Calderon Jimenez v. Cronen et al
Filing
117
Judge Mark L. Wolf: ENDORSED ORDER entered. MEMORANDUM AND ORDER. Accordingly, it is hereby ORDERED that: 1.Petitioner's Motion for Leave to Depose ICE Directors Adducci, Brophy, and Lyons (Docket Nos. 108 , 114 ) is ALLOWED in part and DENIED in part. 2.Respondents shall, by July 18, 2018, produce all documents concerning: (a) the 2018 policies and general practices of the ICE Boston Field Office concerning the arrest, detention, and removal of aliens presenting for I-130 interviews at CIS offices or otherwise pursuing the provisional waiver process; (b) the identity and status of all aliens arrested while at a CIS office in 2018 within the jurisdiction of the ICE Boston Field Office while appearing for an I-130 interview, including: whether and for how long they have been detained; whether and when they received or will receive notices of custody reviews and custody reviews; whether and when ICE intends to deport them; whether they have received stays of removal; and whether ICE considered their applications for provisional waivers when deciding whether to deport them; and (c) the reasons for the decision to give De Souza a June 12, 2018 notice to depart the United States and to withdraw it, and the identity of the official(s) who made those decisions. 3.Petitioners may take one six-hour deposition of Adducci. They shall confer concerning whether depositions of Brophy and Lyons remain necessary and, if so, petitioners may take one up to four-hour deposition of each. The depositions shall be taken by July 27, 2018. 4.Petitioners shall by, August 1, 2018, supplement their submissions on the pending motions. 5. Respondents shall, by August 7, 2018, supplement their submissions on the pending motions. 6.A hearing on the pending motions shall commence on August 14, 2018, at 10:00 a.m., and may continue from day to day. (Franklin, Yvonne)
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 1 of 12
UNITED STATES
DISTRICT
LILIAN
PAHOLA CALDERON
AND LUIS GORDILLO,
DISTRICT COURT
OF MASSACHUSETTS
JIMENEZ
ET AL.,
individually and on behalf of all
others similarly situated,
Petitioner-Plaintiffs,
C.A.
V.
KIRSTJEN M.
NIELSEN,
No.
18-10225-MLW
ET AL.,
Respondent-Defendants.
MEMORANDUM AND ORDER
WOLF,
July 16, 2018
D.J.
In this case, petitioners, who are undocumented aliens and
their United States citizen spouses, seek to enjoin United States
Immigration and Customs Enforcement
("ICE")
from detaining and
removing
others
similarly situated
the
alien petitioners
and
before they can complete a process for seeking provisional waivers
of their inadmissibility and become lawful permanent residents.
Petitioners have filed a Motion for Temporary Restraining Order
and Preliminary Injunctive Relief, as well as a Motion for Class
Certification
pursuant
to
Federal
Rule
of
Civil
Procedure
23(b)(2). Respondents have filed a Motion to Dismiss the First
Amended Complaint for lack of jurisdiction and failure to state a
claim. The court has scheduled a hearing on the motions to be held
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 2 of 12
August
14,
2018.
See
June
29,
2018
Order,
SI4.
Petitioners
subsequently filed a Motion for Leave to Depose ICE Deputy Field
Office Directors Thomas Brophy [and] Todd Lyons, and [Interim Field
Office
Director]
Rebecca
Adducci,
before
the
August
14,
2018
hearing, pursuant to Federal Rule of Civil Procedure 30(a) (2) (A),
and for the production of certain documents.
The court is allowing the motion in part and denying it in
part. The requested discovery is being narrowed and limited to
information concerning the 2018 policies and practices of the ICE
Boston Field Office concerning the arrest, detention, and removal
of aliens who present for 1-130 interviews at offices of the United
States Citizenship and Immigration Services
("CIS")
or who are
otherwise applying for provisional waivers of inadmissibility as
the
spouses
individual
of
United
putative
States
class
citizens.^
members
is
Discovery
being
concerning
limited
to
the
identification and status of aliens arrested while at a CIS office
for an 1-130 interview in 2018,
including:
whether and for how
long they have been detained; whether and when they received or
will
receive notice of a
custody review and a
whether and when ICE intends to deport them;
received
^ The
stays
court
of
removal;
understands
and
that
the
whether
ICE
ICE
Boston
custody review;
whether they have
considered
Field
their
Office
is
responsible for Massachusetts, Rhode Island, Connecticut, Vermont,
New Hampshire, and Maine. See Respondents' 0pp. (Docket No. 116)
at
5
n.3.
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 3 of 12
applications
for
provisional
deport them.
The court is allowing petitioners to depose Adducci
for up to six hours,
However,
relating
waivers
when
whether
to
and Lyons and Brophy if necessary as well.
the court is denying petitioners'
to
deciding
Adducci's
appointment
as
request for documents
Interim
Field
Office
Director, as the reasons for her appointment do not appear relevant
to the motions for preliminary injunction or class certification,
and communications concerning her appointment may be privileged.
See Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp.
3d 1, 10-13
(D.D.C. 2014); see also In re Pharma. Indus. Average
Wholesale Price Litig., 254 F.R.D. 35, 39-40 (D. Mass. 2008).
On May 8,
2018,
the
court
found that
ICE was
detaining
petitioners Lucimar De Souza and Eduardo Junqueira in violation of
a Department of Homeland Security ("DHS")
regulation,
8 C.F.R.
§241.4, and the Due Process Clause of the Fifth Amendment to the
United States Constitution. See Jimenez v. Cronen, 2018 WL 2899733
{D. Mass. 2018). On May 22 and 23, 2018, the court began expedited
discovery concerning the
issues
raised in the motions
for
a
preliminary injunction and for class certification. See May 22,
2018 Tr. at 7. It took testimony from Brophy, Lyons, and ICE Deputy
Field Office Director James Rutherford concerning the reasons ICE
violated its regulations in detaining De Souza and Junqueira, and
whether the violations were part of a policy or practice that would
harm
similarly
situated
individuals
if
not
enjoined.
They
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 4 of 12
testified that after the court issued its decisions regarding De
Souza and Junqueira on May 8,
2018,
the Boston ICE Field Office
reviewed its files and found 30 to 40 other individuals were being
detained in violation of DHS regulations. See May 22, 2018 Tr. at
86; May 23,
Id.
at
2018 Tr, at 138. ICE released 20 of those detainees.
51.
The court also took testimony to determine whether ICE has a
practice of arresting and attempting to deport applicants seeking
provisional waivers at CIS offices and elsewhere, and whether that
practice is also likely to continue without judicial intervention.
Brophy testified that in about February 2018, he directed that the
ICE Boston Field Office stop arresting aliens at CIS offices if
they did not pose a threat to the local community or national
security.
See May 22,
2018 Tr.
at 22-23.
Deputy Director Todd
Lyons, who Rutherford and Lyons testified would become Acting Field
Office Director on June 1, 2018, testified that he would continue
Brophy's directive. See May 23, 2018 Tr. at 135.
Over petitioners' objection, see May 25, 2018 Joint Statement
at 2, the court adjourned the hearings because Brophy's and Lyons'
testimony suggested the detention and deportation of applicants
for provisional waivers was not likely to continue in the immediate
future,
and to give the parties time to discuss settlement. See
May 23, 2018 Lobby Conf. Tr. at 6; May 25, 2018 Order, Sll. In doing
so, the court considered respondents' position that adjourning the
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 5 of 12
hearings "would also allow []
Brophy and []
Lyons to use
[then-]
Director Brophy's last week in the Boston Field Office to effect
a
smooth
transition
of
leadership
and
continue
to
effect
the
changes in their office in accordance with their testimony." May
25,
2018 Joint Statement at 3.
However,
on
June
22,
2018,
respondents
filed
a
Notice
indicating that on June 7, 2018, Rebecca Adducci, rather than Todd
Lyons, had become Interim Field Office Director. Adducci submitted
a declaration stating that: "although [the] Boston [Field Office]
will
continue
to
prioritize
enforcement
efforts
toward
the
apprehension and removal of criminal aliens and those who pose a
danger to the community or to the national security of the United
States, no classes or categories of removable aliens are exempt
from enforcement, including detention." Adducci Decl.
100),
15.
(Docket No.
De Souza subsequently received notice that she must
depart the United States by August 12, 2018.2 in addition, another
putative class member, Godfrey Nkojo, was arrested and detained at
a check-in with the ICE Boston Field Office on July 2, 2018. See
Nkojo
V.
Nielsen,
C.A.
No.
18-11401
(filed
July
3,
2018).
Therefore, according to petitioners, despite Brophy's and Lyons*
testimony,
the
Boston
Field
Office
has
continued
arresting
2 The notice was subsequently withdrawn. See Docket No. 108 at 23.
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 6 of 12
provisional waiver applicants, detaining them,
removal,
In
and pursuing their
and may have resumed arresting them at CIS offices.
addition,
since
the
May
22
and
23,
2018
hearings,
the
Boston Field Office has detained at least one other individual in
violation of §241.4 and without due process. See Cleiton Alexander
Matias v.
others,
Tomkins,
C.A.
No.
18-11056,
Docket No.
Nkojo and David Kenneth Aligaweesa,
26 at
1.
Two
filed related cases
alleging that ICE had revoked their release and was detaining them
without the opportunity to be heard required by §241.4. See Nkojo,
C.A.
No.
C.A. No.
18-11401
18-11388
(filed July 3,
2018); Aligaweesa v.
(filed July 2, 2018).
In addition to depositions of Adducci,
petitioners
seek
appointment as
Nielsen,
all
documents
Lyons,
regarding:
Interim Field Office Director;
(a)
(b)
and Brophy,
Adducci's
enforcement
activities against persons presenting for 1-130 interviews at CIS
or otherwise pursuing the provisional waiver process, including
documents sufficient to identify aliens who have been arrested,
detained, and/or deported; and (c) the June 12, 2018 decision to
give De Souza a notice to depart the United States. Petitioners
argue that the additional discovery is necessary to understand
ICE'S current policy regarding detaining and deporting provisional
waiver applicants, which Adducci's June 22, 2018 affidavit did not
clearly describe. Respondents argue that the issues raised in their
motion
to
dismiss,
including
whether
federal
law
authorizes
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 7 of 12
petitioners'
deportations
and
authorizes
the
court
to
decide
questions concerning them, are "pure questions of law" for which
no discovery is needed. 0pp. at 3. They assert that, in any event,
petitioners would not be irreparably harmed if they were required
to argue the motion on the existing record, and that the requested
discovery would require unduly burdensome reviews of ICE's files;
interfere with Lyons' and Brophy's plans to be away from July 20
to July 29, 2018 and July 26 to July 30, 2018, respectively; and
divert Adducci from responding to other habeas corpus petitions,
training new staff,
116-1),
and other duties. Adducci Aff.
(Docket No.
559-10.
This
court,
like others,
would ordinarily defer discovery
while a motion to dismiss is pending.
See,
e.g.,
Guttenberg v.
Emery, 26 F. Supp. 3d 88, 97 (D.D.C. 2014). To obtain expedited
discovery,
26(d)(1);
a party must show good cause.
Fed.
R.
Civ.
P.
See Fed.
30 (a) (2) (A) (iii) ;
see
R.
Civ.
P.
also Momenta
Pharms., Inc. v. Teva Pharms. Indust. Ltd., 765 F. Supp. 2d 87, 88
(D. Mass. 2011)
(Gorton, J.). Good cause exists if the request for
expedited discovery is "reasonable[]...in light of all of the
surrounding
circumstances,"
including
"the
purpose
for
the
discovery, the ability of the discovery to preclude demonstrated
irreparable harm, the plaintiff's likelihood of success on the
merits, the burden of discovery on the defendant, and the degree
of prematurity." Id. at 89; see also McMann v. Doe, 460 F. Supp.
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 8 of 12
2d 259,
Int'l,
265
(D. Mass.
N.V.,
Therefore,
2006)
293 F.R.D.
"[w]ithout
(Tauro,
J.);
41
(D.
Mass.
risk
of
40,
a
cf.
Lauqhlin v. Orthofix
2013)
(Harrington,
irreparable
harm,
J. ).
expedited
discovery is unwarranted." Momenta, 765 F. Supp. 2d at 89-90; see
also
Wilcox
2012).
Indus.
Moreover,
Corp.
the
v.
Hansen,
requested
279
F.R.D.
discovery
64,
should
70
be
(D.N.H.
narrowly
tailored to address the immediate issues and asserted irreparable
harm.
See Fed.
R.
Civ.
P.
26(b)(1).
The merit of respondents' motion to dismiss is now uncertain.
The court initiated discovery with the hearings on May 22 and 23,
2018
because
ICE's
violations
of
§241.4
with
respect
to
two
petitioners caused concern that ICE was detaining other aliens
pursuing provisional waivers without due process. See May 22, 2018
Hearing Tr. at 7. Unlawful detention causes irreparable harm to
petitioners and their families. See Jimenez, 2018 WL 2899733, *22.
Petitioners' deportation, which would separate them from their
families for months or years, see Affidavit of Elizabeth Cannon,
53, may be an "extreme hardship" for their family members who are
United
States
citizens.
Presence Waivers of
See
Expansion
Inadmissibility;
of Provisional Unlawful
Final
Rule, 81
Fed.
Reg.
50244, 50244, 50246 (July 29, 2016); see also, e.g., Sanchez v.
Sessions, 857 F.3d 757, 759 (7th Cir. 2017); Leiva-Perez v. Holder,
640 F.3d 962,
969-70
(9th Cir. 2011).
Despite the May 8,
2018
decision and respondents' representations that ICE would change
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 9 of 12
its practices regarding arrest and detention,
there is evidence
that the challenged practices, including violations of §241.4, are
continuing.
See Matias,
Determining
whether
they
C.A.
No.
18-11056,
ICE's
"current
attitudes
have
policies
or
Docket No.
conduct,"
and
practices
26 at 1.
including
that
will
cause
more
irreparable harm to the petitioners and putative class members, is
critical
to
resolving
petitioners'
motions
for
a
preliminary
injunction and class certification. Farmer v. Brennan, 511 U.S.
825,
845
(1994);
s^
also
Fed.
R.
Civ.
P.
23(a)(2),
(b) (2) (requiring "questions of law or fact common to the class"
and that
that
respondents "ha[ve] acted or refused to act on grounds
apply generally to
the
class,
relief...is
appropriate
respecting
Information
concerning
ICE's
provisional waiver applicants,
so that
the
final
class
enforcement
as
injunctive
a
whole").
practices
against
including those presenting for
interviews at CIS offices, and the reasons for the June 12, 2018
decision to give De Souza a notice to depart the United States, is
relevant
to
these
issues.
Therefore,
the
limited
additional
discovery being ordered is appropriate to allow the court, if it
denies the motion to dismiss, to proceed as promptly as possible
to
the
motions
for
a
preliminary
injunction
and
class
certification.^
3 It may also be appropriate to consolidate the motion for
preliminary injunction with a trial on the merits. See Fed. R.
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 10 of 12
The limited discovery being ordered will not place an undue
burden on respondents. Producing documents identifying the status
of
aliens
arrested
at
CIS
offices
in
2018
will
not
"require
Respondents to identify every alien who has ever been arrested,
detained,
or removed while a
Form 1-130 was pending or approved
since the provisional waiver regulations were promulgated," which
respondents asserted would require ICE to undertake a manual search
of voluminous records. 0pp. at 5 {citing Adducci Aff. at SIS15-6) .
The June 29, 2018 Order put respondents on notice that they might
be ordered to produce such documents, among others, on July 17,
2018. Nevertheless, the court is extending the deadline to do so
to July 18, 2018.
The court recognizes that Adducci has many responsibilities.
However,
as indicated earlier,
her testimony is central to the
motions for preliminary injunction and class certification, which
should be addressed as promptly as possible if respondents' motion
to dismiss is denied. In view of the importance of her testimony,
the ignorance and indifference of officials in the ICE Boston Field
Office to their legal obligations in detaining aliens, see Jimenez,
2018 WL 2899733, at *4, *22, and the evidence that such unlawful
conduct is continuing under Adducci,
Civ.
P.
65(a)(2).
Continuing
see Matias,
discovery
potential of that option.
10
now
will
C.A.
No.
18-
enhance
the
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 11 of 12
11056, Docket No. 26 at 1, it is justified and reasonable to allow
petitioners to take her deposition for up to six hours.
Respondents did not explain the reasons Lyons and Brophy plan
to be away
from the
petitioners
deem
perhaps
their
absences.
In
Boston
their
office
continued
depositions
any
ICE
event,
can
be
in
testimony
taken
interrupting
late
July 2018.
to
be
before
what
may
If
necessary,
their
be
the
planned
family
vacations of officials who were complicit in unlawfully separating
aliens
from
their
families,
when
such
illegal
conduct
may
be
continuing, would not impose an unfair or undue burden on them.
Accordingly, it is hereby ORDERED that:
1.
Petitioner's Motion for Leave to Depose ICE Directors
Adducci, Brophy, and Lyons (Docket Nos. 108, 114) is ALLOWED in
part and DENIED in part.
2.
Respondents
shall,
by
July
18,
2018,
produce
all
documents concerning: (a) the 2018 policies and general practices
of the ICE Boston Field Office concerning the arrest,
and
removal
of
aliens
presenting for
1-130
detention,
interviews
at
CIS
offices or otherwise pursuing the provisional waiver process;
(b)
the identity and status of all aliens arrested while at a CIS
office in 2018 within the jurisdiction of the ICE Boston Field
Office while appearing for an 1-130 interview, including: whether
and for how long they have been detained; whether and when they
received or will receive notices of custody reviews and custody
11
Case 1:18-cv-10225-MLW Document 117 Filed 07/16/18 Page 12 of 12
reviews; whether and when ICE intends to deport them; whether they
have received stays of removal; and whether ICE considered their
applications
for
provisional
waivers
when
deciding
whether
to
deport them; and (c) the reasons for the decision to give De Souza
a June 12, 2018 notice to depart the United States and to withdraw
it, and the identity of the official(s) who made those decisions.
3.
Petitioners may take one six-hour deposition of Adducci.
They shall confer concerning whether depositions of Brophy and
Lyons remain necessary and, if so, petitioners may take one up to
four-hour deposition of each. The depositions shall be taken by
July 27, 2018.
4.
Petitioners shall by, August 1, 2018, supplement their
submissions on the pending motions.
5.
Respondents shall, by August 7, 2018, supplement their
submissions on the pending motions.
6.
A hearing on the pending motions shall commence on August
14, 2018, at 10:00 a.m., and may continue from day to day.
/s/ Mark L.
UNITED STATES
12
Wolf
DISTRICT JUDGE
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