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

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 12 of 62

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

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 14 of 62

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