Lunn v. Smith

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         Before the court is Petitioner's Motion to Compel Answers to Petitioner's First Set of Interrogatories [#83]. For the following reasons, Petitioner's motion is ALLOWED in part and DENIED in part.

         I. Background

         Petitioner Sreynuon Lunn was born in a Thai refugee camp after his Cambodian parents fled the Khmer Rouge. Pet. ¶ 10 [#1]. On September 25, 1985, when he was seven months old, he was lawfully admitted to the United States as a refugee. Id. ¶ 11. On June 25, 2008, he was ordered removed from the United States to Cambodia. Piepiora Decl. ¶ 5 [#23-1]. Petitioner was released on an administrative Order of Supervision the following month. Id.

         Since his 2008 release, the United States Immigration and Customs Enforcement (“ICE”) has repeatedly detained Petitioner, and ICE reportedly has made efforts to remove him to Cambodia. Id. ¶¶ 7-8; Pet. ¶¶ 19-22 [#1]. Throughout this time, ICE has been unable to obtain travel documents from Cambodia. Piepiora Decl. ¶ 7 [#23-1]; Pet. ¶¶ 19-21 [#1].

         II. The Current Litigation

         Petitioner's most recent detention prior to this litigation began on February 6, 2017, when Petitioner was held in ICE custody at the Suffolk County House of Corrections. Piepiora Decl. ¶ 8 [#23-1]; Pet. ¶ 22-23 [#1].

         On May 22, 2017, Petitioner filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#1], naming the United States Secretary for the Department of Homeland Security (“DHS”), the Directors of ICE and ICE's Boston Field Office, and others. Petitioner alleged that he has been subjected to a pattern of unlawful detention and sought a court order that, inter alia, (1) compelled his release, and (2) enjoins his re-detention absent proof to this court that his removal has become reasonably foreseeable. Pet. [#1]. Petitioner argued that post-final-order detention is not statutorily authorized, or constitutional, if the noncitizen's removal is not reasonably foreseeable. Mem. in Support of Pet. 5-10 [#3] (citing Zadvydas v. Davis, 533 U.S. 678, 699 (2001)).

         Petitioner was subsequently released from ICE custody after the Cambodian consulate notified ICE's Boston Field Office that it had not scheduled any travel document interviews for the near future. Piepiora Decl. ¶¶ 8-9 [#23-1].

         Respondent then moved to dismiss the Petition on mootness grounds in light of Petitioners release from custody. Resp'ts' Mot. to Dismiss [#15]. The court denied the motion, finding a live issue existed as Petitioner claimed that his immigration detention was forbidden so long as his removal was not reasonably foreseeable, and the government contended that he could nonetheless be detained. Order [#26].^[1]

         On November 10, 2017, Petitioner served Interrogatories on Respondents. Mot. to Quash Ex. A (Pet'r's First Set of Interrogs.) [#71-1]. Petitioner requested, inter alia, (1) information regarding the Government of Cambodia's repatriation of others (Interrogatories 5-7); and (2) information regarding ICE's past detentions of Petitioner; and (3) the policies and procedures that will impact intended future detention(s) of Petitioner (Interrogatories 13 and 15). Respondents moved to quash the Interrogatories. Resp'ts' Mot. to Quash [#71]. In response, Petitioner argued that the requested discovery will aid him in showing that he is entitled to continuing release from ICE custody where his removal to Cambodia is not likely to occur in the reasonably foreseeable future. Pet'r's Opp'n to Resp'ts' Mot. to Quash 1 [#73].

         The court denied Respondents' motion on January 22, 2018, stating that:

The court agrees that this information, with limits as to the time period, is reasonably calculated to bear on Petitioner's entitlement to continuing release from ICE custody. For example, information about the number of nationality verification interviews conducted or scheduled to be conducted the Government of Cambodia, since the time of Petitioner's detention that led to this Petition, is relevant to determine whether the Government of Cambodia's position on repatriation has changed generally, and information about the Government of Cambodia's willingness to conduct such interview for Petitioner bears directly on whether its position with respect to Petitioner's repatriation has changed. For similar reasons, information regarding the standards and/or methods the Government of Cambodia has used to verify nationality, since the time of Petitioner's detention that led to this Petition, is relevant. Finally, information regarding ICE's rationale for its previous decisions to detain and then release him, and the policies and procedures it has applied or will apply, if any, to detention of Petitioner, is relevant to whether the question before this court is capable of repetition but evades review.

Accordingly, Petitioner's First Set of Interrogatories, limited in time from the date of the detention that led to this Petition to the present, bear on whether Petitioner is entitled to relief, and good cause exists for such interrogatories as so cabined.

         Order 3 [#79] (emphases added).

         Respondents served their Response to Petitioner's First Set of Interrogatories on February 21, 2018. Green Decl. Ex. G (Resp'ts' First Resp.) [#85-7]. On February 26, 2018, Petitioner's counsel sent Respondents a letter identifying claimed deficiencies in Respondents' in the First Response to the Interrogatories. Pet'r's Mem. in Support of Mot. to Compel (“Pet'r's Mem.) 2 [#84]. After the parties met and conferred, Respondents served their First Supplemental Responses to the Interrogatories, followed by their Second Supplemental Response to the Interrogatories. Green Decl. Ex. A (Resp'ts' Sec. Suppl. Resp.) [#85-1]. On March 14, 2018, Petitioner's counsel sent Respondents a letter addressing the alleged remaining deficiencies in the Second Supplemental Response. Id. Ex. C (Pet'r's Letter) [#85-3]. Respondents' counsel then sent Petitioner's counsel a letter regarding the alleged deficiencies, as well as Respondents' Third Supplemental Response to Interrogatory Nos. 6 and 7 of Petitioner's First Set of Interrogatories. Id. Ex. B. (Resp'ts' Third Suppl. Resp.) [#85-2].^[2]

         This motion followed.

         III. Discussion

         A. Interrogatory No. 5

         In Interrogatory No. 5, Petitioner asked Respondents to “[s]tate whether the Government of Cambodia has articulated the standards and/or methods that it applies in verifying nationality, as referenced in Paragraph 5 of the Schultz Declaration. If so, state such standards and/or methods.” Pet'r's First Set of Interrogs. 4 [#71-1]. Respondent did not object to Interrogatory No. 5 and provided responses. Resp'ts' Sec. Suppl. Resp. 5-6 [#85-1]. Petitioner's counsel did not raise any issue regarding Respondents' Interrogatory Response No. 5 in the letters following this response. See Pet'r's Letter 2 [#85-3].

         In his motion, Petitioner asks the court to compel Respondents to provide a response to Interrogatory No. 5. See Pet.'s Mot. to Compel [#83]. Petitioner's memorandum does not discuss this interrogatory except in a footnote, where Petitioner suggests that the answer provided by Respondent ICE may not be accurate or complete in light of later information addressed in Petitioner's discussion about Interrogatories Nos. 6 and 7. Pet'r's Mem. 8-9 n.10 [#84]; see also Resp'ts' Opp'n 1 n.1 [#89].

         The court DENIES petitioner's motion to the extent that it requests relief as to Interrogatory No. 5. Petitioner did not provide notice to Respondents of the alleged deficiency. See Pet'r's Letter 2 [#85-3]. Moreover, Petitioner's counsel has not shown that they attempted to confer with Respondents to obtain the relief sought prior to filing of this motion. See Fed.R.Civ.P. 37(a)(1); L.R. 37.1(a), D. Mass. The court does, however, remind Respondents of their ongoing obligation to supplement or correct their response “in a timely manner if [Respondents] learn that in some material respect the . . . response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A).

         B. Interrogatory Nos. 6 and 7

         In Interrogatory No. 6, Petitioner asked Respondents:

For each of the following factors, state whether it is Your experience that this fact has, since 2002, influenced the likelihood of removal to Cambodia, and, if so, state the nature of that influence: (1) criminal history; (2) birth outside of Cambodia; (3) length of residence in the United States; (4) lack of prior residence in Cambodia; (5) ...