United States District Court, D. Massachusetts
LILIAN PAHOLA CALDERON JIMENEZ AND LUCIMAR DE SOUZA, ET AL. Petitioner-Plaintiffs,
CHRISTOPHER CRONEN, ET AL, Respondent-Defendants. EDUARDO RALPH JUNQUEIRA, Petitioner,
STEVEN SOUZA, ET AL, Respondents.
MEMORANDUM AND ORDER 
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.
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
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.
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
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.
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.
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
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
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
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.
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.
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.
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.
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).
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.
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.
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.
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
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.
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) .
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
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).
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.
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.
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)).
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.
THE LEGAL FRAMEWORK
The Fifth Amendment Due Process Clause
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.
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.
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).
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
The Post-Order Detention Statute
U.C.S. §1231 authorizes the Secretary of Homeland
Security (the "Secretary") 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).
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
parties agree that the 90-day removal period for both De
Souza and Junqueira has elapsed. Therefore, if they may be
detained at all,  they are subject to §1231 (a) (6),
which makes detention discretionary.
§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]
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.
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. 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 ...