UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALEXANDER ALLI (A 074 983 378) : ELECTRONICALLY FILED

ELLIOT GRENADE (A 36 479 546), :

on behalf of themselves and all others :

similarly situated,

:

:

Petitioners- Plaintiffs

:

: Civil Action No: 4:09-cv-

vs.

: 00698-JEJ-SF

:

THOMAS R. DECKER, his official : THE HONORABLE JOHN E.

capacity as Philadelphia Field Office : JONES, III

Director for Detention JOHN P.

:

TORRES, in his official capacity as :

Acting Assistant Secretary of U.S.

: CLASS ACTION

Immigration and Customs

:

Enforcement; JANET NAPOLITANO, :

in her official capacity as Secretary of :

the U.S. Department of Homeland

:

Security; ERIC HOLDER, in his

:

official capacity as Attorney General of :

the U.S. Department of Justice;

:

WILLIAM CAMPBELL, in his official :

capacity as Warden, Columbia County :

Prison, Bloomsburg, Pennsylvania;

:

JANINE DONATE, in her official

:

capacity as Warden, Lackawanna

:

County Prison, Scranton, Pennsylvania; :

THOMAS V. DURAN, in his official :

capacity as Warden, Clinton County :

Correctional Facility, McElhattan,

:

Pennyslvania; WILLIAM F.

:

JURACKA, in his official capacity as :

Warden, Carbon County Correctional :

Facility, Nesquehonin, Pennsylvania; :

CRAIG A. LOWE, in his official

:

capacity as Warden, Pike County

:

Correctional Facility, Lords Valley, :

Pennsylvania; RUTH RUSH, in her :

official capacity as Warden, Snyder :

County Prison, Selinsgrove,

:

Pennsylvania; MARY E. SABOL, in :

her official capacity as Warden, York :

County Prison, York, Pennsylvania; :

MICHAEL ZENK, in his official

:

capacity as Warden, CI Moshannon :

Valley Correctional Institution,

:

Philipsburg, Pennsylvania; JERRY C. :

MARTINEZ, in his official capacity as :

Warden, FCI Allenwood (Low),

:

Allenwood, Pennsylvania; DAVID

:

EBBERT, in his official capacity as :

Warden, FCI Allenwood (Medium), :

Allenwood, Pennsylvania; and R.

:

MARTINEZ, in his official capacity as :

Warden, FCI Allenwood (High),

:

Allenwood, Pennsylvania

:

:

Respondents- Defendants :

AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY RELIEF

INTRODUCTION 1. This class action habeas petition and complaint for declaratory relief is brought on behalf of lawful permanent residents who are being imprisoned for prolonged periods of time in Pennsylvania facilities without receiving the most basic element of Due Process—a custody hearing to determine if their prolonged detention is justified. 2. Petitioners and named plaintiffs Alexander Alli and Elliot Grenade (hereafter “Petitioners”) are longtime lawful pemanent residents of the United States who are challenging efforts by the Department of Homeland Security (“DHS”) to remove them from the United States. Both have substantial ties to this country, including children who are U.S. citizens. And both have substantial challenges to removal. Yet, each has been subject to prolonged detention—in Mr. Alli’s case for nearly nine months, and in Mr. Grenade’s case, for more than one and a half years—without any hearing to determine whether such detention is justified. 3. Petitioners are not alone. On any given day—DHS detains more than one thousand noncitizens in jails across the Commonwealth of Pennsylvania, particularly in the Middle District of Pennsylvania. Like Petitioners, many are lawful permanent residents who are detained for months, if not years, while the immigration courts and federal courts resolve their cases. Yet they never receive a
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custody hearing to determine whether their prolonged detention is even necessary. Indeed, many choose to abandon their meritorious cases because they cannot endure the prospect of being locked up indefinitely.
4. Petitioners bring this action on their own behalf, and on behalf of similarly-situated individuals, to obtain the custody hearing to which they are statutorily and constitutionally entitled. As set forth below, the Immigration and Nationality Act (“INA”) does not authorize prolonged, pre-final order detention of the kind Petitioners are suffering. Indeed, if it did, it would raise serious constitutional problems. The Supreme Court has repeatedly held that immigration detention violates Due Process unless it is reasonably related to its purpose. Moreover, where detention is prolonged, Due Process requires a “sufficiently strong special justification” to outweigh the significant deprivation of liberty, as well as strong procedural protections to ensure that an individual’s detention is actually serving legitimate governmental aims, see Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). At a minimum, these procedural protections include a hearing before an impartial adjudicator where the government bears the burden of justifying prolonged detention. Yet the government has failed to provide the Petitioners, and the class they seek to represent, with any custody hearing that would even approach what is constitutionally required.
5. Instead, pursuant to its unlawful policy and practice, the government
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has imprisoned Petitioners, and the similarly-situated persons they seek to represent, for prolonged periods of six months or more—and, in the case of Mr. Grenade, over one and a half years—without affording them a hearing to determine whether their prolonged detention is justified. This policy and practice violates both the INA and the Due Process Clause. To remedy this ongoing violation, Petitioners bring this action seeking declaratory and injunctive relief on behalf of themselves and declaratory relief on behalf of a class of similarly-situated persons. Petitioners do not seek an order granting their release, but merely a hearing where the government bears the burden of demonstrating that their prolonged detention is justified.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question); 28 U.S.C. §§ 2201-02 (declaratory relief); 28 U.S.C. § 2241 (habeas corpus); 5 U.S.C. § 702 (Administrative Procedures Act); 28 U.S.C. § 1651 (All Writs Act); the Due Process Clause of the U.S. Constitution; and the Suspension Clause of U.S. Constitution. 7. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to these claims occurred in this District. In the alternative, venue is proper in the District pursuant
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to 28 U.S.C. § 2241(d) because Petitioners and proposed class members are detained at facilities within this District.
PARTIES 8. Petitioner Alexander Alli is a citizen of Ghana and a longtime lawful permanent resident of the United States. He has been detained for nearly nine months while litigating his removal case. He has never been afforded a hearing to determine whether his prolonged detention is justified. He is currently detained at the York County Prison in York, Pennsylvania. 9. Petitioner Elliot Grenade is a citizen of Trinidad and Tobago and a longtime lawful permanent resident of the United States. He has been detained for 20 months while litigating his removal case. He has never been afforded a hearing to determine whether his prolonged detention is justified. He is currently detained at the Pike County Correctional Facility in Lords Valley, Pennsylvania. 10. Respondent Thomas R. Decker is the Field Office Director for Deportation and Removal in the Philadelphia Field Office of U.S. Immigration and Customs Enforcement. In this capacity, he has jurisdiction over the detention facilities in which Petitioners are held, is authorized to release Petitioners, and is a legal custodian of Petitioners. Mr. Decker is sued in his official capacity. 11. Respondent John T. Morton is the Assistant Secretary of U.S. Immigration and Customs Enforcement. In this capacity, he has responsibility for
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the enforcement of the immigration laws. As such, he is a legal custodian of Petitioners. Mr. Morton is sued in his official capacity.
12. Respondent Janet Napolitano is the Secretary of Homeland Security and heads the DHS, the arm of the federal government responsible for enforcement of immigration laws. Ms. Napolitano is the ultimate legal custodian of Petitioners. Ms. Napolitano is sued in her official capacity.
13. Respondent Eric Holder is the Attorney General of the United States and the head of the U.S. Department of Justice, which encompasses the Board of Immigration Appeals and immigration courts as a subunit known as the Executive Office of Immigration Review. Mr. Holder shares responsibility for the implementation and enforcement of immigration laws along with Respondent Napolitano. Mr. Holder is sued in his official capacity.
14. Respondent William Campbell is the Warden of the Columbia County Prison in Bloomsburg, Pennsylvania. He is the legal custodian of those detained at the Columbia County Prison. Mr. Campbell is sued in his official capacity.
15. Respondent Janine Donate is the Warden of the Lackawanna County Prison in Scranton, Pennsylvania. She is the legal custodian of those detained at the Lackawanna County Prison. Ms. Donate is sued in her official capacity.
16. Respondent Thomas V. Duran is the Warden of the Clinton County Correctional Facility in McElhattan, Pennsylvania. He is the legal custodian of
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those detained at the Clinton County Correctional Facility. Mr. Duran is sued in his official capacity.
17. Respondent William F. Juracka is the Warden of the Carbon County Correctional Facility in Nesquehonin, Pennsylvania. He is the legal custodian of those detained at the Carbon County Correctional Facility. Mr. Juracka is sued in his official capacity.
18. Respondent Craig A. Lowe is the Warden of the Pike County Correctional Facility in Lords Valley, Pennsylvania. He is the legal custodian of those detained at the Pike County Correctional Facility. Mr. Lowe is sued in his official capacity.
19. Respondent Ruth Rush is the Warden of the Snyder County Prison in Selinsgrove, Pennsylvania. She is the legal custodian of those detained at the Snyder County Prison. Ms. Rush is sued in her official capacity.
20. Respondent Mary E. Sabol is the Warden of the York County Prison in York, Pennsylvania. She is the legal custodian of those detained at the York County Prison. Ms. Sabol is sued in her official capacity.
21. Respondent Michael Zenk is the Warden of the CI Moshannon Valley Correctional Institution in Philipsburg, Pennsylvania. He is the legal custodian of those detained at the CI Moshannon Valley Correctional Institution. Mr. Zenk is sued in his official capacity.
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22. Respondent Jerry C. Martinez is the Warden of FCI Allenwood (Low) in Allenwood, Pennsylvania. He is the legal custodian of those detained at FCI Allenwood (Low). Mr. Martinez is sued in his official capacity.
23. Respondent David Ebbert is the Warden of FCI Allenwood (Medium) in Allenwood, Pennsylvania. He is the legal custodian of those detained at FCI Allenwood (Medium). Mr. Ebbert is sued in his official capacity.
24. Respondent R. Martinez is the Warden of FCI Allenwood (High) in Allenwood, Pennsylvania. He is the legal custodian of those detained at FCI Allenwood (High). Mr. Martinez is sued in his official capacity.
FACTS AND PROCEDURAL HISTORY Alexander Alli
25. Petitioner Alexander Alli, a longtime lawful permanent resident, has been detained for nearly nine months while challenging the Government’s efforts to remove him to Ghana, a country he left nearly 20 years ago. Moreover, as recognized by an Immigration Judge (“IJ”), Mr. Alli faces an indeterminate period of future detention while his immediate relative visa petition is pending at U.S. Immigration and Customs Enforcement (“USCIS”). See In the Matter of Alli, A 074-983-378, dated Jan. 29, 2009 (“IJ decision”), at 4, attached as Ex. A.
26. Mr. Alli came to the United States in 1990 and adjusted to lawful permanent resident status in 1996. See Notice to Appear, dated Feb. 29, 2008, and
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Additional Charges of Inadmissibility/Deportability, dated July 2, 2008, attached as Ex. B. He and his wife Rachel, a U.S. citizen, have been together for over twenty years and were married in the United States in 2006. They have three children together, all of whom are U.S. citizens. Mr. Alli has been licensed as a real estate broker and owns his own real estate business, Bambos Property Corporation, which employs 10 to 15 agents at any given time. Mr. Alli is also a devout Christian and belongs to two different congregations of the Redeemed Christian Church of God, where Mrs. Alli is an ordained Deaconess. Declaration of Alexander Alli (“Alli Decl.”) ¶¶ 12-33.
27. In June 2006, Mr. Alli was convicted for conspiracy to commit wire fraud, identity fraud, and access device fraud under 18 U.S.C. §§ 371, 1028, and 1029, respectively, and was sentenced to two years of incarceration. See Ex. B. Mr. Alli self-surrendered in January 2007 and completed his sentence in August 2008. See Bond Order, dated Mar. 9, 2005, attached as Ex. C. Mr. Alli has no other criminal history. See Alli Decl. ¶ 6.
28. U.S. Immigration and Customs Enforcement (“ICE”) took custody of Mr. Alli upon completion of his sentence on August 29, 2008. At that time, ICE served Mr. Alli with a Notice of Custody Determination informing him that he was subject to mandatory detention and therefore ineligible for a bond hearing. He has remained in ICE custody since that time—a period of nearly nine months. He is
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currently being held at the York County Prison in York, Pennsylvania. 29. In his removal proceedings, Mr. Alli is seeking an INA § 212(h)
waiver of inadmissibility for his convictions so that he may re-apply for lawful permanent resident status based on his marriage to his U.S. citizen wife. On January 29, 2009, the IJ held that Mr. Alli was eligible to seek such relief. See In the Matter of Alli, Ex. A, at 1. However, Mr. Alli will not receive a hearing on his application until his wife’s pending Form I-130 immediate relative visa petition is approved by USCIS. As the IJ specifically noted, “several months, and sometimes more than a year, is required” to process such visa petitions and Mr. Alli is therefore “looking at potential long-term mandatory detention.” Id. at 4.
30. During the entire length of his detention, Mr. Alli has received no custody hearing to determine whether his imprisonment is justified. Moreover, because the government asserts that he is subject to mandatory detention, see Ex. C, it maintains that it need never provide him with a custody hearing, regardless of how long his detention extends.
31. Mr. Alli is neither a flight risk nor a danger to the community. He has no violent criminal history and shows genuine evidence of rehabilitation. See Alli Decl. ¶¶ 6-11, 34-36. He has a history of appearing for legal proceedings, having self-surrendered for his criminal sentence after having been released on bond. See Ex. C; Alli Decl. ¶ 6. He has strong ties to family, church, and community and a
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colorable claim to relief that gives him a strong incentive to appear for his removal proceedings. Moreover, he has agreed to submit to supervision during the pendency of his case, including electronic monitoring if necessary. See Alli Decl. ¶¶ 34-36. Elliot Grenade
32. Petitioner Elliot Grenade, a longtime lawful permanent resident, has spent 20 months in detention while challenging the government’s efforts to remove him to Trinidad and Tobago, a country he left nearly 28 years ago. Moreover, over eighteen months of that detention is attributable to the government’s failure to send Mr. Grenade’s Board of Immigration Appeals (“BIA”) briefing schedule to the proper address.
33. Mr. Grenade entered the United States as a lawful permanent resident on or about August 6, 1981 when he was 21 years old. See Notice to Appear, dated Jan. 12, 2007, attached as Ex. D. He has a domestic partner and two children—Starquasia (age 11) and Elijah (age nine), who are all U.S. citizens, as well as an elderly mother who is a U.S. citizen. He has no family ties outside the United States. See Declaration of Elliot Grenade “Grenade Decl.”) ¶¶ 1, 6-9.
34. On April 27, 1995, Mr. Grenade pled guilty to criminal sale of a controlled substance in the fifth degree, in violation of N.Y. Penal Law § 220.31. At that time, his sentence date was deferred so that he could enter a drug treatment
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program. Mr. Grenade did not complete the program and on September 28, 2006 he was re-sentenced for the same offense to two to four years of jail time. He completed serving his sentence on September 28, 2007. See Grenade Decl. ¶ 4.
35. While Mr. Grenade was still serving his sentence, DHS commenced removal proceedings against him based on his drug offense. Ex. E. Litigating his removal case pro se, Mr. Grenade applied for relief from removal under former INA § 212(c) based on, inter alia, his long residence in the United States and his strong family ties. Nevertheless, the IJ ordered his removal to Trindad and Tobago on August 2, 2007. See Grenade v. Holder, No. 07-4953-ag (2d Cir. Apr. 29, 2009), at *2, attached as Ex. E. Mr. Grenade, still representing himself pro se, timely appealed the IJ’s decision to the BIA.
36. On September 18, 2007, upon completion of his criminal sentence and while his BIA appeal was pending, Mr. Grenade was taken into ICE custody and served with a Notice of Custody Determination indicating that he was subject to mandatory detention and therefore not eligible for a bond hearing. See Notice of Custody Determination, dated Dec. 28, 2006, attached as Ex. F. Since that time, Mr. Grenade has remained in ICE custody—a period of 20 months. He is currently being held at the Pike County Correctional Facility in Lords Valley, Pennsylvania.
37. On October 15, 2007, the BIA summarily dismissed Mr. Grenade’s appeal, based, in part, on his failure to submit a timely brief. See Grenade v.
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Holder, Ex. E, at *2. With the assistance of newly appointed pro bono counsel, Mr. Grenade appealed the BIA’s order to the U.S. Court of Appeals for the Second Circuit based, inter alia, on the fact that the Board had sent the briefing schedule to a non-existent address. Id. at *3. Ultimately, in April 2009—more than a year and a half after the BIA’s summary dismissal—the Second Circuit granted Mr. Grenade’s appeal and remanded his case to the Board for further proceedings. See id. at 4.
38. On remand, Mr. Grenade will raise a number of colorable challenges to the IJ’s denial of INA § 212(c) relief. These include the IJ’s failure to advise him of the availability of free legal services at trial which therefore prejudiced him in his ability to build his case for relief, see 8 C.F.R. § 1240.10, and the IJ’s error in weighing the strong equities in his case, such as the significant hardship his removal would cause his family, including his eighty-two year old mother, two children, and his domestic partner, all of whom are U.S. citizens; his 28 years of legal residence in the United States; his ties to the community, including his work with religious communities; and evidence of his rehabilitation. See generally, Grenade Decl.
39. To date, Mr. Grenade has received no hearing as to whether his detention is justified. Instead, the only process he has received consists of a number of perfunctory administrative custody reviews that, on information and
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belief, deemed him a danger and flight risk based on his criminal history alone. See Notice of File Custody Review, dated Dec. 3, 2007, attached as Ex. G; Decision to Continue Detention-Stay, dated Jan. 16, 2009, attached as Ex. H.
40. Moreover, because the government maintains that Mr. Grenade is subject to mandatory detention, see Ex. F, Mr. Grenade will receive no hearing regarding his imprisonment for as long as his removal proceedings remain pending. This is so regardless of how long it takes for the Board to decide his appeal or, should he win a remand, for the IJ to decide the merits of his claim for INA § 212(c) relief.
41. Mr. Grenade poses no danger or flight risk. If released, Mr. Grenade intends to join his mother and children in Danville, Virginia and help support his family. He has no violent criminal history, strong family ties, and a colorable claim to relief that gives him a strong incentive to appear for his removal proceedings. Moreover, he has agreed to submit to supervision during the pendency of his case, including electronic monitoring if necessary. Grenade Decl. ¶ 27.
CLASSWIDE ALLEGATIONS 42. Petitioners are among dozens of detainees in the State of Pennsylvania—and the Middle District of Pennsylvania in particular—who have been held for six months or more without a hearing to determine whether their
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prolonged detention is justified. Indeed, it is the government’s policy or practice to detain non-citizens for prolonged periods of time pending completion of their removal proceedings without providing them with hearings to determine whether such detention is justified.
43. Petitioners bring this action on behalf of themselves and all other similarly-situated persons in Pennsylvania pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) or, in the alternative, as a representative habeas class action for similarly-situated persons in the Middle District of Pennsylvania pursuant to a procedure analogous to Rules 23(a) and 23(b)(2). See Ali v. Ashcroft, 346 F.3d 873, 890-91 (9th Cir 2003), overruled on other grounds, Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005) (allowing class action habeas petition); Bijeol v. Benson, 513 F.2d 965, 969 (7th Cir. 1975) (same); United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1126-27 (2d Cir. 1974) (same). See also Geraghty v. U.S. Parole Commission, 429 F. Supp. 737, 740 (M.D. Pa. 1977) (noting that “procedures analogous to a class action have been fashioned in habeas corpus actions where necessary and appropriate”).
44. Petitioners propose to represent a class of all lawful permanent residents in Pennsylvania or, in the alternative, within this District who (1) are or will be detained for prolonged periods of six months or more under the pre-finalorder detention statute, 8 U.S.C. § 1226, pending completion of their removal
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proceedings, inclusive of judicial review where the removal order has been stayed; (2) have not been afforded a hearing to determine whether their prolonged detention is justified; (3) are not detained pursuant to one of the detention statutes that specifically authorizes prolonged detention in excess of six months on national security grounds, see 8 U.S.C. § 1226A; 8 U.S.C. §§ 1531-37 (authorizing prolonged detention of, inter alia, suspected terrorists); and (4) are not detained pursuant to 8 U.S.C. § 1225, the statute that governs pre-final-order detention of noncitizens who have not yet been admitted to the United States.
45. The proposed class meets the requirements of Federal Rules of Civil Procedure 23(a)(1). At any given time, Petitioners’ counsel have been aware of roughly 40 other potential class members in this District alone who, like Petitioners, have been detained for six months or more pending completion of removal proceedings and have never been given a hearing to determine whether their prolonged detention is justified. Declaration of Michael Tan ¶ 2. Indeed, ICE’s own length of stay report for January 25, 2009 suggests that, on that date, dozens and possibly more similarly-situated non-citizens in removal proceedings had been detained in this District and in Pennsylvania as a whole for six months or longer without a hearing. Id. at ¶¶ 11-17. In addition, other persons will be subject to the government’s detention policy or general practice in the future. Joinder of all members of this class is therefore impracticable.
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46. The proposed class meets the requirements of Federal Rule of Civil Procedure 23(a)(2). There are several common questions of law and fact in this action. These include: (1) whether the government has a policy or general practice of detaining non-citizens for six months or more pending completion of removal proceedings without providing a hearing to determine whether such detention is justified; (2) whether this detention policy or practice is authorized by statute; and (3) whether this detention policy or practice violates the Due Process Clause.
47. The proposed class meets the requirements of Federal Rule of Civil Procedure 23(a)(3). The claims of the named Petitioners are typical of the claims of the proposed class. Like all the proposed class members, the named Petitioners are lawful permanent residents who have been detained, pursuant to the government’s policy and practice, pending completion of removal proceedings, inclusive of judicial review where the removal order has been stayed, but have never been afforded a hearing to determine whether their prolonged detention is justified.
48. The proposed class meets the requirements of Federal Rule of Civil Procedure 23(a)(4). The named Petitioners will fairly and adequately represent the interests of all members of the proposed class because they seek relief identical to the relief sought by all class members, and because they have no interests adverse to other class members. Moreover, the named Petitioners are represented by pro
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bono counsel from the ACLU Immigrants’ Rights Project, the ACLU of Pennsylvania, and the law firm of Pepper Hamilton LLP. The organizations and attorneys working for the named Petitioners have extensive experience litigating on behalf of detained immigrants and litigating class actions.
49. The proposed class meets the requirements of Federal Rule of Civil Procedure 23(b)(2). Respondents have acted on grounds generally applicable to the class through their policy and practice of detaining non-citizens for six months or longer pending completion of removal proceedings without providing them a hearing to determine whether such prolonged detention is justified, making classwide declaratory relief appropriate. LEGAL BACKGROUND
50. Petitioners request only one form of relief: a constitutionally adequate hearing to determine whether their prolonged detention is justified. Petitioners argue here that: (1) the Immigration and Nationality Act (INA) does not authorize their prolonged detention without such a hearing, and (2) if it does, their prolonged detention without adequate review violates the Due Process Clause.
51. In Demore v. Kim, the Supreme Court upheld the constitutionality of mandatory, pre-final order detention only where the non-citizen had conceded removability and was held for the “brief period necessary for [completing] removal proceedings.” 538 U.S. 510, 513 (2003) (emphasis added). The Demore Court,
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however, did not address the permissibility of detention where that detention is prolonged in nature, and especially in cases where, as here, the individuals being detained are pursuing a colorable challenge to removal.
52. As set forth below, the INA does not authorize prolonged, pre-final order detention of the kind Petitioners have suffered and, indeed, would raise serious constitutional problems if it did. The Supreme Court has repeatedly held that immigration detention violates due process unless it is reasonably related to its purpose. Moreover, where detention is prolonged, due process requires a “sufficiently strong special justification” to outweigh the significant deprivation of liberty, as well as strong procedural protections to ensure that an individual’s detention is actually serving those governmental aims. See Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). Yet the government has failed to provide review that even approaches constitutional minimums.
53. This Court need not—and should not—decide the serious constitutional questions raised by Petitioners’ prolonged, pre-final order detention. Principles of statutory construction require that, where possible, courts should construe statutes so as to avoid serious constitutional problems. Indeed, the Supreme Court applied this canon in Zadvydas, construing the post-final-order detention statute as authorizing detention only for the period of time reasonably necessary to effectuate removal, and designating six months as the presumptively
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reasonable period, even though the statute itself placed no limit on the length of detention. See id. at 701. Likewise here, the pre-final-order statute is silent with respect to both the length of detention authorized and the procedures necessary to impose such detention. In the absence of any evidence that Congress intended to authorize prolonged detention without a constitutionally adequate hearing, this Court should construe the statute as authorizing prolonged, pre-final order detention only when accompanied by adequate procedural safeguards. Thus, on statutory grounds alone, this Court should order the government to provide Petitioners and the class they seek to represent with a constitutionally adequate custody hearing.
I. The INA Does Not Authorize Petitioners’ Prolonged Detention Without Constitutionally Adequate Procedural Protections. 54. The rule of constitutional avoidance requires construing the pre-final order detention statute not to authorize Petitioners’ prolonged detention in the absence of an adequate bond hearing. The avoidance canon dictates reading a statute as not authorizing unconstitutional action unless no other construction is even “fairly possible.” Zadvydas, 533 U.S. at 689; see also Crowell v. Benson, 285 U.S. 22, 62 (1932). This canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005); see also Sandoval v. Reno,
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166 F.3d 225, 237 (3d Cir. 1999).
55. The Supreme Court has consistently applied the canon of constitutional avoidance to immigration statutes. Thus, in Zadvydas, the Court held that the general detention statute governing post-final order detention, 8 U.S.C. § 1231(a)(6), is insufficiently clear to authorize prolonged and indefinite detention. Zadvydas, 533 U.S. at 697 (“if Congress had meant to authorize longterm detention of unremovable aliens, it certainly could have spoken in clearer terms”); see also id. at 689, 699.
56. Applying the same rule here, the pre-final order detention statute should be construed as not authorizing prolonged detention without a constitutionally adequate hearing so long as another construction is “fairly possible.” See id. at 689.
A. The Pre-Final Order Detention Statute Does Not Expressly Authorize Prolonged Detention.
57. Petitioners and the detainees they seek to represent are detained under 8 U.S.C. § 1226, the statute that governs the pre-final order detention of most noncitizens who have been admitted to the United States and whom the government is trying to remove. 8 U.S.C. § 1226(a) authorizes discretionary detention of such non-citizens “pending a decision” as to removal, except for certain non-citizens removable on criminal or terrorism-related grounds who are subject to mandatory pre-final order detention under 8 U.S.C. § 1226(c).
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58. None of the Petitioners nor any other person they seek to represent are detained pursuant to one of the detention statutes that specifically authorizes prolonged detention on national security grounds. See 8 U.S.C. § 1226a; 8 U.S.C. §§ 1531-37 (authorizing prolonged detention of, inter alia, suspected terrorists).
59. Nothing in the plain language of § 1226 states that it authorizes prolonged detention. Nor is there any other evidence that Congress intended to authorize prolonged detention.
60. Indeed, in upholding the constitutionality of § 1226(c), the Supreme Court specifically described that statute as authorizing mandatory detention only “during the brief period necessary for . . . removal proceedings,” Demore, 538 U.S. at 513—a period that typically “lasts roughly a month and a half in the vast majority of cases . . . and about five months in the minority of cases in which the alien chooses to appeal [to the BIA].” Id. at 530; see also Madrane v. Hogan, 520 F. Supp. 2d 654, 664 (M.D. Pa. 2007) (noting that “[t]he emphasis in Demore on the anticipated limited duration of the detention period is unmistakable, and the Court explicitly anchored its holding by noting a brief period.”) (internal citations omitted). Cf. Nadarajah v. Gonzales, 443 F.3d 1069, 1079 (9th Cir. 2006) (holding that where Congress intended to authorize prolonged and indefinite detention, i.e., in cases involving specific types of national security risks, it did so clearly and that “general detention statutes” authorize detention only for “brief and
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reasonable” time periods).
61. The existence of distinct statutory provisions—namely, 8 U.S.C. § 1537(b)(1), 1226A(a)(2)—that do expressly authorize the prolonged detention of terrorists further demonstrates that Congress did not intend for a general detention statute such as § 1226 to serve this purpose. Notably, the Supreme Court specifically referenced these provisions in concluding that statutes that do not expressly authorize prolonged and indefinite detention should not be read to do so. See Zadvydas, 533 U.S. at 697; Martinez, 543 U.S. at 379 n.4, 386. Unlike § 1226, these special statutes clearly address the question of how long a non-citizen subject to their provisions may be detained: “until the completion of any appeal” in the case of the Alien Terrorist Removal provisions, 8 U.S.C. § 1537(b)(1), and “until the alien is removed from the United States” in the case of the Patriot Act. 8 U.S.C. § 1226A(a)(2).
B. Prolonged Detention Without Adequate Procedural Safeguards Raises Serious Constitutional Concerns.
62. The Supreme Court has held that due process requires a “sufficiently strong special justification” to “outweigh[]” detention’s significant deprivation of liberty, as well as strong procedural protections. See Zadvydas, 533 U.S. at 69091. As detention becomes prolonged, the deprivation of liberty becomes greater, requiring an even stronger justification and more rigorous procedural protections. See Kansas v. Hendricks, 521 U.S. 346, 368 (1997) (upholding involuntary civil
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commitment for periods of one year at a time, subject to “strict procedural safeguards” including right to jury trial before state court and imposition of burden of proof beyond a reasonable doubt on the government).
63. Similarly, the Third Circuit has emphasized, even with respect to “excludable” non-citizens, that “when detention is prolonged, special care must be exercised . . . . The stakes are high and we emphasize that grudging and perfunctory review is not enough to satisfy the due process right to liberty . . . .” Ngo v. INS, 192 F.3d 390, 398 (3d Cir. 1999).
64. Notably, unlike the Petitioners here and the class they seek to represent, Zadvydas and Ngo involved individuals who had been finally ordered removed—i.e., who had exhausted all administrative and judicial challenges to removal and whose removal order could have been effectuated if a country had been willing to take them back. In contrast, individuals like Petitioners and proposed class members are pursuing colorable challenges to removal on which they may well prevail.
65. In addition, Ngo involved an “excludable alien.” As the Third Circuit has recognized, “excludable aliens traditionally have been afforded less constitutional protection than deportable [i.e., admitted] aliens.” Patel, 275 F. 3d at 310. Non-citizens who have been admitted to the country, moreover as lawful permanent residents, hold even greater due process rights, see Zadvydas, 533 U.S.
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at 693; see also Landon v. Plasencia, 459 U.S. 21, 32-33 (1982), and thus even greater care must be exercised with respect to their prolonged confinement.
66. As previously noted, in Demore, the Supreme Court upheld pre-final order mandatory detention for the brief period of time necessary to complete removal proceedings. Since Demore, the circuit courts considering the issue have acknowledged the serious constitutional concerns raised by prolonged, pre-final order detention. See Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (finding that petitioner’s prolonged mandatory detention while pursuing administrative and judicial review of his removal order raised serious constitutional problems and construing statute to require IJ bond hearing where Government bore burden of justifying imprisonment); Casas-Castrillon v. Dep’t of Homeland Security, 535 F.3d 942, 948 (9th Cir. 2008) (finding that “mandatory, bureaucratic detention of aliens under § 1226(c) was intended to apply for only a limited time”); Ly v. Hansen, 351 F.3d 263, 271-72 (6th Cir. 2003) (construing pre-final-order detention statute, § 1226, as authorizing detention only for “a time reasonably required to complete removal proceedings in a timely manner,” and finding prolonged detention to be “especially unreasonable” where no chance of actual removal existed); Cf. Demore, 538 U.S. at 532-33 (Kennedy, J. concurring) (noting that, at some point, prolonged mandatory detention is not reasonably related to removal); Tijani, 430 F. 3d at 1249 (Tashima, J., concurring) (noting that the “sheer length”
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of petitioner’s detention violates the Constitution). See also Welch v. Ashcroft, 293 F.3d 213, 224 (4th Cir. 2002) (holding, pre-Demore, prolonged detention of “a longtime resident alien with extensive community ties, with no chance of release and no speedy adjudication rights” to be impermissible); Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir. 2007) (acknowledging that “[i]nordinate delay before [a removal] order was entered might well justify relief” from mandatory detention but declining to decide the issue on mootness grounds).
67. Several judges within the Middle District of Pennsylvania have recently held the same. See, e.g., Madrane, 520 F. Supp. at 666 (expressing “concern over what appears to be an extraordinarily lengthy deprivation of liberty” under § 1226(c)); Nunez-Pimentel v. U.S. Dep’t of Homeland Security, No. 071915, 2008 WL 2593806 (M.D. Pa. June 27, 2008) (same); Victor v. Mukasey, No. 08-1914, 2008 WL 5061810, at *3 (M.D. Pa. Nov. 25, 2008) (same); Wilks v. U.S. Dep’t Homeland Security, No. 07-2171, 2008 WL 4820654, at *2 (M.D. Pa. Nov. 3, 2008) (construing § 1226(c) to not authorize mandatory detention “beyond the period typically required for removal proceedings”).
68. Thus, even if § 1226(c) was properly applied to Petitioners at the beginning of their detention, it does not authorize their mandatory detention now. The excessive length of Petitioners’ detention—which has reached beyond the average five-month period recognized by the Supreme Court in Demore for cases
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involving administrative appeals, 538 U.S. at 530—is patently unreasonable, at least in the absence of a constitutionally adequate custody hearing.
69. Indeed, the unreasonableness of Petitioners’ detention is further demonstrated not only by the length of detention they have already endured, but also by the indeterminate, potentially lengthy, future detention they face. See, e.g., Ly, 351 F.3d at 271-72; Tijani, 430 F.3d at 1242.
70. For example, if Mr. Grenade prevails on his appeal at the BIA, his case will be remanded back to the IJ for further proceedings, which itself could take a significant amount of time. Mr. Alli will not even have his individualized merits hearing on his adjustment claim before the IJ until his immediate relative visa petition is approved. See, e.g., Ly, 351 F.3d at 265 (noting that the petitioner’s case was pending before the IJ for more than 18 months, most of this time waiting for a merits hearing and a decision); Madrane, 520 F. Supp. 2d at 667 (expressing concern that “the administrative and appellate process that has yet to be exhausted may be considerably time-consuming”); Nunez-Pimentel, 2008 WL 2592806 at *5 (same); Victor, 2008 WL 5061810, at *4-5 (same).
71. Likewise, if Messrs. Alli or Grenade were to lose before the IJ or the BIA, they would almost certainly seek further review from the Court of Appeals. There is thus simply no way to predict how long it will take before Petitioners’ removal challenges will finally be resolved. Such resolution could take months or
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even years, during which time Petitioners will be needlessly forced to endure further detention.
C. The Pre-Final Order Detention Statute Should Be Construed as Requiring a Constitutionally Adequate Bond Hearing Whenever Detention Extends Six Months or Beyond.
72. Once mandatory detention exceeds the brief period of time contemplated by Demore, the only authority for continuing such detention is § 1226(a). See 8 U.S.C. § 1226(a) (generally providing for discretionary detention of arrested non-citizens “[e]xcept as provided in subsection (c) of this section”); cf. Casas-Castrillon, 535 F.3d at 948-49 (holding that § 1226(c) provides no authority for mandatory detention of individuals beyond the brief period contemplated in Demore and that § 1226(a) therefore applies).
73. In order to address the serious due process concerns raised by prolonged, pre-final order detention without adequate review, and in the absence of any evidence that Congress intended to authorize such detention, this Court should construe § 1226(a) to require a bond hearing whenever detention has extended to six months or longer. Moreover, in order for that hearing to be constitutionally adequate, the government should bear the burden of proof of showing a sufficiently strong justification to outweigh the deprivation of liberty caused by continued detention.
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74. In the civil detention context, the Supreme Court has repeatedly emphasized the importance of placing the burden of proof on the government to justify continued detention. See, e.g., Zadvydas, 533 U.S. at 692 (criticizing the regulations governing prolonged immigration detention for placing the burden of proof on the non-citizen); Tijani, 430 F.3d at 1242, 1244-45 (Tashima, J. concurring) (noting that when the right to individual liberty is at stake, Supreme Court precedent rejects laws that place on the individual the burden of protecting that right); Foucha v. Louisiana, 504 U.S. 71, 81 (1992) (striking civil commitment statute because individual was denied an ‘‘adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community’’); United States v. Salerno, 481 U.S. 739, 750 (1987) (upholding pre-trial detention under Bail Reform Act where Act provided for “a full-blown adversary hearing, the Government must convince a neutral decision-maker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person”); Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding that state must justify civil commitment by clear and convincing evidence of mental illness and dangerousness and rejecting preponderance standard); Hendricks, 521 U.S. at 353 (noting that state statute providing for civil detention of “sexually violent predators” required prosecutor to prove beyond a reasonable doubt whether detention was justified during a trial at
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which the individual had the right to counsel and right to present evidence and cross-examine witnesses).
75. In recognition of these concerns, both the Ninth Circuit and this Court have construed § 1226 to require a bond hearing where the Government bears the burden of demonstrating that prolonged detention is justified. See CasasCastrillon, 535 F.3d at 950 (construing § 1226(a) as requiring such a hearing); Tijani, 430 F.3d at 1242 (finding that mandatory detention does not apply when proceedings are not “expeditious,” and ordering the petitioner’s release unless the Government established at a hearing before an IJ that his prolonged detention was justified); Wilks, 2008 WL 4820654 at *2 (same). Thus, this Court should likewise construe § 1226(a) to require a constitutionally adequate custody hearing where, as here, detention has become prolonged in nature.
76. Detention should be deemed “prolonged” in nature whenever it extends six months or longer. See Zadvydas, 533 U.S. at 701; Demore, 538 U.S. at 513; Nadarajah, 443 F.3d at 1079.
77. Moreover, as set forth above, the reasonableness of detention is defined by both the length of detention to date and length of future detention. See supra. Consequently, the government must be required to justify continued detention in light of both the length of past detention and the prospective length of detention in the future.
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II. The Due Process Clause Requires that Petitioners Be Afforded a Hearing as to Whether Their Prolonged Detention is Justified.
78. Assuming arguendo that the INA did authorize Petitioners’ prolonged detention without a constitutionally adequate hearing, such detention would violate the Due Process Clause. As the Supreme Court has recognized, “[f]reedom from imprisonment—from Government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Moreover, as previously set forth, non-citizens—even those, who unlike Petitioners have exhausted all their challenges to removal and are simply waiting to be removed—have a liberty interest threatened by immigration detention. Id. at 690-91; see also Patel v. Zemski, 275 F.3d 299, 309 (3d Cir. 2001), overruled on other grounds, Demore v. Kim, 538 U.S. 510 (2003) (recognizing “the critical liberty interest implicated by immigration detention”).
79. For this reason, the Supreme Court has held that detention violates due process without a “sufficiently strong special justification” to “outweigh[]” the significant deprivation of liberty. Zadvydas, 533 U.S. at 690-91; see also Ngo, 192 F.3d at 398.
80. Moreover, due process requires “strong procedural protections” to ensure that detention is justified. See Zadvydas, 533 U.S. at 690-91; see also Ngo, 162 F.3d at 398. As the Supreme Court has held, to be constitutionally adequate, such review must allocate the burden of proof to the government to demonstrate a
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sufficiently strong special justification for continued detention. See supra. ¶ 73. Because Petitioners in this case and the class they seek to represent have not received any hearing regarding their prolonged detention, much less review that even approaches these constitutional minimums, their continued detention violates the Due Process Clause.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION VIOLATION OF IMMIGRATION AND NATIONALITY ACT— PROLONGED DETENTION IN THE ABSENCE OF A HEARING WHERE THE GOVERNMENT BEARS THE BURDEN OF SHOWING THAT SUCH PROLONGED DETENTION IS JUSTIFIED 81. The foregoing allegations are realleged and incorporated herein. 82. 8 U.S.C. § 1226—the provision of the Immigration and Nationality Act (INA) under which Petitioners and other proposed class members are detained—is silent with regard to the procedures required if such detention becomes prolonged. Because of the serious constitutional problems that would be posed if the statute authorized prolonged detention without the kind of strong justification and procedural safeguards that such detention would require—and in the absence of any indication that Congress intended this result—this Court must construe the statute as requiring a constitutionally adequate hearing where the government bears the burden of showing that prolonged detention is justified. 83. Because Petitioners and other proposed class members have been
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detained for a prolonged period of time without a constitutionally adequate custody hearing, their detention violates the INA.
SECOND CAUSE OF ACTION VIOLATION OF IMMIGRATION AND NATIONALITY ACT AND THE ADMINISTRATIVE PROCEDURES ACT—PROLONGED DETENTION IN THE ABSENCE OF A HEARING WHERE THE GOVERNMENT BEARS THE BURDEN OF SHOWING THAT SUCH PROLONGED DETENTION IS
JUSTIFIED 84. The foregoing allegations are realleged and incorporated herein. 85. Pursuant to the Administrative Procedures Act, 5 U.S.C. § 702, “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 86. Petitioners and the members of the proposed class have been so aggrieved. 87. 8 U.S.C. § 1226—the provision of the Immigration and Nationality Act (INA) under which Petitioners and other proposed class members are detained—is silent with regard to the procedures required if such detention becomes prolonged. Because of the serious constitutional problems that would be posed if the statute authorized prolonged detention without the kind of strong justification and procedural safeguards that such detention would require—and in the absence of any indication that Congress intended this result—this Court must construe the statute as requiring a constitutionally adequate hearing where the
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government bears the burden of showing that prolonged detention is justified. 88. Because Petitioners and other proposed class members have been
detained for a prolonged period of time without a constitutionally adequate custody hearing, their detention violates the INA and the Administrative Procedures Act.
THIRD CAUSE OF ACTION VIOLATION OF DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT—PROLONGED DETENTION WITHOUT A CONSTITUTIONALLY ADEQUATE HEARING WHERE THE GOVERNMENT BEARS THE BURDEN OF SHOWING THAT SUCH
DETENTION IS JUSTIFIED
89. The foregoing allegations are realleged and incorporated herein. 90. Prolonged detention violates Due Process unless it is accompanied by strong procedural protections to protect against the erroneous deprivation of liberty. Zadvydas, 533 U.S. at 690-91; Ngo, 192 F.3d at 398. Moreover, when the government deprives an individual of a significant liberty interest, the burden of justifying such a deprivation should be placed on the government. See Tijani, 430 F.3d at 1242; Casas-Castrillon, 535 F.3d at 950. 91. During their detention, Petitioners and other proposed class members have never had a custody hearing where the government bore the burden of demonstrating that their prolonged detention is justified. 92. Petitioners’ and other proposed class members’ prolonged detention has not been accompanied by the kind of procedural protections that such a significant deprivation of liberty requires.
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93. For the foregoing reasons, Petitioners’ and other proposed class members’ continued detention violates Due Process.
PRAYER FOR RELIEF WHEREFORE, Petitioners pray that this Court grant the following relief:
(a) Appoint Petitioners’ Counsel as Class Counsel; (b) Order a constitutionally-adequate hearing where the government must demonstrate that Petitioners’ continued detention is justified; (c) Declare that Respondents’ failure to provide Petitioners and all proposed class members a constitutionally adequate hearing, where the government must demonstrate that Petitioners’ and each proposed class member’s continued detention is justified, violates the Immigration and Nationality Act, the Administrative Procedures Act and the Due Process Clause of the Fifth Amendment; (d) Grant Petitioners’ reasonable attorneys’ fees, costs, and other disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and (e) Grant any other and further relief that this Court deems just and proper, including appropriate relief to all class members upon consideration of Petitioners’ forthcoming motion for class certification.
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Dated: May 27, 2009

s/ Frederick Alcaro

Judy Rabinovitz (NY JR-1214)

(Pro Hac Vice Pending)

Michael Tan (NY 4654208)

(Pro Hac Vice Pending)

Eunice Lee (NY 4607859)

(Pro Hac Vice Pending)

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

IMMIGRANTS’ RIGHT PROJECT

125 Broad Street, 18th Floor

New York, NY 10004

Phone: (212) 549-2618

Fax:

(212) 549-2654

Email: jrabinovitz@aclu.org

mtan@aclu.org

elee@aclu.org

Witold Walczak (PA 62976)

Valerie Burch (PA 92873)

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

PENNSYLVANIA

105 North Front Street, Suite 225

Harrisburg, PA 17101

Phone: (717) 236-6827

Fax:

(710 236-6895

Email: vwalczak@aclupgh.org

vburch@aclupa.org

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Thomas B. Schmidt, III (PA 19196)

Kathleen A. Mullen (PA 84604)

Frederick Alcaro (PA 91555)

PEPPER HAMILTON LLP

100 Market Street, Suite 200

P.O. Box 1181

Harrisburg, PA 17108-1181

Phone: (717) 255-1155

Fax:

(717) 238-0575

Email: schmidtt@pepperlaw.com

mullenk@pepperlaw.com

alcarof@pepperlaw.com

Attorneys for Petitioners-Plaintiffs Alexander Alli and Elliot Grenade

Stanley J. Ellenberg (PA 20710) 1518 Walnut Street, Suite 600 Philadelphia, PA 19102 Phone: (215) 790-1682 Email: ebergs@aol.com
Attorney for Petitioner-Plaintiff Alexander Alli

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CERTIFICATE OF SERVICE I certify that on May 27, 2009, I caused a copy of the foregoing Amended Petition For Writ Of Habeas Corpus And Complaint For Declaratory Relief to be served on counsel listed below by the Middle District ECFS: Dennis Pfannenschmidt U.S. Attorney’s Office Suite 202 Harrisburg, PA 17108
/s/ Frederick Alcaro

 
 Case 4:09-cv-00698-JEJ-SF Document 56 Filed 08/10/2009 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALEXANDER ALLI and ELLIOTT GRENADE,
Petitioners
v.
THOMAS DECKER, et al., Respondents

:

No. 4:09-CV-0698

:

:

Judge John E. Jones III

:

:

:

:

:

MEMORANDUM AND ORDER

August 10, 2009

This matter is before the Court in what the respondents correctly note is a

rather unique procedural posture. Before the Court are the Amended Petition for

Writ of Habeas Corpus and Complaint for Declaratory Relief (Doc. 9) of

petitioners Alexander Alli and Elliot Grenade as well as the petitioners’ Motion

for a Preliminary Injunction (Doc. 27) and Motion for Class Certification (Doc.

17). By this Memorandum and Order, the Court does not finally resolve the

petitioners’ claims, but sets forth its initial legal holdings and establishes a

framework for additional proceedings.

I. BACKGROUND

The petitioners are lawful permanent residents charged by the Bureau of

Immigration and Customs Enforcement with being deportable from the United

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States as a result of certain criminal convictions. In their combination habeas petition and civil complaint, the petitioners challenge their detention during the pendency of removal proceedings pursuant to the mandatory detention provisions of Section 236(c) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c). As of the date of the filing of their amended petition, Alli and Grenade had been detained for approximately 9 months and 20 months respectively.1 The petitioners seek a declaration that the failure to provide them with a hearing at which the government must justify their continued detention violates the INA and the Due Process Clause of the Fifth Amendment. The petitioners also seek an order directing the government to conduct such hearings and have moved for a preliminary injunction directing the government to conduct their hearings within 14 days.
In addition to their individual claims, the petitioners propose to represent a class of all lawful permanent residents in Pennsylvania, or alternatively in this judicial district, who are or will be subject to detention for 6 months or more under § 1226(c) without an individualized hearing at which the government must justify detention. As classwide relief, the petitioners seek a declaration that the failure to
1 The parties dispute how much of Grenade’s detention is actually pursuant to § 1226(c). For the reasons explained below, however, the Court need not resolve this dispute now.
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provide all class members who are or will be detained under § 1226(c) for 6 months or more with individualized detention hearings violates the INA and due process. II. DISCUSSION 2
A. Petitioners’ Individual Claims The detention of an alien pending a decision on whether he is to be removed from the United States is governed by § 236 of the INA, codified at 8 U.S.C. § 1226. Under § 1226(a), the Attorney General (now the Secretary of Homeland Security)3 is granted discretion to detain the alien or release the alien on bond and with conditions. Under § 1226(c), however, the Attorney General “shall take into custody any alien who... is deportable by reason of having committed” certain aggravated offenses. 8 U.S.C. § 1226(c)(1)(B) (emphasis added). Because of their prior offenses falling within the scope of the that section, the petitioners in this case have been mandatorily detained pursuant to § 1226(c).
2 No party disputes the jurisdiction of the Court to consider this action. See Demore v. Kim, 538 U.S. 510, 516-17 (2003); Zadvydas v. Davis, 533 U.S. 678, 688 (2001); DeSousa v. Reno, 190 F.3d 175, 182-183 (3d Cir.1999); Sandoval v. Reno, 166 F.3d 225, 238 (3d Cir. 1999).
3 The Homeland Security Act of 2002 transferred most immigration-related functions of the Attorney General to the Secretary of the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. For the sake of convenience, throughout this opinion we use the term Attorney General as contained in the statute.
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In considering the petitioners’ challenge to their detention, we must start from the Supreme Court’s holding in Demore v. Kim, 538 U.S. 510 (2003), that mandatory detention during removal proceedings under § 1226(c), without an individualized bond hearing, does not violate due process. In that case, the Court held that “Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings.” Id. at 513; see also id. at 526 (noting the “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings”). The Court found that the petitioner’s six-month detention under § 1226(c) did not violate due process.
In doing so, the Court distinguished its prior decision in Zadvydas v. Davis, 533 U.S. 678 (2001), wherein the Court considered a due process challenge to detention of aliens under 8 U.S.C. § 1231, which governs detention following a final order of removal. Under § 1231(a)(6), when an alien who has been ordered removed is not in fact removed during the 90-day statutory “removal period,” that alien “may be detained beyond the removal period” in the discretion of the Attorney General. In order to avoid “serious constitutional concerns” raised by
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the indefinite detention possible under the statute, the Zadvydas court construed § 1231 to authorize continued detention of an alien following the 90-day removal period for only such time as is reasonably necessary to secure the alien’s removal. 533 U.S. at 699. Based on the views of Congress, and for the sake of uniform administration in federal courts, the Zadvydas court held that an alien’s detention for more than six months after the issuance of a final order of removal is presumptively unreasonable, and that after this six-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing and demonstrate that detention remains reasonable. Id. at 701.
In Demore, the court distinguished Zadvydas on two grounds. First, in Zadvydas, the aliens challenging their detention were ones for whom removal was no longer practically attainable, and, therefore, continued detention did not serve the purpose of § 1231, which is prevent aliens from fleeing prior to their removal. By contrast, the Court found that detention pursuant to § 1226(c) “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.” Id. at 527-28. Second, while
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the period of detention at issue in Zadvydas was “indefinite” and “potentially permanent,” 533 U.S., at 690-691, the Court found that the detention at issue in Demore was of a much shorter duration. 538 U.S. at 528. The Demore court noted that “in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days,” and that “[i]n the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.” Id. at 529; see also id. at 530 (stating “[i]n sum, the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal”).
In this case, the respondents stress the holding of Demore, that mandatory detention under § 1226(c) is constitutional, and that, in contrast to the indefinite and potentially permanent detention at issue in Zadvydas, detention under § 1226(c) has a definite end point at the conclusion of the removal proceedings. The petitioners concede that brief detention under § 1226(c) is constitutional, but maintain that “prolonged” detention, which they argue presumptively begins at six months, raises serious constitutional concerns. The petitioners argue that to avoid
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constitutional problems, § 1226(c) must be interpreted to permit mandatory detention only for a brief period of time – six months – and that detention after this is permitted only after a bond hearing is held under § 1226(a).
In this case, the Court concurs with the growing consensus within this district and, indeed it appears throughout the federal courts, that prolonged detention of aliens under § 1226(c) raises serious constitutional concerns. See, e.g., Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003); Prince v. Mukasey, 593 F. Supp. 2d 727, 734 (M.D. Pa. 2008). Although mandatory detention under § 1226(c) serves the statutory purpose of guaranteeing an alien’s presence at removal proceedings, prolonged detention contravenes the intent of Congress that such proceedings proceed expeditiously. Ly, 351 F.3d at 269; see also Patel v. Zemski, 275 F.3d 299, 304 (3d Cir. 2001), overruled on other grounds by Demore, 538 U.S. at 516 (noting “[t]he current immigration laws reflect part of a growing effort by Congress to expedite the removal of criminal aliens”). Moreover, although detention under § 1226(c) is not indefinite in that there will, at some point, be an end to removal proceedings, the holding of Demore that mandatory detention is constitutional cannot be divorced from the Supreme Court’s observation that such detention is of a relatively short duration. 538 U.S. at 528-29. The Demore court repeatedly
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qualified its holding by noting that mandatory detention is constitutionally permissible for the “brief,” id. at 513, 523, “limited,” id. at 526, 529 n.12, 531 and “temporary,” id. at 531, period necessary for removal proceedings. When it moves beyond the brief and limited period reasonably necessary to accomplish removal proceedings, mandatory detention is inconsistent with both the due process required by the Constitution and the statutory purposes of the INA. The Court also agrees with the numerous opinions which have concluded that, under the canon of constitutional avoidance, § 1226(c) should be read to avoid such constitutional concerns. See, e.g., Tijani, 430 F.3d at 1242; Ly, 351 F.3d at 270; cf. Zadvydas, 533 U.S. at 689. The question becomes how to interpret § 1226(c) to meet constitutional requirements, and courts have taken divergent approaches.
In Casas-Castrillon, 535 F.3d 942 (9th Cir. 2008), the Ninth Circuit adopted the approach urged by the petitioners here. The court in that case addressed the different circumstances of an alien who was subject to § 1226(c), but who had already been ordered removed and whose detention continued while he judicially challenging his removal order. The Ninth Circuit held that because neither § 1226(c) nor § 1231 authorizes prolonged detention pending judicial review of a removal order, the alien’s continued detention could only be authorized under § 1226(a), id. at 948, and that § 1226(a) must be construed as
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requiring the Attorney General to exercise his discretion to conduct a bond hearing, id. at 951. See also Tijani, 430 F.3d at 1242 (remanding case to the district court “with directions to grant the writ unless the government within 60 days of this order provides a hearing to Tijani before an Immigration Judge with the power to grant him bail unless the government establishes that he is a flight risk or will be a danger to the community”). The Casas court held that the petitioner’s seven-year detention in that case necessitated a bond hearing, but did not define the parameters of what constitutes “prolonged” detention. Id. at 95051. In this case, the petitioners urge the Court to adopt a rule that detention of six months or more under § 1226(c) is impermissibly “prolonged” and entitles an alien so detained to a bond hearing.
In Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), the Sixth Circuit took a different approach. In order to avoid the serious constitutional concerns that would arise from prolonged mandatory detention, the court held that § 1226(c) must be construed “to include an implicit requirement that removal proceedings be concluded within a reasonable time.” Id. at 270. The court expressly declined to require bond hearings for every alien detained under § 1226(c), noting that “[i]n the majority of cases where an order of removal is promptly entered and removal is effected within the time allotted under Zadvydas, bond hearings are not
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required.” Id. The court also declined to establish a “bright line” test for the reasonable time limitation of pre-removal detention, finding that “hearing schedules and other proceedings must have leeway for expansion or contraction as the necessities of the case and the immigration judge’s caseload warrant.” Id. at 271. Instead, the Sixth Circuit instructed courts to “examine the facts of each case, to determine whether there has been unreasonable delay in concluding removal proceedings.” Id. Addressing the “question of institutional competence,” the court acknowledged that “[b]y not requiring individualized bond hearings, federal courts undertake to supervise the reasonability of detention only via the habeas process.” Id. at 272. The Sixth Circuit offered three justifications for this approach. First, the court noted that this was the approach taken by the Supreme Court in Zadvydas. Id.; see Zadvydas, 533 U.S. at 699 (“Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question.”). Second, “those aliens not granted bond hearings would still file habeas petitions,” and therefore “federal courts will still be asked to review detention.” Ly, 351 F.3d at 272. Finally, although a reasonableness standard is not as easily administrable as the
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bright-line rule adopted in Zadvydas, “courts are familiar with and regularly assess reasonableness as a legal standard.” Id. at 272-73.
Courts within this district have adopted variations of both these approaches. Compare Prince, 593 F. Supp. 2d at 736 (directing that petitioner’s continued detention be addressed at an already-scheduled hearing before an immigration judge); Wilks v. U.S. Dep’t of Homeland Security, C.A. No. 1:07-CV-2171, 2008 WL 4820645, at *3 (M.D. Pa. Nov. 3, 2008) (ordering respondents to provide petitioner a bond hearing before an immigration judge) with Occelin v. Dist. Dir. for Immigration Custom Enforcement, C.A. No. 1:09-CV-164, 2009 WL 1743742, at *4 (M.D. Pa. June 17, 2009) (ordering a hearing before the habeas court at which the government must justify the petitioner’s continued detention); Madrane v. Hogan, 520 F. Supp. 2d 654, 661-63 (M.D. Pa. 2007) (same).4
Upon consideration of this precedent, the Court adopts a variation of the approach adopted by the Sixth Circuit in Ly. The Court construes § 1226(c) as authorizing mandatory detention for the period of time reasonably necessary to promptly initiate and conclude removal proceedings. If an alien detained pursuant
4 Yet other courts in the district have ordered petitioners immediately released without an administrative hearing or a hearing before the habeas court. See, e.g., Victor v. Mukasey, C.A. No. 3:08-CV-1914, 2008 WL 5061810, at *5 (M.D. Pa. Nov. 25, 2008); Nunez-Pimentel v. U.S. Dep’t of Homeland Security, C.A. No. 1:07-CV-1915, 2008 WL 2593806, at *5 (M.D. Pa. June 27, 2008).
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to § 1226(c) makes a showing via a habeas petition that detention is no longer reasonable, the alien must be afforded a hearing before the habeas court at which the government bears the burden of justifying continued detention based on traditional bail factors such as the alien’s risk of flight and potential danger to the community.
The Court adopts a reasonableness standard administered by federal courts because this approach avoids constitutional concerns while working the least amount of damage to the statutory scheme Congress created. “Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature.” United States v. Albertini, 472 U.S. 675, 680 (1985). The canon of constitutional avoidance is “a means of giving effect to congressional intent, not of subverting it.” Clark v. Martinez, 543 U.S. 371, 382 (2005). The intent of Congress in adopting § 1226(c) was to severely limit, if not eliminate, the discretion of the Attorney General to release deportable criminal aliens pending removal proceedings. As the Demore court noted, Congress had before it evidence that, when the Attorney General had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight
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risk or threat to society, other considerations such as limitations on funding and detention space, affected release determinations. 538 U.S. at 519. In addition, in light of evidence that as many as one out of five criminal aliens released on bond absconded prior to the completion of his removal proceedings, Congress was concerned that, “even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight.” Id. at 520.
The construction of § 1226(c) adopted by the Court implements Congress’s intention of assuring attendance at removal proceedings by permitting mandatory detention, to the extent constitutionally permissible, and connecting the duration of detention to the time reasonably necessary to complete such proceedings. That a habeas court determines whether continued detention is justified also addresses Congress’s concern that release decisions be based on traditional bail considerations such as risk of flight and danger to the community. The approach urged by the petitioners and adopted by the Casas court, on the other hand, funnels deportable criminal aliens to § 1226(a), a portion of the statute which Congress never intended to apply to such aliens, and requires the Attorney General to exercise the very discretion over release of criminal aliens which Congress intended to restrict.
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Supervision of the reasonableness of detention through the habeas process also provides justified protection of the alien’s liberty interest and conserves judicial resources. If the remedy for unreasonable detention were an order directing a bond hearing under § 1226(a), an alien who has already demonstrated that his detention is no longer reasonable would remain detained pending an initial custody determination by the DHS district director, 8 C.F.R. § 236.1(d)(1), a hearing before an immigration judge, id., the IJ’s decision, and a potential appeal to the BIA, id. § 236.1(d)(3). In addition, because discretionary bond decisions are not subject to direct judicial review, see 8 U.S.C. § 1226(e), the only recourse for an alien dissatisfied with the outcome of his bond hearing would be to return to court again and file another habeas action. Cf. Ly, 351 F.3d at 272. A bond hearing before the habeas court avoids this circuitous and potentially lengthy process. The habeas court’s determining whether a petitioner is entitled to release also serves the “‘historic purpose of the writ,’ namely, ‘to relieve detention by executive authorities without judicial trial.’” Zadvydas, 533 U.S. at 699 (quoting Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring)).
The Court opts for a case-specific reasonableness standard rather than the six-month bright-line rule urged by petitioners for several reasons. First, there is no expression of Congress’s doubts as to the constitutionality of detention of
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deportable criminal aliens for more than six months, even of the type found in Zadvydas regarding aliens subject to a removal order. See Zadvydas, 533 U.S. at 701 (citing Juris. Statement in United States v. Witkovich, O.T. 1956, No. 295, pp. 8-9). Second, as the Sixth Circuit in Ly recognized, the varying circumstances of individual removal proceedings make a bright-line rule inappropriate. Ly, 351 F.3d at 271. Third, a reasonableness standard allows for consideration of relevant factors beyond the length of detention, such as the alien’s conduct during removal proceedings and the likelihood that proceedings will result in an order of removal. A bright-line rule, and likely even a rule based solely on whether detention is “prolonged,” run the risk of ignoring these considerations.
As support for the six-month rule that they urge, the petitioners cite to the average times for completing removal proceedings relied on in Demore. These averages were undoubtedly important to the holding in that case, but the Demore court also seemed to indicate that the average times are not an inflexible outer limit to the constitutionality of mandatory detention without a hearing by finding that the petitioner’s six-month detention, which was one month longer than average, was constitutional. See Demore, 538 U.S. at 530-31. The petitioners also rely on 8 U.S.C. § 1226a, which directs the Attorney General to detain aliens removable because of terrorist activities, but which provides that an alien “who
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has not been removed under section 1231(a)(1)(A) of this title, and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” 8 U.S.C. § 1226a(a)(6). This statute, however, addresses the concerns raised in Zadvydas regarding aliens already subject to removal, and for the reasons set forth in Demore and those discussed above, is largely inapplicable here.
To aid the parties in further proceedings this case, the Court will note some of the factors to be considered in determining the reasonableness of detention under § 1226(c). What follows, however, is by no means a conclusive or comprehensive list of all potential considerations. The Court adopts the Sixth Circuit’s instruction to “examine the facts of each case, to determine whether there has been unreasonable delay in concluding removal proceedings.” Ly, 351 F.3d at 271.
A significant consideration is whether detention has continued beyond the average times necessary for completion of removal proceedings which were identified in Demore. Although, as noted above, these averages do not mark a per se limit on constitutionally permissible detention under § 1226(c), they were important in defining the “brief” and “limited” period during which mandatory
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detention is constitutional. When detention moves beyond the time usually necessary to complete removal proceedings, it becomes less likely that detention without a hearing is necessary to achieve the statutory purpose of assuring the alien’s attendance and expeditiously concluding removal proceedings. See Demore, 538 U.S. at 532-33 (Kennedy, J. concurring) (“Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.”).
A related consideration is the probable extent of future removal proceedings. This factor cuts both ways. Where the end of removal proceedings is relatively near, continued detention is more likely to be reasonable. See, e.g., Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir. 2007) (affirming denial of a petition seeking release during removal proceedings where the alien filed his petition “with the completion of the administrative removal proceeding within sight,” and a decision on whether the alien was entitled to release would not come before judicial review of his removal order was completed). On the other hand, where it can be foreseen that proceedings will continue for a prolonged period of time, continued detention may be less likely to be reasonable. See, e.g., Tijani,
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430 F.3d at 1242 (noting, in granting petitioner relief, that the “the foreseeable process” of his appeal of removal “is a year or more”). That the foreseeable period of continued detention will be long is particularly relevant when it follows an already prolonged period of detention. See, e.g., Madrane, 520 F. Supp. 2d. at 667 (noting “the forecast of additional future appeals or proceedings that could result in Petitioner being detained for many months in addition to the nearly three years he has already been held in custody”); cf. Zadvydas, 533 U.S. at 701 (stating “for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink”).
The respondents argue that future detention is too speculative to consider. We disagree. They are correct that some level of proof is necessary to consider prospective detention, but this is part of the habeas petitioner’s burden. See Parke v. Raley, 506 U.S. 20, 34 (1992) (citing Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938) (noting “the preponderance of the evidence standard applicable to constitutional claims raised on federal habeas”). Moreover, the mere fact that removal proceedings will continue, even beyond the time periods identified in Demore, does not necessarily mean that detention is unreasonable. See, e.g., Matthias v. Hogan, C.A. No. 4:07-CV-1987, 2008 WL 913522, at *6 (M.D. Pa.
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Mar. 31, 2008) (finding that petitioner’s 7-month detention did not warrant a hearing even though removal proceedings were ongoing); Abdul v. U.S. Dep’t of Homeland Security, C.A. No. 1:07-CV-571 (M.D. Pa. Nov. 9, 2007) (finding that petitioner’s 10-month detention as of the date of habeas decision did not warrant hearing even though removal proceedings were ongoing). As noted, prolonged future detention will be most relevant when it follows an already prolonged period of detention.
Another factor in reasonableness determination is the likelihood that removal proceedings will actually result in removal. See Ly, 351 F.3d at 271. The detention of the petitioner in Demore was justified, in part, because he conceded that he was deportable. See Demore, 538 U.S. at 513, 522 & n.6, 531. Conversely, courts have found detention under § 1226(c) unreasonable where an alien mounts a successful challenge to removal. See, e.g., Madrane, 520 F. Supp. 2d at 658, 660 (noting that, in habeas petition challenging alien’s removal order, government represented that the petitioner was eligible to apply to for relief from removal and that IJ had granted the alien a waiver of inadmissibility and adjustment of status to lawful permanent resident); cf. Ly, 351 F.3d at 271-72 (finding detention unreasonable where petitioner was ordered removed to a country that does not have a repatriation treaty with the United States).
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Finally, another relevant consideration is the conduct of both the alien and the government during removal proceedings. In Demore, the court noted that the petitioner’s detention had been extended by his own request for a continuance, 538 U.S. at 530-31, and, citing Congress’s concern with frivolous appeals that delay deportation, found no constitutional prohibition against requiring aliens to make the difficult choice of whether to appeal their removal at the potential cost of longer detention, id. at 530 n.14. Similarly, the Sixth Circuit in Ly cautioned that in considering the reasonableness of detention, “courts must be sensitive to the possibility that dilatory tactics by the removable alien may serve not only to put off the final day of deportation, but also to compel a determination that the alien must be released because of the length of his incarceration. Without consideration of the role of the alien in the delay, we would encourage deportable criminal aliens to raise frivolous objections and string out the proceedings in the hopes that a federal court will find the delay ‘unreasonable’ and order their release.” Ly, 351 F.3d at 272; see also Tavares v. Attorney General, 211 Fed. Appx. 127, 128 (3d Cir. 2007) (affirming dismissal of Bivens action pursuant to 28 U.S.C. § 1915(e) where alien’s 18-month detention was prolonged because “the proceedings involved two rounds of IJ decisions and appeals); Prince, 593 F. Supp. 2d at 735-
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36 (noting “petitioners ... must know that their own conduct has to be included in determining whether or not a ‘reasonable time’ was exercised by the authorities”).
On the other hand, aliens “should not be effectively punished for pursuing applicable legal remedies.” Oyedeji v. Ashcroft, 332 F. Supp. 2d 747, 753 (M.D. Pa. 2004). “[A]ppeals and petitions for relief are to be expected as a natural part of the process. An alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him.” Ly, 351 F.3d at 272. While a court may examine an alien’s reasons for seeking relief, the government’s delays in resolving such appeals should not be counted against the alien. See id. (noting “although an alien may be responsible for seeking relief, he is not responsible for the amount of time that such determinations may take”); Oyedeji, 332 F. Supp. 2d at 753 (“Prolonged incarceration for an alien whose potentially meritorious challenge to removal is part of a congested docket is indistinguishable from lengthy incarceration because the alien’s native country refuses to issue travel documents.”). Moreover, the government’s own dilatory conduct is significant in determining whether removal proceeding are moving toward conclusion reasonably expeditiously. See, e.g., Tijani, 430 F.3d at 1242 (noting that the government had sought multiple extensions of time in briefing petitioner’s appeal); Ly, 351 F.3d at 272 (“The mere
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fact that an alien has sought relief from deportation does not authorize the INS to drag its heels indefinitely in making a decision.”).
Having determined that the petitioners have stated viable claims and having sketched a framework for further proceedings, we are left to apply that framework to this case. To that end, the Court directs the parties to indicate by letter on the docket, within 20 days of the date order, whether they wish to present testimony or evidence regarding the reasonableness of the petitioners’ detention. Following an evidentiary hearing, or in lieu of one if the parties indicate that none is necessary, the Court will accept additional submissions on this issue and then determine whether the petitioners are entitled to a bond hearing. Because the relief the petitioners seek in their petition and motion for preliminary injunction is identical, and because the evidence and argument directed at both submissions will be identical, the Court will consolidate the hearing, if any, and further briefing on the preliminary injunction motion with the merits of the habeas petition. See Fed. R. Civ. P. 65(a)(2). By this order, the preliminary injunction motion will therefore be denied as moot.
B. Petitioners’ Class Claims As noted above, the petitioners propose to represent a class of all lawful permanent residents in Pennsylvania, or alternatively in this judicial district, who
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are or will be subject to detention for 6 months or more under § 1226(c) without an individualized hearing at which the government must justify detention, and seek a classwide declaration that the failure to provide such a hearing violates the INA and due process. The respondents argue that 8 U.S.C. § 1252(f)(1) deprives the Court of jurisdiction to adjudicate a class action. For the reasons set forth below, the Court agrees that it lacks subject matter jurisdiction over the petitioners’ class claims.
“The role of the courts in interpreting a statute is to give effect to Congress's intent. Because it is presumed that Congress expresses its intent through the ordinary meaning of its language, every exercise of statutory interpretation begins with an examination of the plain language of the statute.” United States v. Diallo, --- F.3d ----, 2009 WL 2342668, at *3 (3d Cir. July 31, 2009) (quoting Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001)). Section 1252(f)(1) provides:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
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8 U.S.C. § 1252(f)(1) (emphasis added). The statute’s use of the disjunctive – enjoin or restrain – indicates that it is meant to bar jurisdiction over class claims for more than just injunctive relief. See Chalmers v. Shalala, 23 F.3d 752, 755 (3d Cir. 1994) (“We see no basis to construe the disjunctive “or” in any way other than its plain meaning....”). The Court must endeavor to give meaning to the term “restrain” and avoid an interpretation of § 1252(f)(1) which renders that term superfluous. Rosenberg, 274 F.3d at 141-42.
The question thus becomes whether declaratory relief falls within the scope of the meaning of “restrain.” The ordinary meaning of “restrain” includes “to prevent from doing, exhibiting, or expressing something ... to limit, restrict, or keep under control .... to moderate or limit the force, effect, development, or full exercise of,” Merriam-Webster Online Dictionary; “[t]o check, hold back, or prevent (a person or thing) from some course of action,” Oxford English Dictionary; and “[t]o hold back or keep in check; control,” The American Heritage Dictionary of the English Language, 4th Ed. See United States v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008) (“We refer to standard reference works such as legal and general dictionaries in order to ascertain the ordinary meaning of words.”).
The Court finds that a classwide declaration that the failure to provide all class members who are or will be detained under § 1226(c) for 6 months or more
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with individualized detention hearings violates the INA and due process would “restrain” the operation of § 1226(c) within the plain meaning of that term. The practical effect of the class-based declaration that the petitioners seek would be indistinguishable from the effect of a class-based injunction. As the petitioners themselves argue (see Doc. 44 at 22-23), although a declaration is a “milder form of relief” than an injunction, Steffel v. Thompson, 415 U.S. 452, 471 (1974) (quoting Perez v. Ledesma, 401 U.S. 82, 125-126 (1971) (Brennan J. in part and dissenting in part)), declaratory relief still has a strong persuasive effect. See id. at 469 (noting “a favorable declaratory judgment may nevertheless be valuable to the plaintiff though it cannot make even an unconstitutional statute disappear”); Rivera Puig v. Garcia Rosario, 785 F. Supp. 278, 293 (D.P.R. 1992) (noting that a declaration “carries the moral force of an injunction”). While a declaration may not coercively enjoin the operation of § 1226(c), it would certainly restrain (limit, restrict, hold back, etc.) the government’s implementation of the statute as written. This is especially so because the declaration which the petitioners seek does not merely declare the class members’ right to a bond hearing, but declares that the government has committed a constitutional violation by failing to provide such a hearing. (See Doc. 9 at 36.)
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Moreover, the Declaratory Judgment Act provides that “[f]urther necessary or proper relief based on a declaratory judgment or decree may be granted,” 28 U.S.C. § 2202, and such “necessary or proper relief” includes an injunction, Steffel, 415 U.S. at 461 n.11. Especially given the res judicata and collateral estoppel effects of a declaratory judgment, a classwide declaration in this case would merely be a prelude to later injunctions. See id.; 10Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 23:62 (3d ed. 2008); see also Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 119 (3d Cir. 1990) (noting that an action maintainable under both Fed. R. Civ. P. 23(b)(2) and (b)(3) should be treated under (b)(2) “to enjoy its superior res judicata effect”). The classwide declaration that petitioners seek would have little practical difference from a classwide injunction, and, even if it does not create precisely the same effect as an injunction, such a declaration would certainly “restrain” the operation of § 1226(c). The petitioners may not use the procedural device of a declaratory judgment action to avoid the plain meaning of § 1252(f)(1).
This holding is strongly supported by the Supreme Court’s opinion in California v. Grace Brethren Church, 457 U.S. 393 (1982). In that case, the Court addressed the question of whether federal district courts were prohibited by the Tax Injunction Act from issuing declaratory judgments holding that state tax laws
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unconstitutional. The Tax Injunction Act employs language nearly identical to §
1252(f)(1), providing that district courts “shall not enjoin, suspend or restrain the
... collection of any tax under State law where a plain, speedy and efficient remedy
may be had in the courts of such State.” Id. at 407-08. The Supreme Court held
that this language barred declaratory relief:
Initially, we observe that the Act divests the district court not only of jurisdiction to issue an injunction enjoining state officials, but also of jurisdiction to take actions that “suspend or restrain” the assessment and collection of state taxes. Because the declaratory judgment procedure may in every practical sense operate to suspend collection of the state taxes until the litigation is ended, the very language of the Act suggests that a federal court is prohibited from issuing declaratory relief in state tax cases. Additionally, because there is little practical difference between injunctive and declaratory relief, we would be hard pressed to conclude that Congress intended to prohibit taxpayers from seeking one form of anticipatory relief against state tax officials in federal court, while permitting them to seek another, thereby defeating the principal purpose of the Tax Injunction Act: to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.
Id. at 408 (citations omitted); see also Samuels v. Mackell, 401 U.S. 66, 72 (1971)
(holding that Younger abstention bars declaratory as well as injunctive relief
regarding pending state criminal proceedings because the declaration may be
enforced through an injunction and because “the declaratory relief alone has
virtually the same practical impact as a formal injunction would”). Likewise,
courts have construed the similarly worded Johnson Act, 18 U.S.C. § 1342, which
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provides that in certain circumstances district courts shall not “enjoin, suspend or restrain the operation of, or compliance with” state utility rate decisions, to prohibit declaratory relief. See, e.g., Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1054 (9th Cir. 1991), cert. denied, 503 U.S. 938 (1992); Tennyson v. Gas Serv. Co., 506 F.2d 1135, 1139 (10th Cir. 1974).
The petitioners posit that § 1252(f)(1) bars courts, other than the Supreme Court, from enjoining an unconstitutional statute, but does not bar courts from granting relief from misinterpreted and unlawful government “policies and procedures.” (See Doc. 44 at 29.) Relying on Ali v. Ashcroft, 346 F.3d 873, 88687 (9th Cir. 2003), overruled on other grounds, Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005), and similar cases, the petitioners argue that they do not seek enjoin or restrain “the operation” of the INA but rather “violations” of the statute. (Id. at 30-31.) The Court does not find this argument persuasive. To the extent the petitioners attempt to distinguish between the INA and the “policies and procedures” implementing the INA, the Court finds that both the statute itself and the processes putting the statute into action are encompassed within the meaning of “the operation” of the INA. Moreover, the petitioners do not challenge a “violation” of the statute. They do not appear to contest that their detention is facially authorized by § 1226(c) and, at least initially, constitutionally
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permissible. The petitioners do not seek an order that the government must follow its own policies. Instead, the petitioners seek a declaration that an additional constraint must be added to § 1226(c) and the government’s implementation of that statute in order to avoid constitutional concerns. Cf. United States v. X-Citement Video, Inc., 982 F.2d 1285, 1295 n. 6 (9th Cir.) (Kozinski, J., dissenting), rev’d 513 U.S. 64 (1994) (“Constitutional narrowing seeks to add a constraint to the statute that its drafters plainly had not meant to put there; it is akin to partial invalidation of the statute.”). The limitation on § 1226(c) that the petitioners seeks to declare is required on a classwide basis undoubtedly “restrain[s] the operation” of that statute.
The petitioners also cite to the heading of § 1252(f), “Limit on injunctive relief”, as evidence that the section prohibits only class-based injunctions. While “the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute,” Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (citation omitted), “[t]he title of a statute cannot limit the plain meaning of the text. For interpretive purposes, it is of use only when it sheds light on some ambiguous word or phrase” Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 212 (1998) (citation and internal punctuation omitted). As discussed above, there is no doubt that the plain
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meaning of the jurisdictional prohibition in § 1252(f)(1) encompasses more than just injunctive relief, and, therefore, the heading of the section cannot be used to limit the plain meaning of the text.
The petitioners also point to the express inclusion of declaratory relief in § 1252(e)(1) as an indication that Congress could have expressly included such relief in § 1252(f)(1) had it so intended. It is true that “when the plain meaning cannot be derived, the provision at issue must be viewed in the context of the statute as a whole.” Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 155 (3d Cir. 2009). Section 1252(f)(1) plainly encompasses more than just injunctive relief, however, and the ordinary meaning of the word “restrain” is easily broad enough to include declaratory relief, especially the type of declaratory relief sought by the petitioners, which has the same practical impact as an injunction. That Congress employed different language in another portion of the statute does not change this plain meaning.
In sum, because the classwide declaration sought by the petitioners could so readily be turned into an injunction, and because the practical effect of such declaratory relief would be essentially the same as injunctive relief, the Court holds that it lacks subject matter jurisdiction over the petitioners’ class action declaratory claims under § 1252(f)(1). Therefore, the portion of the petitioners’
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petition seeking class relief will be dismissed, and their motion for class certification will be denied. III. CONCLUSION
To reiterate, the Court harbors grave concerns about the prolonged detention of aliens under § 1226(c). While our holding is appropriately deferential to Congress’s intent, the constitutionally problematic statute has forced the respondents to repeatedly interpose arguments that torture both law and logic in opposing habeas petitions of the type sub judice. We have fashioned a resolution that is admittedly imperfect, but which represents the best we can do given the statutory and jurisprudential minefield facing us.
For the foregoing reasons, the petitioners’ habeas petition will be granted in part to the extent that the Court construes § 1226(c) as authorizing mandatory detention for the period of time reasonably necessary to promptly initiate and conclude removal proceedings. Within 20 days of the date of this order, the parties shall indicate whether they wish to present testimony or evidence regarding the reasonableness of the petitioners’ detention. Thereafter, the Court will determine whether the petitioners shall be afforded a bond hearing.
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Consideration of the petitioners’ motion for a preliminary injunction will be consolidated with the merits of their petition, and the motion will be denied as moot.
Finally, the portions of the petitioners’ habeas petition seeking class relief will be dismissed for lack of subject matter jurisdiction, and the petitioners’ motion for class certification will be denied. NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Petitioners’ Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory Relief (Doc 9) is GRANTED in part to the extent that the Court construes 8 U.S.C. § 1226(c) as indicated above;
2. Within 20 days of the date of this Order, the parties shall indicate by letter on the docket whether they wish to present testimony or evidence regarding the reasonableness of the petitioners’ detention
3. Petitioners’ Motion for a Preliminary Injunction (Doc. 27) is consolidated with the merits of their Amended Petition for Writ of Habeas Corpus and therefore DENIED as moot;
4. The portions of the Petitioners’ Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory Relief (Doc 9) seeking class relief are DISMISSED for lack of subject matter jurisdiction; and
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5. Petitioners’ Motion for Class Certification (Doc. 17) is DENIED. /s/ John E. Jones III John E. Jones III United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANlA

ALEXANDER ALLI and ELLIOT GRENADE,

Petitioners

CIVIL NO. 4:09-CV-0698

v.

Hon. John E. Jones III

THOMAS DECKER, el al. ,

Respondents

ORDER February 22, 2010

AND NOW, following the entry ofa Stipulation by counsel on the record

before this Court on February 17, 2010,IT IS HEREBY ORDERED AS

FOLLOWS: 1. Respondents' Motion for Reconsideration (Doc. 91) of this Court's

January 26, 2010 Memorandum and Order (Doc. 88) is DENIED.'

'This Court finds that there is no necessity to correct a manifest error of law or fact or newly discovered evidence that warrants reconsideration of its January 26, 20 I0 Order determining that Grenade made the necessary showing via his habeas petition that his detention no longer was
reasonable such that he was entitled to a bond hearing before this Court. See HarseDCorp. v. Zlotnicki, 779 F.2d 906, 909 (3d eiL 1995) ("The purpose of a motion for reconsideration is to
correct manifest errors of law or fact or to present newly discovered evidence . ..") Moreover, the issuance of a bond determination by the United States Immigration and Customs Enforcement ("ICE") Office on January 29, 2010 did not divest this Court of its jurisdiction to conduct the bond hearing scheduled by the January 26 Order inasmuch as the fact that ICE set a bond did not convert
(continued ... )

2. Pursuant to the Stipulation entered into by counsel on the record before this Court on February 17,20 I0, a transcript of which is attached hereto, on or before March 15,20 I0, counsel for Respondents shall file a status report indicating whether the conditions of the Stipulation have been met such that Grenade has been released.
3. An extension of the deadline set forth in paragraph 2 above may be granted upon motion.
4. This Court retains jurisdiction pending further order of court.
stlohn E. lones III John E. Jones III United States District Judge
l( ... continued) this Court's proceeding into a review cfthat detennination. Rather, this Court maintained jurisdiction as a habeas court to conduct a hearing at which the government would bear the burden of justifying Grenade's continued detention based on traditional bail factors such as potential risk of flight and danger to the community in the event of release.
2

1

1

IN THE UNITED STATES DISTRICT COURT

fOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2

ALEXANDER ALLI and ELLIOT

3 GRENADE , on behalf of

themselves and all others

4 similarly situated,

Case No . 4 : 09-CV-00698

Petitioners

(Judge Jones)

5

vs .

6

THOMAS DECKER , et al . ,

7

Respondents

8

9

TRANSCRIPT OF PROCEEDINGS

10

IN RE : STIPULATION

11

Before : HONORABLE JOHN E. JONES , III

12

Date

February 17, 2010; 10:23 a.m.

13

Place Courtroom Number 1, 9th Floor

Federal Building

14

228 Walnut Street

Ha rrisburg , Pennsylvania

15

16

17 COUNSEL PRESENT:

18

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

BY : FARRIN R. ANELLO, ESQ.

19

JUDY RABINOVITZ, ESQ.

20

For - Petitioners

21

UNITED STATES DEPARTMENT OF JUSTICE

OFFICE OF IMMIGRATION LITIGATION

22

BY : THEODORE W. ATKINSON, ESQ.

23

For - Respondents

24

25

Lori A . Shuey, RMR , CRR

U. S. Official Court Reporter

2

1

THE COURT : We ' re assembled in the matter of AlIi and

2 Grenade versus Decker , et al. Counsel , would you enter your

3 appearances, starting with counsel for the petitioner or

4 petitioners .

5

MS. ANELLO : Your Honor , Farrin Anello for the

6 petitioner .

7

MS . RABINOV I TZ : And Judy Rabinovitz for the

8 petit i oner .

9

MR. ATKINSON : Good morning . Your Honor, Theodore

10 Atkinson for the respondent , the United States .

11

THE COURT : Very well . And welcome , again , to

12 counsel . The record should indicate that the Court has had

13 extensive discussions with counsel in chambers.

14

First I ' ll note that the Court indicated to counsel

15 off the record and wi ll now place on the record t hat the Court

16 is inclined to and. in fact , will deny the recent l y fi l ed

17 motion for reconsideration that has been filed by the

18 respondents in this matter. Wit h that being the case , the

19 Court requested that there be some dialogue between the parties

20 in this case that would potent i al l y lead to a resolution.

21

Now , in ou r most recent conversatio n, it was indicated

22 that counsel would , in particul ar , speak to -- petitioner ' s

23 counsel wo uld speak to Mr. Grenade. Do we have the framework

24 of an agreement at this point?

25

MS. ANELLO : Yes , Your Honor.

3

1

THE COURT: All right. Why don ' t we have Mr . Atkinson

2 place on the record what ICE is proposing to do in this case.

3 Mr . Atkinson .

4

MR. ATKINSON : One moment, Your Honor.

S

THE COURT : Take your time.

6

MR. ATKINSON : Your Honor, what ICE has agreed would

7 form the framework of a settlement agreement in this ma t ter or

8 at least an agreement on the terms of a bond given the Court ' s

9 exercise of jurisdiction under habeas is as follows:

10

First , there would be a -- Mr. Grenade would be

11 released without the posting of a cash bond .

12

Second, he would be required to participate in the

13 ISAP program, which stands for the Intensive Supervision

14 Appearance Program, which is maintained and operated by ICE and

15 its agents. That would include the monitoring through an

16 electronic monitoring device , such as an ankle bracelet or

17 other appropriate device used by ISAP or ICE .

18

Three , ICE may find it necessary, prior to the entry

19 of a bond, to set additional terms and conditions regarding

20 reporting or monitor ing with regard to Elliot Grenade .

21

All of this would be conditioned upon Mr . Grenade

22 finding a permanent residence in New York prior to his release

23 so that ICE could effectively locate him , know where he is at ,

24 and which address is required for successful participation in

25 the ISAP program.

4

1

I believe that is the general framework of the bond

2 that ICE is willing to accept to resolve this case .

3

THE COURT : All right . Do you want to respond for

4 petitioner?

5

MS . ANELLO : Yes, Your Honor . Mr . Grenade would

6 accept those terms and also would ask that this Court maintain

7 jurisdiction over the case so that we could revisit this issue

8 if in the event he is not able to find an appropriate permanent

9 residence.

10

MR . ATKINSON : Your Honor, I ' m sorry , I wrote it down

11 and yet I still may have forgotten and I just want to make sure

12 the record is clear, this also would require that he find

13 residence in New York because that ' s the only location to which

14 there ' s any demonstrable ties and at least that ' s where his

15 proceedings are and where he ' s being detained right now .

16

THE COURT: As we discussed in chambers, " residence "

17 would constitute, as the Court understands it, someplace that

18 has a dedicated address , not a group center, shelter, et

19 cetera, but a place where he can be appropriately monitored.

20 Is that ICE ' s position?

21

MR . ATKINSON: That ' s correct , Your Honor.

22

THE COURT: What I proposed in chambers, as counsel

23 knows and we ' ll revisit it on the record, is that and I ' m

24 certainly willing to continue and maintain jurisdiction, ret ain

25 jurisdiction in this case, but I proposed a 20-day period for a

5

1 status report. Does that still work for everybody?

2

MR. ATKINSON : It does, Your Honor.

3

MS. ANELLO: Yes, Your Honor .

4

THE COURT : All right. So what I would propose is

5 that I will promulgate an order. It may take a couple days

6 because as I expressed to counsel in chambers , I ' m going to be

7 in transit for a couple days , but you can work on this because

8 we have the stipulation on record.

9

But I will issue an order no later than Monday that

10 memorializes everything that we've accomplished today in the

11 form of an order giving 20 days from today's date, requesting

12 that at or by that date and it can be sooner , obviously. If

13 Mr . Grenade finds a place in New York and has met , otherwise,

14 the conditions that ICE has established , then I can be so

15 notified , obviously , and we will close the file at that point

16 by separate order .

17

Alternatively , it's my understanding that based on the

18 agreement that has been reached, that inasmuch as I am

19 retaining jurisdict i on , that if -- for example, a scenario may

20 be that Mr. Grenade cannot find a place in New York and wishes

21 to revisit this on the merits , that is , have the bond hearing

22 that we ' re not going to have today, that we ' ll reschedule that

23 forthwith upon notification that Mr . Grenade wishes to do so .

24 Is that your understanding?

25

MS. ANELLO : Yes , Your Honor .

6

1

THE COURT: Your understanding , Mr . Atkinson?

2

MR . ATKINSON : Yes, Your Honor .

3

THE COURT : All right. Anything else that you want to

4 put on the record today?

5

MS . ANELLO : No , Your Honor .

6

MR. ATKINSON : No, Your Honor.

7

THE COURT: All right . And I commend counsel . I

8 think that we have a reasonable framework for an agreement .

9 Mr . Grenade , is this agreeable to you?

10

MR . GRENADE: Yes, sir.

11

THE COURT: Then we ' re going to do our best to see if

12 this can be implemented . I understand you ' re going to make

13 every effort to find a place in New York . If we need to extend

14 the period, if you ' re making progress and you haven ' t quite

15 completed it within the 20-day period , that ' s all right , too .

16 I ' m perfectly willing to do that.

17

So if we get towards the elapse of the 20-day period

18 and you want to extend the period for some reasonable time ,

19 that ' s perfectly all right . Just tell me that , and we can kick

20 out an order that does that if you find the 20 days is not

21 enough time and you ' re making progress but you haven ' t quite

22 achieved all the benchmarks. So keep that in mind, too, as you

23 approach the 20 - day deadline . All right?

24

That ' s all for now , and hope f ully that will wrap the

25 matter up, but if not , we ' ll revisit it as necessary . Thank

7

1 you, and particularly I thank counsel for their efforts today.

2

COURTROOM DEPUTY: All rise .

3

(Whereupon, the proceedings were adjourned at 10:32 a.m.)

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1

CERTIFICATION

2

I hereby ce rt ify that the proceedings and

3

evidence are contained fully and accurately in

4

the notes taken by me on the within

5

proceedings and that this copy is a correct

6

transcript of the same.

7

Dated in Harrisburg, Pennsylvania, this

8

18 th day o f February, 2010 .

9

10

/ s/ Lori A. Shuey

11

Lori A. Shuey , RMR , eRR

u . s . Official Court Reporter

12

United States Courthouse

228 Walnut Street . P.O. Box 983

13

Harrisburg , PA 17108-0983

(717)215-1270

14

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 Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 1 of 17
CLOSED, HABEAS, INS, PRISNR, PRSLC
United States District Court Middle District of Pennsylvania (Williamsport) CIVIL DOCKET FOR CASE #: 4:09−cv−00698−JEJ −SF

Alli v. Decker et al Assigned to: Honorable John E. Jones, III Referred to: Pro Se Law Clerk SF Case in other court: Third Circuit, 10−02297 Cause: 28:2241 Petition for Writ of Habeas Corpus (IMMIGRATION)
Petitioner

Date Filed: 04/15/2009 Date Terminated: 12/21/2011 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainees Jurisdiction: U.S. Government Defendant

Alexander Alli on behalf of themselves and all others similarly situated

represented by Farrin R. Anello American Civil Liberties Union Foundation 125 Broad St. 18th Fl. New York, NY 10004 212−284−7303 Email: fanello@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Judy Rabinovitz American Civil Liberties Union Foundation 125 Broad St. 18th Floor New York, NY 10004−2400 212−549−2618 Email: jrabinovitz@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Tan ACLU Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004 (212) 284−7303 Email: mtan@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley J. Ellenberg Law Offices of Stanley J. Ellenberg, PC 1518 Walnut St. Suite 600 Philadelphia, PA 19102 215.790.1682 Email: ebergs@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eunice Lee American Civil Liberties Union Federation 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2676 Email: elee@aclu.org TERMINATED: 07/14/2009

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 2 of 17

Petitioner
Elliot Grenade on behalf of themselves and all others similarly situated

Frederick Alcaro Pepper Hamilton LLP 100 Market Street Suite 200 Harrisburg, PA 17108−1181 717−255−1157 Email: alcarof@pepperlaw.com ATTORNEY TO BE NOTICED
Kathleen A. Mullen Pepper Hamilton LLP 3000 Two Logan Square 18th &Arch Streets Philadelphia, PA 19103−2799 215−981−4786 Email: mullenk@pepperlaw.com ATTORNEY TO BE NOTICED
Thomas B. Schmidt , III Pepper Hamilton, LLP P.O. Box 1181 Harrisburg, PA 17108−1181 717−255−1164 Fax: 717−238−0575 Email: schmidtt@pepperlaw.com ATTORNEY TO BE NOTICED
Valerie Burch The Shagin Law Group, LLC 120 South Street Harrisburg, PA 17101 717−221−1111 Fax: 717−221−1110 Email: vburch@shaginlaw.com ATTORNEY TO BE NOTICED
Witold J. Walczak American Civil Liberties Union of PA 313 Atwood Street Pittsburgh, PA 15213 (412) 681−7864 Email: vwalczak@aclupa.org ATTORNEY TO BE NOTICED
represented by Farrin R. Anello (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Frederick Alcaro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen A. Mullen (See above for address)

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 3 of 17
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley J. Ellenberg Law Offices of Stanley J. Ellenberg, PC 1518 Walnut St. 18th Floor Philadelphia, PA 19102 215.790.1682 Email: ebergs@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Schmidt , III Pepper Hamilton, LLP Suite 200, 100 Market Streets P.O. Box 1181 Harrisburg, PA 17108−1181 717−255−1164 Fax: 717−238−0575 Email: schmidtt@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Valerie Burch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Lee (See above for address) TERMINATED: 07/14/2009

V.
Respondent
Thomas Decker Field Office Director, Immigration &Customs Enforcement. U.S. Department of Homeland Security, in his official capacity and his successors and assigns

represented by Dennis Pfannenschmidt U.S. Attorney's Office 228 Walnut Street Suite 202 Harrisburg, PA 17108 717−221−4482 Email: Dennis.Pfannenschmidt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Geoffrey Forney UD−DOJ − Civil Division, Office of Immigration Litigation 450 5th Street, NW Room 6223 Washington, DC 20001 202.532.4329 Email: geoff.forney@usdoj.gov

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 4 of 17

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj US Department of Justice Office of Immigration Litigation District Court Section Civil Division 450 5th Street, N.W. Washington, DC 20001 202.307.8514 Email: gjon.juncaj@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−221−4482 Email: Stephen.Cerutti@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson US Department of Justice 450 5th Street, NW Room 6048 Washington, DC 20001 202.532.4135 Email: theodore.atkinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Janet Napolitano Secretary of Homeland Security, in her official capacity and his successors and assigns

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Eric Holder Attorney General, U.S. Department of

represented by Dennis Pfannenschmidt (See above for address)

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 5 of 17

Justice, in his official capacity and his successors and assigns

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Mary Sabol Prison Warden, York County Prison Facility, in her official Capacity and his successors and assigns

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
John P. Torres in his official capacity as Acting Assistant Secretary of U.S. Immigration and Customs Enforcement

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 6 of 17

Respondent William Campbell in his official capacity as Warden, Colulmbia County Prison, Bloomsberg, Pennsylvania
Respondent Janine Donate in her official capacity as Warden, Lackawanna County Prison, Scranton, Pennsylvania

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 7 of 17

Respondent
William F. Juracka in his official capacity as Warden, Carbon County Correctional Facility, Nesquehonin, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Craig A. Lowe in his official capacity as Warden, Pike County Correctional Facility, Lords Valley, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Ruth Rush in her official capacity as Warden, Snyder County Prison, Selinsgrove, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 8 of 17

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Michael Zenk in his official capacity as Warden, CI Moshannon Valley Correctional Institution, Philipsburg, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
Jerry C. Martinez in his official capacity as Warden, FCI Allenwood (Low),Allenwood, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address)

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 9 of 17

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
David Ebbert in his official capacity as Warden, FCI Allenwood (Medium), Allenwood, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent
R Martinez in his official capacity as Warden, FCI Allenwood (High), Allenwood, Pennsylvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gjon Juncaj (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Receiver
Thomas V. Duran in his official capacity as Warden, Clinton County Correctional Facility, McElhattan, Pennslyvania

represented by Dennis Pfannenschmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Forney (See above for address)

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 10 of 17
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Cerutti , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore W. Atkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/15/2009 05/07/2009 05/08/2009 05/08/2009 05/13/2009 05/13/2009 05/18/2009 05/18/2009 05/22/2009 05/27/2009
05/27/2009 05/27/2009 05/27/2009 05/27/2009

# Docket Text
1 PETITION for Writ of Habeas Corpus, filed by Alexander Alli.(ch1) (Entered: 04/15/2009)
2 RECEIPT LETTER $ 5.00, receipt number 333009931 Alexander Alli H/C Filing Fee 5/7/09 (ts, ) (Entered: 05/07/2009)
3 ORDER TO SHOW CAUSE; Clerk directed to serve Respondants and U. S. Attorny by certified mail. Show Cause Response due by 4/28/2009. Signed by Honorable John E. Jones, III on 5/8/2009. (ch1) (Entered: 05/08/2009)
SHOW CAUSE ORDER and Petition for Habeas Corpus Served on Respondants and U.S. Attorney by certified mail. (ch1) (Entered: 05/08/2009)
4 RETURN OF SERVICE (Non Summons &Complaint) by Mary Sabol (return receipt green card dated 5/11/2009). (ch1) (Entered: 05/13/2009)
5 RETURN OF SERVICE (Non Summons &Complaint) (return receipt green card dated 4/12/2009 for U. S. Attorney Pfannenschmidt). (ch1) (Entered: 05/13/2009)
6 RETURN OF SERVICE (Non Summons &Complaint)(return receipt green card dated 5/11/2009 for Eric Holder, U. S. Attorney General). (ch1) (Entered: 05/18/2009)
7 RETURN OF SERVICE (Non Summons &Complaint) (return receipt green card dated 5/13/2009 for Thomas Decker). (ch1) (Entered: 05/18/2009)
8 RETURN OF SERVICE (Non Summons &Complaint) by Janet Napolitano (return receipt green card dated 5/18/2009 − service accepted in official capacity only). (ch1) (Entered: 05/22/2009)
9 AMENDED COMPLAINT −−Petition for Writ of Habeas Corpus and Complaint for Declaratory Relief against Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol, filed by Alexander Alli. (Attachments: # 1 Declaration of Alexander Alli, # 2 Declaration of Elliot Grenade, # 3 Exhibit(s) A −− 1/29/09 IJ Decision, # 4 Exhibit(s) B −− Alli 2/29/08 Notice to Appear, # 5 Exhibit(s) C −− 3/29/05 Bond Order, # 6 Exhibit(s) D −− Grenade 1/12/07 Notice to Appear, # 7 Exhibit(s) E −− Grenade Removal Proceedings, # 8 Exhibit(s) F −− 12/28/06 Custody Determination, # 9 Exhibit(s) G −− 12/3/07 Notice of File Custody Review, # 10 Exhibit(s) H −− 1/16/09 Decision to Continue Detention−Stay)(Alcaro, Frederick) (Entered: 05/27/2009)
10 NOTICE of Appearance by Witold J. Walczak on behalf of Alexander Alli (Walczak, Witold) (Entered: 05/27/2009)
11 NOTICE of Appearance by Thomas B. Schmidt, III on behalf of Alexander Alli (Schmidt, Thomas) (Entered: 05/27/2009)
12 NOTICE of Appearance by Valerie Burch on behalf of Alexander Alli (Burch, Valerie) (Entered: 05/27/2009)
13 NOTICE of Appearance by Kathleen A. Mullen on behalf of Alexander Alli (Mullen, Kathleen) (Entered: 05/27/2009)

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 11 of 17

05/27/2009 05/27/2009 05/27/2009 05/27/2009 05/27/2009
05/27/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/28/2009 05/29/2009 05/29/2009 06/01/2009 06/01/2009 06/01/2009 06/02/2009 06/04/2009
06/04/2009
06/09/2009

14 MOTION to Appear Pro Hac Vice − Attorney Judy Rabinovitz is seeking special admission. Filing fee $ 25, receipt number 03140000000001585642. by Alexander Alli.(Burch, Valerie) (Entered: 05/27/2009)
15 MOTION to Appear Pro Hac Vice − Attorney Michael Tan is seeking special admission. Filing fee $ 25, receipt number 03140000000001585671. by Alexander Alli.(Burch, Valerie) (Entered: 05/27/2009)
16 MOTION to Appear Pro Hac Vice − Attorney Eunice Lee is seeking special admission. Filing fee $ 25, receipt number 03140000000001585697. by Alexander Alli.(Burch, Valerie) (Entered: 05/27/2009)
17 MOTION to Certify Class by Alexander Alli. (Attachments: # 1 Exhibit(s) 1 −− Declaration of Michael Tan and Exhibit A thereto, # 2 Proposed Order)(Alcaro, Frederick) (Entered: 05/27/2009)
DOCKET ANNOTATION: Verified through NY State Unified Court System the records for Judy Rabinovitz, Michael Tan and Eunice Lee. All are currently registered. Verified through PA State Bar Record of Valeri Burch as active. (ch1) (Entered: 05/27/2009)
18 MOTION to Exceed Page Limitation by Alexander Alli. (Attachments: # 1 Proposed Order)(Alcaro, Frederick) (Entered: 05/27/2009)
19 SPECIAL ADMISSIONS FORM APPROVED as to Eunice Lee (eo, ) (Entered: 05/28/2009)
20 SPECIAL ADMISSIONS FORM APPROVED as to Judy Rabinovitz (eo, ) (Entered: 05/28/2009)
21 SPECIAL ADMISSIONS FORM APPROVED as to Michael Tan (eo, ) (Entered: 05/28/2009)
22 Application for Admission to Practice Before This Court. (Attachments: # 1 Supplement Letter from DOJ Supervisor)(Forney, Geoffrey) (Entered: 05/28/2009)
23 NOTICE of Appearance by Geoffrey Forney on behalf of Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Forney, Geoffrey) (Entered: 05/28/2009)
24 ORDER granting 18 Motion for Leave to File Excess Pages. Petitioners shall file a brief that is no longer than 35 pages in length. Signed by Honorable John E. Jones, III on 5/29/09 (bw, ) (Entered: 05/29/2009)
25 MOTION to Exceed Page Limitation by Alexander Alli. (Attachments: # 1 Proposed Order)(Rabinovitz, Judy) (Entered: 05/29/2009)
26 SPECIAL ADMISSIONS FORM APPROVED as to Geoffrey Forney (eo, ) (Entered: 06/01/2009)
27 MOTION for Preliminary Injunction by Alexander Alli. (Attachments: # 1 Proposed Order)(Rabinovitz, Judy) (Entered: 06/01/2009)
28 MOTION to Expedite Briefing Schedule by Alexander Alli. (Attachments: # 1 Proposed Order)(Rabinovitz, Judy) (Entered: 06/01/2009)
29 ORDER granting 25 Motion for Leave to File Excess Pages. Granting 28 Motion to Expedite. See order for details. (eo, ) (Entered: 06/02/2009)
30 MOTION to Exceed Page Limitation for Return in Opposition to Petitioner Alli's Petition for Writ of Habeas Corpus by Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Proposed Order)(Forney, Geoffrey) (Entered: 06/04/2009)
31 MOTION to Exceed Page Limitation for Return in Opposition to Petitioner Grenade's Petition for Writ of Habeas Corpus by Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Proposed Order)(Forney, Geoffrey) (Entered: 06/04/2009)
33 ORDER denying as moot 31 Motion for Leave to File Excess Pages. Granting 30 Motion for Leave to File Excess Pages. See order for details. (eo, ) (Entered:

Case: 4:09-cv-00698-JEJ -SF As of: 06/01/2012 04:45 PM EDT 12 of 17

06/10/2009 06/10/2009 06/10/2009 06/11/2009 06/12/2009 06/15/2009 06/19/2009 06/19/2009
06/23/2009 07/07/2009
07/13/2009
07/13/2009
07/13/2009 07/13/2009 07/13/2009 07/13/2009 07/20/2009

06/09/2009)
34 BRIEF IN SUPPORT re 17 MOTION to Certify Class filed by Alexander Alli. (Attachments: # 1 Exhibit(s) 2 −− Section 1226 of INA, # 2 Exhibit(s) 3 −− Unreported Cases)(Alcaro, Frederick) (Entered: 06/10/2009)
35 NOTICE of Appearance by Theodore W. Atkinson on behalf of Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Atkinson, Theodore) (Entered: 06/10/2009)
36 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Theodore W. Atkinson on behalf of the United States and it's agencies, is seeking special admission. Filing Fee: 25.00. (rm, ) (Entered: 06/10/2009)
37 SPECIAL ADMISSIONS FORM APPROVED as to Theodore W. Atkinson (eo, ) (Entered: 06/11/2009)
38 STIPULATION Concerning Briefing and Scheduling by Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Atkinson, Theodore) (Entered: 06/12/2009)
39 BRIEF IN OPPOSITION re 27 MOTION for Preliminary Injunction filed by Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Exhibit(s) 1 − 18)(Atkinson, Theodore) (Entered: 06/15/2009)
40 REPLY BRIEF re 27 MOTION for Preliminary Injunction filed by Alexander Alli. (Attachments: # 1 Exhibit(s) A −− Response to Petition for Writ of Habeas Corpus, Polyakov v. Mukasey)(Mullen, Kathleen) (Entered: 06/19/2009)
41 RESPONSE TO PETITION FOR HABEAS CORPUS by Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol by Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Exhibit(s) 1 − 16)(Atkinson, Theodore) (Entered: 06/19/2009)
42 SCHEDULING ORDER: Oral Argument set for 8/4/2009 01:00 PM in Williamsport − Courtroom 2 before Honorable John E. Jones III. (eo, ) (Entered: 06/23/2009)
43 SCHEDULING ORDER: Oral Argument time and location reset for 8/4/2009 at 9:00 AM in HARRISBURG before Honorable John E. Jones III. Date remains the same as previously scheduled. Courtroom to be determined. (eo, ) (Entered: 07/07/2009)
DOCKET ANNOTATION: Attorney Rabinovitz' office contacted to re−file document 44 as a supplement/brief in support to the previously filed amended petition; thereafter, doc 44 (which was e−filed as a reply to a previously filed motion), will be deleted. (lg, ) (Entered: 07/13/2009)
45 BRIEF by Elliot Grenade, Alexander Alli. Amendment to 9 Amended Complaint,,, filed by Elliot Grenade, Alexander Alli. Related document: 9 Amended Complaint,, filed by Alexander Alli. (Attachments: # 1 Exhibit(s) Unreported Case)(Rabinovitz, Judy) (Entered: 07/13/2009)
DOCKET ANNOTATION: Document 44 deleted; Attorney refiled correctly (see doc 45). (lg, ) (Entered: 07/13/2009)
46 MOTION to Appear Pro Hac Vice − Attorney Farrin Anello is seeking special admission. Filing fee $ 25, receipt number 03140000000001622335. by Elliot Grenade, Alexander Alli.(Burch, Valerie) (Entered: 07/13/2009)
47 MOTION to Withdraw Eunice Lee by Elliot Grenade, Alexander Alli.(Rabinovitz, Judy) (Entered: 07/13/2009)
DOCKET ANNOTATION: Verified status of Attorney Anello with NY State Court System and Valerie Burch with PA Bar as active. (ch1) (Entered: 07/13/2009)
48 SPECIAL ADMISSIONS FORM APPROVED as to Farrin R. Anello (eo, ) (Entered: 07/20/2009)

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07/24/2009 08/03/2009 08/03/2009 08/03/2009 08/04/2009 08/07/2009
08/07/2009
08/07/2009 08/10/2009 08/10/2009

49 SCHEDULING ORDER: Location for Oral Argument on 8/4/2009 at 9:00 AM is Courtrom No. 1 in Harrisburg (eo, ) (Entered: 07/24/2009)
50 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Stephen Cerutti on behalf of Attorney Gjon Juncaj who is seeking special admission. Filing fee $ 25. (Cerutti, Stephen) Modified on 8/3/2009 (ki). (Entered: 08/03/2009)
DOCKET ANNOTATION: Verified status as active with PA State Bar for Stephen Cerutti. (ch1) (Entered: 08/03/2009)
51 SPECIAL ADMISSIONS FORM APPROVED as to Gjon Juncaj (lg, ) (Entered: 08/04/2009)
DOCKET ANNOTATION: verified Michigan state bar record for Attorney Gjon Juncaj. (lg, ) (Entered: 08/04/2009)
53 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of proceedings, Oral Argument held on 08/04/2009, before Judge John E. Jones III. Court Reporter Joan D. Steinbach, RMR, Telephone number 570−772−7569; Joan_Steinbach@pamd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the court reporter or PACER. Redaction Request due 8/28/2009. Redacted Transcript Deadline set for 9/8/2009. Release of Transcript Restriction set for 11/5/2009. (cr5, ) (Entered: 08/07/2009)
54 COURT REPORTER NOTES OF PROCEEDINGS filed by Joan D. Steinbach, RMR of Oral Argument before Judge John E. Jones III on 08/04/2009. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge John E. Jones III on 08/04/2009. By s/ Joan D. Steinbach, RMR. (Court Reporter Notes are viewable by court staff only). (cr5, ) (Entered: 08/07/2009)
55 NOTICE TO UNREGISTERED ECF ATTORNEYS/PRO SE PARTIES regarding the filing of 53 Transcript. A copy of notice mailed to Gjon Juncaj. (lh, ) (Entered: 08/07/2009)
56 ORDER Denying 17 Motion to Certify Class. Denying 27 Motion for Preliminary Injunction. Within 20 days the parties shall indicate by letter on teh docket whether they wish to present testimony or evidence regarding the reasonableness of the petitioner's detention. See order for details. (eo, ) (Entered: 08/10/2009)
57 Unopposed MOTION Substitute a Redacted Version of Brief in Support of Motion for Preliminary Injunction by Elliot Grenade, Alexander Alli. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) Brief, # 3 Exhibit(s) Alli Declaration, # 4 Exhibit(s) Mafos−Alli Declaration, # 5 Exhibit(s) Grenade Declaration, # 6 Exhibit(s) C Grenade Declaration, # 7 Exhibit(s) Womack Declaration, # 8 Exhibit(s) Baptist Declaration, # 9 Exhibit(s) A −− Alli Interlocutory Ruling, # 10 Exhibit(s) B −− Summary Order, # 11 Exhibit(s) C −− Grenade Notice of Custody Determination, # 12 Exhibit(s) D −− Alli Notice to Appear 2/29/08, # 13 Exhibit(s) E −− Rachel Mapos Certificate of Naturalization, # 14 Exhibit(s) Alli Certificate of Marriage Registration, # 15 Exhibit(s) G −− Alli Children Certificates of Birth, # 16 Exhibit(s) H −− Photographs of Alli Family, # 17 Exhibit(s) I −− Alli Real Estate License, # 18 Exhibit(s) J −− Bond Order dated 3/9/05, # 19 Exhibit(s) K −− Alli Program Review Report dated 4/10/08, # 20 Exhibit(s) L −− Alli Psychosocial Report, # 21 Exhibit(s) M −− Alli Family Letters, # 22 Exhibit(s) N −− Affidavit of Pastor Daniel Ajayi−Adeniran, # 23 Exhibit(s) O −− Alli Letters of Recommendation, # 24 Exhibit(s) P −− Grenade Notice to Appear, # 25 Exhibit(s) Q −− Grenade Family Photographs, # 26 Exhibit(s) R −− Grenade Certificate of Domestic Partnership, # 27 Exhibit(s) S −− Grenade Petitioner's Brief, # 28 Exhibit(s) T −− Grenade Notice to Alien of File Custody Review, # 29 Exhibit(s) U −− Grenade Decision to Continue Detention−Stay, # 30 Exhibit(s) V −− Letters from Grenade Children, # 31 Exhibit(s) W −− ASAT Program Evaluation, # 32 Exhibit(s) X −− Inmate Progress Report)(Mullen, Kathleen) (Entered: 08/10/2009)

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08/11/2009 08/20/2009 08/21/2009 08/24/2009 08/24/2009
08/31/2009 08/31/2009 09/01/2009 09/01/2009 09/09/2009
09/09/2009
09/10/2009
09/10/2009 09/14/2009
09/18/2009 09/25/2009
09/29/2009

58 ORDER granting 57 Motion to Substitute. The Clerk shall seal doc 32 and indicate that the correct version of the brief in support and all accompanying exhibits can be found at doc. 57 exhibits 3−33. See order for details. (eo, ) (Entered: 08/11/2009)
59 MOTION to Exceed Page Limitation by Elliot Grenade, Alexander Alli.(Rabinovitz, Judy) (Entered: 08/20/2009)
60 ORDER granting 59 Motion for Leave to File Excess Pages (eo, ) (Entered: 08/21/2009)
61 MOTION for Reconsideration re 56 Order on Motion to Withdraw, Order on Motion to Certify Class, Order on Motion for Preliminary Injunction,,, by Elliot Grenade, Alexander Alli.(Rabinovitz, Judy) (Entered: 08/24/2009)
62 BRIEF IN SUPPORT re 61 MOTION for Reconsideration re 56 Order on Motion to Withdraw, Order on Motion to Certify Class, Order on Motion for Preliminary Injunction,,, filed by Elliot Grenade, Alexander Alli.(Rabinovitz, Judy) (Entered: 08/24/2009)
63 Letter from Respondents pursuant to this Court's Order of August 10, 2009. (Atkinson, Theodore) (Entered: 08/31/2009)
64 Letter from Petitioners pursuant to this Court's Order of August 10, 2009. (Rabinovitz, Judy) (Entered: 08/31/2009)
65 SCHEDULING ORDER: Telephone Conference set for 9/9/2009 01:30 PM before Honorable John E. Jones III. Attorney Rabinovitz shall initiate call to chambers (717)221−3986. (eo, ) (Entered: 09/01/2009)
66 MOTION to Withdraw as Attorney Michael Tan by Elliot Grenade, Alexander Alli.(Rabinovitz, Judy) (Entered: 09/01/2009)
68 BRIEF IN OPPOSITION re 61 MOTION for Reconsideration re 56 Order on Motion to Withdraw, Order on Motion to Certify Class, Order on Motion for Preliminary Injunction,,, filed by John P. Torres, William Campbell, Janine Donate, Thomas V. Duran, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol.(Atkinson, Theodore) (Entered: 09/09/2009)
69 Consent MOTION to Exceed Page Limitation by John P. Torres, William Campbell, Janine Donate, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 09/09/2009)
70 Amended MOTION to Exceed Page Limitation by John P. Torres, William Campbell, Janine Donate, Thomas V. Duran, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Proposed Order)(Atkinson, Theodore) (Entered: 09/10/2009)
71 ORDER granting 70 Motion for Leave to File Excess Pages. Motion at doc 69 terminated as moot. (eo, ) (Entered: 09/10/2009)
72 REPLY BRIEF re 61 MOTION for Reconsideration re 56 Order on Motion to Withdraw, Order on Motion to Certify Class, Order on Motion for Preliminary Injunction,,, regarding burden−shifting framework filed by Elliot Grenade, Alexander Alli.(Anello, Farrin) (Entered: 09/15/2009)
73 ORDER denying 61 Motion for Reconsideration. See order for expedited briefing deadlines. (eo, ) (Entered: 09/18/2009)
77 Petitioners' Supplemental Submission Regarding the Reasonableness of Their Continued Manatory Detention re 9 Amended Complaint; (Attachments: # 1 Exhibit(s) Unpublished Decision, # 2 Affidavit Declaration of Stanley Ellenberg, # 3 Affidavit Declaration of Robert Palumbos)(kn, ) (Entered: 09/29/2009)
76 REPLY BRIEF re 61 MOTION for Reconsideration re 56 Order on Motion to Withdraw, Order on Motion to Certify Class, Order on Motion for Preliminary

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09/29/2009 10/06/2009
10/06/2009
10/07/2009 10/09/2009 10/15/2009 10/15/2009
10/15/2009 11/04/2009 11/18/2009 11/20/2009 01/26/2010 02/03/2010 02/04/2010 02/04/2010
02/09/2010

Injunction,,, filed by Elliot Grenade, Alexander Alli. (Attachments: # 1 Unpublished Opinion(s) Unpublished Opinions)(Anello, Farrin) (Entered: 09/29/2009)
DOCKET ANNOTATION: DOCS 74 &75 deleted due to filing error and re−docketed as DOC # 77. (kn, ) (Entered: 09/29/2009)
78 Consent MOTION to Exceed Page Limitation by John P. Torres, William Campbell, Janine Donate, Thomas V. Duran, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Proposed Stipulated Order)(Atkinson, Theodore) (Entered: 10/06/2009)
79 RESPONSE TO PETITION FOR HABEAS CORPUS by John P. Torres, William Campbell, Janine Donate, Thomas V. Duran, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol by John P. Torres, William Campbell, Janine Donate, Thomas V. Duran, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Exhibit(s) 1 − 19)(Atkinson, Theodore) (Entered: 10/06/2009)
80 ORDER granting 78 Motion for Leave to File Excess Pages (eo, ) (Entered: 10/07/2009)
81 ORDER denying 61 MOTION for Reconsideration re 56 Order on Motion to Withdraw, Order on Motion to Certify Class, Order on Motion for Preliminary Injunction, filed by Elliot Grenade, Alexander Alli (eo, ) (Entered: 10/09/2009)
82 Consent MOTION to Exceed Page Limitation by Elliot Grenade, Alexander Alli. (Attachments: # 1 Proposed Order)(Anello, Farrin) (Entered: 10/15/2009)
83 REPLY BRIEF re 82 Consent MOTION to Exceed Page Limitation Reply Memorandum re. Reasonableness of Continued Mandatory Detention filed by Elliot Grenade, Alexander Alli. (Attachments: # 1 Unpublished Opinion(s), # 2 Affidavit Supplemental Declaration of Stanley Ellenberg, # 3 Exhibit(s) Alli Exhibits, # 4 Affidavit Supplemental Declaration of Robert Palumbos, # 5 Exhibit(s) Grenade Exhibits)(Anello, Farrin) (Entered: 10/15/2009)
84 ORDER granting 82 Motion for Leave to File Excess Pages (eo, ) (Entered: 10/15/2009)
85 NOTICE by Elliot Grenade, Alexander Alli of Supplemental Authority (Rabinovitz, Judy) (Entered: 11/04/2009)
86 NOTICE by Elliot Grenade, Alexander Alli of Supplemental Authority (Rabinovitz, Judy) (Entered: 11/18/2009)
87 Unpublished Decisions by Elliot Grenade, Alexander Alli. 86 Notice. (Rabinovitz, Judy) (Entered: 11/20/2009)
88 SCHEDULING ORDER: Bond Hearings are set for 2/10/2010 10:00 AM in Harrisburg − Courtroom 1 before Honorable John E. Jones III. See order for details. (eo, ) (Entered: 01/26/2010)
89 Praecipe Proposed Writ of Habeas Corpus Ad Testificandum. (Rabinovitz, Judy) (Entered: 02/03/2010)
90 Writ of Habeas Corpus ad Testificandum Issued as to Elliot Grenade for 2/10/10 at 10:00 a.m. in Courtoroom #1. (3 cc's to USM) (eo, ) (Entered: 02/04/2010)
91 MOTION for Reconsideration re 88 Scheduling Order by John P. Torres, William Campbell, Janine Donate, Thomas V. Duran, William F. Juracka, Craig A. Lowe, Ruth Rush, Michael Zenk, Jerry C. Martinez, David Ebbert, R Martinez, Thomas Decker, Janet Napolitano, Eric Holder, Mary Sabol. (Attachments: # 1 Exhibit(s) (Exhibits 1 − 3))(Atkinson, Theodore) (Entered: 02/04/2010)
92 SCHEDULING ORDER:Bond Hearing reset for 2/17/2010 09:30 AM in Harrisburg − Courtroom 1 before Honorable John E. Jones III. (eo, ) (Entered:

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02/09/2010 02/12/2010 02/16/2010 02/16/2010 02/16/2010 02/17/2010
02/22/2010 03/12/2010 03/15/2010 03/25/2010 03/25/2010
04/05/2010 05/04/2010
05/05/2010 05/07/2010 05/18/2010

02/09/2010)
93 Praecipe Proposed Writ of Habeas Corpus Ad Testificandum. (Rabinovitz, Judy) (Entered: 02/09/2010)
94 Writ of Habeas Corpus ad Testificandum Issued as to Elliot Grenade for 2/17, 2010 at 9:30 a.m. Courtroom #1 (3 cc's to USM) (eo, ) (Entered: 02/12/2010)
95 Letter from Petitioner requesting permission for witnesses to testify by telephone. (Anello, Farrin) (Entered: 02/16/2010)
96 BRIEF IN OPPOSITION re 91 MOTION for Reconsideration re 88 Scheduling Order MOTION for Reconsideration re 88 Scheduling Order filed by Elliot Grenade, Alexander Alli. (Attachments: # 1 Unpublished Opinion(s) 11/9/2009 Occelin v. District Director for ICE)(Rabinovitz, Judy) (Entered: 02/16/2010)
97 Supplement by Elliot Grenade, Alexander Alli. to 96 Brief in Opposition, Unpublished Opinion Nunez−Pimentel v. DHS. (Attachments: # 1 Unpublished Opinion(s) Victor v. Mukasey, # 2 Unpublished Opinion(s) Sulayao v. Shanahan)(Rabinovitz, Judy) (Entered: 02/16/2010)
99 COURT REPORTER NOTES OF PROCEEDINGS filed by L. Shuey of stipulation before Judge Jones on 2/17/10. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Jones on 2/17/10. By s/ L. Shuey. (Court Reporter Notes are viewable by court staff only). (ctrep1, ) (Entered: 02/17/2010)
100 ORDER denying 91 Motion for Reconsideration. See order and transcript for stipulaion. Respondent's status report due by 3/15/2010. (eo, ) (Entered: 02/22/2010)
101 SCHEDULING ORDER: A Telephone Status Conference set for 3/15/2010 at 02:00 PM before Honorable John E. Jones III. Counsel for the Petitioner shall initiate the call.Signed by Honorable John E. Jones, III on 3/12/10. (pw, ) (Entered: 03/12/2010)
102 SCHEDULING ORDER: Telephone Status Conference set for 3/25/2010 11:00 AM before Honorable John E. Jones III. (eo, ) (Entered: 03/15/2010)
104 Letter from Petitioners and Respondents Requesting to Reschedule Telephonic Status Conference. (Rabinovitz, Judy) (Entered: 03/25/2010)
105 SCHEDULING ORDER: The telephonic status conference scheduled for 3/25/10 at 11:00 a.m. is CANCELLED. A Telephone Status Conference is re−set for 4/5/2010 at 01:30 PM beore Honorable John E. Jones III. Counsel for petitioner shall initiate the call.Signed by Honorable John E. Jones, III on 3/25/10. (pw, ) (Entered: 03/25/2010)
107 ORDER DISMISSING CASE (eo, ) (Entered: 04/05/2010)
108 NOTICE OF APPEAL in by Elliot Grenade, Alexander Alli. Filing Fee and Docket Fee PAID. Filing fee $ 455, receipt number 03140000000001869893. Court Reporter Joan D. Steinbach. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Schmidt, Thomas) (Entered: 05/04/2010)
TPO (TRANSCRIPT PURCHASE ORDER) SENT to Attorney Thomas Schmidt re 108 Notice of Appeal. (ch1) (Entered: 05/05/2010)
109 USCA Case Number 10−2297 for 108 Notice of Appeal, filed by Elliot Grenade, Alexander Alli. USCA Case Manager Desiree White−Banks (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (White Banks, Desiree) (Entered: 05/07/2010)
110 TRANSCRIPT PURCHASE ORDER REQUEST by Elliot Grenade, Alexander Alli (Schmidt, Thomas) (Entered: 05/18/2010)

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05/20/2010
06/21/2011 06/21/2011
08/08/2011
08/08/2011 09/28/2011 09/29/2011 09/29/2011
09/29/2011 09/30/2011 10/05/2011 10/20/2011 11/18/2011 11/21/2011 12/21/2011

Supplemental Record on Appeal transmitted to US Court of Appeals re 110 TPO (Transcript Purchase Order Request)Filed, 108 Notice of Appeal,. Documents and Docket Sheet available through ECF. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (ch1) (Entered: 05/20/2010)
111 JUDGMENT of USCA (certified copy) as to 108 Notice of Appeal, filed by Elliot Grenade, Alexander Alli (White Banks, Desiree) (Entered: 06/21/2011)
112 SCHEDULING ORDER: Telephone Status Conference set for 8/9/2011 09:00 AM before Honorable John E. Jones III. Counsel for the Petitioners shall initiate the call to Chambers at (717) 221−3986. When the call is placed, all counsel shall be on the line and prepared to proceed (eo, ) (Entered: 06/21/2011)
113 STIPULATION TO CONTINUE STATUS CONFERENCE by William Campbell, Thomas Decker, Janine Donate, David Ebbert, Elliot Grenade, Eric Holder, William F. Juracka, Craig A. Lowe, Jerry C. Martinez, R Martinez, Janet Napolitano, Ruth Rush, Mary Sabol, John P. Torres, Michael Zenk. (Attachments: # 1 Proposed Stipulated Order)(Atkinson, Theodore) (Entered: 08/08/2011)
114 SCHEDULING ORDER Telephone Status Conference reset for 9/29/2011 01:30 PM before Honorable John E. Jones III. (eo, ) (Entered: 08/08/2011)
115 STIPULATION re 114 Scheduling Order, Order Cancelling Deadline by Alexander Alli, Elliot Grenade. (Attachments: # 1 Proposed Order)(Rabinovitz, Judy) (Entered: 09/28/2011)
116 SCHEDULING ORDER: Telephone Status Conference set for 10/20/2011 01:30 PM before Honorable John E. Jones III. (eo, ) (Entered: 09/29/2011)
117 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Michael Tan on behalf of Alexander Alli, Elliot Grenade Attorney Michael Tan is seeking special admission. Filing fee $ 50, receipt number 0314−2293732.. (Tan, Michael) (Entered: 09/29/2011)
DOCKET ANNOTATION: Verifed NY active status of attorney Tan and verified PA active status of attorney Burch. (ch1) (Entered: 09/29/2011)
118 SPECIAL ADMISSIONS FORM APPROVED as to Michael Tan (eo, ) (Entered: 09/30/2011)
119 MANDATE of USCA as to 108 Notice of Appeal, filed by Elliot Grenade, Alexander Alli (Attachments: # 1 Precedential_ Opinion)(White Banks, Desiree) (Entered: 10/05/2011)
120 ORDER − Petitioners−Plaintiffs SHALL file their Motion to Amend the Complaintwithin thirty (30) days from todays date. (eo, ) (Entered: 10/20/2011)
122 MOTION for Extension of Time to Amend Complaint by Alexander Alli, Elliot Grenade. (Attachments: # 1 Exhibit(s) Exhibit A: Declaration of Valerie Burch, # 2 Proposed Order Proposed Order)(Rabinovitz, Judy) (Entered: 11/18/2011)
123 ORDER granting 122 Motion for Extension of Time to Amend Complaint by 12/21/11. (eo, ) (Entered: 11/21/2011)
124 NOTICE of Voluntary Dismissal by Alexander Alli, Elliot Grenade (Joint Stipulation) (Rabinovitz, Judy) (Entered: 12/21/2011)