United States District Court, D. Columbia.
R.I. L-R, et al., Plaintiffs,
JEH CHARLES JOHNSON, et al., Defendants
For R.I. L-R, J. L. S., K. L. S., Z. M. R., J. P. L-M, W. M. C., C. M. A-C, G. A. P-C, G. C. R., J. A. R., Plaintiffs: Dennis B. Auerbach, LEAD ATTORNEY, David M. Zionts, Philip J. Levitz, COVINGTON & BURLING LLP, Washington, DC; Judy Rabinovitz, PRO HAC VICE, Arthur B. Spitzer , AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, Washington, DC.
For JEH CHARLES JOHNSON, Secretary of the Department of Homeland Security, In his Official Capacity, PHILIP T. MILLER, U.S. Immigration and Customs Enforcement Assistant Director of Field Operations for Enforcement and Removal Operations, In his Official Capacity, Defendants: Sarah B. Fabian, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Trial Attorney, District Court Section, Washington, DC; Wynne Patrick Kelly, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
For SARAH R. SALDANA, Assistant Secretary for United States Immigration and Customs Enforcement, In her Official Capacity, Defendant: Sarah B. Fabian, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Trial Attorney, District Court Section, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
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 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.
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, 183 L.Ed.2d 351 (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. § 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 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.
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.
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., 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). The plaintiff " must establish  that he is likely to succeed on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in his favor, and  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, 331 U.S.App.D.C. 198 (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, 334 U.S.App.D.C. 228 (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, 396 U.S.App.D.C. 1 (D.C. Cir. 2011); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292, 387 U.S.App.D.C. 205 (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.
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.
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 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 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 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.
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 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 ...