Jimenez Moreno et al v. Napolitano et al

Filing 5

MOTION by Plaintiffs Jose Jimenez Moreno, Maria Jose Lopez to certify class (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: 11-CV-05452

JUDGE ROBERT M. DOW, JR.

PLAINTIFFS/PETITIONERS’ MOTION FOR CLASS CERTIFICATION OR
REPRESENTATIVE HABEAS ACTION
1.

Plaintiffs/Petitioners, by and through their attorneys, hereby respectfully

move this Court for an order certifying the class of Plaintiffs/Petitioners, pursuant to FED.
R. CIV. P. 23(b)(1), (b)(2) and/or (c)(4). Plaintiffs/Petitioners seek certification of a class
consisting of: “All current and future persons against whom ICE has issued an
immigration detainer out of the Chicago Area of responsibility (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).” In

addition, Plaintiff/Petitioner, Jose Jimenez Moreno, seeks to represent a sub-class
comprised of the individuals described above, 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.
Plaintiffs/Petitioners seek declaratory and injunctive relief on their own behalf
and on behalf of all others similarly situated who have had immigration detainers lodged
against them that were issued from the ICE Chicago Area of Responsibility (AOR). For
the reasons presented in a forthcoming memorandum of law, Plaintiffs/Petitioners satisfy
the requirements for certification under FED. R. CIV. P. 23(a) and 23(b)(1), (b)(2) and/or
(c)(4). Specifically, under Rule 23(a):
1)

The number of class members is so numerous that joinder of all
Plaintiffs/Petitioners is impracticable. Based on data obtained from ICE
through a Freedom of Information Act (FOIA) request, in the first eleven
months of FY 2010 ICE issued 201,778 immigration detainers nationally
to hundreds of different LEAs. It is reasonable to assume thousands of
these detainers are issued from the ICE Chicago AOR annually. Given the
duration of immigration detainers and that the ICE Chicago AOR
continues to issue new detainers daily, membership in the class is
transitory and constantly changing.

2)

There are questions of law or fact common to all proposed class and subclass members, which include but are 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. §

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



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 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



3)

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;

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.

The claims of representative parties are typical of the claims of the class
and sub-class in that the named Plaintiffs/Petitioners and proposed
members of the class have and will sustain harm because of 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. Plaintiffs/Petitioners have no interests that conflict with or are
antagonistic to proposed class members and seek relief that will benefit all
members of the proposed class and sub-class.

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4)

The representative parties will fairly and adequately protect the interests of
the class because the interests of the Plaintiffs/Petitioners are identical to
those of the members of the proposed class. Additionally,
Plaintiffs/Petitioners’ counsels are qualified, experienced and able to
vigorously advocate for the interests of the class.

Plaintiffs/Petitioners seek to maintain this action under FED. R. CIV. P. 23(b)(1),
(b)(2) and/or (c)(4) because:
(1)

Prosecuting separate actions create the risk of establishing incompatible
standards of conduct for the Defendants; and

(2)

Defendants have acted and intend to act on grounds that apply generally to
the class, so that final injunctive or corresponding declaratory relief is
appropriate with respect to the class as a whole.

In the event the Court were to rule that the proper or only vehicle for relief is by
writ of habeas corpus, Plaintiffs/Petitioners seek in the alternative that it be certified as a
representative habeas action in accordance with Seventh Circuit precedent.
In support of this motion, Plaintiffs/Petitioners will submit a forthcoming
memorandum of law, which articulates in greater detail the grounds for class certification
and/or a representative habeas action.

WHEREFORE, Plaintiffs/Petitioners respectfully request this Court enter an Order
certifying this case as a class action for the class and sub-class of persons described
above or in the alternative a representative habeas action.

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Date: August 11, 2011

Respectfully Submitted:

__/s/ Claudia Valenzuela____
Attorneys for Plaintiffs/Petitioners:
Claudia Valenzuela
Chuck Roth
Mary Meg McCarthy
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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CERTIFICATE OF SERVICE
I, Claudia Valenzuela, hereby certify that on August 11, 2011, I provided service
of “Plaintiffs/Petitioners’ Motion for Class Certification or Representative Habeas
Action” by first-class U.S. mail, postage prepaid to the following individuals:
Attorney General Eric Holder, Jr.
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
U.S. Attorney Patrick Fitzgerald
United States Attorney's Office
Northern District of Illinois, Eastern Division
219 S. Dearborn St., 5th Floor
Chicago, IL 60604
Karen E. Lundgren, Esq.
DHS/ICE District Counsel
55 E. Monroe, Suite 1700
Chicago, IL 60603

Signature: ___/s/ Claudia Valenzuela_______
Claudia Valenzuela
National Immigrant Justice Center
208 S. LaSalle, Suite 1818
Chicago, Illinois 60604
T: [phone]
F: [phone]

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Date: August 11, 2011