).
CLASS ACTION ALLEGATIONS
25.

Pursuant

to

Fed.

R.

Civ.

P.

23(b)(1),

(b)(2)

and/or

(c)(4),

Plaintiffs/Petitioners, Jose Jimenez Moreno and Maria Jose Lopez, seek to represent a
class consisting of:
All current and future persons against whom ICE has issued an immigration
detainer out of the Chicago AOR where ICE has instructed the law enforcement
agency (LEA) to continue to detain the individual after the LEA’s authority has
expired and where ICE has indicated that the basis for the further detention is that
ICE has initiated an investigation into the persons’ removability, but not including
any noncitizen subject to mandatory detention under 8 U.S.C. § 1226(c).
26.

In addition, Plaintiff/Petitioner, Jose Jimenez Moreno, seeks to represent a

sub-class, which consists of the persons described in paragraph 25, who have had
detainers lodged against them while they are in state or local LEA custody where ICE has
instructed their further detention pursuant to 8 C.F.R. § 287.7. The sub-class alleges that
this violates their rights under the Tenth Amendment to the U.S. Constitution.
27.

The Plaintiffs/Petitioners’ class seeks declaratory and injunctive relief to

eliminate or remedy Defendants’ application of immigration detainer regulations,

1

From 1997 to August 2010, the I-247 detainer form stated that it was required by 8 CFR 287.7 that the
LEA detain the individual for an additional 48 hours in order for ICE to assume physical custody of the
individual. See Ex. B. (example of prior detainer form).

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policies, practices, acts, and omissions that are depriving Plaintiffs/Petitioners of their
liberty in violation of their rights.
28.

The proposed ICE Detainer Class and Sub-Class are very numerous. In

FY2009, at least 223,297 individuals detained by ICE (approximately 60% of ICE’s
FY2009 detention population) were first stopped, arrested, or criminally convicted by
LEAs. See ICE, Dr. Dora Schriro, Special Advisor to Secretary Napolitano on ICE/DRO,
“Immigration Detention Overview and Recommendations,” pp. 11-12 (Oct. 6, 2009).
Based on data obtained through a FOIA request, Plaintiffs/Petitioners believe that ICE
issued 270,988 immigration detainers in FY2009 and 201,778 detainers through the first
eleven months of FY2010.
29.

Joinder of all class members is also impracticable.

Because ICE

continuously lodges immigration detainers against individuals and assumes physical
custody of those held on immigration detainers, the membership of the class changes
constantly.
30.

All individuals who would fall within the class definition have equally had

ICE detainer regulations, policies, practices, acts and omissions applied against them
causing unlawful deprivation of liberty in violation of their rights. There are questions of
law or fact common to all class and sub-class members, including but not limited to:


Whether Defendants have exceeded their constitutional and/or
statutory authority (APA 5 U.S.C. § 706(2)) in placing detainers on
class members, including whether promulgation of 8 C.F.R. §
236.1(a) and 8 C.F.R. § 287.7 exceed Defendants’ statutory
authority;



Whether Defendants’ issuance of an immigration detainer
instructing further detention based on the initiation of an
investigation to determine whether the class member is removable
violates the Fourth Amendment;

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



Whether Defendants’ issuance of an immigration detainer without
providing or requiring notice to class members violates the Fifth
Amendment;



Whether Defendants’ issuance of an immigration detainer without
providing class members a means of challenging detainers violates
the Fifth Amendment; and



31.

Whether Defendants’ issuance of an immigration detainer without
a prior or concurrent service of a Notice to Appear or other
charging document, an administrative arrest warrant, an order of
deportation, or compliance with 8 U.S.C. § 1357(a)(2) violates the
Fourth Amendment;

Whether Defendants’ issuance of immigration detainers
compelling state and local LEAs to detain sub-class members,
pursuant to 8 C.F.R. § 287.7(d) and in furtherance of a federal
regulatory program, violates the Tenth Amendment to the U.S.
Constitution.

Given the commonality of the questions shared by all class members,

prosecuting separate claims as to individual class members would establish incompatible
standards of conduct for the Defendants and the adjudications as to individual class
members’ claims would be dispositive of the interests of other class members and thus
would substantially impair their ability to protect their interests.
32.

Defendants have acted and intend to act in a manner adverse to the rights

of the proposed class, making final injunctive and declaratory relief appropriate with
respect to the class as a whole.
33.

Plaintiffs/Petitioners and the class and sub-class they seek to represent

have been directly injured by the Defendants’ statutory and constitutional violations in
the application of detainer regulations, policies, practices, acts and omissions and are at
risk of future harm from continuation of these regulations, policies, practices, acts and
omissions.

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34.

Plaintiffs/Petitioners will fairly and adequately represent the interests of

ICE Detainer Class and Sub-Class. Plaintiffs/Petitioners legal claims are typical to all
members of the proposed ICE Detainer Class and Sub-Class. Plaintiffs/Petitioners have
no interests separate from those of the ICE Detainer Class and Sub-Class, and seek no
relief other than the relief sought on behalf of the class.
35.

Plaintiffs/Petitioners’ counsel are experienced in class action, civil rights,

and immigrants’ rights litigation.

Plaintiffs/Petitioners’ counsel will fairly and

adequately represent the interests of ICE Detainer Class and Sub-Class.
FIRST CLAIM FOR RELIEF
(Violation of 5 U.S.C. §§ 706(2)(A)—(D))
36.

Plaintiffs/Petitioners reallege and incorporate by reference each and every

allegation contained in paragraphs 1 through 35.
37.

Defendants’ failure to restrict its issuance of detainers to its authority

under the INA causes Plaintiffs/Petitioners significant prejudice by depriving them of
their liberty.
38.

Defendants’ failure to issue detainers in accordance with due process

protections required by the relevant provisions of the INA (8 U.S.C. § 1226(a), 8 U.S.C.
§ 1357(a)(2) and 8 U.S.C. § 1357(d)) causes Plaintiffs/Petitioners significant pain and
suffering by depriving them of their liberty.
39.

Defendants’ application of the immigration detainer regulations and

issuance of detainers against the Plaintiffs/Petitioners exceeds the Defendants’
constitutional and statutory authority in violation of 5 U.S.C. §§ 706(2)(A)—(D).
40.

As a proximate result of Defendants’ statutory and constitutional

violations, Plaintiffs/Petitioners are suffering and will continue to suffer a significant
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SECOND CLAIM FOR RELIEF
(Violation of the Fourth Amendment to the U.S. Constitution)
41.

Plaintiffs/Petitioners reallege and incorporate by reference each and every

allegation contained in paragraphs 1 through 40.
42.

Defendants’ issuance of immigration detainers based solely on the

initiation of an investigation into the Plaintiffs/Petitioners’ removability from the United
States causes the Plaintiffs/Petitioners prejudice by unreasonably taking away, limiting,
and otherwise impacting their liberty without probable cause in violation of the Fourth
Amendment.
43.

Defendants’ warrantless arrest of Plaintiffs/Petitioners through the

issuance of detainers without providing a prompt hearing to determine whether
Defendants have probable cause unreasonably deprives them of liberty without probable
cause in violation of the Fourth Amendment.
44.

Defendants’ detainer regulations, policies, practices, acts and omissions

cause unreasonable deprivation of Plaintiffs/Petitioners’ liberty in violation of the Fourth
Amendment to the United States Constitution.
45.

As a proximate result of Defendants’ unconstitutional detainer regulations,

policies, practices, acts, and omissions, Plaintiffs/Petitioners are suffering and will
continue to suffer an unreasonable deprivation of their liberty. Plaintiffs/Petitioners have
no plain, adequate or complete remedy at law to address the wrongs described herein.

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THIRD CLAIM FOR RELIEF
(Violation of the Fifth Amendment to the U.S. Constitution)
46.

Plaintiffs/Petitioners reallege and incorporate by reference each and every

allegation contained in paragraphs 1 through 45.
47.

Defendants’ issuance of immigration detainers based solely on the

initiation of an investigation into the Plaintiffs/Petitioners’ removability from the United
States causes the Plaintiffs/Petitioners significant pain and suffering by depriving them of
their liberty without due process of law.
48.

Defendants’ issuance of immigration detainers without requiring that

Plaintiffs/Petitioners

receive

effective

notice

of

the

detainer

causes

the

Plaintiffs/Petitioners to suffer substantial prejudice without affording them an opportunity
to be heard prior to the deprivation.
49.

Defendants’

failure

to

provide any

mechanism by

which

the

Plaintiffs/Petitioners may challenge the issuance of a detainer against them causes the
Plaintiffs/Petitioners substantial prejudice by depriving them of their liberty without due
process of law.
50.

Defendants’ detainer regulations, policies, practices, acts and omissions

cause significant deprivations of Plaintiffs/Petitioners’ liberty without due process of law
in violation of the Due Process Clause of the Fifth Amendment to the United States
Constitution.
51.

As a proximate result of Defendants’ unconstitutional detainer regulations,

policies, practices, acts, and omissions, Plaintiffs/Petitioners are suffering and will

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FOURTH CLAIM FOR RELIEF
(Violation of the Tenth Amendment to the U.S. Constitution)
52.

Plaintiffs/Petitioners reallege and incorporate by reference each and every

allegation contained in paragraphs 1 through 51.
53.

Defendants’ issuance of detainers compelling state and local LEAs to

detain Plaintiff/Petitioner, Jose Jimenez Moreno, in enforcement of a federal regulatory
program, as required under federal regulation 8 C.F.R. § 287.7, causes the
Plaintiff/Petitioner significant pain and suffering by depriving him of his liberty.
54.

Defendants’ detainer regulations, policies, practices, acts and omissions

compelling and conscripting state and local LEAs to enforce a federal regulatory program
is a violation of the Plaintiff/Petitioner’s rights under the Anti-Commandeering Principle
of the Tenth Amendment of the United States Constitution.
55.

As a proximate result of Defendants’ unconstitutional conscription of state

and local LEAs, Plaintiff/Petitioner is suffering and will continue to suffer a significant
deprivation of his liberty. Plaintiff/Petitioner has no plain, adequate or complete remedy
at law to address the wrongs described herein. The injunctive and declaratory relief
sought by Plaintiff/Petitioner is necessary to prevent continued and future injury.
FIFTH CLAIM FOR RELIEF
(Petition for Writ of Habeas Corpus)

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56.

Plaintiffs/Petitioners reallege and incorporate by reference each and every

allegation contained in paragraphs 1 through 55.
57.

This claim for relief is brought as an alternative to the first four claims for

relief, above, in the event the court were to rule that the proper or only vehicle for relief is
by writ of habeas corpus.
58.

The issuance of a detainer itself constitutes custody for purposes of 28

U.S.C. § 2241.
59.

The issuance of a detainer against Plaintiffs/Petitioners in the absence of

probable cause results in detention in violation of the laws or Constitution of the United
States.
60.

The issuance of a detainer against Plaintiffs/Petitioners, in the absence of

procedural protections such as notice and an opportunity to be heard, results in detention
in violation of the laws or Constitution of the United States.
61.

The issuance of detainers against Plaintiffs/Petitioners that compel state

and local law enforcement agencies to administer a federal regulatory program results in
detention in violation of the laws or Constitution of the United States.
62.

Plaintiffs/Petitioners seek to pursue a representative action to represent the

group of similarly situated individuals subject to unlawful detainers.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs/Petitioners respectfully request that the Court:
a. Issue an order certifying this action to proceed as a class action pursuant to Rule
23 of the Federal Rules of Civil Procedure;
b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal
Rules of Civil Procedure;

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c. Alternately, to permit the action to proceed as a representative action in habeas
corpus;
d. Issue a judgment declaring that Defendants’ detainer regulations, policies,
practices, acts, and omissions described herein as applied to the
Plaintiffs/Petitioners are unlawful and exceed defendants’ constitutional and
statutory authority in violation of 5 U.S.C. §§ 706(2)(A)—(D);
e. Issue a judgment declaring that Defendants’ detainer regulations, policies,
practices, acts, and omissions described herein are unlawful and violate
Plaintiffs/Petitioners’ rights under the Fourth Amendment to the United States
Constitution;
f. Issue a judgment declaring that Defendants’ detainer regulations, policies,
practices, acts, and omissions described herein are unlawful and violate
Plaintiffs/Petitioners’ rights under the Fifth Amendment to the United States
Constitution;
g. Issue a judgment declaring that Defendants’ detainer regulations, policies,
practices, acts, and omissions described herein are unlawful and violate
Plaintiff/Petitioner Jose Jimenez Moreno’s rights under the Tenth Amendment to
the United States Constitution;
h. Permanently enjoin Defendants, their subordinates, agents, employees, and all
others acting in concert with them from subjecting Plaintiffs/Petitioners to these
statutory violations and unconstitutional interpretation and application of
regulations, policies, practices, acts and omissions described herein, and issue
injunctive relief sufficient to rectify those statutory and constitutional violations;
i. Grant Plaintiffs/Petitioners their reasonable attorney fees and cost pursuant to 28
U.S.C. § 2412, and other applicable law; and
j. Grant such other relief as this Court deems just and proper.

Date: August 11, 2011

Respectfully Submitted:

__/s Claudia Valenzuela______

Attorneys for Plaintiffs/Petitioners:
Claudia Valenzuela
Chuck Roth
Mary Meg McCarthy
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Mark Fleming
National Immigrant Justice Center
208 South LaSalle Street, Suite 1818
Chicago, Illinois 60604
T [phone]
T [phone]
T [phone]
T [phone]
F [phone]

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