Abdi v. Duke, et al.
Filing
129
DECISION AND ORDER granting in part 122 Petitioners' Motion to Enforce Preliminary Injunction and Class Reporting Order by Hanad Abdi, Johan Barrios Ramos to the extent that Respondents are hereby ordered to produce a witness or witnesses for deposition within thirty (30) days of this Court's Decision and Order who has personal knowledge of the methodology being used by Respondents to identify and report class members and who can testify concerning any changes made or that will be ma de by Respondents to address the recurring errors in the identification of class members. The Court otherwise reserves decision on the remaining aspects of the motion and all parties shall plan on addressing these issues at the upcoming oral argument scheduled for May 15, 2019. Signed by Hon. Elizabeth A. Wolford on 4/30/2019. (DPS)
FILED
UNITED STATES DISTRICT COURT
APR 3 0 2019
WESTERN DISTRICT OF NEW YORK
HANAD ABDI and JOHAN BARRIOS RAMOS,
on behalf of himself and all other similarly situated,
DECISION AND ORDER
Petitioners,
I:I7-CV-0072I EAW
V.
KEVIN MCALEENAN,' in his official capacity as
Acting Secretary of U.S. Department of Homeland
Security; THOMAS BROPHY,in his official
capacity as Acting Director of Buffalo Field Office
of Immigration and Customs Enforcement;
JEFFREY SEARES, in his official Capacity as
Acting Administrator of the Buffalo Federal
Detention Facility; and WILLIAM BARR,^ in his
official capacity as Attorney General of the United
States,
Respondents.
BACKGROUND
Petitioners Hanad Abdi and Johan Barrios Ramos brought this action seeking relief
on behalf ofthemselves individually and on behalf of a proposed class of similarly situated
asylum-seekers held at the Buffalo Federal Detention Facility in Batavia, New York (the
"Batavia facility"). (Dkt. 17). On November 17, 2017, the Court issued a Decision and
Order denying Respondents' motion to dismiss and granting Petitioners' motion for a
'
Kevin McAleenan is the current Acting United States Secretary of Homeland
Security. Accordingly, he is substituted as a respondent in this action. See Fed. R. Civ. P.
25(d).
2
William Barr is the current United States Attorney General. Accordingly, he is
substituted as a respondent in this action. See Fed. R. Civ. P. 25(d).
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preliminary injunction. (Dkt. 56). The Court ordered Respondents to immediately
adjudicate or readjudicate the parole applications of all members of the putative class of
asylum-seekers detained at the Buffalo facility in conformance with their legal obligations,
including their obligations under ICE Directive No. 11002.1: Parole ofArriving Aliens
Found to Have a Credible Fear ofPersecution or Torture(Dec. 8, 2009). {Id. at 65). The
Court also ordered Respondents to provide individualized bond hearings to members ofthe
putative subclass who have been detained for six months or more, as required by 8 U.S.C.
§ 1225(b). {Id. at 66).
On December 7, 2017, the Court held oral argument to address Petitioners' thenpending motion for class action certification. (Dkt. 62;see Dkt. 19). At the conclusion of
the motion hearing, the Court required Respondents to give notice to proposed class
counsel as soon as a bond hearing was scheduled and to provide the same counsel with a
list of all putative class members. {See Dkt. 75 at 31-34). The Court subsequently granted
Petitioners' motion for class certification on December 19, 2017 (Dkt. 66), certifying a
class of"[a]ll arriving asylum-seekers who have passed a credible fear interview and who
are or will be detained at the Buffalo Federal Detention Facility and who have not been
granted parole," as well as a subclass of"[a]11 arriving asylum-seekers who are or will be
detained at the Buffalo Federal Detention Facility, have passed a credible fear interview,
and have been detained for more than six months without a bond hearing before an
immigration judge," {id. at 23).
On February 9, 2018,the Court issued another Decision and Order, clarifying "that
once an [immigration judge (TJ')] has determined that a detainee should be released on
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bond, he or she must consider the financial circumstances of each subclass member and
alternative conditions of release in setting the amount of bond". (Dkt. 83 at 29). As a
result, the Court ordered that "bond hearings must be recalendared and the record
reopened" for any subclass member "who remain[ed] detained notwithstanding an IJ's
determination that release on bond would be appropriate," so that "alternative conditions
ofrelease and the individual's ability to pay" are considered. {Id.). The Court also required
Respondents to notify Class Counsel "ofthe date and location of each bond hearing ... at
least five days in advance ofthe hearing." {Id.).
On February 27, 2018, the Supreme Court issued a decision in Jennings v.
Rodriguez, 138 S. Ct. 830(2018), which held, among other things, that 8 U.S.C. § 1225(b)
does not contain an implicit six-month time limit on the detention of an alien seeking entry
into the United States. See id. at 842-846. On October 31, 2018, Respondents filed a
motion to vacate that part of the Court's preliminary injunction requiring that
individualized bond hearings be held for all members of the subclass. (Dkt. 91).
Respondents seek this relief based upon their interpretation of Jennings. (Dkt. 91-1 at
8-11). On December 13,2018,Respondents filed a motion to decertify the subclass. (Dkt.
102). Although Respondents address several issues in their motion papers, the Jennings
decision appears to be the impetus for this motion as well. {See Dkt. 102-1 at 8-12, 15-16).
Petitioners oppose both motions. (Dkt. 99; Dkt. 121).
Respondents' pending motions are scheduled to be argued on May 15, 2019. (Dkt.
123). While those pending motions were being briefed—on March 18, 2019—^Petitioners
filed a motion to enforce the preliminary injunction and class reporting order. (Dkt. 122).
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Petitioners contend that Respondents are not taking appropriate measures to comply with
the Court's prior orders. (Dkt. 122-1). Petitioners request that the Court grant limited
discovery relating to Respondents' current procedures used in complying with the
preliminary injunction, mandate additional reporting and disclosure conditions, require
Respondents to hold bond hearings for all applicable class members no later than 195 days
after their initial immigration detention and provide notice to all parties no later than two
weeks before the scheduled hearing date, and direct Respondents to issue a directive
informing immigration authorities of their responsibilities under the Court's prior orders.
(See Dkt. 122-7). Respondents oppose Petitioners'motion. (Dkt. 127).
Having reviewed the parties' submissions,the Court finds that Respondents' refusal
to engage in a discussion with Petitioners concerning the admitted violations ofthis Court's
Orders is unreasonable.(See Dkt. 122-2 at6(Petitioners' counsel requesting to "speak with
the person(s) collecting information for the monthly class report" and for Respondents to
identify "what steps [they] plan to take to verify and correct the ongoing [preliminary
injunction] violations"), 8 (Respondents' counsel indicating that they "don't believe it's
necessary for you to communicate directly with agency client representatives" and that
they "think communication with us is best done over email"), 16 (Petitioners' counsel
requesting to speak over the telephone and noting that these "meet-and-confer
conversations over email, stretched out for days and weeks," have not been productive)).
The unreasonableness of Respondents' position is only amplified by the fact that there is
no dispute that Respondents have failed to comply with the requirements imposed by this
Court. (See Dkt. 127 at 5 (conceding that there have been occasions when subclass
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members were not included on the monthly class lists)). As a result, the Court concludes
that it is unnecessary to await the scheduled oral argument date before granting the
requested relief of a deposition.
Accordingly, for the following reasons. Petitioners' motion (Dkt. 122)is granted to
the extent that Respondents are hereby ordered to produce a witness or witnesses for
deposition within thirty (30) days of this Court's Decision and Order who has personal
knowledge of the methodology being used by Respondents to identify and report class
members and who can testify concerning any changes made or that will be made by
Respondents to address the recurring errors in the identification of class members. The
Court otherwise reserves decision on the remaining aspects of the motion and all parties
shall plan on addressing those remaining aspects of the motion at the upcoming oral
argument scheduled for May 15, 2019.
DISCUSSION
"Federal courts have broad discretion to fashion remedies as equity requires, to
ensure compliance with their orders." Cordius Tr. v. Kummerfeld Assocs., Inc., 658 F.
Supp. 2d 512,524(S.D.N.Y. 2009);see Nat'ILaw Ctr. on Homelessness & Poverty v. U.S.
Dep't of Veterans Affairs, 842 F. Supp. 2d 127, 131 (D.D.C. 2012)("[W]hen it comes to a
court's enforcement and monitoring of its own orders, the court is the judge and jury.").
This is so even in the absence ofcontempt. United States v. Visa U.S.A., Inc., No.98 CIV.
7076(BSJ),2007 WL 1741885,at *12(S.D.N.Y. June 15,2007)(citing Berger v. Heckler,
771 F.2d 1556, 1569(2d Cir. 1985)). "The Court has the relevant authority 'as part of its
inherent power to enforce its judgments,' and it is clear that 'appropriate discovery should
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be granted' where 'significant questions regarding noncompliance[with a court order] have
been raised.'" Damns v. Nielsen, 328 F.R.D, 1, 3-4(D.D.C. 2018)(quoting Cal. Dep't of
Social Servs. v. Leavitt, 523 F.3d 1025, 1033-34 (9th Cir. 2008)); see Blackberry Ltd. v.
Typo Prod. LLC, No. 14-CV-00023-WHO, 2014 WL 4136586, at *5(N.D. Cal. Aug. 21,
2014) (authorizing several discovery requests, including depositions, "in light of the
serious questions raised regarding [the defendant]'s possible violations ofthe preliminary
injunction"); see also Palmer v. Rice, 231 F.R.D. 21, 25(D.D.C. 2005)(permitting "postjudgment discovery" where the "plaintiffs will not be able to determine whether the
government has complied with the court's injunctions"); see generally Campaign for S.
Equal. V. Bryant, 197 F. Supp. 3d 905, 914 (S.D. Miss. 2016)(stating that "plaintiffs are
entitled to reasonable discovery to enforce an injunction against the parties bound by that
injunction").
In filing their motion. Petitioners address various instances of purported
noncompliance with this Court's preliminary injunction and class reporting orders. The
remedies Petitioners seek are ultimately intended to ensure that Respondents timely hold
individualized bond hearings for all identifiable subclass members and that all participants
to those proceedings are provided sufficient notice and an adequate time to prepare without
necessitating further delay. Respondents state that they maintain a goal of providing
individualized bond hearings within 195 days of a subclass member's initial immigration
detention. (Dkt. 127 at 4, 7; Dkt. 127-2 at ^ 7). However, Respondents are under court
order to provide timely bond hearings. While the Court's preliminary injunction did not
specify an exact date at which time the hearing must be held after the six-month
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demarcation, it should be self-evident that once an asylum-seeker, who is otherwise
qualified as a member of the subclass, has been detained for over six months, he or she is
immediately entitled to a bond hearing pursuant to the Court's preliminary injunction.
Moreover, the six-month time period runs from the date a class member is taken into
custody, regardless of whether the detainee is being held at the Batavia facility. The Court
is deeply troubled that as recently as last month, government counsel continued to express
confusion over this basic proposition. {See Dkt. 128-2 at Tf 5).
Absent evidence of extenuating circumstances—^which has not been presented
here—^the act ofscheduling bond hearings several weeks or, in some cases, months beyond
that six-month time limitation does not comport with this Court's injunction. It goes
without saying that Respondents' opinion of the vitality of the Court's preliminary
injunction ^osX-Jennings does not justify ignoring a duly-issued court-ordered injunction.
In other words. Respondents are certainly entitled to challenge the Court's preliminary
injunction by appealing that decision or moving to vacate the injunction—^but they are not
entitled to simply disregard the Court's Orders. Accordingly,the following reliefis granted
pursuant to the Court's inherent authority to monitor and enforce its prior orders.
Specifically,Petitioners request the Court to order Respondents to produce a witness
for deposition to determine what process is in place to identify subclass members and how
those procedures can be improved, if at all, to remedy the shortfalls identified in their
motion papers. While Respondents contend that a deposition is unnecessary in light ofthe
declarations submitted in opposition to Petitioners' motion (Dkt. 127 at 5 n.3), these
declarations provide only cursory insight into Respondents' current procedures and do not
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respond to Petitioners' concerns that some subclass members are being missed. In other
words, the several-paragraph descriptions of Respondents' process fail to address
Petitioners' well-supported belief that these procedures are deficient. See also Nat'I Law
Ctr. on Homelessness & Poverty, 842 F. Supp. 2d at 131 ("Equity would not be achieved
if a court decided simply to rubber-stamp an enjoined party's unsupported self-assessment
of its compliance with a court order."). Respondents' inadequate explanation is only
compounded by their failure to engage in a meaningful discussion with Petitioners in an
attempt to rectify these failures. (See Dkt. 122-2 at 5-18).
Petitioners' ability to identify subclass members is critical to the operation of the
Court's preliminary injunction, and thus. Respondents' inability to accurately provide a
monthly list to class counsel is troubling regardless of whether Respondents' failure to do
so is deliberate or unintentional. Accordingly, the Court grants Petitioners' request for
limited discovery based on its inherent authority to enforce the preliminary injunction and
class reporting orders, and requires Respondents to produce a witness or witnesses for
deposition within thirty (30) days of this Court's Decision and Order who has personal
knowledge of the methodology being used by Respondents to identify and report class
members and who can testify concerning any changes made or that will be made by
Respondents to address the recurring errors in the identification of class members. The
Court otherwise reserves decision on the remaining aspects of the motion and all parties
shall plan on addressing those remaining aspects of the motion at the upcoming oral
argument scheduled for May 15, 2019.
CONCLUSION
For the foregoing reasons, Petitioners' motion to enforee the preliminary injunetion
(Dkt. 122)is granted to the extent that Respondents are hereby ordered to produee a witness
or witnesses for deposition within thirty (30) days of this Court's Decision and Order who
has personal knowledge of the methodology being used by Respondents to identify and
report class members and who can testify concerning any changes made or that will be
made by Respondents to address the recurring errors in the identification of class members.
The Court otherwise reserves decision on the remaining aspects of the motion and all
parties shall plan on addressing those remaining aspects ofthe motion at the upcoming oral
argument scheduled for May 15, 2019.
SO ORDERED.
ELIZABETH /w^LFI
Umtgd^States District Judge
Dated:
April 30, 2019
Rochester, New York
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