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Jimenez v. Cronen

United States District Court, D. Massachusetts

June 11, 2018

LILIAN PAHOLA CALDERON JIMENEZ AND LUCIMAR DE SOUZA, ET AL. Petitioner-Plaintiffs,
v.
CHRISTOPHER CRONEN, ET AL, Respondent-Defendants. EDUARDO RALPH JUNQUEIRA, Petitioner,
v.
STEVEN SOUZA, ET AL, Respondents.

          MEMORANDUM AND ORDER [1]

          WOLF, D.J.

         I. SUMMARY

         This country was born with a declaration of universal human rights, proclaiming that: "all men are created equal, that they are endowed by their Creator with certain unalienable rights, " and that "among these" is "Liberty." U.S.C.A. Declaration of Independence (177 6). This concept was codified in the Fifth Amendment to the United States Constitution, which states in part that "no person shall be...deprived of...liberty...without due process of the law." U.S. Const. Amend. V. As the Supreme Court has written, "[f]reedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects." Zadvydas v. Davis, 533 U.S. 678, 690 (2001). As the words "no person" indicate, and as the Supreme Court has confirmed, "the Due Process Clause applies to all 'persons' within the United States whether their presence here is lawful, unlawful, temporary, or permanent." Id. at 693.

         The United States has historically been distinguished by its dedication to treating lawfully and fairly all among us, including aliens who are in the country illegally. However, as Supreme Court Justice Louis D. Brandeis observed, in each generation we "must labor to possess that which [we] have inherited." Paul Freund, "Mr. Justice Brandeis, " in On Law and Justice at 119 (1968). These cases are a reminder that Justice Brandeis was right.

         Lucimar De Souza, a Brazilian national, entered the United States unlawfully in 2002. She alleges that she did not receive notice of the hearing to determine whether she should be deported from the United States. In any event, in June 2002, De Souza was ordered to leave the country and did not.

         Eduardo Junqueira, who was also born in Brazil, entered the United States unlawfully in 2004. He was apprehended and deported later that year. Junqueira soon reentered the United States unlawfully.

         In 2006, De Souza married a United States citizen. They have an 11-year old son who is a United States citizen. Junqueira also married a United States citizen. They have two children, ages 10 and 12, who are United States citizens. Neither De Souza nor Junqueira has ever violated any law other than by entering and remaining in the United States illegally.

         De Souza and Junqueira present the United States with dilemmas. As generous as the United States has traditionally been in admitting immigrants and refugees, it cannot accommodate everyone who aspires to live here. Therefore, its immigration laws must be enforced. However, the country also has a strong interest in not destroying families by deporting the wives, husbands, mothers, and fathers of United States citizens.

         To reconcile these competing interests, the United States has established a process for determining whether aliens in the country illegally should be allowed to remain here with their families and become lawful Permanent Residents. The first step in that process requires the alien to prove to United States Citizenship and Immigration Services ("CIS"), an agency of the Department of Homeland Security ("DHS"), that his or her marriage is bona fide, rather than a sham to obtain immigration benefits. Both De Souza and Junqueira have attempted to utilize this process.

         On January 30, 2018, at a scheduled appointment at a CIS office, De Souza and her husband were found to have a genuine marriage. De Souza was, however, immediately arrested there by another agency of DHS, Immigration and Customs Enforcement ("ICE") . Similarly, on February 1, 2018, Junqueira and his wife were at a CIS office for a scheduled interview concerning their marriage. Before the interview began, ICE arrested Junqueira.

         De Souza and Junquiera each filed petitions for habeas corpus asserting they are being detained by ICE in violation of the Constitution and laws of the United States, and seeking an order directing ICE to release them. De Souza is also attempting to represent a putative class in challenging the authority of ICE to arrest aliens at CIS offices and, wherever they are arrested, to deport them before CIS decides whether to grant them provisional waivers that would allow them to seek to remain in the United States with their families.

         Federal law also creates a process for determining whether aliens like De Souza and Junqueira, who have been ordered removed, should be detained while the government attempts to effectuate their removal. A federal statute, 8 U.S.C. Sl23l(a)(2), requires that an alien ordered removed from the United States be detained for up to 90 days, ordinarily starting on the date the order becomes final. These 90 days are defined by the statute as the "removal period." Id. §1231(a)(1). ICE must give an alien notice and an opportunity to be heard before detaining him or her for longer than 90 days. See 8 C.F.R. §241.4. At the time of the May 8, 2018 hearing in these cases, ICE had detained De Souza and Junqueira for more than 90 days without following the process prescribed by its regulations.

         ICE initially argued that the regulations do not apply to De Souza, and that they had not been violated with respect to Junqueira. ICE subsequently acknowledged that the regulations do apply and, even on its interpretation, which may be incorrect, the regulations were violated in each case. See May 8, 2018 Tr. at 15-18, 22-25, 35-36. However, ICE contends that the court does not have the power to provide a remedy for the unlawful detention of an alien who has not been in custody for at least six months. ICE relies on the Supreme Court's decision in Zadvydas in making this claim.

         ICE's argument is unmeritorious. The Fifth Amendment guarantee of due process has two components. The substantive component prohibits restrictions on liberty that are not narrowly tailored to serve a compelling state interest, no matter what process is employed in deciding to impose them. In addition, a person who is detained has a right to procedural due process, meaning a right to a fair process for challenging the reasons for detention. Fundamental features of procedural due process are fair notice of the reasons for the possible loss of liberty and a meaningful opportunity to address them. Zadvydas addressed the substantive due process component of the Fifth Amendment. The Supreme Court held, in effect, that an alien's right to substantive due process could be violated by prolonged detention even if the alien's right to procedural due process had been satisfied. See 533 U.S. at 697. Implicitly assuming that the alien had been afforded procedural due process, the Court found that detention of an alien for up to six months is presumptively reasonable for the purpose of the substantive due process analysis. Id. at 701.

         However, as Justice Anthony Kennedy wrote in his dissent in Zadvydas, without dispute from the majority, "[w]ere the [DHS], in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures..." Id. at 724-25. Justice Kennedy's position was a particular application of a long line of Supreme Court and other decisions holding that regulations are laws that the government must obey. In the "McCarthy era, " the Supreme Court held that having issued regulations delegating to the Board of Immigration Appeals (the "BIA") the discretion to decide whether an alien should be deported, the Attorney General could not dictate the BIA's decisions. See Accardi v. Shaughnessy, 347 U.S. 499, 502-04 (1954). During the "Watergate" era, the Attorney General issued regulations delegating to a Special Prosecutor the authority to conduct investigations relating to the 1972 election of President Richard Nixon. See United States v. Nixon, 418 U.S. 683, 694-96 (1974). This authority included the power to issue subpoenas and to seek judicial enforcement of them, including by contesting any assertion of Executive Privilege. Id. at 694-95. The President claimed that he had the unreviewable power to assert that privilege and refuse to comply with the Special Prosecutor's subpoena for tapes the President secretly made in the Oval Office. Id. at 693. The Supreme Court rejected this claim, holding that the regulation had "the force of law, " the "Executive Branch [was] bound by it, " and the Court was "bound to respect and enforce it." Id. at 695, 696. Finding that the subpoena was properly issued and that the Executive Privilege did not provide a basis to quash it, the Court ordered the President to comply with the subpoena. Id. at 716.

         The predecessor to DHS, the Immigration and Naturalization Service ("INS"), issued regulations that were expressly intended to provide all aliens the due process that is constitutionally required before deciding whether their detention should be continued following the initial 90-day removal period. ICE now argues that those regulations provide that any alien ordered removed can later be detained for 90 days before his or her custody is reviewed. See May 8, 2018 Tr. at 15. It acknowledges that the alien and his or her attorney must be given notice of that custody review 30 days in advance to afford them the opportunity to provide information in support of the alien's release. See 8 C.F.R.§241.4(d) (3), (h)(2). ICE has a duty to obey these regulations even if they provide greater protection than is constitutionally required. See Nelson v. INS, 232 F.3d 258, 262 (1st Cir. 2000).

         As indicated earlier, it is undisputed that neither De Souza nor Junquiera were provided the process required under ICE's interpretation of the regulations and, the court finds, by the Fifth Amendment. Indeed, ICE made no effort to follow the process prescribed by its regulations until alerted to issues raised in the litigation of these cases. As De Souza was arrested and detained on January 30, 2018, she was entitled to a custody review no later than about April 30, 2018, and to notice of it to her attorney and her by about March 30, 2018. Instead De Souza, but not her attorney, was given a notice on April 23, 2018 of a custody review to be conducted on or about April 30, 2018. On April 27, 2018, the ICE Deputy Field Office Director decided to continue De Souza's detention before her attorneys had an opportunity to provide information in support of her release. In the notice of that decision, the Deputy Field Office Director represented that De Souza had been personally interviewed. However, De Souza was never interviewed. The Acting Field Office Director subsequently filed a sworn declaration stating, falsely, that De Souza had received notice seven days before her custody review. A May 1, 2018 hearing in these cases evidently prompted ICE to recognize that it had violated its regulations in continuing to detain De Souza. It then decided to conduct another custody review 30 days later and to continue to deprive De Souza of her liberty at least until that review occurred.

         Junqueira was arrested on February 1, 2018 and, therefore, was entitled to a custody review no later than about May 1, 2018. Neither Junqueira nor his attorney received notice that any such review had been scheduled. Again, evidently alerted to ICE's unlawful conduct by the litigation in these cases, on May 3, 2018, the Acting and Deputy Field Office Directors decided that Junqueira would be released that day. However, after being contacted by an ICE lawyer, the Acting Field Office Director reversed that decision. ICE subsequently issued a notice that Junqueira would receive a custody review on about June 3, 2018, which would have deprived him too of his liberty at least until that review was conducted.

         As indicated earlier, with regard to both De Souza and Junqueira, ICE argues that this court lacks the authority to order a remedy for its unlawful conduct. However, as the Supreme Court held in Zadvydas, §2241 habeas corpus proceedings provide a forum for statutory and constitutional challenges to post-removal detention. 533 U.S. at 693. The presumption created by Zadvydas, that up to six months of detention is reasonable, is based on the assumption that ICE followed the process prescribed by its regulations to ensure that continued detention was justified. This assumption is not true for either De Souza or Junqueira. As of May 8, 2018, ICE was detaining each of them in violation of its regulations and without the "due process of law" required by the Fifth Amendment. Therefore, each is entitled to judicial relief.

         Habeas corpus is an equitable remedy. The court has the discretion to fashion relief that is fair in the circumstances, including to order an alien's release. In view of ICE's repeated violations of its regulations - and its indifference to its duty to obey the law - it would not now be fair to keep De Souza or Junqueira incarcerated for another 30 days. Therefore, the court will promptly decide if either or both should be released pending possible deportation.[2]

         ICE's illegal actions concerning De Souza and Junqueira have had profound human consequences that would continue without the court's intervention. It appears likely that De Souza and Junqueira will each be able to prove that if released, they will not be dangerous or flee and, therefore, that each will be entitled to release. Each will nevertheless still face the threat of being deported and separated from their families. Each day with their families is now particularly precious. Any unjustified loss of liberty for even another day would be a painful form of irreparable harm to them and to the United States citizens who love them.

         If accepted, ICE's argument that the court lacks the power to grant petitioners relief in these cases would deeply damage the Constitution's system of checks and balances that, as intended by the nation's Founders, has been fundamental to protecting the rights of every person-citizens as well as aliens. As the Supreme Court reminded in the case of a prisoner detained at Guantanamo, the writ of habeas corpus gives the "Judiciary...a time-tested device...to maintain the delicate balance of governance that is itself the surest safeguard of liberty" and "protects the rights of the detained by [conferring] the duty and authority on the Judiciary to call the jailor to account." Boumediene v. Bush, 553 U.S. 723, 745 (2008) .

         The unlawful treatment of De Souza and Junqueira occurred in cases that ICE knew would be subject to scrutiny by a federal judge. This suggests that other aliens who do not have lawyers to file suit on their behalf are also being illegally deprived of their liberty and irreparably harmed by being separated from their families before possibly being deported. The effort by De Souza and others to maintain her case as a class action to enjoin an alleged pattern of unlawful conduct by ICE presents these issues. They are not yet ripe for resolution.

         However, it should be noted that in Boumediene, the Supreme Court explained the historic significance of the loss of liberty and the fundamental importance of habeas corpus to our democracy. As the Court wrote, in advocating for the adoption of the Constitution in 1788, "Alexander Hamilton explained in The Federalist No. 84:

[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone... are well worthy of recital: 'To bereave a man of life. . .or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.1 And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls 'the bulwark of the British Constitution.' C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone 4 id., at 438).”

Boumediene, 553 U.S. at 744 (emphasis in original).

         This court was informed that after it issued its decisions regarding De Souza and Junqueira on May 8, 2018, the Boston ICE Field Office reviewed its files and found 30 to 40 other individuals were being detained without the procedural due process ICE's regulations were intended to provide. See May 22, 2018 Tr. at 86; May 23, 2018 Tr. at 138. ICE released about 20 of them. Id. at 51. The court has not been informed of the status of the other 10 to 20 aliens who, evidently, were also denied due process.

         II. JURISDICTION

         28 U.S.C. §2241(c)(3) authorizes a district court to issue a writ of habeas corpus to a person "in custody in violation of the Constitution or laws or treaties of the United States." The writ of habeas corpus "entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law" and to obtain relief, including release, if he is being unlawfully detained. Boumediene, 553 U.S. at 779.

         The Illegal Immigration Reform and Immigrant Responsibility Act and Real ID Act, codified in 8 U.S.C. §1252, places certain limits on judicial review in immigration cases. See 8 U.S.C. §§1252(a) (2) (B) (ii), 1252(b)(9), 1252(g). However, "§2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention." See Zadvydas, 533 U.S. at 688 (addressing 8 U.S.C. §§1252(a) (2) (B) (ii) and 1252(g)); see also Jennings v. Rodriguez, 138 S.Ct. 830, 841 (2018) (addressing 8 U.S.C. §§1252(g) and 1252(b)(9)); Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007)(addressing 8 U.S.C. §1252(b)(9)).

         De Souza and Junqueira have each been previously ordered removed from the United States. Each claims, among other things, that ICE violated 8 U.S.C. Sl23l(a)(6) and the Due Process Clause of the Fifth Amendment by detaining him or her for more than three months without the opportunity to be heard required by DHS regulations. These are "statutory and constitutional challenges to post-removal-period detention, " for which §2241 gives the court jurisdiction. Zadvydas, 533 U.S. at 688; Jennings, 138 S.Ct. at 841; Aguilar, 510 F.3d at 11.

         III. THE LEGAL FRAMEWORK

         A. The Fifth Amendment Due Process Clause

         Congress has "'plenary power' to create immigration law, and [the] judicial branch must defer to Executive and Legislative decisionmaking in that area. But that power is subject to important constitutional limitations." Zadvydas, 533 U.S. at 694-95 (citations omitted). The Due Process Clause of the Fifth Amendment imposes one such limitation. As indicated earlier, it states that "No person shall...be deprived of life, liberty, or property, without due process of law." U.S. Const. Amend. V. As also noted earlier, the Fifth Amendment "applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas, 533 U.S. at 693; see also Wing Wong v. United States, 163 U.S. 228, 238 (1896). The Due Process Clause protects an alien subject to a final order of deportation, "though the nature of that protection may vary depending upon status and circumstance." Zadvydas, 533 U.S. at 693-94.

         Due process has two components. The "substantive component...forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-02 (1993)(emphasis added); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). "Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects." Zadvydas, 533 U.S. at 690. Except as punishment for a crime, detention of any "person" is justified only "in special and narrow non-punitive circumstances, where a special justification...outweighs the individual's constitutionally protected interest in avoiding physical restraint." Id. In addition, detention may only continue as long as it bears a "reasonable relation" to permissible purposes. Id.

         "When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner." United States v. Salerno, 481 U.S. 739, 746 (1987); Morrissey v. Brewer, 408 U.S. 471, 482, 484 (1972). Therefore, although "Congress's broad immigration powers allow it to pass a law authorizing an alien's initial detention...those implementing the statute [must] provide individualized procedures through which an alien might contest the basis of his detention." Diop v. ICE, 656 F.3d 221, 232 (3d Cir. 2011); see also Demore v. Kim, 538 U.S. 510, 532 (2003)(Kennedy, J., concurring). "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

         When regulations are promulgated to protect a fundamental right derived from the Constitution or a federal statute, such as the Fifth Amendment right to notice and an opportunity to be heard, the Due Process Clause requires federal agencies to follow them, "even when those regulations provide greater protection than is constitutionally required." Nelson, 232 F.3d at 262; Accardi, 347 U.S. 267-68; Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994); Rombot v. Souza, 296 F.Supp.3d 383, 388 (D. Mass. 2017)(Saris, D.J.). "So long as [a] regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it." Nixon, 418 U.S. at 695-96. In essence, the government, as well as the governed, must follow the law, and in habeas it is the court's duty to ensure that it does. See Boumediene, 553 U.S. at 741 (stating the "from an early date it was understood that the King, too, was subject to the law, " and that by the 1600s, habeas courts could ensure that he followed it when detaining individuals).

         B. The Post-Order Detention Statute

         8 U.C.S. §1231 authorizes the Secretary of Homeland Security (the "Secretary")[3] to detain aliens subject to final orders of removal while efforts are made to obtain travel documents and deport them. The statute provides that when an alien is "ordered removed" from the United States, "the [Secretary of Homeland Security] shall remove the alien from the United States within a period of 90 days (in this section referred to as the 'removal period')." §1231 (a) (1) (A) . The removal period begins on "[t]he date the order of removal becomes administratively final, " the date of a court's final disposition if the removal order is judicially reviewed, or "the date the alien is released from [non-immigration] detention, " whichever is latest. Id. §1231 (a) (1) (B). The statute contemplates that if the alien is not immediately removed, he or she will be detained for at least 90 days, stating that "during the removal period, the [Secretary] shall detain the alien." Io\ §1231(a)(2).

         Congress and the President foresaw that the Secretary might unable to remove some aliens within the removal period. The statute provides that "[i]f the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the [Secretary]." Id. §1231(a)(3). The statute also states that aliens who entered the United States unlawfully, among others, "may be detained beyond the removal period." Id. §1231(a) (6) (emphasis added).

         The parties agree that the 90-day removal period for both De Souza and Junqueira has elapsed. Therefore, if they may be detained at all, [4] they are subject to §1231 (a) (6), which makes detention discretionary.[5]

         Although §1231 (a) (6) states that the Secretary "may" detain an inadmissible alien beyond the removal period, it does not authorize the government to detain an alien indefinitely merely because he or she is subject to a final order of removal. In Zadvydas, the Supreme Court addressed the substantive component of the Due Process Clause. It held that the statute's use of the word "may" was "ambiguous, " as it "suggest[ed] discretion, " but not "unlimited discretion." 533 U.S. at 697. Without an explicit limit on how long the government could detain an alien, §1231 (a) (6) raised a serious constitutional question: "whether, irrespective of the procedures used, the Constitution permits detention that is indefinite and potentially permanent." 533 U.S. at 696 (emphasis added)(citation omitted). To avoid having to decide the constitutional question, the court read "an implicit limitation into the statute" based on "its basic purpose, namely, assuring the alien's presence at the moment of removal." Id. at 699. It held that §1231(a)(6) authorizes detention only so long as it is "reasonably necessary to secure [the alien's] removal." Id.

         In Zadvydas, the Court implicitly assumed that the Attorney General had followed the procedures prescribed in 8 C.F.R. §241.4, which are discussed below. The Court held that even when the Attorney General finds that an alien poses a risk of flight or danger to the community, "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute." Id. The Court reasoned that the statute's "first justification-preventing flight-is weak or nonexistent where removal seems a remote possibility at best." Id. at 690.

         The Court also held that there is a six-month period in which the Attorney General's, now the Secretary's, decision to detain an alien is "presumptively reasonable." Id. at 701.[6] The Court directed that "after this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing, " and if it does not, the court "should hold continued detention unreasonable and no longer authorized by statute." Id. at 699-701. As ...


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