United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE.
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,  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
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.
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
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
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. 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.
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.
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.
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
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
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).
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).
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 ...