L-R v. Johnson , 80 F. Supp. 3d 164 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
R. I. L-R, et al.,
Plaintiffs,
v. Civil Action No. 15-11 (JEB)
JEH CHARLES JOHNSON, et al.,
Defendants.
MEMORANDUM OPINION
The United States saw a surge in immigration in the summer of 2014 as people fled
increased lawlessness in Honduras, Guatemala, and El Salvador. Plaintiffs (and other members
of the class they seek to represent) are mothers and their minor children who escaped violence
and persecution in these countries to seek asylum in the United States. After entering this
country unlawfully and being apprehended, each was found to have a “credible fear” of
persecution, meaning there is a significant possibility that she will ultimately be granted asylum
here. Although, in the past, individuals in this position were generally released while their
asylum claims were processed, Plaintiffs were not so lucky. Instead, for each family,
Immigration and Customs Enforcement determined that interim detention was the appropriate
course.
Chasing liberty, Plaintiffs turned to the courts. They filed suit on January 6, 2015,
naming the Secretary of the Department of Homeland Security and two ICE officials as
Defendants. The Complaint alleges that Plaintiffs’ detention resulted from an unlawful policy
that DHS adopted in June 2014 in response to the immigration spike. Pursuant to that policy,
Plaintiffs claim, DHS is detaining Central American mothers and children with the aim of
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deterring potential future immigrants. According to Plaintiffs, such detention violates the Fifth
Amendment to the United States Constitution, the Immigration and Nationality Act, the
Administrative Procedure Act, and applicable DHS regulations.
They now seek a preliminary injunction to prevent DHS from applying this policy until a
final determination has been reached on the merits of this action. Finding that the circumstances
here merit that extraordinary form of relief, the Court will grant Plaintiffs’ Motion.
I. Background
A. Statutory and Regulatory Framework
Unlawful presence in the United States does not itself constitute a federal crime, although
it can trigger the civil remedy of removal. See Arizona v. United States, 132 S. Ct. 2492, 2505
(2012); Ortega Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012); 8 U.S.C. §§
1182(a)(6)(A)(I), 1227(a)(1)(B), (C). The Immigration and Nationality Act, 8 U.S.C. § 1101 et
seq., sets forth the conditions under which a foreign national may be admitted to and remain in
the United States and grants the Department of Homeland Security the discretion to initiate
removal proceedings. See, e.g., id. §§ 1181-1182, 1184, 1225, 1227-1229, 1306, 1324-25.
Under the INA, a foreign national apprehended shortly after entering the United States
without valid documentation is initially subject to a streamlined removal process dubbed
“expedited removal.” See id. § 1225(b)(1)(A)(i)-(iii); 69 Fed. Reg. 48,877 (Aug. 11, 2004). If,
however, she can demonstrate a “credible fear” of persecution in her home country during the
initial screening, see 8 U.S.C. § 1225(b)(1)(A) & (B); 8 C.F.R.§ 208.30(d)-(g), she is transferred
to “standard” removal proceedings pursuant to 8 U.S.C. § 1229a. Once reclassified, the foreign
national is entitled to a full asylum hearing before an immigration court, and, if unsuccessful, she
may file an administrative appeal with the Board of Immigration Appeals (BIA). See 8 C.F.R. §
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208.30(f); 8 U.S.C. § 1225(b)(1)(B)(ii). She may also petition for review of any removal order
entered against her in the appropriate court of appeals. See 8 U.S.C. § 1252(a)-(b).
This case revolves around what happens to these aliens between their initial screening
and these subsequent proceedings. Detention authority over such individuals is governed by 8
U.S.C. § 1226(a), which instructs:
Pending a decision on whether the alien is to be removed from the
United States[,] . . . the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved
by, and containing conditions prescribed by,
the Attorney General; or
(B) conditional parole . . . .
Per the Homeland Security Act of 2002, the Secretary of DHS shares the Attorney General’s
authority under § 1226(a) to detain or release noncitizens during the pendency of removal
proceedings. See Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192. By regulation, the
Secretary’s authority is delegated to individual officers within Immigration and Customs
Enforcement, a component of DHS. See 8 C.F.R. § 1236.1. For each noncitizen who passes the
threshold “credible-fear” screening, an ICE officer is tasked with making an initial custody
determination. The officer “may, in [his] discretion, release an alien . . . under the conditions at
[8 U.S.C. § 1226(a)(2)(A) & (B)]; provided that the alien must demonstrate to the satisfaction of
the officer that such release would not pose a danger to property or persons, and that the alien is
likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8).
If ICE denies release or sets bond that the noncitizen cannot pay, she remains in custody
pending a final asylum determination. While the regulations do not provide for further review
within DHS, the alien has the options of requesting a custody redetermination from an
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immigration judge within the Department of Justice and appealing an adverse redetermination
decision to the Board of Immigration Appeals. See id. §§ 1003.19(a), 1236.1(d). DHS may also
appeal the IJ’s custody decision and may automatically stay the decision (and thus the
individual’s release) pending the appeal. See id. §§ 1003.19(f), 1003.19(i)(2).
B. Plaintiffs’ Detention
The ten named Plaintiffs and other members of the class they seek to represent are
mothers accompanied by minor children who fled severe violence and persecution in their
Central American home countries. See Am. Compl., ¶ 1. In the fall of 2014, after crossing the
border and entering the country without documentation, each family unit was apprehended by
U.S. Customs and Border Protection (CBP). See id., ¶¶ 41, 58, 67, 75, 83. All crossed the
border with the intent to seek asylum. See id., ¶ 27. None has a criminal history, and all have
family members residing in the United States who stand ready to provide shelter and support
through their immigration proceedings. See id., ¶¶ 62-63, 70-71, 78-79, 87-88. Although
initially referred to expedited removal proceedings, each subsequently went on to establish a
“credible fear” of persecution. Id., ¶¶ 42, 59, 68, 76, 84. That showing made, Plaintiffs were
transferred to standard removal proceedings. Id.
It is here that their quarrel with Defendants begins. Each and every family was refused
bond after an ICE custody hearing and was detained at the Karnes County Residential Facility in
Texas. See Am. Compl., ¶¶ 60, 69, 77, 85; Pl. Mot at 10-11. Although all were subsequently
released several weeks or months later as a result of IJ custody-redetermination hearings, see
Def. Opp. & Mot., Exhs. A-C (IJ Custody Redetermination Hearings), ICE’s initial denials form
the crux of Plaintiffs’ case.
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In years past, say Plaintiffs, ICE did not generally detain families apprehended in the
interior of the United States who were found to have a credible fear of persecution. Instead – as
explained by experienced immigration practitioners – after an individualized assessment of their
potential flight risk and danger to the community, the majority of such families was released on
bond or their own recognizance. See, e.g., Pl. Mot., Exh. 1 (Declaration of Michelle Brané), ¶¶
11-12; id., Exh. 4 (Declaration of Barbara Hines), ¶¶ 8-15. Plaintiffs claim that an abrupt about-
face occurred in June 2014, when DHS adopted an unprecedented “No-Release Policy” in
response to increased immigration from Central America. According to Plaintiffs, the No-
Release Policy directs ICE officers to deny release to Central American mothers detained with
their minor children in order to deter future immigration – that is, to send a message that such
immigrants, coming en masse, are unwelcome. See Brané Decl., ¶¶ 12, 22-23; Hines Decl., ¶¶
13-15. They claim that this policy led to ICE’s denial of release in each of their cases.
On January 6, 2015, Plaintiffs brought a class-action suit in this Court, alleging, inter
alia, that the No-Release Policy violates the Immigration and Nationality Act and the Due
Process Clause of the Constitution. They further claim that the policy is contrary to law and
arbitrary and capricious, and thus constitutes illegal agency action under the Administrative
Procedure Act. Presently before the Court are Plaintiffs’ Motions for a preliminary injunction
barring the continued implementation of the No-Release Policy during the pendency of this suit,
as well as for provisional class certification for purposes of the requested injunction. Defendants
oppose both Motions and separately seek dismissal of the suit under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). In keeping with the expedited nature of a preliminary-
injunction proceeding, the parties filed briefs on an accelerated timetable, and the Court held a
hearing on February 2, 2015. This Opinion now follows.
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II. Legal Standard
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 129 S. Ct. 365,
376 (2008). The plaintiff “must establish [1] that he is likely to succeed on the merits, [2] that he
is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 374. When
moving for a preliminary injunction, the plaintiff “bear[s] the burdens of production and
persuasion.” Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 281 (D.D.C. 2005). To meet these
burdens, he may rely on “evidence that is less complete than in a trial on the merits,” NRDC v.
Pena, 147 F.3d 1012, 1022-23 (D.C. Cir. 1998), but the evidence he offers must be “credible.”
Qualls, 357 F. Supp. 2d at 281.
Before the Supreme Court’s decision in Winter, courts weighed the preliminary-
injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a
strong showing on another. See Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360-61
(D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be
read to abandon the sliding-scale analysis in favor of a “more demanding burden” requiring a
plaintiff to independently demonstrate both a likelihood of success on the merits and irreparable
harm. See Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011); see also Davis v. Pension
Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). Because the Court finds that
Plaintiffs in this case have met that higher standard, it need not tarry over whether Winter
sounded a death knell for the sliding-scale analysis.
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III. Analysis
At the heart of Plaintiffs’ suit is their assertion that DHS has adopted an unlawful
detention policy aimed at deterring mass migration. In their Amended Complaint, this claim
finds voice in five distinct grounds for relief. Four arise under the APA – specifically, Plaintiffs
allege that DHS policy: (1) violates the INA and is thus contrary to law under § 706(2)(A) of the
APA; (2) infringes on their rights to due process and is therefore contrary to law under §
706(2)(A); (3) deviates from DHS regulations, rendering it arbitrary and capricious under the
APA; and (4) constitutes an arbitrary and capricious means of deterring mass migration.
Plaintiffs also raise a freestanding due-process claim under the Fifth Amendment. Because the
Court concludes that Plaintiffs’ first theory, standing alone, warrants preliminary injunctive
relief, it will focus its attention accordingly.
Defendants mount a robust defense to that claim, erecting various jurisdictional and
substantive obstacles to relief. Although the Court would ordinarily ensure its jurisdiction before
turning to the merits, it is confronted here with an underlying factual issue common to both
endeavors – namely, the very existence and nature of the DHS policy challenged by Plaintiffs.
Defendants adamantly deny that any reviewable policy exists and maintain, as a consequence,
that Plaintiffs’ suit can proceed no farther.
Given this preliminary controversy, the Court will begin with a discussion of what, if
any, policy is actually in place. Finding one extant, it will next move to an analysis of the
myriad jurisdictional hurdles that impede Plaintiffs, including how provisional class certification
figures into the mix. Having cleared these considerable shoals, the Court will last navigate the
merits of injunctive relief.
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A. Existence of a Policy
Plaintiffs sketch two variants of the policy they seek to enjoin. The first – that DHS
adopted a categorical policy in June 2014 of denying release to all asylum-seeking Central
American families in order to deter further immigration, see Pl. Mot. at 6-7 – is hotly disputed by
Defendants as a factual matter. According to the Government, the evidence reveals that ICE
releases some such families after their initial custody determinations, debunking Plaintiffs’ claim
of a blanket policy. See Def. Opp. & Mot. at 13-17.
This point has some force. According to records maintained by the ICE Statistical
Tracking Unit, ICE released 32 of the 2,602 individuals booked into a family residential center
between June 1, 2014, and December 6, 2014, as a result of individualized custody
determinations. See Def. Reply, Exh. A (Amended Declaration of Marla M. Jones, ICE Officer,
Statistical Tracking Unit), ¶ 6. Plaintiffs, moreover, expressly admit that DHS’s alleged policy
has not resulted in universal detention. See Am. Compl., ¶ 45 (“DHS has denied release to
nearly every family that is detained at a family detention facility and has passed a credible fear
interview.”) (emphasis added); see also Pl. Mot., Exh. 5 (Declaration of Allegra McLeod,
Associate Professor of Law at Georgetown University), ¶ 6 (referring to ICE’s “nearly uniform”
refusal to grant release) (emphasis added). Although these materials certainly do not reflect a
large body of favorable release determinations, the Court is reluctant to find an across-the-board
No-Release Policy when it appears that – at least in some small number of cases – ICE does
grant bond on the basis of individualized considerations.
Plaintiffs, however, have also articulated a slightly narrower formulation of the relevant
policy. In this alternate version, they maintain that DHS policy directs ICE officers to consider
deterrence of mass migration as a factor in their custody determinations, and that this policy has
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played a significant role in the recent increased detention of Central American mothers and
children. See Pl. Opp. & Rep. at 9-10. This second characterization finds ample support in the
record.
Various immigration experts and attorneys have averred that, based on their firsthand
knowledge and collection of data, ICE has been largely denying release to Central American
mothers accompanied by minor children since June 2014. For example, Michelle Brané – an
attorney with more than 25 years of experience working on immigration and human-rights issues
who currently serves as the Director of the Migrant Rights and Justice program at the Women’s
Refugee Commission – attests that “despite clear authority to release families from detention
after a credible fear has been established, ICE has released only a handful of [Central American]
families” since the summer of 2014. Brané Decl., ¶ 23; see also, e.g., Hines Decl., ¶ 12 (“Since
DHS began detaining families at the Karnes City facility [in August 2014], DHS has insisted on
categorical detention of all of the families who are brought to the facility.”); id., ¶ 22 (“[B]y the
summer of 2014, it became clear . . . that ICE was implementing a blanket No-Release policy
precluding the release of families from detention. Overwhelmingly families remained in
detention post-credible fear findings.”); McLeod Decl., ¶¶ 8-11 (representing that ICE denied
release for 99 percent of families detained at the Artesia Detention Center who were represented
by pro bono attorneys from the American Immigration Lawyers Association). Before June 2014,
such families were routinely released. See, e.g., Hines Decl., ¶ 8 (“Prior to the summer of 2014,
families apprehended near the border without immigration documents were generally briefly
detained by U.S. Customs and Border Protection and then released. DHS did not generally take
custody of families.”); Brané Decl., ¶ 12 (referring to the post-June 2014 increase in detention as
“contrary to past practice”). It appears, moreover, that this increase in detention has not been
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observed with regard to adults traveling without children. See Hines Decl., ¶ 16 (noting that
adults who are detained without children and who pass a credible-fear screening are routinely
released); Brané Decl., ¶ 25 (same).
Defendants have essentially conceded that the recent surge in detention during a period of
mass migration is not mere happenstance, but instead reflects a design to deter such migration.
Indeed, they state that ICE officials are required to follow the binding precedent contained in
Matter of D-J-, 23 I. & N. Dec. 572 (2003), in which then-Attorney General John Ashcroft held
that deterrence of mass migration should be considered in making custody determinations under
8 U.S.C. § 1226(a). See Def. Reply at 4; see also Matter of D-J-, 23 I & N. Dec. at 572 (“[I]t is
appropriate to consider national security interests implicated by the encouragement of further
unlawful mass migrations [when making custody determinations].”); see also id. at 578-79
(agreeing with INS that “the threat of further mass migration” constitutes a “reasonable
foundation” for denying release). Defendants admit, moreover, that this factor is considered
“where applicable,” and that an immigration “influx across the southwest border” of the United
States last year “further support[s] the use of this factor in making custody determinations since
June 2014.” Def. Reply at 4.
The Government confirmed these representations during oral argument. When asked by
the Court, “So it’s fair, you will agree that ICE is considering national security and . . . [in] the
way I’m talking about, namely, not the threat to national security posed by the individual but the
threat that, the deterrence, an absence of deterrence would cause to national security,” the
Government responded, “I would say . . . consistent with Matter of D. J. that ICE is considering
whether, if this individual – and they will make an individualized determination for that
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individual, if this individual is part of a mass migration, if they fall under this decision in the
Matter of D.J., that that factor would be considered.” Oral Arg. Tr. at 34.
In addition, although ICE officials are not required to explain the contemporaneous basis
for their custody determinations, DHS has defended its recent denials of release in immigration
court by asserting that a “‘no bond’ or ‘high bond’ policy would significantly reduce the
unlawful mass migration of Guatemalans, Hondurans, and Salvadoran[s].” Hines Decl., Exh. A.
(Immigration Court Declaration of Phillip T. Miller, ICE Assistant Director of Field Operations
for Enforcement and Removal Operations), ¶ 9. Members of Congress, in turn, have recognized
DHS’s adoption of a “‘no-bond/high bond’ policy for families in detention based upon the
argument that denying bond is necessary to deter additional migration.” Letter from Rep.
Lofgren, et al. to President Obama, at 1 (Oct. 27, 2014), available at
https://lofgren.house.gov/uploadedfiles/family_detention_letter_october_2014.pdf; see also id.
(“In recent months, the Department of Homeland Security (DHS) has implemented an expansive
immigrant family detention policy in response to this summer’s spike in Central American
migrants apprehended along our southwest border.”).
The Court, accordingly, is satisfied that ICE has a policy of taking deterrence of mass
migration into account in making custody determinations, and that such consideration has played
a significant role in the large number of Central American families detained since June 2014,
including the named Plaintiffs.
B. Justiciability
Informed by its conclusion that such a policy does, in fact, exist, the Court can turn to the
bevy of jurisdictional objections raised by Defendants. Specifically, the Government alleges that
Plaintiffs’ claims are barred by 8 U.S.C. § 1226(e), that they lack standing to bring this suit, and
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that their claims are now moot. The Court will analyze these three issues seriatim and then
briefly address three ancillary issues raised by Defendants – namely, that 8 U.S.C. § 1252(f)(1)
bars Plaintiffs’ suit; that the disputed policy does not constitute “final” agency action; and that
the APA does not provide a cause of action for Plaintiffs’ claims. On the Court’s scorecard, the
Government goes 0 for 6.
1. Section 1226(e)
The Government’s principal challenge to the justiciability of Plaintiffs’ suit rests on 8
U.S.C. § 1226(e). It asserts that “the plain and unambiguous language” of that provision
precludes this Court from exercising subject-matter jurisdiction here. See Def. Opp. at 7.
Section 1226(e) provides:
The Attorney General’s discretionary judgment regarding the
application of this section shall not be subject to review. No
court may set aside any action or decision by the Attorney
General under this section regarding the detention or release of
any alien or the grant, revocation, or denial of bond or parole.
According to the Government, this broad provision “deprive[s] federal courts of jurisdiction to
review discretionary detention decisions made by the Executive Branch like the ones Plaintiffs
challenge here.” Def. Opp. at 7.
Defendants are half right and half wrong. They are correct insofar as this Court is clearly
barred from reviewing the Executive Branch’s exercise of discretion in determinations made
under § 1226(a). But Defendants’ belief that this principle precludes jurisdiction here is
mistaken. This is because Plaintiffs do not seek review of DHS’s exercise of discretion. Rather,
they challenge an overarching agency policy as unlawful under the INA, its implementing
regulations, and the Constitution. That is, they challenge DHS policy as outside the bounds of its
delegated discretion. As they rightly point out, it “is not within DHS’s ‘discretion’ to decide
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whether it will be bound by the law.” Pl. Opp. & Rep. at 4; see Zadvydas v. Davis, 533 U.S.
678, 688 (2001) (Plaintiffs “challenge the extent of the Attorney General’s authority under the
post-removal-period detention statute. And the extent of that authority is not a matter of
discretion.”); Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 155 (3d Cir. 2013) (“Nothing in 8
U.S.C. § 1226(e) prevents us from deciding whether the immigration officials had statutory
authority to impose mandatory detention. . . . [W]hether the officials had authority is not a
‘discretionary judgment.’”); Red Lake Band of Chippewa Indians v. United States, 800 F.2d
1187, 1196 (D.C. Cir. 1986) (“A government official has no discretion to violate the binding
laws, regulations, or policies that define the extent of his official powers.”). The Court will not
construe § 1226(e) to immunize an allegedly unlawful DHS policy from judicial review. See
Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 671-72 (1986) (“[O]nly upon a
showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts
restrict access to judicial review.”).
The out-of-circuit authority cited by Defendants does not alter this analysis. Three of the
cases on which they rely – Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008);
Pisciotta v. Ashcroft, 311 F. Supp. 2d 445, 453 (D.N.J. 2004); and Hatami v. Chertoff, 467 F.
Supp. 2d 637, 639-40 (E.D. Va. 2006) – held only that discretionary determinations granting or
denying bond or parole in an individual case are not subject to judicial review. This is hardly
controversial. None of the three, however, suggested that § 1226(e) precludes review of the sort
of challenge Plaintiffs bring here. The fourth – Loa-Herrera v. Trominski, 231 F.3d 984 (5th Cir.
2000) – does, in fact, take a more sweeping view of the jurisdictional bar imposed by that
provision. See id. at 990-91 (“Congress, however, has denied the district court jurisdiction to
adjudicate deprivations of the plaintiffs’ statutory and constitutional rights [in determinations
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made under 1226(a)].”). The Fifth Circuit, however, provided little explanation of its reasoning,
and, as outlined above, the Court is not persuaded by such an expansive interpretation of §
1226(e). It thus declines to follow Loa-Herrera here.
2. Standing
Defendants next attack Plaintiffs’ standing to bring suit. To establish standing, a plaintiff
“must, generally speaking, demonstrate that he has suffered ‘injury in fact,’ that the injury is
‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a
favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992); Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 471-472 (1982)). Standing is assessed “upon
the facts as they exist at the time the complaint is filed.” Natural Law Party of U.S. v. Fed. Elec.
Comm’n, 111 F. Supp. 2d 33, 41 (D.D.C. 2000).
The Government first notes that Plaintiffs’ alleged injury is the detention they
experienced due to ICE’s initial denial of release. Yet, by the time their Amended Complaint
was filed, eight of the ten named Plaintiffs had been released from detention as a result of IJ
custody redeterminations. See Am. Compl., ¶¶ 65, 73, 81, 90. Defendants claim that such
release means that Plaintiffs’ injuries are unredressable through injunctive relief. See Def. Opp.
& Mot. at 11. Such a position, however, ignores the obvious flaw apparent on its face: the
remaining two Plaintiffs had not yet been released when the Amended Complaint was filed.
Because those two Plaintiffs – G.C.R. and J.A.R. – were still detained at the time suit was
initiated, the status of the other Plaintiffs is immaterial. See Mendoza v. Perez, 754 F.3d 1002,
1010 (D.C. Cir. 2014) (“To establish jurisdiction, the court need only find one plaintiff who has
standing.”).
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Defendants further assert that the relief sought by Plaintiffs would not clearly redress the
harm they allege. See Def. Opp. & Mot. at 11. According to the Government, “Although
Plaintiffs contest Defendants’ consideration of certain factors in ICE’s custody determinations,
Plaintiffs provide no basis to find that a different consideration of these factors would ‘likely’
result in the release of any individual Plaintiff.” Id. at 12 (quoting America’s Community
Bankers v. FDIC, 200 F.3d 822, 827 (D.C. Cir. 2000) (Plaintiffs must demonstrate redressability
by “establish[ing] that it is likely, as opposed to merely speculative, that a favorable decision by
this court will redress the injury suffered.”)). Again, the evidence is to the contrary. This suit
seeks to enjoin consideration of a factor that, at the very least, diminishes the likelihood of
Plaintiffs’ release. The Government has admitted that ICE applies this factor in its custody
determinations, and Plaintiffs have demonstrated that such consideration underlies ICE’s near-
universal denial of release to Central American families since June 2014. See Part III.A, supra.
Because Plaintiffs fall within that class of individuals, it is in no sense “speculative” that
enjoining ICE’s consideration of this factor would render Plaintiffs’ release far more likely. As
this Circuit has emphasized, “A significant increase in the likelihood that [a litigant] would
obtain relief that directly redresses the injury suffered will suffice for standing.” Nat’l Parks
Conservation Ass’n v. Manson, 414 F.3d 1, 7 (D.C. Cir. 2005) (internal quotation marks
omitted); accord Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010).
3. Mootness
Defendants next advance the corollary argument that, regardless of initial standing, all of
Plaintiffs’ claims are now moot. As explained by the Supreme Court, “[T]he doctrine of
mootness can be described as the doctrine of standing set in a time frame: The requisite personal
interest that must exist at the commencement of the litigation (standing) must continue
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throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (internal quotations omitted). A case is considered moot either
“when the issues presented are no longer live or the parties lack a legally cognizable interest in
the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969); see also Pharmachemie B.V. v.
Barr Labs., 276 F.3d 627, 631 (D.C. Cir. 2002) (case becomes moot when “events have so
transpired that the decision will neither presently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.”). Because its jurisdiction is limited, “a
federal court has no authority to give opinions upon moot questions or abstract propositions, or
to declare principles or rules of law which cannot affect the matter in issue in the case before it.”
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). Noting that all the named
Plaintiffs have, at this juncture, been released from custody pursuant to custody redeterminations
before immigration judges, Defendants assert that there is “no further relief that this Court can
provide them” and that the case is, therefore, moot. See Def. Opp. & Mot. at 13.
The named Plaintiffs acknowledge, as they must, that they have all been released. They
explain, however, that most of the asylum-seeking mothers and children being detained by ICE
are ultimately released during IJ custody redeterminations, and that the period of detention
between ICE’s initial denial of release and such redeterminations, while significant, has proven
“too short for any particular plaintiff to seek meaningful injunctive relief on her or his own
behalf.” Pl. Supp. Mem. at 2. By the time any particular plaintiff files suit, the issue is briefed,
and a hearing is held, she will, in all likelihood, be released from custody by an IJ (who is not
bound by DHS policy). See id. Plaintiffs argue that “[a] preliminary injunction would thus only
be effective to prevent the irreparable harm that DHS’s No-Release Policy inflicts on other
asylum-seeking families.” Id.
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To achieve meaningful relief with respect to DHS’s allegedly unlawful policy,
accordingly, they sensibly ask this Court to provisionally certify a class. See Sosna v. Iowa, 419
U.S. 393, 401 (1975) (holding that a class action is not mooted by the “intervening resolution of
the controversy as to the named plaintiffs”); Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51
(1991) (Although “the claims of the named plaintiffs have since been rendered moot, . . . by
obtaining class certification, plaintiffs preserved the merits of the controversy for our review.”);
accord DL v. D.C., 302 F.R.D. 1, 19 (D.D.C. 2013). 1 And, because certification ordinarily
requires the existence of a live claim, Plaintiffs further argue that the proposed class is
“inherently transitory.” Pl. Reply at 7. Certification, therefore, should be deemed to “relate
back” to the time the complaint was filed. See id. The Court turns first to whether class
certification is appropriate under the circumstances presented here and then considers the
question of relation back. Only in resolving these issues can Defendants’ mootness argument be
addressed.
a. Class Certification
To certify a class under Rule 23, a plaintiff must show that the proposed class satisfies all
four requirements of Rule 23(a) and one of the three Rule 23(b) requirements. See Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548, 2551 (2011). Rule 23(a) states that a class may be
certified only if: (1) it is so numerous that joinder of all members is impracticable
(“numerosity”), (2) there are questions of law or fact common to the class (“commonality”), (3)
the claims or defenses of the representative are typical of those of the class (“typicality”), and (4)
the class representative will fairly and adequately protect the interests of the class (“adequacy of
representation”). Plaintiffs must show, in addition, that: (1) the prosecution of separate actions
1
Given the expedited nature of the instant proceedings, the parties have agreed to defer briefing on the merits of
final class certification until after the resolution of Plaintiffs’ request for preliminary injunctive relief.
17
by or against individual members of the class would create a risk of inconsistent adjudications,
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole, or (3) questions of law or fact common to the members of the class
predominate over any questions affecting only individual members. See Fed. R. Civ. P.
23(b)(1)-(3).
In deciding whether class certification is appropriate, a district court must ordinarily
undertake a “rigorous analysis” to see that the requirements of the Rule have been satisfied. See
Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 161 (1982). “Rule 23 does not set forth a mere
pleading standard.” Wal-Mart, 131 S. Ct. at 2551. Rather, the party seeking class certification
bears the burden of “affirmatively demonstrat[ing] his compliance with the Rule – that is, he
must be prepared to prove that there are in fact sufficiently numerous parties, common questions
of law or fact, etc.” Id. (emphasis in original).
Plaintiffs, however, seek only provisional class certification at this juncture. In granting
such provisional certification, the Court must still satisfy itself that the requirements of Rule 23
have been met. See Berge v. United States, 949 F. Supp. 2d 36, 49 (D.D.C. 2013) (citing Fed. R.
Civ. P. 23 Advisory Committee Notes 2003 Amendments). Its analysis is tempered, however, by
the understanding that “such certifications may be altered or amended before the decision on the
merits.” Bame v. Dillard, No. 05-1833, 2008 WL 2168393, at *5 (D.D.C. May 22, 2008)
(internal quotation marks omitted).
Plaintiffs’ proposed class consists of Central American mothers and children who:
(a) have been or will be detained in ICE family detention facilities
[since June 2014]; (b) have been or will be determined to have a
credible fear of persecution in their home country, see 8 U.S.C. §
1225(b)(1)B)(v), § 1158; 8 C.F.R. § 208.31; and (c) are eligible for
18
release on bond, recognizance, or other conditions, pursuant to 8
U.S.C. § 1226(a)(2) and 8 C.F.R. § 1236.1(c)(8), but (d) have been
or will be denied such release pursuant to DHS’s blanket policy of
denying release to detained families without conducting an
individualized determination of flight risk or danger to the
community.
Pl. Supp. Mem. at 5. As framed, the class – particularly subsection (d) – is in some tension with
the Court’s earlier discussion. To recap, Plaintiffs have not satisfactorily established that DHS
has a “blanket policy of denying release to detained families without conducting an
individualized determination of flight risk or danger to the community.” The Court cannot,
therefore, certify a class defined in reference to that formulation.
It recognizes, however, Plaintiffs’ clear intent to define the proposed class in relation to
the policy they challenge and, in addition, that Plaintiffs have clearly articulated and established
an alternative version of DHS’s policy. See Part III.A, supra. In light of the expedited nature of
the briefing in this case and the provisional nature of certification sought, the Court believes it
appropriate to amend Plaintiffs’ proposed class to incorporate their alternate formulation.
Subsection (d), accordingly, is edited to read: “(d) have been or will be denied such release after
being subject to an ICE custody determination that took deterrence of mass migration into
account.”
So construed, the Court analyzes Plaintiffs’ request for class certification under Rule 23.
It will begin by quickly addressing the first and fourth requirements of Rule 23(a), neither of
which Defendants contest. It then analyzes the second and third specifications together, both of
which are disputed. Finally, it considers whether Plaintiffs have satisfied their burden under
Rule 23(b).
i. Numerosity
The numerosity requirement is determined case by case and “‘imposes no absolute
19
limitations.’” Bynum v. District of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003) (quoting Gen.
Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980)). Plaintiffs need not prove exactly how many
people fall within the class to merit certification. See, e.g., Kifafi v. Hilton Hotels Retirement
Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (“So long as there is a reasonable basis for the estimate
provided, the numerosity requirement can be satisfied without precise numbers.”). As a general
benchmark, “courts have found that a proposed class consisting of at least forty members”
satisfies this requirement. Johnson v. District of Columbia, 248 F.R.D. 46, 52 (D.D.C. 2008);
accord Taylor v. District of Columbia Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007);
Bynum, 214 F.R.D. at 3.
Defendants do not challenge the numerosity of the proposed class, and rightly so.
Plaintiffs have provided ample evidence that a large number of Central American families – well
over 40 – have been detained since June of 2014. See, e.g., McLeod Decl., ¶¶ 8-12 (data from
advocates tracking 658 members of Central American families detained at Artesia after their
initial ICE custody determination between August and December); Hines Decl., ¶¶ 12-13, 18-20
(data from pro-bono project identifying 64 families detained at Karnes Family Detention Facility
between August and December 2014). They have further demonstrated that ICE is considering
deterrence of mass immigration in making such detention determinations. Nothing more is
needed.
ii. Adequacy of Representation
In order to satisfy this requirement, Plaintiffs must show both that (1) there is no conflict
of interest between the named members and the rest of the class, and that (2) counsel is
competent to represent the class. See Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575
(D.C. Cir. 1997); Johnson, 248 F.R.D. at 53-54; Taylor, 241 F.R.D. at 45; Bynum, 214 F.R.D. at
20
35. No trace of a conflict exists here, and Plaintiffs are represented by very capable counsel
from the American Civil Liberties Union and Covington & Burling LLP. Defendants,
appropriately, do not dispute that these requirements have been met either.
iii. Commonality and Typicality
Rule 23(a)(2) – commonality – requires that Plaintiffs establish that “there are
questions of law or fact common to the class.” Class members’ claims must depend on “a
common contention [that] is capable of classwide resolution – which means that determination of
its truth or falsity will resolve an issue that is central to the validity of each one of the claims in
one stroke.” Wal-Mart Stores, 131 S. Ct. at 2551. In other words, the representative plaintiffs
must show that the class members have “suffered the same injury.” Id. (internal quotation marks
omitted). As the D.C. Circuit recently explained, commonality is satisfied where there is “a
uniform policy or practice that affects all class members.” DL v. District of Columbia, 713 F.3d
120, 128 (D.C. Cir. 2013).
To demonstrate typicality, as required by Rule 23(a)(3), Plaintiffs must show that their
claims are “typical of the claims . . . of the class.” Typicality means that the representative
plaintiffs must “possess the same interest and suffer the same injury” as the other class members.
See Falcon, 457 U.S. at 156 (internal quotation marks and citations omitted)
The commonality and typicality requirements often overlap because both “serve as
‘guideposts’” to determine whether a class action is practical and whether the representative
plaintiffs’ claims are sufficiently interrelated with the class claims to protect absent class
members. See Taylor, 241 F.R.D. at 44-45 (quoting Falcon, 457 U.S. at 157 n.13). Here, as
Defendants’ principal challenge to class certification goes to both, the Court considers them
together.
21
Emphasizing that Plaintiffs have been unable to establish a categorical No-Release
Policy, Defendants argue that a class action is an improper vehicle to challenge Plaintiffs’
alternative articulation of the relevant policy – to wit, that ICE treats deterrence of mass
immigration as a factor in making custody determinations. They point out that ICE officers can
consider a number of factors in making such determinations and assert that “there is absolutely
nothing in the record to indicate whether these national security concerns were a factor in any
individual Plaintiff’s custody determination and, even if they were, whether they were the reason
ICE exercised its discretion to maintain custody.” Opp. to Class Cert. at 13. Thus, argues the
Government, Plaintiffs have “fail[ed] to show that these [individual] custody determinations
involved sufficiently similar factual or legal questions to satisfy the typicality and commonality
requirements of Rule 23.” Id. at 15.
This argument bears a striking resemblance to Defendants’ objection to the named
Plaintiffs’ standing, and, for similar reasons, the Court rejects it here as well. While it is true that
the reason for detention cannot be proven on an individualized basis – since ICE does not
provide that information – the Government has nonetheless conceded that ICE is required to
consider deterrence of mass migration “where applicable,” and that it has been applying this
factor in response to the surge in immigration on the southwestern border. See Def. Reply at 4.
Plaintiffs, moreover, have provided ample evidence that nearly every Central American family
apprehended since June 2014 has been detained, and they have further established a causal
relationship between ICE’s application of the disputed factor and the spike in detention. The
Court can, therefore, conclude that “common questions of law and fact” unite the class members’
claims – namely, ICE’s consideration of mass immigration as a factor in its custody
determinations.
22
That the exact role this allegedly impermissible factor played in any specific
determination is unknowable does not destroy the fact that all (or nearly all) class members were
subjected to a determination that included it. Otherwise, the Government could avoid the
possibility of a class-action challenge simply by obfuscating the role any single impermissible
factor plays in a given individual determination. Defendants’ objection thus parried, the Court
finds that commonality and typicality have been established.
iv. Rule 23(b)(2)
To receive certification, a proposed class must also satisfy just one of the three Rule
23(b) specifications. Plaintiffs here invoke Rule 23(b)(2), which sets forth two basic
requirements: (1) the party opposing the class must have “acted, refused to act, or failed to
perform a legal duty on grounds generally applicable to all class members,” and (2) “final relief
of an injunctive nature or a corresponding declaratory nature, settling the legality of the behavior
with respect to the class as a whole, must be appropriate.” Fed. R. Civ. P. 23(b)(2); 2 William B.
Rubenstein, Newberg on Class Actions § 4:26 (5th ed. 2013).
In disputing that this requirement has been satisfied, Defendants regurgitate a variant of
the same challenge they raised to standing, typicality, and commonality – to wit, that “there can
be no certainty that the injunctive relief sought by Plaintiffs would benefit any particular putative
class member, since different discretionary factors will be applicable to different individuals.”
Opp. to Class Cert. at 17. Once again, the Court cannot concur. Plaintiffs have shown that DHS
policy requires ICE to consider deterrence of mass immigration in dealing with members of the
class. They seek declaratory and injunctive relief invalidating consideration of that factor and
enjoining ICE from applying the policy to deny release. In other words, the suit challenges a
policy “generally applicable” to all class members. A determination of whether that policy is
23
unlawful would resolve all class members’ claims “in one stroke,” Wal-Mart Stores, 131 S. Ct. at
2251, while rendering the prospect of their release far more likely. Rule 23(b)(2) thus poses no
obstacle to class certification.
b. Relation Back
One last class-related dispute remains. Certification is ordinarily appropriate only if the
named plaintiff has a live controversy at the time of certification. See Sosna, 419 U.S. at 402.
Here, as the named Plaintiffs admit, all of their claims are, at this juncture, moot. They
nevertheless ask the Court to certify this class, relying on the “inherently transitory” nature of the
proposed class. The Court acquiesces to their request.
In appropriate cases, “a class action should not be deemed moot even if the named
plaintiff’s claim becomes moot prior to certification of the class.” Basel v. Knebel, 551 F.2d
395, 397 n.1 (D.C. Cir. 1977). As the Court in Sosna observed:
There may be cases in which the controversy involving the named
plaintiffs is such that it becomes moot as to them before the district
court can reasonably be expected to rule on a certification motion.
In such instances, whether the certification can be said to “relate
back” to the filing of the complaint may depend upon the
circumstances of the particular case and especially the reality of the
claim that otherwise the issue would evade review.
419 U.S. at 402 n. 11. Where “claims are so inherently transitory that the trial court will not
have even enough time to rule on a motion for class certification before the proposed
representative’s individual interest expires,” the Court has found such relation back appropriate.
Cnty. of Riverside, 500 U.S. at 51 (internal quotation marks omitted); DL, 302 F.R.D. at 20
(“The inherently transitory exception to mootness permits relation back [to the time the
complaint is filed] in any situation where composition of the claimant population is fluid, but the
population as a whole retains a continuing live claim.”).
24
This rule applies here. The period of allegedly unlawful detention at issue in this case is
weeks or months – i.e., the period between ICE’s initial denial of release and the point at which
detained families are able to obtain IJ redeterminations. See Hines Decl., ¶ 21 (calculating the
length of detention as between three to eight weeks); McLeod Decl., ¶ 14 (stating that the
“average” length of that period is “five weeks,” but “[i]n several cases, the time between the ICE
custody determination and bond hearing before the IJ was more than three months”). This
period, while significant enough to create a cognizable injury, is too short for a court to be
expected to rule on a certification motion. So long as the policy remains in effect, moreover,
new asylum-seeking families are subjected to allegedly wrongful detention. The class
population as a whole thus retains a continuing live claim. Relation back is appropriate.
The Court, therefore, will grant Plaintiffs’ Motion for provisional class certification, and,
as a result, it concludes that the suit, in its class-action form, is not moot. The Court may now
proceed to the remaining threshold issues raised by Defendants.
4. 8 U.S.C. § 1252(f)(1)
The Government next claims that class-wide injunctive relief is proscribed by the INA.
See Def. Opp. & Mot. at 27. Specifically, it points to 8 U.S.C. § 1252(f)(1), which provides that
“no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain
the operation of the provisions of [8 U.S.C. §§ 1221-1231], other than with respect to . . . an
individual alien against whom proceedings under such part have been initiated.” According to
Defendants, to grant relief in this case, the Court would need to enjoin the operations of ICE in
carrying out its delegated powers under 8 U.S.C. § 1226(a) on a class-wide basis – “precisely the
type of class-wide injunctive relief that is prohibited under 8 U.S.C. § 1252(f)(1).” Def. Opp. &
Mot. at 28. But this dog doesn’t hunt either. Section 1252(f)(1) “prohibits only injunction of
25
‘the operation of’ the detention statutes, not injunction of a violation of the statutes.” Rodriguez
v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010) (emphasis added); see also Gordon v. Johnson,
300 F.R.D. 31, 40 (D. Mass. 2014) (“[T]he court need not prohibit the operation of any part of
the law to correct the government’s incorrect application of it.”). Put another way, “[w]here . . .
a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court
is not enjoining the operation of [the statute], and § 1252(f)(1) therefore is not implicated.”
Rodriguez, 591 F.3d at 1120 (internal quotations and citations omitted). As class-wide
injunction in this case would not obstruct the “operation of” Section 1226(a) but merely enjoin
conduct that allegedly violates that provision, 8 U.S.C. § 1252(f)(1) poses no bar to relief.
5. Finality
Notwithstanding their acknowledgment that ICE considers deterrence of mass
immigration in making custody determinations, and that such consideration contributed to the
near universal detention of Central American families since June 2014, Defendants also argue
that Plaintiffs have failed to demonstrate the existence of a reviewable policy. The Court once
again disagrees.
The Government first claims that Plaintiffs’ “amorphous” description of “ICE’s ongoing
practice of considering certain factors in individualized custody determinations” does not suffice
to establish “final agency action” for purposes of the APA. See Def. Reply at 16. Instead, it
contends, Plaintiffs have merely described “a generalized agency decision-making process” that
is not subject to review. Id. While it is true that a “‘generalized complaint about agency
behavior’ . . . gives rise to no cause of action,” Bark v. United States Forest Service, No. 12-
1505, 2014 WL 1289446, at *6 (D.D.C. Mar. 28, 2014), Plaintiffs here attack particularized
agency action – namely, ICE’s consideration of an allegedly impermissible factor in making
26
custody determinations. They have shown, moreover, that the action is “one by which rights or
obligations have been determined, or from which legal consequences will flow.” Bennett v.
Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted). DHS’s policy of
considering deterrence has profound and immediate consequences for Central American asylum
seekers detained as a result.
Relatedly, Defendants emphasize that Plaintiffs have failed to cite any statute, regulation,
policy memoranda, or any other document memorializing the policy they challenge. See Def.
Opp. & Mot. at 22. Agency action, however, need not be in writing to be final and judicially
reviewable. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.C. Cir. 2008)
(concluding that “the record” as a whole “leaves no doubt” that a policy exists, even though “the
details . . . are still unclear”); Grand Canyon Trust v. Pub. Serv. Co. of N.M., 283 F. Supp. 2d
1249, 1252 (D.N.M. 2003) (holding that “[b]oth law and logic” dictate that an unwritten agency
policy is reviewable). A contrary rule “would allow an agency to shield its decisions from
judicial review simply by refusing to put those decisions in writing.” Grand Canyon Trust, 283
F. Supp. 2d at 1252. Denying review of agency action that is essentially conceded but ostensibly
unwritten would fly in the face of the Supreme Court’s instruction that finality be interpreted
“pragmatic[ally].” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239 (1980).
In a last attack on the purported finality of their policy, Defendants claim that “Plaintiffs’
allegations are consistent with a finding that ICE is engaging in a longstanding practice” dating
back to Matter of D-J-, “and not a newly-developed ‘Policy’” adopted in June 2014. See Def.
Reply at 4 (emphasis added). The Court is perplexed by the Government’s focus on chronology.
It is no mystery why Plaintiffs have linked the challenged policy to June 2014 – it is then that
ICE began detaining large numbers of Central American families, corresponding to the surge in
27
immigration from that region. ICE’s ability to detain such numbers, moreover, was substantially
aided by the recent increase in family-detention facilities. See Def. Reply at 5 (“Defendants do
not dispute that since June 2014 they have increased their capacity to house families during their
removal proceedings, and consequently have held more families in ICE custody since that
time.”). That the justification for the policy may technically have been in place prior to last
summer, albeit largely dormant, does not mean that Plaintiffs have somehow misidentified the
relevant agency action.
6. Adequacy of Review
Finally, the Government asserts that Plaintiffs have failed to state a claim under the APA
because there are other “adequate remed[ies]” available to them. See Def. Opp. & Mot. at 25
(quoting 5 U.S.C. § 704) (“Agency action made reviewable by statute and final agency action for
which there is no adequate remedy in a court” is subject to judicial review). The Government
argues that Plaintiffs in this case may avail themselves of two such alternate remedies: review by
an immigration judge and the writ of habeas corpus. The Court finds that neither precludes APA
review here.
The Supreme Court has long construed the “adequate remedy” limitation on APA review
narrowly, emphasizing that it “should not be construed to defeat the central purpose of providing
a broad spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. 879,
903 (1988); see also El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health &
Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005) (“The Supreme Court has long instructed
that the ‘generous review provisions’ of the APA must be given ‘a hospitable interpretation’ such
that ‘only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent
should the courts restrict access to judicial review.’”) (quoting Abbott Labs. v. Gardner, 387 U.S.
28
136, 141 (1967)). Rather, “Congress intended by that provision simply to avoid duplicating
previously established special statutory procedures for review of agency actions.” Darby v.
Cisneros, 509 U.S. 137, 146 (1993).
While it is true that an alien who is denied release by ICE may seek de novo review of
that denial from an immigration judge, see 8 C.F.R. § 1003.19; 8 C.F.R. § 1236.1(d)(1),
Defendants’ reliance on this potential redetermination ignores the fact that it occurs weeks or
months after ICE’s initial denial of relief. It thus offers no adequate remedy for the period of
unlawful detention members of the class suffer before receiving this review – the central injury
at issue in this case.
Insofar as the Government alternatively argues that Plaintiffs are required to proceed in
habeas rather than under the APA, they have not provided a compelling reason why this is so.
APA and habeas review may coexist. See Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 666
(D.C. Cir. 2013); Goncalves v. Reno, 144 F.3d 110, 120 (1st Cir. 1998); Lee v. Reno, 15 F.
Supp. 2d 26, 33 (D.D.C. 1998). And, although Congress has expressly limited APA review over
individual deportation and exclusion orders, see 8 U.S.C. § 1252(a)(5), it has never manifested
an intent to require those challenging an unlawful, nationwide detention policy to seek relief
through habeas rather than the APA. Plaintiffs’ case, therefore, may proceed under the latter
statute.
C. The Merits
At long last, having hacked through the jurisdictional thicket, the Court enters the sunlit
uplands that constitute the merits of Plaintiffs’ request for a preliminary injunction. It will
separately address each of the four prongs of that analysis.
29
1. Likelihood of Success on the Merits
To remind any reader whose attention may understandably have flagged: in Count One of
their Amended Complaint, Plaintiffs allege that DHS’s deterrence policy violates the INA and is
thus “contrary to law” under the APA. See 5 U.S.C. § 706(2)(A). Likelihood of success,
accordingly, turns on the strength of their argument that deterrence of mass immigration is an
impermissible consideration in custody determinations made pursuant to 8 U.S.C. § 1226(a).
This is where the rubber meets the road.
Although the statute is silent as to what factors may be considered in making such
determinations, the Court must construe it with an eye toward avoiding “serious constitutional
doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). It will first discuss
how that maxim of statutory interpretation applies here, then analyze the due-process rights at
stake, and last examine the Government’s justification for detention.
a. Chevron vs. Constitutional Avoidance
As previously explained, § 1226(a) governs the detention of aliens awaiting standard
removal proceedings, which group includes Plaintiffs here. It provides that “pending a decision
on whether the alien is to be removed from the United States,” the Attorney General “may
continue to detain the arrested alien” or release the alien on bond or conditional parole. The
Government notes that the statute contains no limitation on the Executive’s discretion to detain,
nor does it enumerate the factors that may be considered. They further point out that the
Attorney General – the officer charged by Congress with the responsibility to interpret and
administer the INA – was already expressly interpreting § 1226(a) to allow consideration of mass
migration in Matter of D-J-. Because that construction of the statute is facially permissible,
30
Defendants argue, it is entitled to Chevron deference. See generally Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Not so fast.
The Government raised a virtually identical argument in Zadvydas v. Davis, 533 U.S 678
(2001), in relation to an analogous provision of the INA, 8 U.S.C. § 1231(a)(6). That provision,
which governs detention of certain categories of aliens who have been removed, says that such
aliens “may be detained beyond the removal period and, if released, shall be subject to [certain]
terms of supervision.” 8 U.S.C. § 1231(a)(6) (emphasis added). The Government contended
that the provision “set[] no limit” on the length of detention and, therefore, that the Attorney
General had total discretion over whether and how long to detain, even indefinitely. See
Zadvydas, 533 U.S at 689 (internal quotation marks omitted).
The Supreme Court disagreed, relying on the “cardinal principle of statutory
interpretation” that “when an Act of Congress raises a serious doubt as to its constitutionality,”
the Court “will first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided.” Id. at 689 (internal quotation marks omitted); see also id. (“We have
read significant limitations into other immigration statutes in order to avoid their constitutional
invalidation.”). The Court held that the statute could not be construed to permit indefinite
detention; rather, “read in light of the Constitution’s demands,” § 1231(a)(6) “limits an alien’s
post-removal-period detention to a period reasonably necessary to bring about that alien’s
removal from the United States.” Id.
This Court follows Zadvydas’s lead in asking whether the Government’s construction of
the present statute raises a serious doubt as to its constitutionality. See also Nat’l Mining Ass’n
v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (The “canon of constitutional avoidance
31
trumps Chevron deference” where the argument for applying the canon is “serious.”) (internal
quotation marks omitted).
b. Due Process Clause
The touchstone for the Court’s analysis is, of course, the text of the Constitution itself.
The Due Process Clause of the Fifth Amendment forbids the Government to “depriv[e]” any
“person . . . of . . . liberty . . . without due process of law.” The Supreme Court has repeatedly
recognized that “[f]reedom from imprisonment – from government custody, detention, or other
forms of physical restraint – lies at the heart of the liberty that Clause protects.” Zadvydas, 533
U.S. at 690; see also, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily
restraint has always been at the core of the liberty protected by the Due Process Clause from
arbitrary governmental action.”).
In keeping with this fundamental precept, the Zadvydas Court explained that
“government detention violates [the Due Process Clause] unless the detention is ordered in a
criminal proceeding with adequate procedural protections, or, in certain special and narrow
nonpunitive circumstances, where a special justification, such as harm-threatening mental illness,
outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” 533
U.S. at 690. The detention at issue in this case is undisputedly civil – i.e., non-punitive in nature.
The relevant question, accordingly, is whether the Government’s justification for detention is
sufficiently “special” to outweigh Plaintiffs’ protected liberty interest.
In an attempt to evade this rigorous inquiry, Defendants note that the present class is
comprised of noncitizens, whose entry into this country was unlawful. It follows, they say, that
“Plaintiffs have extremely limited, if any, due process rights regarding [their] custody
determinations.” Opp. at 18. The Government is mistaken. While it is true that “certain
32
constitutional protections are unavailable to aliens outside of our geographic border,” the
Supreme Court has made clear that “once an alien enters the country, the legal circumstance
changes, for the Due Process Clause applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas,
533 U.S. at 693; see also id. (“The distinction between an alien who has effected an entry into
the United States and one who has never entered runs throughout immigration law”); Sale v.
Haitian Centers Council, Inc., 509 U.S. 155, 175 (1993) (“It is important to note at the outset that
our immigration laws have long made a distinction between those aliens who have come to our
shores seeking admission, such as petitioner, and those who are within the United States after an
entry, irrespective of its legality. In the latter instance the Court has recognized additional rights
and privileges not extended to those in the former category who are merely ‘on the threshold of
initial entry.’”) (internal quotation marks omitted); Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our gates, even illegally,
may be expelled only after proceedings conforming to traditional standards of fairness
encompassed in due process of law.”).
Plaintiffs in this case were apprehended in the territory of the United States. What is
more, they may have legitimate claims to asylum, such that their presence here may become
permanent. It is clear, then, that they are entitled to the protection of the Due Process Clause,
especially when it comes to deprivations of liberty.
c. Justification for Detention
The Court must now evaluate the Government’s interest in detention here. It is not
without guidance in this endeavor. The Zadvydas Court clearly identified a pair of interests that
can, under certain circumstances, suffice to justify the detention of noncitizens awaiting
33
immigration proceedings: “preventing flight” and “protecting the community” from aliens found
to be “specially dangerous.” 533 U.S at 690-92. It explained that because those potentially
legitimate justifications were “weak” or “nonexistent” when applied to indefinite detention, such
detention raised serious constitutional concerns. See id. at 690. The Court emphasized those
same justifications in Demore v. Kim, 538 U.S. 510, 529-31 (2003), another seminal
immigration case. Although the Demore Court upheld mandatory detention of certain criminal
aliens under 8 U.S.C. § 1226(c), it justified such detention on the ground that such aliens, as a
class, pose a demonstrated risk of flight and danger to the community. See 538 U.S. at 519-20,
527-28; see also id. at 531-32 (Kennedy, J., concurring). The interest proposed by the
Government in this case, however – namely, deterrence of mass migration – is altogether novel.
See Oral Arg. Tr. at 38-39 (Government conceding that it has no “federal cases on point” to
support its view that this interest is permissible).
Defendants, nonetheless, are not necessarily out of luck. This is because the Court does
not infer from Zadvydas and Demore that no other legitimate justification for noncitizen
detention – beyond the individual’s flight risk or potential dangerousness – exists. Here,
however, not only is the justification urged by the Government unprecedented, but the Court is
struck by the essential distinction between the nature of that interest and those endorsed by the
Supreme Court. The justifications for detention previously contemplated by the Court relate
wholly to characteristics inherent in the alien himself or in the category of aliens being detained
– that is, the Court countenanced detention of an alien or category of aliens on the basis of those
aliens’ risk of flight or danger to the community. The Government here advances an entirely
different sort of interest. It claims that, in determining whether an individual claiming asylum
should be released, ICE can consider the effect of release on others not present in the United
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States. Put another way, it maintains that one particular individual may be civilly detained for
the sake of sending a message of deterrence to other Central American individuals who may be
considering immigration.
This appears out of line with analogous Supreme Court decisions. In discussing civil
commitment more broadly, the Court has declared such “general deterrence” justifications
impermissible. See Kansas v. Crane, 534 U.S. 407, 412 (2002) (warning that civil detention may
not “become a ‘mechanism for retribution or general deterrence’ – functions properly those of
criminal law, not civil commitment”) (quoting Kansas v. Hendricks, 521 U.S. 346, 372-74
(1997) (Kennedy, J., concurring); see id. at 373 (“[W]hile incapacitation is a goal common to
both the criminal and civil systems of confinement, retribution and general deterrence are
reserved for the criminal system alone.”). It is certainly possible that this bar on employing
general deterrence does not apply in the civil immigration context – i.e., that some sort of
immigration carve-out exists. The Court, however, is not persuaded why this should be so as a
matter of logic. Its doubt is animated, in part, by Zadvydas, which grounds its analysis of
immigration detention in principles derived from the wider civil-commitment context. See 533
U.S. at 690 (citing Hendricks, 521 U.S. 346 at 356 and Foucha, 504 U.S. 71 at 80).
Even assuming that general deterrence could, under certain circumstances, constitute a
permissible justification for such detention, the Court finds the Government’s interest here
particularly insubstantial. It seeks to deter future mass immigration; but to what end? It claims
that such Central American immigration implicates “national security interests,” see Def. Reply
at 4 (citing Matter of D-J-, 23 I. & N. Dec. at 572), but when pressed to elaborate, the principal
thrust of its explanation is economic in nature. It argues, in essence, that such migrations force
ICE to “divert resources from other important security concerns” and “relocate” their employees.
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Oral Arg. Tr. at 30, 35. The Government has not, however, proffered any evidence that this
reallocation of resources would leave the agency somehow short-staffed or weakened.
Defendants have not conjured up the specter of an influx’s overwhelming the country’s borders
or wreaking havoc in southwestern cities. The simple fact that increased immigration takes up
government resources cannot necessarily make its deterrence a matter of national security, with
all the attendant deference such characterization entails. In addition, a general-deterrence
rationale seems less applicable where – unlike pedophiles, see Hendricks, 521 U.S. at 354-55,
362, or other violent sexual offenders, see Crane, 534 U.S. at 869 – neither those being detained
nor those being deterred are certain wrongdoers, but rather individuals who may have legitimate
claims to asylum in this country.
Defendants have presented little empirical evidence, moreover, that their detention policy
even achieves its only desired effect – i.e., that it actually deters potential immigrants from
Central America. The best they can do is point to the Miller Declaration, which states:
Detention is especially crucial in instances of mass migration.
Annual surveys of people in Central American countries show that
one key factor that influences the decision whether to migrate is
the existence of an “active migration network,” i.e. friends or
family who previously migrated and are living in the United States.
See Americas Barometer Insights: 2014, Violence and Migration
In Central America, Latin American Public Opinion Project,
Vanderbilt University, No. 101 (2014). . . . Illegal migrants to the
United States who are released on a minimal bond become part of
such active migration networks.
Miller Decl., ¶ 11. But the author of the cited report, Jonathan Hiskey, has explained that
“DHS’s reliance on the Report is erroneous and misplaced, demonstrating a failure to grasp the
empirical findings and theoretical underpinnings of that Report.” Pl. Mot, Exh. 13 (Declaration
of Jonathan Hiskey), ¶ 11. He emphasizes that DHS “ignore[s] the report’s central finding,
namely, the critical role that crime victimization in Central America plays in causing citizens of
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these countries to consider emigration as a viable, albeit extremely dangerous, life choice,” id., ¶
13, and states that DHS’s assertions are “not empirically supported.” Id., ¶ 20; see also Pl. Mot.,
Exh. 14 (Declaration of Nestor Rodriguez, scholar whose focus is Central American
immigration), ¶ 14 (“[R]umors regarding lenient immigration detention policies in the United
States are not a significant factor motivating current Central American immigration.”).
Defendants have provided no additional evidence to rehabilitate their theory. See also ECF No.
31, Exh. A (BIA Decision in Matter of D.A.M. (January 30, 2015)) at 2 (concluding that,
notwithstanding Matter of D-J-, “the extraordinary remedy of the continued detention” of an El
Salvadoran family unit could not be justified on the basis of “deter[ring] future waves of mass
migration”).
The Court is fully cognizant, of course, of the deference owed the Executive in “cases
implicating national security, a uniquely executive purview.” Ctr. for Nat. Sec. Studies v. U.S.
Dep’t of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003). “[D]eference,” however, “is not
equivalent to acquiescence.” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998).
Incantation of the magic words “national security” without further substantiation is simply not
enough to justify significant deprivations of liberty. Similarly, although the Court acknowledges
the “broad” latitude due the Executive in the realm of immigration, Mathews v. Diaz, 426 U.S.
67, 79-80 (1976), it cannot “abdicat[e]” its “legal responsibility to review the lawfulness” of
detention. Zadvydas, 533 U.S. at 700. The government’s power over immigration, while
considerable, “is subject to important constitutional limitations.” Id. at 695. It is those
limitations with which the Court is concerned here.
This would, admittedly, be a closer case had the Government offered a defensible
national-security interest that connects the aim of the challenged policy to its actual effect. The
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Court, moreover, is rendering no judgment on the Executive’s authority to use other means at its
disposal to deter mass immigration. But when its chosen vehicle demands significant
deprivation of liberty, it cannot be justified by mere lip service.
In sum, as in Zadvydas, the Government claims remarkably expansive authority to detain
noncitizens found within our borders. Again channeling Zadvydas, its approach does not
comport with the traditional purposes of such detention. The Government’s justification,
moreover, is poorly substantiated in its own right. The Court is thus convinced that Plaintiffs
have a significant likelihood of succeeding on the merits of their claim – namely, that DHS’s
current policy of applying Matter of D-J- to detain Central American families violates 8 U.S.C. §
1226(a), read in light of constitutional constraints. Having decided this critical issue, the Court
moves on to the remaining three preliminary-injunction factors.
2. Irreparable Harm
To establish the existence of the second factor, a party must demonstrate that the injury is
“of such imminence that there is a ‘clear and present’ need for equitable relief to prevent
irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.
Cir. 2006) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The
injury must also be “both certain and great; it must be actual and not theoretical.” Id. (quoting
Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id.
Plaintiffs have satisfied this inquiry here. As discussed above, the evidence they present
suggests that a large number of asylum-seeking families from Central America are currently
being detained as a result of DHS’s deterrence policy. Such detention harms putative class
members in myriad ways, and as various mental health experts have testified, it is particularly
harmful to minor children. See Hines Decl., ¶¶ 23-28; Pl. Mot., Exh. 15 (Declaration of Luis H.
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Zayas), ¶¶ 10-11; ECF No. 1, Exh. 1 (Declaration of R.I.L.R.), ¶¶ 18-20; id., Exh. 2 (Declaration
of Z.M.R.), ¶¶ 20-21; see also Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)
(recognizing the “major hardship posed by needless prolonged detention”); Wil S. Hylton, The
Shame of America’s Family Detention Camps, N.Y. Times Magazine MM25 (February 8, 2015),
available at http://www.nytimes.com/2015/02/08/magazine/the-shame-of-americas-family-
detention-camps.html?_r=0 (describing conditions in family detention centers).
The injuries at stake, furthermore, are “beyond remediation.” Chaplaincy, 454 F.3d at
297. Members of the proposed class do not seek monetary compensation for their injuries.
Instead, they seek injunctive and declaratory relief invalidating and setting aside the improper
deterrence policy. Unlike economic harm, the harm from detention pursuant to an unlawful
policy cannot be remediated after the fact. Cf. Davis v. Pension Benefit Guar. Corp., 571 F.3d
1288, 1295 (D.C. Cir. 2009) (economic losses are typically not irreparable because compensation
can be awarded after a merits determination).
3. Balance of Harms and Public Interest
Under the circumstances of this case, factors three and four do not require in-depth
analysis. The Government “cannot suffer harm from an injunction that merely ends an unlawful
practice or reads a statute as required to avoid constitutional concerns.” Rodriguez, 715 F.3d at
1145. And, as courts in this District have recognized, “The public interest is served when
administrative agencies comply with their obligations under the APA.” N. Mariana Islands v.
United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009); see also Klayman v. Obama, 957 F. Supp.
2d 1, 43 (D.D.C. 2013). In light of the Court’s conclusion that DHS’s current policy of
considering deterrence is likely unlawful, and that the policy causes irreparable harm to mothers
and children seeking asylum, the Court finds that these last two factors favor Plaintiffs as well.
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IV. Conclusion
For the aforementioned reasons, the Court will grant Plaintiffs’ Motions for a Preliminary
Injunction and Provisional Class Certification and deny Defendants’ Motion to Dismiss. A
separate Order consistent with this Opinion shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 20, 2015
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