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