United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS, Chief United States District Judge
Petitioners are fifty 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 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"),  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.
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.
hearing, the Court ALLOWS the
motion for preliminary injunction (Docket No. 3) staying
removal to the extent provided below.
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
The Humanitarian Program
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
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
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).
Fears of Persecution
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.
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.
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.
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. 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 . . . .") .
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.
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
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