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Devitri v. Cronen

United States District Court, D. Massachusetts

November 27, 2017

LIA DEVITRI, et al., Petitioners/Plaintiffs,
v.
CHRIS CRONEN, et al., Respondents/Defendants.

          MEMORANDUM AND ORDER

          PATTI B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Petitioners are fifty-one Indonesian Christians who fear religious persecution in Indonesia and are subject to final Orders of Removal. All Petitioners reside in New Hampshire. In 2010, Immigration and Customs Enforcement (“ICE”) instituted a humanitarian program called Operation Indonesian Surrender, through which Petitioners were granted Orders of Supervision, allowing them to seek employment and subjecting them to certain mandatory conditions. Petitioners also received temporary stays of removal that were renewed over multiple years. In the summer of 2017, these individuals were informed that they would be removed from the United States. They filed this habeas petition pursuant to 28 U.S.C. § 2241, [1] raising claims under the Immigration and Nationality Act (“INA”), the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), and the Due Process Clause of the Fifth Amendment of the United States Constitution. Petitioners seek stays of their removal so that they are not removed before they have the opportunity to file motions to reopen based on “changed country conditions.”

         The Court temporarily stayed removal to determine if the Court has jurisdiction. An evidentiary hearing was held on October 20, 2017, at which Respondent Timothy Stevens, an ICE Supervisory Detention and Deportation Officer with knowledge of Operation Indonesian Surrender, testified. In advance of the evidentiary hearing on jurisdiction, the Court also received affidavits from Russell F. Hilliard, Esq. (Docket No. 49-1), Reverend Sandra Pontoh (Docket No. 49-2), William Hahn, Esq. (Docket No. 49-3), Susan Church, Esq. (Docket No. 49-4), Trina A. Realmuto (Docket No. 49-5), and Jeffrey A. Winters, Ph.D. (Docket No. 49-6). The Court received declarations from The Honorable Jill H. Dufresne (Docket No. 36-1) and Christopher Gearin (Docket No. 36-2). The only issue before the Court is whether the Court has subject-matter jurisdiction. The Court holds that it does.

         FACTUAL BACKGROUND [2]

         Petitioners are fifty-one Christian Indonesian nationals who have lived in the United States for many years. They are all subject to final Orders of Removal. Some individuals have children or spouses who are United States citizens; some have children who are recipients of Deferred Action for Childhood Arrivals (“DACA”); some have children who have enlisted in the United States military; and some have serious medical conditions.

         Petitioners claim that, if they are removed to Indonesia, they will face an “alarmingly high and increasing” risk of persecution, including “intimidation, physical harm, and threats to their personal safety and well-being, ” based on their Christian religion. Winters Aff. (Docket No. 49-6) ¶ 2. Indonesia is a majority Muslim country. According to Petitioners' expert, since 2008, the conditions in Indonesia for religious minorities have deteriorated substantially, as the country experiences a “rising tide of extremist Islam” targeting non-Muslim populations. Winters Aff. (Docket No. 49-6) ¶¶ 8-9. The Winters affidavit details numerous examples of violence carried out by Islamic militants directed at Christians, including the burning of churches, riots, and assaults. The affidavit also presents evidence from reports showing that law enforcement in Indonesia is unlikely to provide meaningful protection to religious minorities in the face of violence and intolerance.[3]

         In 2010, in communication with members of the Christian community, ICE began a program called Operation Indonesian Surrender in New Hampshire. For a few weeks in 2010, ICE set up a mobile command center in the parking lot of the Strafford County district courthouse in Dover, New Hampshire. Indonesian nationals with final removal orders were encouraged to identify themselves to ICE either at the mobile command center or soon afterward.[4] In exchange, the program participants were placed under Orders of Supervision (“OSUPs”) and granted temporary stays of removal. These OSUPs allowed the participants to seek employment and also prescribed conditions with which the recipients had to comply, including “appear[ing] in person at the time and place specified, upon each and every request of [ICE] for identification and for deportation or removal, ” e.g., Docket No. 37-2 at 85, informing ICE before traveling outside New England, and submitting to medical or psychiatric examinations at ICE's request. Petitioners received no oral or written promises that they could remain in this country indefinitely.

         Approximately 100 Christian Indonesians are believed to have participated in the program and received OSUPs. They lived and worked under these OSUPs without incident until this year and generally complied with their conditions, including the condition that they not commit crimes. In addition, Petitioners were granted temporary stays of removal by ICE on a roughly annual basis.

         In late 2011, a group of program participants who did not have U.S. citizen children, U.S. citizen spouses, or health issues were told that they would be removed. They were informed that their stay requests were being denied, but they were given the opportunity to have an in-person interview with ICE at its Manchester, New Hampshire office before removal. After the interviews, ICE mailed the participants a notice revoking their OSUPs and confirming their departure from the United States approximately 90 days later.

         Six years later, in February 2017, ICE began to notify Petitioners that it would no longer grant stays of removal. ICE advised pastoral leaders in June 2017 that it would be terminating Operation Indonesian Surrender. At this meeting, the leaders were informed that all remaining program participants would be deported, but ICE did not set a timeline for these removals. Based on the community's experience in 2011, the pastoral leaders believed that interviews would be scheduled with Petitioners before they were deported.

         Instead, at an August 1, 2017 check-in appointment pursuant to the OSUP conditions, a group of program participants were told that they would be subject to a “30-30” schedule. They would need to report to ICE at their next 30-day check-in with tickets to depart for Indonesia 30 days later. This proposed class action habeas corpus petition was first filed on September 25, 2017, two days before the first Petitioners were scheduled to be removed. See Docket No. 1.

         DISCUSSION

         I. Habeas Jurisdiction

         Petitioners assert that this Court has habeas jurisdiction under 28 U.S.C. § 2241(c). In order to bring a habeas petition, an individual must be in custody. 28 U.S.C. § 2241(c). “Custody” is not limited to physical detention. See Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004). Final orders of removal have been held to satisfy the custody requirement. See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735 (5th Cir. 2005); Mendonca v. I.N.S., 52 F.Supp.2d 155, 159 (D. Mass. 1999), aff'd, 201 F.3d 427 (1st Cir. 1999). An alien challenging the conditions of his immigration OSUP also may be in custody for habeas purposes. See Ali v. Napolitano, Civil Action No. 12-11384-FDS, 2013 WL 3929788, at *4-5 (D. Mass. July 26, 2013) (finding petitioner was in “custody” where he challenged the restraints on his liberty in his OSUP).

         Petitioners are subject to both final Orders of Removal and OSUPs granted to them as part of Operation Indonesian Surrender. Although Petitioners need not be physically detained to be in “custody, ” in order for the Court to exercise habeas jurisdiction, Petitioners must challenge the legality of that non-detention custody. See 28 U.S.C. § 2241(c)(3) (stating detainee must be “in custody in violation of the Constitution or laws or treaties of the United States”). In the cases finding that removal orders placed an alien in custody for section 2241 purposes, those aliens were challenging the constitutionality of their removal orders. See Rosales, 426 F.3d at 735-36 (finding alien under removal order was in custody where he was challenging removal order on due process grounds); Mendonca, 52 F.Supp.2d at 159, 161-62 (finding alien under removal order was in custody, but declining to exercise jurisdiction because petition challenged discretionary decision). The same is true in the OSUP context. See Alvarez v. Holder, 454 F. App'x 769, 772- 73 (11th Cir. 2011) (finding alien under OSUP was in custody where he challenged order's conditions on “due process, freedom of association and freedom of speech” grounds); Ali, 2013 WL 3929788, at *4-5 (finding alien under OSUP was in custody where he challenged order's condition that he report to ICE office indefinitely).

         Here, Petitioners “challenge a condition of [their] custody, specifically, ICE's abrupt change in policy regarding participants in ‘Operation Indonesian Surrender' and the unfairly compressed timetable of the issuance of the Denials of Stays and/or Notices of Revocation of Release.” SAC ¶ 13. Essentially, Petitioners argue that the sudden policy change, combined with the 30-30 order, is “preventing [them] from exercising their due process rights” and their ...


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