Devitri et al v. Cronen et al

Filing 90

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. The Government is hereby stayed from removing any named Petitioner from the United States until one of the following conditions occurs:(1)If any named Petitioner fails to file a motion t o reopen and motion to stay with the BIA or Immigration Court within ninety days after receiving his or her A-file, the preliminary injunction will terminate as to that particular Petitioner. If a named Petitioner fails to file a timely appeal of the Immigration Courts denial of a motion to reopen to the BIA, the stay shall terminate as to that particular Petitioner.(2)If any named Petitioner fails to file a motion for relief with the First Circuit within seven business days of the BIA denyin g his or her motion to reopen, the preliminary injunction will terminate as to that particular Petitioner.(3)If an appeal of a denial of a motion to reopen is filed in the First Circuit within seven business days, the stay will terminate as to that particular Petitioner unless the First Circuit orders otherwise. (Geraldino-Karasek, Clarilde)

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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
February 1, 2018
Saris, C.J.
INTRODUCTION
Petitioners1 are fifty2 Indonesian Christians subject to
final Orders of Removal. Residing with Government permission in
New Hampshire under a humanitarian program called “Operation
Indonesian Surrender,” they have complied with the conditions of
their Orders of Supervision, some for more than a decade. Last
summer, the Government informed them that the program was being
terminated, and they were ordered to return to Indonesia within

Petitioners filed this as a putative class action. The
Court has not certified a class.
1

Bobby Candra was withdrawn from this action on January 19,
2018. See Docket No. 83.
2

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sixty days. Petitioners now seek to file 3 motions to reopen their
immigration proceedings based on “changed country conditions,”
on the ground that they are likely to face persecution or
torture in Indonesia because of their Christian faith.
Challenging their lack of meaningful access to the motion to
reopen procedure as a violation of the Due Process Clause of the
Fifth Amendment and contrary to the Immigration and Nationality
Act (“INA”) and the Convention Against Torture (“CAT”), 4
Petitioners assert jurisdiction under 28 U.S.C. § 2241, 28
U.S.C. § 1331, 28 U.S.C. § 1361, and 5 U.S.C. § 701 et seq. They
contend they will be removed to Indonesia before they have
sufficient time to file a motion to reopen and before the motion
to reopen is ruled on by the BIA and First Circuit. Accordingly,
they seek a preliminary injunction staying their removal.
The Government argues that Petitioners seek to circumvent
Congress’s immigration framework. They re-assert that this Court

At the time of this Memorandum and Order, the Court is
aware of two Petitioners who have motions to reopen based on
changed country conditions pending before the Board of
Immigration Appeals (“BIA”).
3

Two counts survive from Petitioners’ Second Amended
Complaint (“SAC”) (Docket No. 44): Count I under the INA, 8
U.S.C. § 1101 et seq., and Count II under the Due Process Clause
of the Fifth Amendment. The Court dismissed without prejudice
Count III, which related to the unlawful detention of Petitioner
Terry Rombot, in its order on jurisdiction because it was
addressed in a separate action. See Docket No. 65 at 22; see
also Rombot v. Souza, 1:17-cv-11577-PBS, Docket No. 49; Docket
No. 52.
4

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lacks jurisdiction, that Petitioners do not show that they are
likely to be removed before the administrative courts can
adjudicate their motions to stay removal, and that they have not
shown that they are each likely to face torture or persecution
as a result of removal.
After a hearing, the Court ALLOWS the motion for
preliminary injunction (Docket No. 3) staying removal to the
extent provided below.
BACKGROUND
The Court assumes familiarity with its November 27, 2017
order on jurisdiction (Docket No. 65, Devitri v. Cronen, Civ.
No. 17-11842-PBS, 2017 WL 5707528 (D. Mass. Nov. 27, 2017), and
only briefly summarizes the relevant background information
here.
I.

Factual Background
A.

The Humanitarian Program

Petitioners are Christian Indonesian nationals who have
lived in New Hampshire for many years (some for over a decade),
but are subject to final Orders of Removal. In 2010, Immigration
and Customs Enforcement (“ICE”) instituted a humanitarian
program called “Operation Indonesian Surrender” in New
Hampshire. Petitioners and other Indonesian nationals with final
Orders of Removal were encouraged to come “out of the shadows”
and identify themselves to ICE during the program. In exchange,
3

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they were granted temporary stays of removal and placed under
Orders of Supervision (“OSUPs”). These OSUPs allowed them to
seek employment and also prescribed conditions with which the
recipients had to comply. Petitioners lived and worked under
these OSUPs without incident until 2017 and generally complied
with their conditions.
The Government never made any promises or agreements that
the program participants could stay in the country indefinitely.
However, nothing in the record suggests that Petitioners were
notified that they would forfeit the right to assert changed
country conditions if they did not file motions to reopen while
they participated in Operation Indonesian Surrender. They
reasonably relied on their OSUPs in not filing motions to reopen
earlier and had no reason to suspect that the Government would
abruptly change its mind about the humanitarian program.
On August 1, 2017, a group of Petitioners checked in with
ICE pursuant to the conditions of their OSUPs. They were
informed that they would be subject to a “thirty-thirty”
deportation schedule: they would have to depart for Indonesia no
later than thirty days after their upcoming thirty-day check-in
appointment (i.e., sixty days from August 1, 2017).
B.

Fears of Persecution

Petitioners’ expert, Jeffrey Winters, Ph.D., states that
Indonesian society has recently faced a “rising tide of
4

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extremist Islam.” Winters Aff. (Docket No. 49-6) ¶ 8.
Petitioners have presented evidence that they may face
“intimidation, physical harm, and threats to their personal
safety and well-being,” based on their Christian religion, if
they returned to Indonesia. Winters Aff. (Docket No. 49-6) ¶ 2.
According to Dr. Winters, since 2012, the level of violence and
intolerance directed at religious minorities has increased at a
“shocking rate,” and Christian Indonesians face an “extremely
high probability of persecution.” Winters Supp. Aff. (Docket No.
88-1) ¶ 2.
Dr. Winters’s supplemental affidavit further states that
law enforcement in Indonesia is unlikely to provide meaningful
protection to religious minorities -- and Evangelical
Christians, like Petitioners, in particular -- in the face of
violence and intolerance. See Winters Supp. Aff. (Docket No. 881) ¶¶ 14, 33. He writes that “the Indonesian government actively
supports Islamic extremists who are anti-Christian” and “will
punish those who are ‘vocal’ and ‘assertive’ Christians, such as
Plaintiffs.” Winters Supp. Aff. (Docket No. 88-1) ¶ 6. Dr.
Winters also cites a 2013 United States government report, which
found that the Indonesian government “did not enforce laws that
would protect vulnerable groups and religions” and “collaborated
with hardline groups against members of sects they deemed to be
‘deviant.’” Winters Aff. (Docket No. 49-6) ¶ 108.
5

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His supplemental affidavit also includes articles covering
this case in the media in Indonesia. See Winters Supp. Aff.
(Docket No. 88-1) Ex. A. Although names of some of the
Petitioners are mentioned in media coverage, Petitioners have
presented no affidavits about their individual situations.
II.

BIA Procedures
Congress created a statutory right for each alien to file a

motion to reopen immigration proceedings. See 8 U.S.C. §
1229a(c)(7)(A); Perez Santana v. Holder, 731 F.3d 50, 51 (1st
Cir. 2013). Based on the alleged changed conditions in
Indonesia, Petitioners seek to file motions to reopen with the
BIA.5 See 8 U.S.C. § 1229a(c)(7)(C)(ii) (“There is no time limit
on the filing of a motion to reopen . . . based on changed
country conditions . . . .”).
Petitioners may request from the BIA a stay of their
removal pending a ruling on the motion to reopen. A stay is
discretionary. See Gearin Decl. (Docket No. 36-2) ¶ 7. A stay
request can only be submitted to the BIA if the individual
previously filed or contemporaneously files a motion to reopen.
See BIA Practice Manual § 6.4(b). The BIA “categorizes stay
requests into two categories: emergency and non-emergency.” Id.

Only two named Petitioners will be filing their motions to
reopen with the Immigration Court, according to Petitioners. See
Docket No. 72 at 4 n.4.
5

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§ 6.4(d). But the BIA does not consider stay requests on an
immediate “emergency” basis unless removal is imminent and the
individual is in ICE’s physical custody. Gearin Decl. (Docket
No. 36-2) ¶¶ 8-9; accord BIA Practice Manual § 6.4(d)(i).
Petitioners are not in physical custody, so the BIA’s emergency
stay procedures would not apply to them.
Instead, Petitioners would be subject to the “nonemergency” stay procedures. The BIA’s practice manual states
that it “does not rule immediately on a ‘non-emergency’ stay
request, but considers the request during the normal course of
adjudication.” BIA Practice Manual § 6.4(d)(ii). In practice,
the BIA often does not rule on non-emergency stay requests from
non-detained individuals. See Chan Decl. (Docket No. 72-2) ¶ 12;
Mesa Aff. (Docket No. 72-6) ¶¶ 7-8; Piereson Aff. (Docket No.
72-7) ¶ 11. When the BIA does rule on non-emergency stay
requests, it typically does so at the same time that it decides
the motion to reopen. See Greenstein Aff. (Docket No. 72-3) ¶
19. Even if the BIA rules on the motion for a stay and denies
it, there is no right to appeal the stay denial until the BIA
also rules on the motion to reopen. See Gando-Coello v. I.N.S.,
857 F.2d 25, 26 (1st Cir. 1988) (holding that BIA’s denial of

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stay pending disposition of motion to reopen is not a final
administrative order reviewable by Court of Appeals). 6
In sum, absent a judicial stay, contrary to the
Government’s assertions, I find that it is likely that
Petitioners will be deported to Indonesia before their motions
to stay and motions to reopen are considered by the BIA and the
Court of Appeals.7
DISCUSSION
I.

Preliminary Injunction
A.

Legal Standard

In order to be granted a preliminary injunction, a
plaintiff must show the Court “that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”

The First Circuit has held that there is a right to pursue
a post-removal motion to reopen in the BIA and Court of Appeals.
See Perez Santana, 731 F.3d at 51.
6

Two Petitioners will file with the Immigration Court, which
has different procedures. As discussed in the Court’s earlier
decision in this case, the Immigration Court will consider
motions for stays from non-detained persons. While the
Government hints that an Immigration Judge’s denial of a stay
request may not be appealed to the BIA until the motion to
reopen is adjudicated, see Dufresne Decl. (Docket No. 36-1) ¶
12, the parties have not fully briefed the issue of whether the
BIA may review an Immigration Court’s denial of a motion to
stay.
7

8

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Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645
F.3d 26, 32 (1st Cir. 2011) (quoting Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). “The sine qua non of this
four-part inquiry is likelihood of success on the merits: if the
moving party cannot demonstrate that he is likely to succeed in
his quest, the remaining factors become matters of idle
curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc.,
287 F.3d 1, 9 (1st Cir. 2002).
B.

Likelihood of Success on the Merits

In arguing that Petitioners are not likely to succeed on
the merits, the Government primarily returns to its challenge to
this Court’s jurisdiction, which the Court has already rejected.
The Government’s central argument is that the motion to
reopen process is an adequate administrative alternative to
habeas corpus relief, and therefore the jurisdiction-stripping
language in 8 U.S.C. § 1252(g) 8 does not violate the Suspension

8

The relevant language from 8 U.S.C. § 1252(g) reads:
“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, . . . 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 [Secretary of
Homeland Security] to . . . execute removal
orders against any alien . . . .”
9

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Clause of the United States Constitution. 9 Congress may provide
adequate substitutes for habeas corpus without offending the
Suspension Clause. See I.N.S. v. St. Cyr, 533 U.S. 289, 314 n.38
(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”). Generally speaking, circuits have rejected Suspension
Clause challenges on the ground that a motion to reopen plus a
petition for review in the court of appeals would be an adequate
substitute for habeas corpus. See, e.g., Iasu v. Smith, 511 F.3d
881, 893 (9th Cir. 2007) (rejecting as-applied challenge);

The Suspension Clause provides: “The 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.
9

The Government presses an argument that Petitioners do not
bring a “traditional” habeas claim under 28 U.S.C. § 2241 as
historically understood because they do not seek release from
physical custody. However, the Supreme Court itself has pointed
out that the writ was historically used in a wide variety of
circumstances, ranging from requests for freedom from the
restraints of apprenticeship to challenging the refusal to let
an immigrant leave a ship and land on shore. See I.N.S. v. St.
Cyr, 533 U.S. 289, 301-03, 305-06 (2001); see also Saint Fort v.
Ashcroft, 329 F.3d 191, 197 (1st Cir. 2003) (“The writ of habeas
corpus has been employed by non-citizens for centuries in both
the United States and Britain.”).
10

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Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007) (same);
Alexandre v. U.S. Att’y Gen., 452 F.3d 1204, 1206 (11th Cir.
2006) (per curiam) (rejecting facial challenge).
Acknowledging this line of cases, Petitioners vigorously
contend that the motion to reopen and review procedure violates
the Suspension Clause as applied to their cases because it is
not an adequate substitute to habeas relief in changed-countrycondition cases where a petitioner raises a non-frivolous claim
that he will be persecuted after removal but before the motion
to reopen can be ruled on by the BIA and Court of Appeals. The
Court previously found that the Immigration Court’s procedures
for adjudicating motions to reopen and motions to stay
“typically are an adequate and effective administrative
alternative to habeas corpus relief consistent with the
Suspension Clause.” Docket No. 65 at 19. However, the Court did
not address the adequacy of the opportunity for judicial review.
The Court also reserved the question of whether the BIA’s
procedures are an adequate and effective substitute for habeas
relief for these Petitioners. See Docket No. 65 at 19.
On the fuller record now before the Court, I find that the
BIA’s processes for adjudicating motions to reopen and motions
to stay are not adequate administrative alternatives to habeas
for these Petitioners. The Government has conceded that
Petitioners -- who are not in custody -- would not be subject to
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the BIA’s emergency stay procedures. Gearin Decl. (Docket No.
36-2) ¶¶ 8-9; accord BIA Practice Manual § 6.4(d)(i).
Petitioners have provided persuasive evidence demonstrating that
it is likely that the BIA will not rule on their non-emergency
motions to stay before they are deported. See Chan Decl. (Docket
No. 72-2) ¶ 12; Mesa Aff. (Docket No. 72-6) ¶¶ 7-8; Piereson
Aff. (Docket No. 72-7) ¶ 11; Realmuto Aff. (Docket No. 49-5) ¶
21; cf. Greenstein Aff. (Docket No. 72-3) ¶ 19 (explaining that,
when BIA does rule on a non-emergency stay motion, it does so
“at the same time that it adjudicates the motion to reopen,
essentially rendering the stay request moot”). Thus, under this
Kafkaesque10 procedure, they will be removed back to the very
country where they fear persecution and torture while awaiting a
decision on whether they should be subject to removal because of
their fears of persecution and torture. Petitioners have proven
by a preponderance of the evidence that the BIA’s procedures
will not be adequate to protect their due process rights and
their rights under asylum law, the CAT, and the INA. Thus, as
applied to the circumstances of this case, 8 U.S.C. § 1252(g) is
a violation of the Suspension Clause, and this Court has habeas
and federal-question jurisdiction over Petitioners’ statutory
and Constitutional claims.

See Franz Kafka, The Trial (1925) (telling story of a man
arrested and prosecuted by a remote, inaccessible authority).
10

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Citing 8 U.S.C. § 1252(a)(1) and (b)(3)(B), the Government
also argues that the federal courts of appeals “have ample
authority to halt the execution of a removal order.” Docket No.
68 at 7. But that is not true, because the circuit courts only
have jurisdiction over a denial of a motion to reopen, see
Gando-Coello, 857 F.2d at 26 (holding that court of appeals’
jurisdiction does not attach until there is a final
administrative order), which can happen after removal, see Diaz
v. Sessions, No. 17-3669, 2018 WL 443879, at *2 (6th Cir. Jan.
17, 2018) (noting that BIA denied petitioner’s motion to reopen
approximately one month after she was removed to Mexico). As the
Government acknowledges, meaningful judicial review is critical
to a finding that a statutory scheme provides an adequate
substitute for habeas relief. See St. Cyr, 533 U.S. at 314 n.38.
Plaintiffs allege that removing Petitioners without giving
them access to the motion to reopen process -- “their core
procedural entitlement” -- “violates [the] due process guarantee
of the Fifth Amendment.” SAC ¶ 108. The Fifth Amendment’s Due
Process Clause mandates that “[n]o person shall . . . be
deprived of . . . liberty . . . without due process of law.”
U.S. Const. amend. V. As a starting point, “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 v. Davis, 533 U.S.
13

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678, 693 (2001). “[T]he Fifth Amendment entitles aliens to due
process of law in deportation proceedings.” Reno v. Flores, 507
U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189
U.S. 86, 100-01 (1903)). The Due Process Clause also protects an
alien subject to a final order of deportation, “though the
nature of that protection may vary depending upon status and
circumstance.” Zadvydas, 533 U.S. at 693-94.
A cognizable liberty or property interest is a prerequisite
to a colorable due process claim. Jupiter v. Ashcroft, 396 F.3d
487, 492 (1st Cir. 2005) (citing Mathews v. Eldridge, 424 U.S.
319, 334-35 (1976)). In 8 U.S.C. § 1229a(c)(7), Congress
codified the right to file one motion to reopen and created a
statutory form of relief available to an alien. Dada v. Mukasey,
554 U.S. 1, 4-5 (2008). Generally, a non-citizen may not base a
due process claim on a denial of a motion to reopen because the
discretionary relief of reopening immigration proceedings is not
an entitlement or right. See Naeem v. Gonzales, 469 F.3d 33, 3839 (1st Cir. 2006) (rejecting due process claim for denial of
motion to reopen based on wife’s naturalization).
Here, there is a statutory right to move to reopen and an
entitlement to not be deported to a country where persecution
would occur. See 8 U.S.C. § 1231(b)(3)(A) (mandating that ICE
“may not remove an alien to a country if . . . the alien’s life
or freedom would be threatened in that country because of the
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alien’s . . . religion”).11 Thus, Petitioners do have a
significant interest in the right to file a motion to reopen and
the opportunity to have their fears of persecution and torture
adjudicated before removal.
For some essential entitlements, only a pre-deprivation
opportunity to be heard will provide sufficient procedural due
process. See Goldberg v. Kelly, 397 U.S. 254, 264 (1970); cf. 8
U.S.C. § 1229a (setting out procedures for pre-removal
immigration proceedings). The legal question here is whether the
right to post-removal consideration of a motion to reopen and
motion to stay meets due process standards in a change of
country conditions case where there is a colorable claim of
persecution. In my view, such a procedure does not meet the
requirements of due process because of the significance of the
liberty interests at stake. See Hamama v. Adducci, 261 F. Supp.

This principle, known as “non-refoulement,” originated in
the United Nations Convention Relating to the Status of Refugees
(“Convention”), which was enacted in 1951 to protect European
refugees after World War II. See UNHCR, The UN Refugee Agency,
The 1951 Convention Relating to the Status of Refugees and Its
1967 Protocol 1 (2011). Article 33.1 of the Convention imposed a
mandatory non-refoulement duty on the signatory states. See
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987). In 1968,
the United States agreed to abide by many of the substantive
provisions of the Convention. Id. Then, in 1980, Congress passed
the Refugee Act, which codified the non-refoulement mandate of
Article 33.1 and removed any remaining executive discretion from
the process. Id. Non-citizens may assert claims for asylum and
withholding of removal under 8 U.S.C. § 1231(b)(3) and the CAT
in motions to reopen based on changed country conditions. See 8
C.F.R. §§ 1003.2(c)(3), 1003.23(b)(4).
11

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3d 820, 837-38 (E.D. Mich. 2017) (holding that, in a similar
case, “impeded access” to the motion to reopen procedure before
removal supported likely success on due process claim). Based on
the record, I find that Petitioners have proven a likelihood of
success on their due process claim that they will suffer
prejudice through a denial of a meaningful opportunity to have a
motion to reopen and motion to stay ruled on by the BIA and
Court of Appeals prior to removal to a country where they have a
credible fear of persecution. See, e.g., Chan Decl. (Docket No.
72-2) ¶ 12; Mesa Aff. (Docket No. 72-6) ¶¶ 7-8; Piereson Aff.
(Docket No. 72-7) ¶ 11.
C.

Irreparable Harm

A preliminary injunction must only issue when the moving
party demonstrates that it would likely suffer irreparable harm
before a decision on the merits could be rendered. See Voice of
the Arab World, Inc., 645 F.3d at 32 (“[T]he basis for
injunctive relief in the federal courts has always been
irreparable injury and the inadequacy of legal remedies.”
(quoting Weinberger v. Romero-Barceló, 456 U.S. 305, 312
(1982))). A showing of possible irreparable injury is
insufficient. See Matos ex rel. Matos v. Clinton Sch. Dist., 367
F.3d 68, 73 (1st Cir. 2004) (“A threat that is either unlikely
to materialize or purely theoretical will not do.”). Instead,
the moving party must show a “cognizable threat” of irreparable
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harm absent a preliminary injunction. Ross-Simons of Warwick,
Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996).
The burden of removal alone cannot constitute the requisite
irreparable injury for a non-citizen. Nken v. Holder, 556 U.S.
418, 434-35 (2009) (analyzing the appropriate standard for a
stay of removal). The Supreme Court reasoned: “Aliens who are
removed may continue to pursue their petitions for review, and
those who prevail can be afforded effective relief by
facilitation of their return, along with restoration of the
immigration status they had upon removal.” Id. at 435. It is not
enough to demonstrate some possibility of irreparable harm. Id.
at 434-35.
Petitioners characterize their irreparable harm as “a
significant risk of persecution and torture if they are removed
to Indonesia.” Docket No. 4 at 12. The Government argues that
Petitioners’ concerns about possible persecution or torture in
Indonesia are nothing but “conjecture, surmise, or . . .
unsubstantiated fears” that do not amount to irreparable harm.
Docket No. 68 at 18 (quoting Charlesbank Equity Fund II v.
Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004)). Both
sides agree that the Court should not hold a hearing on the
actual conditions for Evangelical Christians in Indonesia today
to resolve this fact issue. So the question is whether the

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Petitioners have put forth sufficient credible evidence to
demonstrate irreparable harm.
The Government seems to suggest that Petitioners cannot
establish irreparable harm because they are entitled to file and
litigate motions to reopen after their removal to Indonesia. See
Docket No. 68 at 14 (quoting Perez Santana, 731 F.3d at 61). But
the Government’s reliance on Perez Santana is misplaced because
the petitioner in that case did not file his motion to reopen
under a changed country conditions theory; the only basis for
his motion was the vacatur of a criminal conviction. See 731
F.3d at 52. Thus, he did not face a threat of persecution upon
removal.
Petitioners have presented unrebutted evidence to show
that, if they were deported to Indonesia, they would face the
threat of persecution or torture. Indeed, Dr. Winters states:
While I am not able to speak to legal consequences, I
wish to express in the strongest terms that if these
Plaintiffs, whose stories are now well-known in
Indonesia, are returned, they are highly likely to
face retribution by the Indonesian authorities for
having “spoken out as Christians,” and will certainly
never be permitted to leave Indonesia for the U.S.
again. The Indonesian government is extremely
sensitive about negative portrayals of the country
abroad, and officials take an especially negative view
of Indonesians who are the source of the criticism.
Winters Supp. Aff. (Docket No. 88-1) ¶ 5. Moreover, even if the
BIA granted Petitioners’ motions to reopen after their removal,
they may not be able to return to the United States. See Winters
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Supp. Aff. (Docket No. 88-1) ¶ 13 (stating that it is
“unrealistic to believe that these Plaintiffs will be permitted
to travel to the U.S. to participate in their reopened
immigration proceedings” if their post-removal motions to reopen
are successful); Kanstroom Aff. (Docket No. 88-2) ¶ 11 (noting
that “it is far from clear that the U.S. government would ever
actually return them”); Hoppock Aff. (Docket No. 88-3) ¶ 5
(discussing why “it is highly unlikely that Plaintiffs will be
returned” if successful on a motion to reopen). Petitioners have
also submitted evidence that this case has been covered by the
Indonesian press, which has expressly stated the names of some
of the Petitioners, see Winters Supp. Aff. (Docket No. 88-1)
Exs. A, B, and that Evangelical Christians will be targeted by
extremist groups without government protection, see Winters
Supp. Aff. (Docket No. 88-1) ¶ 14.
It is true that there is no individualized evidence
concerning the specific threats each Petitioner faces in
Indonesia. The Court is unfamiliar with the quantum of evidence
the BIA demands to meet that individualized burden, particularly
for persons who left their native country over a decade ago.
Still, based on the record, including the supplemental filings,
the Court finds that Petitioners have presented a sufficient
basis for fearing persecution to demonstrate a motion to reopen
is non-frivolous. The Court further finds that Petitioners have
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demonstrated a successful motion to reopen will not necessarily
result in a restoration of immigration status for many.
D.

Balance of Equities and Public Interest

Finally, the Court must weigh the irreparable harm to
Petitioners against the harm to the Government and must
determine whether a preliminary injunction would be in the
public interest. See Voice of the Arab World, Inc., 645 F.3d at
32. These two inquiries merge in a case like this one, where the
Government is the party opposing the preliminary injunction. See
Nken, 556 U.S. at 435 (explaining that two factors merge when
court of appeals decides whether a stay of removal pending
adjudication is necessary).
The Government argues that it will be irreparably injured
if it is enjoined from removing these Petitioners and from
effectuating the immigration statutes passed by Congress. While
it is true that “[t]here is always a public interest in prompt
execution of removal orders,” the Supreme Court has
simultaneously recognized that “there is a public interest in
preventing aliens from being wrongfully removed, particularly to
countries where they are likely to face substantial harm.” Nken,
556 U.S. at 436. The public’s interest in providing due process
for non-citizens to ensure that they are not removed to a
country where they will be persecuted is an extremely weighty
one. Cf. Kucana v. Holder, 558 U.S. 233, 242 (2010) (“The motion
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to reopen is an ‘important safeguard’ intended ‘to ensure a
proper and lawful disposition’ of immigration proceedings.”
(quoting Dada, 554 U.S. at 18 (2008))).
A brief delay in unlawful deportation of residents who have
lived here with Government permission for over a decade
outweighs the public interest in prompt execution of removal
orders, where Petitioners have been law-abiding and pose no
threat to public safety.
The Government advises that “[t]he Court should allow the
robust administrative process to operate as Congress intended.”
Docket No. 68 at 20. The Court agrees with the Government’s
position on this point. In entering a preliminary injunction to
stay Petitioners’ removal from the United States, the Court is
doing no more than allowing them to use the administrative and
judicial procedures that Congress designed and the Constitution
requires. This injunctive relief is consistent with
Congressional intent. Cf. Singh v. Gonzales, 499 F.3d 969, 97980 (9th Cir. 2007) (noting that habeas relief in petitioner’s
case only would result in sufficient time to file petition for
review in court of appeals, “which is consistent with
Congressional intent underlying the REAL ID Act”).
II.

A-files
Petitioners seek their full alien files (“A-files”) before

filing their motions to reopen. The Government contends that
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Petitioners do not need the A-files and that the Records of
Proceedings before the Immigration Court will suffice. 12
Petitioners maintain that the A-files are necessary for
preparing the motions to reopen based on changed country
conditions to demonstrate what has “changed” for each Petitioner
individually since the original decision. See, e.g., Anker Decl.
(Docket No. 72-1) ¶¶ 10-11 (explaining that “the A-File provides
the necessary baseline for comparison” for a changed country
conditions motion); Greenstein Aff. (Docket no. 72-3) ¶ 16
(noting that the Records of Proceedings available for review in
the Immigration Court are not a sufficient substitute for the
full A-file); Realmuto Aff. (Docket No. 49-5) ¶ 10 (describing
differences between A-file and Record of Proceedings). These
affidavits are persuasive.
Immigration attorneys also have stated that counsel for
Petitioners will need six weeks to three months after receiving
the A-files to submit the motions to reopen. See Anker Decl.
(Docket No. 72-1) ¶ 13; Realmuto Aff. (Docket No. 49-5) ¶ 12.
The Court finds that this time is reasonably necessary under the

The Government argues that the relevant information for a
motion to reopen based on changed country conditions is
contained in the Records of Proceedings. However, counsel of
record for Petitioners were not given full access to the Records
of Proceedings. They were allowed to read the documents in the
Immigration Court, but not photocopy them. Piereson Aff. (Docket
No. 72-7) ¶ 5. The Government is seeking to remedy this
unfortunate situation. See Docket No. 87 at 2-3.
12

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Due Process Clause, given the length of time Petitioners have
been in the country and the need to investigate their individual
situations if returned to Indonesia. See Hamama, 261 F. Supp. 3d
at 841 (granting petitioners ninety days from receipt of A-files
to submit motions to reopen in similar case). Accordingly, the
stay of removal will expire for a Petitioner if the Petitioner
does not file motions to reopen and to stay within ninety days
after receiving the A-file.13
III. Terms of the Injunction
The stay14 shall remain in effect until seven business days
after the BIA rules on a timely motion to reopen. The stay will
continue for this additional seven-business-day period after the
BIA rules on an individual’s motion to reopen so there will be a
meaningful opportunity to seek a stay in the First Circuit and
obtain judicial review.

The Court ordered production of the A-files. See Docket No.
58. In addition, most Petitioners have submitted FOIA requests
for their files. See Docket No. 79. So far, the Government has
served eleven A-files on December 15, 2017, six A-files on
January 5, 2018, and eleven A-files on January 12, 2018.
Laughlin Decl. (Docket No. 80-1) ¶ 4. Production of all
remaining A-files will be completed no later than February 28,
2018. Laughlin Decl. (Docket No. 80-1) ¶ 15.
13

The Court is using the words “stay” and “injunction”
interchangeably.
14

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ORDER
The Government is hereby stayed from removing any named
Petitioner from the United States until one of the following
conditions occurs:
(1)

If any named Petitioner fails to file a motion to
reopen and motion to stay with the BIA or Immigration
Court within ninety days after receiving his or her Afile, the preliminary injunction will terminate as to
that particular Petitioner. If a named Petitioner
fails to file a timely appeal of the Immigration
Court’s denial of a motion to reopen to the BIA, the
stay shall terminate as to that particular Petitioner.

(2)

If any named Petitioner fails to file a motion for
relief with the First Circuit within seven business
days of the BIA denying his or her motion to reopen,
the preliminary injunction will terminate as to that
particular Petitioner.

(3)

If an appeal of a denial of a motion to reopen is
filed in the First Circuit within seven business days,
the stay will terminate as to that particular
Petitioner unless the First Circuit orders otherwise.
/s/ PATTI B. SARIS
____
Patti B. Saris
Chief United States District Judge

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