Devitri et al v. Cronen et al

Filing 65

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered : For the foregoing reasons, this Court finds that it has subject-matter jurisdiction over Counts I and II in the SAC. This Court dismisses without prejudice Count III addressed in the comp anion case. See Rombot v. Souza, 1:17-cv-11577-PBS, Docket No. 49; Docket No. 52. The government is hereby temporarily enjoined from removing all Petitioners named in the SAC until the Court rules on the motion for preliminary injunction or until further order of the Court. SO ORDERED(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
LIA DEVITRI, et al.,
)
)
Petitioners/Plaintiffs, )
)
v.
)
Civil Action
)
No. 17-11842-PBS
CHRIS CRONEN, et al.,
)
)
Respondents/Defendants. )
___________________________________)

MEMORANDUM AND ORDER
November 27, 2017
Saris, C.J.
INTRODUCTION
Petitioners are fifty-one Indonesian Christians who fear
religious persecution in Indonesia and are subject to final
Orders of Removal. All Petitioners reside in New Hampshire. In
2010, Immigration and Customs Enforcement (“ICE”) instituted a
humanitarian program called Operation Indonesian Surrender,
through which Petitioners were granted Orders of Supervision,
allowing them to seek employment and subjecting them to certain
mandatory conditions. Petitioners also received temporary stays
of removal that were renewed over multiple years. In the summer
of 2017, these individuals were informed that they would be
removed from the United States. They filed this habeas petition

1

pursuant to 28 U.S.C. § 2241,1 raising claims under the
Immigration and Nationality Act (“INA”), the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), and the Due Process Clause of
the Fifth Amendment of the United States Constitution.
Petitioners seek stays of their removal so that they are not
removed before they have the opportunity to file motions to
reopen based on “changed country conditions.”
The Court temporarily stayed removal to determine if the
Court has jurisdiction. An evidentiary hearing was held on
October 20, 2017, at which Respondent Timothy Stevens, an ICE
Supervisory Detention and Deportation Officer with knowledge of
Operation Indonesian Surrender, testified. In advance of the
evidentiary hearing on jurisdiction, the Court also received
affidavits from Russell F. Hilliard, Esq. (Docket No. 49-1),
Reverend Sandra Pontoh (Docket No. 49-2), William Hahn, Esq.
(Docket No. 49-3), Susan Church, Esq. (Docket No. 49-4), Trina
A. Realmuto (Docket No. 49-5), and Jeffrey A. Winters, Ph.D.
(Docket No. 49-6). The Court received declarations from The
Honorable Jill H. Dufresne (Docket No. 36-1) and Christopher
Gearin (Docket No. 36-2). The only issue before the Court is

1

They also assert jurisdiction under 28 U.S.C. § 1331.
2

whether the Court has subject-matter jurisdiction. The Court
holds that it does.
FACTUAL BACKGROUND2
Petitioners are fifty-one Christian Indonesian nationals
who have lived in the United States for many years. They are all
subject to final Orders of Removal. Some individuals have
children or spouses who are United States citizens; some have
children who are recipients of Deferred Action for Childhood
Arrivals (“DACA”); some have children who have enlisted in the
United States military; and some have serious medical
conditions.
Petitioners claim that, if they are removed to Indonesia,
they will face an “alarmingly high and increasing” risk of
persecution, including “intimidation, physical harm, and threats
to their personal safety and well-being,” based on their
Christian religion. Winters Aff. (Docket No. 49-6) ¶ 2.
Indonesia is a majority Muslim country. According to
Petitioners’ expert, since 2008, the conditions in Indonesia for
religious minorities have deteriorated substantially, as the

2

The facts are taken from the allegations in the Second
Amended Class Petition for Writs of Habeas Corpus and Mandamus
and Class Complaint for Declaratory and Injunctive Relief
(“SAC”) (Docket No. 44), the documents, affidavits, and
declarations produced in this litigation, and the evidence
presented at the evidentiary hearing. They are largely
undisputed.
3

country experiences a “rising tide of extremist Islam” targeting
non-Muslim populations. Winters Aff. (Docket No. 49-6) ¶¶ 8-9.
The Winters affidavit details numerous examples of violence
carried out by Islamic militants directed at Christians,
including the burning of churches, riots, and assaults. The
affidavit also presents evidence from reports showing that law
enforcement in Indonesia is unlikely to provide meaningful
protection to religious minorities in the face of violence and
intolerance.3
In 2010, in communication with members of the Christian
community, ICE began a program called Operation Indonesian
Surrender in New Hampshire. 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 with final removal orders were encouraged to identify
themselves to ICE either at the mobile command center or soon

3

At least two circuits, including the First Circuit, have
recently found that conditions for Christians in Indonesia may
warrant relief from removal. See Salim v. Lynch, 831 F.3d 1133,
1138-39 (9th Cir. 2016) (holding that Indonesian Christian’s
motion to reopen “more than me[t] the burden of proof required
to establish changed country conditions”); see also Panoto v.
Holder, 770 F.3d 43, 46-48 (1st Cir. 2014) (finding that bombs
planted at church in late 2000 and religiously motivated ferry
hijacking in June 2001 could support finding of past
persecution).
4

afterward.4 In exchange, the program participants were placed
under Orders of Supervision (“OSUPs”) and granted temporary
stays of removal. These OSUPs allowed the participants to seek
employment and also prescribed conditions with which the
recipients had to comply, including “appear[ing] in person at
the time and place specified, upon each and every request of
[ICE] for identification and for deportation or removal,” e.g.,
Docket No. 37-2 at 85, informing ICE before traveling outside
New England, and submitting to medical or psychiatric
examinations at ICE’s request. Petitioners received no oral or
written promises that they could remain in this country
indefinitely.
Approximately 100 Christian Indonesians are believed to
have participated in the program and received OSUPs. They lived
and worked under these OSUPs without incident until this year
and generally complied with their conditions, including the
condition that they not commit crimes. In addition, Petitioners

4

Whether Indonesian citizens who surrendered later were
treated the same is in dispute. Attorney Russell F. Hilliard
states that, in May 2011, Officer Stevens offered to accept
surrenders of additional Indonesians living in New Hampshire and
told Hilliard that “the process [they] followed last fall is
available to anyone at any time.” Hilliard Aff. (Docket No. 491), Ex. B. At the evidentiary hearing, Officer Stevens testified
that, unlike the first group of participants, people who
surrendered later were not given an initial 90-day period to
file their stay requests.
5

were granted temporary stays of removal by ICE on a roughly
annual basis.
In late 2011, a group of program participants who did not
have U.S. citizen children, U.S. citizen spouses, or health
issues were told that they would be removed. They were informed
that their stay requests were being denied, but they were given
the opportunity to have an in-person interview with ICE at its
Manchester, New Hampshire office before removal. After the
interviews, ICE mailed the participants a notice revoking their
OSUPs and confirming their departure from the United States
approximately 90 days later.
Six years later, in February 2017, ICE began to notify
Petitioners that it would no longer grant stays of removal. ICE
advised pastoral leaders in June 2017 that it would be
terminating Operation Indonesian Surrender. At this meeting, the
leaders were informed that all remaining program participants
would be deported, but ICE did not set a timeline for these
removals. Based on the community’s experience in 2011, the
pastoral leaders believed that interviews would be scheduled
with Petitioners before they were deported.
Instead, at an August 1, 2017 check-in appointment pursuant
to the OSUP conditions, a group of program participants were
told that they would be subject to a “30-30” schedule. They
would need to report to ICE at their next 30-day check-in with
6

tickets to depart for Indonesia 30 days later. This proposed
class action habeas corpus petition was first filed on September
25, 2017, two days before the first Petitioners were scheduled
to be removed. See Docket No. 1.
DISCUSSION
I.

Habeas Jurisdiction
Petitioners assert that this Court has habeas jurisdiction

under 28 U.S.C. § 2241(c). In order to bring a habeas petition,
an individual must be in custody. 28 U.S.C. § 2241(c). “Custody”
is not limited to physical detention. See Rumsfeld v. Padilla,
542 U.S. 426, 437 (2004). Final orders of removal have been held
to satisfy the custody requirement. See Rosales v. Bureau of
Immigration and Customs Enforcement, 426 F.3d 733, 735 (5th Cir.
2005); Mendonca v. I.N.S., 52 F. Supp. 2d 155, 159 (D. Mass.
1999), aff’d, 201 F.3d 427 (1st Cir. 1999). An alien challenging
the conditions of his immigration OSUP also may be in custody
for habeas purposes. See Ali v. Napolitano, Civil Action No. 1211384-FDS, 2013 WL 3929788, at *4–5 (D. Mass. July 26, 2013)
(finding petitioner was in “custody” where he challenged the
restraints on his liberty in his OSUP).
Petitioners are subject to both final Orders of Removal and
OSUPs granted to them as part of Operation Indonesian Surrender.
Although Petitioners need not be physically detained to be in
“custody,” in order for the Court to exercise habeas
7

jurisdiction, Petitioners must challenge the legality of that
non-detention custody. See 28 U.S.C. § 2241(c)(3) (stating
detainee must be “in custody in violation of the Constitution or
laws or treaties of the United States”). In the cases finding
that removal orders placed an alien in custody for section 2241
purposes, those aliens were challenging the constitutionality of
their removal orders. See Rosales, 426 F.3d at 735–36 (finding
alien under removal order was in custody where he was
challenging removal order on due process grounds); Mendonca, 52
F. Supp. 2d at 159, 161–62 (finding alien under removal order
was in custody, but declining to exercise jurisdiction because
petition challenged discretionary decision). The same is true in
the OSUP context. See Alvarez v. Holder, 454 F. App’x 769, 772–
73 (11th Cir. 2011) (finding alien under OSUP was in custody
where he challenged order’s conditions on “due process, freedom
of association and freedom of speech” grounds); Ali, 2013 WL
3929788, at *4–5 (finding alien under OSUP was in custody where
he challenged order’s condition that he report to ICE office
indefinitely).
Here, Petitioners “challenge a condition of [their]
custody, specifically, ICE’s abrupt change in policy regarding
participants in ‘Operation Indonesian Surrender’ and the
unfairly compressed timetable of the issuance of the Denials of
Stays and/or Notices of Revocation of Release.” SAC ¶ 13.
8

Essentially, Petitioners argue that the sudden policy change,
combined with the 30-30 order, is “preventing [them] from
exercising their due process rights” and their statutory right
to move to reopen. SAC ¶ 13. Since Petitioners’ challenge is
tied to a term of their OSUPs, habeas jurisdiction is proper.
Although Petitioners are in “custody” for habeas purposes,
Congress has stripped all federal courts of jurisdiction over
section 2241 petitions that challenge certain immigration
actions:
Except as provided in this section and
notwithstanding any other provision of law
(statutory or nonstatutory), including
section 2241 of Title 28, or any other
habeas corpus provision, and sections 1361
and 1651 of such title, no court shall have
jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the
decision or action by the Attorney General
to commence proceedings, adjudicate cases,
or execute removal orders against any alien
under this chapter.
8 U.S.C. § 1252(g). This jurisdictional bar, while absolute, has
been held to apply only to ICE’s discretionary decisions in the
three enumerated categories, including the decision “to execute
removal orders.” See Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482–83 (1999) (limiting reach of provision to
“three discrete actions”). Circuit courts have held, however,
that the enumerated list includes additional discretionary
decisions made in furtherance of one of the “three discrete

9

actions.” See, e.g., Moussa v. Jenifer, 389 F.3d 550, 554 (6th
Cir. 2004) (“[A] denial of a stay of deportation is a component
of the decision to execute a deportation order.”); Mapoy v.
Carroll, 185 F.3d 224, 228 (4th Cir. 1999) (noting that
challenge to denial of stay “clearly arose” from decision to
execute removal order and was not within court’s jurisdiction).
II.

Motion to Reopen
Petitioners concede, as they must, that this Court has no

jurisdiction to review the decision to execute their removal
orders, but they argue that they have a statutory right to move
to reopen based on changed country conditions that arose after
the Orders of Removal became final.
Congress mandated that ICE may not remove an alien to a
country if the government decides that “the alien’s life or
freedom would be threatened in that country because of the
alien’s . . . religion.” 8 U.S.C. § 1231(b)(3)(A). The duty not
to remove is triggered when the alien demonstrates that “it is
more likely than not that he or she would be persecuted on
account of . . . religion” if removed to a particular country.
8 C.F.R. § 208.16(b)(2). Mandatory relief from deportation under
8 U.S.C. § 1231(b)(3)(A) can be based on “changed country
conditions” established through a motion to reopen. 8 U.S.C
§ 1229a(c)(7)(C)(ii).

10

Under the CAT, the United States also has an obligation not
to remove aliens to countries where they will be tortured. See 8
C.F.R. § 208.16(c). The regulations implementing the
government’s obligations under the CAT state that if an alien
“is more likely than not to be tortured in the country of
removal,” he or she “shall be granted withholding of removal”
or, at the very least, deferral of removal. Id. § 208.16(c)(4).
Claims for withholding of removal under 8 U.S.C. §
1231(b)(3) or the CAT may be adjudicated in a motion to reopen.5
See 8 C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4). In 1996, Congress
codified the right to file a motion to reopen, “transform[ing]
the motion to reopen from a regulatory procedure to a statutory
form of relief available to the alien.” Dada v. Mukasey, 554
U.S. 1, 14 (2008); see also 8 U.S.C. § 1229a(c)(7)(A). “The
motion to reopen is an ‘important safeguard’ intended ‘to ensure
a proper and lawful disposition’ of immigration proceedings.”

5

Petitioners also argue that they may be eligible for
asylum, which can be raised in a motion to reopen, see 8 C.F.R.
§§ 1003.2(c)(3), 1003.23(b)(4), based on the circumstances faced
by Christians in Indonesia. When an alien receives asylum
status, ICE “shall not remove or return the alien to the alien’s
country of nationality.” 8 U.S.C. § 1158(c)(1)(A). To petition
successfully for asylum, an alien must demonstrate “a wellfounded fear of persecution.” Id. § 1101(a)(42); see also I.N.S.
v. Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987) (interpreting
meaning of “well-founded fear”). The record is unclear on
whether all the Petitioners already have filed for asylum and
been rejected or whether they are seeking asylum for the first
time.
11

Kucana v. Holder, 558 U.S. 233, 242 (2010) (quoting Dada, 554
U.S. at 18). The Supreme Court has characterized the statute as
creating an absolute, non-negotiable right: “[E]very alien
ordered removed from the United States has a right to file one
motion to reopen his or her removal proceedings.” Dada, 554 U.S.
at 4-5 (citing 8 U.S.C. § 1229a(c)(7)). The right to file a
motion to reopen typically must be exercised within 90 days of
receiving a final removal order. 8 U.S.C. § 1229a(c)(7)(C)(i).
However, Congress explicitly set “no time limit on the filing of
a motion to reopen . . . based on changed country
conditions . . . if such evidence is material and was not
available and would not have been discovered or presented at the
previous proceeding.” Id. § 1229a(c)(7)(C)(ii).
Whether a motion to reopen is actually adjudicated depends
on the alien’s continued presence in the country. If an alien is
deported prior to filing, a motion to reopen cannot be made by
the alien or on her behalf. 8 C.F.R. §§ 1003.2(d),
1003.23(b)(1). Furthermore, an alien’s removal from the United
States while a motion to reopen is pending “shall constitute a
withdrawal of such motion.” Id. §§ 1003.2(d), 1003.23(b)(1).
The difficult question is how to reconcile the
jurisdiction-stripping provision in 8 U.S.C. § 1252(g) with the
statutory right to move to reopen in 8 U.S.C. § 1229a(c)(7).
Section 1252(g) must be read in conjunction with the rest of the
12

Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), which includes 8 U.S.C. § 1229a(c)(7), the
statutory right to file a motion to reopen. The Supreme Court
has noted that the text of 8 U.S.C. § 1229a(c)(7) “is plain
insofar as it guarantees to each alien the right to file one
motion to reopen proceedings . . . .” Dada, 554 U.S. at 15
(emphasis added) (internal quotation marks omitted). In Dada,
where the plain text of a different section involving voluntary
departures did not explicitly abolish the right to move to
reopen, the Supreme Court was “reluctant” to assume that
the statute was designed to remove this important safeguard. Id.
at 18.
The problem for Petitioners, though, is that section
1252(g) states unambiguously that “notwithstanding any other
provision of law” the Court shall not have jurisdiction to hear
any claim arising from a decision by the government to execute a
removal order.
On the other hand, the problem for the government is that
if section 1252(g) effectively ensures that this group of
Indonesian Christians cannot effectively file their claims of
possible persecution and torture before being removed to the
country where they are at risk, it would be an unconstitutional
deprivation of the statutory right to move to reopen without due
process of law because there would be no meaningful opportunity
13

to be heard on the motion to reopen. See Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965))). As stated above, once she is removed, an
alien may not file a motion to reopen and any motion to reopen
previously filed is deemed withdrawn under the agency’s
regulations.
One court has held that applying section 1252(g) in a way
that eliminates the right to habeas relief in circumstances
similar to this case is a violation of the Suspension Clause.
See Hamama v. Adducci, No. 17-cv-11910, 2017 WL 2953050, at *12
(E.D. Mich. July 11, 2017) (holding that enforcing section
1252(g) against Iraqi Christians who could not realistically
file motions to reopen, but claimed that they would face “death,
torture, or other persecution” if removed, “would amount to a
suspension of the right to habeas corpus”).
The Suspension Clause of the United States Constitution
dictates that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” U.S. Const. art. I,
§ 9, cl. 2. Congress may decide to create adequate and effective
alternatives to habeas corpus relief without offending the
Suspension Clause. See I.N.S. v. St. Cyr, 533 U.S. 289, 314 n.38
14

(2001) (“Congress could, without raising any constitutional
questions, provide an adequate substitute through the courts of
appeals.”); Swain v. Pressley, 430 U.S. 372, 381 (1977) (holding
that “the substitution of a collateral remedy which is neither
inadequate nor ineffective to test the legality of a person’s
detention does not constitute a suspension of the writ of habeas
corpus”).
Despite the jurisdiction-stripping language of 8 U.S.C. §
1252(g), this Court concludes that it has subject-matter
jurisdiction under both 28 U.S.C. § 2241 and 28 U.S.C. § 1331 to
ensure that there are adequate and effective alternatives to
habeas corpus relief in the circumstances of this case. If the
jurisdictional bar in 8 U.S.C. § 1252(g) prevented the Court
from giving Petitioners an opportunity to raise their claims
through fair and effective administrative procedures, the
statute would violate the Suspension Clause as applied.
III. The Effectiveness and Adequacy of the Administrative
Procedure
The government has introduced evidence to support its
position that it has procedures in both the Immigration Court
and Board of Immigration Appeals (“BIA”) that ensure a full
administrative process to handle any motion to reopen and

15

accompanying emergency motion to stay removal.6 See Dufresne
Decl. (Docket No. 36-1) ¶¶ 13-19 (describing emergency motion
for stay adjudication process for Immigration Court); Gearin
Decl. (Docket No. 36-2) ¶¶ 9-17 (describing same for BIA).
Petitioners disagree, arguing that the procedures are
insufficient to promptly adjudicate the emergency stays
necessary to keep aliens in the country while their motions to
reopen are pending. See Realmuto Aff. (Docket No. 49-5) ¶¶ 13-25
(detailing obstacles to obtaining emergency stays of removal in
Immigration Court and BIA).
Emergency stay requests most often are filed by detained
aliens, and the Boston Immigration Court has two Immigration
Judges and staff assigned to the “detained docket.”7 Dufresne
Decl. (Docket No. 36-1) ¶ 14. The government presents evidence

6

It is not clear from the existing record whether all
Petitioners would first file their motions to reopen in the
Immigration Court or whether some would file motions to reopen
with the BIA in the first instance.
7

Judge Dufresne states in her declaration that the Boston
Immigration Court is aware of this pending action and the
possibility that Petitioners will file emergency stay requests.
Dufresne Decl. (Docket No. 36-1) ¶ 19. “[T]he Court
Administrator has instructed court staff to be watchful for stay
motions accompanied by a motion to reopen and to bring any such
motion and stay request to an Immigration Judge’s attention
immediately.” Dufresne Decl. (Docket No. 36-1) ¶ 19. In
contrast, the BIA will only consider a stay request on an
expedited emergency basis if the alien is in physical custody.
Gearin Decl. (Docket No. 36-2) ¶¶ 9-10; see also Realmuto Aff.
(Docket No. 49-5) ¶ 14.
16

that when the detained docket staff receive a motion to reopen
and accompanying emergency motion for stay, they “take immediate
action” to provide the Immigration Judge with the motion, stay
request, and record of prior proceedings. Dufresne Decl. (Docket
No. 36-1) ¶ 15. Judge Dufresne states that an Immigration Judge
will generally rule on an emergency stay request within one to
three days of receiving the motion and will do her best to
consider the request before a scheduled removal date. Dufresne
Decl. (Docket No. 36-1) ¶ 17. If a stay request is granted, ICE
is immediately informed by the Immigration Court. Dufresne Decl.
(Docket No. 36-1) ¶ 18.
A stay is not guaranteed during the pendency of a motion to
reopen. It is discretionary and decided by the Immigration Judge
on a case-by-case basis. Dufresne Decl. (Docket No. 36-1) ¶ 16;
see also Gearin Decl. (Docket No. 36-2) ¶ 7 (noting that, at BIA
level, stay during motion to reopen adjudication is also
discretionary). In ruling on the stay request, an Immigration
Judge will consider “the facts and circumstances of the alien’s
case and the basis for the alien’s motion to reopen.” Dufresne
Decl. (Docket No. 36-1) ¶ 11. The Immigration Judge may also
consider “the possibility that a stay request or motion may have
been prepared and submitted without the alien (or his or her
attorney) having sufficient time to obtain . . . all appropriate

17

evidence in support of the stay request or motion to reopen.”
Dufresne Decl. (Docket No. 36-1) ¶ 16.
Petitioners present evidence that, despite the procedures
intended to streamline emergency stay requests, delays occur.
See Realmuto Aff. (Docket No. 49-5) ¶¶ 13-23. Attorney Realmuto
has experienced delays in docketing motions and stay requests at
the BIA level. Realmuto Aff. (Docket No. 49-5) ¶ 16.
Additionally, Petitioners claim that “whether the BIA will
adjudicate a stay motion prior to deportation relies entirely on
the deportation officer’s discretionary act of communicating to
the BIA the actual date and time of deportation.” Realmuto Aff.
(Docket No. 49-5) ¶ 18. Attorney Realmuto cites “at least two
cases where ICE affirmatively informed the BIA of particular
deportation dates but subsequently -- unbeknownst to the BIA,
and without providing the BIA any notice -- moved up the dates
of deportation and carried out the removal.” Realmuto Aff.
(Docket No. 49-5) ¶ 21. Petitioners state that “there is no
formal mechanism by which ICE is required to notify the BIA of a
change in deportation date and, therefore, no way to ensure that
the BIA has a meaningful opportunity to adjudicate the stay
motion before deportation.” Realmuto Aff. (Docket No. 49-5) ¶
21. In the Immigration Court, Attorney Realmuto cites delays in
receipt of motions for stay, reluctance to rule until
deportation is imminent, and dependence on immigration judges’
18

schedules as obstacles to adjudication before removal. Realmuto
Aff. (Docket No. 49-5) ¶ 23.
I find that the Immigration Court’s procedures typically
are an adequate and effective administrative alternative to
habeas corpus relief consistent with the Suspension Clause. The
procedures in the Immigration Court will also likely be adequate
for Petitioners, who at this point are represented by attorneys
in a high-profile case, so long as they receive from this Court
a reasonable time period for filing the motions to reopen to
which they are entitled.8 The Court is concerned, however, that
the BIA’s procedures for considering emergency stay requests
will not apply to Petitioners because they are not in physical
custody. The government shall inform the Court whether
Petitioners, who are not detained, will have access to emergency
procedures if they must file their original motions to reopen
with the BIA. Without a better record, the Court is not prepared
to rule that the BIA’s procedures are an adequate and effective
administrative alternative to habeas corpus relief for nondetained persons.
The Court must determine how much time is necessary to file
an adequate motion to reopen. Exercising jurisdiction to grant

8

The Immigration Court’s administrative procedures may be
inadequate and ineffective in an individual Petitioner’s case,
however.
19

Petitioners time to effectively use the required administrative
process is consistent with Congressional intent. Cf. Singh v.
Gonzales, 499 F.3d 969, 979–80 (9th Cir. 2007) (noting that
habeas relief in petitioner’s case only would result in thirty
days to file a petition with court of appeals, as required by
statute, “which is consistent with Congressional intent
underlying the REAL ID Act”).
The government argues that Petitioners had plenty of time
to file the motions to reopen prior to the August 1, 2017
notification. Petitioners argue that the denials of their stay
requests earlier in 2017 did not put them on notice that removal
was imminent or that the conditions of their OSUPs had changed,
because people may remain under OSUPs for years after stay
requests are denied. They maintain that, until the 30-30 order,
they did not know that deportations would occur so quickly. The
Court finds that Petitioners were reasonable in relying on their
protected status as long as they complied with the terms of
their OSUPs. However, after August 1, 2017, any reliance was no
longer reasonable. The Court finds that the August 1, 2017
notification that the protected status would terminate triggered
the obligation to file motions to reopen.
Petitioners argue that they need six to twelve weeks after
their attorneys receive their comprehensive files containing
their full immigration history (“A-files”) to prepare adequate
20

motions to reopen.9 See Realmuto Aff. (Docket No. 49-5) ¶ 12.
Additionally, Petitioners seek a stay of their removal pending
appeal: they ask for an injunction against removal to remain in
effect until the Immigration Court, BIA, and the First Circuit
all have reviewed their motions to reopen. See SAC ¶ H.
The focus in the motions to reopen is on the changed
country situation. Petitioners have already filed an expert
affidavit on the changes in conditions in Indonesia since 2008,
see Winters Aff. (Docket No. 49-6), so the need for the A-file
is not necessarily persuasive unless an individual can show a
specialized need (like litigation over asylum based on personal
circumstances that make targeting more likely). The statute
seems to suggest that 90 days from August 1, 2017 might be an
appropriate minimum timeframe for assembling a motion to reopen,
see 8 U.S.C. § 1229a(c)(7)(C)(i) (setting typical time limits
for motion to reopen); therefore, the 30-30 order is inadequate.
Furthermore, Congress recognized that a longer time period may
be appropriate when there is proof of changed country
circumstances. See id. § 1229a(c)(7)(C)(ii) (setting “no time
limit” on motion to reopen based on changed country conditions).

9

The Court has ordered the government to produce the A-files
forthwith. See Docket No. 58. However, the Court has no record
as to how many A-files have been produced thus far. The Court
also indicated that Petitioners’ attorneys should review the
record of prior proceedings in the Immigration Court if
necessary. See Docket No. 58.
21

The government has fourteen days to file an opposition to
the motion for preliminary injunction (Docket No. 3). The Court
believes it has an adequate record for determining a reasonable
time period to file a motion to reopen, but the government has
not had a chance to respond to the motion for preliminary
injunction. Also, the government shall clarify whether any
Petitioners must file motions to reopen before the BIA and
whether there will be an opportunity to have an emergency stay
request addressed prior to removal.
ORDER
For the foregoing reasons, this Court finds that it has
subject-matter jurisdiction over Counts I and II in the SAC.
This Court dismisses without prejudice Count III addressed in
the companion case. See Rombot v. Souza, 1:17-cv-11577-PBS,
Docket No. 49; Docket No. 52. The government is hereby
temporarily enjoined from removing all Petitioners named in the
SAC until the Court rules on the motion for preliminary
injunction or until further order of the Court.

SO ORDERED.

/s/ PATTI B. SARIS
____
Patti B. Saris
Chief United States District Judge

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