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Damus v. Nielsen

United States District Court, District of Columbia

October 22, 2018

ANSLY DAMUS, et al., Plaintiffs,
KIRSTJEN M. NIELSEN, et al., Defendants.



         Plaintiffs are members of a provisionally certified class of asylum-seekers detained by Immigration and Customs Enforcement at one of its five Field Offices. ICE's detention policy is governed in part by its 2009 “Parole Directive, ” which establishes how the agency determines whether an individual who has been deemed to have a “credible fear of persecution” - the first step in gaining asylum status - will be released on parole pending a full hearing. In bringing suit, Plaintiffs' principal contention, based on plummeting parole rates and testimony from detained asylum-seekers and their counsel, is that this Administration is no longer following its own Directive but is instead engaging in systematic detention. Finding that Plaintiffs had established a reasonable likelihood of success on that claim, the Court last July granted a preliminary injunction requiring that Defendants comply with the Directive. See Damus v. Nielsen, 313 F.Supp.3d 317 (D.D.C. July 2, 2018). Citing additional testimony from practitioners and parole statistics since the injunction issued, Plaintiffs believe that the five Field Offices are not following that injunction. They thus now move for discovery regarding the agency's compliance. As Plaintiffs have raised a sufficient question of noncompliance, the Court will grant their Motion and permit limited discovery to see if they can support their theory.

         I. Background

         The background on the relevant statutory scheme, the Parole Directive, and Plaintiffs' detention is laid out in this Court's prior Opinion. Id. at 323-25. In brief, non-citizens applying for asylum may be paroled “into the United States temporarily” at the Attorney General's discretion. See 8 U.S.C. § 1182(d)(5)(A). Agency regulations provide that the Secretary of Homeland Security, under whom ICE operates, “may invoke” parole authority for individuals who are “neither a security risk nor a risk of absconding” and who meet one or more of a series of conditions - as relevant here, “for urgent humanitarian reasons or significant public benefit.” See Damus, 313 F.Supp.3d at 324 (quoting 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(b)). The Directive interprets “public benefit” and sets out procedural requirements for assessing whether individual applicants should be released. It provides that, if an asylum-seeker has established her identity and that she is neither a flight risk nor a risk to the public, detention is not in the public interest and parole should be granted between the initial credible-fear determination and the full hearing. Id.; see ICE Directive No. 11002.1 (Dec. 8, 2009) (Parole Directive). The Directive also requires that ICE make an individualized determination, provide a written notice of the parole process in a language the asylum-seeker understands, grant a parole interview within seven days, and provide a “brief explanation” of its decision. See Damus, 313 F.Supp.3d at 324 (citation omitted).

         Plaintiffs' principal allegation that ICE is no longer following the Directive relied in large part on statistics: under the Obama Administration, parole was granted to more than 90% of asylum-seekers at the five Field Offices at which class members are held; at the time Plaintiffs filed suit, ICE was denying over 90% of requests at those locations. Id. at 339. Plaintiffs also submitted “a number of declarations from asylum-seekers and their advocates[, ] . . . all of whom assert[ed] various violations of the . . . Directive.” Id. at 340. Based on that evidence, this Court concluded that Plaintiffs were likely to succeed on the merits of their claim and satisfied the other prerequisites for a preliminary injunction. Id. at 339-43. It accordingly issued an Order requiring, inter alia, that “Defendants . . . [not] deny[] parole to any provisional class members absent an individualized determination[;] . . . [that] [t]he individualized determinations of flight risk and danger to the community referenced above . . . be based on the specific facts of each provisional class member's case”; and that Defendants comply with the procedural requirements of the Directive. See ECF No. 33 (PI Order), ¶¶ 3-5.

         The Government, as also ordered, provided a report on parole determinations from when the preliminary injunction issued on July 2, 2018 until August 17. See ECF No. 40 (ICE Data) at 1-2. In the five Field Offices at issue, ICE granted approximately 19%, 27%, 17%, 42%, and 18% of requests during that period. Id. Plaintiffs have now filed a Motion for Limited Discovery Regarding Compliance with the Preliminary Injunction, contending that these statistics and affidavits they have collected raise a significant question about ICE's compliance with the preliminary injunction. See ECF No. 41 (Plaintiff's Motion) at 1-2.

         II. Analysis

         The Court must first determine whether this situation is one in which discovery is available at all. Concluding that it is, the Court will then move on to address the scope of discovery and whether Defendants should, as they contend, receive reciprocal discovery.

         A. Availability of Discovery

         1. Standard

         Plaintiffs urge that the Court has authority to grant limited discovery where significant questions have been raised about noncompliance with a preliminary injunction. See Pl. Mot. at 9. Defendants protest that the appropriate standard for Plaintiffs' request for discovery is not whether there are significant compliance questions, but whether the discovery request is warranted under a multi-factor test. See ECF No. 45 (Defendants' Opposition) at 11. They also posit that discovery is simply inappropriate before a Rule 26(f) conference has taken place - and especially so here, since preliminary injunctions are intended to preserve the status quo, rather than “to force one party to ‘radically transform the status quo, on an expedited basis.'” Id. (quoting Disability Rights Council v. WMATA, 234 F.R.D. 4, 7 (D.D.C. 2006)).

         Plaintiffs have the better of this dispute. The Court has the relevant authority “as part of its inherent power to enforce its judgments, ” and it is clear that “appropriate discovery should be granted” where “significant questions regarding noncompliance [with a court order] have been raised.” Cal. Dep't of Social Servs. v. Leavitt, 523 F.3d 1025, 1033-34 (9th Cir. 2008); see Palmer v. Rice, 231 F.R.D. 21, 25 (D.D.C. 2005) (allowing discovery where, “without [it], plaintiffs will not be able to determine whether the government has complied with the court's injunctions”); Blackberry Ltd. v. Typo Prods. LLC, 2014 WL 4136586, at *5 (N.D. Cal. Aug. 21, 2014) (granting discovery where Plaintiff had raised “serious questions . . . regarding [Defendant's] possible violations of the preliminary injunction”). The Court retains this discretion where compliance questions have been raised before the Rule 26(f) conference. See MACOM Tech. Sols. Holdings, Inc. v. Infineon Tech. AG, 2017 WL 1371247, at *2 (C.D. Cal. Mar. 17, 2017). This is particularly so where the discovery sought goes to compliance, as opposed to the merits, the typical subject of the Rule 26(f) conference.

         The Court has little trouble, furthermore, rejecting the contention that it should apply the alternative standard urged by Defendants - that is, whether a multi-factor test renders discovery reasonable. None of the cases on which Defendants rely addresses the propriety of discovery to assess compliance with a court order; rather, they deal generally with the considerations courts should weigh in determining whether expedited discovery is appropriate before any court order has issued. See Def. Opp. at 11 (citing Guttenberg v. Emery, 26 F.Supp.3d 88, 97 (D.D.C. 2014); Attkisson v. Holder, 113 F.Supp.3d 156, 161-62 (D.D.C. 2015); Landwehr v. FDIC, 282 F.R.D. 1, 3 (D.D.C. 2010)). The Court is likewise not persuaded that the approach Plaintiffs request risks “forc[ing] ...

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