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Devitri v. Cronen

United States District Court, D. Massachusetts

February 1, 2018

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


          PATTI B. SARIS, Chief United States District Judge


         Petitioners[1] are fifty[2] Indonesian Christians subject to final Orders of Removal. Residing with Government permission in New Hampshire under a humanitarian program called "Operation Indonesian Surrender, " they have complied with the conditions of their Orders of Supervision, some for more than a decade. Last summer, the Government informed them that the program was being terminated, and they were ordered to return to Indonesia within sixty days. Petitioners now seek to file[3] motions to reopen their immigration proceedings based on "changed country conditions, " on the ground that they are likely to face persecution or torture in Indonesia because of their Christian faith. Challenging their lack of meaningful access to the motion to reopen procedure as a violation of the Due Process Clause of the Fifth Amendment and contrary to the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT"), [4] Petitioners assert jurisdiction under 28 U.S.C. § 2241, 28 U.S.C. § 1331, 28 U.S.C. § 1361, and 5 U.S.C. § 701 et seq. They contend they will be removed to Indonesia before they have sufficient time to file a motion to reopen and before the motion to reopen is ruled on by the BIA and First Circuit. Accordingly, they seek a preliminary injunction staying their removal.

         The Government argues that Petitioners seek to circumvent Congress's immigration framework. They re-assert that this Court lacks jurisdiction, that Petitioners do not show that they are likely to be removed before the administrative courts can adjudicate their motions to stay removal, and that they have not shown that they are each likely to face torture or persecution as a result of removal.

         After a hearing, the Court ALLOWS the motion for preliminary injunction (Docket No. 3) staying removal to the extent provided below.


         The Court assumes familiarity with its November 27, 2017 order on jurisdiction (Docket No. 65, Devitri v. Cronen, Civ. No. 17-11842-PBS, 2017 WL 5707528 (D. Mass. Nov. 27, 2017), and only briefly summarizes the relevant background information here.

         I. Factual Background

         A. The Humanitarian Program

         Petitioners are Christian Indonesian nationals who have lived in New Hampshire for many years (some for over a decade), but are subject to final Orders of Removal. In 2010, Immigration and Customs Enforcement ("ICE") instituted a humanitarian program called "Operation Indonesian Surrender" in New Hampshire. Petitioners and other Indonesian nationals with final Orders of Removal were encouraged to come "out of the shadows" and identify themselves to ICE during the program. In exchange, they were granted temporary stays of removal and placed under Orders of Supervision ("OSUPs"). These OSUPs allowed them to seek employment and also prescribed conditions with which the recipients had to comply. Petitioners lived and worked under these OSUPs without incident until 2017 and generally complied with their conditions.

         The Government never made any promises or agreements that the program participants could stay in the country indefinitely. However, nothing in the record suggests that Petitioners were notified that they would forfeit the right to assert changed country conditions if they did not file motions to reopen while they participated in Operation Indonesian Surrender. They reasonably relied on their OSUPs in not filing motions to reopen earlier and had no reason to suspect that the Government would abruptly change its mind about the humanitarian program.

         On August 1, 2017, a group of Petitioners checked in with ICE pursuant to the conditions of their OSUPs. They were informed that they would be subject to a "thirty-thirty" deportation schedule: they would have to depart for Indonesia no later than thirty days after their upcoming thirty-day check-in appointment (i.e., sixty days from August 1, 2017).

         B. Fears of Persecution

         Petitioners' expert, Jeffrey Winters, Ph.D., states that Indonesian society has recently faced a "rising tide of extremist Islam." Winters Aff. (Docket No. 49-6) ¶ 8. Petitioners have presented evidence that they may face "intimidation, physical harm, and threats to their personal safety and well-being, " based on their Christian religion, if they returned to Indonesia. Winters Aff. (Docket No. 49-6) ¶ 2. According to Dr. Winters, since 2012, the level of violence and intolerance directed at religious minorities has increased at a "shocking rate, " and Christian Indonesians face an "extremely high probability of persecution." Winters Supp. Aff. (Docket No. 88-1) ¶ 2.

         Dr. Winters's supplemental affidavit further states that law enforcement in Indonesia is unlikely to provide meaningful protection to religious minorities -- and Evangelical Christians, like Petitioners, in particular -- in the face of violence and intolerance. See Winters Supp. Aff. (Docket No. 88-1) ¶¶ 14, 33. He writes that "the Indonesian government actively supports Islamic extremists who are anti-Christian" and "will punish those who are 'vocal' and 'assertive' Christians, such as Plaintiffs." Winters Supp. Aff. (Docket No. 88-1) ¶ 6. Dr. Winters also cites a 2013 United States government report, which found that the Indonesian government "did not enforce laws that would protect vulnerable groups and religions" and "collaborated with hardline groups against members of sects they deemed to be Meviant.'" Winters Aff. (Docket No. 49-6) ¶ 108.

         His supplemental affidavit also includes articles covering this case in the media in Indonesia. See Winters Supp. Aff. (Docket No. 88-1) Ex. A. Although names of some of the Petitioners are mentioned in media coverage, Petitioners have presented no affidavits about their individual situations.

         II. BIA Procedures

         Congress created a statutory right for each alien to file a motion to reopen immigration proceedings. See 8 U.S.C. § l229a(c)(7)(A); Perez Santana v. Holder, 731 F.3d 50, 51 (1st Cir. 2013). Based on the alleged changed conditions in Indonesia, Petitioners seek to file motions to reopen with the BIA.[5] See 8 U.S.C. § l229a(c)(7)(C)(ii) ("There is no time limit on the filing of a motion to reopen . . . based on changed country conditions . . . .") .

         Petitioners may request from the BIA a stay of their removal pending a ruling on the motion to reopen. A stay is discretionary. See Gearin Decl. (Docket No. 36-2) ¶ 7. A stay request can only be submitted to the BIA if the individual previously filed or contemporaneously files a motion to reopen. See BIA Practice Manual § 6.4(b). The BIA "categorizes stay requests into two categories: emergency and non-emergency." Id. § 6.4(d). But the BIA does not consider stay requests on an immediate "emergency" basis unless removal is imminent and the individual is in ICE's physical custody. Gearin Decl. (Docket No. 36-2) ¶¶ 8-9; accord BIA Practice Manual § 6.4(d)(i). Petitioners are not in physical custody, so the BIA's emergency stay procedures would not apply to them.

         Instead, Petitioners would be subject to the "nonemergency" stay procedures. The BIA's practice manual states that it "does not rule immediately on a 'non-emergency' stay request, but considers the request during the normal course of adjudication." BIA Practice Manual § 6.4(d)(ii). In practice, the BIA often does not rule on non-emergency stay requests from non-detained individuals. See Chan Decl. (Docket No. 72-2) ¶ 12; Mesa Aff. (Docket No. 72-6) ¶¶ 7-8; Piereson Aff. (Docket No. 72-7) ¶ 11. When the BIA does rule on non-emergency stay requests, it typically does so at the same time that it decides the motion to reopen. See Greenstein Aff. (Docket No. 72-3) ¶ 19. Even if the BIA rules on the motion for a stay and denies it, there is no right to appeal the stay denial until the BIA also rules on the motion to reopen. See Gando-Coello v. I.N.S., 857 F.2d 25, 26 (1st Cir. 1988) (holding that BIA's denial of stay pending disposition of motion to reopen is not a final administrative order reviewable by Court of Appeals).[6]

         In sum, absent a judicial stay, contrary to the Government's assertions, I find that it is likely that Petitioners will be deported to Indonesia before their motions to stay and motions to reopen are considered by the BIA and the Court of Appeals.[7]


         I. Prelimin ...

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