Rombot v. Moniz

Filing 52

Chief Judge Patti B. Saris: MEMORANDUM entered. For the foregoing reasons, the Court allowed Rombot's Motion for Release and/or Bond Determination (Docket No. 42 ) and released him pursuant to the conditions in his preexisting Order of Supervision. See Memorandum for Details. (Geraldino-Karasek, Clarilde)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
TERRY HELMUTH ROMBOT,
)
)
Petitioner,
)
v.
)
Civil Action
)
No. 17-11577-PBS
STEVEN J. SOUZA,
)
)
Respondent.
)
___________________________________)

MEMORANDUM
November 8, 2017
Saris, C.J.
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

1

Rombot is also a named plaintiff in the companion case,
Devitri et al. v. Cronen et al., 1:17-cv-11842-PBS, in which the
Court stayed removal pending a review of its jurisdiction. See
Docket Nos. 14, 17, 28, 61 in Devitri.
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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

2

Finding that it had jurisdiction, on October 25, 2017, the
Court denied the government’s motion to dismiss the habeas
corpus petition. See Docket No. 37.
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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 2:253:13, 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
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[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

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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

3

ICE points out that, also on October 24, 2017, government
counsel filed a different Notice of Detention (Docket No. 36) in
response to this Court’s order (Docket No. 34). That notice
simply informed the Court of ICE’s intent to continue Rombot’s
detention.
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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
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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 (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.
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
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“act[ed] to prevent” his removal by filing applications for
administrative stays. See Rodriguez-Guardado v. Smith, No. 1711300-RGS, 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 U.S.C.
§ 1231(a)(3)].” 8 U.S.C. § 1231(a)(6). In this case, ICE took
the latter course of action. So, the issue before the Court is
whether Rombot was properly revoked.
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The Notice of Revocation of Release cites 8 C.F.R.
§ 241.13, entitled “Determination of whether there is a
significant likelihood of removing a detained alien in the
reasonably foreseeable future.” See Docket No. 1-9 at 1. The
“special review procedures” in section 241.13 apply to aliens
detained under the custody review procedures in section 241.4
after the expiration of the removal period “where the alien has
provided good reason to believe there is no significant
likelihood of removal to the country to which he or she was
ordered removed . . . in the reasonably foreseeable future.”
8 C.F.R. § 241.13(a). To apply section 241.13, ICE must “make[]
a determination . . . that there is no significant likelihood of
removal in the reasonably foreseeable future.”
Id. § 241.13(b)(1). There is no indication in the record that
Rombot ever provided to ICE “good reason to believe” his
deportation would not occur in the “reasonably foreseeable
future” or that ICE ever made the requisite finding of that
fact. While the regulatory scheme is complex, ICE appears to
have relied on an inapplicable regulation in revoking Rombot.4
If ICE intended to revoke Rombot’s release, it was required
to follow the procedures set out in 8 C.F.R. § 241.4. It did
not. The Executive Associate Commissioner or the district

4

The government seems to acknowledge that ICE relied on the
wrong regulation. See Docket No. 47 at 5 n.2.
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director has the discretion to revoke an alien “to enforce a
removal order.” 8 C.F.R. § 241.4(l)(2). The reason given for
Rombot’s revocation -- “a significant likelihood of removal in
the foreseeable future” -- shows that ICE intended to enforce
his removal order. However, the record demonstrates the
revocation decision was made by Field Office Director Cronen.
See Docket No. 1-9 at 1. It is not clear from the regulation,
which refers to previous Immigration and Naturalization Service
position titles, whether an ICE field office director has
authority to revoke an alien. See 8 C.F.R. § 241.4(l)(2). The
record does not show that Field Office Director Cronen ever made
the threshold determination that Rombot’s “revocation [was] in
the public interest and circumstances [did] not reasonably
permit referral of the case to the [equivalent of the Executive
Associate Commissioner].” Id. Upon revocation, sections 241.4
and 241.13 both require ICE to provide “an initial informal
interview promptly . . . to afford the alien an opportunity to
respond to the reasons for revocation.” Id. §§ 241.4(l)(1),
241.13(i)(3). Nothing in the record shows that Rombot was given
this interview.
ICE’s Decision to Continue Detention, issued on October 24,
2017, was brought to the Court’s attention by Rombot’s counsel
during the November 1, 2017 hearing on the motion for release.
Counsel for ICE seemed to know nothing about it. In the letter,
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Field Office Director Cronen represents that his decision to
continue Rombot’s detention until at least January 28, 2018 was
“based on a review of [Rombot’s] file . . . and consideration of
any information [he] submitted to ICE reviewing officials.”
Docket No. 50 at 1. However, on October 24, 2017, Rombot’s
counsel had not yet submitted any documentation in support of
Rombot’s release. The Notice to Alien of File Custody Review had
stated that evidence could be submitted until the October 30,
2017 deadline. See Docket No. 43-1 at 1. When it reviewed
Rombot’s custody status prematurely on October 24, 2017, ICE
violated its own regulations and procedures, see 8 C.F.R. §
241.4, depriving Rombot of his right to a meaningful custody
status review. Also in the Decision to Continue Detention, Field
Office Director Cronen labeled Rombot “a safety risk to the
community” based on his “review of the facts in [Rombot’s] case,
including alleged “criminal arrests for obstructing a court
order and failure to appear.” Docket No. 50 at 1. ICE has
presented no evidence to support these alleged arrests or Field
Office Director Cronen’s ultimate “safety risk” determination.
This decision is evidence of ICE’s utter disregard for the
agency’s own procedures.
ICE, like any agency, “has the duty to follow its own
federal regulations.” Haoud v. Ashcroft, 350 F.3d 201, 205 (1st
Cir. 2003) (quoting Nelson v. I.N.S., 232 F.3d 258, 262 (1st
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Cir. 2000)). To be sure, not every procedural misstep raises a
constitutional issue. See Matias v. Sessions, 871 F.3d 65, 72
(1st Cir. 2017) (involving an inaccurate translation). However,
where an immigration “regulation is promulgated to protect a
fundamental right derived from the Constitution or a federal
statute,” like the opportunity to be heard, “and [ICE] fails to
adhere to it, the challenged [action] is invalid . . . .”
Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993); see also
Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 403–04 (S.D.N.Y.
2004) (granting alien’s habeas petition where she was deported
fewer than 72 hours after her arrest and regulation mandated 72hour rule). Based on ICE’s violations of its own regulations,
the Court concludes Rombot’s detention was unlawful.
ICE also violated the Due Process Clause of the Fifth
Amendment when it detained Rombot on August 1, 2017. In its
order denying ICE’s motion to dismiss, this Court found that
Rombot did not violate any condition of his release, but was not
given “an opportunity to prepare for an orderly departure” as
specifically provided in the Release Notification. Docket No. 37
at 5. ICE’s reliance on Rodriguez-Guardado to support Rombot’s
detention is misplaced because the court in that case did not
address conditions of release that expressly provided for an
opportunity to prepare for an orderly departure. See 2017 WL
4225626 at *1-3. When ICE ignored that condition and placed
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Rombot in shackles, it did so without advance notice, a hearing,
or an interview.
Counsel for ICE has never asserted that Rombot is a danger
to the community or a flight risk, or that he violated the
conditions of his Order of Supervision.5 See 8 U.S.C. §
1231(a)(6); 8 C.F.R. § 241.4(d), (l). Rather, ICE claims that
the Field Office Director has unfettered discretion to
incarcerate Rombot. While ICE does have significant discretion
to detain, release, or revoke aliens, the agency still must
follow its own regulations, procedures, and prior written
commitments in the Release Notification. As described above, ICE
failed to follow its own regulations in at least three ways. The
Supreme Court has recognized that an “alien may no doubt be
returned to custody upon a violation of [supervision]
conditions,” Zadvydas, 533 U.S. at 700, but it has never given
ICE a carte blanche to re-incarcerate someone without basic due
process protection.
CONCLUSION

For the foregoing reasons, the Court allowed Rombot’s
Motion for Release and/or Bond Determination (Docket No. 42) and

5

The government did not rely on Field Office Director
Cronen’s “safety risk” determination, Docket No. 50 at 1, in
either the hearing on November 1, 2017 or Respondent’s
Opposition to Petitioner’s Motion for Release (Docket No. 47).
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released him pursuant to the conditions in his preexisting Order
of Supervision.
/s/ PATTI B. SARIS
____
Patti B. Saris
Chief United States District Judge

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