Calderon Jimenez v. Cronen et al
Filing
95
Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER.Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW(Bono, Christine)
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 1 of 62
UNITED STATES
DISTRICT
COURT
DISTRICT OF MASSACHUSETTS
LILIAN
PAHOLA CALDERON
AND LUCIMAR DE SOUZA,
JIMENEZ
ET AL.
Petitioner-Plaintiffs,
C.A.
CHRISTOPHER CRONEN,
No.
18-10225-MLW
C.A.
V.
No.
18-10307-MLW
ET AL,
Respondent-Defendants
EDUARDO RALPH JUNQUEIRA,
Petitioner,
V.
STEVEN SOUZA,
ET AL,
Respondents.
MEMORANDUM AND ORDERS
WOLF,
June 11,
D.J.
I.
2018
SUMMARY
This country was born with a declaration of universal human
rights,
proclaiming that:
"all men are created equal,
that they
are endowed by their Creator with certain unalienable rights," and
that
among
Independence
these"
is
(1776).
This
"Liberty."
concept
U.S.C.A.
was
codified
Amendment to the United States Constitution,
that
"no person
shall
Declaration
in
the
Fifth
which states in part
be... deprived of... liberty... without
^ This Memorandum and Order amplifies and,
of
to a
due
limited extent,
updates a decision delivered orally in court on May 8, 2018.
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 2 of 62
process of the law."
has
written,
U.S.
"[f]reedom
Const. Amend.
from
V. As the Supreme Court
imprisonment—from
government
custody, detention, or other forms of physical restraint—lies at
the heart of the liberty that Clause protects." Zadvydas v. Davis,
533 U.S.
678,
690
(2001). As the words "no person" indicate,
and
as the Supreme Court has confirmed, "the Due Process Clause applies
to all
'persons' within the United States whether their presence
here is lawful, unlawful, temporary,
or permanent." Id. at 693.
The United States has historically been distinguished by its
dedication to treating lawfully and fairly all among us, including
aliens who are in the country illegally. However, as Supreme Court
Justice Louis D.
Brandeis observed,
labor to possess that which
[we]
in each generation we
have inherited."
Paul
"must
Freund,
"Mr. Justice Brandeis," in On Law and Justice at 119 (1968). These
cases are a reminder that Justice Brandeis was right.
Lucimar De Souza,
a
Brazilian national,
States unlawfully in 2002.
entered the United
She alleges that she did not receive
notice of the hearing to determine whether she should be deported
from the United States.
In any event,
in June 2002,
De Souza was
ordered to leave the country and did not.
Eduardo Junqueira, who was also born in Brazil, entered the
United States unlawfully in 2004.
later
that
unlawfully.
year.
Junqueira
soon
He was apprehended and deported
reentered
the
United
States
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 3 of 62
In 2006, De Souza married a United States citizen. They have
an 11-year old son who is a United States citizen. Junqueira also
married a United States citizen.
and
12,
who
are
United
States
They have two children,
citizens.
Neither
De
ages 10
Souza
nor
Junqueira has ever violated any law other than by entering and
remaining in the United States illegally.
De
Souza
and
Junqueira
present
the
United
States
with
dilemmas. As generous as the United States has traditionally been
in
admitting
immigrants
everyone who aspires
laws
must
interest
be
in
to
enforced.
not
and
refugees,
live here.
However,
destroying
it
cannot
Therefore,
the
country
families
by
accommodate
its
also
immigration
has
deporting
a
strong
the
wives,
husbands, mothers, and fathers of United States citizens.
To reconcile these competing interests, the United States has
established a process for determining whether aliens in the country
illegally should be allowed to remain here with their families and
become lawful Permanent Residents. The first step in that process
requires
the
Immigration
alien
Services
to
prove
to
("CIS"),
United
an
States
agency
of
Citizenship
the
Department
and
of
Homeland Security ("DHS"), that his or her marriage is bona fide,
rather than a sham to obtain immigration benefits.
Both De Souza
and Junqueira have attempted to utilize this process.
On
office,
January 30,
2018,
at
a
scheduled appointment
De Souza and her husband were
at
found to have a
a
CIS
genuine
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 4 of 62
marriage.
De Souza was,
another
agency
of
("ICE") .
Similarly,
however,
DHS,
immediately arrested there by
Immigration
on February 1,
and
2018,
were at a
CIS office for a
marriage.
Before the interview began,
Customs
Enforcement
Junqueira and his wife
scheduled interview concerning their
ICE arrested Junqueira.
De Souza and Junquiera each filed petitions for habeas corpus
asserting
they
are
being
detained
by
ICE
in
Constitution and laws of the United States,
directing
ICE
to
release
them.
De
Souza
violation
of
the
and seeking an order
is
also
attempting
to
represent a putative class in challenging the authority of ICE to
arrest aliens at CIS offices and,
wherever they are arrested,
to
deport them before CIS decides whether to grant them provisional
waivers
that
would
allow
them
to
seek
to
remain
in
the
United
States with their families.
Federal law also creates a
process for determining whether
aliens like De Souza and Junqueira, who have been ordered removed,
should be
detained while
their removal.
the
government
A federal statute,
attempts
8 U.S.C.
to
effectuate
§1231(a)(2),
requires
that an alien ordered removed from the United States be detained
for
up to
90
becomes final.
days,
ordinarily starting on the date the
order
These 90 days are defined by the statute as the
"removal period." Id. §1231(a)(l). ICE must give an alien notice
and an opportunity to be heard before detaining him or her for
longer than 90 days. See 8 C.F.R. §241.4. At the time of the May
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 5 of 62
8,
2018
hearing
Junqueira
for
in
these
more
cases,
than
90
ICE
days
had detained
without
De
following
Souza
the
and
process
prescribed by its regulations.
ICE initially argued that the regulations do not apply to De
Souza,
and
that
Junqueira.
they
had
not
been
violated
with
respect
to
ICE subsequently acknowledged that the regulations do
apply and, even on its interpretation, which may be incorrect, the
regulations were violated in each case. See May 8, 2018 Tr. at 1518,
22-25,
35-36.
However,
ICE contends
that
the court does
not
have the power to provide a remedy for the unlawful detention of
an alien who has not been in custody for at least six months.
ICE
relies on the Supreme Court's decision in Zadvydas in making this
claim.
ICE'S
guarantee
argument
of
due
is
unmeritorious.
process
has
two
The
Fifth
components.
The
Amendment
substantive
component prohibits restrictions on liberty that are not narrowly
tailored
to
serve
a
compelling
state
interest,
process is employed in deciding to impose them.
person who
is
detained has
a
right
no
matter
what
In addition,
to procedural
a
due process,
meaning a right to a fair process for challenging the reasons for
detention. Fundamental features of procedural due process are fair
notice
of
meaningful
substantive
the
reasons
for
the
possible
opportunity to address
due
process
component
them.
of
loss
of
liberty
and
a
Zadvydas addressed the
the
Fifth Amendment.
The
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 6 of 62
Supreme Court held, in effect, that an alien's right to substantive
due process could be violated by prolonged detention even if the
alien's right to procedural due process had been satisfied.
533
U.S.
at
697.
Implicitly
assuming
that
the
alien
See
had
been
afforded procedural due process, the Court found that detention of
an alien for up to six months is presumptively reasonable for the
purpose of the substantive due process analysis.
However,
Id. at 701.
as Justice Anthony Kennedy wrote in his dissent in
Zadvydas, without dispute from the majority, "[w]ere the [DHS], in
an arbitrary or categorical manner, to deny an alien access to the
administrative processes in place to review continued detention,
habeas jurisdiction would lie to redress the due process violation
caused by the denial of the mandated procedures..." Id.
25.
at 724-
Justice Kennedy's position was a particular application of a
long
line
of
regulations
"McCarthy
Supreme
are
Court
and
laws
era,"
that
the
the
Supreme
other
decisions
government
Court
held
must
that
holding
obey.
having
that
In
issued
regulations delegating to the Board of Immigration Appeals
"BIA")
the
deported,
discretion
the
to
Attorney
decide
General
whether
could
not
an
alien
dictate
(the
should
the
the
be
BIA's
decisions. See Accardi v. Shauqhnessy, 347 U.S. 499, 502—04 (1954).
During
the
"Watergate"
era,
the
Attorney
General
issued
regulations delegating to a Special Prosecutor the authority to
conduct investigations relating to the 1972 election of President
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 7 of 62
Richard Nixon.
See United States v.
Nixon,
418 U.S.
683,
694-96
(1974). This authority included the power to issue subpoenas and
to seek judicial enforcement of them, including by contesting any
assertion
of
Executive
Privilege.
Id.
at
694-95.
The
President
claimed that he had the unreviewable power to assert that privilege
and refuse to comply with the Special Prosecutor's subpoena for
tapes the President secretly made in the Oval Office.
Id. at 693.
The Supreme Court rejected this claim, holding that the regulation
had "the force of law," the "Executive Branch [was]
bound by it,"
and the Court was "bound to respect and enforce it." Id.
696.
at 695,
Finding that the subpoena was properly issued and that the
Executive Privilege did not provide a basis to quash it, the Court
ordered the President to comply with the subpoena.
The predecessor to DHS,
Service
("INS"),
the
Id. at 716.
Immigration and Naturalization
issued regulations that were expressly intended
to provide all aliens the due process that is constitutionally
required
before
deciding
continued following the
argues
that
those
whether
initial
regulations
their
detention
should
90-day removal period.
provide
that
any
ICE
alien
be
now
ordered
removed can later be detained for 90 days before his or her custody
is reviewed.
See May 8,
2018 Tr.
at 15.
It acknowledges that the
alien and his or her attorney must be given notice of that custody
review 30 days in advance to afford them the opportunity to provide
information
in
support
of
the
alien's
release.
See
8
C.F.R.
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 8 of 62
§241.4 (d) (3),
(h) (2).
ICE has
a
duty to obey these
regulations
even if they provide greater protection than is constitutionally
required. See Nelson v.
INS, 232 F.3d 258, 262
As indicated earlier,
nor
Junquiera
were
Fifth Amendment.
it is undisputed that neither De Souza
provided
interpretation of the
the
process
regulations and,
Indeed,
(1st Cir. 2000).
required
the
court
under
finds,
ICE's
by the
ICE made no effort to follow the process
prescribed by its regulations until alerted to issues raised in
the
litigation
of
these
cases.
As
De
Souza
was
arrested
and
detained on January 30, 2018, she was entitled to a custody review
no later than about April
30,
2018,
attorney and her by about March 30,
and to notice of it to her
2018.
Instead De Souza,
but
not her attorney, was given a notice on April 23, 2018 of a custody
review to be conducted on or about April 30,
2018.
On April 27,
2018, the ICE Deputy Field Office Director decided to continue De
Souza's
detention
before
her
attorneys
had
an
provide information in support of her release.
that decision,
never interviewed.
a
sworn
to
In the notice of
the Deputy Field Office Director represented that
De Souza had been personally interviewed.
filed
opportunity
However,
De Souza was
The Acting Field Office Director subsequently
declaration
stating,
falsely,
that
De
received notice seven days before her custody review.
Souza
A May
had
1,
2018 hearing in these cases evidently prompted ICE to recognize
that it had violated its regulations in continuing to detain De
8
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 9 of 62
Souza.
It then decided to conduct another custody review 30 days
later and to continue to deprive De Souza of her liberty at least
u n t i l that
review occurred.
Junqueira was arrested on February 1,
2018 and,
therefore,
was entitled to a custody review no later than about May 1, 2018.
Neither Junqueira nor his attorney received notice that any such
review
had
been
scheduled.
Again,
evidently
alerted
to
ICE's
unlawful conduct by the litigation in these cases, on May 3, 2018,
the Acting and Deputy Field Office Directors decided that Junqueira
would be released that day.
ICE
lawyer,
decision.
the
Acting
However,
Field
after being contacted by an
Office
ICE subsequently issued a
Director
reversed
that
notice that Junqueira would
receive a custody review on about June 3,
2018,
which would have
deprived him too of his liberty at least until that review was
conducted.
As
indicated
earlier,
with
regard
to
both
De
Souza
and
Junqueira, ICE argues that this court lacks the authority to order
a remedy for its unlawful conduct. However,
as the Supreme Court
held in Zadvydas, §2241 habeas corpus proceedings provide a forum
for
statutory
detention.
and
533 U.S.
constitutional
at 693.
challenges
to
post-removal
The presumption created by Zadvydas,
that up to six months of detention is reasonable, is based on the
assumption
that
ICE
followed
the
process
prescribed
by
its
regulations to ensure that continued detention was justified. This
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 10 of 62
assumption is not true for either De Souza or Junqueira. As of May
8,
2018,
ICE
was
detaining
each
of
them
in
violation
of
its
regulations and without the "due process of law" required by the
Fifth Amendment. Therefore, each is entitled to judicial relief.
Habeas
corpus
is
discretion to fashion
an
equitable
relief that
remedy.
is
fair
including to order an alien's release.
The
court
has
the
in the circumstances,
In view of ICE's repeated
violations of its regulations — and its indifference to its duty
to obey the law —
it would not now be fair to keep De Souza or
Junqueira incarcerated for another 30 days.
Therefore,
the court
will promptly decide if either or both should be released pending
possible deportation.2
ice's illegal actions concerning De Souza and Junqueira have
had profound human consequences that would continue without the
court's intervention. It appears likely that De Souza and Junqueira
will each be able to prove that if released,
dangerous or flee and,
release.
Each will
therefore, that each will be entitled to
nevertheless
still
face
deported and separated from their families.
families
is now
they will not be
particularly precious.
the
threat
of
being
Each day with their
Any unjustified loss of
liberty for even another day would be a painful form of irreparable
harm to them and to the United States citizens who love them.
2 After the court rendered this decision orally on May 8,
ICE released De Souza and Junqueira.
10
2018,
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 11 of 62
If accepted, ICE's argument that the court lacks the power to
grant petitioners relief in these cases would deeply damage the
Constitution's system of checks and balances that,
the
nation's
Founders,
has
been
fundamental
to
as intended by
protecting
the
rights of every person--citizens as well as aliens. As the Supreme
Court reminded in the case of a prisoner detained at Guantanamo,
the
writ
of
habeas
corpus
gives
the
"Judiciary... a
time-tested
device...to maintain the delicate balance of governance that
is
itself the surest safeguard of liberty" and "protects the rights
of
the
detained by
[conferring]
the
duty and authority on the
Judiciary to call the jailor to account." Boumediene v. Bush, 553
U.S.
723,
745
(2008) .
The unlawful treatment of De Souza and Junqueira occurred in
cases
that
ICE
knew would be
subject to
scrutiny by a
federal
judge. This suggests that other aliens who do not have lawyers to
file
suit
on their behalf are also being illegally deprived of
their liberty and irreparably harmed by being separated from their
families before possibly being deported.
and others to maintain her case as a
The effort by De Souza
class action to enjoin an
alleged pattern of unlawful conduct by ICE presents these issues.
They are not yet ripe for resolution.
However,
i t should be noted that in Boumediene,
the Supreme
Court explained the historic significance of the loss of liberty
and the fundamental importance of habeas corpus to our democracy.
11
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As
the
Court
Constitution
wrote,
in
Federalist No.
in
1788,
advocating
"Alexander
for
the
Hamilton
adoption
of
the
explained
in
The
84:
[T]he practice of arbitrary imprisonments, have been, in
all ages, the favorite and most formidable instruments of
tyranny. The observations of the judicious Blackstone...
are well worthy of recital: 'To bereave a man of life. . .or
by violence to confiscate his estate, without accusation
or trial, would be so gross and notorious an act of
despotism as must at once convey the alarm of tyranny
throughout the whole nation; but confinement of the
person, by secretly hurrying him to jail, where his
sufferings are unknown or forgotten, is a less public, a
less striking, and therefore a more dangerous engine of
arbitrary government.' And as a remedy for this fatal
evil he is everywhere peculiarly emphatical in his
encomiums on the habeas corpus act, which in one place he
calls
'the bulwark of
Rossiter
4 id.,
Boumediene,
This
ed.,
p.
the
512
British
(1961)
Constitution.'
(quoting
C.
Blackstone
at 438) ."
553 U.S. at 744
court
was
(emphasis in original).
informed
that
after
it
regarding De Souza and Junqueira on May 8,
Field
1
Office
reviewed
its
files
and
issued
2018,
found
30
its
decisions
the Boston ICE
to
40
other
individuals were being detained without the procedural due process
ice's regulations were intended to provide. See May 22, 2018 Tr.
at 86; May 23, 2018 Tr. at 138. ICE released about 20 of them. Id.
at 51.
The court has not been informed of the status of the other
10 to 20 aliens who, evidently, were also denied due process.
II.
JURISDICTION
28 U.S.C. §2241(c)(3)
authorizes a district court to issue a
writ of habeas corpus to a person "in custody in violation of the
12
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 13 of 62
Constitution or
laws
or treaties
of the
United States."
The writ
of habeas corpus "entitles the prisoner to a meaningful opportunity
to demonstrate that he is being held pursuant to
'the erroneous
application
and
relief,
or
interpretation'
including
Boumediene,
release,
553 U.S.
if
of
he
relevant
is
law"
being
to
obtain
unlawfully detained.
at 779.
The Illegal Immigration Reform and Immigrant Responsibility
Act and Real ID Act,
limits
on
judicial
§§1252(a) (2) (B) (ii),
codified in 8 U.S.C.
review
in
§1252,
immigration
1252(b)(9),
1252(g).
cases.
However,
places certain
See
8
U.S.C.
"§2241 habeas
corpus proceedings remain available as a forum for statutory and
constitutional challenges to post-removal-period detention."
See
Zadvydas, 533 U.S. at 688 (addressing 8 U.S.C. §§1252(a) (2) (B) (ii)
and 1252(g)); see also Jennings v. Rodriguez,
(2018)
ICE,
138 S. Ct. 830,
841
(addressing 8 U.S.C. §§1252(g) and 1252(b)(9)); Aguilar v.
510
F.3d
1,
11
(1st
Cir.
2007)(addressing
8
U.S.C.
previously
ordered
§1252(b)(9)).
De
Souza
and
Junqueira
have
removed from the United States.
that ICE violated 8 U.S.C.
each
been
Each claims,
§1231(a)(6)
among other things,
and the Due Process Clause
of the Fifth Amendment by detaining him or her for more than three
months
without
the
opportunity
to
be
heard
required
by
DHS
regulations. These are "statutory and constitutional challenges to
post-removal-period detention," for which §2241 gives the court
13
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jurisdiction.
Zadvydas,
841; Aguilar,
510 F.3d at 11.
III.
THE
LEGAL
533 U.S.
at 688;
Jennings,
138 S.
Ct.
FRAMEWORK
A. The Fifth Amendment
Due Process Clause
Congress has "'plenary power' to create immigration law,
[the]
judicial
at
branch must
defer
to
Executive
and
and
Legislative
decisionmaking in that area. But that power is subject to important
constitutional
limitations."
Zadvydas,
533
U.S.
at
694-95
(citations omitted). The Due Process Clause of the Fifth Amendment
imposes one such limitation. As indicated earlier, it states that
"No
person
shall...be
deprived
of
without due process of law." U.S.
life,
liberty,
Const. Amend.
earlier, the Fifth Amendment "applies to all
United States,
lawful,
including aliens,
unlawful,
or
property,
V. As also noted
'persons' within the
whether their presence here is
temporary, or permanent." Zadvydas,
533 U.S. at
693; see also Wing Wong v. United States, 163 U.S. 228, 238
(1896).
The Due Process Clause 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.
Due
process
component... forbids
has
the
two
components.
government
'fundamental' liberty interests ^
to
The
"substantive
infringe
certain
all, no matter what process is
provided, unless the infringement is narrowly tailored to serve a
14
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 15 of 62
compelling state interest." Reno v.
Flores,
507 U.S.
292,
301-02
(1993)(emphasis added); see also Foucha v. Louisiana, 504 U.S. 71,
80
(1992).
"Freedom from
imprisonment—from government
custody,
detention, or other forms of physical restraint—lies at the heart
of the liberty that Clause protects." Zadvydas,
Except as
punishment
for
a
crime,
533 U.S.
detention of any
at 690.
"person"
is
justified only "in special and narrow non-punitive circumstances,
where
a
special
constitutionally
restraint." Id.
justification...outweighs
protected
In addition,
interest
in
the
individual's
avoiding
physical
detention may only continue as long
as i t bears a "reasonable relation" to permissible purposes.
Id.
"When government action depriving a person of life, liberty,
or property survives substantive due process
scrutiny,
it must
still be implemented in a fair manner." United States v. Salerno,
481 U.S.
484
739,
(1972).
powers
allow
746
(1987); Morrissey v. Brewer,
Therefore,
it
although
to pass
detention... those
a
law
408 U.S.
"Congress's
authorizing
implementing
the
broad
471,
immigration
an alien's
statute
482,
[must]
initial
provide
individualized procedures through which an alien might contest the
basis of his detention." Diop v.
2011);
see also Demore v.
J.,
concurring).
the
opportunity
Kim,
ICE,
656 F.3d 221,
538 U.S.
510,
532
232
(3d Cir.
(2003)(Kennedy,
"The fundamental requirement of due process is
to
be
heard
at
a
meaningful
time
and
in
a
meaningful manner." Mathews v. Eldridqe, 424 U.S. 319, 333 (1976).
15
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 16 of 62
When
regulations
are
promulgated
to
protect
a
fundamental
right derived from the Constitution or a federal statute, such as
the Fifth Amendment right to notice and an opportunity to be heard,
the Due Process Clause requires federal agencies to follow them,
"even when those regulations provide greater protection than is
constitutionally required." Nelson,
U.S.
267-68;
Rombot V.
D.J.).
Branch
Waldron
Souza,
296
"So long as
is
bound
v.
17
F.Sd
F.Supp.Sd 383,
[a]
by
INS,
232 F.Sd at 262; Accardi,
511,
388
518
(D.
(2d
Mass.
Cir.
347
1994);
2017)(Saris,
regulation remains in force the Executive
it,
and
indeed
the
United
States
as
the
sovereign composed of the three branches is bound to respect and
to
enforce
government,
habeas
it
Boumediene,
it."
Nixon,
418
U.S.
at
695-96.
In
essence,
as well as the governed, must follow the law,
is
the
court's
553 U.S.
duty
at 741
was understood that the King,
to
ensure
that
it
the
and in
does.
See
(stating the "from an early date it
too,
was subject to the law," and
that by the 1600s, habeas courts could ensure that he followed it
when detaining individuals).
B. The Post-Order Detention Statute
8 U.C.S. §1231 authorizes the Secretary of Homeland Security
(the
3 The
"Secretary")3 to detain aliens
statute
refers
to
the
subject
Attorney
to
General
final
as
the
orders of
official
exercising the authority to detain aliens subject to a final order
of removal,
and to adjudicate applications for immigration
benefits. Before 2002, the INS exercised those powers on behalf of
16
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 17 of 62
removal
while
deport them.
efforts
are
made
to
obtain
travel
documents
and
The statute provides that when an alien is "ordered
removed"
from
Security]
shall remove the alien from the United States within a
period of
90 days
period')."
date
the
date
of
the
States,
(in this
§1231(a) (1) (A).
order of
a
United
court's
"the
section referred to as
The
removal
removal becomes
final
[Secretary
if
the
Homeland
the
period begins
administratively
disposition
of
'removal
on
"[t]he
final,"
removal
order
the
is
judicially reviewed, or "the date the alien is released from [nonimmigration] detention," whichever is latest.
Id. §1231 (a) {1) (B).
The
is
statute
contemplates
that
if
the
alien
not
immediately
removed, he or she will be detained for at least 90 days,
that "during the removal period, the
alien."
[Secretary]
stating
shall detain the
§1231 (a) (2) .
Congress and the President foresaw that the Secretary might
unable to remove some aliens within the removal period. The statute
provides that "[i]f the alien does not leave or is not removed
within the removal period,
subject
to
supervision
the alien,
under
pending removal,
regulations
prescribed
shall be
by
the
[Secretary]." Id. §1231(a)(3). The statute also states that aliens
the Attorney General. The Homeland Security Act of 2002 abolished
the
INS
and
transferred
the
immigration powers
previously
exercised by the Attorney General to the Secretary of Homeland
Security and divisions of DHS, ICE and CIS. See Clark v. Martinez,
543
U.S.
371,
374
§§251(2), 252(a)(3), 271(b)).
(2005) (citing
17
6
U.S.C.
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 18 of 62
who entered the United States unlawfully,
detained
beyond
the
removal
period."
Id.
among others,
"may be
§1231(a) (6) (emphasis
added).
The parties agree that the 90-day removal period for both De
Souza and Junqueira has elapsed. Therefore, if they may be detained
at all,4 they are
subject to §1231 (a) (6),
which makes detention
discretionary.5
Although §1231 (a) (6)
an
inadmissible
alien
states that the Secretary "may" detain
beyond
the
removal
period,
it
does
not
authorize the government to detain an alien indefinitely merely
because
he
or
she
is
subject
to
a
final
order
of
removal.
In
^ De Souza argues that she cannot be detained now because she
cannot be deported while seeking the provisional waivers necessary
to remain with her family in the United States, and if her
deportation is not likely in the near future, detention is not
permissible. See Traverse and Response in Support of Release from
Custody (Docket No. 45) at 8-9. In addition, she asserts that there
is no basis to find that she is a risk of flight or danger to the
community. Id. at 9-10. She argues that, therefore, the decision
to detain her would be arbitrary and capricious and violate
substantive due process and the Administrative Procedure Act even
if ICE used the required procedures to make it. Id. Because the
court has found that ICE was detaining De Souza in violation of
its regulations during the May 8, 2018 hearing, it is unnecessary
to address these arguments.
5 At the latest, De Souza's removal order became final on July 23,
2015, when the BIA dismissed the appeal of the decision denying
the motion to reopen her 2002 removal order. See Affidavit of
Tiffany Andrade, SIS[5-6. Therefore, her removal period ended no
later than October 21,
2015.
DHS reinstated Junqueira's removal
order on February 1, 2018, starting the removal period again. See
8 U.S.C. §1231(a)(5). Therefore,
2, 2018 at the latest.
18
his removal period ended on May
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 19 of 62
Zadvydas, the Supreme Court addressed the substantive component of
the Due Process Clause.
"may"
was
I t held that the s t a t u t e ' s use of the word
"ambiguous,"
as
it
"suggest [ed]
discretion,"
but
not
"unlimited discretion." 533 U.S. at 697. Without an explicit limit
on
how
long
raised a
the
government
could
detain
serious constitutional question:
an
alien,
"whether,
§1231 (a) (6)
irrespective
of the procedures used, the Constitution permits detention that is
indefinite and potentially permanent." 533 U.S.
at 696
added)(citation
to
omitted).
constitutional question,
To
the
avoid
court
having
read
assuring
at
699.
It
authorizes detention only so long as it is
"reasonably necessary to secure [the alien's]
In Zadvydas,
Id.
the
limitation
namely,
the alien's presence at the moment of removal."
held that §1231(a)(6)
decide
"an implicit
into the statute" based on "its basic purpose,
(emphasis
removal." Id.
the Court implicitly assumed that the Attorney
General had followed the procedures prescribed in 8 C.F.R. §241.4,
which
are
discussed
below.
The
Court
held
that
even
when
the
Attorney General finds that an alien poses a risk of flight or
danger to the community,
foreseeable,
statute."
Id.
continued
The
"once removal
detention
Court
justification—preventing
is
reasoned
flight—is
is no longer reasonably
no
that
weak
longer
authorized
the
statute's
or
nonexistent
removal seems a remote possibility at best." Id. at 690.
19
by
"first
where
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 20 of 62
The Court also held that there is a six-month period in which
the Attorney General's, now the Secretary's, decision to detain an
alien
is
"presumptively
reasonable."
Id.
at
701.®
The
Court
directed that "after this 6-month period, once the alien provides
good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future,
the Government must
respond with evidence sufficient to rebut that showing," and if it
does not,
the court "should hold continued detention unreasonable
and no longer authorized by statute." Id. at 699-701. As explained
® Respondents acknowledged at the May 1, 2018 hearing that the
presumption that detention is reasonable for six months can be
rebutted in particular cases. See May 1, 2018 Tr. at 29. This is
correct. In establishing the presumption, the Court cited County
of Riverside v. McLaughlin, 500 U.S. 44, 56-58
(1991), in which i t
presumed that 48 hours is a reasonable time to detain a defendant
in a criminal case before providing a probable cause hearing.
Zadvydas,
533
U.S.
at
701.
In
County
of
Riverside,
the
Court
explained that the 48-hour presumption could be rebutted "if the
arrested
individual
can
prove
that
her
probable
cause
determination was delayed unreasonably." 500 U.S. at 56. The Court
also cited Cheff v. Schnackenberg, 384 U.S. 373, 379-80 (1966)
(plurality op.),
which "adopted [the]
rule,
based on [the]
definition of 'petty offense' in the United States Code, that [the]
right to a jury trial extends to all cases in which a sentence of
six months or greater is imposed." Zadvydas, 533 U.S. at 701.
However, in Cheff, the Court suggested that the serious "nature"
of some crimes could require the protection of a jury trial for
conviction, even though the maximum penalty is less than six months
in prison. 384 U.S. at 380. As an example, the Court cited District
of
Columbia
v.
Colts,
282
U.S.
63
(1930),
in
which
the
Court
required a jury trial to convict for the offense of reckless
driving at an excessive speed, even though the maximum punishment
for a first offender was a $100 fine and 30 days in jail. See
Cheff,
384 U.S. at 380; see also id. at
dissenting)(describing the facts of Colts).
20
388
(Douglas,
J. ,
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 21 of 62
below,
Zadvydas
did not
decide
the
implications
of
depriving
a
detained alien of his or her right to procedural due process.
C. The Post-Order Custody Review Regulations
8 C.F.R §241.4 delegates to ICE the authority to detain aliens
beyond the initial 90-day removal period. It establishes standards
and procedures ICE must follow to do so.
The regulation provides
that ICE will periodically review an alien's records and consider
whether
to
continue
§241.4 (d),
(h) ,
detention
(i)
&
(k) .
or
release
ICE must
the
conduct
alien.
the
See
8
C.F.R.
initial
review
"prior to the expiration of the removal period," id. §241.4(h)(1),
(k) (1) (i) ,
or
"as
§241.4(k)(2)(iv),
"detainee's
there
is
unless
prompt
other
soon
it
removal
"good
as
possible
makes
is
written
practicable
cause"
for
thereafter,"
findings
that
and proper,"
postponing
the
id.
the
or
that
review,
id.
§241.4(k) (3). If the review is postponed, ICE must use "reasonable
care" to conduct the review "once the reason for delay is remedied
or
if
the
alien
is
not
removed
from
the
United
States
as
anticipated at the time review was suspended or postponed." Id.
ICE must "provide written notice to the detainee approximately 30
days in advance of the pending records review so that the alien
may
submit
release."
information
Id.
in
§241.4(h)(2).
writing
In
in
support
addition,
ICE
of
must
his
or
"forward
her
by
regular mail a copy of any notice or decision that is being served
21
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 22 of 62
on the alien" to the alien's attorney if he or she is represented.
Id.
§241.4(d)(3).
To
obtain
release,
immediate removal
the
alien
must
show
is not practical or proper;
that:
his
or
her
he or she is not
likely to be violent or "pose a threat to the community following
release";
flight"
and
or
he
of
or
she
does
"violat[ing]
not
the
"pose
a
significant
conditions
of
risk
release."
of
Id.
§241.4(e). The regulation requires ICE to consider "the likelihood
that the alien is a significant flight risk or may abscond to avoid
removal," "favorable factors,
including ties to the United States
such as the number of close relatives residing here lawfully," and
factors
bearing on the alien's
history,
disciplinary
infractions,
violations, among others.
issue a
dangerousness,
and
such as
past
criminal
immigration
§241.4(f). It also requires that ICE
written decision.
Id.
§241.4(d).
When the INS published 8 C.F.R. §241.4 on December 21, 2000,
it explained that the regulation was intended to provide aliens
procedural due process,
mechanisms
stating that §241.4 "has the procedural
that... courts
have
sustained
against
challenges." Detention of Aliens Ordered Removed,
01,
at 80283
(2000).
INS cited,
due
process
65 F.R. 80281-
among other decisions,
Chi Thon
Nqo V. INS, 192 F.3d 390, 398 (3d Cir. 1999) . Id. In Ngo, the Third
Circuit
requires
held
that
"the
process
an opportunity for
due
even
to
excludable
an evaluation of the
22
aliens
individual's
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 23 of 62
current threat to the cominunity and his risk of flight." 192 F.3d
at 398.
It held that a process by which "Directors simply relied
on the aliens'
past criminal history and the fact that they were
facing removal from the United States" to "summarily conclude[e]
that
the
aliens posed such risks and deny[]
"not satisfactory and d[id]
them release,"
was
not afford due process." Id. at 399.
The INS stated that, in an effort to provide the constitutionally
required
due
process,
§241.4
"contemplates
individualized
determinations where each case must be reviewed on its particular
facts
and
circumstances,
and
affords
aliens
periodic
reconsideration in a non-adversarial process." 65 F.R. at 80284.
The procedures in §241.4, therefore, are not meant merely to
"facilitate
important
Bonitto V.
internal
and
ICE,
agency
imperative
housekeeping,
procedural
547 F.Supp.2d 747,
but
safeguards
757-58
rather
to
(S.D. Tex.
afford
detainees."
2008).
They
protect the fundamental Fifth Amendment right to notice and an
opportunity to be heard,
and must be followed.
See Rombot,
296
F.Supp.3d at 388; D'Alessandro v. Mukasey, 628 F.Supp.2d 368, 388403 (W.D.N.Y. 2009). When DHS fails to do so, the court may order
ICE to conduct a custody review, or conduct the review itself and,
if warranted, order the alien released. See Rombot, 296 F.Supp.3d
at
388-89.
23
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 24 of 62
D. The Provisional Waiver Process
Federal immigration laws permit an undocumented alien who has
been ordered removed from the United States,
and is married to a
United
a
States
Resident.
citizen,
To do so,
to
seek
to
become
lawful
Permanent
he or she must obtain the permission of two
government agencies. First, the alien must apply to CIS for waivers
of the Secretary of DHS's right to enforce two statues that would
bar
the
alien
from
applying
for
a
visa
for
ten
years
after
departing the United States. As the first step in the process of
obtaining waivers,
the alien's
spouse must
file
a
"Form 1-130"
application with CIS. CIS then interviews the couple to determine
whether their marriage is genuine.
authentic,
If CIS finds the marriage is
the alien may file another series of forms asking CIS
to exercise its discretion to grant the waivers. CIS may grant the
waivers i f i t finds that failure to do so would "result in extreme
hardship to the citizen...spouse." 8 U.S.C. §1182(9) (B) (v) . Under
a 2016 regulation, the alien may pursue these waivers while in the
United
States,
Provisional
as
Unlawful
well
as
Presence
while
abroad."^
Waivers
of
See
Expansion
Inadmissibility;
of
Final
Rule, 81 Fed. Reg. 50244, 50245 (July 29, 2016). If the alien has
The petitioners in the Calderon putative class action, including
De Souza, claim that DHS must allow them to remain in the United
States while seeking the waivers. This issue is not yet ripe to be
decided.
24
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 25 of 62
re-entered
the
United
States
unlawfully,
outside the United States for ten years,
See 8 U.S.C.
the
alien must
remain
then apply for a waiver.
§1182(a)(9)(C).
If an alien receives waivers and therefore permission to apply
for a visa, but is ineligible to "adjust" his or her status in the
United States because of his or her unlawful entry,® the alien must
travel
to
his
or
her
country
of
origin
and
meet
with
a
representative of the United States Department of State. The State
Department
issues
a
official
visa
which
conducts
an
authorizes
interview
the
alien
and,
to
if
appropriate,
re-enter
the
United
States and, upon doing so, to become a lawful Permanent Resident.
IV.
FACTS AND
PROCEDURAL BACKGROUND
In March 2017,
were
arrested
office
for
17-10743,
by
ICE
an 1-130
Docket
five
No.
aliens,
while
at
interview.
including Leandro Arriaga Gil,
the
Lawrence,
See Arriaga v.
1.® Arriaga
filed
a
Massachusetts
CIS
Tomkins,
No.
habeas
C.A.
petition under
§2241 and a motion for a temporary restraining order requiring his
® An alien who lawfully enters the United States and overstays his
or her visa, and then marries a United States citizen, may "adjust"
his or her status to that of a lawful permanent resident without
leaving the United States. See 8 U.S.C. §1255. However, the
petitioners are not eligible to do so because they unlawfully
entered the United States.
Id.
® See also Milton J. Valencia, "Immigration Officials Agree to
Release Lawrence Immigrant Who Was Detained without Bail," Boston
Globe, May 5, 2017, https://www.bostonglobe.eom/metro/2017/05/05/
judge-reviews-case-lawrence-immigrant-detained-without-bail/
c4CkszjUhyd4ExUu33uLYI/story.html.
25
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 26 of 62
release. ICE detained Arriaga, whose removal period had expired in
2001,
for about
Therefore,
at
one month without giving him a
a
May
5,
2017
hearing
custody review.
on Arriaga's motion
for
a
temporary restraining order, this court indicated i t was likely to
decide
that
ICE violated its
regulations
and allow the motion.
During a break, before the court announced its final decision,
ICE
agreed to release Arriaga and to allow him to stay in the United
States until CIS processed his application for a waiver. The court
was not informed of what happened to the four similarly situated
aliens who did not bring cases in federal court.
In
Souza,
Jiminez,
January
were
at
least
Mateus
Fabiano
Massachusetts
SI12;
2018,
de
Oliveira,
arrested
and
Rhode
by
eight
ICE
Island.
individuals,
and
at
Lilian
their
see also De Oliveira v. Moniz,
C.A.
Pahola
1-130
See Affidavit
No.
including
of
Calderon
interviews
Todd M.
18-10150,
De
in
Lyons
Docket No.
1; May 23, 2018 Tr. at 22-23. Junqueira was similarly arrested on
February 1,
2018
at
a
CIS office in Connecticut.
C.A.
No.
18-
10307, Amended Petition at 532. De Souza, Junqueira,
De Oliveira,
and Calderon each filed petitions under 28
§2241,
were properly designated as
this
court.
See
Rule
U.S.C.
which
related to Arriaga and assigned to
40.1(g)
of the
Local
Rules
of the
United
States District Court for the District of Massachusetts.
The court scheduled briefing and hearings to decide whether
De
Oliveira
and Calderon,
like Arriaga,
26
were
entitled to
bail
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 27 of 62
hearings and possible release. See De Oliveira, C.A. No. 18-10150,
Jan.
26,
Feb.
6,
2018 Order
(Docket No.
2018 Order
(Docket No.
5); Calderon,
6).
C.A.
No.
18-10225,
Shortly before each of their
hearings,
ICE agreed to release De Oliveira and Calderon.
Oliveira,
C.A.
18-10225
No.
18-10150
(Docket No.
15) .
(Docket No.
ICE did not,
16) ;
Calderon,
however,
See De
C.A.
No.
agree to release
De Souza or Junqueira.^° Therefore, on May 8, 2018, the court held
a hearing to decide whether De Souza and Junqueira were entitled
to
relief.
A. Lucimar De Souza
De
Souza,
who
is
from
Brazil,
entered
the
United
States
unlawfully on February 22, 2002. Aff. of Tiffany R. Andrade (Docket
No.
50-5),
SI4.
Upon entering the United States,
by immigration officials.
Id.
While
she was detained
in detention,
she provided
On February 21, 2018, Deputy Field Office Director Todd Lyons
represented that ICE arrested five individuals other than De
Oliveira and Calderon at Massachusetts and Rhode Island CIS offices
in January of 2018. See Lyons Aff. at SI12. On May 22, 2018, the
court ordered Acting Field Office Director Brophy to report on the
status of these five individuals. At a May 23, 2018 hearing, Brophy
confirmed that ICE arrested five individuals other than Calderon
De Oliveira at CIS offices in Massachusetts and Rhode Island
and
in January of 2018. See May 23, 2018 Tr. at 23. One of them, Jovel
Calderon Morales, was still being detained in violation of §241.4.
Id. at 25-26. On about May 23, 2018, Brophy directed that Morales
be released.
Id.
at 25. The others had been released or deported.
Id. However, these five did not include De Souza, who was detained
in Massachusetts during that same period. Id. at 28. Therefore, it
appears that Lyons' February 21, 2018 declaration underrepresented
the
number
of
aliens
who
had been arrested
at
Massachusetts
Rhode Island CIS offices, and that Brophy's May 23,
arrestees may not have been complete. Id. at 28-29.
27
and
2018 list of
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 28 of 62
immigration officers with the address of a
Connecticut.
Id.
She was released,
friend in Waterbury,
stayed in Waterbury briefly,
then moved to Danbury, Connecticut. Id. Her friend allegedly told
De Souza that he did not receive any communications concerning her
immigration case. Id. On June 11, 2002, De Souza did not appear at
a hearing the Immigration Court had scheduled to determine whether
she should be deported.
ordered her removed.
De
Souza
stayed
Id. 515. As a result, an Immigration Judge
Id.
in
Despite her 2002 final order of removal,
the
United States.
married Sergio Santos Francisco,
513.
Id. On July 23,
2015,
Id.
516.
26,
Id.
In May 2014,
2016,
she
Id.
at
she moved to
Her motion to reopen was denied.
the BIA affirmed the decision.
On September 29,
2006,
a United States citizen.
They have an 11 year-old-son.
reopen the proceedings.
On August
Id. 517.
Francisco filed an 1-130 petition on
De Souza*s behalf to begin the process of applying for provisional
waivers.
Id.
Francisco a
2018
at
519.
On
December
28,
2017,
CIS
sent
De
Souza
and
notice that CIS would interview them on January 30,
the
Massachusetts.
John
Id.
F.
Kennedy
5110 & Ex.
B.
Federal
Building
in
Boston,
The notice instructed the couple
to bring "clear and convincing evidence that you have been residing
together
in
a
bona
fide
marital
relationship
from the
date
marriage continuously to the present."
Id.,
Ex.
B.
Francisco
5110.
CIS
determined
attended
the
interview.
28
Id.
of
De Souza and
that
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 29 of 62
their marriage is legitimate and approved the 1-130 petition.
Ex.
Id.
A.
However,
arrested her.
when De Souza left the building,
Id.
Sll.
From January 30,
five ICE officers
2018 to May 8,
2018,
was held at the South Bay House of Corrections in Boston.
Immediately
emergency
motion
after
in
she
the
was
BIA
to
arrested,
reopen
her
De
Souza
case
and
she
Id.
SI3.
filed
an
stay
her
deportation so that she could pursue her waiver applications with
CIS.
Id. 513. In addition, on March 23,
2018,
a Request for Bond or Supervised Release.
On April 10, 2018,
Complaint
action,
Id. 520.
De Souza and Francisco joined the Amended
in Calderon v.
other couples,
she submitted to ICE
Nielsen,
C.A.
as petitioner-plaintiffs.
No.
18-10225,
with four
In that putative class
plaintiffs seek an order enjoining ICE from detaining or
deporting
adjudicates
them
or
similarly
their applications
situated
individuals^^
for waivers.
until
In any event,
CIS
they
request an order prohibiting ICE from detaining or deporting them
In particular, they seek to represent: "any U.S. citizen and his
(1) has a final order of removal and
has not departed the U.S. under that order; (2) is the beneficiary
of a pending or approved 1-130, Petition for Alien Relative, filed
by the U.S. citizen spouse;
(3)
is not "ineligible" for a
provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (vi); and
(4) is within the jurisdiction of Boston ICE-ERO field office
(comprising Massachusetts, Rhode Island, Connecticut, Vermont, New
Hampshire, and Maine)." C.A. No. 18-10225, Motion for Class
or her noncitizen spouse who:
Certification
(Docket No.
46).
29
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 30 of 62
without
giving
them an
opportunity
to
be
heard
and
a
written
explanation of why the class member should not be permitted to
remain in the United States while pursuing waivers from CIS. They
also
seek
to
prevent
ICE
from
continuing
any
class
members'
detention for longer than two weeks without a bond hearing before
an Immigration Judge, at which the government would bear the burden
to demonstrate by clear and convincing evidence that
poses a danger or flight risk,
the
alien
and that no conditions of release
will reasonably assure the safety of the community or the alien's
appearance or cooperation with any order to depart. See Motion for
Temporary
(Docket No.
Restraining
Order
and
Preliminary
Injunctive
Relief
49).
De Souza individually requested that respondents be ordered
to
show
§2243,
which
establishes procedures for §2241 petitions.on April 16,
2018,
the
cause
court
for
granted
her
the
detention,
motion
under
and
28
directed
U.S.C.
ICE
to
submit
an
affidavit explaining, among other things, why De Souza was detained
and what procedures ICE followed in making the decision to detain
her.
12 Section 2243 states that "a court, justice, or judge entertaining
an application for a writ of habeas corpus shall forthwith award
the writ or issue an order directing the respondent to show cause
why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled
thereto."
30
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 31 of 62
On
April
11,
2018,
De
Souza
filed
with
CIS
an
1-212
Application for Permission to Reapply for Admission into the United
States After Deportation or Removal,
the
process
of
seeking
the
which is the second step in
permission
of CIS
to
pursue
a
visa
before traveling to Brazil for an interview with the Department of
State.
Id.
On April 13, 2018, the BIA declined to exercise its discretion
to reopen De Souza's proceedings in the Immigration Court and stay
her
deportation.
Id.
522,
Ex.
operative 2016 regulations,
D.
It
reasoned
that
under
the
it was not necessary that De Souza's
proceedings be reopened in order to request waivers from CIS while
in the United States,
stay
of
deportation
§212.7(e)(4)(iv),
As
and that
she could seek an administrative
from
ICE.
Id.
(citing
8
C.F.R.
§241.6(a)).
ordered by this
court,
on April
23,
2018,
respondents
submitted an affidavit of ICE Deputy Field Office Director James
Rutherford to explain the decision to detain De Souza after her
arrest.
He wrote that
ICE used a
Risk Classification Assessment,
a computer algorithm, to make the determination, which was reviewed
by Supervisory Deportation Officer Stephen Wells. Rutherford Aff.
(Docket
that
No.
40-1)
555-6.
Rutherford
explained that
in deciding
De Souza should be detained:
[] Wells considered De Souza's final order of removal and
the fact that De Souza is not eligible for any immigration
benefits
that
would
allow
her
31
to
remain
in
the
United
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 32 of 62
States to be evidence of flight risk.
[] Wells also
considered the availability of bed space, her lack of
health issues and her lack of dependent-care issues (De
Souza's child was in the care and custody of his father
and there were no elderly or infirmed parents to care
for) in making his discretionary decision.
Id. SI6. Rutherford asserted that ICE "still ha[d] the authority to
detain
De
Souza
without
an
individualized
determination
dangerousness and risk of flight" under §1231(a)(6).
addition,
Id.
57.
of
In
he noted that De Souza breached her bond by failing to
appear for her 2002 immigration hearing, but he did not state that
Wells considered this a
stated
that
ICE
had
reason for her detention.
requested,
but
not
yet
Id.
56.
received
He also
from
the
Brazilian consulate, the documents necessary to deport De Souza to
Brazil
(also called "travel documents").
Id.
On April 23, 2018, respondents also filed a motion to dismiss
the Amended Complaint. See Respondent's Opposition to Petition for
Writ of Habeas Corpus and Motion to Dismiss (Docket No. 40)
("Apr.
23, 2018 0pp."). The same day, ICE gave De Souza a Notice to Alien
of
File
Custody
Review,
informing
information in favor of her release,
her
that
she
could
submit
and that ICE would conduct a
custody review "on or about" April 30, 2018. See Aff. of Tiffany
Andrade 521 & Ex. E.
ICE did not send a copy of the notice to any
of De Souza's attorneys.
De Souza mailed a copy to one of them.
Tiffany Andrade, who received it on April 27, 2018. Id. 523. Ms.
Andrade worked quickly to submit by April 30, 2018 documents in
32
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 33 of 62
support of De Souza's release and a request for an administrative
stay of removal.
ICE
Id. SIS123-24.
subsequently
statements
relating
detention.
On
to
April
Rutherford,
on
decided
decision
behalf
series
of
false
decision
to
continue
2018,
of
De
a
the
21,
continue
to
made
Deputy
Acting
Field
Souza's
decision has
and/or
your
been made
personal
to
based on a
interview
and
De
Souza's
Director
Director
The
De
misleading
Office
Office
detention.
signed by Rutherford and sent
"[t]his
Field
or
Notice
Souza
review
Brophy,
of
the
stated that
of
your
file
of
any
consideration
information you submitted to ICE reviewing officials." Notice of
Decision to Continue Detention,
not,
the
however,
of
timely
notice,
2018 Ex.
1.
De Souza was
interviewed before the decision was made.
information
result
May 8,
ICE'S
she
sought
failure
in
to
to
submit
provide
violation
of
De
considered
Souza
§241.4 (h) (2)
Nor was
because,
and
and
her
as
a
attorneys
(d) (3),
her
attorneys were not aware that a custody review had been scheduled
until the day it was conducted.
decision
stated that
she
"failed to demonstrate
had
De
United States...[and]
the Notice of the
Souza's detention would continue because
significant
equities within the
would pose a significant risk of flight if
released from ICE custody." Id.
the decision on May 2,
In any event,
De Souza received the Notice of
2018.
33
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 34 of 62
At
a
May
1,
2018
Department of Justice,
communication
with
hearing,
respondents'
counsel
from
the
who represented that she was in constant
ICE,
stated
that
she
did
not
know
when
a
decision would be made concerning De Souza's possible release. See
May 1, 2018 Tr. at 37. Therefore, the court ordered the parties to
report on De Souza's status by May 3, 2018, not knowing that the
decision to continue her detention had already been made. See May
2,
2018 Order 54.
That Order evidently prompted Acting Field Office
Director
Brophy to focus on De Souza's case. On May 3, 2018, Brophy signed,
under
penalties
of
perjury,
an
affidavit
stating
that
ICE
had
decided to deny De Souza's application for a stay of removal and
continue her detention, and that De Souza had been served with the
decision on May 2, 2018. May 3, 2018 Brophy Decl. 54. Brophy also
stated that "[t]he notice of Post Order Custody Review
(POCR)
was
served upon De Souza on April 23, 2018, seven days prior [sic] the
occurrence of the custody review." Id.
This statement was false,
as the decision to continue De Souza's detention was made on April
27,
2018,
addition,
four
days
after
the
notice
was
provided
to
her.
In
the notice was not served on her attorneys.
In his affidavit,
Brophy acknowledged that "the
[post-order
custody review] notice was not sent to counsel for De Souza." Id.
He stated that, therefore,
"on May 3, 2018, due to irregularities
in the timing of De Souza's
[post-order custody review]
34
notice,
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 35 of 62
ICE
provided
custody
De
review]
Souza
notice
and
her
with
attorney with
the
required
30
a
new
days'
[post-order
notice
of
a
renewed [post-order custody review] to be conducted...on or about
June 3,
2018." Id.
55.
B. Eduardo Junqueira
Eduardo Junqueira was born in Brazil. Amended Petition,
He is 35 years old.
border unlawfully,
Id.
520.
In June 2004,
was arrested,
52.
Junqueira crossed the
and was placed into deportation
proceedings. Id. 521. On July 23, 2004, he was ordered removed and
was deported.
In
Id. 522; Resp. Apr.
November
2004,
6, 2018 Memo.,
Junqueira
re-entered
Ex.
the
3.
United
States
without authorization. Id. He subsequently married a United States
citizen,
He
has
with whom he has two children,
aged 10 and 12.
resided continuously in the United States
thirteen years.
Id.
524.
for more than
Id.
Because of his illegal reentry, Junqueira is not eligible for
a waiver of inadmissibility from CIS and, therefore, may not remain
in the United States while he pursues his application for lawful
Permanent
Resident
status.
Id.
527.
This means
he must
leave
the
country for ten years before seeking permission to reapply for a
visa.
Id.
However,
in
February
2017,
an
immigration
attorney
erroneously advised Junqueira and his wife that he was eligible to
apply for a waiver of inadmissibility from CIS while in the United
35
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 36 of 62
States.
Id.
at 529. As a
result,
his wife filed a
Form 1-130 with
CIS seeking to prove their marriage is genuine. Id.
On February 1,
2018,
Junqueira and his wife appeared for a
scheduled interview at the Hartford,
531. The same day,
Connecticut CIS office.
Id.
ICE reinstated Junqueira's removal order under
8 U.S.C. §1231(a)(5) and 8 C.F.R. §1241.8. S^ Resp. Apr. 6, 2018
Memo., Ex. 3. Before the interview began, ICE arrested Junqueira.
Amended Petition 532. On May 8, 2018, he was still detained at the
Bristol
County,
Petition,
Massachusetts
House
of
Correction.
Amended
56.
Junqueira
filed
his
§2241
petition
on
February
16,
2018.
Originally, he challenged the legality of his detention and ICE's
attempts to remove him from the United States before he received
a decision on his 1-130 and eventual applications for waivers from
CIS. On April 6, 2018, respondents filed a motion to dismiss, which
argued,
in part,
that Junqueira is ineligible for a waiver until
he has remained outside the United States for ten years due to his
illegal
reentry.
Petition,
which
On April
conceded
inadmissibility waiver.
Id.
26,
2018,
that
53.
he
Junqueira
is
not
filed
an Amended
eligible
The Amended Petition,
for
an
therefore,
does not seek a stay of Junqueira's removal. However, he continues
to challenge ICE's decision to detain him without complying with
the §241.4 procedures.
Id. 5539-43.
36
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 37 of 62
On May 3,
2018,
Deputy Field Office Director Rutherford and
Acting Field Office Director Brophy decided to release Junqueira.
See
May
11,
2018
Brophy
Aff.,
16;
May
22,
2018
Tr.
at
68.
Junqueira's wife was contacted and told he was being transferred
to
the
Burlington,
Massachusetts
ICE
office
in preparation
for
release. She drove to Burlington from Connecticut to get him. When
Junqueira's counsel discovered he was being moved to Burlington,
he contacted Department of Justice counsel
for
respondents,
who
did not know of the decision to release Junqueira. See May 8, 2018
Tr. at 8. Department of Justice counsel communicated with attorneys
in
the
office
of
ICE's
Chief
Counsel.
lawyers spoke to Brophy. See May 22,
Id.
At
least
one
of
those
2018 Tr. at 68. Brophy then
reversed the decision to release Junqueira and directed that his
detention continue.
on May 3,
2018,
Id.
at 68-69.
Instead of releasing Junqueira
ICE gave him a Notice of File Custody Review to
occur on June 3,
2018,
House of Correction.
As of May 8,
and he was returned to the Bristol County
Id.
2018,
ICE had not communicated that Brophy had
decided to release Junqueira and reversed that decision,
or the
reasons for Junqueira's continued detention, to its counsel at the
Department of Justice or to Junqueira's counsel. See May 8, 2018
Tr.
at 11-12,
V.
24.
ANALYSIS
37
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 38 of 62
ICE failed to follow its regulations with respect to both De
Souza and Junqueira when it decided to detain each of them for
approximately
§241.4 (h) (2)
four
and
months.
(d) (3)
As
provide
explained
that
the
earlier,
alien
and
8
his
C.F.R.
or
attorney must be given written notice approximately 30 days
her
in
advance of a custody review by ICE to determine whether detention
should
continue,
so
that
the
alien
can
submit
information
support a request for his or her release. Id. §241.4 (d) (3),
to
(h) (2).
As now interpreted by ICE, the regulations require that an alien's
custody be reviewed within 90 days of his or her detention, unless
there are exceptional circumstances, which ICE does not assert in
these
cases.
May
8,
2018
Tr.
at
15;
8
C.F.R.
§241.4 (k) (2) (iv) ,
(k)(3).
Because De Souza was detained on January 30, 2018, ICE should
have given her attorney and her notice of a
approximately March 30,
decided
to
Souza's
detention
she
ICE
opportunity to provide information in support of her release.
It
series of false or misleading statements concerning
that decision.
When ICE finally recognized that it had violated
characterizing the violation as an "irregularit[y]," ICE
decided to belatedly give De Souza 30 days'
review
before
2018,
an
§241.4,
De
It did not. On April 27,
had
then made a
continue
2018.
custody review by
and
to
detain
her
at
least
until
the
notice of a custody
review
occurred
on
about June 3, 2018. Therefore, in essence, ICE decided that because
38
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 39 of 62
i t had acted unlawfully in violating its regulations,
De Souza,
who might be entitled to be released and to be reunited with her
family before her possible deportation,
for
at
least
should lose her liberty
another month.
ICE dealt with Junqueira in a
comparable manner.
was arrested and detained on February 1,
§241.4 as now interpreted by ICE,
2018.
Junqueira
Therefore,
under
Junqueira his attorney should
have been given notice by April 1, 2018, that his custody would be
reviewed on about May 1,
Evidently
recognizing
2018.
this
No such notice was ever provided.
violation
of
the
regulations,
Rutherford and Brophy decided that Junqueira should be released on
May 3, 2018. However, without any opportunity for Junqueira or his
attorney to submit anything in favor of release,
the decision to
release him was reversed, and ICE decided to continue his detention
until at least June 3, 2018. Once again,
ICE decided that because
it had acted unlawfully, an alien who might deserve to be released
and reunited with his family before his possible deportation should
be detained for at
least another month.
Respondents have at different times made different arguments
for
the
lawfulness
Junqueira
for
more
of
ICE's
than
conduct
three
in
months
detaining
without
De
the
Souza
and
notice
and
opportunity to be heard required by §241.4.
First,
respondents asserted that "[t]he Post Order custody
Review Regulations [8 C.F.R. §241.4] do not apply to Ms. De Souza"
39
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 40 of 62
because she had not been detained during her 90-day removal period.
Apr. 23, 2018 0pp. at 11-12. Therefore, respondents argued De Souza
and
others
similarly
opportunity to
be
situated
heard,
or
an
had
no
right
to
notice,
an
individualized determination
of
whether they would be released after 90 days, because the removal
period had long ago expired.
In addition,
respondents argued that the court does not have
the authority to order release from ICE detention until an alien
has
been
detained
for
at
least
six
months.
Id.
at
11.
More
specifically, respondents wrote:
To the extent that Ms. de Souza, and any of the other
alien Petitioners, are challenging the lawfulness of
their immigration detention, this Court has no basis to
grant any relief because Ms. De Souza's detention, and
the detention of any of the other alien Petitioners, is
lawful under 8 U.S.C. § 1231(a) (6) and as a matter of
constitutional interpretation under Zadvydas v. Davis,
533 U.S. 678, 701 (2001). Section 1231(a)(6) authorizes
detention of aliens with orders of removal beyond the 90
day removal period.
8 U.S.C.
§1231 (a) (6).
Detention
pursuant to this section is presumptively reasonable for
six-months, thereby making habeas petitions filed prior
to the six-month mark not ripe for adjudication.
Id.
ICE repeatedly asserted that §241.4 did not apply to De Souza,
and other similarly situated aliens,
once she was detained,
and
that she was not entitled to any individualized determination of
whether she should be released, evidently for at least six months.
On
February 21,
2018,
ICE Deputy Field Office
Lyons stated in an affidavit that ICE "still
40
Director Todd M.
[had]
the authority
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 41 of 62
to
detain
also
[De
not
Souza's
been
co-petitioner
detained during
her
Lilian]
removal
Calderon,"
period,
who
"without
had
an
individualized determination of dangerousness and risk of flight."
Feb. 21, 2018 Lyons Deal.
Deputy Field Office
[had]
(Docket No. 40-1), SI7. On April 23, 2018,
Director
Rutherford
stated that
ICE
"still
the authority to detain De Souza without an individualized
determination of dangerousness and risk of flight." Apr. 23, 2018
Rutherford
Decl.
(Docket
No.
40-1),
57.
consistent with the contention that §241.4
Souza,
ICE's
conduct
was
did not apply to De
or to Junqueira either. As explained earlier,
ICE did not
follow the regulation in any respect with regard to De Souza or
Junqueira until government lawyers contacted them on about April
23 and May 3,
2018,
to request affidavits concerning De Souza's
and Junqueira's petitions.
ICE's initial argument that §241.4 does not apply to aliens
who are arrested after their 90-day removal period has expired is
contradicted by 8 U.S.C.
§1231 and "the
[agency's]
intent at the
time of [§241.4]'s promulgation." Caruso v. Blockbuster-Sony Music
Entm't
Ctr.
at
Waterfront,
(quoting
Thomas
Jefferson
(1994)).
In enacting §1231,
193
Univ.
F.3d
v.
730,
Shalala,
736
512
(3d
Cir.
U.S.
1999)
504,
512
Congress contemplated that ICE might
not discharge its duty to detain every alien within the removal
period.
Section 1231(a)(3),
therefore,
provides
that
"[i]f
the
alien does not leave or is not removed within the removal period,
41
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 42 of 62
the alien, pending removal,
shall be subject to supervision under
regulations prescribed by the
Section 241.4
is
initially argued,
one of those
[Secretary of Homeland Security]."
regulations.33
respondents
aliens first detained after the removal period
are never entitled to a custody review to determine whether they
should be released, they would not be "subject to supervision under
[the]
regulations prescribed by the
§241.4.
ICE
would,
therefore,
[Secretary],"
regularly
and
which include
repeatedly
be
in
violation of §1231 (a) (3).
In
aliens,
promulgating
8
including aliens
C.F.R.
first
§241.4,
INS
explained
detained following
that
all
their removal
period, would be eligible for possible release under §241.4. More
specifically,
INS
when it published §241.4 in the Federal Register,
stated that:
This
rule
establishes
a
permanent
custody
review
procedure applying to aliens who are detained following
expiration of the 90-day removal period...This permanent
review procedure governs all post-order custody reviews
inclusive of aliens who are the subjects of a final order
of removal, deportation, or exclusion, with the exception
of inadmissible Mariel Cubans...
Detention
of
Aliens
(emphasis added).
As
Ordered
Removed,
explained earlier,
65
Fed.
Reg.
§241.4 was
at
80291
intended to
provide these aliens the procedural due process courts had found
to be constitutionally required. Id. at 80283. If, as ICE initially
The relevant regulations also include 8 C.F.R.
governs the terms of release.
42
§241.5,
which
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 43 of 62
claimed,
§241.4 authorizes the detention of aliens like De Souza,
who are arrested after the expiration of their removal periods,
without an individualized determination concerning their detention
for
up
to
six
months,
the
regulation
would
likely
be
unconstitutional as applied.
Perhaps recognizing that i t was legally untenable to continue
to contend that ICE's failure to detain De Souza during her 90day
removal
period
gave
it
the
unfettered
discretion
to
later
detain her for up to six months without notice and any opportunity
to be heard, ICE changed its position. At the May 1, 2018 hearing,
in its May 3, 2018 supplemental memorandum, and at the May 8, 2018
hearing,
the respondents argued that "the procedures in 8 C.F.R.
§241.4 apply to petitioners," including De Souza and Junqueira,
and that "once an alien has been detained for
post-order detention statute,
90 days under the
they are entitled to a post-order
custody review pursuant to 8 C.F.R. §241.4." Respondents' Response
to Court's May 2, 2018 Order (Docket No. 55) at 4; see also May 1,
2018 Tr. at 30 ("It's the government's position that after 90 days
of
being
in
detention,
[De
Souza]
will
receive
all
of
the
procedures available in 8 C.F.R. §241."); May 8, 2018 Tr. at 15.
Therefore,
ICE now concedes that it must review the detention of
any alien,
including aliens who were not detained during their
removal period,
but maintains that it is not required to do so
until 90 days after the alien is arrested.
43
ICE asserts that the
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 44 of 62
agency's
current
interpretation
deference
from the
court.
Corp.,
461
567
U.S.
142,
155
of
its
regulation
See Christopher v.
(2012);
Auer v.
deserves
SmithKline Beecham
Robbins,
519 U.S.
452,
(1997) .
It is questionable whether ICE's more recent interpretation
of §241.4 deserves such judicial deference. Such deference is not
justified:
when the agency's interpretation is "'plainly erroneous
or inconsistent with the regulation.'" [Auer, 519 U.S.]
at 461
(quoting Robertson v. Methow Valley Citizens
Council,
490 U.S.
332,
359
(1989)). . . [or]
when there is
reason to suspect that the agency's interpretation "does
not reflect the agency's fair and considered judgment on
the matter in question." Auer, [519 U.S.] at 462, 117
S.Ct.
905;
see also,
e.g.,
Chase Bank
[v.
McCoy,
131 S.
Ct. 871, 881 (2011)], when the agency's interpretation
conflicts with a prior interpretation, see, e.g., Thomas
Jefferson Univ.
v.
Shalala,
512 U.S.
504,
515
(1994),
or.
when i t appears that the interpretation is nothing more
than
a
"convenient
litigating
position,"
Bowen
v.
Georgetown Univ.
Hospital,
488
U.S.
204,
213
(1988),
or
a "post hoc rationalizatio[n]
advanced by an agency
seeking to defend past agency action against attack,"
Auer, [519 U.S.] at 462, (quoting Bowen, [488 U.S.] at
212) .
Christopher, 567 U.S. at 155. This may be such a case.
Section 241.4 is ambiguous with regard to detention of aliens
like De Souza who were not detained during their initial 90-day
removal periods as required by 8 U.S.C.
§241.3. As described earlier,
§1231(a)(2)
and 8 C.F.R.
in enacting §1231, Congress and the
President anticipated that not all aliens ordered removed would be
deported during the removal period. See §1231(a)(3)(referring to
44
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 45 of 62
"an
alien"
However,
who
"does
not
leave...within
in promulgating §241.4,
the
removal
period").
INS evidently assumed that all
aliens would be detained during the removal period. As explained
earlier,
the regulation applies to all aliens detained following
the removal period. See 65 Fed. Reg. at 80291. Yet, the regulation
is entitled "Continued detention of
[certain]
aliens beyond the
removal period," suggesting that all aliens will have been detained
within
the
removal
§241.4(h)(2)
and
period.
Id.
(k)(1)(i)
(emphasis
require
30
added).
days'
In
addition,
notice
"to
the
detainee" and an initial custody review "prior to the expiration
of
the
removal
period."
In
cases
custody during the removal period,
in
which
an
alien
is
not
in
it would not be possible to
give timely notice and conduct a timely custody review.
However,
ICE's
current
interpretation
of
the
ambiguous
regulation, giving it 90 days after arrest within which to conduct
all custody reviews, is inconsistent with the regulation's express
"requirement that the review occur prior to the expiration of the
removal period," §241.4(h)(2),
(h)(1),
(k)(2)(emphasis added),
the absence of exceptional circumstances,
id.
in
§241.4(k)(2)(iv),
(k)(3). The 90-day removal period runs from "[t]he date the order
[of removal] becomes administratively final," the date of a court's
final disposition if the removal order is judicially reviewed, or
"the date the alien is released from [non-immigration] detention,"
whichever
is
latest.
Id.
§241.4 (g) (1) (i) ;
45
see
also
8
U.S.C.
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 46 of 62
§1231 (a) (1) (B) .
The
regulation
does
not
state
that
the
removal
period runs from the date the alien is first detained.
The
regulation can be reasonably read in a manner that is
consistent with its
language
give
of
aliens
notice
detaining them,
a
and that would not
custody
review
require
before
ICE to
arresting
and
while still affording these aliens due process.
The regulations permit ICE to issue the 30-day notice and conduct
the
custody
period,
review
"allowing
"as
for
soon
any
as
possible
unforeseen
emergent situation." §241.4(k)(2)(iv).
this
provision,
give
notice
and
[]after"
the
circumstances
removal
or
[an]
ICE could, consistent with
decide
whether
detention
is
justified "as soon as possible" after the arrest of an alien who
was
not
detained
during
his
or
her
removal
period.
Id.
This
approach would also be consistent with the authority to postpone
a custody review "for good cause" as long as "reasonable care [is]
exercised
to
ensure
that
the
alien's
case
is
reviewed
once
the
reason for delay is remedied." Id. §241.4(k)(3). Therefore, for an
alien arrested after the removal period like De Souza, i t would be
faithful to the language of §241.4 to interpret the regulation as
requiring
notice
promptly
after
arrest
and
a
custody
review
approximately 30 days later.
This
interpretation
consistent with
would
also
be
the
of
the
regulation
language of §241.4 (h) (1)
reasonable.
An
alien
46
who
is
would
and
not
only
be
(k) (1) (i) ,
it
detained
after
the
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 47 of 62
expiration
of
mandatory,
has
removal."
the
not
removal
period,
"conspir[ed]
§1231(a) (1) (C).
during
or
Indeed,
which
act[ed]
ICE concedes
to
detention
prevent
De
is
[her]
Souza has
not
done so. See Rutherford Aff., 55 (stating that De Souza's detention
"is
discretionary
under
8
U.S.C.
§1231(a) (6)") .
expiration of an alien's removal period,
not
to
automatically
detain
him
or
After
the
there are good reasons
her
for
90
days
before
considering the alien's release. As Judge David Barron has written,
"the more time an individual spends in the community,
the lower
her bail risk is likely to be, and the more probable it is that a
fair
custody review would result
Souza,
810 F.3d 15,
Three
months'
41
(1st Cir.
detention
in her release."
Castaneda v.
2015).
without
a
statutory mandate
under
§1231 (a) (2), or at least an informal opportunity to be heard, may
be unconstitutional.^'^ "Congress may make rules as to aliens that
Among
other
factors,
the
fact
that
no
statute
requires
the
detention of aliens who, like De Souza and Junqueira, are detained
beyond the removal period distinguishes this case from Demore, 538
U.S. at 521.
In that case,
the Court held that Congress could, by
statute, require ICE to detain an alien who committed certain
crimes for the "brief period necessary [to complete his or her]
removal proceedings," which the Court believed was ordinarily from
one
to
four months.
Id.
at
523,
529.
In any event,
in
Demore,
Justice Kennedy concurred only because the alien was afforded
"individualized procedures" to determine whether his detention was
mandatory under the statute or, if not, justified by a risk of
flight or danger to the community. Id. at 531-32 (Kennedy, J.,
concurring). Therefore, even when "the Executive Branch must
detain an alien at the beginning of removal proceedings, without
a bond hearing," it "may do so consistent with the Due Process
Clause" only if "the alien is given some sort of hearing when
47
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 48 of 62
would be unacceptable if applied to citizens." Demore, 538 U.S. at
521. However, even parolees, who are also "properly subject[]...to
many
restrictions
not
guaranteed "some minimal
applicable
inquiry"
to
other
citizens,"
are
to determine whether there is
"probable cause to hold the parolee for the final decision of the
parole board on revocation." Morrissey v.
Brewer,
482,
be
485-87
(1972) .
That
inquiry
must
408 U.S.
"conducted
471,
at
or
reasonably near the place of the alleged parole violation or arrest
and as promptly as convenient after arrest while information is
fresh and sources are available." Id.
at 485. The formal revocation
hearing must then take place "within a reasonable time after the
parolee is taken into custody," which has been held to be up to
two months.
Id.
at
488.
Similarly, when ICE arrests an alien who has been released on
conditions under §241.4(d) (1),
of the
reasons
custody,"
and
for
[the]
"afford[]
i t is required to "notif[y]
revocation
[her]
an
[and]...her return to
informal
interview
[her]
[ICE]
promptly
after...her return to [ICE] custody to afford [her] an opportunity
to
respond
to
the
reasons
for
revocation
stated
in
the
notification," §241.4(1) (1). This process precedes a full custody
review
conducted
"approximately
three
months
after
release
is
initially detained at which he may challenge the basis for his
detention" and seek to show i t is not authorized by statute. Diop,
656 F.Sd at
232.
48
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 49 of 62
revoked."
Id.
§241.4 (i) (3).
It
would,
therefore,
and arguably constitutionally necessary,
require
that
an
alien
who
removal period expires,
is
first
to
be
reasonable,
interpret §241.4
detained
after
his
or
to
her
and who will not be immediately removed,
receive a prompt opportunity to demonstrate that §1231(a)(6)
and
§241.4,
do
not
§1231(a)(6)
and
which
address
post-removal-period
authorize
her
detention.
§241.4
not
authorize detention after
do
As
explained
detention,
earlier,
the
removal
period has
expired if the alien will not be immediately removed and is not a
flight risk or dangerous because detention would not be "reasonably
necessary to secure removal." Zadvydas,
8 C.F.R.
533 U.S. at 699; see also
§241.4(e)-(f).
However,
it
is
not
now
necessary
to
decide
whether
ICE's
current interpretation of §241.4 is correct. It is undisputed that
ICE violated §241.4 as i t now interprets i t with regard to both De
Souza and Junqueira.
See May 8,
2018 Tr.
at 15-18,
22-25,
35-36.
Nevertheless, ICE continues to assert that the court does not have
the authority to remedy those violations.
respondents
analysis
in
Souza's
and
argued on April
Zadvydas
the
is the
alien
23,
2018
As indicated earlier,
that
"the Supreme Court's
sole inquiry in cases
Petitioners',"
and
like Ms.
under
de
Zadvydas,
"detention pursuant to §1231(a) (6) is presumptively reasonable for
six-months,
thereby making habeas petitions
filed prior to
six-month mark not ripe for adjudication." Apr.
49
23,
2018 0pp.
the
at
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 50 of 62
11. Respondents amplified this argument at the May 8, 2018 hearing,
stating that
"the right
implicated in Zadvydas
is the
right to
detention that is connected with its purposes. And the purpose[]
articulated in Zadvydas is to ensure the alien's presence at the
time of removal.
And that is the only right that this court has
the authority to decide with regard to whether the detention is
constitutional or not." May 8,
that
under
reasonable
Zadvydas,
connection
2018 Tr. at 31. Respondents assert
post-removal-order
with
its
purposes
detention
only
when
lacks
it
a
becomes
"prolonged" and "removal isn't foreseeable." Id. at 26. Therefore,
respondents argue, the court may not order relief for the detained
alien as long as his or her removal is reasonably foreseeable and,
in any event, not until the alien has spent at least six months in
detention.
Respondents'
fail
to
contention is incorrect,
recognize
the
distinction
however,
between
the
because they
substantive
and
procedural components of the Due Process Clause discussed earlier.
Again,
the
"substantive
component... forbids
the
infringe certain 'fundamental' liberty interests ^
what
process
provided,
unless
the
to
all, no matter
is
narrowly
tailored to serve a compelling state interest." Flores,
507 U.S.
at 301-02.
is
government
infringement
The Court in Zadvydas held that aliens have a liberty
interest in "[f]reedom from imprisonment—from government custody,
detention,
or other forms of physical restraint," which "lies at
50
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 51 of 62
the heart of the liberty that Clause protects." Zadvydas, 533 U.S.
at 690. Therefore, detention violates substantive due process when
it
does
not
"bear[]
a
reasonable
justification...[that]
constitutionally
However,
outweighs
protected
restraint." Zadvydas,
even
relation"
533 U.S.
if
there
to
the
interest
in
a
"special
individual's
avoiding
physical
at 690.
are
constitutionally
permissible
reasons to detain an alien, meaning that it "survives substantive
due process scrutiny," the decision to do so must result from a
fair process. Salerno, 481 U.S. at 746. In the immigration context,
as
the
Third Circuit
has
held,
while
Congress
may
"pass
a
law
authorizing an alien's initial detention...those implementing the
statute[]
[must]
provide individualized procedures through which
an alien might contest the basis of his detention." Diop, 656 F.3d
at
232.
The
fundamental
features
of
procedural
due
process
are
fair notice and a meaningful opportunity to be heard. See Mathews,
424 U.S.
at 333-34,
In Zadvydas,
348.
the Supreme Court addressed only the issue of
when an alien's right to substantive due process would be violated
by prolonged detention. It held, in part, that "an alien's liberty
interest
is,
at
the
least,
question as to whether,
post,
at
2515-2517
strong
enough
to
raise
a
serious
irrespective of the procedures used, cf.
(Kennedy,
J.,
dissenting),
the Constitution
permits detention that is indefinite and potentially permanent."
51
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 52 of 62
Zadvydas,
533
U.S.
at
695
(emphasis
added).
In
doing
so,
the
Supreme Court recognized that an alien's right to substantive due
process could be violated even if the requirements of procedural
due process had been satisfied.
As explained earlier,
the Court
also decided that for a substantive due process analysis,
should
presume
that
detention
for
less
than
six
courts
months
is
reasonably related to §1231(a)'s permissible purpose of ensuring
the alien's presence at the time for removal.
In
Zadvydas,
the
Court
described
the
Id. at 700-01.
post-removal
period
procedures required by 8 U.S.C. §1231 and 8 C.F.R. §241.4. Id. at
683-84.
It
implicitly
assumed
that
those
procedures
had
been
properly employed in deciding that there could be a violation of
the
alien's
unreasonable
substantive
detention
due
process
"irrespective
referencing Justice Kennedy's dissent.
right
of
the
Id.
to
freedom
procedures
at 696.
from
used,"
The Court did
not suggest that it disagreed with Justice Kennedy's view that a
violation of the
right to procedural due process would justify
judicial relief.
In his dissent from the majority's
analysis.
Justice
Kennedy
argued
substantive due process
that
a
removable
alien
challenging detention had only a right to procedural due process,
writing:
"[w]hether a due process right is denied when removable
aliens who are
flight
risks
or dangerous
detained turns,
not on the substantive right to be free,
52
to the
community are
but on
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 53 of 62
whether there are adequate procedures to review their cases..."
Id.
at 721
{Kennedy,
J.,
dissenting).
He then explained—without
dispute from the majority—his view that:
like the prisoner in Board of Pardons v. Allen, who sought
federal-court
review
of
the
discretionary
decision
denying him parole eligibility, removable aliens held
pending deportation have a due process liberty right to
have the INS conduct the review procedures in place. See
482 U.S., at 381. Were the INS, in an arbitrary or
categorical manner,
to deny an alien access to the
administrative processes in place to review continued
detention, habeas jurisdiction would lie to redress the
due process violation caused by the denial of the mandated
procedures under 8 C.F.R. § 241.4 (2001).
This is not the posture of the [Zadvydas] case[], however.
Id. at 724-25. In contrast, the situation Justice Kennedy described
is exactly the posture of De Souza's case and Junqueira's case.
Each has been arbitrarily denied the process prescribed by §241.4,
which,
as Justice Kennedy recognized,
is intended to codify the
procedural due process requirements of the Fifth Amendment.
In Alexander v.
with Justice Kennedy,
Attorney General,
the Third Circuit agreed
stating that "Zadvydas is not the only word
on post-removal detention." 495 Fed. App'x 274, 277 (3d Cir. 2012).
The court observed that "regulations promulgated around the time
of,
and
after,
the Zadvydas decision
established
a
series
of
processes for determining whether an alien should be released from
custody after the expiration of the ninety-day removal period,"
discussing
§241.4
in particular.
Id.
Therefore, the
court
held
that "a failure to satisfy Zadvydas [by showing that there is 'no
53
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 54 of 62
significant likelihood of removal
future']
prevail
may not
necessarily be
on an alternative
compliance, "
and
remanded
in the reasonably foreseeable
fatal
to an alien's
ground predicated on
to
the
district
regulatory non-
court
whether DHS had complied with its regulations.
ability to
to
determine
Id.
The duty of the President and his subordinates to obey the
regulations they have promulgated has been repeatedly recognized
by the Supreme Court.
During the "McCarthy Era," the Court held
that having delegated by regulation to the BIA the discretion to
decide,
subject
deported,
to
appeal
to
him,
whether
alien
should
be
the Attorney General could not "sidestep the Board or
dictate its decision in any manner." Accardi,
In
an
Nixon,
418
U.S.
at
regulation delegated
to
obtain
seek
subpoenas
and
a
694,
the
Special
judicial
347 U.S. at 267.
Attorney
Prosecutor
General
the
enforcement
had
by
authority to
of
them
in
his
investigation, including by contesting the assertion of Executive
Privilege.
comply
The President later claimed that he did not have to
with
the
Special
Prosecutor's
subpoena
conversations between the President and his aides.
for
tapes
of
Id.
at 692.
He
argued that he had the unreviewable authority to assert Executive
Privilege and withhold the tapes.
both contentions.
Id. The Supreme Court rejected
It held that the regulation had "the force of
law," "the Executive Branch was bound by it," and the Court was
"bound to respect and enforce it." Id.
54
at 696. Holding that the
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 55 of 62
Special Prosecutor properly issued the subpoena and showed that
the Executive Privilege did not provide a basis to quash it,
the
Court ordered the President to produce the requested tapes. Id. at
713-14.
As the Supreme Court held in Nixon,
regulations like §241.4,
which are promulgated through a formal notice-and-comment process,
have "the force of law." 418 U.S. at 695; see also Perez v. Mortgage
Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015)(explaining that "Rules
issued through the notice and comment process are often referred
to as 'legislative rules' because they have the 'force and effect
of law'");
537
rule
(D.C.
Brock v.
Cir.
1986)(Scalia,
establishes
law.");
Cathedral Bluffs Shale Oil Co.,
Adrian
a
Administrative Law,"
U.S.C.
person,
§2241(c)(3)
J.)("A properly adopted substantive
standard
Vermeule
796 F.2d 533,
of
&
conduct
Cass
131 Harv.
L.
which
has
Sunstein,
Rev.
1924,
"The
the
force
Morality
1956-60
of
of
(2018).
28
authorizes this court to order relief for any
including an alien,
who is "in custody in violation of
t h e . . . l a w s . . . o f the United States."
The court recognizes that not every procedural error violates
the
constitutional
intervention.
See
right
Matias
to due process
v
Sessions,
871
and
F.3d
justifies
65,
72
judicial
(1st
Cir.
2017) . However, as explained earlier, when the government violates
a regulation intended to protect a fundamental right derived from
the Constitution or a federal statute,
55
such as the Fifth Amendment
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 56 of 62
right to notice and an opportunity to be heard, the court may order
relief. See Waldron, 17 F.3d at 518. As explained earlier, 8 C.F.R.
§241.4
was
promulgated
in
an
effort
to
provide
aliens
the
procedural due process that courts had found to be constitutionally
required. See 65 Fed. Reg. at 80283.^^ The court may issue a writ
of habeas corpus to enforce §241.4 even if the regulation provides
greater protection than is constitutionally required. See Accardi,
347 U.S. at 265-68; Nelson, 232 F.3d at 262; Rombot, 296 F.Supp.3d
at
388.
It is undisputed that ICE violated §241.4 with regard to both
De
Souza
and
Junqueira.
They are
entitled to
judicial
relief.
Zadvydas, 533 U.S. at 724 {Kennedy, J., dissenting); accord Rombot,
15 The Calderon petitioners "do not concede that the procedures
under Section 241.4 are adequate for the protection of Petitioners'
and class members' constitutional rights." Response in Opposition
to Motion to Dismiss the First Amendment Complaint at 30 n.l3.
Rather, the petitioners argue that §241.4's presumption favoring
detention violates their due process rights because they:
are entitled to protections beyond those
that must
be
granted to every detainee with a final order of removal.
Detention of individuals in the process of seeking lawful
permanent
resident
status
cannot
be
presumptively
reasonable—even if all of the Section 241.4 procedures
are followed—because the government cannot be presumed
to have any interest in the removal of people who may soon
become
lawful permanent
residents,
and
individuals
presenting themselves for legalization cannot be presumed
to be flight risks during the pendency of the application
process.
Id.;
see also Memorandum in Support of Motion for a Temporary
Restraining Order and Preliminary Injunctive Relief
No.
50 in Calderon)
at 23.
56
(Docket
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 57 of 62
296
F.Supp.Sd
D'Alessandro^
VI.
at
388;
Bonitto,
547
F.Supp.2d
at
757-58;
628 F.Supp.2d at 388-403.
REMEDY
As
indicated
earlier,
habeas
equitable remedy." Schlup v.
U.S.C.
§2243
matter
as
provides
law
and
habeas corpus was,
"court's
role
noncriminal
that
Delo,
most
court
require."
above all,
is,
513 U.S.
"[t]he
justice
was
corpus
at
298,
its
Historically,
in
detention." Boumediene,
128
28
shall... dispose
cases
S.
of
in which the
of
pretrial
at
2267.
Ct.
the
"common-law
an adaptable remedy"
extensive
an
(1995).
319
core,
and
"[W]hen
the judicial power to issue habeas corpus properly is invoked the
judicial officer must have adequate authority... to formulate and
issue appropriate orders for relief,
including,
if necessary,
an
order directing the prisoner's release." Id. at 2271.
As this court has repeatedly recognized, "[w]hile the court's
discretion to devise an equitable remedy is considerable,
not unfettered." Flores-Powell v.
474
(D.
Mass.
2010)
F.Supp.2d 384, 434
2006).
"Rather,
suffered...and
(Wolf,
D.J.);
677
Ferrara v.
F.Supp.2d 455,
United States, 384
(D. Mass. 2005), aff'd, 456 F.3d 278 (1st Cir.
the
remedy
should
not
interests." Flores-Powell,
States V. Gordon,
Chadbourne,
it is
should
be
unnecessarily
677
156 F.3d 376,
tailored
to
infringe
F.Supp.2d at
476
381
1998)).
57
(2d Cir.
on
the
injury
competing
(quoting United
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 58 of 62
As
indicated earlier,
ICE argued on May 8,
2018,
that
the
remedy for its violation of its regulations and the constitutional
rights of De Souza and Junqueira to procedural due process should
be a custody review to be conducted by ICE on about June 3, 2018.
This would not be equitable.
ICE
has
repeatedly
demonstrated
an
inability
to
perform
lawfully and to decide fairly whether detention is justified for
either De Souza or Junquiera.
Its indifference to its duty not to
deprive aliens of liberty without due process is not unique to
these cases.
For example,
in Doe v. Smith, 2017 WL 6509344, at *9
(D. Mass. 2017)(Sorokin, D.J.), the court held that ICE's "repeated
errors
suggesting negligence,
incompetence or bad faith
on the
part of the agency ha[d] prolonged Doe's [deportation] proceedings
and,
thus,
his
informed the
detention."
Among
other
Immigration Court that
things,
district
court
rejected
erroneously
Doe had been released,
that a new bond hearing was not necessary.
the
ICE
ICE's
Id.
and
at *7. Therefore,
argument
that
"the
only
appropriate remedy was another bond hearing identical to the two
[Doe]
already had before the
[Immigration Judge], which had been
infected by ICE's misconduct," and ordered Doe's release.
*8-9.
Similarly,
found
that
ICE
in Rombot,
had
296
repeatedly
F.Supp.3d at
failed
to
388-89,
follow
the
Id. at
the court
procedures
required by §241.4 in detaining the petitioner, therefore violated
his
constitutional
right
to
due process,
58
and ordered that
the
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 59 of 62
petitioner be released.
F.Supp.2d 368,
387-406
See also D'Allessandro v.
(W.D.N.Y.
Mukasey,
2009)(finding ICE's
failure
628
to
follow requirements of §241.4 violated alien's right to procedural
due process and ordering alien's release).
In view of the foregoing, i t would not be appropriate to allow
ICE to decide again whether De
should continue.
Souza's or Junquiera's detention
It would be particularly unfair to require that
petitioners remain detained for another 30 days while ICE attempts
to
remedy its
failure
to
follow
its
regulations
each of them due process. As explained earlier,
face
the
prospect
families.
of
being
deported
and
Each day with their families
and to provide
both petitioners
separated
is,
from
therefore,
their
precious.
Any unjustified loss of liberty for even one more day would be a
particularly painful form of irreparable harm to them and to the
United States citizens who love them.
Furthermore,
will
each
released
be
under
it appears likely that De Souza and Junqueira
able
the
to
persuade
standards
the
in
court
§241.4(e)
that
and
they
(f) .
should
There
is
be
no
evidence that ICE has obtained the documents necessary to deport
either petitioner to Brazil.
does not appear possible.
Therefore,
their immediate removal
See §241.4 (e) (1) .
It appears that if
released, neither is likely to be a danger to the community because
neither has
a
criminal history.
See §241.4(e)-(f).
Nor does
appear that either is likely to flee. Among other factors,
59
it
their
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 60 of 62
"ties to the United States," including "close relatives residing
here
lawfully,"
violations"
§241.4(f).
of
In
appear
having
to
outweigh
entered
addition,
both
their
of
immigration
United
the
"prior
States
unlawfully.
them
have
lived
in
the
United
States for more than fourteen years, have spouses and children who
are United States citizens,
and seek to pursue lawful Permanent
Resident status through a process prescribed by law. As indicated
earlier,
CIS's
hardship"
alien's
waiver
process
to United States
inability
to
live
is
designed
with
prevent
"extreme
that would result
citizens
from the
them
in
to
the
United
States
and
support them. Absconding or violating their conditions of release
would seriously jeopardize De Souza's and Junqueira's chances of
living in this country with their families.
In these circumstances, i t is most appropriate that the court
exercise
its
petitioners'
equitable
authority
constitutional
to
rights
to
remedy
due
the
process
deciding itself whether each should be released.
Zadvydas,
147
533 U.S. at 699; of. McCarthy v. Madigan,
(1992)
("[IJmpending
irreparable
violations
injury
by
of
promptly
See §241.4(f);
503 U.S.
flowing
from
140,
delay
incident to following the prescribed procedure...may contribute to
finding
Powell,
468
that
exhaustion
is
677F. Supp.2d at 463
(D.C.
Cir.
not
required.");
see
(citing Bois v. Marsh,
1986)).
60
also
Flores-
801 F.2d 462,
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 61 of 62
VII.
CONCLUSION
For the foregoing reasons, the court finds that De Souza and
Junquiera are each being detained in violation of the Constitution
and laws of the United States, and that the court should determine
whether their continued detention is
justified.
Accordingly,
on
May 8, 2018, the court ALLOWED De Souza and Junqueira's Petitions
for Writs of Habeas Corpus under 28
U.S.C.
§2241
(C.A.
No.
18-
10225, Docket No. 27, and C.A. 18-10307, Docket No. 22) concerning
their detention and scheduled a bail hearing at which the court
would decide whether they should be released. After this decision
was announced in court on May 8,
2018,
ICE released De Souza and
Junqueira.
As discussed at the May 8, 2018 hearing, ICE failed to follow
the procedures required by §241.4 and to provide petitioners with
the due process the Constitution requires in these two cases, which
ICE knew were subject to judicial scrutiny.
This causes concern
that ICE may be violating the rights of many other detained aliens
who do not have counsel to file
petitions
for
habeas
corpus on
their behalf in federal court. That concern may soon be addressed
in the context of the claims in Calderon for class certification
and preliminary injunction. However, at least some members of the
class may suffer unjustified irreparable harm before these issues
are decided,
including by being deported without the opportunity
61
Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 62 of 62
to spend time with their families that they would have had if their
constitutional right to due process had been respected.
At hearings on May 22 and 23,
2018,
the court was informed
that after the court issued its decisions regarding De Souza and
Junqueira,
ICE
Massachusetts
reviewed
Field Office,
detainee
found
files
30
to
40
in
the
Burlington,
additional
which the §241.4 procedures had not been followed,
cases
in
and released
approximately 20 aliens. See May 22, 2018 Tr. at 86; May 23, 2018
Tr.
at 51,
138. The court has not been informed of the status of
the additional 10 to 20 aliens who were evidently also denied due
process.
UNITED STATES
62
DISTRICT
JUDGE
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