Case 1:15-cv-00011-JEB Document 3 Filed 01/06/15 Page 1 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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R.I.L.R., J.L.S., K.L.S., Z.M.R., J.P.L.M.,

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W.M.C., C.M.A.C., and G.A.P.C., Karnes

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County Residential Center, 409 FM 1144,

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Karnes City, TX 78118, on behalf of

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themselves and others similarly situated,

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Plaintiffs,

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v.

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Jeh JOHNSON, Secretary of the Department of )

Homeland Security, in his official capacity, )

Washington, DC 20528; Thomas S.

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WINKOWSKI, Principal Deputy Assistant )

Secretary for United States Immigration and )

Customs Enforcement, in his official capacity, )

500 12th St., S.W., Washington, DC 20536; )

and Philip T. MILLER, U.S. Immigration and )

Customs Enforcement Assistant Director of )

Field Operations for Enforcement and

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Removal Operations, in his official capacity, )

500 12th St., S.W., Washington, DC 20536, )

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Defendants.

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Civil Action No. _________
Class Complaint for Injunctive and Declaratory Relief

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CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION
1. Plaintiffs R.I.L.R., J.L.S., K.L.S., Z.M.R., J.L.P.M., W.M.C., C.M.A.C., and G.A.P.C., and the class they seek to represent, are all mothers and their children who have fled severe violence in their countries—predominantly Honduras, Guatemala, and El Salvador—in order to seek asylum in the United States. Each Plaintiff and similarly situated individual has been found by an immigration officer or immigration judge (“IJ”) to have a “credible fear” of persecution, meaning there is a “significant possibility” she or he will be granted asylum. Nonetheless, Plaintiffs and other members of the proposed class remain in detention pursuant to a Department of Homeland Security (“DHS”) policy of locking them up and refusing to consider them for release on bond, recognizance, or other conditions (the “No-Release Policy”). DHS applies the No-Release Policy to Plaintiffs and those similarly situated not because they individually pose a danger to the community or flight risk that requires their detention, but in order to deter other Central American migrants from coming to the United States.
2. Immigration detention is civil; it is not intended as punishment. The purposes of immigration detention are to ensure that individuals appear for their removal proceedings (and for removal if it is ultimately ordered), and to protect the public from danger that might result from an individual’s release. Immigration detention is not designed to serve the goal of general deterrence, which is properly the function of the criminal justice system.
3. Prior to June 2014, DHS adhered to these traditional principles and generally did not detain families that arrived in the United States seeking asylum. In addition, it was DHS policy that individuals who, like Plaintiffs, passed a credible fear screening and were pursuing asylum claims before the immigration court, should generally be released from detention, as long
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as they could establish their identity and show that they were not a flight risk or danger to the community.
4. However, beginning in June 2014, faced with increased numbers of Central American migrants entering or seeking to enter the United States through the southwest border, DHS decided to start detaining families in large numbers. Thus, DHS has moved to expand its detention capacity from 96 beds to more than 3,000 beds, with plans for further expansion of the family detention system.
5. At the same time, DHS adopted a blanket No-Release Policy for Central American families in order to deter additional migrants from coming to the United States. Under this policy, even though Plaintiffs have all demonstrated a credible fear of persecution—entitling them to pursue their asylum claims before the immigration court—and even though they are eligible under the immigration laws to be considered for release on bond, recognizance, or other conditions, Defendants are refusing to consider them for release and instead ordering their continued detention. Defendants do so without making any individualized determination as to whether their detention is necessary to prevent flight or protect the community.
6. The clear consequence of DHS’s policy is that numerous individuals for whom detention serves no legitimate purpose are being deprived of their liberty. This detention in a prison-like setting exacerbates the trauma that Plaintiffs have already experienced in their countries of origin and during their flight to the United States. Indeed, mental health experts have condemned family detention because of the detrimental—and often permanent—effect it has on the psychological well-being of detained children.
7. The No-Release policy violates the Immigration and Nationality Act (“INA”), applicable regulations, and the Fifth Amendment to the United States Constitution, which
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prohibit the blanket detention of asylum-seekers for purposes of general deterrence. It is also arbitrary and capricious. The No-Release Policy thus constitutes illegal agency action that should be set aside and enjoined pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2). Plaintiffs do not seek an order of release, but simply ask the Court to invalidate the blanket No-Release Policy, and to require Defendants to provide them with the individualized custody determinations based on flight risk and danger to the community that the statute and regulations require.
8. The government may have policy reasons for wanting to deter migrants from fleeing to the United States to seek asylum, and it has a powerful array of tools with which to pursue such a policy. But a blanket No-Release Policy—which deprives families with bona fide asylum claims of their liberty in order to send a message to others—is not one of them.
JURISDICTION AND VENUE 9. This case arises under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. 10. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), and 5 U.S.C. § 702 (waiver of sovereign immunity). 11. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to this action occurred in this District.
PARTIES 12. Plaintiff R.I.L.R. is the mother of Plaintiffs J.L.S., who is seven years old, and K.L.S., who is 16 years old. R.I.L.R., J.L.S, and K.L.S. fled their home in El Salvador to escape abuse at the hands of R.I.L.R.’s domestic partner. They have been found to have a credible fear of persecution and have been referred for a hearing before an IJ to pursue their asylum claim.
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DHS has detained R.I.L.R., J.L.S, and K.L.S. without an individualized determination of flight risk and danger pursuant to its No-Release Policy. R.I.L.R., J.L.S, and K.L.S. are currently detained at Karnes County Residential Center in Karnes City, Texas.
13. Plaintiff Z.M.R. is the mother of Plaintiff J.L.P.M., who is 16 years old. Z.M.R. and J.L.P.M. fled their home in Honduras to escape physical violence and, in Z.M.R.’s case, rape at the hands of Z.M.R.’s former partner. Z.M.R. and J.L.P.M. have both been found to have a credible fear of persecution and have been referred for removal proceedings before an IJ to pursue their asylum claim. DHS has detained Z.M.R. and J.L.P.M. without an individualized determination of flight risk and danger pursuant to its No-Release policy. They are both currently detained at the Karnes County Residential Center in Karnes City, Texas.
14. Plaintiff W.M.C. is the mother of Plaintiffs C.M.A.C., who is five years old, and G.A.P.C., who is eight months old. Plaintiffs fled their native El Salvador to escape W.M.C.’s abusive partner, the father of C.M.A.C. W.M.C. was beaten, abused, and imprisoned in her own home, and the police refused to help her. W.M.C., C.M.A.C., and G.A.P.C. have been found to have a credible fear of persecution and have been referred for removal proceedings before an IJ to pursue their asylum claims. Pursuant to the No-Release Policy, DHS has detained W.M.C., C.M.A.C., and G.A.P.C. without an individualized determination of flight risk or danger to the community. W.M.C., C.M.A.C., and G.A.P.C. are currently detained at the Karnes County Residential Center in Karnes City, Texas.
15. Defendant Jeh Johnson is sued in his official capacity as the Secretary of DHS. In this capacity, he directs each of the component agencies within DHS, including United States Immigration and Customs Enforcement (“ICE”). Defendant Johnson is responsible for the
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administration of immigration laws and policies pursuant to 8 U.S.C. § 1103, including those laws and policies regarding the detention of migrant families.
16. Defendant Thomas S. Winkowski is sued in his official capacity as the Principal Deputy Assistant Secretary for ICE, the sub-agency that operates the government’s immigration detention system. In this capacity, Defendant Winkowski directs the administration of ICE’s detention policies and operations, including those policies and operations regarding the detention of migrant families.
17. Defendant Philip T. Miller is sued in his official capacity as ICE Assistant Director of Field Operations for Enforcement and Removal Operations (“ERO”). In this capacity, Defendant Miller oversees, directs, and coordinates policies and operations throughout the nation’s ERO field offices and sub-offices, including those policies and operations regarding the detention of migrant families.
CLASS ACTION ALLEGATIONS 18. Plaintiffs R.I.L.R., J.L.S., K.L.S, Z.M.R., J.L.P.M., W.M.C., C.M.A.C., and G.A.P.C. bring this action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) on behalf of themselves and all other persons similarly situated. The proposed class is defined as follows: All persons who: (a) have been or will be detained in ICE family detention facilities; (b) have been or will be determined to have a credible fear of persecution in their home country, see 8 U.S.C. § 1225(B)(v), § 1158; 8 C.F.R. § 208.13; and (c) are eligible for release on bond, recognizance, or other conditions, pursuant to 8 U.S.C. § 1226(a)(2) and 8 C.F.R. § 1236.1(8), but (d) have been or will be denied such release pursuant to DHS’s blanket policy of denying release to detained families without conducting an individualized determination of flight risk or danger to the community. 19. The class is so numerous that joinder of all members is impracticable. Over the past few months hundreds of Central American mothers and their children have been detained
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pursuant to DHS’s blanket No-Release Policy, and therefore satisfy the class definition. Many more individuals will become class members in the future.
20. All proposed class members are subject to the same policy: namely, DHS’s policy of categorically denying release to mothers and children detained at family detention centers under INA § 236(a), 8 U.S.C. § 1226(a), and its implementing regulations in order to deter the future migration of others to the United States. The legality of the No-Release Policy presents common questions of law and fact.
21. The claims of the representative parties are typical of the claims of the class. Plaintiffs and the class of individuals they seek to represent have all been detained pursuant to the No-Release Policy. The legal claims raised by Plaintiffs are identical to the class claims.
22. Plaintiffs are adequate representatives because they seek the same relief as the other members of the class: that Defendants be enjoined from applying the No-Release Policy and required to determine custody based on an individualized determination of each migrant’s flight risk and danger to the community under § 1226(a) and its implementing regulations. Plaintiffs do not have any interests adverse to those of the class as a whole.
23. The proposed class would be represented by lead counsel from the ACLU Immigrants’ Rights Project and Covington & Burling LLP, and by other co-counsel. Lead counsel have extensive experience litigating class action lawsuits, including lawsuits on behalf of immigration detainees.
24. Defendants have acted on grounds generally applicable to the class by violating § 1226(a) and its implementing regulations in their treatment of class members; enforcing a detention policy against class members that is arbitrary and capricious; and detaining class
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members in violation of their due process rights. Thus, injunctive and declaratory relief is appropriate with respect to the class as a whole.
25. All class members are subject to irreparable injury, because absent an order from this Court, they are or will be detained without an individualized determination of their flight risk and danger to the community, as required by § 1226(a), its implementing regulations, and the Due Process Clause.
BACKGROUND Defendants’ Expansion of Family Detention in Response to the Increase in Central American Migrants
26. In the past year, the number of Central Americans seeking to enter the United States through the southwest border—including families and children—has increased. The majority of these individuals are from Honduras, Guatemala and El Salvador. Many of these recent migrants, like Plaintiffs, are asylum seekers who are fleeing severe violence in their home countries.
27. In response to this increase in migration, the federal government has adopted “an aggressive deterrence strategy” that has included, among other things, a massive expansion of the family detention system. Thus, in June 2014, President Obama directed DHS to take “aggressive steps to surge resources to our Southwest border to deter both adults and children” from coming to the United States, “includ[ing] detention of adults traveling with children.”1
28. DHS primarily uses its family detention facilities to detain adult mothers and their children under the age of 18.
1 Letter from the President—Efforts to Address the Humanitarian Situation in the Rio Grande Valley Areas of Our Nation’s Southwest Border (June 20, 2014), available at http://www.whitehouse.gov/the-press-office/2014/06/30/letter-president-efforts-addresshumanitarian-situation-rio-grande-valle.
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29. Prior to June 2014, mothers who arrived in the United States with their children, and who sought asylum, were generally released into the community while they pursued their asylum claims. DHS did not detain migrant families in removal proceedings except for a small number of families held at the 96-bed Berks County Residential Center (“Berks”) in Leesport, Pennsylvania.
30. However, in the summer of 2014, DHS rapidly scaled up its family detention capacity as part of the government’s overall deterrence strategy. Thus, in June 2014, DHS opened a nearly 700-bed facility in Artesia, New Mexico (“Artesia”) to detain mothers and children from Central America.
31. DHS officials made clear that the detention of families at Artesia was intended to deter future migration. For example, Defendant DHS Secretary Jeh Johnson testified before the Senate Committee on Appropriations: “[T]here are adults who brought their children with them. Again, our message to this group is simple: we will send you back . . . . Last week we opened a detention facility in Artesia, New Mexico for this purpose.”2
32. In August 2014, DHS converted the Karnes County Residential Facility (“Karnes”) in Karnes County, Texas into a second family detention center with a 532-bed capacity. Here, too, DHS officials made clear that the detention of families at Karnes was meant to “deter others from taking the dangerous journey and illegally crossing into the United States.”3
2 Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee on Appropriations (July 10, 2014), available at http://www.dhs.gov/news/2014/07/10/statementsecretary-homeland-security-jeh-johnson-senate-committee-appropriations. 3 Press Statement, South Texas ICE Detention Facility to House Adults With Children (July 31, 2014), http://www.dhs.gov/news/2014/07/31/south-texas-ice-detention-facility-house-adultschildren; see also DHS Update on the Situation Along the Southwest Border (Aug. 7, 2014), http://www.dhs.gov/news/2014/08/07/dhs-update-situation-along-southwest-border (statement of
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33. DHS subsequently contracted to open a new 2,400-bed family detention facility in Dilley, Texas, which is scheduled to open in December 2014. In announcing the opening, DHS again stated that the detention of families would “deter[] others from taking the dangerous journey and illegally crossing into the United States.”4 In anticipation of its new facility in Dilley, DHS has begun phasing-out its use of Artesia as a family detention center and plans to cease its operations in December 2014.
34. DHS has begun expanding the Berks facility and intends to double its capacity. DHS is also seeking to expand the bed capacity at Karnes.
35. In total, the new family detention facilities will contain approximately 3,600 beds and result in the daily detention of approximately 36 times as many immigrant mothers and children as were detained in May 2014.
36. DHS currently detains only women heads of households and their children under the age of 18 at Artesia and Karnes, and plans to do the same at Dilley. Apart from Berks, the facilities do not hold fathers. Some fathers may be detained with their children at Berks, but the overwhelming majority of fathers are either released with their children or detained separately in one of ICE’s adult detention centers.
37. More than 50% of the 1,050 children who were booked into a family detention facility in FY2014 were six years old or younger. Many of these children have been infants or toddlers.
Secretary Johnson that “[w]e have built additional detention space for adults with children at Artesia, New Mexico, and another facility that was transitioned last week in Karnes City, Texas, and we are about to open an additional facility” as part of DHS’s “aggressive campaign to counter the rise of illegal migration into the Rio Grande Valley”). 4 Press Release, ICE to open additional facility in South Texas to house adults with children (Sept. 22, 2014), https://www.ice.gov/news/releases/ice-open-additional-facility-south-texashouse-adults-children.
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38. DHS’s rapid expansion of family detention is a drastic departure from prior policy, which generally had been not to detain families on a large scale. Defendants’ Blanket No-Release Policy for Detained Families with a Credible Fear of Persecution
39. In addition to dramatically expanding the family detention system, DHS has adopted a blanket No-Release Policy for Central American families who have established a credible fear of persecution and are eligible under the immigration laws for release on recognizance, bond, or other conditions. Pursuant to this policy, DHS detains these families without any determination of whether their detention is warranted based on flight risk or danger to the community. The purpose of such detention is to send a message of deterrence to other potential migrants from Central America—and not to further the traditional and legitimate purposes of civil immigration detention, which are to prevent migrants from fleeing pending their removal proceedings and to protect the public.
40. Families who are apprehended by U.S. Customs and Border Protection after entering the United States are initially subject to a streamlined removal process known as expedited removal. However, families that demonstrate a credible fear of persecution—meaning there is a “significant possibility” that they are entitled to asylum, 8 U.S.C. § 1225(b)(1)(B)(v)— before an asylum officer or IJ are referred from expedited removal and placed into standard removal proceedings under INA § 240, 8 U.S.C. § 1229. Under that system, an individual receives a full asylum hearing before an IJ and is entitled to an administrative appeal to the Board of Immigration Appeals (“BIA”) and to petition for review of any removal order in the court of appeals.
41. Because Plaintiffs and those similarly situated have all demonstrated a credible fear of persecution, they are now detained pursuant to the statute that generally governs the
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detention of noncitizens in removal proceedings: 8 U.S.C. § 1226(a). Section 1226(a) provides that, “pending a decision on whether the alien is to be removed from the United States[,]”
the Attorney General-(1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole . . . .
Id. 42. Under current law, the Secretary of DHS shares the Attorney General’s authority
under § 1226(a) to detain or release noncitizens during removal proceedings. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 441.
43. DHS makes a custody determination for each noncitizen detained under the statute, whereby it considers her for release on bond, recognizance, or other conditions. The implementing regulations provide that individual ICE officers “may, in the officer’s discretion, release an alien . . . under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8).
44. Nonetheless, as a matter of policy and practice, DHS categorically denies release to Plaintiffs and those similarly situated, without any individualized consideration of whether their detention is necessary to prevent flight risk or protect the community. As a result, DHS has denied release to nearly every family that is detained at a family detention facility and has passed a credible fear interview—regardless of individual flight risk or community danger.
45. DHS agents and attorneys have informed attorneys for detained families that the agency has adopted a blanket No-Release Policy for these detained families. The DHS officers
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have explained that their refusal to consider these families for release based on an individualized
determination of flight risk or community danger is dictated by agency policy.
46. DHS’s blanket No-Release Policy has become a matter of significant public
concern. Several members of Congress and the Inter-American Commission for Human Rights have criticized DHS’s policy as contrary to law and an unnecessary use of detention resources.5
Defendants’ Asserted Justifications for the No Release Policy
47. DHS has made the deterrence rationale for the No-Release Policy especially clear
in immigration court.
48. When ICE denies release or sets a bond the noncitizen cannot or does not pay, the
individual remains in custody. While the individual has no opportunity for further consideration
within DHS and no immediate recourse of any kind, the noncitizen has the option of requesting a
custody redetermination from an IJ.
49. When a Central American family challenges its detention before the IJ, DHS
uniformly defends its detention decision and opposes release on the ground that doing so would
encourage mass illegal migration. One IJ observed that “DHS attorneys are taking a blanket ‘no
5 See Letter to President Barack Obama from Rep. Zoe Lofgren et al. at 2 (Oct. 27, 2014) available at https://lofgren.house.gov/uploadedfiles/family_detention_letter_october_2014.pdf (criticizing the “no release” policy and stating that “there is no legal authority for using detention as [a] political tool” and that the immigration laws require “an individualized determination of flight risk and danger to the community when considering release”); Letter to Secretary of Homeland Security from Sen. Patrick J. Leahy et al. at 2 (Oct. 16, 2014), available at http://www.leahy.senate.gov/download/101614-to-johnson-re-dilley-detention-center (stating that “[t]he administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space”); see also Press Release, IACHR Wraps Up Visit to the United States of America (Oct. 2, 2014), http://www.oas.org/en/iachr/media_center/PReleases/2014/110.asp (expressing concern over “the government’s decision to impose generalized and automatic family detention”).
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bond or high bond’ position in custody proceedings.” In re Z-R and C-Z, at 4 (EOIR Oct. 7, 2014).
50. DHS submits in these proceedings a standard evidentiary packet, including declarations by two DHS officials: Defendant Philip T. Miller, ICE Assistant Director of Field Operations for Enforcement and Removal Operations (“ERO”), and Traci A. Lembke, ICE Assistant Director over Investigative Programs for Homeland Security Investigations.
51. As set forth in Defendant Miller’s declaration, DHS believes that implementation of a “‘no bond’ or ‘high bond’ policy” is necessary in order to “significantly reduce the unlawful mass migration of Guatemalans, Hondurans, and Salvadoran[s].” See Miller Dec. ¶ 9, available at http://www.aila.org/content/default.aspx?docid=49910.
52. Similarly, the declaration of Assistant Director Lembke explains that “[i]mplementing a ‘no bond’ or ‘high bond’ policy would help alleviate [the diversion of HSI’s resources from other investigative priorities] by deterring further mass migration.” See Lembke Dec. ¶ 20, available at http://www.aila.org/content/default.aspx?docid=49910.
53. There is no empirical evidence that detaining families that seek asylum serves the deterrence purpose identified by DHS. Indeed, Assistant Director Lembke admits that the largest group of migrants along the southwest border is “by far adults without children.” See Lembke Dec. ¶ 9 (noting that over 278,000 of the approximately 381,000 individuals encountered by CBP in 2014, were neither unaccompanied children nor family units). Id. But Defendants do not apply the No-Release Policy to adults traveling alone; rather, the policy applies only to families. Named Plaintiffs
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54. Plaintiffs and proposed class members are mothers and children who have been detained pursuant to Defendants’ policy even though they have been found to have credible fears of persecution, have been referred for asylum hearings, and are eligible for release on bond, recognizance, or other conditions under the INA and its implementing regulations. R.I.L.R., J.L.S., and K.L.S.
55. Plaintiff R.I.L.R. is the mother of Plaintiffs J.L.S., who is seven years old, and K.L.S., who is 16 years old. They are natives of El Salvador.
56. They fled El Salvador because of abuse at the hands of R.I.L.R.’s domestic partner, J.L.S. and K.L.S’s father, with whom they all lived. R.I.L.R. was afraid for her life and for the lives of her children. R.I.L.R.’s domestic partner is a gang member in the Mara Salvatrucha (MS or MS-13). He physically, verbally, and emotionally abused R.I.L.R. and threatened to kill J.L.S. and K.L.S.
57. Plaintiffs R.I.L.R., J.L.S., and K.L.S. came to the United States to seek refuge. They were arrested after entering the United States on October 30, 2014. They were then moved to the Karnes detention facility, where they remain to this day.
58. On approximately November 10 or 11, 2014, an asylum officer determined that Plaintiff R.I.L.R. has a credible fear of persecution that could entitle her and her children to asylum, and the family was referred for removal proceedings before an IJ.
59. Nonetheless, DHS ordered that Plaintiff R.I.L.R. and her children remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk and danger to the community. Since that time, R.I.L.R., J.L.S., and K.L.S. have been in detention for nearly six weeks. Plaintiffs R.I.L.R., J.L.S., and K.L.S have suffered poor conditions of detention. J.L.S., and K.L.S. are unable to eat or sleep well and K.L.S. wakes up crying that she
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wants to get out of detention. The time Plaintiffs R.I.L.R., J.L.S., and K.L.S. have spent in detention, where they do not feel safe, has compounded the trauma they suffered in El Salvador.
60. Plaintiff R.I.L.R.’s mother lives in Houston, Texas, has lawful status, and has agreed to house and support Plaintiff R.I.L.R. and her children. Plaintiff R.I.L.R.’s mother is willing to make sure Plaintiff R.I.L.R. and her children travel to any appointment with immigration authorities. Plaintiff R.I.L.R. understands that she and her children must abide by all orders by immigration officials and intends to do so.
61. Plaintiffs R.I.L.R, J.L.S., and K.L.S. have no criminal convictions and pose no threat to public safety. Z.M.R. and J.L.P.M.
62. Plaintiff Z.M.R. is the mother of Plaintiff J.L.P.M., who is 16 years old. They were both born in Honduras and, before fleeing to the United States, had always lived there. They fled Honduras with the help of members of their church because they were the victims of physical violence and, in Z.M.R.’s case, rape at the hands of Z.M.R.’s former partner, with whom she lived for 16 years.
63. Plaintiffs Z.M.R. and J.L.P.M. came to the United States to seek refuge. They were arrested after entering the United States on October 26, 2014. They were then moved to the Karnes detention facility, where they remain detained today.
64. On approximately November 6, 2014, an asylum officer determined that Plaintiff Z.M.R. has a credible fear of persecution that could entitle her and her family to asylum, and her family was referred for removal proceedings before an IJ.
65. Nonetheless, DHS ordered Plaintiffs Z.M.R. and J.L.P.M. to remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk or
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danger. Z.M.R. and J.L.P.M. have since been in detention for nearly six weeks. While in detention, Plaintiff J.L.P.M. has hardly eaten and has become nauseous, dizzy, and weak; doctors have been unable to assist. Plaintiff J.L.P.M. also has had trouble sleeping and is scared. Plaintiff Z.M.R. has become depressed.
66. Plaintiff Z.M.R. has a sister in North Carolina who has lawful status and would be a sponsor for her and her son while they are going through the asylum hearing process. Her sister is willing to help Plaintiff Z.M.R. travel to any appointment with ICE and EOIR. Plaintiff Z.M.R. is aware that it is critical that she and Plaintiff J.L.P.M. abide by all orders by immigration officials, and they would readily do so.
67. Plaintiffs Z.M.R. and J.L.P.M. have no criminal convictions and pose no threat to public safety. W.M.C., C.M.A.C., and G.A.P.C.
68. Plaintiff W.M.C. is the mother of Plaintiffs C.M.A.C., who is five years old., and G.A.P.C., who is eight months old. They were all born in El Salvador and, before fleeing to the United States, had always lived there. The family fled El Salvador because W.M.C.’s former partner, a gang member, physically abused W.M.C. brutally and unrelentingly. Her former partner also threatened C.M.A.C. It was impossible for the family to find protection in El Salvador.
69. Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. fled to the United States to seek refuge. They were arrested after entering the United States on October 2, 2014. They were then moved to the Karnes detention facility, where they remain detained today.
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70. On approximately November 28, 2014, an asylum officer determined that Plaintiff W.M.C. has a credible fear of persecution that could entitle her and her family to asylum, and her family was referred for removal proceedings before an IJ.
71. Nonetheless, DHS ordered Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. to remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk or danger.
72. Plaintiff W.M.C. has an uncle in New York who has lawful status and would be a sponsor for her and her daughters while they are going through the asylum hearing process. Her uncle is willing to help Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. travel to any appointment with ICE and EOIR. Plaintiff W.M.C. is aware that it is critical that she and Plaintiffs C.M.A.C., and G.A.P.C. abide by all orders by immigration officials, and they would readily do so. Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. have no criminal convictions and pose no threat to public safety.
73. Instead of releasing Plaintiffs R.I.L.R., J.L.S., K.L.S., Z.M.R., J.L.P.M., W.M.C., C.M.A.C., and G.A.P.C. to family sponsors in the United States, as DHS has done in the past with respect to similarly situated individuals, DHS has refused to release Plaintiffs on bond, recognizance, or other conditions. In fact, under DHS’s blanket No-Release Policy, DHS detained Plaintiffs not because of any individualized factors, such as flight risk or danger to the community, but rather to deter other migrants from coming to the United States. Irreparable Harm to Detained Families Caused by the No-Release Policy
74. Defendants’ detention of Plaintiffs and those similarly situated without any individualized determination of whether they pose a flight risk or danger to the community has caused them irreparable harm.
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75. Despite the availability of a custody determination by an IJ, Plaintiffs and those similarly situated are commonly subject to detention pursuant to an ICE custody decision for significant periods of time. For example, at Artesia, families represented by pro bono attorneys from the American Immigration Lawyers’ Association were detained an average of five weeks between their positive credible fear finding and ICE custody determination and their custody redetermination hearing before the IJ. In some cases, families were detained for more than three months before their IJ bond hearing. At Karnes, families have experienced between three to eight weeks of detention between their positive credible fear determination and custody redetermination hearing.
76. Detention interferes with mothers and children’s ability to pursue asylum and other immigration relief.
77. Detainees cannot effectively communicate with their attorneys and their consulates. At Karnes, and previously at Artesia, women have difficulty making free phone calls to their attorneys. They report that the cost of an outgoing domestic call is as high as five dollars for two minutes, a price that the detained asylum seekers generally cannot afford. Facility staff at Karnes also does not give phone messages to the detainees in a timely fashion.
78. Moreover, Plaintiffs and those similarly situated arrive in the country in a fragile mental state. Mothers are so terrified by gang and/or domestic violence in their home countries that they risk traveling with young children to the hope of safety in the United States. They often experience additional violence, including kidnapping and rape, during their journey. Detention in a prison-like setting only exacerbates the trauma experienced by these women and children.
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79. Rates of anxiety, depression and symptoms of post-traumatic stress disorder (“PTSD”) are extremely high among detained asylum seekers. The rates increase the longer a person stays in detention.
80. Detention is harmful to young children’s health and can inhibit their physical and psychological development for years after their release.
81. Detention is harmful to family dynamics, and in particular can compromise and undermine healthy parent-child relationships and the maintenance of parental authority.
82. Moreover, the particular conditions of ICE family detention facilities heighten the effects of detention. Detainees are supervised by a staff of mostly male guards. The gender dynamic makes the experience of detention more intimidating for women and young girls fleeing gender-based or sexual violence in their home countries.
83. Detained mothers at Karnes have reported sexual abuse at the hands of male guards at family detention centers. Guards have kissed, fondled, groped, and had sex with detainees in front of children.6
84. The prison-like conditions to which the asylum-seeking women and children are subject are not an appropriate or humane environment. This conclusion is shared by some of our nation’s most senior lawmakers, who have opposed the expansion of family detention in large part because of “the negative consequences of long-term detention on the physical and mental well-being of young children.”
CAUSES OF ACTION First Claim
(Administrative Procedure Act – Violation of the Immigration and Nationality Act) 6 Marisa Bono et al., Letter to Secretary of Homeland Security re: Complaints Regarding Sexual Abuse of Women in DHS Custody at Karnes Residential Center, Mexican American Legal Defense and Educational Fund 2-4 (Sept. 30, 2014), http://www.maldef.org/assets/pdf/2014-0930_Karnes_PREA_Letter_Complaint.pdf.
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85. All of the foregoing allegations are repeated and realleged as though fully set forth herein.
86. Pursuant to policy and practice, Defendants have categorically detained Plaintiffs and persons similarly situated in order to deter the future migration of others from Central America—not based on an individualized determination that detention is required because of flight risk or danger to the community.
87. DHS’s adoption of a blanket No-Release Policy constitutes final agency action for which there is no other adequate remedy. This action governs custody determinations made by ICE agents at Berks and Karnes, and will govern those made at Dilley or any other facility that DHS should choose to use to detain families in the future. Because of this policy, Plaintiffs and those similarly situated have been denied an individualized custody determination and continue to be detained for reasons of general deterrence.
88. The No-Release Policy violates INA § 236(a), 8 U.S.C. § 1226(a). Immigration detention under this statute must be based on an individualized determination of flight risk and danger to the community—not general deterrence goals.
Second Claim (Administrative Procedure Act – Due Process Clause of the Fifth Amendment to the United
States Constitution) 89. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 90. The No-Release Policy requires the detention of Plaintiffs and individuals similarly situated without an individualized determination of flight risk and danger, but rather to deter other migrants from coming to the United States. This policy violates the Due Process Clause.
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91. The No-Release Policy also imposes detention on individuals that is not reasonably related to its goal of deterring other migrants from coming to the United States. For this additional reason, the policy violates the Due Process Clause.
Third Claim (Administrative Procedure Act – Violation of Regulations) 92. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 93. The blanket No-Release policy is arbitrary and capricious because it impermissibly deviates from DHS’s own regulations. By regulation, the agency has decided that individual ICE officers have discretion to release noncitizens, as long as the noncitizen can demonstrate, “to the officer’s satisfaction,” that she is not a flight risk or a danger to the community. 8 C.F.R. § 1236.1(c)(8). The blanket No-Release Policy nullifies this regulation, replacing an officer’s individualized, discretionary determination with a requirement of detention.
Fourth Claim (Administrative Procedure Act – Arbitrary and Capricious) 94. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 95. The No-Release Policy is an arbitrary and capricious means of deterring mass migration. Defendants can provide no rational connection between the policy, as it applies to Plaintiffs and those similarly situated, and the desire to deter a mass influx of migrants.
Fifth Cause of Action (Due Process Clause of the Fifth Amendment to the United States Constitution) 96. All of the foregoing allegations are repeated and realleged as though fully set forth herein.
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97. The No-Release Policy requires the detention of Plaintiffs without an individualized determination of flight risk and danger to the community, but rather to deter other migrants from coming to the United States. This policy thus violates the Due Process Clause.
98. The No-Release Policy also imposes detention on individuals that is not reasonably related to its goal of deterring other migrants from coming to the United States. For this additional reason, the policy violates the Due Process Clause.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: a. Certify this case as a class action lawsuit, as proposed herein, appoint Plaintiffs as class representatives, and appoint the undersigned counsel as class counsel; b. Declare that the No-Release Policy is contrary to law and arbitrary and capricious; c. Enter an order enjoining Defendants from continuing to apply the unlawful NoRelease Policy at family detention facilities and requiring Defendants to consider Plaintiffs and proposed class members for release on bond, recognizance, or other conditions, based on an individualized determination of flight risk and danger to the community; d. Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice Act, and any other applicable statute or regulation; and e. Grant such further relief as the Court deems just, equitable, and appropriate.
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

R. I. L-R, et al., Plaintiffs, v.
JEH CHARLES JOHNSON, et al., Defendants.

Civil Action No. 15-11 (JEB)

MEMORANDUM OPINION The United States saw a surge in immigration in the summer of 2014 as people fled increased lawlessness in Honduras, Guatemala, and El Salvador. Plaintiffs (and other members of the class they seek to represent) are mothers and their minor children who escaped violence and persecution in these countries to seek asylum in the United States. After entering this country unlawfully and being apprehended, each was found to have a “credible fear” of persecution, meaning there is a significant possibility that she will ultimately be granted asylum here. Although, in the past, individuals in this position were generally released while their asylum claims were processed, Plaintiffs were not so lucky. Instead, for each family, Immigration and Customs Enforcement determined that interim detention was the appropriate course. Chasing liberty, Plaintiffs turned to the courts. They filed suit on January 6, 2015, naming the Secretary of the Department of Homeland Security and two ICE officials as Defendants. The Complaint alleges that Plaintiffs’ detention resulted from an unlawful policy that DHS adopted in June 2014 in response to the immigration spike. Pursuant to that policy, Plaintiffs claim, DHS is detaining Central American mothers and children with the aim of
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deterring potential future immigrants. According to Plaintiffs, such detention violates the Fifth Amendment to the United States Constitution, the Immigration and Nationality Act, the Administrative Procedure Act, and applicable DHS regulations.
They now seek a preliminary injunction to prevent DHS from applying this policy until a final determination has been reached on the merits of this action. Finding that the circumstances here merit that extraordinary form of relief, the Court will grant Plaintiffs’ Motion. I. Background
A. Statutory and Regulatory Framework Unlawful presence in the United States does not itself constitute a federal crime, although it can trigger the civil remedy of removal. See Arizona v. United States, 132 S. Ct. 2492, 2505 (2012); Ortega Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012); 8 U.S.C. §§ 1182(a)(6)(A)(I), 1227(a)(1)(B), (C). The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., sets forth the conditions under which a foreign national may be admitted to and remain in the United States and grants the Department of Homeland Security the discretion to initiate removal proceedings. See, e.g., id. §§ 1181-1182, 1184, 1225, 1227-1229, 1306, 1324-25. Under the INA, a foreign national apprehended shortly after entering the United States without valid documentation is initially subject to a streamlined removal process dubbed “expedited removal.” See id. § 1225(b)(1)(A)(i)-(iii); 69 Fed. Reg. 48,877 (Aug. 11, 2004). If, however, she can demonstrate a “credible fear” of persecution in her home country during the initial screening, see 8 U.S.C. § 1225(b)(1)(A) & (B); 8 C.F.R.§ 208.30(d)-(g), she is transferred to “standard” removal proceedings pursuant to 8 U.S.C. § 1229a. Once reclassified, the foreign national is entitled to a full asylum hearing before an immigration court, and, if unsuccessful, she may file an administrative appeal with the Board of Immigration Appeals (BIA). See 8 C.F.R. §
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208.30(f); 8 U.S.C. § 1225(b)(1)(B)(ii). She may also petition for review of any removal order entered against her in the appropriate court of appeals. See 8 U.S.C. § 1252(a)-(b).
This case revolves around what happens to these aliens between their initial screening and these subsequent proceedings. Detention authority over such individuals is governed by 8 U.S.C. § 1226(a), which instructs:
Pending a decision on whether the alien is to be removed from the United States[,] . . . the Attorney General—
(1) may continue to detain the arrested alien; and (2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole . . . . Per the Homeland Security Act of 2002, the Secretary of DHS shares the Attorney General’s authority under § 1226(a) to detain or release noncitizens during the pendency of removal proceedings. See Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192. By regulation, the Secretary’s authority is delegated to individual officers within Immigration and Customs Enforcement, a component of DHS. See 8 C.F.R. § 1236.1. For each noncitizen who passes the threshold “credible-fear” screening, an ICE officer is tasked with making an initial custody determination. The officer “may, in [his] discretion, release an alien . . . under the conditions at [8 U.S.C. § 1226(a)(2)(A) & (B)]; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8).
If ICE denies release or sets bond that the noncitizen cannot pay, she remains in custody pending a final asylum determination. While the regulations do not provide for further review within DHS, the alien has the options of requesting a custody redetermination from an
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immigration judge within the Department of Justice and appealing an adverse redetermination decision to the Board of Immigration Appeals. See id. §§ 1003.19(a), 1236.1(d). DHS may also appeal the IJ’s custody decision and may automatically stay the decision (and thus the individual’s release) pending the appeal. See id. §§ 1003.19(f), 1003.19(i)(2).
B. Plaintiffs’ Detention The ten named Plaintiffs and other members of the class they seek to represent are mothers accompanied by minor children who fled severe violence and persecution in their Central American home countries. See Am. Compl., ¶ 1. In the fall of 2014, after crossing the border and entering the country without documentation, each family unit was apprehended by U.S. Customs and Border Protection (CBP). See id., ¶¶ 41, 58, 67, 75, 83. All crossed the border with the intent to seek asylum. See id., ¶ 27. None has a criminal history, and all have family members residing in the United States who stand ready to provide shelter and support through their immigration proceedings. See id., ¶¶ 62-63, 70-71, 78-79, 87-88. Although initially referred to expedited removal proceedings, each subsequently went on to establish a “credible fear” of persecution. Id., ¶¶ 42, 59, 68, 76, 84. That showing made, Plaintiffs were transferred to standard removal proceedings. Id. It is here that their quarrel with Defendants begins. Each and every family was refused bond after an ICE custody hearing and was detained at the Karnes County Residential Facility in Texas. See Am. Compl., ¶¶ 60, 69, 77, 85; Pl. Mot at 10-11. Although all were subsequently released several weeks or months later as a result of IJ custody-redetermination hearings, see Def. Opp. & Mot., Exhs. A-C (IJ Custody Redetermination Hearings), ICE’s initial denials form the crux of Plaintiffs’ case.
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In years past, say Plaintiffs, ICE did not generally detain families apprehended in the interior of the United States who were found to have a credible fear of persecution. Instead – as explained by experienced immigration practitioners – after an individualized assessment of their potential flight risk and danger to the community, the majority of such families was released on bond or their own recognizance. See, e.g., Pl. Mot., Exh. 1 (Declaration of Michelle Brané), ¶¶ 11-12; id., Exh. 4 (Declaration of Barbara Hines), ¶¶ 8-15. Plaintiffs claim that an abrupt aboutface occurred in June 2014, when DHS adopted an unprecedented “No-Release Policy” in response to increased immigration from Central America. According to Plaintiffs, the NoRelease Policy directs ICE officers to deny release to Central American mothers detained with their minor children in order to deter future immigration – that is, to send a message that such immigrants, coming en masse, are unwelcome. See Brané Decl., ¶¶ 12, 22-23; Hines Decl., ¶¶ 13-15. They claim that this policy led to ICE’s denial of release in each of their cases.
On January 6, 2015, Plaintiffs brought a class-action suit in this Court, alleging, inter alia, that the No-Release Policy violates the Immigration and Nationality Act and the Due Process Clause of the Constitution. They further claim that the policy is contrary to law and arbitrary and capricious, and thus constitutes illegal agency action under the Administrative Procedure Act. Presently before the Court are Plaintiffs’ Motions for a preliminary injunction barring the continued implementation of the No-Release Policy during the pendency of this suit, as well as for provisional class certification for purposes of the requested injunction. Defendants oppose both Motions and separately seek dismissal of the suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In keeping with the expedited nature of a preliminaryinjunction proceeding, the parties filed briefs on an accelerated timetable, and the Court held a hearing on February 2, 2015. This Opinion now follows.
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II. Legal Standard A preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 129 S. Ct. 365, 376 (2008). The plaintiff “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 374. When moving for a preliminary injunction, the plaintiff “bear[s] the burdens of production and persuasion.” Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 281 (D.D.C. 2005). To meet these burdens, he may rely on “evidence that is less complete than in a trial on the merits,” NRDC v. Pena, 147 F.3d 1012, 1022-23 (D.C. Cir. 1998), but the evidence he offers must be “credible.” Qualls, 357 F. Supp. 2d at 281.
Before the Supreme Court’s decision in Winter, courts weighed the preliminaryinjunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another. See Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a “more demanding burden” requiring a plaintiff to independently demonstrate both a likelihood of success on the merits and irreparable harm. See Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011); see also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). Because the Court finds that Plaintiffs in this case have met that higher standard, it need not tarry over whether Winter sounded a death knell for the sliding-scale analysis.
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III. Analysis At the heart of Plaintiffs’ suit is their assertion that DHS has adopted an unlawful
detention policy aimed at deterring mass migration. In their Amended Complaint, this claim finds voice in five distinct grounds for relief. Four arise under the APA – specifically, Plaintiffs allege that DHS policy: (1) violates the INA and is thus contrary to law under § 706(2)(A) of the APA; (2) infringes on their rights to due process and is therefore contrary to law under § 706(2)(A); (3) deviates from DHS regulations, rendering it arbitrary and capricious under the APA; and (4) constitutes an arbitrary and capricious means of deterring mass migration. Plaintiffs also raise a freestanding due-process claim under the Fifth Amendment. Because the Court concludes that Plaintiffs’ first theory, standing alone, warrants preliminary injunctive relief, it will focus its attention accordingly.
Defendants mount a robust defense to that claim, erecting various jurisdictional and substantive obstacles to relief. Although the Court would ordinarily ensure its jurisdiction before turning to the merits, it is confronted here with an underlying factual issue common to both endeavors – namely, the very existence and nature of the DHS policy challenged by Plaintiffs. Defendants adamantly deny that any reviewable policy exists and maintain, as a consequence, that Plaintiffs’ suit can proceed no farther.
Given this preliminary controversy, the Court will begin with a discussion of what, if any, policy is actually in place. Finding one extant, it will next move to an analysis of the myriad jurisdictional hurdles that impede Plaintiffs, including how provisional class certification figures into the mix. Having cleared these considerable shoals, the Court will last navigate the merits of injunctive relief.
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A. Existence of a Policy Plaintiffs sketch two variants of the policy they seek to enjoin. The first – that DHS adopted a categorical policy in June 2014 of denying release to all asylum-seeking Central American families in order to deter further immigration, see Pl. Mot. at 6-7 – is hotly disputed by Defendants as a factual matter. According to the Government, the evidence reveals that ICE releases some such families after their initial custody determinations, debunking Plaintiffs’ claim of a blanket policy. See Def. Opp. & Mot. at 13-17. This point has some force. According to records maintained by the ICE Statistical Tracking Unit, ICE released 32 of the 2,602 individuals booked into a family residential center between June 1, 2014, and December 6, 2014, as a result of individualized custody determinations. See Def. Reply, Exh. A (Amended Declaration of Marla M. Jones, ICE Officer, Statistical Tracking Unit), ¶ 6. Plaintiffs, moreover, expressly admit that DHS’s alleged policy has not resulted in universal detention. See Am. Compl., ¶ 45 (“DHS has denied release to nearly every family that is detained at a family detention facility and has passed a credible fear interview.”) (emphasis added); see also Pl. Mot., Exh. 5 (Declaration of Allegra McLeod, Associate Professor of Law at Georgetown University), ¶ 6 (referring to ICE’s “nearly uniform” refusal to grant release) (emphasis added). Although these materials certainly do not reflect a large body of favorable release determinations, the Court is reluctant to find an across-the-board No-Release Policy when it appears that – at least in some small number of cases – ICE does grant bond on the basis of individualized considerations. Plaintiffs, however, have also articulated a slightly narrower formulation of the relevant policy. In this alternate version, they maintain that DHS policy directs ICE officers to consider deterrence of mass migration as a factor in their custody determinations, and that this policy has
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played a significant role in the recent increased detention of Central American mothers and children. See Pl. Opp. & Rep. at 9-10. This second characterization finds ample support in the record.
Various immigration experts and attorneys have averred that, based on their firsthand knowledge and collection of data, ICE has been largely denying release to Central American mothers accompanied by minor children since June 2014. For example, Michelle Brané – an attorney with more than 25 years of experience working on immigration and human-rights issues who currently serves as the Director of the Migrant Rights and Justice program at the Women’s Refugee Commission – attests that “despite clear authority to release families from detention after a credible fear has been established, ICE has released only a handful of [Central American] families” since the summer of 2014. Brané Decl., ¶ 23; see also, e.g., Hines Decl., ¶ 12 (“Since DHS began detaining families at the Karnes City facility [in August 2014], DHS has insisted on categorical detention of all of the families who are brought to the facility.”); id., ¶ 22 (“[B]y the summer of 2014, it became clear . . . that ICE was implementing a blanket No-Release policy precluding the release of families from detention. Overwhelmingly families remained in detention post-credible fear findings.”); McLeod Decl., ¶¶ 8-11 (representing that ICE denied release for 99 percent of families detained at the Artesia Detention Center who were represented by pro bono attorneys from the American Immigration Lawyers Association). Before June 2014, such families were routinely released. See, e.g., Hines Decl., ¶ 8 (“Prior to the summer of 2014, families apprehended near the border without immigration documents were generally briefly detained by U.S. Customs and Border Protection and then released. DHS did not generally take custody of families.”); Brané Decl., ¶ 12 (referring to the post-June 2014 increase in detention as “contrary to past practice”). It appears, moreover, that this increase in detention has not been
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observed with regard to adults traveling without children. See Hines Decl., ¶ 16 (noting that adults who are detained without children and who pass a credible-fear screening are routinely released); Brané Decl., ¶ 25 (same).
Defendants have essentially conceded that the recent surge in detention during a period of mass migration is not mere happenstance, but instead reflects a design to deter such migration. Indeed, they state that ICE officials are required to follow the binding precedent contained in Matter of D-J-, 23 I. & N. Dec. 572 (2003), in which then-Attorney General John Ashcroft held that deterrence of mass migration should be considered in making custody determinations under 8 U.S.C. § 1226(a). See Def. Reply at 4; see also Matter of D-J-, 23 I & N. Dec. at 572 (“[I]t is appropriate to consider national security interests implicated by the encouragement of further unlawful mass migrations [when making custody determinations].”); see also id. at 578-79 (agreeing with INS that “the threat of further mass migration” constitutes a “reasonable foundation” for denying release). Defendants admit, moreover, that this factor is considered “where applicable,” and that an immigration “influx across the southwest border” of the United States last year “further support[s] the use of this factor in making custody determinations since June 2014.” Def. Reply at 4.
The Government confirmed these representations during oral argument. When asked by the Court, “So it’s fair, you will agree that ICE is considering national security and . . . [in] the way I’m talking about, namely, not the threat to national security posed by the individual but the threat that, the deterrence, an absence of deterrence would cause to national security,” the Government responded, “I would say . . . consistent with Matter of D. J. that ICE is considering whether, if this individual – and they will make an individualized determination for that
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individual, if this individual is part of a mass migration, if they fall under this decision in the Matter of D.J., that that factor would be considered.” Oral Arg. Tr. at 34.
In addition, although ICE officials are not required to explain the contemporaneous basis for their custody determinations, DHS has defended its recent denials of release in immigration court by asserting that a “‘no bond’ or ‘high bond’ policy would significantly reduce the unlawful mass migration of Guatemalans, Hondurans, and Salvadoran[s].” Hines Decl., Exh. A. (Immigration Court Declaration of Phillip T. Miller, ICE Assistant Director of Field Operations for Enforcement and Removal Operations), ¶ 9. Members of Congress, in turn, have recognized DHS’s adoption of a “‘no-bond/high bond’ policy for families in detention based upon the argument that denying bond is necessary to deter additional migration.” Letter from Rep. Lofgren, et al. to President Obama, at 1 (Oct. 27, 2014), available at https://lofgren.house.gov/uploadedfiles/family_detention_letter_october_2014.pdf; see also id. (“In recent months, the Department of Homeland Security (DHS) has implemented an expansive immigrant family detention policy in response to this summer’s spike in Central American migrants apprehended along our southwest border.”).
The Court, accordingly, is satisfied that ICE has a policy of taking deterrence of mass migration into account in making custody determinations, and that such consideration has played a significant role in the large number of Central American families detained since June 2014, including the named Plaintiffs.
B. Justiciability Informed by its conclusion that such a policy does, in fact, exist, the Court can turn to the bevy of jurisdictional objections raised by Defendants. Specifically, the Government alleges that Plaintiffs’ claims are barred by 8 U.S.C. § 1226(e), that they lack standing to bring this suit, and
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that their claims are now moot. The Court will analyze these three issues seriatim and then briefly address three ancillary issues raised by Defendants – namely, that 8 U.S.C. § 1252(f)(1) bars Plaintiffs’ suit; that the disputed policy does not constitute “final” agency action; and that the APA does not provide a cause of action for Plaintiffs’ claims. On the Court’s scorecard, the Government goes 0 for 6.
1. Section 1226(e) The Government’s principal challenge to the justiciability of Plaintiffs’ suit rests on 8 U.S.C. § 1226(e). It asserts that “the plain and unambiguous language” of that provision precludes this Court from exercising subject-matter jurisdiction here. See Def. Opp. at 7. Section 1226(e) provides:
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. According to the Government, this broad provision “deprive[s] federal courts of jurisdiction to review discretionary detention decisions made by the Executive Branch like the ones Plaintiffs challenge here.” Def. Opp. at 7. Defendants are half right and half wrong. They are correct insofar as this Court is clearly barred from reviewing the Executive Branch’s exercise of discretion in determinations made under § 1226(a). But Defendants’ belief that this principle precludes jurisdiction here is mistaken. This is because Plaintiffs do not seek review of DHS’s exercise of discretion. Rather, they challenge an overarching agency policy as unlawful under the INA, its implementing regulations, and the Constitution. That is, they challenge DHS policy as outside the bounds of its delegated discretion. As they rightly point out, it “is not within DHS’s ‘discretion’ to decide
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whether it will be bound by the law.” Pl. Opp. & Rep. at 4; see Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (Plaintiffs “challenge the extent of the Attorney General’s authority under the post-removal-period detention statute. And the extent of that authority is not a matter of discretion.”); Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 155 (3d Cir. 2013) (“Nothing in 8 U.S.C. § 1226(e) prevents us from deciding whether the immigration officials had statutory authority to impose mandatory detention. . . . [W]hether the officials had authority is not a ‘discretionary judgment.’”); Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir. 1986) (“A government official has no discretion to violate the binding laws, regulations, or policies that define the extent of his official powers.”). The Court will not construe § 1226(e) to immunize an allegedly unlawful DHS policy from judicial review. See Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 671-72 (1986) (“[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.”).
The out-of-circuit authority cited by Defendants does not alter this analysis. Three of the cases on which they rely – Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008); Pisciotta v. Ashcroft, 311 F. Supp. 2d 445, 453 (D.N.J. 2004); and Hatami v. Chertoff, 467 F. Supp. 2d 637, 639-40 (E.D. Va. 2006) – held only that discretionary determinations granting or denying bond or parole in an individual case are not subject to judicial review. This is hardly controversial. None of the three, however, suggested that § 1226(e) precludes review of the sort of challenge Plaintiffs bring here. The fourth – Loa-Herrera v. Trominski, 231 F.3d 984 (5th Cir. 2000) – does, in fact, take a more sweeping view of the jurisdictional bar imposed by that provision. See id. at 990-91 (“Congress, however, has denied the district court jurisdiction to adjudicate deprivations of the plaintiffs’ statutory and constitutional rights [in determinations
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made under 1226(a)].”). The Fifth Circuit, however, provided little explanation of its reasoning, and, as outlined above, the Court is not persuaded by such an expansive interpretation of § 1226(e). It thus declines to follow Loa-Herrera here.
2. Standing Defendants next attack Plaintiffs’ standing to bring suit. To establish standing, a plaintiff “must, generally speaking, demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-472 (1982)). Standing is assessed “upon the facts as they exist at the time the complaint is filed.” Natural Law Party of U.S. v. Fed. Elec. Comm’n, 111 F. Supp. 2d 33, 41 (D.D.C. 2000). The Government first notes that Plaintiffs’ alleged injury is the detention they experienced due to ICE’s initial denial of release. Yet, by the time their Amended Complaint was filed, eight of the ten named Plaintiffs had been released from detention as a result of IJ custody redeterminations. See Am. Compl., ¶¶ 65, 73, 81, 90. Defendants claim that such release means that Plaintiffs’ injuries are unredressable through injunctive relief. See Def. Opp. & Mot. at 11. Such a position, however, ignores the obvious flaw apparent on its face: the remaining two Plaintiffs had not yet been released when the Amended Complaint was filed. Because those two Plaintiffs – G.C.R. and J.A.R. – were still detained at the time suit was initiated, the status of the other Plaintiffs is immaterial. See Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (“To establish jurisdiction, the court need only find one plaintiff who has standing.”).
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Defendants further assert that the relief sought by Plaintiffs would not clearly redress the harm they allege. See Def. Opp. & Mot. at 11. According to the Government, “Although Plaintiffs contest Defendants’ consideration of certain factors in ICE’s custody determinations, Plaintiffs provide no basis to find that a different consideration of these factors would ‘likely’ result in the release of any individual Plaintiff.” Id. at 12 (quoting America’s Community Bankers v. FDIC, 200 F.3d 822, 827 (D.C. Cir. 2000) (Plaintiffs must demonstrate redressability by “establish[ing] that it is likely, as opposed to merely speculative, that a favorable decision by this court will redress the injury suffered.”)). Again, the evidence is to the contrary. This suit seeks to enjoin consideration of a factor that, at the very least, diminishes the likelihood of Plaintiffs’ release. The Government has admitted that ICE applies this factor in its custody determinations, and Plaintiffs have demonstrated that such consideration underlies ICE’s nearuniversal denial of release to Central American families since June 2014. See Part III.A, supra. Because Plaintiffs fall within that class of individuals, it is in no sense “speculative” that enjoining ICE’s consideration of this factor would render Plaintiffs’ release far more likely. As this Circuit has emphasized, “A significant increase in the likelihood that [a litigant] would obtain relief that directly redresses the injury suffered will suffice for standing.” Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 7 (D.C. Cir. 2005) (internal quotation marks omitted); accord Lichoulas v. FERC, 606 F.3d 769, 775 (D.C. Cir. 2010).
3. Mootness Defendants next advance the corollary argument that, regardless of initial standing, all of Plaintiffs’ claims are now moot. As explained by the Supreme Court, “[T]he doctrine of mootness can be described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue
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throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotations omitted). A case is considered moot either “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969); see also Pharmachemie B.V. v. Barr Labs., 276 F.3d 627, 631 (D.C. Cir. 2002) (case becomes moot when “events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-thanspeculative chance of affecting them in the future.”). Because its jurisdiction is limited, “a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). Noting that all the named Plaintiffs have, at this juncture, been released from custody pursuant to custody redeterminations before immigration judges, Defendants assert that there is “no further relief that this Court can provide them” and that the case is, therefore, moot. See Def. Opp. & Mot. at 13.
The named Plaintiffs acknowledge, as they must, that they have all been released. They explain, however, that most of the asylum-seeking mothers and children being detained by ICE are ultimately released during IJ custody redeterminations, and that the period of detention between ICE’s initial denial of release and such redeterminations, while significant, has proven “too short for any particular plaintiff to seek meaningful injunctive relief on her or his own behalf.” Pl. Supp. Mem. at 2. By the time any particular plaintiff files suit, the issue is briefed, and a hearing is held, she will, in all likelihood, be released from custody by an IJ (who is not bound by DHS policy). See id. Plaintiffs argue that “[a] preliminary injunction would thus only be effective to prevent the irreparable harm that DHS’s No-Release Policy inflicts on other asylum-seeking families.” Id.
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To achieve meaningful relief with respect to DHS’s allegedly unlawful policy, accordingly, they sensibly ask this Court to provisionally certify a class. See Sosna v. Iowa, 419 U.S. 393, 401 (1975) (holding that a class action is not mooted by the “intervening resolution of the controversy as to the named plaintiffs”); Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (Although “the claims of the named plaintiffs have since been rendered moot, . . . by obtaining class certification, plaintiffs preserved the merits of the controversy for our review.”); accord DL v. D.C., 302 F.R.D. 1, 19 (D.D.C. 2013).1 And, because certification ordinarily requires the existence of a live claim, Plaintiffs further argue that the proposed class is “inherently transitory.” Pl. Reply at 7. Certification, therefore, should be deemed to “relate back” to the time the complaint was filed. See id. The Court turns first to whether class certification is appropriate under the circumstances presented here and then considers the question of relation back. Only in resolving these issues can Defendants’ mootness argument be addressed.
a. Class Certification To certify a class under Rule 23, a plaintiff must show that the proposed class satisfies all four requirements of Rule 23(a) and one of the three Rule 23(b) requirements. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548, 2551 (2011). Rule 23(a) states that a class may be certified only if: (1) it is so numerous that joinder of all members is impracticable (“numerosity”), (2) there are questions of law or fact common to the class (“commonality”), (3) the claims or defenses of the representative are typical of those of the class (“typicality”), and (4) the class representative will fairly and adequately protect the interests of the class (“adequacy of representation”). Plaintiffs must show, in addition, that: (1) the prosecution of separate actions
1 Given the expedited nature of the instant proceedings, the parties have agreed to defer briefing on the merits of final class certification until after the resolution of Plaintiffs’ request for preliminary injunctive relief.
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by or against individual members of the class would create a risk of inconsistent adjudications, (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole, or (3) questions of law or fact common to the members of the class predominate over any questions affecting only individual members. See Fed. R. Civ. P. 23(b)(1)-(3).
In deciding whether class certification is appropriate, a district court must ordinarily undertake a “rigorous analysis” to see that the requirements of the Rule have been satisfied. See Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 161 (1982). “Rule 23 does not set forth a mere pleading standard.” Wal-Mart, 131 S. Ct. at 2551. Rather, the party seeking class certification bears the burden of “affirmatively demonstrat[ing] his compliance with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. (emphasis in original).
Plaintiffs, however, seek only provisional class certification at this juncture. In granting such provisional certification, the Court must still satisfy itself that the requirements of Rule 23 have been met. See Berge v. United States, 949 F. Supp. 2d 36, 49 (D.D.C. 2013) (citing Fed. R. Civ. P. 23 Advisory Committee Notes 2003 Amendments). Its analysis is tempered, however, by the understanding that “such certifications may be altered or amended before the decision on the merits.” Bame v. Dillard, No. 05-1833, 2008 WL 2168393, at *5 (D.D.C. May 22, 2008) (internal quotation marks omitted).
Plaintiffs’ proposed class consists of Central American mothers and children who: (a) have been or will be detained in ICE family detention facilities [since June 2014]; (b) have been or will be determined to have a credible fear of persecution in their home country, see 8 U.S.C. § 1225(b)(1)B)(v), § 1158; 8 C.F.R. § 208.31; and (c) are eligible for
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release on bond, recognizance, or other conditions, pursuant to 8 U.S.C. § 1226(a)(2) and 8 C.F.R. § 1236.1(c)(8), but (d) have been or will be denied such release pursuant to DHS’s blanket policy of denying release to detained families without conducting an individualized determination of flight risk or danger to the community. Pl. Supp. Mem. at 5. As framed, the class – particularly subsection (d) – is in some tension with the Court’s earlier discussion. To recap, Plaintiffs have not satisfactorily established that DHS has a “blanket policy of denying release to detained families without conducting an individualized determination of flight risk or danger to the community.” The Court cannot, therefore, certify a class defined in reference to that formulation. It recognizes, however, Plaintiffs’ clear intent to define the proposed class in relation to the policy they challenge and, in addition, that Plaintiffs have clearly articulated and established an alternative version of DHS’s policy. See Part III.A, supra. In light of the expedited nature of the briefing in this case and the provisional nature of certification sought, the Court believes it appropriate to amend Plaintiffs’ proposed class to incorporate their alternate formulation. Subsection (d), accordingly, is edited to read: “(d) have been or will be denied such release after being subject to an ICE custody determination that took deterrence of mass migration into account.” So construed, the Court analyzes Plaintiffs’ request for class certification under Rule 23. It will begin by quickly addressing the first and fourth requirements of Rule 23(a), neither of which Defendants contest. It then analyzes the second and third specifications together, both of which are disputed. Finally, it considers whether Plaintiffs have satisfied their burden under Rule 23(b).
i. Numerosity The numerosity requirement is determined case by case and “‘imposes no absolute
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limitations.’” Bynum v. District of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003) (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980)). Plaintiffs need not prove exactly how many people fall within the class to merit certification. See, e.g., Kifafi v. Hilton Hotels Retirement Plan, 189 F.R.D. 174, 176 (D.D.C. 1999) (“So long as there is a reasonable basis for the estimate provided, the numerosity requirement can be satisfied without precise numbers.”). As a general benchmark, “courts have found that a proposed class consisting of at least forty members” satisfies this requirement. Johnson v. District of Columbia, 248 F.R.D. 46, 52 (D.D.C. 2008); accord Taylor v. District of Columbia Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007); Bynum, 214 F.R.D. at 3.
Defendants do not challenge the numerosity of the proposed class, and rightly so. Plaintiffs have provided ample evidence that a large number of Central American families – well over 40 – have been detained since June of 2014. See, e.g., McLeod Decl., ¶¶ 8-12 (data from advocates tracking 658 members of Central American families detained at Artesia after their initial ICE custody determination between August and December); Hines Decl., ¶¶ 12-13, 18-20 (data from pro-bono project identifying 64 families detained at Karnes Family Detention Facility between August and December 2014). They have further demonstrated that ICE is considering deterrence of mass immigration in making such detention determinations. Nothing more is needed.
ii. Adequacy of Representation In order to satisfy this requirement, Plaintiffs must show both that (1) there is no conflict of interest between the named members and the rest of the class, and that (2) counsel is competent to represent the class. See Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997); Johnson, 248 F.R.D. at 53-54; Taylor, 241 F.R.D. at 45; Bynum, 214 F.R.D. at
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35. No trace of a conflict exists here, and Plaintiffs are represented by very capable counsel from the American Civil Liberties Union and Covington & Burling LLP. Defendants, appropriately, do not dispute that these requirements have been met either.
iii. Commonality and Typicality Rule 23(a)(2) – commonality – requires that Plaintiffs establish that “there are questions of law or fact common to the class.” Class members’ claims must depend on “a common contention [that] is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, 131 S. Ct. at 2551. In other words, the representative plaintiffs must show that the class members have “suffered the same injury.” Id. (internal quotation marks omitted). As the D.C. Circuit recently explained, commonality is satisfied where there is “a uniform policy or practice that affects all class members.” DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013). To demonstrate typicality, as required by Rule 23(a)(3), Plaintiffs must show that their claims are “typical of the claims . . . of the class.” Typicality means that the representative plaintiffs must “possess the same interest and suffer the same injury” as the other class members. See Falcon, 457 U.S. at 156 (internal quotation marks and citations omitted) The commonality and typicality requirements often overlap because both “serve as ‘guideposts’” to determine whether a class action is practical and whether the representative plaintiffs’ claims are sufficiently interrelated with the class claims to protect absent class members. See Taylor, 241 F.R.D. at 44-45 (quoting Falcon, 457 U.S. at 157 n.13). Here, as Defendants’ principal challenge to class certification goes to both, the Court considers them together.
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Emphasizing that Plaintiffs have been unable to establish a categorical No-Release Policy, Defendants argue that a class action is an improper vehicle to challenge Plaintiffs’ alternative articulation of the relevant policy – to wit, that ICE treats deterrence of mass immigration as a factor in making custody determinations. They point out that ICE officers can consider a number of factors in making such determinations and assert that “there is absolutely nothing in the record to indicate whether these national security concerns were a factor in any individual Plaintiff’s custody determination and, even if they were, whether they were the reason ICE exercised its discretion to maintain custody.” Opp. to Class Cert. at 13. Thus, argues the Government, Plaintiffs have “fail[ed] to show that these [individual] custody determinations involved sufficiently similar factual or legal questions to satisfy the typicality and commonality requirements of Rule 23.” Id. at 15.
This argument bears a striking resemblance to Defendants’ objection to the named Plaintiffs’ standing, and, for similar reasons, the Court rejects it here as well. While it is true that the reason for detention cannot be proven on an individualized basis – since ICE does not provide that information – the Government has nonetheless conceded that ICE is required to consider deterrence of mass migration “where applicable,” and that it has been applying this factor in response to the surge in immigration on the southwestern border. See Def. Reply at 4. Plaintiffs, moreover, have provided ample evidence that nearly every Central American family apprehended since June 2014 has been detained, and they have further established a causal relationship between ICE’s application of the disputed factor and the spike in detention. The Court can, therefore, conclude that “common questions of law and fact” unite the class members’ claims – namely, ICE’s consideration of mass immigration as a factor in its custody determinations.
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That the exact role this allegedly impermissible factor played in any specific determination is unknowable does not destroy the fact that all (or nearly all) class members were subjected to a determination that included it. Otherwise, the Government could avoid the possibility of a class-action challenge simply by obfuscating the role any single impermissible factor plays in a given individual determination. Defendants’ objection thus parried, the Court finds that commonality and typicality have been established.
iv. Rule 23(b)(2) To receive certification, a proposed class must also satisfy just one of the three Rule 23(b) specifications. Plaintiffs here invoke Rule 23(b)(2), which sets forth two basic requirements: (1) the party opposing the class must have “acted, refused to act, or failed to perform a legal duty on grounds generally applicable to all class members,” and (2) “final relief of an injunctive nature or a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, must be appropriate.” Fed. R. Civ. P. 23(b)(2); 2 William B. Rubenstein, Newberg on Class Actions § 4:26 (5th ed. 2013). In disputing that this requirement has been satisfied, Defendants regurgitate a variant of the same challenge they raised to standing, typicality, and commonality – to wit, that “there can be no certainty that the injunctive relief sought by Plaintiffs would benefit any particular putative class member, since different discretionary factors will be applicable to different individuals.” Opp. to Class Cert. at 17. Once again, the Court cannot concur. Plaintiffs have shown that DHS policy requires ICE to consider deterrence of mass immigration in dealing with members of the class. They seek declaratory and injunctive relief invalidating consideration of that factor and enjoining ICE from applying the policy to deny release. In other words, the suit challenges a policy “generally applicable” to all class members. A determination of whether that policy is
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unlawful would resolve all class members’ claims “in one stroke,” Wal-Mart Stores, 131 S. Ct. at 2251, while rendering the prospect of their release far more likely. Rule 23(b)(2) thus poses no obstacle to class certification.
b. Relation Back One last class-related dispute remains. Certification is ordinarily appropriate only if the named plaintiff has a live controversy at the time of certification. See Sosna, 419 U.S. at 402. Here, as the named Plaintiffs admit, all of their claims are, at this juncture, moot. They nevertheless ask the Court to certify this class, relying on the “inherently transitory” nature of the proposed class. The Court acquiesces to their request. In appropriate cases, “a class action should not be deemed moot even if the named plaintiff’s claim becomes moot prior to certification of the class.” Basel v. Knebel, 551 F.2d 395, 397 n.1 (D.C. Cir. 1977). As the Court in Sosna observed:
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to “relate back” to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review. 419 U.S. at 402 n. 11. Where “claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires,” the Court has found such relation back appropriate. Cnty. of Riverside, 500 U.S. at 51 (internal quotation marks omitted); DL, 302 F.R.D. at 20 (“The inherently transitory exception to mootness permits relation back [to the time the complaint is filed] in any situation where composition of the claimant population is fluid, but the population as a whole retains a continuing live claim.”).
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This rule applies here. The period of allegedly unlawful detention at issue in this case is weeks or months – i.e., the period between ICE’s initial denial of release and the point at which detained families are able to obtain IJ redeterminations. See Hines Decl., ¶ 21 (calculating the length of detention as between three to eight weeks); McLeod Decl., ¶ 14 (stating that the “average” length of that period is “five weeks,” but “[i]n several cases, the time between the ICE custody determination and bond hearing before the IJ was more than three months”). This period, while significant enough to create a cognizable injury, is too short for a court to be expected to rule on a certification motion. So long as the policy remains in effect, moreover, new asylum-seeking families are subjected to allegedly wrongful detention. The class population as a whole thus retains a continuing live claim. Relation back is appropriate.
The Court, therefore, will grant Plaintiffs’ Motion for provisional class certification, and, as a result, it concludes that the suit, in its class-action form, is not moot. The Court may now proceed to the remaining threshold issues raised by Defendants.
4. 8 U.S.C. § 1252(f)(1) The Government next claims that class-wide injunctive relief is proscribed by the INA. See Def. Opp. & Mot. at 27. Specifically, it points to 8 U.S.C. § 1252(f)(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221-1231], other than with respect to . . . an individual alien against whom proceedings under such part have been initiated.” According to Defendants, to grant relief in this case, the Court would need to enjoin the operations of ICE in carrying out its delegated powers under 8 U.S.C. § 1226(a) on a class-wide basis – “precisely the type of class-wide injunctive relief that is prohibited under 8 U.S.C. § 1252(f)(1).” Def. Opp. & Mot. at 28. But this dog doesn’t hunt either. Section 1252(f)(1) “prohibits only injunction of
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‘the operation of’ the detention statutes, not injunction of a violation of the statutes.” Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010) (emphasis added); see also Gordon v. Johnson, 300 F.R.D. 31, 40 (D. Mass. 2014) (“[T]he court need not prohibit the operation of any part of the law to correct the government’s incorrect application of it.”). Put another way, “[w]here . . . a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of [the statute], and § 1252(f)(1) therefore is not implicated.” Rodriguez, 591 F.3d at 1120 (internal quotations and citations omitted). As class-wide injunction in this case would not obstruct the “operation of” Section 1226(a) but merely enjoin conduct that allegedly violates that provision, 8 U.S.C. § 1252(f)(1) poses no bar to relief.
5. Finality Notwithstanding their acknowledgment that ICE considers deterrence of mass immigration in making custody determinations, and that such consideration contributed to the near universal detention of Central American families since June 2014, Defendants also argue that Plaintiffs have failed to demonstrate the existence of a reviewable policy. The Court once again disagrees. The Government first claims that Plaintiffs’ “amorphous” description of “ICE’s ongoing practice of considering certain factors in individualized custody determinations” does not suffice to establish “final agency action” for purposes of the APA. See Def. Reply at 16. Instead, it contends, Plaintiffs have merely described “a generalized agency decision-making process” that is not subject to review. Id. While it is true that a “‘generalized complaint about agency behavior’ . . . gives rise to no cause of action,” Bark v. United States Forest Service, No. 121505, 2014 WL 1289446, at *6 (D.D.C. Mar. 28, 2014), Plaintiffs here attack particularized agency action – namely, ICE’s consideration of an allegedly impermissible factor in making
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custody determinations. They have shown, moreover, that the action is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks omitted). DHS’s policy of considering deterrence has profound and immediate consequences for Central American asylum seekers detained as a result.
Relatedly, Defendants emphasize that Plaintiffs have failed to cite any statute, regulation, policy memoranda, or any other document memorializing the policy they challenge. See Def. Opp. & Mot. at 22. Agency action, however, need not be in writing to be final and judicially reviewable. See Venetian Casino Resort LLC v. EEOC, 530 F.3d 925, 929 (D.C. Cir. 2008) (concluding that “the record” as a whole “leaves no doubt” that a policy exists, even though “the details . . . are still unclear”); Grand Canyon Trust v. Pub. Serv. Co. of N.M., 283 F. Supp. 2d 1249, 1252 (D.N.M. 2003) (holding that “[b]oth law and logic” dictate that an unwritten agency policy is reviewable). A contrary rule “would allow an agency to shield its decisions from judicial review simply by refusing to put those decisions in writing.” Grand Canyon Trust, 283 F. Supp. 2d at 1252. Denying review of agency action that is essentially conceded but ostensibly unwritten would fly in the face of the Supreme Court’s instruction that finality be interpreted “pragmatic[ally].” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239 (1980).
In a last attack on the purported finality of their policy, Defendants claim that “Plaintiffs’ allegations are consistent with a finding that ICE is engaging in a longstanding practice” dating back to Matter of D-J-, “and not a newly-developed ‘Policy’” adopted in June 2014. See Def. Reply at 4 (emphasis added). The Court is perplexed by the Government’s focus on chronology. It is no mystery why Plaintiffs have linked the challenged policy to June 2014 – it is then that ICE began detaining large numbers of Central American families, corresponding to the surge in
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immigration from that region. ICE’s ability to detain such numbers, moreover, was substantially aided by the recent increase in family-detention facilities. See Def. Reply at 5 (“Defendants do not dispute that since June 2014 they have increased their capacity to house families during their removal proceedings, and consequently have held more families in ICE custody since that time.”). That the justification for the policy may technically have been in place prior to last summer, albeit largely dormant, does not mean that Plaintiffs have somehow misidentified the relevant agency action.
6. Adequacy of Review Finally, the Government asserts that Plaintiffs have failed to state a claim under the APA because there are other “adequate remed[ies]” available to them. See Def. Opp. & Mot. at 25 (quoting 5 U.S.C. § 704) (“Agency action made reviewable by statute and final agency action for which there is no adequate remedy in a court” is subject to judicial review). The Government argues that Plaintiffs in this case may avail themselves of two such alternate remedies: review by an immigration judge and the writ of habeas corpus. The Court finds that neither precludes APA review here. The Supreme Court has long construed the “adequate remedy” limitation on APA review narrowly, emphasizing that it “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988); see also El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005) (“The Supreme Court has long instructed that the ‘generous review provisions’ of the APA must be given ‘a hospitable interpretation’ such that ‘only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.’”) (quoting Abbott Labs. v. Gardner, 387 U.S.
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136, 141 (1967)). Rather, “Congress intended by that provision simply to avoid duplicating previously established special statutory procedures for review of agency actions.” Darby v. Cisneros, 509 U.S. 137, 146 (1993).
While it is true that an alien who is denied release by ICE may seek de novo review of that denial from an immigration judge, see 8 C.F.R. § 1003.19; 8 C.F.R. § 1236.1(d)(1), Defendants’ reliance on this potential redetermination ignores the fact that it occurs weeks or months after ICE’s initial denial of relief. It thus offers no adequate remedy for the period of unlawful detention members of the class suffer before receiving this review – the central injury at issue in this case.
Insofar as the Government alternatively argues that Plaintiffs are required to proceed in habeas rather than under the APA, they have not provided a compelling reason why this is so. APA and habeas review may coexist. See Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 666 (D.C. Cir. 2013); Goncalves v. Reno, 144 F.3d 110, 120 (1st Cir. 1998); Lee v. Reno, 15 F. Supp. 2d 26, 33 (D.D.C. 1998). And, although Congress has expressly limited APA review over individual deportation and exclusion orders, see 8 U.S.C. § 1252(a)(5), it has never manifested an intent to require those challenging an unlawful, nationwide detention policy to seek relief through habeas rather than the APA. Plaintiffs’ case, therefore, may proceed under the latter statute.
C. The Merits At long last, having hacked through the jurisdictional thicket, the Court enters the sunlit uplands that constitute the merits of Plaintiffs’ request for a preliminary injunction. It will separately address each of the four prongs of that analysis.
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1. Likelihood of Success on the Merits To remind any reader whose attention may understandably have flagged: in Count One of their Amended Complaint, Plaintiffs allege that DHS’s deterrence policy violates the INA and is thus “contrary to law” under the APA. See 5 U.S.C. § 706(2)(A). Likelihood of success, accordingly, turns on the strength of their argument that deterrence of mass immigration is an impermissible consideration in custody determinations made pursuant to 8 U.S.C. § 1226(a). This is where the rubber meets the road. Although the statute is silent as to what factors may be considered in making such determinations, the Court must construe it with an eye toward avoiding “serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). It will first discuss how that maxim of statutory interpretation applies here, then analyze the due-process rights at stake, and last examine the Government’s justification for detention.
a. Chevron vs. Constitutional Avoidance As previously explained, § 1226(a) governs the detention of aliens awaiting standard removal proceedings, which group includes Plaintiffs here. It provides that “pending a decision on whether the alien is to be removed from the United States,” the Attorney General “may continue to detain the arrested alien” or release the alien on bond or conditional parole. The Government notes that the statute contains no limitation on the Executive’s discretion to detain, nor does it enumerate the factors that may be considered. They further point out that the Attorney General – the officer charged by Congress with the responsibility to interpret and administer the INA – was already expressly interpreting § 1226(a) to allow consideration of mass migration in Matter of D-J-. Because that construction of the statute is facially permissible,
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Defendants argue, it is entitled to Chevron deference. See generally Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Not so fast.
The Government raised a virtually identical argument in Zadvydas v. Davis, 533 U.S 678 (2001), in relation to an analogous provision of the INA, 8 U.S.C. § 1231(a)(6). That provision, which governs detention of certain categories of aliens who have been removed, says that such aliens “may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.” 8 U.S.C. § 1231(a)(6) (emphasis added). The Government contended that the provision “set[] no limit” on the length of detention and, therefore, that the Attorney General had total discretion over whether and how long to detain, even indefinitely. See Zadvydas, 533 U.S at 689 (internal quotation marks omitted).
The Supreme Court disagreed, relying on the “cardinal principle of statutory interpretation” that “when an Act of Congress raises a serious doubt as to its constitutionality,” the Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Id. at 689 (internal quotation marks omitted); see also id. (“We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation.”). The Court held that the statute could not be construed to permit indefinite detention; rather, “read in light of the Constitution’s demands,” § 1231(a)(6) “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Id.
This Court follows Zadvydas’s lead in asking whether the Government’s construction of the present statute raises a serious doubt as to its constitutionality. See also Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (The “canon of constitutional avoidance
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trumps Chevron deference” where the argument for applying the canon is “serious.”) (internal quotation marks omitted).
b. Due Process Clause The touchstone for the Court’s analysis is, of course, the text of the Constitution itself. The Due Process Clause of the Fifth Amendment forbids the Government to “depriv[e]” any “person . . . of . . . liberty . . . without due process of law.” The Supreme Court has repeatedly recognized that “[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, 533 U.S. at 690; see also, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”). In keeping with this fundamental precept, the Zadvydas Court explained that “government detention violates [the Due Process Clause] unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” 533 U.S. at 690. The detention at issue in this case is undisputedly civil – i.e., non-punitive in nature. The relevant question, accordingly, is whether the Government’s justification for detention is sufficiently “special” to outweigh Plaintiffs’ protected liberty interest. In an attempt to evade this rigorous inquiry, Defendants note that the present class is comprised of noncitizens, whose entry into this country was unlawful. It follows, they say, that “Plaintiffs have extremely limited, if any, due process rights regarding [their] custody determinations.” Opp. at 18. The Government is mistaken. While it is true that “certain
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constitutional protections are unavailable to aliens outside of our geographic border,” the Supreme Court has made clear that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause 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 id. (“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law”); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 175 (1993) (“It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry.’”) (internal quotation marks omitted); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”).
Plaintiffs in this case were apprehended in the territory of the United States. What is more, they may have legitimate claims to asylum, such that their presence here may become permanent. It is clear, then, that they are entitled to the protection of the Due Process Clause, especially when it comes to deprivations of liberty.
c. Justification for Detention The Court must now evaluate the Government’s interest in detention here. It is not without guidance in this endeavor. The Zadvydas Court clearly identified a pair of interests that can, under certain circumstances, suffice to justify the detention of noncitizens awaiting
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immigration proceedings: “preventing flight” and “protecting the community” from aliens found to be “specially dangerous.” 533 U.S at 690-92. It explained that because those potentially legitimate justifications were “weak” or “nonexistent” when applied to indefinite detention, such detention raised serious constitutional concerns. See id. at 690. The Court emphasized those same justifications in Demore v. Kim, 538 U.S. 510, 529-31 (2003), another seminal immigration case. Although the Demore Court upheld mandatory detention of certain criminal aliens under 8 U.S.C. § 1226(c), it justified such detention on the ground that such aliens, as a class, pose a demonstrated risk of flight and danger to the community. See 538 U.S. at 519-20, 527-28; see also id. at 531-32 (Kennedy, J., concurring). The interest proposed by the Government in this case, however – namely, deterrence of mass migration – is altogether novel. See Oral Arg. Tr. at 38-39 (Government conceding that it has no “federal cases on point” to support its view that this interest is permissible).
Defendants, nonetheless, are not necessarily out of luck. This is because the Court does not infer from Zadvydas and Demore that no other legitimate justification for noncitizen detention – beyond the individual’s flight risk or potential dangerousness – exists. Here, however, not only is the justification urged by the Government unprecedented, but the Court is struck by the essential distinction between the nature of that interest and those endorsed by the Supreme Court. The justifications for detention previously contemplated by the Court relate wholly to characteristics inherent in the alien himself or in the category of aliens being detained – that is, the Court countenanced detention of an alien or category of aliens on the basis of those aliens’ risk of flight or danger to the community. The Government here advances an entirely different sort of interest. It claims that, in determining whether an individual claiming asylum should be released, ICE can consider the effect of release on others not present in the United
34

States. Put another way, it maintains that one particular individual may be civilly detained for the sake of sending a message of deterrence to other Central American individuals who may be considering immigration.
This appears out of line with analogous Supreme Court decisions. In discussing civil commitment more broadly, the Court has declared such “general deterrence” justifications impermissible. See Kansas v. Crane, 534 U.S. 407, 412 (2002) (warning that civil detention may not “become a ‘mechanism for retribution or general deterrence’ – functions properly those of criminal law, not civil commitment”) (quoting Kansas v. Hendricks, 521 U.S. 346, 372-74 (1997) (Kennedy, J., concurring); see id. at 373 (“[W]hile incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone.”). It is certainly possible that this bar on employing general deterrence does not apply in the civil immigration context – i.e., that some sort of immigration carve-out exists. The Court, however, is not persuaded why this should be so as a matter of logic. Its doubt is animated, in part, by Zadvydas, which grounds its analysis of immigration detention in principles derived from the wider civil-commitment context. See 533 U.S. at 690 (citing Hendricks, 521 U.S. 346 at 356 and Foucha, 504 U.S. 71 at 80).
Even assuming that general deterrence could, under certain circumstances, constitute a permissible justification for such detention, the Court finds the Government’s interest here particularly insubstantial. It seeks to deter future mass immigration; but to what end? It claims that such Central American immigration implicates “national security interests,” see Def. Reply at 4 (citing Matter of D-J-, 23 I. & N. Dec. at 572), but when pressed to elaborate, the principal thrust of its explanation is economic in nature. It argues, in essence, that such migrations force ICE to “divert resources from other important security concerns” and “relocate” their employees.
35

Oral Arg. Tr. at 30, 35. The Government has not, however, proffered any evidence that this
reallocation of resources would leave the agency somehow short-staffed or weakened.
Defendants have not conjured up the specter of an influx’s overwhelming the country’s borders
or wreaking havoc in southwestern cities. The simple fact that increased immigration takes up
government resources cannot necessarily make its deterrence a matter of national security, with
all the attendant deference such characterization entails. In addition, a general-deterrence
rationale seems less applicable where – unlike pedophiles, see Hendricks, 521 U.S. at 354-55,
362, or other violent sexual offenders, see Crane, 534 U.S. at 869 – neither those being detained
nor those being deterred are certain wrongdoers, but rather individuals who may have legitimate
claims to asylum in this country.
Defendants have presented little empirical evidence, moreover, that their detention policy
even achieves its only desired effect – i.e., that it actually deters potential immigrants from
Central America. The best they can do is point to the Miller Declaration, which states:
Detention is especially crucial in instances of mass migration. Annual surveys of people in Central American countries show that one key factor that influences the decision whether to migrate is the existence of an “active migration network,” i.e. friends or family who previously migrated and are living in the United States. See Americas Barometer Insights: 2014, Violence and Migration In Central America, Latin American Public Opinion Project, Vanderbilt University, No. 101 (2014). . . . Illegal migrants to the United States who are released on a minimal bond become part of such active migration networks.
Miller Decl., ¶ 11. But the author of the cited report, Jonathan Hiskey, has explained that
“DHS’s reliance on the Report is erroneous and misplaced, demonstrating a failure to grasp the
empirical findings and theoretical underpinnings of that Report.” Pl. Mot, Exh. 13 (Declaration
of Jonathan Hiskey), ¶ 11. He emphasizes that DHS “ignore[s] the report’s central finding,
namely, the critical role that crime victimization in Central America plays in causing citizens of
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these countries to consider emigration as a viable, albeit extremely dangerous, life choice,” id., ¶ 13, and states that DHS’s assertions are “not empirically supported.” Id., ¶ 20; see also Pl. Mot., Exh. 14 (Declaration of Nestor Rodriguez, scholar whose focus is Central American immigration), ¶ 14 (“[R]umors regarding lenient immigration detention policies in the United States are not a significant factor motivating current Central American immigration.”). Defendants have provided no additional evidence to rehabilitate their theory. See also ECF No. 31, Exh. A (BIA Decision in Matter of D.A.M. (January 30, 2015)) at 2 (concluding that, notwithstanding Matter of D-J-, “the extraordinary remedy of the continued detention” of an El Salvadoran family unit could not be justified on the basis of “deter[ring] future waves of mass migration”).
The Court is fully cognizant, of course, of the deference owed the Executive in “cases implicating national security, a uniquely executive purview.” Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003). “[D]eference,” however, “is not equivalent to acquiescence.” Campbell v. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998). Incantation of the magic words “national security” without further substantiation is simply not enough to justify significant deprivations of liberty. Similarly, although the Court acknowledges the “broad” latitude due the Executive in the realm of immigration, Mathews v. Diaz, 426 U.S. 67, 79-80 (1976), it cannot “abdicat[e]” its “legal responsibility to review the lawfulness” of detention. Zadvydas, 533 U.S. at 700. The government’s power over immigration, while considerable, “is subject to important constitutional limitations.” Id. at 695. It is those limitations with which the Court is concerned here.
This would, admittedly, be a closer case had the Government offered a defensible national-security interest that connects the aim of the challenged policy to its actual effect. The
37

Court, moreover, is rendering no judgment on the Executive’s authority to use other means at its disposal to deter mass immigration. But when its chosen vehicle demands significant deprivation of liberty, it cannot be justified by mere lip service.
In sum, as in Zadvydas, the Government claims remarkably expansive authority to detain noncitizens found within our borders. Again channeling Zadvydas, its approach does not comport with the traditional purposes of such detention. The Government’s justification, moreover, is poorly substantiated in its own right. The Court is thus convinced that Plaintiffs have a significant likelihood of succeeding on the merits of their claim – namely, that DHS’s current policy of applying Matter of D-J- to detain Central American families violates 8 U.S.C. § 1226(a), read in light of constitutional constraints. Having decided this critical issue, the Court moves on to the remaining three preliminary-injunction factors.
2. Irreparable Harm To establish the existence of the second factor, a party must demonstrate that the injury is “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The injury must also be “both certain and great; it must be actual and not theoretical.” Id. (quoting Wisconsin Gas, 758 F.2d at 674). Finally, the injury must be “beyond remediation.” Id. Plaintiffs have satisfied this inquiry here. As discussed above, the evidence they present suggests that a large number of asylum-seeking families from Central America are currently being detained as a result of DHS’s deterrence policy. Such detention harms putative class members in myriad ways, and as various mental health experts have testified, it is particularly harmful to minor children. See Hines Decl., ¶¶ 23-28; Pl. Mot., Exh. 15 (Declaration of Luis H.
38

Zayas), ¶¶ 10-11; ECF No. 1, Exh. 1 (Declaration of R.I.L.R.), ¶¶ 18-20; id., Exh. 2 (Declaration of Z.M.R.), ¶¶ 20-21; see also Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (recognizing the “major hardship posed by needless prolonged detention”); Wil S. Hylton, The Shame of America’s Family Detention Camps, N.Y. Times Magazine MM25 (February 8, 2015), available at http://www.nytimes.com/2015/02/08/magazine/the-shame-of-americas-familydetention-camps.html?_r=0 (describing conditions in family detention centers).
The injuries at stake, furthermore, are “beyond remediation.” Chaplaincy, 454 F.3d at 297. Members of the proposed class do not seek monetary compensation for their injuries. Instead, they seek injunctive and declaratory relief invalidating and setting aside the improper deterrence policy. Unlike economic harm, the harm from detention pursuant to an unlawful policy cannot be remediated after the fact. Cf. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295 (D.C. Cir. 2009) (economic losses are typically not irreparable because compensation can be awarded after a merits determination).
3. Balance of Harms and Public Interest Under the circumstances of this case, factors three and four do not require in-depth analysis. The Government “cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.” Rodriguez, 715 F.3d at 1145. And, as courts in this District have recognized, “The public interest is served when administrative agencies comply with their obligations under the APA.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009); see also Klayman v. Obama, 957 F. Supp. 2d 1, 43 (D.D.C. 2013). In light of the Court’s conclusion that DHS’s current policy of considering deterrence is likely unlawful, and that the policy causes irreparable harm to mothers and children seeking asylum, the Court finds that these last two factors favor Plaintiffs as well.
39

IV. Conclusion For the aforementioned reasons, the Court will grant Plaintiffs’ Motions for a Preliminary
Injunction and Provisional Class Certification and deny Defendants’ Motion to Dismiss. A separate Order consistent with this Opinion shall issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: February 20, 2015
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 Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

R.I.L.R., J.L.S., K.L.S., Z.M.R., J.P.L.M.,

)

W.M.C., C.M.A.C., G.A.P.C., G.C.R., and )

J.A.R., Karnes County Residential Center, 409 )

FM 1144, Karnes City, TX 78118, on behalf of )

themselves and others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

Jeh JOHNSON, Secretary of the Department of )

Homeland Security, in his official capacity, )

Washington, DC 20528; Sarah R. SALDAÑA, )

Assistant Secretary for United States

)

Immigration and Customs Enforcement, in her )

official capacity, 500 12th St., S.W.,

)

Washington, DC 20536; and Philip T.

)

MILLER, U.S. Immigration and Customs

)

Enforcement Assistant Director of Field

)

Operations for Enforcement and Removal

)

Operations, in his official capacity, 500 12th )

St., S.W., Washington, DC 20536,

)

)

Defendants.

)

)

)

)

Civil Action No. 1:15-cv-00011 (JEB)
First Amended Class Complaint for Injunctive and Declaratory Relief

Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 2 of 27
CLASS COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION
1. Plaintiffs R.I.L.R., J.L.S., K.L.S., Z.M.R., J.L.P.M., W.M.C., C.M.A.C., G.A.P.C., G.C.R., and J.A.R., and the class they seek to represent, are all mothers and their children who have fled severe violence in their countries—predominantly Honduras, Guatemala, and El Salvador—in order to seek asylum in the United States. Each Plaintiff and similarly situated individual has been found by an immigration officer or immigration judge (“IJ”) to have a “credible fear” of persecution, meaning there is a “significant possibility” she or he will be granted asylum. Nonetheless, Plaintiffs and other members of the class they seek to represent have been, or will be, detained for weeks or months pursuant to a Department of Homeland Security (“DHS”) policy of locking them up and refusing to consider them for release on bond, recognizance, or other conditions (the “No-Release Policy”). DHS applies the No-Release Policy to Plaintiffs and those similarly situated not because they individually pose a danger to the community or flight risk that requires their detention, but in order to deter other Central American migrants from coming to the United States.
2. Immigration detention is civil; it is not intended as punishment. The purposes of immigration detention are to ensure that individuals appear for their removal proceedings (and for removal if it is ultimately ordered), and to protect the public from danger that might result from an individual’s release. Immigration detention is not designed to serve the goal of general deterrence, which is properly the function of the criminal justice system.
3. Prior to June 2014, DHS adhered to these traditional principles and generally did not detain families that arrived in the United States seeking asylum. In addition, it was DHS policy that individuals who, like Plaintiffs, passed a credible fear screening and were pursuing
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asylum claims before the immigration court, should generally be released from detention, as long as they could establish their identity and show that they were not a flight risk or danger to the community.
4. However, beginning in June 2014, faced with increased numbers of Central American migrants entering or seeking to enter the United States through the southwest border, DHS decided to start detaining families in large numbers. Thus, DHS has moved to expand its family detention capacity from 96 beds to more than 3,000 beds, with plans for further expansion.
5. At the same time, DHS adopted a blanket No-Release Policy for detained Central American families in order to deter additional migrants from coming to the United States. Under this policy, even though Plaintiffs all demonstrated a credible fear of persecution—entitling them to pursue their asylum claims before the immigration court—and even though they are eligible under the immigration laws to be considered for release on bond, recognizance, or other conditions, Defendants refused to consider them for release and instead ordered their continued detention. Defendants did so without making any individualized determination as to whether Plaintiffs’ detention was necessary to prevent flight or protect the community.
6. The clear consequence of DHS’s policy is that numerous individuals for whom detention serves no legitimate purpose are being deprived of their liberty. This detention in a prison-like setting exacerbates the trauma that asylum-seeking families already experienced in their countries of origin and during their flight to the United States. Indeed, mental health experts have condemned family detention because of the detrimental—and often permanent— effect it has on the psychological well-being of detained children.
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7. The No-Release Policy violates the Immigration and Nationality Act (“INA”), applicable regulations, and the Fifth Amendment to the United States Constitution, which prohibit the blanket detention of asylum-seekers for purposes of general deterrence. It is also arbitrary and capricious. The No-Release Policy thus constitutes illegal agency action that should be set aside and enjoined pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2). Plaintiffs do not seek orders of release of individuals subjected to the No-Release Policy, but simply ask the Court to invalidate the blanket policy, and to require Defendants to provide the individualized custody determinations based on flight risk and danger to the community that the statute and regulations require.
8. The government may have policy reasons for wanting to deter migrants from fleeing to the United States to seek asylum, and it has a powerful array of tools with which to pursue such a policy. But a blanket No-Release Policy—which deprives families with bona fide asylum claims of their liberty in order to send a message to others—is not one of them.
JURISDICTION AND VENUE 9. This case arises under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. 10. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), and 5 U.S.C. § 702 (waiver of sovereign immunity). 11. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to this action occurred in this District.
PARTIES 12. Plaintiff R.I.L.R. is the mother of Plaintiffs J.L.S., who is seven years old, and K.L.S., who is 16 years old. R.I.L.R., J.L.S, and K.L.S. fled their home in El Salvador to escape
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abuse at the hands of R.I.L.R.’s domestic partner. They were found to have a credible fear of persecution and referred for a hearing before an IJ to pursue their asylum claim. DHS detained R.I.L.R., J.L.S, and K.L.S. without an individualized determination of flight risk and danger pursuant to its No-Release Policy. They were held at Karnes County Residential Center in Karnes City, Texas, for more than nine weeks before an immigration judge ordered their release on $4,000 bond, on January 5, 2014.
13. Plaintiff Z.M.R. is the mother of Plaintiff J.L.P.M., who is 16 years old. Z.M.R. and J.L.P.M. fled their home in Honduras to escape physical violence and, in Z.M.R.’s case, rape at the hands of Z.M.R.’s former partner. Z.M.R. and J.L.P.M. were found to have a credible fear of persecution and referred for removal proceedings before an IJ to pursue their asylum claim. DHS detained Z.M.R. and J.L.P.M. without an individualized determination of flight risk and danger pursuant to its No-Release Policy. They were both detained at the Karnes County Residential Center in Karnes City, Texas, for almost seven weeks before an immigration judge ordered their release on $3,000 bond, on December 17, 2014.
14. Plaintiff W.M.C. is the mother of Plaintiffs C.M.A.C., who is five years old, and G.A.P.C., who is eight months old. Plaintiffs fled their native El Salvador to escape W.M.C.’s abusive partner, the father of C.M.A.C. W.M.C. was beaten, abused, and imprisoned in her own home, and the police refused to help her. W.M.C., C.M.A.C., and G.A.P.C. were found to have a credible fear of persecution and referred for removal proceedings before an IJ to pursue their asylum claims. Pursuant to the No-Release Policy, DHS detained W.M.C., C.M.A.C., and G.A.P.C. without an individualized determination of flight risk or danger to the community. W.M.C., C.M.A.C., and G.A.P.C. were detained at the Karnes County Residential Center in
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Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 6 of 27
Karnes City, Texas, for more than ten weeks before an immigration judge ordered their release on $2,000 bond on December 17, 2014.
15. Plaintiff G.C.R. is the mother of Plaintiff J.A.R., who is twelve years old. Plaintiffs fled their native El Salvador to escape G.C.R.’s abusive partner, who was the father of J.A.R. and a gang member. G.C.R. and J.A.R. also fled so that they would not be killed by members of the MS gang, who targeted them on the basis of G.C.R.’s partner’s membership in the rival Mara 18 gang. G.C.R. and J.A.R. were found to have a credible fear of persecution and referred for removal proceedings before an IJ to pursue their asylum claims. Pursuant to the NoRelease Policy, DHS detained G.C.R. and J.A.R. without an individualized determination of flight risk or danger to the community. G.C.R. and J.A.R. are currently detained at the Karnes County Residential Center in Karnes City, Texas.
16. Defendant Jeh Johnson is sued in his official capacity as the Secretary of DHS. In this capacity, he directs each of the component agencies within DHS, including United States Immigration and Customs Enforcement (“ICE”). Defendant Johnson is responsible for the administration of immigration laws and policies pursuant to 8 U.S.C. § 1103, including those laws and policies regarding the detention of migrant families.
17. Defendant Sarah R. Saldaña is sued in her official capacity as the Assistant Secretary for ICE, the sub-agency that operates the government’s immigration detention system. In this capacity, Defendant Saldaña directs the administration of ICE’s detention policies and operations, including those policies and operations regarding the detention of migrant families.
18. Defendant Philip T. Miller is sued in his official capacity as ICE Assistant Director of Field Operations for Enforcement and Removal Operations (“ERO”). In this capacity, Defendant Miller oversees, directs, and coordinates policies and operations throughout
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Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 7 of 27
the nation’s ERO field offices and sub-offices, including those policies and operations regarding the detention of migrant families.
CLASS ACTION ALLEGATIONS 19. Plaintiffs R.I.L.R., J.L.S., K.L.S, Z.M.R., J.L.P.M., W.M.C., C.M.A.C., G.A.P.C., G.C.R., and J.A.R. bring this action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) on behalf of themselves and all other persons similarly situated. The proposed class is defined as follows: All persons who: (a) have been or will be detained in ICE family detention facilities; (b) have been or will be determined to have a credible fear of persecution in their home country, see 8 U.S.C. § 1225(B)(v), § 1158; 8 C.F.R. § 208.13; and (c) are eligible for release on bond, recognizance, or other conditions, pursuant to 8 U.S.C. § 1226(a)(2) and 8 C.F.R. § 1236.1(8), but (d) have been or will be denied such release pursuant to DHS’s blanket policy of denying release to detained families without conducting an individualized determination of flight risk or danger to the community. 20. The class is so numerous that joinder of all members is impracticable. Over the past few months hundreds of Central American mothers and their children have been detained pursuant to DHS’s blanket No-Release Policy, and therefore satisfy the class definition. Many more individuals will become class members in the future. 21. All proposed class members are subject to the same policy: namely, DHS’s policy of categorically denying release to mothers and children detained at family detention centers under INA § 236(a), 8 U.S.C. § 1226(a), and its implementing regulations in order to deter the future migration of others to the United States. The legality of the No-Release Policy presents common questions of law and fact. 22. The claims of the representative parties are typical of the claims of the class. Plaintiffs and the class of individuals they seek to represent have all been detained pursuant to the No-Release Policy. The legal claims raised by Plaintiffs are identical to the class claims.
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Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 8 of 27
23. Plaintiffs are adequate representatives because they brought this action to seek the same relief as the other members of the class: that Defendants be enjoined from applying the NoRelease Policy and required to determine custody based on an individualized determination of each migrant’s flight risk and danger to the community under § 1226(a) and its implementing regulations. Plaintiffs do not have any interests adverse to those of the class as a whole.
24. The proposed class would be represented by lead counsel from the ACLU Immigrants’ Rights Project and Covington & Burling LLP, and by other co-counsel. Lead counsel have extensive experience litigating class action lawsuits, including lawsuits on behalf of immigration detainees.
25. Defendants have acted on grounds generally applicable to the class by violating § 1226(a) and its implementing regulations in their treatment of class members; enforcing a detention policy against class members that is arbitrary and capricious; and detaining class members in violation of their due process rights. Thus, injunctive and declaratory relief is appropriate with respect to the class as a whole.
26. Class members are subject to irreparable injury, because absent an order from this Court, they are or will be detained without an individualized determination of their flight risk and danger to the community, as required by § 1226(a), its implementing regulations, and the Due Process Clause.
BACKGROUND Defendants’ Expansion of Family Detention in Response to the Increase in Central American Migrants
27. In the past year, the number of Central Americans seeking to enter the United States through the southwest border—including families and children—has increased. The majority of these individuals are from Honduras, Guatemala and El Salvador. Many of these
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Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 9 of 27
recent migrants, like Plaintiffs, are asylum seekers who are fleeing severe violence in their home countries.
28. In response to this increase in migration, the federal government has adopted “an aggressive deterrence strategy” that has included, among other things, a massive expansion of the family detention system. Thus, in June 2014, President Obama directed DHS to take “aggressive steps to surge resources to our Southwest border to deter both adults and children” from coming to the United States, “includ[ing] detention of adults traveling with children.”1
29. DHS primarily uses its family detention facilities to detain adult mothers and their children under the age of 18.
30. Prior to June 2014, mothers who arrived in the United States with their children, and who sought asylum, were generally released into the community while they pursued their asylum claims. DHS did not detain migrant families in removal proceedings except for a small number of families held at the 96-bed Berks County Residential Center (“Berks”) in Leesport, Pennsylvania.
31. However, in the summer of 2014, DHS rapidly scaled up its family detention capacity as part of the government’s overall deterrence strategy. Thus, in June 2014, DHS opened a nearly 700-bed facility in Artesia, New Mexico (“Artesia”) to detain mothers and children from Central America.
32. DHS officials made clear that the detention of families at Artesia was intended to deter future migration. For example, Defendant DHS Secretary Jeh Johnson testified before the Senate Committee on Appropriations: “[T]here are adults who brought their children with them.
1 Letter from the President—Efforts to Address the Humanitarian Situation in the Rio Grande Valley Areas of Our Nation’s Southwest Border (June 20, 2014), available at http://www.whitehouse.gov/the-press-office/2014/06/30/letter-president-efforts-addresshumanitarian-situation-rio-grande-valle.
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Again, our message to this group is simple: we will send you back . . . . Last week we opened a detention facility in Artesia, New Mexico for this purpose.”2
33. In August 2014, DHS converted the Karnes County Residential Facility
(“Karnes”) in Karnes County, Texas into a second family detention center with a 532-bed
capacity. Here, too, DHS officials made clear that the detention of families at Karnes was meant
to “deter others from taking the dangerous journey and illegally crossing into the United States.”3
34. DHS subsequently contracted to open a new 2,400-bed family detention facility in
Dilley, Texas, which opened in December 2014. In announcing the opening, DHS again stated
that the detention of families would “deter[] others from taking the dangerous journey and illegally crossing into the United States.”4 During December 2014, DHS phased-out its use of
Artesia as a family detention center and began transferring some detained families from Artesia
to the Karnes facility. It also began detaining some families at the Dilley facility.
35. DHS has begun expanding the Berks facility and intends to double its capacity.
DHS is also seeking to expand the bed capacity at Karnes.
2 Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee on Appropriations (July 10, 2014), available at http://www.dhs.gov/news/2014/07/10/statementsecretary-homeland-security-jeh-johnson-senate-committee-appropriations. 3 Press Statement, South Texas ICE Detention Facility to House Adults With Children (July 31, 2014), http://www.dhs.gov/news/2014/07/31/south-texas-ice-detention-facility-house-adultschildren; see also DHS Update on the Situation Along the Southwest Border (Aug. 7, 2014), http://www.dhs.gov/news/2014/08/07/dhs-update-situation-along-southwest-border (statement of Secretary Johnson that “[w]e have built additional detention space for adults with children at Artesia, New Mexico, and another facility that was transitioned last week in Karnes City, Texas, and we are about to open an additional facility” as part of DHS’s “aggressive campaign to counter the rise of illegal migration into the Rio Grande Valley”). 4 Press Release, ICE to open additional facility in South Texas to house adults with children (Sept. 22, 2014), https://www.ice.gov/news/releases/ice-open-additional-facility-south-texashouse-adults-children.
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36. In total, the new family detention facilities will contain approximately 3,600 beds and result in the daily detention of approximately 36 times as many immigrant mothers and children as were detained in May 2014.
37. To date, DHS has detained only women heads of households and their children under the age of 18 at the family detention centers in Artesia, Karnes, and Dilley. Apart from Berks, the facilities do not hold fathers. Some fathers may be detained with their children at Berks, but the overwhelming majority of fathers are either released with their children or detained separately in one of ICE’s adult detention centers.
38. More than 50% of the 1,050 children who were booked into a family detention facility in FY2014 were six years old or younger. Many of these children have been infants or toddlers.
39. DHS’s rapid expansion of family detention is a drastic departure from prior policy, which generally had been not to detain families on a large scale. Defendants’ Blanket No-Release Policy for Detained Families with a Credible Fear of Persecution
40. In addition to dramatically expanding the family detention system, DHS has adopted a blanket No-Release Policy for Central American families who have established a credible fear of persecution and are eligible under the immigration laws for release on recognizance, bond, or other conditions. Pursuant to this policy, DHS detains these families without any determination of whether their detention is warranted based on flight risk or danger to the community. The purpose of such detention is to send a message of deterrence to other potential migrants from Central America—and not to further the traditional and legitimate purposes of civil immigration detention, which are to prevent migrants from fleeing pending their removal proceedings and to protect the public.
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41. Families who are apprehended by U.S. Customs and Border Protection after entering the United States are initially subject to a streamlined removal process known as expedited removal. However, families that demonstrate a credible fear of persecution—meaning there is a “significant possibility” that they are entitled to asylum, 8 U.S.C. § 1225(b)(1)(B)(v)— before an asylum officer or IJ are referred from expedited removal and placed into standard removal proceedings under INA § 240, 8 U.S.C. § 1229. Under that system, an individual receives a full asylum hearing before an IJ and is entitled to an administrative appeal to the Board of Immigration Appeals (“BIA”) and to petition for review of any removal order in the court of appeals.
42. Because Plaintiffs and those similarly situated have all demonstrated a credible fear of persecution, their detention is governed by 8 U.S.C. § 1226(a), the statute that generally governs the detention of noncitizens in removal proceedings. Section 1226(a) provides that, “pending a decision on whether the alien is to be removed from the United States[,]”
the Attorney General-(1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole . . . .
8 U.S.C. § 1226(a). 43. Under current law, the Secretary of DHS shares the Attorney General’s authority
under § 1226(a) to detain or release noncitizens during removal proceedings. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 441.
44. DHS makes a custody determination for each noncitizen detained under the statute, whereby it considers her for release on bond, recognizance, or other conditions. The implementing regulations provide that individual ICE officers “may, in the officer’s discretion,
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release an alien . . . under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8).
45. Nonetheless, as a matter of policy and practice, DHS categorically denies release to Plaintiffs and those similarly situated, without any individualized consideration of whether their detention is necessary to prevent flight risk or protect the community. As a result, DHS has denied release to nearly every family that is detained at a family detention facility and has passed a credible fear interview—regardless of individual flight risk or community danger.
46. DHS agents and attorneys have informed attorneys for detained families that the agency has adopted a blanket No-Release Policy for these detained families. The DHS officers have explained that their refusal to consider these families for release based on an individualized determination of flight risk or community danger is dictated by agency policy.
47. DHS’s blanket No-Release Policy has become a matter of significant public concern. Several members of Congress and the Inter-American Commission for Human Rights have criticized DHS’s policy as contrary to law and an unnecessary use of detention resources.5
5 See Letter to President Barack Obama from Rep. Zoe Lofgren et al. at 2 (Oct. 27, 2014), available at https://lofgren.house.gov/uploadedfiles/family_detention_letter_october_2014.pdf (criticizing the “no release” policy and stating that “there is no legal authority for using detention as [a] political tool” and that the immigration laws require “an individualized determination of flight risk and danger to the community when considering release”); Letter to Secretary of Homeland Security from Sen. Patrick J. Leahy et al. at 2 (Oct. 16, 2014), available at http://www.leahy.senate.gov/download/101614-to-johnson-re-dilley-detention-center (stating that “[t]he administration’s practice of opposing bond in all of these cases, even those cases in which credible fear has been established and where there is no evidence of danger to the community or risk of flight, furthers the injustice for those families detained and unnecessarily increases the demand for bed space”); see also Press Release, IACHR Wraps Up Visit to the United States of America (Oct. 2, 2014), available at
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Defendants’ Asserted Justifications for the No-Release Policy 48. DHS has made the deterrence rationale for the No-Release Policy especially clear
in immigration court. 49. When ICE denies release or sets a bond the noncitizen cannot or does not pay, the
individual remains in custody. While the individual has no opportunity for further consideration within DHS and no immediate recourse of any kind, the noncitizen has the option of requesting a custody redetermination from an IJ.
50. When a Central American family challenges its detention before the IJ, DHS uniformly defends its detention decision and opposes release on the ground that doing so would encourage mass illegal migration. One IJ observed that “DHS attorneys are taking a blanket ‘no bond or high bond’ position in custody proceedings.” In re Z-R and C-Z, at 4 (EOIR Oct. 7, 2014).
51. DHS submits in these proceedings a standard evidentiary packet, including declarations by two DHS officials: Defendant Philip T. Miller, ICE Assistant Director of Field Operations for Enforcement and Removal Operations (“ERO”), and Traci A. Lembke, ICE Assistant Director over Investigative Programs for Homeland Security Investigations.
52. As set forth in Defendant Miller’s declaration, DHS believes that implementation of a “‘no bond’ or ‘high bond’ policy” is necessary in order to “significantly reduce the unlawful mass migration of Guatemalans, Hondurans, and Salvadoran[s].” See Miller Dec. ¶ 9, available at http://www.aila.org/content/default.aspx?docid=49910.
53. Similarly, the declaration of Assistant Director Lembke explains that “[i]mplementing a ‘no bond’ or ‘high bond’ policy would help alleviate [the diversion of HSI’s http://www.oas.org/en/iachr/media_center/PReleases/2014/110.asp (expressing concern over “the government’s decision to impose generalized and automatic family detention”).
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resources from other investigative priorities] by deterring further mass migration.” See Lembke Dec. ¶ 20, available at http://www.aila.org/content/default.aspx?docid=49910.
54. There is no empirical evidence that detaining families that seek asylum serves the deterrence purpose identified by DHS. Indeed, Assistant Director Lembke admits that the largest group of migrants along the southwest border is “by far adults without children.” See Lembke Dec. ¶ 9 (noting that over 278,000 of the approximately 381,000 individuals encountered by CBP in 2014, were neither unaccompanied children nor family units). Id. But Defendants do not apply the No-Release Policy to adults traveling alone; rather, the policy applies only to families. Named Plaintiffs
55. Plaintiffs and proposed class members are mothers and children who have been detained pursuant to Defendants’ policy even though they have been found to have credible fears of persecution, have been referred for asylum hearings, and are eligible for release on bond, recognizance, or other conditions under the INA and its implementing regulations. R.I.L.R., J.L.S., and K.L.S.
56. Plaintiff R.I.L.R. is the mother of Plaintiffs J.L.S., who is seven years old, and K.L.S., who is 16 years old. They are natives of El Salvador.
57. They fled El Salvador because of abuse at the hands of R.I.L.R.’s domestic partner, J.L.S. and K.L.S’s father, with whom they all lived. R.I.L.R. was afraid for her life and for the lives of her children. R.I.L.R.’s domestic partner is a gang member in the Mara Salvatrucha (MS or MS-13). He physically, verbally, and emotionally abused R.I.L.R. and threatened to kill J.L.S. and K.L.S.
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58. Plaintiffs R.I.L.R., J.L.S., and K.L.S. came to the United States to seek refuge. They were arrested after entering the United States on October 30, 2014. They were then moved to the Karnes detention facility, where they were detained for more than nine weeks.
59. On approximately November 10 or 11, 2014, an ICE officer informed Plaintiff R.I.L.R. that she had established a credible fear of persecution that could entitle her and her children to asylum, and the family was referred for removal proceedings before an IJ.
60. Nonetheless, DHS ordered that Plaintiff R.I.L.R. and her children remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk and danger to the community.
61. Plaintiffs R.I.L.R., J.L.S., and K.L.S endured poor conditions of detention. J.L.S. and K.L.S. were unable to eat or sleep well and K.L.S. woke up crying that she wanted to get out of detention. The time Plaintiffs R.I.L.R., J.L.S., and K.L.S. spent in detention compounded the trauma they suffered in El Salvador.
62. R.I.L.R., J.L.S., and K.L.S. were forced to remain in detention despite the fact that Plaintiff R.I.L.R.’s mother lives in Houston, Texas, has lawful status, and agreed to house and support Plaintiff R.I.L.R. and her children. Plaintiff R.I.L.R.’s mother was willing to make sure Plaintiff R.I.L.R. and her children travel to any appointment with immigration authorities. Plaintiff R.I.L.R. understood that she and her children must abide by all orders by immigration officials and intends to do so.
63. Plaintiffs R.I.L.R, J.L.S., and K.L.S. have no criminal convictions and pose no threat to public safety.
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64. On December 16, 2014, Plaintiffs R.I.L.R., J.L.S., and K.LS. filed a motion to proceed anonymously and lodged their original complaint in this action. At that time they were detained by DHS pursuant to its No-Release Policy.
65. On January 5, 2015, an immigration judge ordered that R.I.L.R, J.L.S., and K.L.S. be released on $4,000 bond. On January 6, 2015, the bond was paid and R.I.L.R, J.L.S., and K.L.S. were released. They will reside with R.I.L.R.’s mother in Texas while they continue with their asylum proceedings. Z.M.R. and J.L.P.M.
66. Plaintiff Z.M.R. is the mother of Plaintiff J.L.P.M., who is 16 years old. They were both born in Honduras and, before fleeing to the United States, had always lived there. They fled Honduras with the help of members of their church because they were the victims of physical violence and, in Z.M.R.’s case, rape at the hands of Z.M.R.’s former partner, with whom she lived for 16 years.
67. Plaintiffs Z.M.R. and J.L.P.M. came to the United States to seek refuge. They were arrested after entering the United States on October 26, 2014. They were then moved to the Karnes detention facility, where they remained detained for almost seven weeks.
68. On approximately November 6, 2014, an asylum officer determined that Plaintiff Z.M.R. has a credible fear of persecution that could entitle her and her family to asylum, and her family was referred for removal proceedings before an IJ.
69. Nonetheless, DHS ordered Plaintiffs Z.M.R. and J.L.P.M. to remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk or danger. While in detention, Plaintiff J.L.P.M. hardly ate and became nauseous, dizzy, and weak;
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doctors were unable to assist. Plaintiff J.L.P.M. also had trouble sleeping and was scared. Plaintiff Z.M.R. became depressed.
70. Plaintiffs Z.M.R. and J.L.P.M. were forced to remain in detention despite the fact that Z.M.R. has a sister in North Carolina who has lawful status and would be a sponsor for her and her son while they are going through the asylum hearing process. Her sister was willing to help Plaintiff Z.M.R. travel to any appointment with ICE and EOIR. Plaintiff Z.M.R. was aware that it is critical that she and Plaintiff J.L.P.M. abide by all orders by immigration officials, and they were happy to comply.
71. Plaintiffs Z.M.R. and J.L.P.M. have no criminal convictions and pose no threat to public safety.
72. On December 16, 2014, Plaintiffs Z.M.R. and J.L.P.M. filed a motion to proceed anonymously and lodged their original complaint in this action. At that time they were detained by DHS pursuant to its No-Release Policy.
73. On December 17. 2014, an immigration judge ordered that Z.M.R and J.L.P.M. be released on $3,000 bond. On December 19, 2014, the bond was paid and Z.M.R. and J.L.P.M. were released. They will reside with Z.M.R.’s sister in North Carolina while they continue with their asylum proceedings. W.M.C., C.M.A.C., and G.A.P.C.
74. Plaintiff W.M.C. is the mother of Plaintiffs C.M.A.C., who is five years old., and G.A.P.C., who is eight months old. They were all born in El Salvador and, before fleeing to the United States, had always lived there. The family fled El Salvador because W.M.C.’s former partner, a gang member, physically abused W.M.C. brutally and unrelentingly. Her former
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partner also threatened C.M.A.C. It was impossible for the family to find protection in El Salvador.
75. Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. fled to the United States to seek refuge. They were arrested after entering the United States on October 2, 2014. They were then moved to the Karnes detention facility, where they remained detained for more than ten weeks.
76. On approximately November 28, 2014, an asylum officer determined that Plaintiff W.M.C. has a credible fear of persecution that could entitle her and her family to asylum, and her family was referred for removal proceedings before an IJ.
77. Nonetheless, DHS ordered Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. to remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk or danger.
78. Plaintiff W.M.C. and her children were forced to remain in detention despite the fact that W.M.C. has an uncle in New York who has lawful status and agreed to be a sponsor for her and her daughters while they are going through the asylum hearing process. Her uncle was willing to help Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. travel to any appointment with ICE and EOIR. Plaintiff W.M.C. was aware that it is critical that she and Plaintiffs C.M.A.C. and G.A.P.C. abide by all orders by immigration officials, and was happy to comply.
79. Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. have no criminal convictions and pose no threat to public safety.
80. On December 16, 2014, Plaintiffs W.M.C., C.M.A.C., and G.A.P.C. filed a motion to proceed anonymously and lodged their original complaint in this action. At that time they were detained by DHS pursuant to its No-Release Policy.
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81. On December 17, 2014, an immigration judge ordered that W.M.C., C.M.A.C., and G.A.P.C. be released on $2,000 bond. On December 18, 2014, the bond was paid and W.M.C., C.M.A.C., and G.A.P.C were released. They will reside with W.M.C.’s uncle in New York while they continue with their asylum proceedings G.C.R. and J.A.R.
82. Plaintiff G.C.R. is the mother of Plaintiff J.A.R., who is 12 years old. They were both born in El Salvador. They fled El Salvador to escape from the physical and sexual abuse of G.C.R’s former partner, who is the father of J.A.R. and also a gang member. G.C.R. and J.A.R. also fled so that they would not be killed by members of a gang that targeted them on the basis of G.C.R.’s ex-partner’s membership in a rival gang.
83. Plaintiffs G.C.R and J.A.R. came to the United States to seek refuge. They were arrested after entering the United States on October 29, 2014. They were then moved to the Karnes detention facility, where they remain detained today.
84. On approximately November 19, 2014, an asylum officer determined that Plaintiff G.C.R. has a credible fear of persecution that could entitle her and her family to asylum, and her family was referred for removal proceedings before an IJ.
85. Nonetheless, DHS ordered Plaintiffs G.C.R. and J.A.R. to remain detained pursuant to its No-Release Policy, without any individualized determination of flight risk or danger. G.C.R. and J.A.R. are currently detained at Karnes, and have been in detention for more than ten weeks.
86. J.A.R. has tachycardia, a heart condition that makes his heart palpitate rapidly. Symptoms can range from dizziness and shortness of breath to unconsciousness or cardiac arrest. G.C.R. informed the asylum officer of J.A.R.’s condition, but DHS has not provided J.A.R. with
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any medical treatment for this condition. While in detention, J.A.R. has experienced episodes of palpitation and has reported being unable to breathe. J.A.R. has hardly eaten and has nightmares almost every night in which gang members are chasing him, his mother, and his younger brother.
87. Plaintiff G.C.R. has a sister in Indiana who would be a sponsor for G.C.R. and her son while they are going through the asylum hearing process. Her sister, who is in the process of applying for a U-visa, is willing to help Plaintiff G.C.R. and J.A.R. travel to any appointment with ICE and EOIR. Plaintiff G.C.R. is aware that it is critical that she and Plaintiff J.A.R. abide by all orders by immigration officials, and they would readily do so.
88. Plaintiffs G.C.R. and J.A.R. have no criminal convictions and pose no threat to public safety.
89. G.C.R. does not speak English and is unable to read or write in any language. She was only recently able to find pro bono counsel to represent her in immigration court.
90. G.C.R. and J.A.R. are scheduled to appear at a bond redetermination hearing on January 14, 2015.
Irreparable Harm to Detained Families Caused by the No-Release Policy 91. Defendants’ detention of Plaintiffs and those similarly situated without any individualized determination of whether they pose a flight risk or danger to the community has caused them irreparable harm. 92. Despite the availability of a custody determination by an IJ, Plaintiffs and those similarly situated have been commonly subject to detention pursuant to an ICE custody decision for significant periods of time. For example, at Artesia, families represented by pro bono attorneys from the American Immigration Lawyers’ Association were detained an average of five weeks between their positive credible fear finding and ICE custody determination and their
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custody redetermination hearing before the IJ. In some cases, families were detained for more than three months before their IJ bond hearing. At Karnes, families have experienced between three to eight weeks of detention between their positive credible fear determination and custody redetermination hearing.
93. Detention interferes with mothers and children’s ability to pursue asylum and other immigration relief.
94. Detainees cannot effectively communicate with their attorneys and their consulates. At Karnes, and previously at Artesia, women have difficulty making free phone calls to their attorneys. They report that the cost of an outgoing domestic call is as high as five dollars for two minutes, a price that the detained asylum seekers generally cannot afford. Facility staff at Karnes also does not give phone messages to the detainees in a timely fashion.
95. Moreover, Plaintiffs and those similarly situated arrive in the country in a fragile mental state. Mothers are so terrified by gang and/or domestic violence in their home countries that they risk traveling with young children to the hope of safety in the United States. They often experience additional violence, including kidnapping and rape, during their journey. Detention in a prison-like setting only exacerbates the trauma experienced by these women and children.
96. Rates of anxiety, depression and symptoms of post-traumatic stress disorder (“PTSD”) are extremely high among detained asylum seekers. The rates increase the longer a person stays in detention.
97. Detention is harmful to young children’s health and can inhibit their physical and psychological development for years after their release.
98. Detention is harmful to family dynamics, and in particular can compromise and undermine healthy parent-child relationships and the maintenance of parental authority.
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99. Moreover, the particular conditions of ICE family detention facilities heighten the effects of detention. Detainees are supervised by a staff of mostly male guards. The gender dynamic makes the experience of detention more intimidating for women and young girls fleeing gender-based or sexual violence in their home countries.
100. Detained mothers at Karnes have reported sexual abuse at the hands of male guards at family detention centers. Guards have kissed, fondled, groped, and had sex with detainees in front of children.6
101. The prison-like conditions to which the asylum-seeking women and children are subject are not an appropriate or humane environment. This conclusion is shared by some of our nation’s most senior lawmakers, who have opposed the expansion of family detention in large part because of “the negative consequences of long-term detention on the physical and mental well-being of young children.”
CAUSES OF ACTION First Claim
(Administrative Procedure Act – Violation of the Immigration and Nationality Act) 102. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 103. Pursuant to policy and practice, Defendants have categorically detained Plaintiffs and persons similarly situated in order to deter the future migration of others from Central America—not based on an individualized determination that detention is required because of flight risk or danger to the community.
6 Marisa Bono et al., Letter to Secretary of Homeland Security re: Complaints Regarding Sexual Abuse of Women in DHS Custody at Karnes Residential Center, Mexican American Legal Defense and Educational Fund 2-4 (Sept. 30, 2014), http://www.maldef.org/assets/pdf/2014-0930_Karnes_PREA_Letter_Complaint.pdf.
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104. DHS’s adoption of a blanket No-Release Policy constitutes final agency action for which there is no other adequate remedy. This action governs custody determinations made by ICE agents at Berks and Karnes, and will govern those made at Dilley or any other facility that DHS should choose to use to detain families in the future. Because of this policy, Plaintiffs and those similarly situated have been or will be denied an individualized custody determination and have been or will be detained for reasons of general deterrence.
105. The No-Release Policy violates INA § 236(a), 8 U.S.C. § 1226(a). Immigration detention under this statute must be based on an individualized determination of flight risk and danger to the community—not general deterrence goals.
Second Claim (Administrative Procedure Act – Due Process Clause of the Fifth Amendment to the
United States Constitution) 106. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 107. The No-Release Policy requires the detention of Plaintiffs and individuals similarly situated without an individualized determination of flight risk and danger, but rather to deter other migrants from coming to the United States. This policy violates the Due Process Clause. 108. The No-Release Policy also imposes detention on individuals that is not reasonably related to its goal of deterring other migrants from coming to the United States. For this additional reason, the policy violates the Due Process Clause.
Third Claim (Administrative Procedure Act – Violation of Regulations) 109. All of the foregoing allegations are repeated and realleged as though fully set forth herein.
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110. The blanket No-Release Policy is arbitrary and capricious because it impermissibly deviates from DHS’s own regulations. By regulation, the agency has decided that individual ICE officers have discretion to release noncitizens, as long as the noncitizen can demonstrate, “to the officer’s satisfaction,” that she is not a flight risk or a danger to the community. 8 C.F.R. § 1236.1(c)(8). The blanket No-Release Policy nullifies this regulation, replacing an officer’s individualized, discretionary determination with a requirement of detention.
Fourth Claim (Administrative Procedure Act – Arbitrary and Capricious) 111. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 112. The No-Release Policy is an arbitrary and capricious means of deterring mass migration. Defendants can provide no rational connection between the policy, as it applies to Plaintiffs and those similarly situated, and the desire to deter a mass influx of migrants.
Fifth Cause of Action (Due Process Clause of the Fifth Amendment to the United States Constitution) 113. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 114. The No-Release Policy requires the detention of Plaintiffs without an individualized determination of flight risk and danger to the community, but rather to deter other migrants from coming to the United States. This policy thus violates the Due Process Clause. 115. The No-Release Policy also imposes detention on individuals that is not reasonably related to its goal of deterring other migrants from coming to the United States. For this additional reason, the policy violates the Due Process Clause.
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Case 1:15-cv-00011-JEB Document 8 Filed 01/08/15 Page 26 of 27 PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court: a. Certify this case as a class action lawsuit, as proposed herein, appoint Plaintiffs as class representatives, and appoint the undersigned counsel as class counsel; b. Declare that the No-Release Policy is contrary to law and arbitrary and capricious; c. Enter an order enjoining Defendants from continuing to apply the unlawful NoRelease Policy at family detention facilities and requiring Defendants to consider members of the proposed class for release on bond, recognizance, or other conditions, based on an individualized determination of flight risk and danger to the community; d. Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice Act, and any other applicable statute or regulation; and e. Grant such further relief as the Court deems just, equitable, and appropriate.
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Dated: January 8, 2015

Respectfully submitted,

Judy Rabinovitz Michael Tan Anand V. Balakrishnan Lindsay Nash AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2618
Stephen B. Kang AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783
Witold J. Walczak ACLU OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7864
Denise Gilman IMMIGRATION CLINIC UNIVERSITY OF TEXAS SCHOOL OF LAW 727 E. Dean Keeton St. Austin, TX 78705 (512) 232-1292

Dennis B. Auerbach (D.C. Bar No. 418982) David M. Zionts (D.C. Bar. No. 995170) Philip Levitz (D.C. Bar No. 1018430) Sonia Lahr-Pastor COVINGTON & BURLING LLP One CityCenter 850 Tenth St., N.W. Washington, D.C. 20001–4956 (202) 662-6000
Arthur B. Spitzer (D.C. Bar. No. 235960) AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, N.W., Suite 434 Washington, D.C. 20008 (202) 457-0800
Molly Tack-Hooper ACLU OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 (215) 592-1513 x 113
Adriana Piñon Rebecca L. Robertson ACLU OF TEXAS 1500 McGowen Street, Suite 250 Houston, Texas 77004 (713) 942-8146

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 Case 1:15-cv-00011-JEB Document 40 Filed 05/13/15 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

R.I.L.R., et al., on behalf of themselves and others similarly situated,
Plaintiffs,
v.
JEH JOHNSON, Secretary of Homeland Security, et al.,
Defendants.

) ) ) ) ) ) ) Civil Action No. 1:15-cv-00011-JEB ) ) ) ) ) ) )

NOTICE TO THE COURT Defendants hereby give notice to the Court of the attached News Release being issued today regarding the Government’s plans for enhanced oversight for family residential centers. In the attached, the Government announces its policy determination to discontinue, at this time, invoking deterrence as a factor in custody determinations in all cases involving families, irrespective of the outcome of this litigation. Notwithstanding this present policy determination, the Government maintains its position in this litigation that this Court lacks jurisdiction over the claims in this case, and that application of the policy was lawful at the time and would be lawful in the future if reinstated.

Case 1:15-cv-00011-JEB Document 40 Filed 05/13/15 Page 2 of 2

Dated: May 13, 2015
RONALD C. MACHEN JR. D.C. BAR # 447889 United States Attorney for the District of Columbia
DANIEL F. VAN HORN Chief, Civil Division D.C. Bar #924092
BY: /s/ Wynne P. Kelly WYNNE P. KELLY Assistant United States Attorney 555 Fourth St., N.W. Washington, D.C. 20530 Wynne.Kelly@usdoj.gov Phone: (202) 252-2545

Respectfully submitted,
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Civil Division
LEON FRESCO Deputy Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation
WILLIAM C. SILVIS Assistant Director, District Court Section Office of Immigration Litigation
BY: /s/ Sarah B. Fabian SARAH B. FABIAN Senior Litigation Counsel District Court Section Office of Immigration Litigation Civil Division, U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 532-4824 Fax: (202) 616-8962 Sarah.B.Fabian@usdoj.gov
Attorneys for Defendants

Case 1:15-cv-00011-JEB Document 40-1 Filed 05/13/15 Page 1 of 2
Press Office U.S. Department of Homeland Security
Press Release
May 13, 2015 Contact: DHS Press Office, (202) 282-8010
ICE Announces Enhanced Oversight for Family Residential Centers
WASHINGTON – Today, U.S. Immigration and Customs Enforcement (ICE) announced a series of actions to enhance oversight and accountability, increase access and transparency, and ensure its family residential centers continue to serve as safe and humane facilities for families pending the outcome of their immigration proceedings.
“Following last summer’s unprecedented spike in illegal migration of unaccompanied minors and adults with children at the Rio Grande Valley, we responded with decisive action on a number of fronts. One element of this comprehensive approach was opening additional facilities for adults with children, as they wait for a resolution to their immigration case,” said ICE Director Sarah R. Saldaña. “While we routinely review and evaluate our facilities to ensure that we are providing the level of care required by our Family Residential Standards, we understand the unique and sensitive nature of detaining families and we are committed to maintaining the optimal level of care. The measures ICE is announcing reaffirm that understanding and our commitment, to ensuring all individuals in our custody are held and treated in a safe, secure, and humane manner.”
After undertaking a comprehensive assessment of its family residential centers, ICE is taking the following actions:
First, ICE will create a new Advisory Committee, consistent with the Federal Advisory Committee Act, to advise the Director and the Secretary concerning ICE’s family residential centers. The committee will be comprised of experts in the fields of detention management, public health, children and family services, and mental health.
Second, Director Saldaña has designated a senior ICE official with the responsibility to coordinate and review family residential facility policies. This official will work directly with the facilities and ICE headquarters, while also engaging regularly with key stakeholders. The official will report regularly to the Director and coordinate an ongoing review of the policies and procedures that govern our family residential centers.
Third, building on recent efforts, ICE and the Department will undertake a series of engagements over the next several months with stakeholders to listen and discuss their concerns regarding family
Page 1 of 2

Case 1:15-cv-00011-JEB Document 40-1 Filed 05/13/15 Page 2 of 2
residential centers. When improvements can be made consistent with ICE’s public safety mission, every effort will be made to make such adjustments.
Fourth, while ICE’s family residential centers currently operate in an open environment that includes play rooms, social workers, educational services, comprehensive medical care, and access to legal counsel, ICE will explore ways to further enhance these conditions. The well-being of detained families, particularly of children, is of paramount importance to ICE. Similarly, ensuring access to counsel continues to be an ICE priority. As such, ICE will take additional measures to promote these values, including addressing language access issues for speakers of indigenous languages, providing dedicated work spaces for pro bono attorneys, and making available additional attorney-client meeting rooms.
Fifth, because of the sensitive and unique nature of detaining adults with children, ICE will also implement a review process for any families detained beyond 90 days, and every 60 days thereafter, to ensure detention or the designated bond amount continues to be appropriate while families await conclusion of their immigration proceedings before the Department of Justice’s Executive Office for Immigration Review.
Finally, on February 20, 2015, a federal district court in Washington, D.C. enjoined ICE from invoking general deterrence in custody determinations where an individual from Central America in a family residential center is found to have a credible fear of removal. ICE has complied with that injunction, but has moved for reconsideration of the Court’s ruling. Notwithstanding that, ICE has presently determined that it will discontinue invoking general deterrence as a factor in custody determinations in all cases involving families. This would affect not only families covered by the injunction, but also families from non-Central American countries and families who have established either a credible fear or reasonable fear of removal.
Homeland Security Secretary Jeh Johnson has made it clear that our borders are not open to illegal migration, and that individuals apprehended crossing the border illegally are a Department priority and that ICE should allocate enforcement resources accordingly, consistent with our laws and values. As such, ICE is endeavoring to use appropriate prosecutorial discretion and dedicating resources, to the greatest degree possible, to the removal of individuals who are considered enforcement priorities, which include recent border entrants.
###
Page 2 of 2

L-R et al v. JOHNSON et al, Docket No. 1:15-cv-00011 (D.D.C. Jan 06, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the District of Columbia; United States District Court for the District of Columbia Other Statutory Actions[890] 1:15-cv-00011 CLOSED

© 2018 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 6

 
 Case 1:15-cv-00011-JEB Document 43 Filed 06/29/15 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

R. I. L-R, et al., Plaintiffs, v.
JEH CHARLES JOHNSON, et al., Defendants.

Civil Action No. 15-11 (JEB)

ORDER On June 22, 2015, the Court held a status conference with counsel for the parties. At that conference, the Court raised the possibility of administratively closing this case in light of the May 13, 2015, policy announcement by U.S. Immigration and Customs Enforcement that it would no longer invoke general deterrence as a factor in custody decisions involving families. The parties subsequently conferred and submitted a joint proposal for moving forward. Based on agreement of the parties, the Court hereby ORDERS that:
1. The February 20, 2015, preliminary injunction and associated orders are DISSOLVED, except the portions of such orders and opinions granting Plaintiffs’ Motion for Provisional Class Certification;
2. The case is ADMINISTRATIVELY CLOSED, subject to the following conditions: a. Should the Department of Homeland Security and ICE decide to consider deterrence of future immigration as a factor in such custody determinations involving provisional class members, or to detain provisional class members for the purpose of deterring future 1

Case 1:15-cv-00011-JEB Document 43 Filed 06/29/15 Page 2 of 4
immigration to the United States, Defendants will file a notice with the Court at least ten (10) days prior to making any such change to its policy. b. Within five (5) days of Defendants’ filing of such notification with the Court, if Plaintiffs wish to reinstate the preliminary-injunction order previously entered in this case, Plaintiffs must file a motion with the Court so requesting. While any such motion is pending before the District Court, DHS and ICE will adhere to the policy announced on May 13, 2015, with respect to custody determinations for provisional class members, and will delay implementation of any change to that policy with respect to provisional class members until the District Court rules on the motion. c. Within ten (10) days of Plaintiffs’ filing of such a motion, Defendants shall file an opposition. Defendants shall bear the burden of showing why the preliminary injunction should not be reinstated either as a matter of fact, law, and/or lack of jurisdiction, subject to the same standard that would have governed Defendants’ motion for reconsideration of the preliminary injunction (ECF No. 37). d. Plaintiffs shall file their reply, if any, within five (5) days of Defendants’ filing of their opposition. e. The briefing on the motion to reinstate the preliminary injunction may incorporate by reference the briefing filed earlier in this case, subject to any supplemental information or arguments the parties wish to present.
2

Case 1:15-cv-00011-JEB Document 43 Filed 06/29/15 Page 3 of 4
f. Upon completion of briefing, the Court will issue its ruling on Plaintiffs’ motion to reinstate the preliminary injunction. Either party may request an expedited ruling on the motion, and the Court will endeavor to rule on the motion on an expedited basis.
g. The parties reserve the right to appeal, pursuant to 28 U.S.C. § 1292(a)(1), from an order granting or denying a motion to reinstate the preliminary injunction.
h. If a scenario arises in which Defendants have not filed a notice with the Court but Plaintiffs acquire a good-faith basis to conclude that DHS and ICE: a) are detaining provisional class members for the purpose of deterring future immigration to the United States, or b) are using deterrence of future immigration as a factor in custody determinations of provisional class members, Plaintiffs shall notify Defendants of their concerns, and shall give Defendants ten (10) days to try to resolve those concerns. If those concerns cannot be resolved within ten (10) days, or if Plaintiffs earlier conclude after meeting and conferring with Defendants in good faith that further discussion is futile or the situation presents an emergency for provisional class members, Plaintiffs may file a motion with the Court requesting that the preliminary injunction be reinstated, the case be re-opened, and/or other relief be ordered. Such a motion shall include the basis of Plaintiffs’ good faith belief regarding Defendants’ actions. The same briefing schedule set forth in Paragraphs 3 and 4 shall then apply.
3

Case 1:15-cv-00011-JEB Document 43 Filed 06/29/15 Page 4 of 4
i. Either party may move to administratively reopen the case upon meeting the following conditions: a) the party seeking reopening has provided the opposing party with ten (10) days’ notice of their intent to reopen the case; b) the party seeking reopening has met and conferred in good faith with the opposing party regarding their reason(s) for seeking reopening; and c) the party seeking reopening certifies in good faith that the parties are unable to amicably resolve the issue(s) prompting the motion to reopen the case. Upon the filing of a motion to reopen by either party, the Court will endeavor to promptly schedule a status conference to determine the appropriate next steps in the case.

IT IS SO ORDERED. Date: June 29, 2015

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

4

 
 Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 1 of 11
CLOSED,PRO SE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:15−cv−00011−JEB

L−R et al v. JOHNSON et al Assigned to: Judge James E. Boasberg Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 01/06/2015 Date Terminated: 06/29/2015 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

R. I. L−R

represented by Dennis B. Auerbach COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662−6000 Email: dauerbach@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

David M. Zionts COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662−5987 Fax: (202) 778−5987 Email: dzionts@cov.com ATTORNEY TO BE NOTICED

Judy Rabinovitz AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrant's Rights Project 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2618 Fax: (212) 549−2654 Email: jrabinovitz@aclu.org PRO HAC VICE

Philip J. Levitz COVINGTON & BURLING LLP 850 Tenth Street N.W. One City Center Washington, DC 20001 (202) 662−5879 Email: plevitz@cov.com

Plaintiff J. L. S.
Plaintiff K. L. S.
Plaintiff Z. M. R.

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 2 of 11
ATTORNEY TO BE NOTICED
represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
David M. Zionts (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE
Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
David M. Zionts (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE
Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
David M. Zionts (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 3 of 11

Plaintiff J. P. L−M
Plaintiff W. M. C.
Plaintiff C. M. A−C

Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
David M. Zionts (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE
Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
David M. Zionts (See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE
Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
David M. Zionts (See above for address) ATTORNEY TO BE NOTICED

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 4 of 11

Judy Rabinovitz (See above for address) PRO HAC VICE

Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff G. A. P−C

represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

David M. Zionts (See above for address) ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) PRO HAC VICE

Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff G. C. R.

represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

David M. Zionts (See above for address) ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) PRO HAC VICE

Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff J. A. R.

represented by Dennis B. Auerbach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED

David M. Zionts

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 5 of 11
(See above for address) ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) PRO HAC VICE
Philip J. Levitz (See above for address) ATTORNEY TO BE NOTICED

V. Defendant JEH CHARLES JOHNSON Secretary of the Department of Homeland Security, In his Official Capacity
Defendant THOMAS S. WINKOWSKI TERMINATED: 01/08/2015
Defendant PHILIP T. MILLER U.S. Immigration and Customs

represented by Leon Fresco HOLLAND & KNIGHT LLP 800 17th Street, NW Suite 1100 Washington, DC 20006 (202) 469−5129 Fax: (202) 955−5564 Email: leon.fresco@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian U.S. DEPARTMENT OF JUSTICE Trial Attorney, District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 532−4824 Fax: (202) 616−8962 Email: sarah.b.fabian@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wynne Patrick Kelly U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252−2545 Fax: (202) 252−2599 Email: wynne.kelly@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wynne Patrick Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Leon Fresco (See above for address)

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 6 of 11

Enforcement Assistant Director of Field Operations for Enforcement and Removal Operations, In his Official Capacity

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wynne Patrick Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
SARAH R. SALDANA Assistant Secretary for United States Immigration and Customs Enforcement, In her Official Capacity

represented by Leon Fresco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah B. Fabian (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/06/2015
01/06/2015 01/06/2015 01/06/2015 01/06/2015

# Docket Text
1 SEALED UNOPPOSED MOTION TO PROCEED ANONYMOUSLY filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, PHILIP T. MILLER, G. A. P−C, Z. M. R., J. L. S., K. L. S. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1− Declaration of R.I.L.R., # 3 Exhibit 2− Declaration of Z.M.R., # 4 Exhibit 3− Declaration of J.L.P.M., # 5 Exhibit 4− Declaration of W.M.C., # 6 Exhibit 5− List of Plaintiffs Names, Alien Numbers, and Pseudonyms, # 7 Text of Proposed Order)(zrdj) (Entered: 01/08/2015)
2 ORDER granting 1 Sealed UNOPPOSED Motion TO PROCEED ANONYMOUSLY. Signed by Chief Judge Richard W. Roberts on 12/24/2014. (rdj) (Entered: 01/08/2015)
3 COMPLAINT against JEH CHARLES JOHNSON, PHILIP T. MILLER, THOMAS S. WINKOWSKI ( Filing fee $ 400, receipt number 4616067754) filed by W. M. C., K. L. S., C. M. A−C, J. L. S., G. A. P−C, R. I. L−R, Z. M. R., J. P. L−M. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 01/08/2015)
4 MOTION for Preliminary Injunction by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(rdj) (Entered: 01/08/2015)
5 LARGE ADDITIONAL ATTACHMENT(S) by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, Z. M. R., J. L. S., K. L. S. 4 MOTION for Preliminary Injunction filed by W. M. C., Z. M. R., J. P. L−M, J. L. S., K. L. S., R. I. L−R, C. M. A−C, G. A. P−C.(Exhibit 1− Brane Declaration) (Attachments: # 1 Exhibit 1A− Bran CV and Publications, # 2 Exhibit 2− Memorandum for Regional Directors from Michael A. Pearson, Executive Associate Commissioner, INS, # 3 Exhibit 3− Declaration of Valerie Burch, # 4 Exhibit 4− Declaration of Barbara Hines, # 5 Exhibit 4A− Miller and Lembke Declaration, # 6 Exhibit 4B− Karnes Conditions Complaint Letter, # 7 Exhibit 5− Declaration of Allegra McLeod, # 8 Exhibit 5A− McLeod CV, # 9 Exhibit 6− Declaration of Virginia Raymond, # 10 Exhibit 7− In re Z−R & C−Z, at 4 (DOJ, EOIR Oct. 7, 2014), # 11 Exhibit 8− Declaration of Matthew Archambeault, # 12 Exhibit 9− Declaration of R.I.L.R. (redacted), # 13 Exhibit 10− Declaration of Z.M.R. (redacted), # 14 Exhibit 11− Declaration of J.L.P.M. (redacted), # 15 Exhibit 12− Declaration of W.M.C. (redacted), # 16 Exhibit 13− Declaration of Jonathan Hiskey, # 17 Exhibit 13A− Violence and Migration in Central America, # 18 Exhibit 13B− Hiskey CV, # 19 Exhibit 13C− Miller and Lembke Declaration, # 20 Exhibit 14− Declaration of Nestor Rodriguez, # 21 Exhibit 14A− Rodriguez CV, # 22 Exhibit 15− Declaration of Luis H. Zayas, # 23 Exhibit 15A− Zayas CV, # 24 Exhibit 15B− Abram

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 7 of 11

01/06/2015 01/06/2015 01/06/2015 01/08/2015 01/08/2015 01/08/2015
01/08/2015 01/08/2015 01/09/2015

et al., 2014 incarcerated youth, # 25 Exhibit 15C− Byrne et al., 2012, # 26 Exhibit 15D− Dallaire et al., 2014, # 27 Exhibit 15E− Foster & Hagan, 2013, # 28 Exhibit 15F− McLaughlin et al., 2014 neural development, # 29 Exhibit 15G− Murray & Farrington, 2005, # 30 Exhibit 15H− Nesbit & Ruland, 2008)(rdj) (Entered: 01/08/2015)
6 MOTION to Certify Class by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Levitz Declaration, # 3 Exhibit 2 − Tan Declaration, # 4 Exhibit 3 − Connell Declaration, # 5 Text of Proposed Order)(rdj) (Entered: 01/08/2015)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− David Meir Zionts, :Firm− Covington & Burling LLP, :Address− One CityCenter, 850 Tenth Street, NW, Washington, DC 20001. Phone No. − (202) 662−5987. Fee Status: No Fee Paid. by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(rdj) (Entered: 01/08/2015)
Filing fee in the Amount $ 100, receipt number 4616067755 re 7 MOTION for Leave to Appear Pro Hac Vice (rdj) (Entered: 01/08/2015)
MINUTE ORDER granting 7 Motion for Admission Pro Hac Vice of DAVID MEIR ZIONTS. Signed by Judge James E. Boasberg on 01/08/15. (lcjeb3) (Entered: 01/08/2015)
8 AMENDED COMPLAINT against All Defendants filed by W. M. C., K. L. S., C. M. A−C, J. L. S., G. A. P−C, R. I. L−R, Z. M. R., J. P. L−M. (Attachments: # 1 Affidavit)(Auerbach, Dennis) (Entered: 01/08/2015)
9 Amended MOTION for Preliminary Injunction by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit 1 − Brane Declaration, # 4 Exhibit 1A − Brane CV and Publications, # 5 Exhibit 2 − Memorandum for Regional Directors from Michael A. Pearson, # 6 Exhibit 3 − Declaration of Valerie Burch, # 7 Exhibit 4 − Declaration of Barbara Hines, # 8 Exhibit 4A − Miller & Lembke Declarations, # 9 Exhibit 4B − Karnes Conditions Complaint Letter, # 10 Exhibit 5 − Declaration of Allegra McLeod, # 11 Exhibit 5A − McLeod CV, # 12 Exhibit 6 − Declaration of Virginia Raymond, # 13 Exhibit 7 − In re Z−R & C−Z, # 14 Exhibit 8 − Declaration of Matthew Archambeault, # 15 Exhibit 9 − Declaration of R.I.L.R. (redacted), # 16 Exhibit 10 − Declaration of Z.M.R. (redacted), # 17 Exhibit 11 − Declaration of J.L.P.M. (redacted), # 18 Exhibit 12 − Declaration of W.M.C. (redacted), # 19 Exhibit 13 − Declaration of Jonathan Hiskey, # 20 Exhibit 13A − Violence and Migration in Central America, # 21 Exhibit 13B − Hiskey CV, # 22 Exhibit 13C − Miller & Lembke Declarations, # 23 Exhibit 14 − Declaration of Nestor Rodriguez, # 24 Exhibit 14A − Rodriguez CV, # 25 Exhibit 15 − Declaration of Luis H. Zayas, # 26 Exhibit 15A − Zayas CV, # 27 Exhibit 15B − Abram et al., # 28 Exhibit 15C − Byrne et al., # 29 Exhibit 15D − Dallaire et al, # 30 Exhibit 15E − Foster & Hagan, # 31 Exhibit 15F − McLaughlin et al., # 32 Exhibit 15G − Murray & Farrington, # 33 Exhibit 15H − Nesbit & Ruland, # 34 Exhibit 16 − Declaration of G.C.R. (redacted), # 35 Affidavit)(Auerbach, Dennis) (Entered: 01/08/2015)
10 Amended MOTION to Certify Class by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit 1 − Levitz Declaration, # 4 Exhibit 2 − Tan Declaration, # 5 Exhibit 3 − Connell Declaration, # 6 Affidavit)(Auerbach, Dennis) (Entered: 01/08/2015)
11 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by G. C. R., J. A. R. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit 1 − Declaration of G.C.R. (under seal), # 4 Exhibit 2 − Plaintiff Names, Alien Numbers, and Pseudonyms, # 5 Affidavit)(Auerbach, Dennis) (Entered: 01/08/2015)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Judy Rabinovitz, :Firm− American Civil Liberties Union Foundation Immigrants Rights Project, :Address− 125 Broad Street, 18th Floor, New York, NY 10004. Phone No. − (212) 549−2618. Fax No. − (212) 549−2654 Filing fee $ 100, receipt number 0090−3957171. Fee Status: Fee Paid. by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R,

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 8 of 11

01/09/2015 01/09/2015 01/09/2015 01/09/2015
01/09/2015 01/09/2015
01/12/2015 01/13/2015
01/13/2015 01/13/2015
01/13/2015 01/16/2015
01/20/2015

G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Declaration, # 2 Text of Proposed Order, # 3 Certificate of Service)(Auerbach, Dennis) (Entered: 01/09/2015)
MINUTE ORDER granting 12 Motion for Admission Pro Hac Vice of JUDY RABINOVITZ. Signed by Judge James E. Boasberg on 01/09/15. (lcjeb3) (Entered: 01/09/2015)
13 ORDER granting 11 Plaintiffs' Unopposed Motion to Proceed Anonymously and to File Supporting Exhibits Under Seal. Signed by Judge James E. Boasberg on 01/09/15. (lcjeb3) (Entered: 01/09/2015)
14 NOTICE of Appearance by Wynne Patrick Kelly on behalf of All Defendants (Kelly, Wynne) (Entered: 01/09/2015)
MINUTE ORDER: As discussed in today's conference call from chambers, the Court ORDERS that: 1) Defendants need not respond to Plaintiffs' Amended Motion to Certify Class until ordered by the Court; 2) Defendants shall file their opposition to Plaintiffs' Amended Motion for Preliminary Injunction by January 23, 2015, and Plaintiffs may have until January 28, 2015, to file a reply; 3) The Court will hold a hearing on the PI Motion on February 2, 2015, at 11:00 a.m.; and 4) Since they have since been superseded by amended motions, Plaintiffs' 4 Motion for Preliminary Injunction and 6 Motion to Certify Class are DENIED as moot. Signed by Judge James E. Boasberg on 01/09/15. (lcjeb3) (Entered: 01/09/2015)
15 SEALED DOCUMENT filed by G. C. R., J. A. R.. re 13 Order on Sealed Motion for Leave to File Document Under Seal. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(ztd, ) (Entered: 01/09/2015)
Minute Entry for proceedings held before Judge James E. Boasberg: Telephone Conference held on 1/9/2015. (Defendants shall file their opposition to Plaintiffs' Amended Motion for Preliminary Injunction by 1/23/2015, and Plaintiffs may have until 1/28/2015, to file a reply). A Hearing on the Preliminary Injunction Motion is set for 2/2/2015, at 11:00 AM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 01/12/2015)
16 NOTICE of Appearance by Sarah B. Fabian on behalf of All Defendants (Fabian, Sarah) (Entered: 01/12/2015)
17 Unopposed MOTION for Leave to File Supplemental Memorandum in Support of Amended Motion for Preliminary Injunction by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Exhibit A − Supplemental Memorandum, # 2 Exhibit 1 − Declaration of Lauren Connell)(Auerbach, Dennis) (Entered: 01/13/2015)
18 NOTICE of Appearance by Arthur B. Spitzer on behalf of All Plaintiffs (Spitzer, Arthur) (Entered: 01/13/2015)
MINUTE ORDER granting Plaintiffs' 17 Unopposed Motion for Leave to File Supplemental Memorandum in Support of Their Amended Motion for Preliminary Injunction. The Court ORDERS that the documents accompanying the Motion are deemed filed. Signed by Judge James E. Boasberg on 01/13/15. (lcjeb3) (Entered: 01/13/2015)
21 SUPPLEMENTAL MEMORANDUM in support of re 9 Amended MOTION for Preliminary Injunction filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S.. (td, ) (Entered: 01/21/2015)
19 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1 − Declaration of J.L.P.M. (redacted), # 2 Text of Proposed Order)(Auerbach, Dennis) (Entered: 01/16/2015)
20 SEALED ORDER granting 19 Sealed Motion for Leave to File Document Under Seal (see Order for details). Signed by Judge James E. Boasberg on 1/20/2015. (ad) (Entered: 01/20/2015)

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 9 of 11

01/23/2015 01/23/2015 01/28/2015 01/28/2015 01/30/2015 02/02/2015 02/04/2015
02/06/2015 02/06/2015 02/10/2015

22 Memorandum in opposition to re 9 Amended MOTION for Preliminary Injunction and Motion to Dismiss filed by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D)(Fabian, Sarah) (Entered: 01/23/2015)
23 MOTION to Dismiss Amended Complaint and Opposition to Preliminary Injunction by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D)(Fabian, Sarah) (Entered: 01/23/2015)
24 REPLY to opposition to motion re 9 Amended MOTION for Preliminary Injunction filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S.. (Attachments: # 1 Exhibit 1 − Corrected Declaration of Valerie Burch, # 2 Exhibit 2 − Corrected Declaration of Matthew Archambeault, # 3 Exhibit 3 − Corrected Declaration of Lauren Connell, # 4 Exhibit 4 − Corrected Declaration of Virginia Raymond)(Auerbach, Dennis) (Entered: 01/28/2015)
25 Memorandum in opposition to re 23 MOTION to Dismiss Amended Complaint and Opposition to Preliminary Injunction filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S.. (Attachments: # 1 Exhibit 1 − Corrected Declaration of Valerie Burch, # 2 Exhibit 2 − Corrected Declaration of Matthew Archambeault, # 3 Exhibit 3 − Corrected Declaration of Lauren Connell, # 4 Exhibit 4 − Corrected Declaration of Virginia Raymond)(Auerbach, Dennis) (Entered: 01/28/2015)
26 ERRATA to Memorandum in Support of Amended Motion for Preliminary Injunction by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S. 9 Amended MOTION for Preliminary Injunction filed by W. M. C., Z. M. R., J. P. L−M, J. L. S., K. L. S., R. I. L−R, C. M. A−C, G. A. P−C. (Auerbach, Dennis) (Entered: 01/30/2015)
Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held on 2/2/2015 re 9 Amended MOTION for Preliminary Injunction. Order forthcoming. (Court Reporter Lisa Griffith) (kt) (Entered: 02/02/2015)
27 TRANSCRIPT OF PROCEEDINGS before Judge James E. Boasberg held on 2−2−15; Page Numbers: 1−52. Date of Issuance:2−4−15. Court Reporter/Transcriber Lisa Griffith, Telephone number 202−354−3247, Court Reporter Email Address : Lisa_Griffith@dcd.uscourts.gov.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 2/25/2015. Redacted Transcript Deadline set for 3/7/2015. Release of Transcript Restriction set for 5/5/2015.(Griffith, Lisa) (Entered: 02/04/2015)
28 Memorandum in opposition to re 10 Amended MOTION to Certify Class filed by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA, THOMAS S. WINKOWSKI. (Fabian, Sarah) (Entered: 02/06/2015)
29 REPLY to opposition to motion re 23 MOTION to Dismiss Amended Complaint and Opposition to Preliminary Injunction filed by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA, THOMAS S. WINKOWSKI. (Attachments: # 1 Exhibit A)(Fabian, Sarah) (Entered: 02/06/2015)
30 MOTION for Leave to File Sur−Reply by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S. (Attachments: # 1 Exhibit Exhibit A − Sur−Reply)(Auerbach, Dennis) (Entered: 02/10/2015)

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 10 of 11

02/11/2015 02/20/2015
02/20/2015 02/20/2015 02/23/2015 02/23/2015 02/26/2015 02/26/2015 02/27/2015 03/10/2015 03/10/2015 03/20/2015 04/17/2015
05/01/2015 05/13/2015

31 NOTICE OF SUPPLEMENTAL AUTHORITY by R. I. L−R (Attachments: # 1 Exhibit D.A.M. (BIA January 30, 2015))(Auerbach, Dennis) (Entered: 02/11/2015)
32 ORDER: For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: (1) Plaintiffs' Amended Motion for a Preliminary Injunction is GRANTED; (2) Plaintiffs' Motion for Provisional Class Certification is GRANTED; (3) Plaintiffs' Motion for Leave to file a Sur−Reply is GRANTED; (4) Defendants' Motion to Dismiss is DENIED; and (5) A status conference shall be held on March 6, 2015, at 10:00 AM in Courtroom 19. Signed by Judge James E. Boasberg on 2/20/15. (lcjeb1) (Entered: 02/20/2015)
33 MEMORANDUM OPINION re 32 ORDER. Signed by Judge James E. Boasberg on 2/20/15. (lcjeb1) (Entered: 02/20/2015)
34 SURREPLY to re 23 MOTION to Dismiss Amended Complaint and Opposition to Preliminary Injunction filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S.. (td, ) (Entered: 02/23/2015)
Set/Reset Hearing: A Status Conference is set for 3/6/2015, at 10:00 AM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 02/23/2015)
35 NOTICE of Appearance by Leon Fresco on behalf of All Defendants (Fresco, Leon) (Entered: 02/23/2015)
36 Consent MOTION to Continue March 6, 2015 Status Conference by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA (Fabian, Sarah) (Entered: 02/26/2015)
MINUTE ORDER granting 36 Motion to Continue. The Court ORDERS that the Status Conference set for March 6, 2015, is VACATED and RESCHEDULED for March 10, 2015, at 10:00 a.m. Signed by Judge James E. Boasberg on 2/26/15. (lcjeb2) (Entered: 02/26/2015)
Set/Reset Hearings: The Status Conference set for 3/06/2015, at 10:00 AM, is hereby VACATED and RESCHEDULED for 3/10/2015, at 10:00 AM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 02/27/2015)
MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that Defendants may file a motion for reconsideration by April 1, 2015, Plaintiffs may oppose by April 24, 2015, and Defendants may file a reply by May 8, 2015. Signed by Judge James E. Boasberg on 03/10/15. (lcjeb3) (Entered: 03/10/2015)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 3/10/2015. (Defendants may file a motion for reconsideration by 4/1/201; Plaintiffs may oppose by 4/24/2015; and Defendants may file a reply by 5/8/2015). (Court Reporter Lisa Griffith) (kt) (Entered: 03/10/2015)
37 MOTION for Reconsideration re 33 Memorandum & Opinion by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Fabian, Sarah) (Entered: 03/20/2015)
38 Memorandum in opposition to re 37 MOTION for Reconsideration re 33 Memorandum & Opinion filed by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S.. (Attachments: # 1 Exhibit 1 − Declaration of Cecilia Menjivar, # 2 Exhibit 1A − Cecilia Menjivar CV, # 3 Exhibit 2 − Declaration of Laurie Cook Heffron, # 4 Exhibit 2A − Laurie Cook Heffron CV, # 5 Exhibit 3 − Supplemental Declaration of Jonathan Hiskey, # 6 Exhibit 4 − Supplemental Declaration of Nestor Rodriguez, # 7 Exhibit 5 − Supplemental Declaration of Luis Zayas)(Auerbach, Dennis) (Entered: 04/17/2015)
39 REPLY to opposition to motion re 37 MOTION for Reconsideration re 33 Memorandum & Opinion filed by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA. (Fabian, Sarah) (Entered: 05/01/2015)
40 NOTICE to Court by JEH CHARLES JOHNSON, PHILIP T. MILLER, SARAH R. SALDANA (Attachments: # 1 Press Release)(Fabian, Sarah) (Entered: 05/13/2015)

Case: 1:15-cv-11 As of: 11/05/2017 03:13 PM EST 11 of 11

05/18/2015
05/18/2015 05/26/2015 05/27/2015
05/27/2015 06/22/2015 06/22/2015 06/26/2015 06/29/2015

MINUTE ORDER: Given the filing of the Government's 40 Notice, the Court ORDERS that the parties shall appear for a status hearing on May 28, 2015, at 10:00 a.m. The parties shall be prepared to address the effect of the Notice on the Government's Motion for Reconsideration. Signed by Judge James E. Boasberg on 5/18/15. (lcjeb1) (Entered: 05/18/2015)
Set/Reset Hearing: A Status Conference is set for 5/28/2015, at 10:00 AM, in Courtroom 19, before Judge James E. Boasberg. (ad) (Entered: 05/18/2015)
41 Joint MOTION to Continue Status Conference of May 28, 2015 by C. M. A−C, W. M. C., J. P. L−M, R. I. L−R, G. A. P−C, G. C. R., J. A. R., Z. M. R., J. L. S., K. L. S. (Auerbach, Dennis) (Entered: 05/26/2015)
MINUTE ORDER granting the parties' Joint 41 Motion to Continue. The Court ORDERS that the status conference previously set for May 28, 2015, is hereby VACATED and RESCHEDULED to June 22, 2015, at 11:00 a.m. Signed by Judge James E. Boasberg on 5/27/15. (lcjeb1) (Entered: 05/27/2015)
Set/Reset Hearings: Status Conference RESCHEDULED for 6/22/2015 at 11:00 AM in Courtroom 19 before Judge James E. Boasberg. (tg) (Entered: 05/27/2015)
MINUTE ORDER: As discussed in today's status hearing, the Court ORDERS that by June 26, 2015, the parties shall submit a joint notice regarding future proceedings. Signed by Judge James E. Boasberg on 6/22/15.(lcjeb1) (Entered: 06/22/2015)
Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 6/22/2015. (By 6/26/2015, the parties shall submit a joint notice regarding future proceedings). (Court Reporter Lisa Griffith) (ad) (Entered: 06/22/2015)
42 MEET AND CONFER STATEMENT. (Fabian, Sarah) (Entered: 06/26/2015)
43 ORDER: Based on the parties' joint proposal, the Court ORDERS that: 1) The February 20, 2015, preliminary injunction and associated orders are DISSOLVED, except the portions of such orders and opinions granting Plaintiffs' Motion for Provisional Class Certification; and 2) The case is ADMINISTRATIVELY CLOSED, subject to the conditions laid out in this Order. Signed by Judge James E. Boasberg on 06/29/2015. (lcjeb3) (Entered: 06/29/2015)