United States District Court, D. Massachusetts
LILIAN PAHOLA CALDERON JIMENEZ AND LUIS GORDILLO, ET AL., individually and on behalf of all others similarly situated, Petitioners-Plaintiffs,
CHAD WOLF, ET AL., Respondents-Defendants.
MEMORANDUM AND ORDER
Friday, December 20, 2019, after 6:00 p.m., Seoun Kim, a
member of the plaintiff class in this case, filed a Motion
For Immediate Interim Release (the "Motion"),
supported by a memorandum, documents, and an affidavit from
his wife. In essence, Kim alleges he has been unlawfully
detained by Immigration and Customs Enforcement
("ICE") for nine months.
December 23, 2019, the court ordered respondents to, by
December 24, 2019, either: (a) release Kim immediately
pending resolution of his request that his removal be stayed
until the issues raised by the Motion are resolved on the
merits; or (b) respond to the Motion and seek to show cause
why the court should not order Kim's release. The court
also scheduled a December 27, 2019 hearing on the Motion if
Kim is not released and ordered that he not be removed from
the District of Massachusetts until the Motion is resolved.
December 24, 2019, counsel for respondents Mary Larakers
reported that she is on leave and would be unavailable for
the December 27, 2019 hearing. Therefore, she requested that
the Motion be decided on the pleadings. Kim reportedly
requests that the hearing be held if the court does not order
his release based on the pleadings.
December 24, 2019, respondents filed an opposition to the
Motion, which argues primarily that the court lacks
jurisdiction to stay Kim's removal indefinitely. An
affidavit of the Acting ICE Field Office Director, Marcos
Charles, was also filed.
Motion is, in essence, a request for a temporary restraining
order mandating Kim's temporary release. Therefore, the
court deems the Motion to be subject to Federal Rule of Civil
Procedure 65(b), and is analyzing it under the standards that
apply to both a motion for a preliminary injunction and a
motion for a temporary restraining order. See e.g.
Cablevision of Boston v. Public Improvement Comm'n,
38 F.Supp.2d 46, 53 (D. Mass. 1999).
reasons explained below, the court is: issuing the requested
temporary restraining order; ordering that Kim be released
forthwith on the conditions of his previous release; vacating
paragraph 3 of the December 23, 2019 Order, which prohibits
ICE from removing Kim from the United States; ordering that
the temporary restraining order continue until January 8,
2020, at 12:00 noon; and, in part because the court will be
unavailable from December 30, 2019 to January 13, 2020,
denying respondents' request to postpone the December 27,
2019 hearing unless, by 10:00 a.m. on December 26, 2019,
respondents agree to an extension of the temporary
restraining order until January 17, 2020, at 6:00 p.m.
court's decision to order Kim's immediate release and
to allow ICE to remove him from the United States is based on
certain, evidently undisputed facts. These include the
of Cambodian descent. He was born in a refugee camp in
Thailand. Kim came to the United States as a refugee and
became a Lawful Permanent Resident. However, he lost that
status after committing serious crimes, serving about 14
years in prison, and being ordered removed to Cambodia.
his release from prison in 2014, Kim was temporarily detained
by ICE and then released on certain conditions. Kim did not
violate any of those conditions.
married to Theresa St. Pierre-Kim, who is a United States
citizen. They have a daughter who is almost two and a son who
is five-months old. Both children are United States citizens.
In March 2019, Kim was ordered to report to ICE to be
detained because it appeared ICE would soon obtain the
documents necessary to remove him to Cambodia. Kim did not
flee. Rather, he voluntarily surrendered as directed.
demonstrated that he is reasonably likely to prevail on his
claim that he has been unlawfully detained by ICE. It is
undisputed that ICE violated its regulations concerning
detention in at least one respect.
regulations - which are laws, see Jimenez v. Cronen,
317 F.Supp.3d 626, 655 (D. Mass. 2018) - require that when an
alien's release is revoked and he is detained, whether
his detention should be continued must be reviewed within
approximately three months and that review must include an
interview of the alien. See 8 C.F.R. §241.4(1).
It is undisputed that Kim, who has been detained for nine
months, has never been interviewed as required by
is a reasonable likelihood that Kim has been prejudiced by
ICE's failure to interview him. An interview is not a
mere formality. Although the written record may suggest that
continued detention is appropriate, an interview focused on
the unique circumstances and attributes of an individual can
alter that assessment. Indeed, in this case that has in
effect occurred. In October 2019, ICE reversed its decisions
to detain three aliens pending removal after hearing their
testimony in court. An interview would have permitted Kim to
explain, among other things, that: he had complied with the
conditions of his release for four years; he voluntarily
reported to ICE as ordered; he is devoted to his family and
has worked to support them; and he has become a committed
Catholic. If ...