United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
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.
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.
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].
The Current Litigation
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].
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
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].
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].
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
court denied Respondents' motion on January 22, 2018,
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.
[#79] (emphases added).
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].
Interrogatory No. 5
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].
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
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).
Interrogatory Nos. 6 and 7
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) ...