U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE #: 1:20-cv-00290-EAW

Onosamba-Ohindo et al v. Barr et al Assigned to: Hon. Elizabeth A. Wolford Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 03/10/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Plaintiff
Junior Onosamba-Ohindo on behalf of himself and all others similarly situated

represented by Amy Louise Belsher New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212-607-3342 Fax: 212-607-3318 Email: abelsher@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T. Dunn NY Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 212-344-3005 Fax: 212-344-3329 Email: cdunn@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Laris Cohen New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212 607-3343 Fax: 212 607-3318 Email: jlariscohen@nyclu.org LEAD ATTORNEY

Plaintiff
Antonio Lopez Agustin on behalf of himself and all others similarly situated TERMINATED: 03/30/2021

ATTORNEY TO BE NOTICED
Phil Telfeyan Equal Justice Under Law 400 7th St. NW Suite 602 Washington, DC 20004 202 505-2058 Email: ptelfeyan@equaljusticeunderlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Elaine Sallomi New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212 607-3399 Fax: 212 607-3318 Email: msallomi@nyclu.org TERMINATED: 03/24/2021
Victoria Marie Roeck New York Civil Liberties Union Foundation 125 Broad Street 19th Floor New York, NY 10004 212-607-3368 Email: vroeck@me.com TERMINATED: 08/17/2020
represented by Amy Louise Belsher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher T. Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Laris Cohen

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phil Telfeyan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Elaine Sallomi (See above for address) TERMINATED: 03/24/2021
Victoria Marie Roeck (See above for address) TERMINATED: 08/17/2020

V. Defendant William Barr in his official capacity as Attorney General of the Department of Justice TERMINATED: 09/30/2020
Defendant United States Department of Justice TERMINATED: 09/30/2020

represented by David M. Coriell U.S. Attorney's Office Federal Centre 138 Delaware Avenue Buffalo, NY 14202 716-843-5731 Fax: 716-551-5563 Email: david.coriell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (eservice) Western District of New York Email: USANYW-ImmigrationHabeas@usdoj.gov TERMINATED: 03/23/2020
represented by David M. Coriell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (e-

Defendant James McHenry in his official capacity as the Director of the Executive Office for Immigration Review TERMINATED: 09/30/2020
Defendant Executive Office for Immigration Review TERMINATED: 09/30/2020
Defendant Matthew Albence in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of Immigration and Customs Enforcement TERMINATED: 09/30/2020
Defendant Chad F. Wolf in his official capacity as Acting Secretary of the U.S. Department of Homeland Security TERMINATED: 09/30/2020

service) (See above for address) TERMINATED: 03/23/2020
represented by David M. Coriell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (eservice) (See above for address) TERMINATED: 03/23/2020
represented by David M. Coriell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (eservice) (See above for address) TERMINATED: 03/23/2020
represented by David M. Coriell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (eservice) (See above for address) TERMINATED: 03/23/2020
represented by David M. Coriell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (eservice)

Defendant
Jeffrey Searls in his official capacity as the Acting Administrator of the Buffalo Federal Detention Facility

(See above for address) TERMINATED: 03/23/2020
represented by David M. Coriell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
United States Attorney's Office (eservice) (See above for address) TERMINATED: 03/23/2020

Date Filed 03/11/2020
03/11/2020
03/11/2020 03/11/2020 03/11/2020

# Docket Text
1 COMPLAINT against All Defendants , PETITION for Writ of Habeas Corpus (Filing fee $5.00 receipt number 0209-3764118), filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Attachments: # 1 Civil Cover Sheet)(Roeck, Victoria) Modified on 3/11/2020 to enter filing fee and receipt number (CGJ). Corrected Receipt number 3/13/2020 (LB). Corrected fee amount 4/1/2020 (CGJ). (Entered: 03/11/2020)
2 MOTION to Certify Class by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Victoria Roeck, # 3 Declaration of Dalya Kefi, # 4 Declaration of Junior Onosamba-Ohindo, # 5 Declaration of Christine Lao-Scott, # 6 Declaration of Antonio Lopez Agustin, # 7 Declaration of Kimberly Hunter, # 8 Declaration of Nicholas J. Phillips, # 9 Declaration of Jesse Barber, # 10 Declaration of Tanika Vigil)(Roeck, Victoria) (Entered: 03/11/2020)
E-Filing Notification re [2-1] Attachments: # 1 Memorandum in Support, Incorrect.pdf file attached to entry. Action required: Re-file attachment [2-1] using the (Memorandum in Support) event. (KM) (Entered: 03/11/2020)
3 MEMORANDUM in Support re 2 MOTION to Certify Class filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Roeck, Victoria) (Entered: 03/11/2020)
E-Filing Notification: regarding 1 COMPLAINT docket text modified to show filing fee and receipt number. Filing fee paid more than once. Please refer to refund policy located on our website www.nywd.uscourts.gov (CGJ) (Entered: 03/11/2020)

03/11/2020 03/11/2020
03/13/2020 03/13/2020 03/13/2020 03/13/2020
03/13/2020 03/13/2020 03/13/2020 03/13/2020 03/16/2020
03/18/2020

Case assigned to Hon. Lawrence J. Vilardo. Notification to Chambers of on-line civil case opening. (CGJ) (Entered: 03/11/2020)
Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at http://www.uscourts.gov/services-forms/forms. (CGJ) (Entered: 03/11/2020)
4 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
5 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
6 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
7 ORDER that within 45 days of the date of this order, Respondent shall file and serve an answer and memorandum of law or a motion to dismiss, along with a memorandum responding to petitioner's motion for class certification; Petitioner shall have 25 days upon receipt of the responses; the Clerk of Court shall serve a copy of the petition and this order, electronically via a Notice of Electronic Filing to the United States Attorney's Office, Western District of New York at USANYW-Immigration-Habeas@usdoj.gov. Signed by Hon. Lawrence J. Vilardo on 3/13/20. (Attachments: # 1 Petition)(SG) (Entered: 03/13/2020)
8 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
9 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
10 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
11 Original Summons Filed. (Roeck, Victoria) (Entered: 03/13/2020)
12 Summons Issued as to Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Attachments: # 1 summons issued, # 2 summons issued, # 3 summons issued, # 4 summons issued, # 5 summons issued, # 6 summons issued)(KM) (Entered: 03/16/2020)
13 AFFIDAVIT of Service for Complaint/Petition, Motion to Certify Class, Summons Issued by the Court (Dkt. 12) served on William Barr; United States Department of Justice; James McHenry; Executive Office for Immigration Review; Matthew Albence; Chad F. Wolf; U.S. Department of Homeland Security; Jeffrey Searls on March 17, 2020, filed by Antonio Lopez Agustin, Junior OnosambaOhindo. (Roeck, Victoria) (Entered: 03/18/2020)

03/22/2020 04/01/2020 04/10/2020
04/10/2020 04/11/2020 04/13/2020 04/22/2020

14 NOTICE of Appearance by David M. Coriell on behalf of All Defendants (Coriell, David) (Entered: 03/22/2020)
E-Filing Notification: regarding 1 COMPLAINT against All Defendants, PETITION for Writ of Habeas Corpus . Docket text amended to reflect correct filing fee. (CGJ) (Entered: 04/01/2020)
15 MOTION for Preliminary Injunction by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Attachments: # 1 Memorandum in Support of Plaintiffs-Petitioners Motion for Preliminary Injunction, # 2 Declaration of Grace Zaiman, # 3 Declaration of James Tinsley, # 4 Declaration of Lara Nochomovitz, # 5 Declaration of Nathalia Dickson, # 6 Declaration of Denise Noonan Slavin, # 7 Declaration of Cliff Johnson, # 8 Declaration of Dr. Jaimie Meyer, # 9 Supplement Declaration of Jesse Barber, # 10 Supplement Declaration of Dalya Kefi, # 11 Supplement Declaration of Victoria Roeck, # 12 Exhibit C, # 13 Exhibit D, # 14 Exhibit E, # 15 Exhibit F, # 16 Exhibit G, # 17 Exhibit H, # 18 Exhibit I, # 19 Exhibit J, # 20 Exhibit K, # 21 Exhibit L, # 22 Exhibit M, # 23 Exhibit N, # 24 Exhibit O, # 25 Exhibit P, # 26 Text of Proposed Order)(Roeck, Victoria) (Entered: 04/10/2020)
16 MOTION to Expedite Motion for a Preliminary Injunction by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Notice and Motion for a Preliminary Injunction with supporting documents)(Roeck, Victoria) (Entered: 04/10/2020)
17 RESPONSE in Opposition re 16 MOTION to Expedite Motion for a Preliminary Injunction filed by Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Coriell, David) (Entered: 04/11/2020)
18 TEXT ORDER denying the petitioners' motion to expedite, Docket Item 16 , for the reasons stated in the respondents' opposition, Docket Item 17 . The respondents shall respond to the motion for a preliminary injunction, Docket Item 15 , on or before April 27, 2020. The petitioners shall reply on or before May 6, 2020. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/13/2020. (RFI) (Entered: 04/13/2020)
19 Letter filed by Executive Office for Immigration Review, William Barr, Matthew Albence, Jeffrey Searls, Chad F. Wolf, United States Department of Justice, James McHenry as to Executive Office for Immigration Review, William Barr, Matthew Albence, Jeffrey Searls, Chad F. Wolf, United States Department of Justice, James

04/23/2020 04/24/2020 04/27/2020
04/27/2020 04/27/2020 04/29/2020

McHenry requesting extension of page limit. (Coriell, David) (Entered: 04/22/2020)
20 TEXT ORDER granting the respondents' letter request to enlarge the page limit for their memorandum of law in support of their forthcoming motion to dismiss, Docket Item 19 . SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/23/2020. (RFI) (Entered: 04/23/2020)
21 NOTICE of Appearance by Megan Elaine Sallomi on behalf of All Plaintiffs (Sallomi, Megan) (Entered: 04/24/2020)
22 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Attachments: # 1 Memorandum in Support Motion to Dismiss, # 2 Exhibit Ex. 1 Declaration of David M. Coriell, # 3 Exhibit Ex. A to Coriell Declaration, # 4 Exhibit Ex. B to Coriell Declaration, # 5 Exhibit Ex. 2 Declaration of Mark Pasierb)(Coriell, David) (Entered: 04/27/2020)
23 RESPONSE in Opposition re 2 MOTION to Certify Class filed by Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Coriell, David) (Entered: 04/27/2020)
24 RESPONSE in Opposition re 15 MOTION for Preliminary Injunction filed by Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Attachments: # 1 Declaration Stephanie Kerr)(Coriell, David) (Entered: 04/27/2020)
25 TEXT ORDER. The petitioners shall respond to 22 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by William Barr, Chad F. Wolf, Matthew Albence, James McHenry, United States Department of Justice, Executive Office for Immigration Review, and Jeffrey Searls, on or before May 6, 2020. The respondents shall reply on or before May 11, 2020.
The petitioners' reply to 23 Response in Opposition to Motion for Class Certification, filed by William Barr, Chad F. Wolf, Matthew Albence, James McHenry, United States Department of Justice, Executive Office for Immigration Review, and Jeffrey Searls, shall remain on the schedule in this Court's order dated March 13, 2020,

04/29/2020
05/06/2020 05/06/2020 05/11/2020 05/13/2020 05/15/2020
05/28/2020

Docket Item 7 . SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/29/2020. (RFI) (Entered: 04/29/2020)
26 TEXT ORDER re 15 MOTION for Preliminary Injunction filed by petitioners and 22 MOTION to Dismiss for Lack of Jurisdiction and MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by respondents. Telephone Oral Argument set for 5/15/2020 at 11:00 AM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Lawrence J. Vilardo. PLEASE NOTE: The proceeding described herein will be held remotely. Public access to the proceeding can be obtained by contacting Judge Vilardo's chambers at (716) 551-1621. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 4/29/2020. (CMD) (Entered: 04/29/2020)
27 MEMORANDUM in Opposition re 22 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Roeck, Victoria) (Entered: 05/06/2020)
28 REPLY/RESPONSE to re 15 MOTION for Preliminary Injunction filed by Antonio Lopez Agustin, Junior OnosambaOhindo. (Sallomi, Megan) (Entered: 05/07/2020)
29 REPLY to Response to Motion re 22 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Coriell, David) (Entered: 05/11/2020)
30 REPLY to Response to Motion re 2 MOTION to Certify Class filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Roeck, Victoria) (Entered: 05/13/2020)
31 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument re 15 MOTION for Preliminary Injunction filed by petitioners and 22 MOTION to Dismiss for Lack of Jurisdiction filed by respondents held on 5/15/2020. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Court reserves decision. Appearances by teleconference. For petitioners: Megan E. Sallomi, Victoria M. Roeck, Amy L. Belsher, and Christopher T. Dunn. Petitioners present. For respondents: AUSA David M. Coriell. (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 05/16/2020)
32 TEXT ORDER. The respondents shall submit a supplemental brief on or before June 4, 2020, addressing why the petitioners' claims are not inherently transitory under Nielsen v. Preap, 139 S.

06/02/2020
06/04/2020 06/10/2020 07/22/2020 07/23/2020 07/24/2020 07/24/2020
08/14/2020

Ct. 954, 963 (2019). The petitioners shall respond on or before June 11, 2020. In their response, the petitioners also shall address how their claims would proceed if the Court finds that those claims are transitory. In other words, who would pursue the class claims since the named petitioners no longer have live claims? SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 5/28/2020. (RFI) (Entered: 05/28/2020)
33 Letter filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo as to Executive Office for Immigration Review, William Barr, Matthew Albence, Jeffrey Searls, Chad F. Wolf, United States Department of Justice, James McHenry Notice of Supplemental Authority. (Attachments: # 1 Exhibit Dubon Miranda v. Barr, No. 1:20-cv01110, Opinion, # 2 Exhibit Dubon Miranda v. Barr, No. 1:20-cv01110, Order)(Sallomi, Megan) (Entered: 06/02/2020)
34 MEMORANDUM/BRIEF re 32 Text Order,, Concerning the "Inherently Transitory" Exception to Mootness by Matthew Albence, William Barr, Executive Office for Immigration Review, James McHenry, Jeffrey Searls, United States Department of Justice, Chad F. Wolf. (Coriell, David) (Entered: 06/04/2020)
35 REPLY/RESPONSE to re 34 Memorandum/Brief, Regarding the Inherently-Transitory Exception to Mootness filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Roeck, Victoria) (Entered: 06/10/2020)
36 TEXT ORDER. Case reassigned to Hon. Elizabeth A. Wolford. Hon. Lawrence J. Vilardo no longer assigned to the case. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 7/22/2020. (CMD) (Entered: 07/22/2020)
37 NOTICE of Appearance by Phil Telfeyan on behalf of All Plaintiffs (Telfeyan, Phil) (Entered: 07/23/2020)
38 MOTION to Withdraw as Attorney by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Attachments: # 1 Declaration of Victoria Roeck)(Roeck, Victoria) (Entered: 07/24/2020)
39 TEXT ORDER granting 38 Motion to Withdraw as Attorney. The Clerk of Court shall terminate Victoria Roeck as counsel of record for Plaintiffs. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 7/24/2020. (KAC)
-CLERK TO FOLLOW UP- (Entered: 07/24/2020)
40 Letter filed by Antonio Lopez Agustin, Junior Onosamba-Ohindo as to Executive Office for Immigration Review, William Barr, Matthew

09/02/2020 41

Albence, Jeffrey Searls, Chad F. Wolf, United States Department of Justice, James McHenry . (Sallomi, Megan) (Entered: 08/14/2020)
DECISION AND ORDER granting in part and denying in part 22 Motion to Dismiss; granting in part, denying in part, and reserving decision in part on 2 Motion to Certify Class; and granting in part and denying in part 15 Motion for Preliminary Injunction. Please Note: This docket text may not contain the entire contents of the attached Decision and Order. It is your responsibility to read the attached Decision and Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Decision and Order. Signed by Hon. Elizabeth A. Wolford on 9/2/2020. (KAC)

09/02/2020

-CLERK TO FOLLOW UP- (Entered: 09/02/2020) 42 TEXT ORDER re 2 Motion to Certify Class. As detailed further in

09/14/2020 09/16/2020 09/21/2020 09/22/2020

the 41 Decision and Order, the Court has reserved decision on whether it is appropriate to certify a separate class of individuals who have had a bond hearing and are detained at the Buffalo Federal Detention Facility pursuant to 8 U.S.C. § 1226(a) for purposes of declaratory relief, and orders further briefing on the issue. Class Petitioner's supplemental brief is due on or before September 16, 2020. Respondent's supplemental brief is due on or before September 23, 2020. Upon receipt of all papers, the Court will determine if oral argument is necessary and, if so, advise the parties of the date and time. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/2/2020. (KAC) (Entered: 09/02/2020)
43 STATUS REPORT Regarding the Courts Sept. 2, 2020 Order by Antonio Lopez Agustin, Junior Onosamba-Ohindo. (Sallomi, Megan) (Entered: 09/14/2020)
44 MEMORANDUM/BRIEF re 42 Text Order,,, regarding Certification on Post-Hearing Class by Junior Onosamba-Ohindo. (Attachments: # 1 Declaration of Jesse Barber)(Sallomi, Megan) (Entered: 09/16/2020)
45 STATUS REPORT regarding the Court's September 2, 2020 Order by Junior Onosamba-Ohindo. (Sallomi, Megan) (Entered: 09/21/2020)
46 NOTICE of Appearance by Jordan Laris Cohen on behalf of Antonio Lopez Agustin, Junior Onosamba-Ohindo (Cohen, Jordan) (Entered: 09/22/2020)

09/23/2020 09/24/2020
09/30/2020 10/02/2020 10/23/2020 10/30/2020

47 REPLY/RESPONSE to re 44 Memorandum/Brief regarding Certifying a Post-Hearing Class filed by Jeffrey Searls. (Coriell, David) (Entered: 09/23/2020)
48 TEXT ORDER. Upon review of the "Instructions to Immigration Judges" (Dkt. 45 at 2-4) ("the Instructions") and the "Notice of Court Order Regarding Bond Hearings in the Batavia Immigration Court" (id. at 5-7) ("the Notice"), the Court finds both documents comply with its September 2, 2020 Decision and Order (Dkt. 41). The Instructions shall be distributed to the Buffalo and Batavia Immigration Judges and the Notice shall be distributed to the PreHearing Class members, with appropriate translations as set forth in the Decision and Order. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/24/2020. (KAC) (Entered: 09/24/2020)
49 MOTION for Reconsideration re 41 Order on Motion to Dismiss/Lack of Jurisdiction,,, Order on Motion to Dismiss for Failure to State a Claim,,, Order on Motion for Preliminary Injunction,, by Junior Onosamba-Ohindo. (Attachments: # 1 Memorandum in Support)(Sallomi, Megan) (Entered: 09/30/2020)
50 TEXT ORDER re 49 Motion for Reconsideration, filed by Petitioner. Responses are due on or before October 23, 2020; Replies are due on or before October 30, 2020. Upon receipt of all papers the Court will determine if oral argument is necessary and, if so, will inform the parties of the date and time. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 10/02/2020. (CAL). (Entered: 10/02/2020)
51 MEMORANDUM in Opposition re 49 MOTION for
Reconsideration re 41 Order on Motion to Dismiss/Lack of Jurisdiction,,, Order on Motion to Dismiss for Failure to State a Claim,,, Order on Motion for Preliminary Injunction,, filed by Jeffrey Searls. (Coriell, David) (Entered: 10/23/2020)
52 NOTICE OF APPEAL as to 41 Order on Motion to Dismiss/Lack of Jurisdiction,,, Order on Motion to Dismiss for Failure to State a Claim,,, Order on Motion for Preliminary Injunction,, by Jeffrey Searls. Fee Status: No Fee Due, Government Attorney. (Coriell, David) Modified on 11/2/2020 (JLV). (Entered: 10/30/2020)

10/30/2020 10/30/2020

53 DESIGNATION of Record on Appeal by Jeffrey Searls re 52 Notice of Appeal CLERK TO FOLLOW UP (Coriell, David) (Entered: 10/30/2020)
54 RESPONSE in Support re 49 MOTION for Reconsideration re 41

11/02/2020 12/15/2020
01/29/2021 03/23/2021

Order on Motion to Dismiss/Lack of Jurisdiction,,, Order on Motion to Dismiss for Failure to State a Claim,,, Order on Motion for Preliminary Injunction,, filed by Junior Onosamba-Ohindo. (Sallomi, Megan) (Entered: 10/30/2020)
55 CLERKS CERTIFICATE filed and electronically sent to Court of Appeals. (JLV) (Entered: 11/02/2020)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Oral Argument Proceedings via Teleconference held on 5/15/2020, before Judge Lawrence J. Vilardo. Court Reporter/Transcriber Ann M. Sawyer, Contact Info Ann_Sawyer@nywd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/5/2021. Redacted Transcript Deadline set for 1/15/2021. Release of Transcript Restriction set for 3/15/2021. (KM) (Entered: 12/15/2020)
57 MOTION to Withdraw as Attorney by Junior Onosamba-Ohindo. (Attachments: # 1 Affidavit)(Sallomi, Megan) (Entered: 01/29/2021)
58 TEXT ORDER granting 57 Motion to Withdraw as Attorney. The Clerk of Court shall terminate Attorney Megan Sallomi as counsel of record for Petitioner. Signed by Elizabeth A. Wolford on 3/23/21. (MGB)

03/29/2021 04/27/2021 04/27/2021

-CLERK TO FOLLOW UP- (Entered: 03/23/2021)

DECISION AND ORDER denying 2 Motion to Certify Class

59

without prejudice in remaining part; denying 49 Motion for

Reconsideration. Signed by Hon. Elizabeth A. Wolford on

3/29/2021. (MGB) (Entered: 03/29/2021)

60 NOTICE OF APPEAL as to 41 Order on Motion to Dismiss/Lack of Jurisdiction, Order on Motion to Dismiss for Failure to State a Claim, Order on Motion for Preliminary Injunction, by Junior Onosamba-Ohindo. Filing fee $ 505, receipt number 02094228956. (Belsher, Amy) (Entered: 04/27/2021)

Within 14 days of filing the 60 Notice of Appeal, the appellant is required to electronically file with the District Court an index of filed

05/19/2021 05/20/2021

documents it wishes the Court of Appeals to consider, called Designation of Record on Appeal. After receipt, the Clerk's Office will certify and transmit the index to the Circuit. (JHF) (Entered: 04/27/2021)
61 DESIGNATION of Record on Appeal by Junior Onosamba-Ohindo re 60 Notice of Appeal, CLERK TO FOLLOW UP (Belsher, Amy) (Entered: 05/19/2021)
62 CLERKS CERTIFICATE/INDEX filed and electronically sent to Court of Appeals (LMD) (Entered: 05/20/2021)

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 Case 1:20-cv-00290 Document 1 Filed 03/11/20 Page 1 of 19

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

JUNIOR ONOSAMBA-OHINDO and ANTONIO LOPEZ AGUSTIN, on behalf of themselves and all others similarly situated,
Petitioners-Plaintiffs,

v.
WILLIAM BARR, in his official capacity as Attorney General of the Department of Justice; UNITED STATES DEPARTMENT OF JUSTICE; JAMES MCHENRY, in his official capacity as the Director of the Executive Office for Immigration Review; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; MATTHEW ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of Immigration and Customs Enforcement; CHAD F. WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and JEFFREY SEARLS, in his official capacity as the Acting Administrator of the Buffalo Federal Detention Facility,

Case No. 1:20-cv-290
CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Respondents-Defendants.

INTRODUCTION 1. The government jails thousands of people each year—separating them from families and communities, depriving them of their livelihoods, and often holding them in remote facilities, practically incommunicado—solely because it alleges they are removable from the United States. Immigration and Customs Enforcement incarcerates them for months or even years
1

Case 1:20-cv-00290 Document 1 Filed 03/11/20 Page 2 of 19
without ever having to affirmatively prove that a particular individual’s detention serves a legitimate government interest. In the Batavia and Buffalo Immigration Courts, this practice permits agency adjudicators to deny release entirely or condition it on prohibitively high bond amounts, even when individuals pose little or no risk of flight or danger. In fact, two Immigration Judges sitting within this District—Philip Montante and Mary Baumgarten—have adopted what is in effect a blanket policy of denying bond across the board (“the No Bond Policy”). The No Bond Policy demonstrates the extreme injustice that can result from such a procedurally deficient custody-review scheme.
2. But liberty is supposed to be the norm throughout the American legal system, and detention a carefully limited exception. Accordingly, when an individual faces a severe deprivation of liberty, the Constitution requires adequate procedural protections to ensure they are not incarcerated arbitrarily and unlawfully. The petitioners in this case—Junior Onosamba-Ohindo and Antonio Lopez Agustin, on behalf of a class of people similarly situated—respectfully ask this Court to restore these core due process principles at the Batavia and Buffalo Immigration Courts. Specifically, they seek declaratory and injunctive relief that ends the respondents’ unlawful No Bond Policy and prohibits further detention without an adequate custody hearing that includes the following procedural protections: (1) the government bears the burden to prove by clear and convincing evidence that detention is necessary because the detained immigrant is a danger to others or a flight risk; (2) the government bears the burden of proving by clear and convincing evidence that there is no condition or combination of conditions that will reasonably assure the individual’s future appearance and the safety of the community; (3) the immigration judge considers the individual’s ability to pay and alternatives to detention in setting bond.
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PARTIES 3. Petitioner JUNIOR ONOSAMBA-OHINDO is detained in the custody of U.S. Immigration and Customs Enforcement (“ICE”) pursuant to 8 U.S.C. § 1226(a), at the Buffalo Federal Detention Facility, located at 4250 Federal Drive, Batavia, New York 14020. 4. Petitioner ANTONIO LOPEZ AGUSTIN is detained in ICE custody pursuant to 8 U.S.C. § 1226(a), at the Richwood Correctional Center, located at 180 Pine Bayou Circle, Richwood, Louisiana 71202. His custody hearing was conducted at the Batavia Immigration Court. Mr. Agustin appeared at this hearing by video. 5. Respondent WILLIAM BARR is sued in his official capacity as the Attorney General of the United States and is the most senior official in the Department of Justice. He is responsible for the adjudication of immigration proceedings and delegates this responsibility to the Executive Office for Immigration Review (“EOIR”), which is subject to his control and direction. Respondent Barr is legally responsible for administering the petitioners’ custody hearings. 6. Respondent UNITED STATES DEPARTMENT OF JUSTICE (“DOJ”) is the federal agency responsible for the adjudication of immigration proceedings. 7. Respondent JAMES MCHENRY is sued in his official capacity as the Director of the Executive Office of Immigration Review. He is responsible for the administration of immigration proceedings in immigration courts, including at the Batavia and Buffalo Immigration Courts, where the petitioners receive custody hearings. 8. Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW (“EOIR”) is a subcomponent of DOJ responsible for the administration of removal proceedings in immigration courts, including at the Batavia and Buffalo Immigration Courts where the petitioners receive
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custody hearings. 9. Respondent MATTHEW ALBENCE is sued in his official capacity as the Deputy
Director and Senior Official Performing the Duties of the Director of ICE. In this capacity, he directs all ICE operations. As a result, Respondent Albence has responsibility for the administration of the immigration laws and is a legal custodian of the petitioners.
10. Respondent CHAD F. WOLF is sued in his official capacity as the Acting Secretary of the U.S. Department of Homeland Security (“DHS”). In this capacity, he directs each of the component agencies within DHS, including ICE. As a result, Respondent Wolf has responsibility for the administration of the immigration laws and is a legal custodian of the petitioners.
11. Respondent JEFFREY SEARLS is sued in his official capacity as Acting Administrator at the Buffalo Federal Detention Facility, 4250 Federal Drive, Batavia, New York 14020.
FACTS Immigration Detention and Custody Proceedings in Immigration Court 12. Under the Immigration and Nationality Act, the federal government has authority to detain people during immigration proceedings that may result in their being removed (colloquially, “deported”) from the United States. For many detained people—those present in the United States before ICE arrested them, currently in removal proceedings, and lacking certain criminal convictions that would otherwise subject them to mandatory detention—ICE is required to make an initial custody determination about whether to release them while their immigration cases proceed. That determination is based on whether the person presents a risk of flight or a danger to the community. 13. Those persons whom ICE does not release at the outset are entitled to ask an
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immigration judge to review ICE’s custody determination in a custody hearing. Under the relevant federal regulation, “the immigration judge is authorized . . . to detain the alien in custody, release the alien, and determine the amount of bond, if any, under which the respondent may be released.”
14. Although the position carries the title of “judge,” immigration judges are not independent federal judges appointed pursuant to Article III of the U.S. Constitution. Rather, they are DOJ employees whom the agency describes as “non-supervisory career attorneys.” Immigration judges are “subject to such supervision and shall perform such duties as the Attorney General shall prescribe” and “act as the Attorney General’s delegates in the cases that come before them.”
15. During custody hearings, immigration judges must consider the evidence before them to make an individualized determination of whether the detained person poses a flight risk or danger and what bond amount, if any, could ameliorate any such risk. The amount of bond set should be only the amount necessary to ensure the person will return to court for the separate proceedings regarding whether they ultimately should be removed.
16. Current precedent of the Board of Immigration Appeals holds that the detained person bears the burden of proving they do not pose a flight risk or danger. This establishes a presumption of incarceration rather than release. In adopting this standard, the Board abruptly departed from previous agency policy without any reasoned explanation. Consequently, ICE routinely holds allegedly removable people in jail without ever being required to show that such detention is necessary. People are being deprived of freedom—jailed, and separated from their families and livelihoods—because they cannot prove a negative.
17. Furthermore, individuals who satisfy this unfair evidentiary burden face an additional hurdle: their release is routinely conditioned on a bond set without consideration of their
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ability to pay. Bond set beyond a person’s ability to pay is simply a de facto detention order. These de facto detention orders, coming after the immigration judge has found that the person could be released if they have a set sum of money, explicitly condition detention on wealth.
18. Nor do immigration judges generally consider individuals for alternative conditions of release that do not require the posting of bond. Both in the immigration and criminal justice contexts, alternatives to detention programs have been proven successful at mitigating risks of flight and danger. They also cost substantially less to the government and minimize harms to detained people and their communities.
Custody Hearings at the Batavia and Buffalo Immigration Courts and the “No Bond Policy” of Immigration Judges Montante and Baumgarten
19. The Buffalo area has two immigration courts. The Batavia Immigration Court is located inside the Buffalo Federal Detention Facility and hears mostly detained cases. The Buffalo Immigration Court is located in Buffalo, New York and hears mostly non-detained cases, though Buffalo judges also hear detained cases primarily by video feed.
20. From March 2019 through December 2019, Immigration Judges Baumgarten and Montante—both of whom sit on the Buffalo Immigration Court—heard the vast majority of custody hearings at Batavia.1 Immigration Judge Montante is also the Assistant Chief Immigration Judge in Buffalo, a position he assumed in March 2019. In that role, he oversees the operations of the Buffalo and Batavia Immigration Courts, in addition to hearing removal cases.
21. Also from approximately March 2019 through December 2019, the Batavia and Buffalo Immigration Courts heard custody and removal proceedings for about one thousand people
1 In approximately January 2020, Susan Aikman was hired to hear cases in person at the Batavia Immigration Court and now hears the majority of custody hearings there. All judges at the Buffalo and Batavia courts, however, continue to hold custody hearings, of varying frequency.
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detained at the Richwood Correctional Center in Richwood, Louisiana. In those cases, the detained individual is connected to a courtroom at the Batavia Immigration Court by video feed from Richwood, the judge typically is connected to the same courtroom by video feed from the Buffalo Immigration Court, and the court clerk, ICE attorney, and attorney for the detained individual (if any) appear in person in the Batavia courtroom. Immigration Judge Baumgarten has heard the majority of the custody hearings for individuals detained in Richwood during this period.2
22. The addition of the Richwood video docket represented an enormous increase in the caseload of the Batavia Immigration Court and put significant pressure on the court. Several staff members, including the Court Administrator, left their positions in part because of the difficulties of managing the Richwood docket. In addition, Assistant Chief Immigration Judge Montante instituted a policy directing the Batavia clerk’s office to not answer the phone, which meant detained individuals or their attorneys had to leave a voicemail and hope the court called them back.
23. The addition of the Richwood video docket also compounded the pressure put on the Batavia and Buffalo courts by EOIR’s annual case completion goals. The agency expects Immigration Judges to adjudicate 600 cases per year, and custody hearings do not factor into that calculation.
24. In all custody hearings at the Batavia and Buffalo Immigration Courts for those held under Section 1226(a), immigration judges impose on the detained person the burden of proving they do not pose a flight risk or danger. If the immigration judges at those courts do decide to release a person on bond, they rarely, if ever, consider evidence of the detained person’s ability
2 These custody hearings are now currently heard by video feed at the Buffalo Immigration Court, primarily by Judge Steven Connelly.
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to pay in setting a bond amount. The judges also categorically refuse to consider alternatives to detention that might mitigate any risk of danger or flight.
25. Further exacerbating this situation is the fact that Immigration Judges Montante and Baumgarten have adopted what amounts to a policy of denying release in all custody hearings assigned to them (the “No Bond policy”). Since March 1, 2019, when Immigration Judge Montante was promoted and Immigration Judge Baumgarten was hired, they each have denied release in 95% of the cases before them. Nationally, of the 204 Immigration Judges who had decided 50 or more cases in this same period, Immigration Judges Montante and Baumgarten have the third and fourth lowest grant rate, respectively.
26. This No Bond policy comes into even sharper relief when compared against the bond grant rates of the five other Immigration Judges who decided cases at Batavia and Buffalo during the same time period. These judges granted bond 51.3 percent, 45.7 percent, 40.9 percent, 28.1 percent, and 18 percent of the time.
27. By denying bond in almost every case and very rarely altering ICE initial custody determinations (with respect to either the grant of bond or the amount of bond), Immigration Judges Montante and Baumgarten have foregone individualized review in favor of effectively rubber-stamping ICE’s initial custody determinations. The consistent deference to the custody determination of ICE, the prosecuting agency, is an abdication of the immigration judges’ responsibility to serve as neutral adjudicators in custody determinations.
28. Neither Immigration Judge Montante, Immigration Judge Baumgarten, nor the Attorney General has provided an explanation—or even acknowledgement—of this policy change.
29. Immigration Judge Montante’s and Baumgarten’s individual bond decisions are practically immune from review. Most cases moot out in the months it takes for the Board of
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Immigration Appeals to review custody appeals because of long delays in the Board adjudication or because, under the pressure of ongoing detention, people give up their claims and accept deportation. Many people lose their merits cases in part because their detention impedes them from effectively litigating their cases and are deported before the Board decides the custody appeal.
30. As a result of these practices and policies in the Buffalo and Batavia Immigration Courts, hundreds if not thousands of people have been and will be detained unlawfully.
The Government’s Actions Exacerbate Inherent Difficulties For Detained People to Prove They Are Not a Danger or Flight Risk
31. People with custody hearings at the Batavia and Buffalo Immigration Courts struggle to meet their burden of proof due to the fact of their detention. Many detained people do not speak English and are unfamiliar with the U.S. legal system, much less immigration law. They are unfamiliar with the legal standard they must meet to obtain release at a custody hearing, or the evidence they must gather as proof.
32. The government’s actions also severely limit detained people’s ability to obtain legal counsel to assist them in navigating this field. The Buffalo Federal Detention Facility and the Richwood Correctional Center are located in remote, semi-rural areas. Legal visitation at these facilities is burdensome, occurring during restricted hours. With limited visitation rooms available, attorneys often must wait an hour or more for a room to become available to meet with clients.
33. Telephone communication is also restricted. At the Buffalo Federal Detention Facility, detained people must pay for phone calls, such that an indigent person is simply unable to make phone calls at all. They also cannot receive incoming calls. This makes it nearly impossible for them to find and retain an attorney or communicate with their attorney. It also prevents detained people from gathering the necessary evidence for their custody hearings, including proof of employment and residence, criminal records, and letters of support from their community.
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34. Detained people also struggle to prepare initial applications for relief from removal—often a necessary component of showing at their custody hearings that they are not a flight risk—because they lack access to legal counsel or the documents necessary to complete their applications.
35. Further restricting access to counsel in custody hearings, immigration judges routinely deny attorneys’ requests to appear at hearings telephonically. The requirement for attorneys to appear in person is particularly arbitrary in cases where both the immigration judge and the client are appearing via video feed and the hearing occurs in a remote location, such as Batavia. Because immigration judges often deny attorneys’ requests to appear by telephone, some detained people have been forced to withdraw their request or proceed at custody hearings without their counsel of choice. Being forced to obtain substitute counsel at the last minute, when a request to appear telephonically was denied or not ruled upon, further limits the detained person’s ability to present their evidence and meet their burden of proof.
36. On information and belief, many detained people would be able to secure release from detention if ICE bore the burden to prove their detention was justified. Many others, who will ultimately obtain bond under any standard, are forced to delay seeking release because they must first gather documents, request records, and prepare applications for relief to meet their burden of proof.
Ongoing Detention Causes Severe Harm to the Petitioners 37. Prolonged detention severely and irreparably harms detained immigrants in numerous ways. Once denied bond, people with cases at the Batavia and Buffalo Immigration Courts can be detained for months, sometimes years, before a final decision is reached on whether they are, in fact, removable.
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38. Detention is devastating for detained individuals and their families. Most people arrested by local immigration authorities have lived in this country for long periods with their families and are deeply integrated into local communities. Extended detention separates children from their parents and can devastate families and communities. Contact with families, through phone calls and facility visits, is limited and often prohibitively expensive.
39. Detention has also been shown to have harmful impacts on the physical and mental health of imprisoned people. People in ICE custody often lack access to quality medical care. Detention can also be a stressor that exacerbates pre-existing mental health symptoms. These harms are compounded by the inherent and profound uncertainty about the length of detention, as well as detained persons’ looming fear of deportation and permanent separation from their families and communities. Despite these psychological harms, mental health services in ICE detention facilities are woefully inadequate where they exist at all.
40. Detention also harms people’s ability to defend their immigration case in other ways. They face difficulties finding and retaining lawyers, communicating with attorneys and witnesses, and obtaining records and documentary evidence to prove their entitlement to relief from removal.
Petitioner-Plaintiff Junior Onosamba-Ohindo 41. The petitioner-plaintiff, Junior Onosamba-Ohindo, was arrested by ICE, denied release pursuant to 8 U.S.C. § 1226(a) by ICE’s Buffalo Field Office, and is currently detained at Buffalo Federal Detention Facility, within the Western District of New York. 42. On February 10, 2020, Mr. Onosamba-Ohindo appeared before Immigration Judge Aikman for a custody hearing. 43. At the hearing, Mr. Onosamba-Ohindo presented evidence that he was homeless
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and living in a refugee shelter. He asked the court to consider release with conditions other than money bond, suggesting either an ankle monitor or regular in-person ICE check-ins. As an alternative, he asked for the minimum bond allowed under the statute, $1,500.
44. ICE did not file any evidence in his custody hearing and conceded that he had no criminal history.
45. The Immigration Judge said that she could not consider such alternatives to money bond and set bond at $8,000.
46. The Immigration Judge set bond that high in part because she had imposed on Mr. Onosamba-Ohindo the burden to prove that he was not a flight risk and was not a danger to others, rather than imposing that burden on the government.
47. Mr. Onosamba-Ohindo has no income or savings and cannot afford the $8,000 bond. He remains detained because of poverty.
48. Detention has imposed significant hardship on Mr. Onosamba-Ohindo. He suffers from chest pains, back pains, and migraines, without adequate medical treatment. Separation from his wife and community also has caused Mr. Onosamba-Ohindo severe hardship. Due to these hardships and the stressors of detention, he cries frequently.
49. In addition to preventing Mr. Onosamba-Ohindo from communicating with his family regarding his welfare, being detained has severely inhibited his ability to gather evidence for his underlying application for immigration relief, and to assist his attorney in assembling his materials. This difficulty is compounded by the fact that he speaks little English.
Petitioner-Plaintiff Antonio Lopez Agustin 50. The petitioner-plaintiff, Antonio Lopez Agustin, is a 36-year-old man. He came to the United States in 1999, when he was 16 years old. He has lived in the United States for over
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twenty years and has an eight-year-old U.S. citizen daughter. 51. On August 7, 2019, ICE arrested and detained Mr. Agustin during a raid at his
workplace. Mr. Agustin has no violent or dangerous criminal history. He has several traffic infractions and one misdemeanor conviction for possessing false identification from 2005, for which he was sentenced to one-year supervised release. Despite his lack of serious criminal history and significant community ties, ICE detained Mr. Agustin without bond.
52. Before he was detained, Mr. Agustin earned approximately $280 a week and supported his eight-year-old daughter. He did not have the money to pay for a lawyer and spent weeks in jail until he found an attorney willing to represent him pro bono for his custody hearing.
53. The immigration court scheduled a custody hearing for Mr. Agustin in Batavia before Immigration Judge Baumgarten. The hearing was scheduled for November 19, 2019—over four months after he was initially detained. Mr. Agustin’s attorney requested to advance the custody hearing, but Immigration Judge Baumgarten denied the motion.
54. Because Mr. Agustin’s pro bono attorney worked in Washington, D.C., she requested to appear telephonically at his custody hearing in Batavia. Although Immigration Judge Baumgarten and Mr. Agustin would appear at the Batavia court by video feed, Immigration Judge Baumgarten did not allow his pro bono attorney to appear telephonically.
55. Mr. Agustin’s attorney could not appear in person in at the Batavia Immigration Court. Rather than further delay his custody hearing, she found substitute counsel to appear on her behalf at the last minute. Mr. Agustin had never previously met substitute counsel, whom he saw for the first time via video feed at his custody hearing.
56. At the custody hearing, Mr. Agustin introduced evidence that he had resided at the same address for eight years and had undertaken conversations with his landlord about buying the
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property. He also introduced evidence about his role as a caretaker and provider for his eight-year-old daughter, who is a U.S. citizen. He submitted eight letters from friends, neighbors, and community members attesting to his good character and role in the community. Two of his neighbors specifically offered to confirm that he would appear at all future proceedings.
57. Five minutes into the hearing, Immigration Judge Baumgarten denied bond, finding that Mr. Agustin had failed to meet his burden to prove that he was not a flight risk. She did not consider whether alternatives to detention could mitigate any flight risk that Mr. Agustin posed.
58. Mr. Agustin has now been detained without bond for more than seven months. 59. During those seven months, his partner and daughter have struggled financially and emotionally. Mr. Agustin has also struggled emotionally and been subject to harsh conditions at the Richwood Correctional Center. 60. Being detained has made it more difficult for Mr. Agustin to communicate with the pro bono attorney who is helping him apply for cancellation of removal. He cannot communicate with friends and family on the outside to help gather evidence and support for his application. The detained hearing location is also too far for them to come in support or testify on his behalf.
CLASS ACTION ALLEGATIONS 61. The petitioners bring this representative habeas petition pursuant to 28 U.S.C. § 2241 and class action pursuant to Fed. R. Civ. P. 23(a), (b)(1), and (b)(2) on behalf of themselves and all other people similarly situated. 62. The proposed class is defined as follows:
All individuals currently detained under 8 U.S.C. § 1226(a) who have had or will have a custody hearing before the Batavia or Buffalo Immigration Courts. 63. The case is also brought on behalf of a subclass defined as follows: All individuals currently detained under 8 U.S.C. § 1226(a) who have had or will
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have a custody hearing before the Batavia or Buffalo Immigration Courts, in front of either Immigration Judge Philip Montante or Immigration Judge Mary Baumgarten. 64. The proposed class and subclass are so numerous, and membership so fluid and transitory, that joinder of all members is impracticable. Hundreds of people are currently detained with custody hearings at the Buffalo and Batavia Immigration Courts, a significant number of whom are being held under Section 1226(a). 65. Moreover, absent class certification, people in immigration detention would face a series of barriers to accessing the relief sought through individual actions. Many putative class members are unrepresented. Access to legal materials in detention is severely limited. A large percentage of detained people do not speak and/or cannot read or write in English. Many of them have limited educational backgrounds. A significant percentage suffer from physical or mental impairments. 66. The petitioners’ claims are typical of those of the proposed class. All proposed class members are subject to the same uniform policies: (1) imposing the burden of proof on the detained immigrant at custody hearings; and (2) not considering ability to pay or alternatives to detention in setting bond. Moreover, Mr. Agustin’s claims are typical of the subclass, who are all affected by the No Bond Policy. 67. The petitioners will fairly and adequately protect the interests of the proposed class. The petitioners have no interests separate from those of the class with respect to the claims and issues in this case and seek no relief other than the relief sought by the class. They are unaware of any conflicts that would preclude fair and adequate representation. 68. Common questions of law or fact exist as to all proposed class members, including but not limited to the following: (a) whether the respondents have instituted policies and practices
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of imposing the burden of proof on detained individuals in their custody hearings and not considering ability to pay and alternatives to detention in setting bond; (b) whether the respondents’ policies and practices violate the Fifth Amendment to the United States Constitution.
69. Common questions of law or fact exist as to all proposed members of the No Bond Policy subclass, including but not limited to the following: (a) whether Immigration Judges Montante and Baumgarten have instituted a policy or practice of denying bond to virtually all people detained under Section 1226(a), thereby denying individual assessment of their eligibility for release; (b) whether the respondents’ policy and practice violate the Immigration and Nationality Act and its implementing regulations; (c) whether the respondents’ policy and practice violate the Administrative Procedure Act.
70. The claims of the petitioners are typical of the claims of the class as a whole because the petitioners and the class members are, have been, or will be similarly detained subject to the same failure to provide a custody hearing that comports with due process and other federal law. Moreover, the petitioners and proposed class members are, have been, or will be directly injured by respondents’ failure to provide such a hearing, which results in months, or even years, of unjustified and unnecessary detention.
71. The claims of Mr. Agustin are typical of the claims of the No Bond Policy subclass because he and the subclass members are, have been, or will be similarly detained subject to the same policy or practice of Immigration Judges Montante and Baumgarten refusing to provide individualized consideration for bond. Mr. Agustin and the proposed No Bond Policy subclass members are, have been, or will be directly injured by the respondents’ policy and practice to deny bond which results in months, or even years, of unjustified and unnecessary detention.
72. Counsel for the petitioners are experienced in complex class action, civil rights, and
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immigrants’ rights litigation. 73. The fact that vulnerable class members are unlikely to be able to challenge their
detention individually, as well as considerations of judicial economy, also militates in favor of class certification.
JURISDICTION AND VENUE 74. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 1361 (mandamus); and 5 U.S.C. § 701 et seq. (Administrative Procedure Act). 75. Venue is proper under 28 U.S.C. § 2241 and 28 U.S.C. § 1391 because a substantial part of the events and omissions giving rise to these claims occurred, and continue to occur, in this district; at the time of the filing of this action Mr. Onosamba-Ohindo is detained in the respondents’ custody within the Western District of New York; Mr. Agustin’s immigration case is being heard by the Buffalo Immigration Court and his custody hearing was held at the Batavia Immigration Court; Mr. Searls resides in this district; and the respondents are officers or employees of the United States acting in their official capacities.
CAUSES OF ACTION FIRST CLAIM
Violation of the Immigration and Nationality Act & Implementing Regulations
76. The respondents’ actions violate the Immigration and Nationality Act and its implementing regulations.
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SECOND CLAIM Violation of the Due Process Clause of the Fifth Amendment to the United States
Constitution 77. The respondents’ actions violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
THIRD CLAIM Violation of the Administrative Procedure Act 78. The respondents’ actions violate the Administrative Procedure Act.
PRAYER FOR RELIEF
WHEREFORE, the petitioners respectfully request that the Court: 79. Assume jurisdiction over this matter; 80. Certify this action as a class action on behalf of the proposed class and subclass, appoint the petitioners as class representatives, and appoint the undersigned counsel as class counsel; 81. Declare that the respondents’ actions, practices, policies, and/or omissions violate the Immigration and Nationality Act and its implementing regulations, the Fifth Amendment to the U.S. Constitution, and the Administrative Procedure Act; 82. Declare that each class member is entitled to a custody hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detained individual is a danger to others or a flight risk, and that no condition or combination of conditions will reasonably assure their future appearance and the safety of the community, and which includes consideration of ability to pay in selecting the amount of any bond and suitability for release on alternative conditions of supervision;
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83. Order that each class member be released unless provided with a custody hearing consistent with the above paragraph within a reasonable period, determined by the Court, after this order enters or after their detention under Section 1226(a) begins;
84. Order regular and complete reporting on the petitioner class and subclass to class counsel;
85. Award reasonable attorneys’ fees and costs for this action; and 86. Grant any further relief that the Court deems just and proper.

Dated:

March 11, 2020

NEW YORK CIVIL LIBERTIES UNION

New York, New York

FOUNDATION

By: * Application for admission to the Western District of New York forthcoming ** Application for admission pro hac vice forthcoming

/s/ Victoria Roeck VICTORIA ROECK MEGAN SALLOMI* JORDAN LARIS COHEN* AMY BELSHER CHRISTOPHER T. DUNN 125 Broad Street, 19th Floor New York, New York 10004 (212) 607-3300 msallomi@nyclu.org vroeck@nyclu.org jlariscohen@nyclu.org cdunn@nyclu.org

EQUAL JUSTICE UNDER LAW

JIM DAVY** PHIL TELFEYAN** 400 7th St. NW, Suite 602 Washington, D.C. 20004 (202) 505-3599 jdavy@equaljusticeunderlaw.org ptelfeyan@equaljusticeunderlaw.org

Counsel for the Petitioners-Plaintiffs and the Putative Class

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JS 44 (Rev. 08/18)

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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Junior Onosamba-Ohindo, and Antonio Lopez Agustin, on behalf of themselves and all others similarly situated
(b) County of Residence of First Listed Plaintiff Genesee
(EXCEPT IN U.S. PLAINTIFF CASES)

See attachment.
County of Residence of First Listed Defendant Washington, D.C.
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) See attachment.

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

Click here for: Nature of Suit Code Descriptions.

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

PERSONAL INJURY u 625 Drug Related Seizure

u 365 Personal Injury -

of Property 21 USC 881

Product Liability

u 690 Other

u 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

u 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 371 Truth in Lending

Act

u 380 Other Personal

u 720 Labor/Management

Property Damage

Relations

u 385 Property Damage

u 740 Railway Labor Act

Product Liability

u 751 Family and Medical

u 422 Appeal 28 USC 158 u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 835 Patent - Abbreviated
New Drug Application u 840 Trademark
SOCIAL SECURITY u 861 HIA (1395ff) u 862 Black Lung (923) u 863 DIWC/DIWW (405(g)) u 864 SSID Title XVI u 865 RSI (405(g))

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 240 Torts to Land u 245 Tort Product Liability u 290 All Other Real Property

u 442 Employment

u 510 Motions to Vacate

u 443 Housing/

Sentence

Accommodations

u 530 General

u 445 Amer. w/Disabilities - u 535 Death Penalty

IMMIGRATION

u 871 IRS—Third Party 26 USC 7609

Employment

Other:

u 446 Amer. w/Disabilities - u 540 Mandamus & Other

Other

u 550 Civil Rights

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

u 462 Naturalization Application u 465 Other Immigration
Actions

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 485 Telephone Consumer
Protection Act u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters
u 895 Freedom of Information
Act u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
u 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original Proceeding

u 2 Removed from State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. § 2241; 5 U.S.C. § 701 et seq. VI. CAUSE OF ACTION Brief description of cause:
Habeas Corpus; Administrative Procedure Act

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND:

u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE Elizabeth Wolford

DOCKET NUMBER 17-cv-00721

DATE
03/11/2020
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Victoria Roeck

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:20-cv-00290 Document 1-1 Filed 03/11/20 Page 2 of 3
Attachment to Civil Cover Sheet – Onosamba-Ohindo, et al. v. Barr, et al.
I(a) – Defendants
WILLIAM BARR, in his official capacity as Attorney General of the Department of Justice; UNITED STATES DEPARTMENT OF JUSTICE; JAMES MCHENRY, in his official capacity as the Director of the Executive Office for Immigration Review; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; MATTHEW ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of Immigration and Customs Enforcement; CHAD F. WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and JEFFREY SEARLS, in his official capacity as the Acting Administrator of the Buffalo Federal Detention Facility.
I(c) – Petitioners’ Attorneys
• Megan Sallomi The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Jordan Laris Cohen The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Victoria Roeck The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Amy Belsher The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Christopher Dunn The New York Civil Liberties Union Foundation 125 Broad St., 19th Fl. New York, NY 10004 212 607 3300
• Jim Davy Equal Justice Under Law 400 7th St. NW, Suite 602 Washington, D.C. 20004

Case 1:20-cv-00290 Document 1-1 Filed 03/11/20 Page 3 of 3
Attachment to Civil Cover Sheet – Onosamba-Ohindo, et al. v. Barr, et al.
• Phil Telfeyan Equal Justice Under Law 400 7th St. NW, Suite 602 Washington, D.C. 20004
VIII. Related Case(s)
This case is related to Abdi v. McAleenan, No. 17-CV-721, a pending class action before Judge Elizabeth Wolford. The putative class here challenges the imposition of the burden of proof on the detained person and immigration judges’ refusal to consider ability to pay and alternatives to detention in bond hearings pursuant to Section 1226(a) of Title 8 of the U.S. Code. The court in Abdi addressed these issues in the mandatory detention context. See Abdi v. Duke, 280 F. Supp. 3d 373, 411 (W.D.N.Y. 2017) (issuing preliminary injunction ordering bond hearings where the government bore the burden of proof by clear and convincing evidence), vacated in part sub nom. Abdi v. McAleenan, 405 F. Supp. 3d 467 (W.D.N.Y. 2019); Abdi v. Nielsen, 287 F. Supp. 3d 327, 338 (W.D.N.Y. 2018) (clarifying that immigration judges were required to consider ability to pay and alternatives to detention in bond hearings under the preliminary injunction) vacated sub nom. Abdi v. McAleenan, 405 F. Supp. 3d 467 (W.D.N.Y. 2019).

 
 Case 1:20-cv-00290-EAW Document 41 Filed 09/02/20 Page 1 of 54

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ________________________________________
JUNIOR ONOSAMBA-OHINDO, on behalf of himself and all others similarly situated, and
ANTONIO LOPEZ AGUSTIN, on behalf of himself and all others similarly situated,
Petitioners/Plaintiffs,
v.
WILLIAM BARR, in his official capacity as Attorney General of the Department of Justice, et al.,
Respondents/Defendants. ________________________________________

DECISION AND ORDER 1:20-CV-00290 EAW

INTRODUCTION Petitioners/plaintiffs Junior Onosamba-Ohindo (“Class Petitioner”) and Antonio Lopez Agustin (“Subclass Petitioner”) (collectively “Petitioners”) have filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and complaint for declaratory and injunctive relief, purportedly on behalf of themselves and all other persons similarly situated. (Dkt. 1 (“Petition”)). At the time the Petition was filed, Petitioners were both civil immigration detainees held under 8 U.S.C. § 1226(a) pending their removal proceedings. Petitioners seek: class certification; a declaratory judgment that the “actions, practices, policies, and/or omissions” of defendants/respondents William Barr, the United States Department of Justice (“DOJ”), James McHenry, the Executive Office for Immigration Review (“EOIR”), Matthew Albence, Chad F. Wolf, and Jeffrey Searls
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(collectively “Respondents”) violate the Immigration and Nationality Act (“INA”) and its implementing regulations, the Administrative Procedure Act (“APA”), and the Fifth Amendment to the U.S. Constitution; a declaratory judgment that each class member is entitled to a custody hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detained individual is a danger to others or a flight risk; and an order stating that each class member must be released unless provided with such a custody hearing. (Id. at 18-19).
Presently pending before the Court are Petitioners’ motion for class certification (Dkt. 2), Petitioners’ motion for a preliminary injunction (Dkt. 15), and Respondents’ motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 22). For the reasons that follow, the Court grants in part and denies in part Respondents’ motion to dismiss; grants in part, denies in part, and reserves decision in part on Petitioners’ motion for class certification; and grants in part and denies in part Petitioners’ motion for a preliminary injunction.
BACKGROUND I. Factual Background
A. Detention Hearings Pursuant to 8 U.S.C. § 1226(a) The federal government has authority under the INA to detain people during immigration proceedings that may result in their removal. See generally 8 U.S.C. § 1226. The INA requires that certain immigration detainees—namely, people who were present in the United States before their arrest, are currently in removal proceedings, and lack
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certain criminal convictions that would otherwise subject them to mandatory detention— receive an initial determination from United States Immigration and Customs Enforcement (“ICE”) regarding whether they may be released while their removal cases proceed. See id. If ICE does not release an individual, that person may ask an immigration judge (“IJ”) to review ICE’s custody determination in a bond hearing. See id. § 1226(a); 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1). IJs are employees of DOJ that, among other things, decide whether an alien is removable from the United States. 8 U.S.C. §§ 1101(18), 1229a(c)(1)(A). They are attorneys appointed by the Attorney General and “act as the Attorney General’s delegates in the cases that come before them.” 8 C.F.R. § 1003.10(a).
The Board of Immigration Appeals (“BIA”) is an administrative appellate body within EOIR that reviews the decisions of IJs. See 8 C.F.R. § 1003.1(a)(1). Members of the BIA are also attorneys appointed by the Attorney General who “act as the Attorney General’s delegates in the cases that come before them.” Id. Current BIA decisional precedent holds that during a bond hearing, the burden is on the detainee “to show to the satisfaction of the [IJ] that he or she merits release on bond,” and that an IJ “must consider whether an alien who seeks a change in custody status is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.” In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006).
The Buffalo, New York area has two immigration courts. (Dkt. 1 at ¶ 19). The Batavia Immigration Court is located inside the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York, and hears mostly cases by detained individuals. (Id.). The Buffalo Immigration Court is located in Buffalo, New York, and hears mostly cases
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by non-detained individuals, although Buffalo IJs also hear cases by detained individuals primarily via video feed. (Id.). Between approximately March 2019 and December 2019, the Batavia and Buffalo Immigration Courts also heard custody and removal proceedings for about 1,000 people detained at the Richwood Correctional Center (“RCC”) in Monroe, Louisiana. (Id. at ¶ 21). Typically during these proceedings, the detainee would appear via video from the RCC while the IJ and attorneys would appear in person at the BFDF courtroom. (Id.).
At the time the Petition was filed, Class Petitioner was arrested by ICE and detained under 8 U.S.C. § 1226(a) at the BFDF. (Dkt. 1 at ¶ 41). On February 10, 2020, Class Petitioner appeared before IJ Susan Aikman for a custody hearing. (Id. at ¶ 42). At the hearing, Class Petitioner presented evidence that he was homeless and living in a refugee shelter. (Id. at ¶ 43). He asked the court to consider releasing him with conditions other than a money bond, suggesting either an ankle monitor or regular in-person ICE check-ins, or alternatively with the minimum bond allowed under the statute, $1,500. (Id.); see 8 U.S.C. § 1226(a)(2)(A). The government did not file any evidence at his custody hearing and conceded Class Petitioner had no criminal history. (Dkt. 1 at ¶ 44). The IJ stated that she could not consider those alternatives to a money bond and set bond at $8,000. (Id. at ¶ 45). Petitioners contend the IJ set an $8,000 bond in part because she had placed the burden on Class Petitioner to prove that he was not a flight risk and was not a danger to others, rather than imposing that burden on the government. (Id. at ¶ 46).
At the time the Petition was filed, Class Petitioner remained detained because he could not afford the $8,000 bond. (Id. at ¶ 47). Petitioners allege that during Class
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Petitioner’s detention, he suffered from chest pains, back pains, and migraines without adequate medical treatment, and that separation from his wife and community also caused him “severe hardship.” (Id. at ¶ 48). Additionally, Class Petitioner’s detention severely inhibited his ability to gather evidence for his underlying application for immigration relief and to assist his attorney in assembling his materials, a difficulty compounded by the fact that he speaks little English. (Id. at ¶ 49). On March 16, 2020, Class Petitioner was released from immigration custody after the Brooklyn Bail Fund posted his bond. (Dkt. 15-10 at ¶¶ 2-4). Class Petitioner presently lives with his wife in Buffalo, New York. (Id. at ¶ 5).
B. The “No Bond” Policy Petitioners further allege that two IJs in this District—Philip Montante (“IJ Montante”) and Mary Baumgarten (“IJ Baumgarten”)—have adopted a policy of “denying bond in almost every case and very rarely altering ICE initial custody determinations (with respect to either the grant of bond or the amount of bond).” (Dkt. 1 at ¶ 27). According to Petitioners, these two IJs have “foregone individualized review in favor of effectively rubber-stamping ICE’s initial custody determination.” (Id.). In support of this claim, Petitioners note that these two IJs “have denied release in 95% of the cases before them.” (Id. at ¶ 25). Moreover, of the 204 IJs across the country who decided 50 or more cases in this same period, “[IJs] Montante and Baumgarten have the third and fourth lowest grant[ ] rate, respectively.” (Id.). In contrast, the five other IJs who decided cases at Batavia and Buffalo during this same period granted bond 51.3%, 45.7%, 40.9%, 28.1%, and 18% of the time. (Id. at ¶ 26). Petitioners contend that because IJs Montante and Baumgarten deny
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bond in almost every case and very rarely alter initial custody determinations, they have “abdicat[ed] [their] responsibility to serve as neutral adjudicators in custody determinations.” (Id. at ¶ 27).
Subclass Petitioner is a 36-year-old man who came to the United States in 1999. (Id. at ¶ 50). He has lived in the United States for over twenty years and has an eight-yearold daughter who is a citizen of the United States. (Id.). On August 7, 2019, ICE arrested Subclass Petitioner after a raid at his workplace and detained him at the RCC. (Id. at ¶ 51). Subclass Petitioner has several traffic infractions and one misdemeanor conviction for possessing false identification from 2005 but has no violent or dangerous criminal history. (Id.). ICE made the initial custody determination to detain Subclass Petitioner without bond. (Id.).
Subclass Petitioner found an attorney working in Washington, D.C., willing to represent him pro bono at his custody hearing before IJ Baumgarten. (Id. at ¶¶ 53-54). However, IJ Baumgarten would not allow his attorney to appear telephonically, and rather than delay Subclass Petitioner’s bond hearing to allow his attorney to travel to Batavia, IJ Baumgarten found substitute counsel “at the last minute.” (Id. at ¶¶ 54-55). At the hearing on November 19, 2019, Subclass Petitioner introduced evidence that he had resided at the same address for eight years and had undertaken conversations with his landlord about buying the property, as well as evidence about his role as a caretaker and provider for his daughter. (Id. at ¶ 56). He also submitted eight letters from friends, neighbors, and community members attesting to his good character and role in the community, and two of his neighbors specifically offered to confirm that he would appear at all future proceedings.
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(Id.). However, five minutes into the hearing, IJ Baumgarten denied bond, finding that Subclass Petitioner had failed to meet his burden to prove that he was not a flight risk. (Id. at ¶ 57). She did not consider whether alternatives to detention could mitigate any flight risk that Subclass Petitioner posed. (Id. at ¶ 57).
At the time the Petition was filed, Subclass Petitioner had been detained without bond for more than seven months at the RCC. (Id. ¶¶ 58-59). His detention made it more difficult for him to communicate with the pro bono attorney who is helping him apply for cancellation of removal. (Id. at ¶ 60). Additionally, he could not communicate with friends and family on the outside to help gather evidence and support for his application, and Batavia was too far for them to come to support him or testify on his behalf. (Id.). On April 6, 2020, Subclass Petitioner was released from custody on his own recognizance. (Dkt. 15-12). II. Procedural Background
Petitioners filed the instant action (Dkt. 1) and motion to certify the class (Dkt. 2) on March 11, 2020, and the case was assigned to United States District Judge Lawrence J. Vilardo. On April 10, 2020, Petitioners filed a motion for preliminary injunction (Dkt. 15) as to which the Court denied expedited consideration (Dkt. 16; Dkt. 18). Respondents filed their response to the motion for preliminary injunction and the motion for class certification on April 27, 2020. (Dkt. 23; Dkt. 24). Petitioners replied to the motion for preliminary injunction on May 6, 2020 (Dkt. 28), and to the motion for class certification on May 13, 2020 (Dkt. 30). On April 27, 2020, Respondents also filed their motion to dismiss (Dkt.
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22). Petitioners filed their opposition to the motion to dismiss on May 6, 2020 (Dkt. 27), and on May 11, 2020, Respondents replied (Dkt. 29).
Oral argument on the motion to dismiss and the motion for preliminary injunction was held before Judge Vilardo on May 15, 2020. (Dkt. 31). On May 28, 2020, supplemental briefing was ordered regarding the inherently transitory exception to mootness (Dkt. 32), which Respondents submitted on June 4, 2020 (Dkt. 34) and Petitioners on June 10, 2020 (Dkt. 35). The case was subsequently transferred to the undersigned on July 22, 2020. (Dkt. 36).
DISCUSSION I. Motion to Dismiss for Lack of Subject Matter Jurisdiction
A. Legal Standard “A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court lacks the statutory or constitutional power to adjudicate it, such as when . . . the plaintiff lacks constitutional standing to bring the action.” Cortlandt St. Recovery Corp. v. Hellas Telecomms, S.á.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015) (quotation and citation omitted). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “When considering a motion to dismiss for lack of subject matter jurisdiction . . ., a court must accept as true all material factual allegations in the [operative pleading].” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). In addition, a court is not limited to the allegations in the petition and can “refer to evidence outside the pleadings,” Luckett v. Bure, 290 F.3d 493,
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496-97 (2d Cir. 2002), but it “may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. v. Attica Cent. Schools, 386 F.3d 107, 110 (2d Cir. 2004). “Indeed, a challenge to the jurisdictional elements of a plaintiff’s claim allows the Court to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Celestine v. Mt. Vernon Neighborhood Health Ctr., 289 F. Supp. 2d 392, 399 (S.D.N.Y. 2003) (quotation omitted), aff’d, 403 F.3d 76 (2d Cir. 2005). “Where, as here, the defendant moves for dismissal under Rule 12(b)(1), Fed. R. Civ. P., as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the [operative pleading] for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) (quotation omitted).
B. Mootness Respondents contend that Petitioners’ claims are moot because both Petitioners have been released from immigration custody. (Dkt. 22-1 at 17-18). Petitioners respond that their claims are not moot because they face the threat of re-detention. (Dkt. 27 at 9). Alternatively, they claim that their claims are inherently transitory, an exception to the mootness doctrine. (Id. at 9-10; Dkt. 35). For the reasons that follow, this Court finds that Petitioners’ claims fall within the inherently transitory exception to mootness. “The mootness doctrine is rooted in the ‘case or controversy’ requirement of Article III of the Constitution, which describes ‘the principle that, at all times, the dispute before the court must be real and live, not feigned, academic, or conjectural.’” Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008) (quoting
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Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001)). “A case is moot, and accordingly the federal courts have no jurisdiction over the litigation, when ‘the parties lack a legally cognizable interest in the outcome.’” Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “When a habeas petitioner has been released from custody after filing a petition, the petition may be moot, and the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the U.S. Constitution.” Denis v. DHS/ICE of Buffalo, 634 F. Supp. 2d 338, 340 (W.D.N.Y. 2009); see Johnson v. Reno, 143 F. Supp. 2d 389, 391 (S.D.N.Y. 2001) (“A habeas corpus petition seeking release from (INS) custody is moot when the petitioner is no longer in (INS) custody.”). “Thus, ‘under the mootness doctrine, if an event occurs . . . that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, [the court] must dismiss the case, rather than issue an advisory opinion.’” Farez-Espinoza v. Napolitano, No. 08 CIV. 11060HB, 2009 WL 1118098, at *4 (S.D.N.Y. Apr. 27, 2009) (quoting ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004)).
The Supreme Court has long recognized a “narrow class of cases in which the termination of a class representative’s claim does not moot the claims of the unnamed members of the class.” Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). This type of claim has been described as “inherently transitory.” See County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (“We recognized in Gerstein that ‘[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest
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expires.’” (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980))). The “inherently transitory” exception to the mootness doctrine applies to class actions where it is uncertain whether the court will be able to timely rule upon the certification of the class “before the proposed representative’s individual interest expires.” Comer v. Cisneros, 37 F.3d 775, 799 (2d Cir. 1994) (quotation marks and citation omitted); Reynolds v. Lifewatch, Inc., 136 F. Supp. 3d 503, 513 (S.D.N.Y. 2015) (same). Thus, where the named class representative no longer can maintain a personal interest in the litigation, the inherently transitory doctrine may still save the class action. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 76 (2013) (“[I]n cases where the transitory nature of the conduct giving rise to the suit would effectively insulate defendants’ conduct from review, certification could potentially ‘relate back’ to the filing of the complaint.”). The Second Circuit has held that the inherently transitory doctrine applies if “(1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint.” Salazar v. King, 822 F.3d 61, 73 (2d Cir. 2016).
A plurality of the Supreme Court recently recognized the application of the inherently transitory doctrine in the immigration habeas context. See Nielsen v. Preap, 139 S. Ct. 954, 963 (2019) (plurality opinion). Preap involved a class of § 1226(c) detainees who argued that they were not subject to mandatory detention under that statute because they had not been detained immediately upon their release from criminal custody. The plurality found that the plaintiffs’ claims were not moot even though “by the time of class
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certification the named plaintiffs had obtained either cancellation of removal or bond hearings.” Id. at 963. More specifically, the plurality opinion noted in Preap:
[A]t least one named plaintiff in both cases had obtained release on bond, as opposed to cancellation of removal, and that release had been granted following a preliminary injunction in a separate case. Unless that preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. And indeed, [the Court] later ordered that that injunction be dissolved. Id. (citing Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018)). Alternatively, the Supreme Court found that it had jurisdiction because “the harms alleged are transitory enough to elude review.” Id. This alternative holding found the plaintiffs’ claims to be transitory because the “type of injury” the plaintiffs claimed—“that they would be harmed by detention without a hearing pending a decision on their removal”—“ends as soon as the decision on removal is made.” Id. Because such a claim “is transitory[,] . . . the fact that the named plaintiffs obtained some relief before class certification does not moot their claims.” Id.; see McLaughlin, 500 U.S at 52 (“That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive [the Court] of jurisdiction.”). Respondents argue that Preap is inapposite for two reasons. “First, the claims in Preap always expired after six months for any potential petitioner under then-existing Ninth Circuit precedent.” (Dkt. 34 at 2 (emphasis omitted)). “Second, the Preap plaintiffs’ relief was impermanent at the time of class certification because it was obtained as the
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result of a preliminary injunction issued in a separate case, Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).” (Id. (emphasis omitted)).1
It is true that under Ninth Circuit law at the time of class certification in Preap, the
plaintiffs’ claim for a bond hearing would become moot after six months because
Rodriguez held that such a bond hearing was required after six months’ detention as a
matter of Due Process. See Rodriguez, 715 F.3d at 1144. However, the Supreme Court
made no reference to that six-month time limit as the basis for its reasoning in Preap.
Instead, Preap stated the inherently transitory doctrine applied because the claim to a bond
hearing “ends as soon as the decision on removal is made.” 139 S. Ct. at 963. That same
rationale applies to this case: as soon as a final decision on the detainee’s removal has been
made or if a detainee is released while his immigration proceedings are ongoing (as
occurred for both named Petitioners here), the detainee will no longer be held under
§ 1226(a).
Additionally, courts within this Circuit have recognized that the application of the
inherently transitory exception is not restricted to “time-limited” assertions. For example,
1 Defendants also assert in a footnote that Preap’s alternative holding “was not necessary for the decision, and is therefore dicta.” (Dkt. 34 at 7 n.7). It is well established that a court need not address an argument asserted in a footnote. Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, No. 12 CIV. 7372 (AT), 2020 WL 264146, at *2 (S.D.N.Y. Jan. 17, 2020) (“[C]ourts ‘routinely decline[ ] to consider arguments mentioned only in a footnote on the grounds that those arguments are inadequately raised.’” (alterations in original) (quoting Phoenix Light SF Ltd. v. Bank of N.Y. Mellon, No. 14 Civ. 10104, 2017 WL 3973951, at *20 n.36 (S.D.N.Y. Sept. 7, 2017))). In any event, alternative holdings are not dicta. See Pyett v. Pa. Bldg. Co., 498 F.3d 88, 92 (2d Cir. 2007) (discussing that the court’s conclusion in a different case “was an alternative holding, not dicta, and continues to bind our Court”), rev’d and remanded on other grounds sub nom. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).
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the Second Circuit, in applying the exception to housing discrimination suits, has stated that such actions “are acutely susceptible to mootness because of the fluid composition of the public housing population.” Comer, 37 F.3d at 797 (emphasis added); see Marisol A. v. Guiliani, No. 95 Civ. 10533(RJW), 1998 WL 265123, at *6 (S.D.N.Y. May 22, 1998) (finding that “the population of New York City’s child welfare system is equally fluid, . . . [as c]hildren enter and leave the system all the time”); see also Zurak v. Regan, 550 F.2d 86, 92 (2d Cir. 1977) (applying the exception to “inmates serving definite sentences of more than 90 days at Rikers Island . . . who are or will become eligible for conditional release . . . [b]ecause of the relatively short periods of incarceration involved and the possibility of conditional release”). Moreover, at least three district courts recently have found claims identical to those in this case to be inherently transitory. See Velesaca v. Decker, __ F. Supp. 3d __, No. 20 CIV. 1803 (AKH), 2020 WL 2114984, at *15 n.12 (S.D.N.Y. May 4, 2020) (discussing that although the named petitioners, who were aliens detained pursuant to § 1226(a), had already had bond hearings, “due to the recurrent nature of the issue here, the putative class action may continue”), appeal filed, No. 20-2153, 2020 WL 2114984 (2d Cir. July 9, 2020); see also Dubon Miranda v. Barr, No. 20-CV-1110, 2020 WL 2794488, at *5 (D. Md. May 29, 2020) (finding claims inherently transitory because “the length of [§ 1226(a) detention] cannot be ascertained at the outset, and . . . may be ended at any time” (internal quotation marks omitted)); Brito v. Barr, 395 F. Supp. 3d 135, 147 (D. Mass. 2019) (same because “it is uncertain whether any alien will be subject to § 1226(a) detention long enough to serve as a class representative”).
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Thus, this Court finds that Petitioners’ claims are inherently transitory and may proceed even though Petitioners have been released from detention. Petitioners have also argued that because they can be re-detained even after their release on bond, they are subject to the mootness exception for claims that are capable of repetition but evading review. (Dkt. 27 at 9). However, in light of the finding that the inherently transitory doctrine applies to Petitioners’ claims, the Court need not address whether the capable of repetition yet evading review exception to mootness applies to the instant matter.
C. Jurisdiction Over RCC Detainees Respondents also argue that the Court does not have jurisdiction over any putative class members detained at the RCC, or over the subclass because Subclass Petitioner was detained at the RCC in Monroe, Louisiana, when the Petition was filed. (Dkt. 22-1 at 19-23). For the reasons that follow, the Court finds it does not presently have jurisdiction over the RCC detainees, including Subclass Petitioner. The question of whether a district court has jurisdiction over a habeas petition “breaks down into two related subquestions. First, who is the proper respondent to that petition? And second, does the [Court] have jurisdiction over him or her?” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). This Court, along with the majority of courts in this Circuit, has previously found a § 2241 proceeding brought by an immigration detainee challenging the proceedings used at his bond hearing is a “core” habeas proceedings, and that the proper respondent is the person with immediate custody over the person, i.e., the warden of the facility where the person is detained. Ranchinskiy v. Barr, 422 F. Supp. 3d 789, 792 (W.D.N.Y. 2019); see Rodriguez v. Barr, No. 6:18-cv-06757-MAT, 2019 WL
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2192516, at *3 n.3 (W.D.N.Y. May 21, 2019) (“Searls is the only proper respondent in this § 2241 proceeding as he is the person with direct control over Petitioner’s detention.” (citing Padilla, 542 U.S. at 435 (“[I]n habeas challenges to present physical confinement . . . the default rule is that the proper respondent is the warden of the facility where the prisoner is being held[.]”))); see also Martinez-Brooks v. Easter, No. 3:20-CV00569 (MPS), 2020 WL 2405350, at *26 (D. Conn. May 12, 2020) (holding dismissal of the § 2241 petition against the Director of the Bureau of Prisons was appropriate, finding “the Director is not a proper party in this case because he is not the immediate custodian of the Petitioners”); Abraham v. Decker, No. 18-CV-3481 (CBA), 2018 WL 3387695, at *2 (E.D.N.Y. July 12, 2018) (“[T]he Court chooses . . . to join the majority of district court opinions that have chosen to apply the Padilla framework to aliens in custody challenging their detention prior to deportation.”); Khemlal v. Shanahan, No. 14 Civ. 5186, 2014 WL 5020596, at *2 n.3 (S.D.N.Y. Oct. 8, 2014) (“The majority view in the Second Circuit requires the ‘immediate custodian,’ generally the prison warden, to be named as a respondent in ‘core’ immigration habeas proceedings—i.e., those challenging present physical confinement.” (quotation omitted)).
Petitioners argue that the immediate custodian rule set forth in Padilla does not apply to the Subclass Petitioner’s and the proposed subclass’s claims challenging the alleged “no bond” policy because “[t]he subclass . . . does not challenge the No Bond Policy under habeas; rather, it does so under the APA.” (Dkt. 27 at 10). However, Petitioners expressly ask the Court to “order[] individualized bond determinations” in connection with this claim. (Dkt. 15-1 at 16). As such, “Petitioners’ argument that they are challenging the
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legal process of the bond hearing, as opposed to the confinement that resulted from the legal insufficiency of the bond hearing, relies upon a false distinction. Petitioners seek as relief a bond hearing at which Petitioner[s] can challenge [their] current detention.” Heller v. Barr, No. 19 CIV. 4003 (ER), 2019 WL 2223183, at *2 (S.D.N.Y. May 22, 2019). Moreover, it is well-established that a claim under the APA challenging the procedures employed in detaining an individual “may be had in ‘any applicable form of legal action, including actions for . . . writs of . . . habeas corpus, in a court of competent jurisdiction.’” LaSorsa v. Spears, 2 F. Supp. 2d 550, 556 (S.D.N.Y. 1998) (alterations in original) (quoting 5 U.S.C. § 703), aff’d sub nom. Lasorsa v. Menifee, 182 F.3d 900 (2d Cir. 1999); see also 5 U.S.C. § 703 (providing that judicial review of agency action under the APA may proceed by “any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus”); Calderon v. Sessions, 330 F. Supp. 3d 944, 959 (S.D.N.Y. 2018) (granting petition for writ of habeas corpus because “Respondents have violated the APA and the Due Process Clause of the Fifth Amendment”), appeal withdrawn, No. 18-2926, 2018 WL 6920377 (2d Cir. Oct. 5, 2018); Putnam v. Winn, 441 F. Supp. 2d 253, 256 (D. Mass. 2006) (finding the court had “habeas jurisdiction under § 2241” to consider the petitioner’s claim that the Bureau of Prison’s rule pursuant to which he was confined was “contrary to federal law under the APA”); Jeanty v. Bulger, 204 F. Supp. 2d 1366, 1383 (S.D. Fla. 2002) (considering claim that the government violated the APA in adopting policy regarding detention of arriving Haitian nationals under habeas jurisdiction because “because if the APA required noticeand-comment rulemaking for the policy pursuant to which Petitioners were held, their
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detention could be ‘in violation of . . . the laws . . . of the United States.’” (quoting 28 U.S.C. § 2241(c)(3))), aff’d sub nom. Moise v. Bulger, 321 F.3d 1336 (11th Cir. 2003). Accordingly, Petitioners’ “challenge regarding the sufficiency of the bond hearing does not transform [the] petition into a non-core challenge because the relief sought would still be a bond hearing, at which [they] can challenge [their] continued detention.” Darboe v. Ahrendt, 442 F. Supp. 3d 592, 594-95 (S.D.N.Y. 2020) (finding that “petition for a writ of habeas corpus and complaint for declaratory and injunctive relief pursuant to 28 U.S.C. § 2241; the All Writs Act, 28 U.S.C. § 1651; the Administrative Procedure Act (‘APA’), 5 U.S.C. § 701 et seq.; the Immigration and Nationality Act (‘INA’), 8 U.S.C. § 1101 et seq.; and Article I, Section 9, Clause 2 of the U.S. Constitution” had to be heard in district of confinement because immediate custodian was only proper respondent); see Lemus-Pineda v. Whittaker, 354 F. Supp. 3d 473, 474-75 (S.D.N.Y. 2018) (applying immediate custodian rule to § 2241 petition where “all of the statutory and constitutional violations that [the petitioner] alleges stem from his detention”).
Based on this analysis, the Court finds that the proper respondent/defendant for Subclass Petitioner is the warden of the RCC. While the warden of the BFDF (Jeffrey Searls) is a party to this lawsuit, the warden of the RCC is not. Because the warden of RCC has not been named as a respondent nor served with the Petition, the Court does not have jurisdiction over the claims of the Subclass Petitioner. See Freeman v. NYS DOCCS, No. 6:19-CV-06633-FPG, 2020 WL 1333503, at *5 (W.D.N.Y. Mar. 23, 2020) (“[I]n order for a court to entertain a habeas corpus action, it must have jurisdiction over the petitioner’s custodian.” (citation omitted)); DeSousa v. Abrams, 467 F. Supp. 511, 512 (E.D.N.Y.
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1979) (“[I]t has been repeatedly held that failure to name as respondent the party having custody of the applicant is fatal to the right to a writ of habeas corpus, and that a federal court has no jurisdiction to consider such an action.” (citations omitted)). Moreover, because the Court lacks jurisdiction over Subclass Petitioner’s claims and because Class Petitioner is not a member of the proposed subclass, the Court must dismiss any claims asserted on behalf of the proposed subclass. See Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 112 (2d Cir. 2013) (explaining that where class-based relief is sought, “there must be a named plaintiff sufficient to establish jurisdiction over each claim advanced”); see also Jones v. Goord, 435 F. Supp. 2d 221, 233 (S.D.N.Y. 2006) (dismissing subclass claims for “lack of named plaintiffs”).
As to the claims of members of the proposed Main Class who are detained at the RCC, Petitioners rely on U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974), in support of their position that the Court can assert jurisdiction over members of a habeas class detained outside this District. (Dkt. 27 at 10-11). Preiser was a class action lawsuit wherein the class representatives were detained at a facility within the Southern District of New York, but some members of the class were not confined or convicted in the Southern District. Id. at 1127. The Preiser court held that because the representatives of the class “could properly have proceeded individually,” the district court had jurisdiction over the entire class. Id. at 1129.
The Court does not find Preiser dispositive of its present jurisdictional finding. Preiser predates Padilla and did not specifically address whether the wardens of the different facilities were necessary parties, whereas the Court has found here that the
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immediate custodian must be a respondent. To be clear, the Court is not reaching the issue of whether it could exercise jurisdiction over the warden of the RCC based on Preiser. See id. at 1128 (“So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ (for purposes of § 2241(a)) . . ., even if the prisoner himself is confined outside the court’s territorial jurisdiction.” (alteration in original) (quoting Braden v. 30th Judicial Court of Ky., 410 U.S. 484, 495 (1973))). The warden of the RCC has not been named or served, the issue of the Court’s authority to exercise jurisdiction over him has not been fully briefed, and the Court will not issue an advisory opinion as to whether it has jurisdiction over a party who has not yet been named in this lawsuit. In other words, regardless of whether the Court could potentially have jurisdiction over the claims of individuals detained at the RCC, including Subclass Petitioner, it does not have such jurisdiction at this time and on the current record.
Accordingly, Respondents’ motion to dismiss is granted as to all claims by the RCC detainees, including Subclass Petitioner, and consequently including all claims asserted on behalf of the proposed subclass. The dismissal is without prejudice. Additionally, because the only claims presently remaining before the Court are the “core” habeas claims of Class Petitioner and the remaining putative class members, all Respondents aside from Jeffrey Searls are also dismissed without prejudice.2 See Rodriguez, 2019 WL 2192516, at *3.
2 In light of the dismissal of Subclass Petitioner and all Respondents aside from Jeffrey Searls, the Court will only refer to Class Petitioner and respondent Jeffrey Searls (“Respondent”) for the remainder of this Decision and Order.
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D. Availability of Class-Wide Relief Respondent next argues that 8 U.S.C. § 1252(f)(1) prevents this Court from ordering class-wide relief. Section 1252(f)(1) states: 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 provision of part IV of this subchapter. . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. 8 U.S.C. § 1252(f)(1). As the Supreme Court has explained, “[b]y its plain terms, and even by its title, [§ 1252(f)(1)] is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this ban does not extend to individual cases.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999). As a preliminary matter, the Court finds that § 1252(f)(1) does not bar class-wide declaratory relief. A majority of the Supreme Court justices have found that district courts have jurisdiction to entertain requests for class-wide declaratory relief despite § 1252(f)(1). Preap, 139 S. Ct. at 962 (plurality opinion of Alito, J. joined by Roberts, J., and Kavanaugh, J.); Jennings, 138 S. Ct. at 875 (dissent by Breyer, J., joined by Ginsburg, J., and Sotomayor, J.); see also Vazquez Perez v. Decker, No. 18-CV-10683 (AJN), 2019 WL 4784950, at *9 (S.D.N.Y. Sept. 30, 2019) (holding “[s]ection 1252(f)(1) does not strip this Court of jurisdiction to issue declaratory relief on a classwide basis” in the wake of Preap); see also Make the Road N.Y. v. Wolf, 962 F.3d 612, 635 (D.C. Cir. 2020) (same); Reid v. Donelan, 390 F. Supp. 3d 201, 226 (D. Mass. 2019) (holding § 1252(f)(1) does not bar
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declaratory relief, noting that “[t]hree justices in Preap . . . stated that a district court has jurisdiction to entertain a request for declaratory relief despite § 1252(f)(1), adding their voices to the three other justices who said the same in dissent in Jennings” (citation omitted)). Accordingly, since Class Petitioner seeks declaratory relief in addition to injunctive relief, Respondent’s motion to dismiss based on § 1252(f)(1) must be denied.
Moreover, the Court concludes that § 1252(f)(1) does not bar the injunctive relief sought by Class Petitioner. The dispositive inquiry into whether class-wide injunctive relief is available hinges on whether Petitioners’ requested relief would “enjoin or restrain the operation of” § 1226(a). As the court explained in Vazquez Perez, “enjoin” and “restrain” logically “refer respectively to permanent and temporary injunctive relief.” 2019 WL 4784950, at *5 (citing Alli v. Decker, 650 F.3d 1007, 1013 (3d Cir. 2011); Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010); Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003)). “‘Operation’ is, in turn, defined as a ‘method or manner of functioning.’” Id. (quoting Operation, Merriam-Webster Online Dictionary (Aug. 30, 2019), https://www.merriam-webster.com/dictionary/operation). The question is thus whether “the temporary injunctive relief [the petitioners seek] on a classwide basis would enjoin or restrain the method or manner of functioning of [§ 1226(a)].” Id.
Petitioners request that the Court order all class members be provided with a bond hearing at which the IJ imposes on the government the burden to prove by clear and convincing evidence that the person detained is a danger to the community or a flight risk, makes an individualized assessment of each case, and, if setting bond, considers the
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person’s ability to pay and whether other alternatives to detention are appropriate. (Dkt. 1 at 18-19; see Dkt. 15-26).
Section 1226(a) provides that the Attorney General “may continue to detain the arrested alien” or “may release the alien on . . . bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or . . . conditional parole.” 8 U.S.C. § 1226(a)(1)-(2). The plain language of § 1226(a) “does not provide the procedural requirements for bond hearings. Instead, the procedural rules followed by immigration courts come from BIA precedential decisions, which are not construing language in the statute.” Brito v. Barr, 415 F. Supp. 3d 258, 269 (D. Mass. 2019) (citations omitted). Indeed, the Supreme Court in Jennings recognized that § 1226(a) does not speak to the procedural requirements of bond hearings. 138 S. Ct. at 847 (holding “[n]othing in § 1226(a)’s text—which says only that the Attorney General ‘may release’ the alien ‘on . . . bond’—even remotely supports” placing the burden on the government to prove by clear and convincing evidence that the alien’s continued detention is necessary).
Other courts have found that § 1252(f)(1) does not bar similar relief because “the requested injunction requires the Government to follow certain constitutionally mandated due process procedures at bond hearings, but it does not mandate the release of any class members nor does it allow an opportunity for release not already provided by the statute.” Brito, 415 F. Supp. 3d at 269; Padilla v. U.S. Immigr. & Customs Enf’t, 354 F. Supp. 3d 1218, 1231-32 (W.D. Wash. 2018) (explaining that by asking for procedural protections at bond hearings, the plaintiffs were “not asking the Court to ‘enjoin or restrain the operation of the provisions’ of any statute, but instead s[ought] an injunction against actions and
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policies that violate . . . associated constitutional protections”), reconsideration denied, No. C18-928 MJP, 2019 WL 7486849 (W.D. Wash. Feb. 12, 2019). The Court is persuaded by this reasoning and finds that if Petitioners receive their requested relief, the government still “may continue to detain; and may release the alien on . . . bond . . . [or] conditional parole,” 8 U.S.C. § 1226(a), and thus the statute’s operation would not be enjoined or restrained.
Respondent does not point to any specific portion of § 1226(a) that the requested relief would enjoin or restrain. Instead, Respondent argues the relief would restrict the government’s “broad discretion” to detain or release aliens. (Dkt. 29 at 8). However, in making this argument, Respondent ignores the plain language of § 1252(f)(1). Section 1252(f)(1) strips the Court of jurisdiction to entertain class action lawsuits that “enjoin or restrain the operation of the provision”—in this case, § 1226(a)—not the operation of the government’s authority or discretion.3
Vazquez Perez, on which Respondent relies, dealt with an entirely separate statute and is distinguishable. There, the court found that it did not have jurisdiction to enter an injunction “order[ing] that the government must hold initial master calendar hearings for each member of the putative class within 7 to 10 days of arrest by Immigration and Customs
3 For similar reasons, the Court does not find persuasive the Sixth Circuit’s holding in Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018), a 2-1 decision which found that a district court does not have jurisdiction to enter class-wide injunctive relief requiring that the government provide certain procedural protections at bond hearings. Id. at 879-80. The Hamama majority found that the procedural requirements place “limitations on what the government can and cannot do.” Id. at 880. However, as discussed above, the jurisdiction-stripping provision of § 1252(f)(1) is not so broad as to include all actions by the government, only those specifically spoken to in the statute.
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Enforcement.” 2019 WL 4784950, at *4. The statute at issue “provide[d] that an initial master calendar ‘hearing date shall not be scheduled earlier than 10 days after the service of the notice to appear.’” Id. at *6 (quoting 8 U.S.C. § 1229(b)(1)). The court explained that “this provision sets a time before which the initial master calendar hearing may not be scheduled but provides no time beyond which the initial master calendar hearing cannot be scheduled. In other words, it prescribes a floor but no ceiling with respect to the timing of initial master calendar hearings.” Id. The court reasoned that “[b]ecause Congress, in its judgment, chose not to mandate a statutory ceiling” even though it had prescribed a floor, an injunction imposing a statutory ceiling “where the statute is silent would displace that judgment in a way that would enjoin or restrain the method or manner of Section 1229(b)’s functioning.” Id. (emphasis omitted). Thus, the court found that § 1252(f)(1) deprived it “of jurisdiction to issue the injunction.” Id.
In contrast, in the instant matter Congress has not spoken at all to the procedural requirements of bond hearings pursuant to § 1226(a). A scenario analogous to that in Vazquez Perez would be present here if, for example, § 1226(a) prescribed some procedures that must be used at bond hearings but was silent on others. But as explained above, § 1226(a) “does not provide [any] procedural requirements for bond hearings,” Brito, 415 F. Supp. 3d at 269, only that a person detained pursuant to it is entitled to one.
For all these reasons, this Court finds that Petitioners’ requested injunctive relief does not enjoin or restrain the operation of § 1226(a), and as a result § 1252(f)(1) does not strip this Court of jurisdiction to order the requested relief on a class-wide basis.
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E. Jurisdiction to Review Bond Determinations
Respondent next contends that this Court may not review discretionary bond
determinations made by IJs. Class Petitioner responds that he is not challenging the IJs’
exercise of discretion but rather is challenging how the decisions are made—i.e., what
factors the IJs must consider in reaching a decision. Put another way, Class Petitioner is
raising legal, not factual challenges. The Court agrees.
Title 8 U.S.C. § 1226(e)—which applies to judicial review of action taken under
§ 1226(a)—provides:
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
Similarly, 8 U.S.C. § 1252(a)(2)(B) states, in relevant part:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any other decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General[.]
Thus, a district court “cannot review custody determinations that an IJ, pursuant to her
delegated authority, has made regarding a noncitizen’s detention or release.” Dubon
Miranda, 2020 WL 2794488, at *7.
Here, however, Class Petitioner is not challenging the IJ’s weighing of evidence and
factual findings. He is challenging the procedures used during § 1226(a) bond hearings.
See id. Thus, “[t]hese claims are outside the scope of the jurisdiction-stripping provisions - 26 -

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of §§ 1226(e) and 1252(a)(2)(B).” Id.; see also Aparicio-Villatoro v. Barr, No. 6:19-CV06294-MAT, 2019 WL 3859013, at *5 (W.D.N.Y. Aug. 16, 2019) (“Here, [the petitioner] is not challenging the IJ’s discretionary decision to keep him in detention. Instead, he is arguing that the immigration bond system, in which aliens detained pursuant to § 1226(a) must bear the burden of proving they are not dangerous and are not flight risks, violates the Due Process Clause of the Fifth Amendment. ‘This type of constitutional claim falls outside of the scope of § 1226(e) because it is not a matter of the IJ’s discretionary judgment.’” (quoting Pensamiento v. McDonald, 315 F. Supp. 3d 684, 689 (D. Mass. 2018) (internal quotation marks omitted))).4 II. Motion to Dismiss for Failure to State a Claim
A. Legal Standard “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the [pleading], documents attached to the [pleading] as exhibits, and documents incorporated by reference in the [pleading].” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by “accepting all factual allegations as true and drawing all
4 The parties also dispute whether 5 U.S.C. § 701 bars the APA claims. However, the Petition was not clear as to what specific conduct by Respondents allegedly violated the APA. (See Dkt. 1 at ¶ 78 (“The respondents’ actions violate the Administrative Procedure Act.”)). In their briefs, Petitioners discussed the APA claim solely as it related to the claims of Subclass Petitioner (see, e.g., Dkt. 27 at 28-30), and did not address any APA claim alleged by Class Petitioner. The Court further does not discern from the face of the Petition any viable APA claim by Class Petitioner. Accordingly, to the extent Class Petitioner purports to allege an APA claim, it is dismissed without prejudice, and the Court need not reach the issue of whether 5 U.S.C. § 701 bars the APA claims.
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reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016), cert. denied, 137 S. Ct. 2279 (2017). To withstand dismissal, a claimant must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“While a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). “To state a plausible claim, the [pleading]’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555).
B. The 8 U.S.C. § 1226(a) Constitutional Allegations Are Sufficient Class Petitioner argues that the Due Process Clause requires the government to bear the burden of proof at § 1226(a) bond hearings and the IJ to consider non-bond alternatives to detention or, if setting a bond, ability to pay. (See Dkt. 27 at 18). Respondent counters that the current procedures used at § 1226(a) hearings are constitutionally sufficient, and thus, Petitioners have failed to state a claim on which relief may be granted. (See Dkt. 22-1
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at 27). For the reasons that follow, this Court finds that Class Petitioner states a claim for the additional procedures requested at § 1226(a) bond hearings.
As explained above, § 1226(a) provides that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). The statute further states that the Attorney General “may continue to detain the arrested alien; and . . . may release the alien on[ ] bond . . . or . . . conditional parole.” Id. The United States Department of Homeland Security (“DHS”) has promulgated regulations instructing that “[t]he DHS district director makes the initial custody determination; thereafter, the alien has the right to appeal an adverse decision to an IJ, and then to the BIA.” Aparicio-Villatoro, 2019 WL 3859013, at *4 (citing 8 C.F.R. §§ 1003.19(a), (f), 1236.1(d)(1), (3)). Section “1226(a) is silent on the issues of which party bears the burden of proof at a custody redetermination hearing and the quantum of evidence necessary to satisfy that burden, [but] the BIA has interpreted § 1226(a) to place ‘[t]he burden . . . on the alien to show to the satisfaction of the [IJ] that he or she merits release on bond.’” Id. (citation omitted) (quoting In re Guerra, 24 I. & N. Dec. 37 (BIA 2006)).
The Fifth Amendment’s Due Process Clause forbids the federal government from depriving any “person . . . of . . . liberty . . . without due process of law.” U.S. Const. amend. V. The Supreme Court “has held that the Due Process Clause protects individuals against two types of government action.” United States v. Salerno, 481 U.S. 739, 746 (1987). “So-called ‘substantive due process’ prevents the government from engaging in conduct that shocks the conscience, . . . or interferes with rights implicit in the concept of ordered liberty.” Id. (citations omitted). “When government action depriving a person of
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life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.” Id. “This requirement has traditionally been referred to as ‘procedural’ due process.” Id.
“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. “[G]overnment detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections . . . or, in certain special and narrow nonpunitive circumstances, . . . where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Id. (emphasis in original) (citations omitted). Other than those unique, special, and narrow circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government.” United States v. Haymond, 139 S. Ct. 2369, 2373 (2019).
“[Noncitizens], even [noncitizens] whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth . . . Amendment[ ].” Plyer v. Doe, 457 U.S. 202, 210 (1982); see also Shaughnessey v. United States ex rel. Mezei, 345 U.S. 206, 212 (1954) (“It is true that [noncitizens] who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”). At the same time, Congress has “broad power over naturalization and immigration,
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[permitting it to] make[ ] rules that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)).
“[A] growing chorus of district courts have concluded that due process requires that the government bear the burden of proof at § 1226(a) bond hearings,” Dubon Miranda, 2020 WL 2794488, at *8 (internal quotation marks omitted), including this Court, see Adejola v. Barr, 408 F. Supp. 3d 284, 287 (W.D.N.Y. 2019), and “[m]yriad courts in this Circuit,” Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274, at *6 (S.D.N.Y. Mar. 27, 2020) (collecting cases); see, e.g., Arellano v. Sessions, No. 18-cv-06625-MAT, 2019 WL 3387210, at *11 (W.D.N.Y. July 26, 2019); Velasco Lopez v. Decker, No. 19-CV-2912 (ALC), 2019 WL 2655806, at *3 (S.D.N.Y. May 15, 2019) (“[E]very court to have considered the constitutional issue presented in this case has agreed . . . [that] under the Due Process Clause of the Fifth Amendment, it is the Government’s burden to justify the detention of an immigrant at a bond hearing under § 1226(a).”), appeal filed, No. 19-2284 (2d Cir. July 23, 2019); Brevil v. Jones, No. 17 CV 1529-LTS-GWG, 2018 WL 5993731, at *4 (S.D.N.Y. Nov. 14, 2018) (“The Court has reviewed and is persuaded by recent decisions within and outside of this district which hold that due process requires that the Government demonstrate dangerousness or risk of flight by a clear and convincing standard at an immigration detainee’s bond hearing.” (quotation and alteration omitted)). But see Lopez v. Barr, No. 19-CV-1232 (JLS), 2020 WL 2059789, at *5 (W.D.N.Y. Apr. 29, 2020) (finding that Due Process does not require a hearing with the burden on the government for individuals detained under § 1226(a) even if detention has become unreasonably prolonged). The Court reaffirms its previous finding that Due Process requires the burden
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of proof to be on the government at a bond hearing involving an individual detained under § 1226(a).
This Court, along with a number of other courts, has also found that Due Process requires IJs to consider ability to pay and alternative conditions of release in setting bond. See, e.g., Dubon Miranda, 2020 WL 2794488, at *10 (explaining that “when IJs are not required to consider ability to pay or alternative conditions of release, a noncitizen otherwise eligible for release may end up detained solely because of her financial circumstances”); Alfaro v. Barr, 426 F. Supp. 3d 6, 12 (W.D.N.Y. 2019) (“Additionally, the Court finds that both due process and BIA precedent require the IJ to consider ability to pay and alternative conditions of release in setting bond.”); Brito, 415 F. Supp. 3d at 263 (finding that “due process requires an immigration court consider both an alien’s ability to pay in setting the bond amount and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances”).
For all these reasons, this Court finds Class Petitioner has stated a claim that his Due Process rights have been violated. Accordingly, Respondent’s motion to dismiss the habeas petition as to Class Petitioner and the putative class members detained at the BFDF is denied.
C. The INA Claims Are Sufficient in Part Class Petitioner argues that the INA requires IJs to consider ability to pay and alternative conditions of release, and that the refusal of the Buffalo and Batavia IJs to acknowledge they may consider alternative conditions of release also violates the INA.
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(Dkt. 27 at 23-25). Respondent argues that the INA and its regulations are silent as to what factors should be considered by an IJ at a § 1226(a) bond hearing, and that the procedures used at bond hearings are a reasonable interpretation of the INA. (Dkt. 22-1 at 34-35; Dkt. 29 at 11-12).
As discussed at length above, the Court agrees with Respondent that § 1226(a) does not speak to what factors an IJ must consider at a bond hearing. Section 1226(a) states that the government “may continue to detain the arrested alien,” and “may release the alien” on bond or conditional parole. 8 U.S.C. § 1226(a) (emphasis added). In other words, the plain language of 8 U.S.C. § 1226(a) allows IJs to consider alternative conditions of release and bond, but does not require that they do so or otherwise prescribe what procedures should be used at a bond hearing.
Additionally, as Class Petitioner concedes, nothing in the text of § 1226(a) requires that an IJ consider ability to pay when setting bond. (See Dkt. 27 at 23). Nor does BIA precedent implement any such requirement. See In re Guerra, 24 I. & N. at 40 (providing that an IJ may look to a number of factors when determining the amount of bond, none of which include ability to pay). Instead, Class Petitioner argues that a logical reading of the text and structure of § 1226(a) leads to the conclusion that the statute requires IJs to consider a person’s ability to pay when setting bond because the purpose of bond is to effectuate release, and fulfilling that purpose requires consideration of ability to pay. (Dkt. 27 at 23-24). However, BIA precedent holds that the purpose of bond is to ensure the presence of an alien at removal proceedings upon release, see Matter of Urena, 25 I. & N. 140, 142 (BIA 2009), an inquiry that does not necessarily require consideration of ability
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to pay. Particularly in light of the holding in Jennings that courts should not read procedural requirements into § 1226(a) “that go well beyond” those “established by existing regulations,” 138 S. Ct. at 847-48, the Court finds that § 1226(a) does not require IJs to consider ability to pay and alternative conditions of release in setting bond, although, as discussed above, the Constitution does.
The Court does find, however, that Class Petitioner has stated a claim for violation of the INA on different grounds. Class Petitioner alleges that at his bond hearing, the IJ stated she could not consider alternatives to money bond and set his bond at $8,000. (Dkt. 1 at ¶ 45). As previously noted, § 1226(a) explicitly provides that a detainee may be released on conditional bond or parole, see 8 U.S.C. § 1226(a)(2), and BIA precedent confirms that IJs have authority to place conditions on release, see Matter of GarciaGarcia, 25 I. & N. 93, 98 (BIA 2009) (“[S]ection 236(a)(2)(A) of the Act clearly gives the Attorney General authority to place conditions on an alien’s release from custody when setting a monetary bond of at least $1,500.”); see also Rivera v. Holder, 307 F.R.D. 539, 553 (W.D. Wash. 2015) (holding “§ 1226(a) unambiguously states that an IJ may consider conditions for release beyond a monetary bond”). Accordingly, Class Petitioner’s claim that the IJ misinterpreted the INA by stating she could not consider alternative conditions of release may proceed, but his claims that the INA required the IJ to consider those alternatives or his ability to pay in setting bond are dismissed.
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D. The No-Bond Policy Subclass Claims As discussed above, the Court has found it lacks jurisdiction over Subclass Petitioner’s claims, including the claims related to the No-Bond Policy. Accordingly, the Court does not address the merits of the No Bond Policy claims at this time. III. Motion for Class Certification On March 11, 2020, before applying for a preliminary injunction, Class Petitioner moved to certify the class, seeking certification of the following: All individuals currently detained under Section 1226(a) who have had or will have a custody hearing before the Batavia or Buffalo Immigration Courts. (Dkt. 3 at 15).5 For the reasons set forth below, the Court grants the motion in part and certifies a more narrowly defined class, denies the motion in part, and reserves decision in part. A. Rule 23(a) Requirements This Court finds that Class Petitioner has satisfied the prerequisites of Federal Rule of Civil Procedure 23(a) for class certification regarding the class-wide claims: “numerosity, commonality, typicality, and adequacy of representation.” Sykes v. Mel S. Harris & Assocs., 780 F.3d 70, 80 (2d Cir. 2015).
5 Petitioners also moved to certify a subclass, defined as “All individuals currently detained under Section 1226(a) who have had or will have a custody hearing before the Batavia or Buffalo Immigration Courts, in front of either Immigration Judge Philip Montante or Immigration Judge Mary Baumgarten.” (Dkt. 3 at 15). However, because the Court has dismissed the subclass claims without prejudice, the motion for class certification as to the subclass is denied without prejudice as moot.
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1. Numerosity “For a court to certify a class, Rule 23(a) requires a finding that the numerosity of injured persons makes joinder of all class members ‘impracticable.’” Pecere v. Empire Blue Cross & Blue Shield, 194 F.R.D. 66, 70 (E.D.N.Y. 2000) (citing Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993)). “Impracticability does not mean impossibility, but rather difficulty or inconvenience.” Primavera Familienstiftung v. Askin, 178 F.R.D. 405, 409 (S.D.N.Y. 1998). “‘There is no magic minimum number that will breathe life into a class, but generally, courts will find a class sufficiently numerous when it comprises forty or more members.’” Assif v. Titleserv, Inc., 288 F.R.D. 18, 23 (E.D.N.Y. 2012) (quoting Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001)). [T]he numerosity inquiry is not strictly mathematical but must take into account the context of the particular case, in particular whether a class is superior to joinder based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class members. Penn. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir.), as amended (Nov. 12, 2014). The Court concludes that Class Petitioner has demonstrated sufficient numerosity. In the motion to certify, Class Petitioner states that the Batavia Immigration Court heard 2,796 custody hearings between March 1, 2019, and January 31, 2020. (Dkt. 3 at 17). It is not clear how many of those hearings were for individuals detained at the BFDF pursuant to §1226(a). However, in March 2020 when the Petition was filed, the BFDF was housing 374 detainees and has a normal capacity of 650 detainees, see Dec. of Captain Abelardo
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Montalvo, M.D., Jones v. Wolf, No. 1:20-cv-00361-LJV, Dkt. 42-1 at ¶ 13 (W.D.N.Y. Mar. 30, 2020); see also Nick Pippa, Detainees at Batavia ICE Facility Say They Are Sick and Haven’t Been Tested for COVID-19, WBFO NPR (Apr. 8, 2020), https://news.wbfo.org/post/detainees-batavia-ice-facility-say-they-are-sick-and-haventbeen-tested-covid-19, and it is likely that a significant number are detained pursuant to § 1226(a), which is the default statutory detention provision (see Dkt. 3 at 17); see generally § 1226(a). Additionally, “the Second Circuit has relaxed the numerosity requirement where the putative class seeks injunctive and declaratory relief pursuant to Rule 23(b)(2).” Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (citing Robidoux, 987 F.2d at 935-36); see Bruce v. Christian, 113 F.R.D. 554, 557 (S.D.N.Y. 1986) (determining that numerosity was satisfied in an action involving “present and future tenants of the New York City Housing Authority,” even though only 16 class members were identified because of “the fluid composition of the public housing population”). Moreover, Respondents have not disputed that the proposed class meets the numerosity requirement. (See generally Dkt. 23).
Therefore, the Court is satisfied that Class Petitioner has satisfied the numerosity requirement.
2. Commonality Rule 23(a)(2) requires a showing of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). That requirement is satisfied where even a single issue of law or fact is common to the class, and where a classwide proceeding is capable of “generat[ing] common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v.
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Dukes, 564 U.S. 338, 349-50 (2011). “The claims for relief need not be identical for them to be common; rather, Rule 23(a)(2) simply requires that there be issues whose resolution will affect all or a significant number of the putative class members.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015).
Respondent contends that Class Petitioner’s claims require individualized factual determinations and Class Petitioner cannot establish that common facts apply to each purported class member. (Id. at 24-25). That argument misconstrues the relief sought by Class Petitioner, which is not an individualized determination as to whether to grant bond, but rather a request that certain procedural protections be applied across-the-board when making those individualized determinations. See Wal-Mart Stores, Inc. v. Dukes, 131 U.S. 338, 349-50 (2011) (commonality is satisfied where even a single issue of law or fact is common to the class, and where a classwide proceeding is capable of “generat[ing] common answers apt to drive the resolution of the litigation”); Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015) (“The claims for relief need not be identical for them to be common; rather, Rule 23(a)(2) simply requires that there be issues whose resolution will affect all or a significant number of the putative class members.”); Robidoux, 987 F.2d at 936-37 (“When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”); V.W. ex rel. Williams v. Conway, 236 F. Supp. 3d 554, 576 (N.D.N.Y. 2017) (typicality requirement satisfied because the claims of the class representatives and the members of the class and subclass were “based on the common
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application of certain challenged policies.” (citing Sykes v. Mel Harris and Assocs., LLC, 285 F.R.D. 279, 287 (S.D.N.Y. 2012))). Accordingly, the Court finds the commonality requirement has been met.
3. Typicality Rule 23(a) also requires a showing that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed R. Civ. P. 23(a)(3). That requirement is satisfied where “it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented[.]” Robidoux, 987 F.2d at 936-37; see also Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 597 (2d Cir. 1986) (typicality requirement satisfied where evidence indicated that employer discriminated “in the same general fashion” against class representatives and other members of class). “[M]inor variations in the fact patterns underlying individual claims” do not vitiate typicality. Robidoux, 987 F.2d at 937. In V.W., the court found that the typicality requirement was satisfied because the claims of the class representatives and the members of the class and subclass were “based on the common application of certain challenged policies.” 236 F. Supp. 3d at 576 (citing Sykes, 285 F.R.D. at 287). Respondent contends that Class Petitioner’s claims are not typical of the putative class because he was released on bond whereas he alleges that his claims are typical because he was unable to pay the $8,000 bond imposed on him by the IJ. (Dkt. 23 at 21-22). “Rule 23(a)(3)’s typicality requirement is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability.” Robidoux, 987 F.2d at 936. Although Class
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Petitioner was eventually released on bond after money was donated to his cause by a nonprofit, Respondent overlooks that Class Petitioner was initially unable to pay the bond amount set for him by the IJ and remained detained for five weeks after his bond hearing. (Dkt. 15-10 at ¶¶ 2-4). Additionally, the unofficial transcript of Class Petitioner’s bond hearing shows no indication that the IJ considered Class Petitioner’s ability to pay when setting his bond amount (Dkt. 22-2 at 8), nor does Respondent contend that the IJ anticipated that a non-profit would be able to fund Class Petitioner’s bond. Moreover, the inherently transitory doctrine, which as previously discussed applies to Class Petitioner, means that his claims “relate back” to the filing of the Petition. See Symczyk, 569 U.S. at 76; Salazar, 822 F.3d at 73 (“The exception to the mootness doctrine for ‘inherently transitory’ claims asserted by the named plaintiff(s) in a class action allows such claims to ‘relate back’ to the time of the filing of the complaint with class allegations.”). In other words, Class Petitioner’s initial detention and inability to afford bond after the IJ set a bond amount that did not take into consideration his ability to pay makes Class Petitioner’s claims typical of the class irrespective of whatever unanticipated fortunes he encountered at a later date.
Therefore, the Court finds that Class Petitioner’s claims satisfy the typicality requirement.
4. Adequacy of Representation “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d
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Cir. 2006). Respondent argues that Class Petitioner is not an adequate representative because he has been released on bond.6 (Dkt. 23 at 23-24). According to Respondent, Class Petitioner will be unable to vigorously pursue the class claims because he does not possess the same interest as the putative class members and his incentive to pursue litigation is significantly weaker. (Id.).
The individual and class claims, as discussed above, are readily susceptible to the inherently transitory exception to mootness doctrine, which only further buttresses the justification for class certification. See Wagafe v. Trump, No. 17-CV-0094 (RAJ), 2017 WL 2671254, at *15 (W.D. Wash. June 21, 2017) (“[The d]efendants’ argument that the mooting of named [p]laintiffs’ claims requires a finding that they are inadequate representatives, thus defeating class certification, does not have the desired effect. In fact, it counsels in favor of granting class certification.”); Goetz v. Crosson, 728 F. Supp. 995, 1004 (S.D.N.Y. 1990) (“Were we not to certify this class, the claims asserted by the plaintiffs might be rendered moot prior to resolution.”).
The principles underlying the inherently transitory doctrine suggest that substitution of a new class representative is not required, even when the individual claims are moot. See White v. Mathews, 559 F.2d 852, 857-58 (2d Cir. 1977) (permitting the class representative to continue litigating the class claims even after his individual claims were rendered moot); In re Thornburgh, 869 F.2d 1503, 1509 n.7 (D.C. Cir. 1989) (recognizing
6 Respondent also contends Class Petitioner lacks standing to represent the class because his claims are moot (Dkt. 23 at 18-19); however, the Court has already rejected these arguments as discussed above.
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that “[s]ome courts . . . have permitted the original named plaintiffs to represent the class even after their own claims were mooted prior to certification,” but suggesting “that such treatment is proper only in special circumstances, such as where the alleged law violation is capable of repetition, yet evading review”). The core rationale of the inherently transitory doctrine is that the viability of the class action should not be tied to the viability of individual claims that may be rendered moot prior to class certification due to their inherent fluidity. Indeed, if the class is required to name a new representative every time an individually-named party is released from custody, there is nothing stopping Respondent from attempting to moot this case by targeting each class representative for release. See White, 559 F.2d at 857; Goetz, 728 F. Supp. at 1004.
Therefore, even if Class Petitioner’s individual claims are extinguished, he is still eligible to carry the mantle of class representative. See Monaco v. Stone, 187 F.R.D. 50, 60 (E.D.N.Y. 1999) (applying the inherently transitory doctrine and stating that “plaintiff Gregory Monaco may still act as the named representative for the proposed plaintiff class despite the loss of his individual claims[, because a] named plaintiff may still litigate a class action despite the loss of their personal stake” (quoting Geraghty, 445 U.S. at 398)); cf. Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980) (rejecting the argument that “the absence of any intervenor or substitute named plaintiff” would not moot the class claim because, among other things, Geraghty did not apply).
Respondent relies on Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010), where the court found inadequate representation because the named representative had already received injunctive relief and “would have little incentive to oppose or defend against injunctive
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relief that went no further than the injunctions presently in place.” Id. at 480. However, Brown is inapposite because it does not consider, let alone apply, the inherently transitory doctrine.
For all these reasons, the Court concludes that “[t]he common legal questions that apply to the claims of all § 1226(a) detainees mean that the named [Petitioner] can adequately represent the interests of individuals who have already had a bond hearing with unconstitutional procedures as well as those who will have such a hearing in the future.” Brito, 395 F. Supp. 3d at 148.
The Court also concludes that counsel in this case are capable of adequately representing the class.7 Respondent has not offered any reason why Class Petitioner’s counsel are not adequate to represent the class, nor does it appear that he could. Class Petitioner’s counsel are experienced and competent. Indeed, Class Petitioner’s counsel are familiar with and experienced in litigating federal civil rights cases in general, as well as the immigration issues specific to this case. (See Dkt. 19-2 at 1-2). Class Petitioner’s counsel have also clearly been in frequent communication with the detainees at the BFDF (see Dkt. 19-6; Dkt. 19-7; Dkt. 19-8; Dkt. 19-9; see also Dkt. 38; Dkt. 51-1), which demonstrates substantial investigative work in developing this case. Furthermore, the
7 In the past, this analysis occurred under Rule 23(a)(4). However, as a result of the 2003 amendments to the Federal Rules of Civil Procedure, the issue of the adequacy of class counsel is now guided by Rule 23(g). Regardless, the analysis remains the same. Kulig v. Midland Funding, LLC, No. 13-CV-4175 (PKC), 2014 WL 5017817, at *2 (S.D.N.Y. Sept. 26, 2014) (citations omitted); accord, e.g., City of Westland Police & Fire Ret. Sys. v. MetLife, Inc., No. 12-CV-0256 (LAK)(AJP), 2017 WL 3608298, at *7 (S.D.N.Y. Aug. 22, 2017).
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Court has had the benefit of reviewing counsel’s arguments thus far, and finds that counsel have, without question, demonstrated qualified and experienced legal representation in this matter.
For all these reasons, the Court finds that Class Petitioner has satisfied the requirements of Rule 23(a).
B. Rule 23(b)(2) Requirements Class Petitioner also argues that he has met the Rule 23(b)(2) requirements. “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (internal quotation marks and citation omitted). “Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of the types of actions authorized by Rule 23(b)(2). Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 614 (1997). As discussed above, Class Petitioner has demonstrated deficiencies in the procedures employed by Respondents that “stem from central and systemic failures” and apply across-the-board to each putative class member. See Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (“Defendants further claim that due to the unique circumstances of each plaintiff’s experience with the child welfare system, the defendants have not acted on grounds generally applicable to the class. We disagree. Insofar as the deficiencies of the child welfare system stem from central and systemic failures, the district court did not abuse its discretion in certifying a 23(b)(2) class at this stage of the litigation.”).
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However, regarding the claim for injunctive relief, Respondent correctly points out that the Court cannot resolve all of the claims of the proposed class with a single injunction. Class Petitioner requests relief for individuals “who have had or will have” a bond hearing before the Buffalo and Batavia immigration courts. In other words, the “proposed class includes aliens who are seeking a second bond hearing after receiving a constitutionally deficient one.” Brito, 395 F. Supp. 3d at 148. In cases where a petitioner detained pursuant to § 1226(a) has already received a bond hearing, albeit one where unconstitutional procedures were used, this Court has required a showing of prejudice before ordering a new bond hearing. See, e.g., Adejola, 408 F. Supp. 3d at 287; Alfaro, 426 F. Supp. 3d at 12. “The Court cannot issue a unitary injunction ordering new bond hearings for them without delving into their individual criminal histories and personal characteristics to determine whether they suffered prejudice from the errors at their first hearings.” Brito, 395 F. Supp. 3d at 148. Stated differently, in the case of detainees who have already received a bond hearing, the “flexible” nature of due process requires an individualized determination by a court as to whether they are entitled to another one. See Jennings, 138 S. Ct. at 852.
Class Petitioner argues that if the Court finds a statutory or Accardi8 violation, no showing of prejudice would be necessary because only the due process claim requires an individualized showing. Although as discussed above the Court finds that Class Petitioner
8 The Accardi Doctrine is “the long-settled principle that the rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency.” Montilla v. I.N.S., 926 F.2d 162, 166 (2d Cir. 1991).
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has stated an INA claim based on his allegations that the IJ presiding over his bond hearing represented she could not consider alternative conditions of release, he has not shown that the putative class members were also subject to that alleged conduct.
That does not mean, however, that the Court is unable to certify, for purposes of injunctive relief, a class of individuals who have not yet received a bond hearing. “For aliens yet to have a bond hearing, their individual circumstances are irrelevant to determining what procedures due process mandates, and the Court can issue an injunction requiring the Government to implement these procedures for their bond hearings.” Brito, 395 F. Supp. 3d at 149; Reid v. Donelan, 2 F. Supp. 3d 38, 44 (D. Mass. 2014) (“The premise that a due process violation is not grounds for reversal absent a showing of that degree of prejudice has no bearing on a plaintiff's right to seek to enjoin due process violations from occurring in the first instance.” (quoting De Abadia–Peixoto v. U.S. Dep’t of Homeland Sec., 277 F.R.D. 572, 575 (N.D. Cal. 2011))). Additionally, “[t]he Court has authority sua sponte to modify a proposed class definition.” Ruzhinskaya v. Healthport Techs., LLC, 311 F.R.D. 87, 108 (S.D.N.Y. 2015); see Fed. R. Civ. P. 23(c)(4)-(5).
Accordingly, the Court grants class certification to the following individuals (hereinafter the “Pre-Hearing Class”): All individuals currently detained at the BFDF under § 1226(a) who will have a custody hearing before the Batavia or Buffalo Immigration Courts.
With regards to the members of the proposed class who have already had a bond hearing, the Court does not at this time decide whether it would be appropriate to certify a separate class of those individuals for purposes of declaratory relief, although it notes that
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at least one other court has done so under similar circumstances. See Brito, 395 F. Supp. 3d at 148-49 (“[T]he Court can issue a declaratory judgment explaining the procedures due process requires at a § 1226(a) bond hearing and each individual’s entitlement to a new bond hearing in accordance with those procedures if he can show prejudice via an individual habeas petition. This single declaration would address the rights of all aliens who have already had a bond hearing subject to unconstitutional procedures.” (citations omitted)). The issue has not yet been fully briefed, and certification of this potential class need not be addressed for purposes of the preliminary injunction motion. Therefore, the Court reserves decision as to whether it would be appropriate to certify a separate class for purposes of declaratory relief that includes individuals currently detained at the BFDF under § 1226(a) who have already had a custody hearing before the Batavia or Buffalo Immigration Courts (“Putative Post-Hearing Class”).9 IV. Motion for a Preliminary Injunction
As a preliminary matter, because as discussed above the Court finds that members of the Putative Post-Hearing Class must make an individualized showing of prejudice
9 The Court also reiterates that Class Petitioner is an appropriate class representative for the Pre-Hearing Class and the Putative Post-Hearing Class. Although Petitioner is no longer detained, he has been in the position of the members of both the Pre-Hearing Class and the Putative Post-Hearing Class, and as discussed at length above, the principles underlying the inherently transitory doctrine support Class Petitioner continuing to serve as a class representative even if his individual claims are moot. See White, 559 F.2d at 857; Goetz, 728 F. Supp. at 1004; Monaco, 187 F.R.D. at 60. This principle applies with particular force for the Pre-Hearing Class because of the difficulties associated with not only finding an individual detained at the BFDF pursuant to § 1226(a) who has not yet received a bond hearing, but with making the arrangements to recruit and name that person as a class representative in the few days before the bond hearing goes forward.
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before receiving a new bond hearing, the Court denies the motion for preliminary injunction as to those individuals. Additionally, because the claims of the subclass have been dismissed at this time, the Court denies the motion regarding those claims as moot. Therefore, the only claims remaining to address in the preliminary injunction motion are the constitutional claims of the Pre-Hearing Class. The Court does so below.
A. Legal Standard In order to obtain a preliminary injunction, the moving party must establish the following: (1) a likelihood of irreparable harm absent preliminary relief; (2) a likelihood of success on the merits; (3) the balance of equities tipping in favor of the moving party; and (4) the public interest is served by an injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Normally, the purpose of a preliminary injunction is to maintain the status quo ante pending a full hearing on the merits. Occasionally, however, the grant of injunctive relief will change the positions of the parties as it existed prior to the grant.” Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985) (internal citations omitted), overruled on other grounds, O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). “A higher standard applies . . . if the requested injunction is ‘mandatory,’ altering rather than maintaining the status quo, or if the injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if defendant prevails at a trial on the merits.” People for Ethical Treatment of Animals v. Giuliani, 105 F. Supp. 2d 294, 303 (S.D.N.Y. 2000), adopted, No. 00 CIV. 3972 (VM), 2000 WL 1639423 (S.D.N.Y. Oct. 31, 2000), aff’d, 18 F. App’x 35 (2d Cir. 2001). The Second Circuit has “held that a mandatory injunction should issue only upon a clear showing that the moving
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party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.” Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (internal quotation marks and citation omitted).
“A preliminary injunction is an extraordinary remedy never awarded as of right,” Winter, 555 U.S. at 24, and “is one of the most drastic tools in the arsenal of judicial remedies,” Hanson Tr. PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 273 (2d Cir. 1986) (quotation omitted). “The district court has wide discretion in determining whether to grant a preliminary injunction[.]” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (quoting Moore v. Consol. Edison Co., 409 F.3d 506, 511 (2d Cir. 2005)).
B. Irreparable Harm “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quotation omitted). “Thus, if a party fails to show irreparable harm, a court need not even address the remaining elements of the test.” Monowise Ltd. Corp. v. Ozy Media, Inc., No. 17-CV-8028 (JMF), 2018 WL 2089342, at *1 (S.D.N.Y. May 3, 2018). “To establish irreparable harm, a party seeking preliminary injunctive relief must show that there is a continuing harm which cannot be adequately redressed by final relief on the merits and for which money damages cannot provide adequate compensation.” Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (quotations omitted). Additionally, “irreparable harm must be shown to be actual and imminent, not remote or speculative.” Id.
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Because this case governs whether individuals are detained or released, there would clearly be irreparable harm in not granting preliminary relief to the Pre-Hearing Class. See Dubon Miranda, 2020 WL 2794488, at *12 (“The deprivation of a constitutional right, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))); Brito, 415 F. Supp. 3d at 270 (explaining that in the context of a class of individuals detained pursuant to § 1226(a), “who have no or little criminal history,” there is a risk of irreparable harm because the class members “face a loss of their liberty by incarceration in jail for months and sometimes years”); see also Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (“[I]t follows inexorably from our conclusion that the government’s current policies are likely unconstitutional—and thus that members of the plaintiff class will likely be deprived of their physical liberty unconstitutionally in the absence of the injunction—that Petitioners have also carried their burden as to irreparable harm.”).
Accordingly, the Court finds that Class Petitioner and the Pre-Hearing Class “have shown irreparable harm on the basis of their continued detention pursuant to a bond hearing that was likely constitutionally deficient.” Dubon Miranda, 2020 WL 2794488, at *13.
C. Likelihood of Success on the Merits With regard to the constitutional claims of the Pre-Hearing Class, as explained above this Court agrees with the majority of district courts in this Circuit that “have found that [the current § 1226(a) bond hearing] procedures violate the Fifth Amendment’s due process guarantee, ordered the Government to bear the burden by clear and convincing evidence, and directed immigration judges to consider alternatives to detention.” See
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Coronel, 2020 WL 1487274, at *6 (collecting cases). Additionally, BIA precedent makes
it clear that an IJ has authority to consider alternative conditions of release when setting
bond. See Matter of Garcia-Garcia, 25 I. & N. at 98. Accordingly, the Court finds that
Class Petitioner is very likely to succeed on the merits of the Pre-Hearing Class’s claims.
D. Balance of the Equities and the Public Interest
Respondent argues that his “interests in maintaining the existing procedures for
bond hearings under § 1226(a) are . . . legitimate and significant” and “outweigh [Class
Petitioner’s] asserted interests.” (Dkt. 24 at 28). This Court disagrees.
As the court explained in Dubon Miranda:
Despite the defendants’ assertion to the contrary, the granting of a preliminary injunction does not seriously infringe on the government’s interest in enforcing its immigration laws. . . . Rather, the requested injunction would simply require the government to provide the proposed class members with new bond hearings where additional procedures are observed. While the court acknowledges this would impose costs on the government, “[f]aced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.” See Hernandez, 872 F.3d at 996 (citation and quotation marks omitted). Moreover, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994)) (further citation omitted).
2020 WL 2794488, at *13.
In support of their argument to the contrary, Respondent first reiterates that the Class
Petitioner is no longer detained. (Dkt. 24 at 28). But as explained above, this Court finds
that Class Petitioner’s claims are inherently transitory and therefore not moot.
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Respondent next contends that the Pre-Hearing Class members “have not suffered

a constitutional injury” because their detention has not yet become prolonged. (Id. at

28-29). But again, this Court has found that the Pre-Hearing Class is likely to succeed on

the constitutional challenge to the § 1226(a) bond procedures.

Finally, Respondent claims that the Class’s “requested relief appears to contradict

the[] purported goal of ensuring individualized determinations at § 1226(a) bond hearings.”

(Id. at 29). More specifically, Respondent explains, Class Petitioner “ask[s] this Court to

require the Buffalo and Batavia Immigration Courts to provide the . . . class members with

new bonds hearings within seven days of a Court order,” which “would require IJs to hold

potentially hundreds of bond hearings in a one-week period.” (Id.). “Such a rushed

process,” Respondent says, “is not in the public interest as it would disrupt the orderly

function of the immigration courts.” (Id.).

While seven days may not have been sufficient time for Respondent to provide bond

hearings for “[a]ll individuals currently detained under 8 U.S.C. § 1226(a) [at the

BFDF] who have had or will have a custody hearing before the Batavia or Buffalo

Immigration Courts” (see Dkt. 1 at ¶ 62 (emphasis added)), the Court has only granted

injunctive relief to the Pre-Hearing Class. In other words, the government will only be

required to change the procedural protections for bond hearings that it has already

scheduled or will schedule in due course and is not at this time required to perform

“hundreds of bond hearings” that it otherwise would not have held.

Accordingly, the Court grants the motion for preliminary injunction as to the Pre-

Hearing Class.

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ORDER For the reasons explained above, it is hereby ORDERED that Respondents’ motion to dismiss (Dkt. 22) is granted in part and denied in part: the claims of the Subclass Petitioner and the claims of the putative class and subclass members detained at the RCC are dismissed without prejudice, all Respondents aside from Jeffrey Searls are dismissed without prejudice, and Respondents’ motion is denied as to Class Petitioner’s due process claims and INA claim as articulated above; and it is further ORDERED that Petitioners’ motion for class certification (Dkt. 2) is granted in part and denied in part, and the Court otherwise reserves decision. Specifically, the Court certifies the Pre-Hearing Class, which is defined as follows: All individuals currently detained at the Buffalo Federal Detention Facility under § 1226(a) who will have a custody hearing before the Batavia or Buffalo Immigration Courts. The motion is denied without prejudice as moot to the extent it seeks class certification regarding any putative class member detained at the RCC, including the claims of Subclass Petitioner. The Court reserves decision on whether it will certify the Putative Post-Hearing Class, and a separate Text Order shall be issued setting forth a briefing schedule on that aspect of the class certification motion; and it is further ORDERED that Petitioners’ motion for a preliminary injunction (Dkt. 15) is granted in part and denied in part. Specifically, the Court grants a preliminary injunction as to the constitutional claims of the Pre-Hearing Class and orders that all members of the PreHearing Class must receive a bond hearing wherein the government bears the burden of
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proving by clear and convincing evidence that the individual is a danger to the community or flight risk, and where the IJ must consider non-bond alternatives to detention or, if setting a bond, ability to pay. The Court otherwise denies the motion for a preliminary injunction, including to the extent relief is sought by the Putative Post-Hearing Class and the Subclass Petitioner; and it is further
ORDERED that the parties shall confer within seven days of the date of this Decision and Order to develop a plan for the following:
(1) Developing instructions to all IJs in Batavia and Buffalo Immigration Courts who conduct § 1226(a) bond hearings to inform them of the requirements of this Decision and Order; and
(2) Developing a notice, in English, Spanish, and any other language deemed appropriate by the parties, summarizing the requirements of this Decision and Order for distribution to the Pre-Hearing Class members; and it is further
ORDERED that within ten days, the parties shall provide a status report to the Court detailing the agreed-upon plan for the matters discussed above, after which the Court will, if necessary, issue an updated order.
SO ORDERED.

Dated:

September 2, 2020 Rochester, New York

_________________________________ ELIZABETH A. WOLFORD United States District Judge

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 Case 1:20-cv-00290-EAW Document 59 Filed 03/29/21 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ________________________________________
JUNIOR ONOSAMBA-OHINDO, on behalf of himself and all others similarly situated,
Petitioner/Plaintiff,
v.
JEFFREY SEARLS, in his official capacity as the Acting Administrator of the Buffalo Federal Detention Facility,
Respondent/Defendant. ________________________________________

DECISION AND ORDER 1:20-CV-00290 EAW

INTRODUCTION Petitioner/plaintiff Junior Onosamba-Ohindo (“Class Petitioner”) and former petitioner/plaintiff Antonio Lopez Agustin (“Subclass Petitioner”) (collectively “Petitioners”) filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and complaint for declaratory and injunctive relief, purportedly on behalf of themselves and all other persons similarly situated. (Dkt. 1 (“Petition”)). Petitioners sought: class certification; a declaratory judgment that the “actions, practices, policies, and/or omissions” of defendants/respondents violate the Immigration and Nationality Act (“INA”) and its implementing regulations, the Administrative Procedure Act, and the Fifth Amendment to the U.S. Constitution; a declaratory judgment that each class member is entitled to a custody hearing at which the government bears the burden to justify continued detention by proving by clear and convincing evidence that the detained individual is a
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danger to others or a flight risk; and an order stating that each class member must be released unless provided with such a custody hearing. (Id. at 18-19).
In a Decision and Order dated September 2, 2020 (Dkt. 41) (the “D&O”), the Court granted in part and denied in part the motion to dismiss. (Id. at 8-35). Claims asserted by Subclass Petitioner and the proposed subclass members detained at Richwood Correctional Center and claims asserted against all respondents/defendants with the exception of Jeffrey Searls (“Respondent”) were dismissed without prejudice. (Id. at 15-20). The Court found that Class Petitioner stated a Due Process Clause claim that the government is required to bear the burden of proof at bond hearings held pursuant to 8 U.S.C. § 1226(a) and that the immigration judge (“IJ”) must consider non-bond alternatives to detention, or if setting a bond, ability to pay. (Id. at 28-32). With respect to Class Petitioner’s claim for violations of the INA, the Court rejected Plaintiff’s contention that § 1226(a) “require[s] [immigration judges] to consider ability to pay and alternative conditions of release in setting bond,” but found that Class Petitioner had “stated a claim for violation of the INA on different grounds”—namely, that at his bond hearing, the IJ had stated that she could not consider alternatives to money bond. (Id. at 34). Accordingly, “Class Petitioner’s claim that the IJ misinterpreted the INA by stating she could not consider alternative conditions of release” was allowed to proceed, but his claim “that the INA required the IJ to consider those alternatives or his ability to pay in setting bond” was dismissed. (Id.).
The D&O also granted in part, denied in part, and reserved decision in part on Petitioners’ motion for class certification and certified a Pre-Hearing Class, defined as follows:
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All individuals currently detained at the Buffalo Federal Detention Facility under § 1226(a) who will have a custody hearing before the Batavia or Buffalo Immigration Courts. (Id. at 35-47). The Court reserved decision on whether to certify a putative Post-Hearing Class of individuals who have already had a custody hearing before the Batavia or Buffalo Immigration Courts. (Id at 46-47). Finally, the Court granted in part and denied in part Petitioners’ motion for a preliminary injunction. (Id. at 47-52). Specifically, the Court granted a preliminary injunction as to the constitutional claims of the Pre-Hearing Class and ordered that all members of the Pre-Hearing Class must receive a bond hearing wherein the government bears the burden of proving by clear and convincing evidence that the individual is a danger to the community or flight risk, and where the IJ must consider nonbond alternatives to detention or, if setting a bond, ability to pay. (Id. at 52-54). The Court otherwise denied the motion for a preliminary injunction with respect to the putative PostHearing Class. (Id.). Presently pending before the Court is Class Petitioner’s motion (Dkt. 49) for reconsideration of the portion of the D&O dismissing his claim that the INA requires IJs to consider alternatives to money bond or the ability to pay (Dkt. 49), as well as the unresolved portion of the motion seeking to certify the Putative Post-Hearing Class (Dkt. 2). Because Class Petitioner argues that a ruling in his favor on the reconsideration motion would obviate the need to reach the certification motion (see Dkt. 49-1 at 9-10), the Court will consider that motion first. But for the reasons that follow, the Court denies Class Petitioner’s motion to reconsider and further denies the pending portion of the motion for certification without prejudice to renew.
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BACKGROUND I. Factual Background
The factual background of this case is set forth in detail in the D&O, familiarity with which is assumed for purposes of this Decision and Order. The Court has summarized the key details below, and includes the relevant developments since the Court issued the D&O. II. Bond Hearings Pursuant to 8 U.S.C. § 1226(a)
As outlined in the D&O, the federal government has authority under the INA to detain people during immigration proceedings that may result in their removal. See generally 8 U.S.C. § 1226. The INA requires that immigration detainees who were present in the United States before their arrest, are currently in removal proceedings, and lack certain criminal convictions that would otherwise subject them to mandatory detention are entitled to receive an initial determination from United States Immigration and Customs Enforcement (“ICE”) regarding whether they may be released while their removal cases proceed. See id. If ICE does not release an individual, that person may ask an IJ to review ICE’s custody determination in a bond hearing. See id. § 1226(a); 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1). Thereafter, the detainee may appeal the IJ’s determination to the Board of Immigration Appeals (“BIA”). See 8 C.F.R. §§ 1236.1(d)(3), 1003.1(b)(7).
At the bond hearing, § 1226(a) provides that the Attorney General “may continue to detain the arrested alien” or “may release the alien on . . . bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or . . . conditional parole.” 8 U.S.C. § 1226(a)(1)-(2). In the D&O, the Court concluded that the plain language of § 1226(a) “does not provide the procedural requirements for bond
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hearings. Instead, the procedural rules followed by immigration courts come from BIA precedential decisions, which are not construing language in the statute.” (Dkt. 41 at 23 (citation omitted)). The D&O cited the Supreme Court case of Jennings v. Rodriguez, __ U.S. __, 138 S. Ct. 830, 834 (2018), in recognizing that § 1226(a) does not speak to the procedural requirements of bond hearings. (Dkt. 41 at 23); see also Jennings, 138 S. Ct. at 847 (holding “[n]othing in § 1226(a)’s text—which says only that the Attorney General ‘may release’ the alien ‘on . . . bond’—even remotely supports” placing the burden on the government to prove by clear and convincing evidence that the alien’s continued detention is necessary).
In the D&O, the Court agreed with Class Petitioner and reaffirmed its prior finding that the Due Process Clause requires the government to bear the burden of proof at § 1226(a) bond hearings and the IJ to consider non-bond alternatives to detention or, if setting a bond, ability to pay. As noted, the Court ordered that all members of the PreHearing Class receive a bond hearing in accordance with those directives.
More recently, the Court of Appeals for the Second Circuit decided Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020). Utilizing the three-factor balancing test provided in Mathews v. Eldridge, 424 U.S. 319 (1976), the Second Circuit held that the petitioner, a noncitizen incarcerated pursuant to 8 U.S.C. § 1226(a) for 15 months, was entitled to a new bond hearing where the government bore the burden to establish by clear and convincing evidence that he should be detained. 978 F.3d at 855-56. The Velasco Lopez court concluded that this requirement “strikes a fair balance between the rights of the individual and the legitimate concerns of the state,” id. at 857 (quoting Addington v. Texas, 441 U.S.
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418, 431 (1979)), and rejected the government’s contention that the Jennings decision foreclosed the relief sought by the petitioner, id. (citing Jennings, 138 S. Ct. at 851)). Although the Velasco Lopez court did not establish a bright-line rule “for when due process entitles an individual detained under § 1226(a) to a new bond hearing with a shifted burden,” it nonetheless held that “[o]n any calculus” the 15-month incarceration in that case violated due process. Id. at 855 n.13. It concluded that the result allowed all interested parties to prevail because the government “has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community.” Id. at 857. III. Procedural Background
Petitioners filed the instant action (Dkt. 1) and motion to certify the class (Dkt. 2) on March 11, 2020. On April 10, 2020, Petitioners filed a motion for preliminary injunction (Dkt. 15), and on April 27, 2020, the respondents/defendants filed their motion to dismiss (Dkt. 22).
On September 2, 2020, the Court issued the D&O. (Dkt. 41). Supplemental briefing was ordered regarding certification of the putative Post-Hearing Class (Dkt. 42), which Class Petitioner submitted on September 16, 2020 (Dkt. 44), and Respondent submitted on September 23, 2020 (Dkt. 47). On September 30, 2020, Class Petitioner filed the pending motion for reconsideration (Dkt. 49), to which Respondent filed a response on October 23,
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2020 (Dkt. 51). On October 30, 2020, Respondent filed a notice of appeal of the portion of the D&O that granted, in part, the motion for a preliminary injunction.1 (Dkt. 52).
DISCUSSION
I. Motion for Reconsideration
The Federal Rules of Civil Procedure do not recognize a motion for
“reconsideration.” See Lopez v. Goodman, No. 10-CV-6413 CJS, 2013 WL 5309747, at
*1 (W.D.N.Y. Sept. 20, 2013) (citing Hamilton v. Williams, 147 F.3d 367, 371 n. 10 (5th
Cir. 1998)). “Since the Federal Rules of Civil Procedure do not expressly provide for
motions for reconsideration, such a motion may be construed as a motion to alter or amend
judgment under Rule 59(e) or Rule 60(b).” Hill v. Washburn, No. 08-CV-6285, 2013 WL
5962978, at *1 (W.D.N.Y. Nov. 7, 2013) (citing Osterneck v. Ernst & Whinney, 489 U.S.
169, 174 (1989)).
As explained by the Second Circuit, “[t]he standard for granting a [motion for
reconsideration] is strict, and reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court overlooked—matters, in other
1 Respondent’s notice of appeal only effectuated an appeal from the portion of the D&O that granted, in part, the motion for a preliminary injunction. Although that appeal remains pending, it does not divest this Court of jurisdiction over the underlying lawsuit. See New York State Nat. Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989); New York v. United States Dep’t of Homeland Sec., 475 F. Supp. 3d 208, 224 (S.D.N.Y. 2020) (noting that an appeal from an interlocutory order granting or denying a preliminary injunction “does not prevent the matter from otherwise proceeding in the district court”). Thus, while divested of jurisdiction with respect to the preliminary injunction motion, the Court concludes that it is not divested of jurisdiction with respect to the motion for certification or Class Petitioner’s request for reconsideration of the Court’s decision on the dismissal of his statutory conditional parole claim.
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words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice.” Virgin Atl. Airways v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citations omitted). “With respect to the third of these criteria, to justify review of a decision, the Court must ‘have a clear conviction of error on a point of law that is certain to recur.’” Turner v. Vill. of Lakewood, No. 11-CV-211-A, 2013 WL 5437370, at *3-4 (W.D.N.Y. Sept. 27, 2013) (quoting United States v. Adegbite, 877 F.2d 174, 178 (2d Cir. 1989)). “These criteria are strictly construed against the moving party so as to avoid repetitive arguments on issues that have been considered fully by the court.” Boyde v. Osborne, No. 10-CV-6651, 2013 WL 6662862, at *1 (W.D.N.Y. Dec. 16, 2013) (quoting Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)).
Here, Class Petitioner moves for reconsideration of the denial of his statutory claim that § 1226(a) requires that particular procedures be conducted at a bond hearing, arguing that the statute requires consideration of conditional parole in every case. Specifically, he challenges the portion of the D&O wherein the Court reached the following conclusion:
As discussed at length above, the Court agrees with Respondent that § 1226(a) does not speak to what factors an IJ must consider at a bond hearing. Section 1226(a) states that the government “may continue to detain the arrested alien,” and “may release the alien” on bond or conditional parole. 8 U.S.C. 1226(a) (emphasis added). In other words, the plain language of 8 U.S.C. § 1226(a) allows IJs to consider alternative conditions of release and bond, but does not require that they do so or otherwise prescribe what procedures should be used at a bond hearing.
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(Dkt. 41 at 33). Although § 1226(a) provides that the Attorney General may detain the alien or release the alien “on (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole,” see 8 U.S.C. § 1226(a)(1)-(2) (emphasis added), Class Petitioner argues that the statute requires an IJ to consider conditional parole at every bond hearing and that such result is dictated by the Supreme Court’s holding in I.N.S. v. Nat’l Ctr. For Immigrants’ Rights, 502 U.S. 183 (1991).
Respondent raises two arguments in opposition to Class Petitioner’s motion for reconsideration: first, that the motion is untimely because Class Petitioner failed to raise it in his original filings, and second, that it is substantively deficient. The Court will address each argument in turn.
A. Timeliness of Class Petitioner’s Motion Respondent first contends that Class Petitioner’s request that the Court reconsider its decision on this statutory claim is untimely because Class Petitioner did not make the argument he is making now in his submissions on the underlying motion. Indeed, “[a] motion for reconsideration is ‘neither an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have been previously advanced.’” United States v. Seng, No. S5 15-CR-706 (VSB), 2021 WL 961749, at *2 (S.D.N.Y. Mar. 15, 2021) (quoting AP v. United States DOD, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005)). Here, while Class Petitioner made the argument in his earlier filings that § 1226(a) required individualized consideration which includes conditional parole, as noted, the
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Court considered those arguments in formulating the opinion in the D&O, and re-argument
of the same points is not appropriate on a reconsideration motion. In attempting to get
around that hurdle, Class Petitioner argues as the basis for his motion that “[i]n an otherwise
thorough decision, the Court did not address the Supreme Court cases upon which the
petitioner relied, primarily I.N.S. v. National Center for Immigrants’ Rights (“NCIR”), 502
U.S. 183 (1991), that establish that section 1226(a)’s provision that immigration judges
‘may’ consider conditional parole is to be construed to require consideration of that
statutory option in custody hearings.” (Dkt. 49-1 at 4).
Importantly, Class Petitioner did not even cite NCIR in connection with his
opposition to the motion to dismiss his INA claims, although it was cited in connection
with the motion for a preliminary injunction. Specifically, in the preliminary injunction
motion, Petitioners argued:
As the Supreme Court has held, INA language that the Attorney General “may” detain or release someone in immigration custody requires an individualized determination. See INS v. Nat’l Ctr. for Immigrants’ Rights, Inc. (“NCIR”), 502 U.S. 183, 191, 194-95 (1991); Reno v. Flores, 507 U.S. 292, 313-14 (1993). NCIR held the permissive “may” in an effectively identical INA provision required the Attorney General to perform an “individualized determination” about whether to impose a particular condition of release, since “in the absence of such judgments, the legitimate exercise of discretion is impossible.” Id. at 194-95; see also Flores, 507 U.S. at 313-14 (reaffirming NCIR’s interpretation of former § 1252(a) in the context of children’s detention).
(Dkt. 15-1 at 16-17). This is the only discussion of NCIR in Petitioners’ memorandum and
the argument arose in connection with the section about the IJ’s alleged “No Bond Policy.”
While Class Petitioner contends that he incorporated the argument into the later section of
his brief addressed to the IJ’s refusal to consider alternative conditions of relief (see Dkt. - 10 -

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49-1 at 6 n.1), he did not explicitly cite to NCIR in that section of the argument (see Dkt. 15-1 at 21) (“Just as the No Bond Policy runs afoul of the INA’s obligation of individualized determinations, so does the Buffalo-area IJ’s policy of failing to consider one important alternative to detention specified by Congress: conditional parole.”).
The Court is hard-pressed to agree with Class Petitioner that it failed to address an argument and controlling caselaw that was clearly presented by Class Petitioner in his prior submissions. The argument Class Petitioner now makes with respect to NCIR was not clearly outlined in his previous submissions, and indeed, not even cited at all in opposition to the motion to dismiss that is the subject of the reconsideration motion. Class Petitioner may not now assert new arguments he did not clearly advance before, and which he had the opportunity to present at that time. On that basis alone, the motion for reconsideration should be denied. See Brooks v. Hogan, No. 9:15-CV-00090-BKS-TWD, 2021 WL 1091380, at *2 (N.D.N.Y. Mar. 22, 2021) (“Thus, a motion for reconsideration is not to be used for ‘presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.’” (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998))); Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 20 (S.D.N.Y. 2005) (“[A] party is barred from making for the first time in a motion for reconsideration an argument it could readily have raised when the underlying issue was being briefed but chose not to do so.”). Nevertheless, notwithstanding the untimeliness, the Court will consider Class Petitioner’s argument on the merits.
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B. Merits of Class Petitioner’s Argument As noted, Class Petitioner contends that NCIR explicitly requires a finding that § 1226(a) requires IJs to individually consider conditional parole in each case. The Court disagrees that NCIR can be read to explicitly require that result. The Supreme Court in NCIR addressed the “narrow question” of whether a statutory provision of the INA authorized “the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond ‘containing such conditions as the Attorney General may prescribe.’” 502 U.S. at 184. Specifically, the Court considered whether the provision of the INA at issue “prohibits promulgation of a rule generally requiring that release bonds contain a condition forbidding unauthorized employment pending determination of deportability.” Id. at 18485. The section of the INA at issue in NCIR contained language similar to that in § 1226(a), and the Court ultimately concluded that a regulation promulgated by the Attorney General setting a “no-employment condition” as “the rule rather than the exception” was not inconsistent with the statutory requirement for “individualized decisions.” Id. at 186, 19495. The Court stated, “[i]ndeed in the absence of such judgments, the legitimate exercise of discretion is impossible in this context.” Id. While an argument can be made that the holding in NCIR supports Petitioner’s argument here that consideration of conditional parole is required to constitute an adequate “individualized determination” of a request for release, it is not so expressly stated in that case as to clearly contradict the Court’s conclusions in the D&O and sufficient to demonstrate a clear error or present a case of manifest injustice. Indeed, Class Petitioner
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has not cited any cases that have applied NCIR’s holding to stand for the proposition he urges, and NCIR was decided in 1991. To the contrary, the Supreme Court clarified in Reno v. Flores, 507 U.S. 292 (1993), that the requirement of an “individualized determination” does not prohibit the “use of reasonable presumptions and generic rules.” Id. at 313. The lack of a clear directive that NCIR is controlling in the instant circumstances, particularly where it was not expressly raised in the initial papers, leaves the Court to conclude that no basis for reconsideration has been established. See Sumner v. McCall, 103 F. Supp. 2d 555, 558 (N.D.N.Y. 2000) (the “demanding standard” for reconsideration is not met where a party merely “make[s] a more persuasive argument” (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981)).
Because the Court concludes that reconsideration is not warranted, it will go on to consider the motion for certification of the Post-Hearing Class. II. Motion to Certify Putative Post-Hearing Class
As noted, Class Petitioner initially moved to certify a class of detainees that included the Post-Hearing Class, those who already had a hearing, as well as the Pre-Hearing Class of those individuals who will have a custody hearing before the Batavia or Buffalo Immigration Courts. (Dkt. 3 at 15).
In the D&O, the Court concluded that Class Petitioner satisfied the prerequisites of Federal Rule of Civil Procedure 23(a) for class certification regarding the class-wide claims: “numerosity, commonality, typicality, and adequacy of representation.” (Dkt. 41 at 35 (citing Sykes v. Mel S. Harris & Assocs., 780 F.3d 70, 80 (2d Cir. 2015)). Respondent has not challenged the Court’s Rule 23(a) conclusions in his supplemental briefing on the
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issue presently before the Court and makes no argument that the Post-Hearing Class members do not satisfy those Rule 23(a) prerequisites. Rather, Respondent focuses his argument in opposition to the motion for certification of the putative Post-Hearing Class on grounds of the proposed class members’ purported failure to satisfy Federal Rule of Civil Procedure 23(b)(2).
As noted in the D&O, “the key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” (Dkt. 41 at 44 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)); see also Fed. R. Civ. P. 23(b) (“A class action may be maintained if Rule 23(a) is satisfied and if . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole”). Relying on Wal-Mart, Respondent contends that the claims of the Post-Hearing Class are not appropriate for certification because they are “claims for individualized relief,” and “the complained of-conduct (i.e., procedures employed during § 1226(a) bond hearing) is not amenable to uniform declaratory relief.” (Dkt. 47 at 1 (quoting Wal-Mart, 564 U.S. at 338)). Specifically, Respondent argues that because members of the Post-Hearing Class are only entitled to a new bond hearing if they can establish prejudice in a separate, individualized, habeas proceeding, class certification is inappropriate.
Indeed, the Court in the D&O reserved decision on the motion to certify the PostHearing Class to further consider the implications arising from the fact that for individuals
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who have already received a bond hearing, an individualized showing of prejudice would be required before being awarded a new hearing. (Dkt. 41 at 45). Second Circuit caselaw is in accord that such a showing of prejudice is necessary. See, e.g., Wei v. Wilkinson, No. 18-3353, ___ F. App’x ___, 2021 WL 627508, at *2 (2d Cir. Feb. 18, 2021) (“To establish a violation of due process, an [applicant] must . . . allege some cognizable prejudice fairly attributable to the challenged process.” (internal quotations and citations omitted)); Rahman v. Wilkinson, No. 18-3737, ___ F. App’x ___, 2021 WL 278326, at *2 (2d Cir. Jan. 28, 2021) (“To the extent he attempted to raise a due process claim, [petitioner] provided no evidence of poor interpretation or prejudice . . .”); Arrue v. Rosen, No. 19-821, ___ F. App’x ___, 2021 WL 21772, at *1 (2d Cir. Jan. 4, 2021) (“Contrary to Arrue’s suggestion, he does not have a colorable due process claim because he has not established the requisite prejudice.”); Torres-Hernandez v. Barr, 821 F. App’x 16, 19 (2d Cir. 2020) (noting that “[t]o succeed on a due process claim, a petitioner must show . . . cognizable prejudice” (quotation and citation omitted)); Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming denial of due process in immigration cases must, in order to prevail, allege some cognizable prejudice fairly attributable to the challenged process.” (quotation and citation omitted)).
Respondent contends that in light of the varying Post-Hearing Class members’ status, declaratory relief cannot be uniformly applied to the proposed class. (Dkt. 47 at 3). The individualized nature of the showing required does raise questions as to the ultimate appropriateness of certifying the Post-Hosting Class and providing declaratory relief. In order for declaratory relief to be appropriate, the Court must consider: “(1) whether the
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judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether the judgment would finalize the controversy and offer relief from uncertainty.” Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 2005); see also Pilkington N. Am., Inc. v. Mitsui Sumitomo Ins. Co. of Am., No. 18 CIV. 8152 (JFK), 2020 WL 6585702, at *6 (S.D.N.Y. Nov. 10, 2020) (“[T]he primary issues in assessing the appropriateness of declaratory relief are ‘(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty.’” (quoting Chevron Corp. v. Naranjo, 667 F.3d 232, 245 (2d Cir. 2012))), reconsideration denied, No. 18 CIV. 8152 (JFK), 2021 WL 797674 (S.D.N.Y. Mar. 2, 2021).
Here, the exact nature of the declaratory relief sought by the Post-Hearing Class has not been fully briefed and is not before the Court on the instant motion. But there appear to be sufficient open questions as to the indivisible nature of the declaratory relief ultimately being sought for the Post-Hearing Class to make the appropriateness of certification under Rule 23(b)(2) questionable. The fact alone that certifying the PostHearing Class would not obviate the need for individualized habeas petitions undercuts the usefulness of certification and ultimately, an award of declaratory relief. This is particularly true where the law regarding § 1226(a) bond hearings has developed since the time the certification motion was filed. The Second Circuit in Velasco Lopez has provided clarity as to several of the issues concerning bond hearings that were unresolved at the time Petitioners initiated this action and may already provide relief to members of the PostHearing Class that was not clearly available at the time the action was commenced. Any
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remedy the Court may provide in the form of declaratory relief would potentially be unnecessary or advisory.
Although not directly on point, the Court of Appeals for the Seventh Circuit’s decision in Andrews v. Chevy Chase Bank, 545 F.3d 570 (7th Cir. 2008) is instructive. There, the question was whether a class could be certified pursuant to Rule 23(b) for purposes of seeking a rescission under the federal Truth in Lending Act (the “TILA”). Id. at 577. The Andrews court determined that it could not, because “[a] court’s certification of a class of persons entitled to seek rescission would be just the beginning. Each class member individually would have the option of exercising his or her right to rescind, and not all class members will want to do so. . . .” Id. at 574. Accordingly, “[r]ather than settling the legal relations at issue, a judicial declaration in this situation would be essentially advisory. . . . The rescission remedy is so inherently personal that a court cannot venture further while addressing the plaintiffs as a class; it can do no more than simply declare that a certain group of plaintiffs have the right to initiate rescission, and that is not a form of ‘final’ declaratory relief under Rule 23(b)(2).” Id. at 577 (internal citations omitted). Similarly, in this case, a declaration by the Court would still require that the members of the putative Post-Hearing Class bring individual habeas corpus proceedings to adjudicate the matter of whether they suffered prejudice, and so arguably would not provide finality or serve a useful purpose in clarifying the legal relationship between the parties.
The Court is cognizant that “Rule 23 is not a weed whacker for merits problems.” Arkansas Tchr. Ret. Sys. v. Goldman Sachs Grp., Inc., 955 F.3d 254, 268 (2d Cir. 2020),
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cert. granted, 141 S. Ct. 950 (2020). However, the Supreme Court made clear in Wal-Mart that a district court must perform a “rigorous analysis” in determining whether class certification is appropriate, and that “[f]requently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim.” 564 U.S. at 350-51 (citation omitted). Here, the merits concerns discussed above directly implicate the indivisible nature of the declaratory judgment sought by Class Petitioner—in particular, whether the Court could indeed issue a declaratory judgement that would “provide relief to each member of the class,” or whether instead “each individual class member would be entitled to a different . . . declaratory judgment[.]” Id. at 360. Accordingly, the Court cannot determine at this time and on this record that certification of the putative Post-Hearing Class is appropriate.
In reaching this decision, the Court has considered a Massachusetts district court case that did fashion relief similar to what Class Petitioner seeks. See Brito v. Barr, 395 F. Supp. 3d 135, 148 (D. Mass.), modified, 415 F. Supp. 3d 258 (D. Mass. 2019), appeal pending, No. 20-1037 & 20-1119 (1st Cir.). In Brito, as here, the class action plaintiffs alleged that the allocation of proof in immigration court bond hearings and failure to consider alternative conditions of relief and ability to pay are unlawful for individuals being detained pursuant to 8 U.S.C. § 1226(a). 415 F. Supp. at 263. The district court certified two classes of individuals asserting a due process claim: a pre-hearing class and posthearing class. Id. The Brito court acknowledged that it could not “issue a unitary injunction ordering new bond hearings for [the post-hearing class] without delving into their individual criminal histories and personal characteristics to determine whether they
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suffered prejudice from the errors at their first hearings.” 395 F. Supp. 3d at 148. It nevertheless concluded that it could “issue a declaratory judgment explaining the procedures due process requires at a § 1226(a) bond hearing and each individual’s entitlement to a new bond hearing in accordance with those procedures if he can show prejudice via an individual habeas petition,” because a “single declaration would address the rights of all aliens who have already had a bond hearing subject to unconstitutional procedures.” Id. at 148-49.
The Court does not find the reasoning in Brito persuasive here. The Brito court did not expressly consider whether the necessity for individualized proceedings to determine prejudice would undercut the finality of the proposed declaratory judgment. In addition, not only is Brito not controlling on this Court, but it is also currently on appeal. Further, as explained above, the development of the law in the Second Circuit is now clearer than the law in the First Circuit was at the time Brito was decided, and at the time this action was filed. These facts leave the Court to conclude that the better course of action is to deny this portion of the motion for class certification without prejudice, as opposed to allowing it, only to decertify the class at a later point in the proceedings. See Jin v. Shanghai Original, Inc., No. 19-3782, 2021 WL 864711, at *8 (2d Cir. Mar. 9, 2021) (“[D]istrict courts have the authority to sua sponte decertify a class if they find that the class no longer meets the requirements of Rule 23 at any time before final judgment is entered.”).
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For these reasons, the Court denies Class Petitioner’s motion for certification of the Post-Hearing Class without prejudice.2 Class Petitioner may, if he chooses, bring a renewed motion for class certification that addresses the concerns identified by the Court, and in particular sets forth the precise indivisible declaration that he contends the Court could issue in this matter.
CONCLUSION For the reasons explained above, the portion of the motion for class certification (Dkt. 2) that remained pending is denied without prejudice and Class Petitioner’s motion for reconsideration (Dkt. 49) is denied. SO ORDERED.

Dated:

March 29, 2021 Rochester, New York

_________________________________ ELIZABETH A. WOLFORD United States District Judge

2 To the extent Respondent argues that the Court does not have authority to direct that a new bond hearing be held resulting from a due process violation (Dkt. 47 at 5-6), Velasco Lopez would seemingly foreclose that argument.
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