Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 1 of 31

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

Paige Pavone 6 ORRICK, HERRINGTON & SUTCLIFFE, LLP 7 51 West 52nd Street
New York, NY 10019

8 Telephone: (212) 506-3604 Facsimile: (212) 506-5151

9 Email: ppavone@orrick.com

10

11 Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF NEW MEXICO

15 FRANKLIN GOMEZ CARRANZA and 16 RUBEN TORRES JAUREGUI,

17

Plaintiffs,

Case No. 20cv424 COMPLAINT

18

v.

PROPOSED CLASS ACTION

19 UNITED STATES IMMIGRATION AND

CUSTOMS ENFORCEMENT; MATTHEW T. 20 ALBENCE, ACTING DIRECTOR OF ICE;

21 DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, ACTING

22 SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY; COREY A. PRICE,

23 FIELD OFFICE DIRECTOR FOR THE EL

PASO FIELD OFFICE, 24

Defendants. 25

26

27

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1

INTRODUCTION

2

1. This is a class action for injunctive and declaratory relief necessary to remedy

3 ongoing violations of the constitutional and statutory rights of individuals held in government

4 custody pending immigration proceedings. Because such proceedings seek to deprive

5 individuals of the opportunity to live and work in the United States, the United States

6 Constitution and federal statutes and regulations afford these individuals with substantive and

7 procedural rights, including the right to be represented by counsel, the right to gather and present

8 evidence, and the right to a fair hearing. Defendants have systematically denied those rights, and

9 others.

10

2. Plaintiffs Franklin Gomez Carranza and Ruben Torres Jauregui (“Individual

11 Plaintiffs”) bring this class action lawsuit to challenge policies and practices that deny and

12 severely restrict their abilities to make telephone calls necessary to consult with or obtain

13 counsel, to gather information and evidence necessary for their cases, and to obtain fair hearings

14 while in civil, immigration custody.

15

3. Individual Plaintiffs and the class they seek to represent (collectively “Plaintiffs”)

16 are held in detention facilities under the custody of Defendant U.S. Immigration and Customs

17 Enforcement (“ICE”), many pending resolution of ICE’s charges that they should be deported or

18 “removed” from the United States. Others are detained while challenging final removal orders

19 or their prolonged detention, while motions to reopen or reconsider a prior removal order are

20 pending, and while pursuing habeas corpus petitions because they cannot be deported.

21

4. Respondents in immigration proceedings are not entitled to appointed counsel, but

22 have a right to counsel of their choosing at no expense to the government. Individuals detained

23 at the El Paso Service Processing Center (“El Paso”) and the Otero County Detention Processing

24 Center (“Otero”) rely on pro bono counsel located nationwide for representation. In-person

25 visits by out-of-state counsel to El Paso or Otero often are prohibitively expensive and

26 unreasonably time-consuming. In-person visits by any counsel – including local attorneys –

27 have been rendered impossible with the COVID-19-related shutdowns. Even before these

1

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1 shutdowns, visits by local counsel were extremely time-consuming because attorneys cannot

2 make appointments to see their clients at El Paso or Otero. Thus, telephone access is critical to

3 Plaintiffs’ ability to locate, retain, consult with, and seek advice from legal counsel.

4

5. For those Plaintiffs who cannot afford an attorney and are not able to retain pro

5 bono counsel, telephone contact with the outside world is essential to gather the evidence and

6 government documents necessary to defend against removal charges, locate witnesses, seek

7 relief from removal, including protection from persecution or torture, and do other things

8 necessary to represent themselves in legal proceedings.

9

6. Meaningful telephone access is also necessary to enable Plaintiffs to exercise their

10 First Amendment rights to petition government agencies for affirmative immigration benefits

11 and related documentation, including ones that may legalize their status or otherwise assist with

12 their applications for relief or protection from removal.

13

7. However, ICE, and its parent agency, the Department of Homeland Security

14 (“DHS”) have engaged in a common course of conduct that severely restricts Plaintiffs’

15 telephone access in violation of their constitutional, statutory, and regulatory rights under, inter

16 alia, the United States Constitution, the Immigration and Nationality Act (“INA”), and the

17 Administrative Procedures Act (“APA”). Specifically, and as elaborated herein, Defendants

18 have illegally restricted Plaintiffs’ telephone access in the following ways:

19

a. impeding all confidential communications with counsel, depriving Plaintiffs of

20

the attorney-client privilege;

21

b. providing no privacy to Plaintiffs when able to make telephone calls;

22

c. when made available, only providing calling options that are prohibitively

23

expensive;

24

d. not providing free telephone access to indigent Plaintiffs;

25

e. not providing Plaintiffs free telephone access to make calls to nonprofit legal

26

services providers and/or government entities;

27

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1

f. disallowing Plaintiffs from receiving incoming calls, including urgent legal calls

2

from counsel or other emergency telephone calls;

3

g. not taking and delivering messages to Plaintiffs;

4

h. inconsistently conveying requests from counsel to speak with their detained

5

clients;

6

i. when made available, providing telephone access that denies Plaintiffs the ability

7

to leave voicemail messages or reach offices with automated reception services;

8

j. not providing information on telephone access to Plaintiffs who speak rare

9

languages;

10

k. refusing to assist Plaintiffs who have trouble accessing the telephones; and

11

l. when made available, providing meaningless telephone access replete with poor

12

sound quality and excessive background noise.

13

8. By engaging in the above conduct, Defendants have violated Plaintiffs’:

14

a. constitutional right to counsel, as provided for in the Due Process Clause of the

15

Fifth Amendment;

16

b. statutory right to counsel at no expense to the government in immigration

17

proceedings, as provided for in 8 U.S.C. §§ 1362 and 1229a(b)(4)(A) of the

18

Immigration and Nationality Act and 5 U.S.C. § 555(b) of the Administrative

19

Procedure Act;

20

c. regulatory right to counsel of choice at no expense to the government, as provided

21

for in 8 C.F.R. § 1003.16(b) and 8 C.F.R. § 1292.5(b) of the regulations of the

22

Executive Office for Immigration Review;

23

d. constitutional right to a full and fair hearing in removal proceedings, as provided

24

for in the Due Process Clause of the Fifth Amendment to the U.S. Constitution;

25

e. statutory right to a full and fair custody redetermination hearing, as provided for

26

in 8 U.S.C. § 1226(a) of the Immigration and Nationality Act;

27

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1

f. statutory right to gather and present evidence in connection with immigration

2

proceedings, as provided for in 8 U.S.C. § 1229a(b)(4)(B) of the Immigration and

3

Nationality Act;

4

g. constitutional right to petition the government for redress of grievances, as

5

provided for in the First Amendment to the U.S. Constitution; and

6

h. protections to ensure telephone access, as provided for in the 2011 Performance-

7

Based National Detention Standards on Telephone Access.

8

9. Defendants’ policies, practices, and omissions in denying and restricting

9 telephone access have a dramatic impact on Plaintiffs’ cases and on the duration of Plaintiffs’

10 custody. The consequences of Defendants’ wrongdoing, as elaborated herein, include:

11

a. inability to retain counsel or consult with counsel over the telephone, delaying

12

counsel from requesting custody redetermination hearings or preparing for a

13

custody redetermination hearing, prolonging Plaintiffs’ detention;

14

b. inability to contact attorneys to let them know about important case dates and

15

deadlines, including court hearings. At times, this results in a lack of attorney

16

attendance and representation at the hearings;

17

c. inability to prepare a defense and adequately present a case. As a result of

18

Defendants’ conduct, many Plaintiffs who would be eligible to remain in the

19

United States are deported; and

20

d. preventing some Plaintiffs who, upon information and belief, may accept a

21

removal order earlier in the process if they were able to obtain legal consultation

22

over the telephone, sparing themselves and the taxpayer the significant costs of

23

detention, from doing so.

24

10. For these reasons, the Individual Plaintiffs seek to represent a class of all current

25 and future adult immigration detained persons who are or will be held in ICE custody in El Paso

26 or Otero and to obtain an order from this Court enjoining the policies, practices, and omissions

27

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1 that are preventing Plaintiffs from realizing their constitutional, statutory, and regulatory rights,

2 including the promise of due process in immigration proceedings.

3

JURISDICTION

4

11. This Court has subject-matter jurisdiction over this matter under 28 U.S.C. § 1331

5 (federal question), 28 U.S.C. §§ 2201 and 2202 (declaratory relief), 28 U.S.C. § 2241 (habeas

6 corpus); and 5 U.S.C. § 706 (waiver of sovereign immunity).

7

VENUE

8

12. Venue is proper in the District of New Mexico under 28 U.S.C. §§ 1391(b) and

9 (e) because a substantial part of the events and omissions giving rise to Plaintiffs’ claims

10 occurred, and continues to occur, in this district.

11

PARTIES

12

13. Plaintiff Franklin Gomez Carranza is a 21-year-old native and citizen of Honduras

13 who is seeking asylum under 8 U.S.C. § 1158 for fear of persecution for his sexuality. Since

14 March 20, 2020, Plaintiff Gomez Carranza has been detained in ICE custody at Otero and from

15 October 2019 until March 20, 2020, he was detained in ICE custody at El Paso.

16

14. Plaintiff Ruben Torres Jauregui is a 29-year-old native and citizen of Cuba who is

17 seeking asylum under 8 U.S.C. § 1158 for fear of persecution for protesting against corruption in

18 the Cuban government. Since August 2019, Plaintiff Torres Jauregui has been detained in ICE

19 custody at Otero.

20

15. Defendant ICE is a federal law enforcement agency within DHS. ICE is

21 responsible for enforcement of the immigration laws, including the detention, incarceration, and

22 removal of noncitizens. ICE discharges its responsibility for incarceration of immigrants by

23 inter alia: (1) promulgating detention standards to be followed in the facilities in which

24 immigrants are held pending removal hearings, including with respect to telephone access; and

25 (2) contracting with the government entities and private corporations that operate detention

26 facilities, including the facilities in which all members of the Class are incarcerated.

27

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1 Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the

2 immigration detention system.

3

16. Defendant Matthew T. Albence is the Acting Director of ICE. As Acting

4 Director, Defendant Albence is responsible for ICE’s policies, practices, and procedures,

5 including those relating to the detention of individuals pending their removal proceedings.

6

17. Defendant DHS is the arm of the federal government responsible for the

7 enforcement and administration of the immigration laws. The component agencies of DHS

8 include ICE; United States Citizenship and Immigration Services (“USCIS”), which administers

9 the legal immigration system and grants immigration benefits; and United States Customs and

10 Border Protection (“CBP”), which is responsible for the initial processing and detention of

11 noncitizens who are apprehended at or near the border.

12

18. Defendant Chad F. Wolf is the Acting Secretary and highest-ranking member of

13 DHS. As Acting Secretary of DHS, Defendant Wolf is responsible for DHS’s policies, practices,

14 and procedures and exercises authority and oversight over ICE.

15

19. Defendant Corey A. Price is the Field Office Director for the El Paso Field Office

16 of ICE. The El Paso Field Office is responsible for carrying out ICE’s immigration detention

17 and removal operations in West Texas and New Mexico. As Director, Defendant Price oversees

18 the El Paso Field Office’s functions and implementation of its detention standards, including

19 with respect to telephone access.

20

20. Defendants Albence, Wolf, and Price are sued in their official capacities only.

21

ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF

22 Background on Removal Proceedings

23

21. Deportation or “removal” proceedings before an immigration judge begin when

24 DHS issues a Notice to Appear (“NTA”) charging removability. See 8 U.S.C. § 1229(a).

25 Removal cases are adjudicated by the immigration courts in the first instance and generally may

26 be reviewed on appeal by the Board of Immigration Appeals (“BIA”). See 8 U.S.C. §§

27 1001(a)(47)(B); 1229a(a)(1), (c)(5); 8 C.F.R. § 1003.1. Both the immigration courts and the BIA

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1 are part of the Executive Office for Immigration Review (“EOIR”) within the United States

2 Department of Justice. Decisions of the BIA are reviewable by the United States courts of

3 appeals. See generally 8 U.S.C. § 1252.

4

22. In general, the initial appearance in removal proceedings before the EOIR is the

5 master calendar hearing. At this hearing, the immigration judge advises the respondent of his or

6 her rights with respect to the hearing, accepts pleadings on the charges in the NTA, asks whether

7 the respondent wishes to apply for relief or protection from removal and whether he or she

8 intends to seek legal advice or representation. 8 C.F.R. § 1240.10. If the respondent submits an

9 application for relief, the immigration judge usually will set the case for an evidentiary hearing

10 on removability, relief or protection from removal, and other issues that determine whether the

11 respondent will be permitted to remain in the United States. The scheduled hearings are subject

12 to change at the last minute.

13

23. An individual facing removal proceedings before the EOIR has procedural rights,

14 including, inter alia, the right to examine, present, and rebut evidence and to contest the charges

15 on which DHS seeks removal. See 8 U.S.C. §1229(c)(4); 8 C.F.R. §, 1240.10(c). For example, a

16 respondent can demonstrate that he or she is in fact a U.S. citizen, or – if alleged to be removable

17 because of a criminal offense – that he or she was not convicted of the alleged offense, or that the

18 offense is not a removable offense. If the charges of removability are not sustained, the removal

19 proceedings are terminated.

20

24. An individual facing removal proceedings before the EOIR may also seek relief

21 from removal, for which he or she bears the burden of proof. See 8 U.S.C. § 1229a(c)(4)(A).

22 For example, an immigration judge may grant “cancellation of removal” based on certain

23 statutory eligibility requirements and evidence demonstrating compelling reasons for being

24 permitted to remain in the United States. See generally 8 U.S.C. § 1229b. To secure

25 cancellation of removal, a respondent has the burden of proving eligibility, including that he

26 merits a favorable exercise of discretion, through evidence such as employment records and

27 letters of support or live testimony from community members. The respondent may also apply

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1 for asylum, withholding of removal, and protection under the Convention Against Torture, which

2 are related forms of relief available to respondents who would face harm if returned to his or her

3 country of origin. Like other forms of relief, all fear-based claims have different requirements

4 and standards, but generally require presentation of detailed evidence, including affidavits,

5 testimony, official records, and reports documenting conditions in the relevant country. See 8

6 U.S.C. §§ 1158; 1231(b)(3); 8 C.F.R §§ 208.16-208.18.

7

25. In addition to removal proceedings before the EOIR, removal proceedings can

8 occur before DHS officers, including Reinstatement of Removal, Expedited Removal

9 Proceedings, and Administrative Removal Proceedings. See 8 U.S.C. § 1231(a)(5); 8 U.S.C.

10 § 1225; 8 U.S.C. § 1228(b); 8 C.F.R. § 238.1(b)(1); 8 C.F.R. § 241.8(b). Individuals have

11 procedural rights and protections here too – as well as the need to seek counsel and gather

12 evidence – including the right to oppose the findings of the DHS officers in Reinstatement of

13 Removal; the right to apply for asylum in Expedited Removal Proceedings; and the right to

14 counsel at no expense to the government and to review DHS’s evidence and respond accordingly

15 in Administrative Removal Proceedings.

16 Background on Bond Proceedings

17

26. With some exceptions, individuals held in ICE custody can request a bond

18 redetermination hearing at which an immigration judge reviews ICE’s initial custody

19 determination. See 8 U.S.C. § 1226(a); 8 C.F.R. §§ 1003.19, 1236.1(c). At this hearing, which

20 is separate from evidentiary hearings on removability and relief from removal, the individual

21 generally has the burden of demonstrating that he or she is neither a danger to the community nor

22 a flight risk. See Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). This evidence may

23 include, among other things, the individual’s own testimony, testimony from third-party

24 witnesses, and documentary evidence of his or her good character and community ties.

25

27. In an effort to seek release on bond, detained individuals often seek legal

26 representation. If they do not have representation, they must independently gather information

27 and evidence in connection with bond redetermination hearings.

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1 The 2011 Performance-Based Detention Standards

2

28. The ICE standards purporting to govern conditions of confinement in Otero and

3 El Paso are the 2011 Performance-Based National Detention Standards (“2011 PBNDS”),

4 available at http://www.ice.gov/detention-standards/2011 (last visited February 23, 2020). See

5 Dep’t of Homeland Sec. & U.S. Immigration and Customs Enf’t, Progress in Implementing 2011

6 PBNDS Standards and DHS PREA Requirements at Detention Facilities app. D at 15 (Jan. 17,

7 2017) (hereinafter “Progress in Implementing Requirements at Detention Facilities”),

8 https://www.dhs.gov/sites/default/files/publications/ICE%20-

9 %20Progress%20in%20Implementing%202011%20PBNDS%20Standards.pdf.

10

29. The stated purpose of Section 5.6 of the 2011 PBNDS on Telephone Access is to

11 “ensure[] that detainees may maintain ties with their families and others in the community, legal

12 representatives, consulates, courts and government agencies by providing them reasonable and

13 equitable access to telephone services.”

14

30. The “Expected Outcomes” of the 2011 PBNDS include, inter alia, that detained

15 individuals shall:

16

a. have reasonable and equitable access to reasonably priced telephone services;

17

b. be granted reasonable and appropriate telephone accommodations for hearing or

18

speech disabilities;

19

c. be able to communicate effectively with their legal counsel;

20

d. have private, confidential communications with attorneys;

21

e. be able to make free calls to certain free legal service providers and government

22

agencies;

23

f. be permitted to make free calls to family and others assisting with legal

24

proceedings, if indigent and representing themselves pro se;

25

g. have access to telephones maintained in proper working order; and

26

h. be provided instructions on telephone use in one’s own language, including rare

27

languages.

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1

31. The “Expected Practices” of the 2011 PBNDS include, inter alia, that facilities

2 shall:

3

a. provide at least one telephone for every ten detained individuals;

4

b. post a list of calling rates in each housing unit;

5

c. inspect telephones daily and repair service promptly, including ensuring that the

6

free calls function;

7

d. provide detained individuals with current pro bono legal service information; and

8

e. provide confidential, unmonitored calls with legal representatives.

9

32. The 2011 PBNDS makes clear that Defendants “may not limit a detainee’s

10 attempt to obtain legal representation. Full telephone access shall be granted in order for a

11 detainee to contact… legal representatives, … government offices to obtain documents relevant

12 to his/her immigration case; …immediate family…” Furthermore, “[f]ree and direct calls shall

13 be easily accessible.” Detained individuals shall be able to make legal calls “without being

14 overheard by staff or other detainees.”

15 Defendants’ Denial and Restriction of Private Telephone Access Deprive Plaintiffs of 16 Confidential Communications with Counsel
33. Defendants provide no way for Plaintiffs to communicate with counsel or 17
prospective counsel confidentially, depriving Plaintiffs of the attorney-client privilege. Cf. 2011 18
PBNDS at 364 (facilities shall ensure privacy for legal calls and may do so by installing privacy 19
panels, placing telephones in locations where conversations are not readily overheard, or by 20
providing detained clients access to office telephones). Neither do Defendants enable Plaintiffs 21
any privacy whatsoever when making other sensitive calls. Instead, Defendants require Plaintiffs 22
to make calls in the presence of detention officers and other detained individuals. 23
34. ICE has acknowledged that it refuses to accommodate confidential legal calls. In 24
response to an April 9, 2020 request from a non-profit legal services provider to personnel at 25
Otero to schedule confidential legal calls with two detained individuals, Otero responded four 26
days later that “the facility cannot provide a confidential place for a legal call at this time.” 27

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1 Again, on April 23, 2020, personnel at Otero wrote, “[t]here is no place for them to have a

2 confidential call.”

3

35. Detention officers at El Paso and Otero have, on occasion, permitted Plaintiffs to

4 use the officers’ personal cell phones in order to place non-confidential calls to their attorneys.

5 During these calls, often made in the detention officers’ offices, detention officers sit next to

6 Plaintiffs while on calls with attorneys, destroying attorney-client privilege and making Plaintiffs

7 feel uncomfortable having legally necessary candid discussions. To compound the lack of

8 privacy, often the calls are on speaker phone and the detention officers’ cell phones log data

9 from the call, such as the phone number and duration of call. Beyond destroying the attorney-

10 client privilege, this practice has been entirely discretionary and is at the whims of the individual

11 officers. In fact, as of April 14, 2020, Wayne Cox, the Assistant Field Office Director for Otero

12 reported to a nonprofit legal services provider that personnel at Otero “will no longer set up calls

13 with detainees.”

14

36. In both El Paso and Otero, Defendants have installed some privacy panels around

15 telephones, called the “pods.” Although these “pods” purport to maintain confidentiality, they

16 only offer simple barriers that do not actually ensure privacy as attorneys can still hear

17 background noise from detention officers in the area. Furthermore, the call quality in the “pods”

18 is remarkably bad, which can lead to communication difficulties between attorney and client.

19 The alternative to the “pods” system is for Plaintiffs to use their own funds to place a call within

20 their housing units. Although the quality of the calls is sometimes better, Plaintiffs face the

21 burden of paying for these calls and there is absolutely no attorney-client privilege, as other

22 detained individuals and detention officers surround the caller.

23 Defendants’ Imposed Costs Deny and Restrict Plaintiffs’ Telephone Access

24

37. Plaintiffs’ ability to locate, retain and communicate with counsel, and to gather

25 and present evidence in their removal proceedings, is further restricted by the fact that the

26 telephone services provided by Defendants for calls from El Paso and Otero are unreasonably –

27 and often prohibitively – expensive.

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1

38. Personnel at Otero have admitted that the facility does not provide free legal calls.

2 In an email dated April 23, 2020, in response to a request to provide detained individuals with

3 free legal calls, ICE personnel wrote, “IT DOESN’T MATTER IF IT’S A LEGAL CALL THEY

4 ARE NOT FREE.” (emphasis in original).

5

39. For paid calls, Talton and Telmate are the phone providers for Otero and El Paso,

6 respectively. Talton and Telmate advertise that calling rates range from $0.09 to $0.14 to

7 connect and $0.09 to $0.14 a minute thereafter, and that additional taxes and surcharges may

8 apply. In practice, attorneys representing clients detained in Otero have found that calls cost at

9 least $0.20 per minute.

10

40. Pursuant to Talton and Telmate’s policies, as endorsed and permitted by

11 Defendants, a collect call from Otero is automatically disconnected after one hour and a collect

12 call from El Paso is automatically disconnected after 45 minutes. Thus, an hour-long call from

13 Otero ranges in cost from $5.19 to $8.15 and a 45-minute call from El Paso ranges in cost from

14 $3.89 to $6.11.

15

41. The costs from these calls can tally up quickly and are prohibitively expensive for

16 many members of the class who are indigent. Given the significant expense, some Plaintiffs

17 have been forced to choose between calling a loved one or calling their attorney. Cf. 2011

18 PBNDS at 360 (facilities shall provide access to “reasonably priced telephone services”).

19

42. For a video teleconference, the expense only increases: the call can cost $80.00

20 for a three-hour session.

21

43. Since on or about mid-April 2020, attorneys representing clients detained in Otero

22 have been told that Talton is providing 10-minute-long free legal calls for detained individuals

23 on Wednesdays. A 10-minute weekly legal call is not at all sufficient to prepare a legal defense

24 or to exercise one’s right to communicate with counsel. Furthermore, whether these 10-minute-

25 long weekly free calls will be honored is yet to be seen.

26

44. Defendants’ poor telephone infrastructure exacerbates costs to Plaintiffs. The

27 phone systems at Otero and El Paso regularly malfunction and fail to connect or disconnect mid-

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1 call for technical reasons, requiring Plaintiffs to pay a new connection fee to continue their

2 conversations. Calls from El Paso often spontaneously disconnect after ten minutes. Likewise,

3 when detention officers at Otero and El Paso arbitrarily order Plaintiffs to end their calls

4 prematurely – sometimes after just five minutes – they are forced to make additional phone calls

5 and incur additional costs to have complete and necessary discussions with their attorneys.

6 When Plaintiffs must restart conversations with attorneys, efficiency is lost, prolonging the time

7 and cost of the communications.

8

45. In most detention centers nationwide (but not Otero or El Paso), ICE – through its

9 telephone contractor – operates a free call platform whereby an attorney can add his or her

10 number to a detained client’s account to enable the detained client to call counsel for free from

11 the phones in the housing units. Because Defendants have not implemented this free call

12 platform in either Otero or El Paso, Plaintiffs cannot make free legal calls to their counsel.

13

46. Defendants make no accommodations for indigent Plaintiffs in El Paso and Otero

14 to make free calls, including calls to legal counsel. Cf. id. at 363 (“Indigent detainees are

15 afforded the same telephone access and privileges as other detainees.”). In El Paso, Plaintiffs are

16 required to have sufficient funds on a calling card to place a call. In Otero, Plaintiffs can make

17 telephone calls only if they have the requisite funds in their commissary accounts. Because of

18 the lack of accommodations, some non-profit legal services have begun to use their own funds to

19 help their clients pay for the prohibitively expensive phone calls.

20 Defendants’ Denial and Restriction of Plaintiffs’ Telephone Access Prevent Counsel from 21 Communicating with Their Clients
47. Defendants do not permit individuals held in ICE custody to receive incoming 22
telephone calls, even from counsel. See El Paso Processing Center, available at 23
https://www.ice.gov/detention-facility/el-paso-processing-center (last visited March 30, 2020) 24
(“Detainees cannot receive incoming calls.”); Otero County Process Center, available at 25
https://www.ice.gov/detention-facility/otero-county-processing-center (last visited March 30, 26
2020) (same). Instead, Defendants represent that they will convey “urgent” messages to detained 27

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1 individuals. Id. In practice, Defendants have questioned legal counsel as to whether calls were

2 “really” urgent and do not consistently deliver messages. Cf. 2011 PBNDS at 390 (facilities

3 “shall take and deliver telephone messages to detainees as promptly as possible”).

4

48. The telephone systems Defendants have put in place in El Paso and Otero allow a

5 call to be completed only if a live person answers the telephone and accepts the call (by pressing

6 a number in response to a prompt), even if a prepaid account has been established. If a recorded

7 greeting, such as a voicemail prompt, begins to play, Plaintiffs cannot leave a message. As such,

8 Plaintiffs cannot leave voicemail messages even when they are willing and able to pay through

9 calling cards or commissary accounts (though calls to legal counsel should be free).

10

49. Because of Defendants’ telephone infrastructure, Plaintiffs are also unable to

11 complete calls to offices that use voicemail trees, i.e., automated systems that require selecting a

12 number on the phone’s keypad to reach a live person. As the El Paso and Otero calling systems

13 currently function, Plaintiffs’ calls are automatically disconnected when voicemails or automated

14 systems respond. Calls may only be completed when a human receives the call and accepts the

15 call. Many organizations and law firms that Plaintiffs seek to access use voicemail trees in the

16 normal course of business before the caller can access a live person.

17

50. Three-way calls serve a critical function for communications between detained

18 clients and their attorneys requiring translation by third-party translators. Three-way calls are

19 not available in Otero. As such, if a translator is needed, the attorney needs to have the translator

20 on-site or risk being unable to communicate with their client.

21

51. At times, El Paso and Otero officials hear requests from counsel to set up legal

22 calls with Plaintiffs. The practice of accepting and conveying such requests is uncertain and

23 inconsistent, and ICE officers often do not pass along these critical messages to Plaintiffs, further

24 depriving them of attorney-client communications. The time between requesting a call and

25 receiving a call with a client has, in practice, taken up to two weeks, which makes calls requested

26 on an urgent basis entirely futile. In an email from ICE personnel dated April 27, 2020, an Otero

27

14

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 16 of 31

1 official referred to the ICE-facilitated legal calls as “one time courtesy call[s].” Thus, they

2 cannot be relied upon as a mode of communication between counsel and Plaintiffs.

3

52. Since the beginning of April 2020, officials from Otero have ceased arranging

4 legal calls for Plaintiffs, even when repeatedly implored by counsel to do so. Instead, Otero

5 officials have told counsel to visit in person, which – in the COVID-19 era – requires personal

6 protective equipment that many attorneys do not have access to. Moreover, many attorneys are

7 located too far from Otero for physical visitation to be feasible.

8

53. Non-profit legal service providers have sought to fill the gap in telephone access

9 between counsel and detained clients. These providers have established a system of collecting

10 pro bono attorney contact information and delivering it to Defendants. Defendants have

11 represented that they would share this attorney contact information with respective clients, but do

12 not always do so in practice.

13 At Best, Defendants Provide Plaintiffs with Inconsistent, Confusing, and Insufficient 14 Telephone Access
54. Defendants’ telephone infrastructure is inadequate and defective. The telephones 15
in the housing units do not always function. C.f. 2011 PBNDS at 386 (“[e]ach facility shall 16
maintain detainee telephones in proper working order”). When operable, the telephones suffer 17
from poor sound quality and are located in places with excessive background noise. Poor sound 18
quality and excessive background noise hampers all calls but is particularly detrimental to 19
telephone communications (1) involving complex legal topics where precision and clarity is 20
essential for consent and understanding; (2) facilitated by a language interpreter; and (3) between 21
counsel and a detained client paying by the hour. For all calls, a great deal of time is wasted 22
trying to understand one another over the noise. 23
55. Plaintiffs who speak rare languages, who have hearing disabilities, or who cannot 24
read face special difficulties using the phone systems in the facilities. Instructions are generally 25
unavailable in rare languages. ICE and facility officers routinely ignore or deny requests for 26

27

15

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 17 of 31
1 assistance from these Plaintiffs, often instructing them to obtain advice and assistance from other
2 detained individuals.
3 Defendants’ Denial of Plaintiffs’ Right to Legal Representation and Other Resources 4 Critical to Support Their Cases
56. In Otero, Defendants deny non-profit legal services access to potential clients by 5
refusing calls for the purpose of legal intake. Defendants refuse to organize such calls, claiming 6
that, in order to set up a call, they require a Form G-28, Notice of Entry or Appearance as 7
Attorney or Accredited Representative. This would require attorneys to enter into an attorney8
client relationship without even speaking to the prospective client to assess their case. Given that 9
no attorney could ethically engage in that practice, non-profit legal services are unable to 10
communicate with potential clients. 11
57. Defendants’ denial and restriction of telephone access to individuals in ICE 12
custody also prevent Plaintiffs, and particularly Plaintiffs who must represent themselves, from 13
obtaining and presenting evidence necessary to obtain a fair hearing. This includes evidence that 14
would entitle them to release from detention, relief from removal, or immigration benefits from 15
USCIS that would terminate deportation proceedings. Plaintiffs seeking custody redetermination 16
from an immigration judge may need to contact character witnesses and obtain documentary 17
evidence of their good works in the community, completion of rehabilitation programs, or the 18
financial hardship their detention imposes on their United States citizen children. Defendants’ 19
restriction and denial of telephone access make it difficult or impossible for Plaintiffs to obtain 20
this documentation while held in ICE custody. 21
58. Defendants’ restriction and denial of telephone access not only undermines 22
Plaintiffs’ access to counsel but also impedes, if not entirely prevents, their ability to seek non23
immigration attorney assistance, including to reach out to attorneys, organizations, or family 24
members to report harassment or abuse in the detention facility by other detained individuals or 25
ICE officers. 26
27
16

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 18 of 31

1 There Are No Viable Alternatives to Telephone Communication

2

59. Without telephone access to Plaintiffs, attorneys, family members and others who

3 might assist in gathering evidence necessary to defend removal charges or seek relief from

4 removal can contact Plaintiffs only by postal mail or by in-person visitation. Defendants have

5 not made electronic mail available to detained clients in El Paso and Otero.

6

60. Legal correspondence to and from ICE custody can take 5-10 business days in

7 each direction. Letters are inspected to ensure that they are indeed legal mail and do not contain

8 contraband. Some Plaintiffs cannot communicate by mail because they cannot read or write in

9 any language.

10

61. Many Plaintiffs are represented by pro bono attorneys located nationwide and the

11 geographical distance between them is significant. Overcoming that distance requires hundreds

12 to thousands of dollars and up to several hours per visit. For example, in order for a pro bono

13 attorney based in New York to physically visit a detained client in El Paso, he or she would have

14 to take a 1+ stop flight totaling approximately 16 roundtrip travel hours and costing upwards of

15 $400. To visit a detained client in Otero, a New York-based attorney would be forced to add the

16 time and expense of renting a car and driving from El Paso to Otero. Even an in-state attorney

17 working in Santa Fe, for example, would have to drive nearly five hours in each direction to visit

18 a client in Otero.

19

62. With COVID-19-related mandated remote working and social distancing policies,

20 in-person visitation is all but impossible. By not offering reasonable telephone infrastructure to

21 Plaintiffs and instead requiring in-person visitation for Plaintiffs to exercise their constitutional

22 and statutory rights, Defendants are jeopardizing the public health and flouting the government’s

23 own policies.

24

63. Moreover, transfers of detained individuals amongst detention facilities, including

25 transfer from Otero and El Paso, is widespread, creating further difficulties in consistent

26 communications between detained individuals and counsel. Even if a detained individual is

27 successful in retaining a local attorney, if he or she is transferred, that attorney is, obviously, no

17

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 19 of 31

1 longer local. This emphasizes, all the more, the inability to rely on local visitation during the

2 course of legal representation. Exasperating the telephone access issues, transfers force Plaintiffs

3 and their attorneys to renew their efforts to navigate the impediments Defendants have put in

4 place just to exercise the constitutional right to legal representation.

5 Prolonged Incarceration and Dramatically Decreased Likelihood of Relief

6

64. Defendants’ denial and restrictions on telephone access in these circumstances

7 deny or severely limit Plaintiffs’ statutory and constitutional rights to retain counsel, to

8 communicate with retained counsel, to gather and present evidence, to obtain a fair hearing, to

9 seek relief from persecution and torture, and to apply for immigration benefits from USCIS in

10 seeking relief from removal, with a dramatic and devastating impact on Plaintiffs.

11

65. Defendants’ restrictions on and denial of telephone access to individuals held in

12 ICE custody contributes to prolonging Plaintiffs’ incarceration. For instance, attorneys have had

13 to postpone crucial hearings before an immigration judge because, despite multiple and repeated

14 attempts to contact Plaintiffs, the Defendants did not provide for such contact.

15

66. Restricted telephone access between Plaintiffs and counsel increases the time

16 Plaintiffs are incarcerated before counsel can move for and coordinate bond determination and

17 redetermination hearings. For Plaintiffs that face discrimination and abuse while detained, and

18 for Plaintiffs separated from minor children, this prolonged incarceration is especially

19 distressing.

20

67. Defendant’s restrictions on Plaintiffs’ telephone access prevent many Plaintiffs

21 from retaining counsel or obtaining evidence. The subsequent lack of representation and missing

22 critical evidence at the bond hearings can lead to denial of bond, thereby prolonging detention.

23

68. To illustrate the disparity, in Fiscal Year 2019, 11.5% of individuals with cases

24 pending in Immigration Court were detained. Of those detained, 36.3% were represented by

25 counsel, and of those, 12.6% were granted relief. Of those detained and not represented by

26 counsel, just 4.11% were granted relief. See TRAC Immigration Data,

27 https://trac.syr.edu/phptools/immigration/nta/ (last visited: March 31, 2020).

18

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 20 of 31

1

69. In Fiscal Year 2018, 18% of individuals with cases pending in Immigration Court

2 were detained. Of those detained, 34.7% were represented by counsel, and of those, 12.9% were

3 granted relief. Of those detained and not represented by counsel, just 1.85% were granted relief.

4 See id.

5

ALLEGATIONS RE: INDIVIDUAL PLAINTIFFS

6 Plaintiff Franklin Gomez Carranza

7

70. Plaintiff Franklin Gomez Carranza is a 21-year-old native and citizen of

8 Honduras. He currently is in ICE custody at Otero and has pending removal proceedings before

9 the El Paso Immigration Court. He fled his home country because he feared he would be

10 persecuted for his sexuality and is seeking asylum under 8 U.S.C. § 1158. Ever since being

11 detained, Plaintiff Gomez Carranza has had great difficulty communicating with his counsel

12 because of ICE’s unconstitutional restrictions on his telephone access in El Paso and Otero.

13

71. In October 2019, shortly after arriving to the United States, Plaintiff Gomez

14 Carranza was detained in ICE custody at El Paso. At El Paso, Plaintiff Gomez Carranza faced

15 limited access to telephones, including extremely poor connectivity issues. Thus, Plaintiff

16 Gomez Carranza’s attorney found it easier to communicate with his client through in-person

17 visitations at El Paso. But this was before the COVID-19 outbreak. Since then, the only viable

18 way for Plaintiff Gomez Carranza and his attorney to communicate is by telephone.

19

72. For undisclosed reasons, on March 20, 2020 – five days prior to Plaintiff Gomez

20 Carranza’s final removal hearing – ICE transferred him from El Paso to Otero. Plaintiff Gomez

21 Carranza’s attorney was not notified of the transfer and thus wasted days attempting to reach his

22 client via telephone at Otero to prepare for the hearing, without success.

23

73. On March 23, 2020, two days before his final removal hearing, Plaintiff Gomez

24 Carranza managed to call his attorney. On this call, Plaintiff Gomez Carranza sought to prepare

25 for his final removal hearing, because, without an adequate defense, he risked being removed to

26 Honduras, where he would be persecuted for his sexuality. Halfway through their legal call, an

27

19

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 21 of 31

1 ICE detention officer arbitrarily ordered Plaintiff Gomez Carranza to end the call. The call did

2 not resume.

3

74. On March 24, 2020, one day before his final removal hearing, Plaintiff Gomez

4 Carranza’s attorney made a request to ICE for his client to call him at a scheduled time. ICE

5 permitted Plaintiff Gomez Carranza to call his counsel 40 minutes after the scheduled time.

6 Plaintiff Gomez Carranza had no privacy or confidentiality on the legal call. During the call, an

7 ICE detention officer interrupted Plaintiff Gomez Carranza, telling him to get off the phone

8 because he had to ask him something. Plaintiff Gomez Carranza thus ended his legal call, and

9 hearing preparation, prematurely. The ICE detention officer then asked Plaintiff Gomez

10 Carranza if the call was for legal purposes. Plaintiff Gomez Carranza confirmed that it was, but

11 the detention officer refused to permit him to continue the call.

12

75. Later that day, Plaintiff Gomez Carranza called his attorney back from a

13 telephone in the housing unit, which required him to use his own funds and deprived him of any

14 privacy or attorney-client privilege. Because Plaintiff Gomez Carranza is indigent, he was only

15 able to speak with his attorney for half an hour before his funds ran out. Due to the lack of

16 privacy and fear of being overheard by other detained individuals and ICE personnel, Plaintiff

17 Gomez Carranza was unable to speak candidly about his asylum case with counsel. As such,

18 when referring to sensitive information, Plaintiff Gomez Carranza used hushed tones so that

19 guards and other detained individuals could not hear. This, coupled with the background noise

20 in the housing units, significantly interfered with the quality of the call. Due to the deficient

21 telephone access, Plaintiff Gomez Carranza was unable to prepare adequately for his final

22 removal hearing and his counsel had to file a Motion to Continue the hearing. The immigration

23 court granted the Motion for a Continuance, rescheduling Plaintiff Gomez Carranza’s final

24 removal hearing for April 8, 2020. Due in part to the serious concerns regarding access to

25 counsel caused by ICE’s failure to provide adequate telephone access, Plaintiff Gomez

26 Carranza’s counsel objected to the rescheduled final hearing date and requested that the court

27 schedule a status conference instead of the final removal hearing. The immigration court then

20

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 22 of 31

1 moved the next hearing date to May 27, 2020. Because of the constraints that Defendants placed

2 upon Plaintiff Gomez Carranza’s ability to communicate with his attorney, his hearing has been

3 delayed for two months, causing prolonged detention in a highly unsafe environment with

4 limited to no access to counsel for an additional two months.

5

76. Plaintiff Gomez Carranza’s telephone access experiences, corresponding legal

6 issues, and remedies sought are shared by and aligned with the approximately 1,600 detained

7 individuals in Otero and El Paso.

8 Plaintiff Ruben Torres Jauregui

9

77. Plaintiff Ruben Torres Jauregui is a 29-year-old native and citizen of Cuba. He

10 currently is in ICE custody at Otero and has pending removal proceedings before the El Paso

11 Immigration Court. He fled his home country because he feared he would be persecuted for

12 speaking out against the corruption within the Cuban government and is seeking asylum under 8

13 U.S.C. § 1158. Plaintiff Torres Jauregui’s fears of persecution are based in part on his uncle’s

14 eight-year imprisonment by the Cuban government for similar conduct.

15

78. Since April 14, 2019, Plaintiff Torres Jauregui has been detained in ICE custody,

16 and has been housed at Otero since August 2019. Ever since being detained at Otero, Plaintiff

17 Torres Jauregui has had great difficulty communicating with his counsel because of ICE’s

18 unconstitutional restrictions on his telephone access.

19

79. Plaintiff Torres Jauregui had a final merits hearing on his asylum petition

20 scheduled for April 1, 2020. In the two weeks leading up to Plaintiff Torres Jauregui’s hearing,

21 his attorney attempted to set up telephone calls with him in order to prepare his case.

22 Specifically, on March 15, 2020, his attorney requested that personnel at Otero set up

23 confidential legal phone calls for March 17, 2020 and March 18, 2020. Plaintiff Torres

24 Jauregui’s attorney received a call on March 17, 2020, but not on March 18, 2020, and the single

25 phone call did not provide an adequate amount of time to prepare Plaintiff Torres Jauregui for his

26 final merits hearing. Again, on March 24, 2020, his attorney requested confidential legal phone

27

21

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 23 of 31

1 calls for March 26, 2020, March 27, 2020, and March 30, 2020. Plaintiff Torres Jauregui was

2 permitted a legal call only on March 26, 2020.

3

80. Plaintiff Torres Jauregui’s attorney submitted another request asking for

4 personnel at Otero to set up a confidential phone call with her client for March 30, 2020 and

5 March 31, 2020. On March 30, 2020, an ICE deportation officer informed Plaintiff Torres

6 Jauregui’s attorney that the phone system at Otero was not working and suggested that the

7 attorney visit her client in person if she wished to speak with him – despite COVID-19 concerns.

8 Because Plaintiff Torres Jauregui’s attorney lacked the personal protective equipment to visit her

9 client in person, she renewed her request for a legal call. The ICE deportation officer offered to,

10 “as a courtesy,” set up a 45-minute legal call. The officer explained that ICE could not permit

11 legal calls in Otero to last longer than 45 minutes because ICE deportation officers needed the

12 phones “for their daily work purposes,” and ICE “cannot have the phones [in Otero] tied up for 2

13 hours.” In the alternative, Plaintiff Torres Jauregui could pay out of pocket to call his attorney

14 from the phones in the housing units, which lack privacy and are recorded by ICE, thus

15 destroying the attorney-client privilege.

16

81. Because Plaintiff Torres Jauregui was still unable to meaningfully prepare for his

17 hearing scheduled in two days, his attorney re-requested a call on March 30, 2020 for the

18 following day. An ICE deportation officer responded, stating that due to “availability, COVID-

19 19 measures, and the fact that your client has already received free phone calls this past week we

20 will be unable to accommodate your request.” Because Plaintiff Torres Jauregui was unable to

21 have a meaningful preparatory call with his counsel, he did not feel prepared for his final merits

22 hearing. As such, his attorney filed a Motion for Continuance and Plaintiff Torres Jauregui’s

23 final merits hearing was rescheduled to May 6, 2020.

24

82. Due to the constraints that Defendants placed upon Plaintiff Torres Jauregui’s

25 ability to communicate with his counsel – including the limited availability of free legal calls, a

26 lack of privacy, deprivation of attorney-client privilege, and insufficient duration and amount of

27

22

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 24 of 31

1 legal calls – his hearing has been delayed for an additional month, and, thus, his detention has

2 been prolonged by at least an additional month in a highly unsafe environment.

3

83. Plaintiff Torres Jauregui’s telephone access experiences, corresponding legal

4 issues, and remedies sought are shared by and aligned with the approximately 1,600 detained

5 individuals in Otero and El Paso.

6

CLASS ALLEGATIONS

7

84. The Individual Plaintiffs bring this action on behalf of themselves and all others

8 similarly situated under Rule 23 of the Federal Rules of Civil Procedure. They propose the

9 following Class:

10 All current and future adults who are or will be detained in immigration custody
11 at the El Paso Service Processing Center and the Otero Processing Center.
12

13

85. Defendants have engaged in a common course of conduct that has denied

14 constitutional and statutory rights on a classwide basis, including by promulgating,

15 implementing, maintaining and enforcing the policies and practices that deny and restrict

16 Plaintiffs’ telephone access at El Paso and Otero, and by failing to take actions necessary to

17 allow Plaintiffs to consult with or obtain representation by counsel, to gather and present

18 evidence, to petition government agencies to obtain immigration benefits and documents

19 necessary to seek relief from removal, and to obtain a fair hearing.

20

86. Plaintiffs seek injunctive and declaratory relief only, on grounds that apply

21 broadly to the Class as a whole.

22

87. Members of the Class are so numerous that joinder is impracticable. Plaintiffs are

23 informed and believe, and on that basis allege, that El Paso and Otero hold a combined total of

24 approximately 1,600 detained individuals on an average day.

25

88. Joinder is also impracticable because membership in the Class is fluid, as detained

26 individuals are frequently released from custody, transferred to other regions of the country, or

27

23

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 25 of 31

1 removed from the United States. The Class includes individuals who will be subjected to

2 Defendants’ policies, practices, and omissions in the future and therefore cannot be joined.

3

89. There are numerous questions of law and fact common to the Class, which

4 predominate over any individual questions, including:

5

(a) the extent to which Defendants’ policies, practices and omissions denying

6

and restricting telephone access interfere with Plaintiffs’ ability to consult with and retain

7

counsel; communicate effectively with counsel; and gather information and evidence in

8

support of their claims, defenses, and applications for relief;

9

(b) whether Defendants’ policies, practices and omissions in denying and

10

restricting telephone access violate Plaintiffs’ (i) right to be represented by counsel, (ii)

11

right to a fair hearing, and (iii) right to gather and present evidence, under the Fifth

12

Amendment Due Process Clause, the INA and its implementing regulations, and the

13

APA; and (iv) right to obtain information, documents, and immigration benefits that can

14

provide relief from removal under the First Amendment’s Petition Clause; and

15

(c) whether Defendants’ policies, practices and omissions violate the

16

detention standards promulgated by ICE with respect to telephone access.

17

90. The Individual Plaintiffs are members of the Proposed Class, subjected to

18 telephone access policies and practices that deny, violate and impair the constitutional and

19 statutory rights of the Class as a whole.

20

91. The Individual Plaintiffs will fairly and adequately represent the interests of the

21 class. Fed. R. Civ. P. 23(a)(4). They seek relief identical to the relief sought by all Class

22 members and have no interests adverse to other members of the Class. Plaintiffs are represented

23 by pro bono counsel who are experienced in federal class action and civil rights litigation, and

24 will adequately represent the interests of the class.

25

92. A class action is superior to all other available methods for adjudicating this

26 controversy, and is manageable, because:

27

24

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 26 of 31

1

(a) Defendants are acting and refusing to act on grounds generally applicable

2

to the Class;

3

(b) many Class members are unaware of their legal rights, and are unable to

4

obtain individual counsel due to the conduct alleged herein;

5

(c) prosecution of individual actions would be impossible because individual

6

Class members would not remain in ICE custody pending removal proceedings long

7

enough to prosecute such actions to a conclusion;

8

(d) even if it were possible, prosecution of separate actions by individual

9

Class members would be inefficient, create a risk of conflicting or inconsistent

10

adjudications, and might, as a practical matter, be dispositive of the interests of individual

11

members of the Class;

12

(e) by virtue of Defendants’ roles in promulgating, implementing, enforcing,

13

and in failing to promulgate, implement and enforce detention standards relating to

14

telephone access for Class members; and

15

(f) the injunctive and declaratory relief sought herein will enable Defendants to

16

formulate and implement measures necessary to address and remedy the constitutional,

17

statutory, and regulatory violations resulting from denial and restriction of telephone

18

access, without undue intrusion on legitimate governmental interests.

19

DECLARATORY RELIEF ALLEGATIONS

20

93. An actual and substantial controversy exists between Plaintiffs and Defendants as

21 to their respective legal rights and duties with respect to Defendants’ policies, practices and

22 omissions in denying and restricting telephone access to the Class. Plaintiffs contend that

23 Defendants’ policies, practices and omissions alleged herein violate their constitutional and

24 statutory rights as alleged in the foregoing paragraphs. Defendants deny that their policies,

25 practices and omissions violate Plaintiffs’ constitutional, statutory, and regulatory rights, and

26 intend to continue such conduct.

27

25

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 27 of 31

1

FIRST CLAIM FOR RELIEF

2

Right to Representation of Counsel

(Fifth Amendment Due Process Clause; 8 U.S.C. §§ 1362; 1229a(b)(4)(A); 5 U.S.C. §

3

555(b); 8 C.F.R. § 1003.16(b); 8 C.F.R. § 1292.5(b))

4

94. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this

5 reference.

6

95. The Due Process Clause of the Fifth Amendment guarantees Plaintiffs the right to

7 representation of counsel, at no expense to the government.

8

96. Inherent in the right to representation of counsel is the right to communicate with

9 counsel.

10

97. Plaintiffs have a statutory right to representation of counsel at no expense to the

11 government under the INA. 8 U.S.C. §§ 1362; 1229a(b)(4)(A).

12

98. Plaintiffs also have a statutory right to representation of counsel at no expense to

13 the government under the APA. 5 U.S.C. § 555(b).

14

99. Plaintiffs have a regulatory right to representation by an attorney of his or her

15 choice at no expense to the government under the regulations of the Executive Office for

16 Immigration Review. 8 C.F.R. § 1003.16(b); 8 C.F.R. § 1292.5(b).

17

100. Defendants have violated Plaintiffs’ right to representation of counsel by denying

18 and severely restricting Plaintiffs’ ability to make telephone calls to locate, consult with, and

19 retain counsel, and Plaintiffs’ ability to communicate with retained counsel.

20

101. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

21 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any

22 further injury.

23

SECOND CLAIM FOR RELIEF

24

Right to Full and Fair Hearings

25 (Fifth Amendment Due Process Clause; 8 U.S.C. § 1229a(b)(4)(B); 8 U.S.C. § 1226(a))

26

102. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this

27 reference.

26

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 28 of 31

1

103. The Due Process Clause of the Fifth Amendment guarantees Plaintiffs the right to

2 a full and fair hearing in removal proceedings, including a reasonable opportunity to gather and

3 present evidence.

4

104. Plaintiffs have a statutory right to gather and present evidence in connection with

5 their removal proceedings under the INA. 8 U.S.C. § 1229a(b)(4)(B).

6

105. Plaintiffs also have a right to a full and fair custody redetermination hearing. 8

7 U.S.C. § 1226(a).

8

106. Defendants have violated Plaintiffs’ right to a full and fair hearing by denying and

9 severely restricting Plaintiffs’ ability to make telephone calls to gather information and obtain

10 evidence in support of their immigration cases.

11

107. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

12 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any

13 further injury.

14

THIRD CLAIM FOR RELIEF

15

Right to Petition the Government for Redress of Grievances

16

(First Amendment Petition Clause)

17

108. Plaintiffs reallege the foregoing paragraphs and incorporate them herein by this

18 reference.

19

109. The First Amendment guarantees Plaintiffs the right to petition the government

20 for redress of grievances, including the right to petition a federal agency for immigration benefits

21 that, if granted, would result in termination of their removal proceedings.

22

110. Defendants have violated Plaintiffs’ right to petition the government by denying

23 and severely restricting the telephone access necessary to seek legal representation and obtain

24 documents and evidence in support of their applications for immigration benefits.

25

111. Plaintiffs have suffered and will imminently suffer irreparable injury as a result of

26 Defendants’ policies, practices, and omissions and are entitled to injunctive relief to avoid any

27 further injury.

27

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 29 of 31

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs respectfully request that the Court:

3

1. Issue an order certifying this action to proceed as a class action pursuant to Rule

4 23 of the Federal Rules of Civil Procedure.

5

2. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the Federal

6 Rules of Civil Procedure.

7

3. Issue a judgment declaring that Defendants’ policies, practices, acts, and

8 omissions described herein violate Plaintiffs’ rights under the United States Constitution and the

9 Immigration and Nationality Act.

10

4. Enjoin Defendants, their subordinates, agents, employees, and all others acting in

11 concert with them from subjecting Plaintiffs to the unlawful conditions described herein, and

12 issue an injunction sufficient to remedy the violations of Plaintiffs’ constitutional and statutory

13 rights, including:

14

a. An order that Defendants comply with the Performance-Based National Detention

15

Standards;

16

b. An order that Defendants provide free, confidential legal calls and, for non-legal

17

calls, make reasonable accommodations for Plaintiffs who are indigent and cannot

18

afford to make calls, including international calls;

19

c. An order that Defendants establish an adequate process by which immigration

20

attorneys can schedule legal calls with Plaintiffs;

21

d. An order that Defendants afford Plaintiffs the ability to make private,

22

unmonitored, unrecorded calls with attorneys, without being overheard by other

23

detained individuals or staff;

24

e. An order that Defendants afford Plaintiffs the ability to have calls with attorneys

25

in a place of reasonable quiet, without obstructive background noise and poor

26

sound quality;

27

28

Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 30 of 31

1

f. An order that Defendants afford Plaintiffs the ability to penetrate automated

2

telephone voicemail trees to make legal calls;

3

g. An order that Defendants afford Plaintiffs the opportunity to leave voicemail

4

messages when making legal calls;

5

h. An order that Defendants provide adequate notice to Plaintiffs of the

6

communication options available to them; and

7

i. An order that Defendants provide accommodations for non-English proficient

8

Plaintiffs, illiterate Plaintiffs, and Plaintiffs with hearing and speech disabilities

9

that impact their access to legal calls.

10

5. Grant Plaintiffs their reasonable attorney fees and costs pursuant to the Equal

11 Access to Justice Act, 28 U.S.C. § 2412, and any other applicable law.

12

6. Grant such other relief as the Court deems just and proper.

13 Dated: May 4, 2020
14

ORRICK, HERRINGTON, & SUTCLIFFE LLP

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Case 1:20-cv-00424 Document 1 Filed 05/04/20 Page 31 of 31

1

/s/ R. David Hosp

2

R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP

3

222 Berkeley St. Ste 2000

4

Boston, MA 02116 Telephone: (617) 880-1886

5

Facsimile: (617) 880-1801

Email: dhosp@orrick.com

6

Paige Pavone

7

ORRICK, HERRINGTON & SUTCLIFFE, LLP

8

51 West 52nd Street

New York, NY 10019

9

Telephone: (212) 506-3604

Facsimile: (212) 506-5151

10

Email: ppavone@orrick.com

11

12

Attorneys for Plaintiffs

13

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 Case 2:20-cv-00424-GBW-KRS Document 4 Filed 05/18/20 Page 1 of 3

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

Paige Pavone

6 ORRICK, HERRINGTON & SUTCLIFFE, LLP

7

51 West 52nd Street New York, NY 10019

8 Telephone: (212) 506-3604 Facsimile: (212) 506-5151

9 Email: ppavone@orrick.com

10

11 Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF NEW MEXICO

15 FRANKLIN GOMEZ CARRANZA and 16 RUBEN TORRES JAUREGUI,

17

Plaintiffs,

18

v.

19 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
20 Defendants.
21

Case No. 20-CV-424
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

22

23

24

25

26

27

Case 2:20-cv-00424-GBW-KRS Document 4 Filed 05/18/20 Page 2 of 3

1

Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs respectfully request an order

2 certifying Franklin Gomez Carranza and Ruben Torres Jauregui to represent a class consisting of
3 all current and future detained individuals in the El Paso Service Processing Center and the Otero
4 County Processing Center.
5 For the reasons set forth in the memorandum of law and exhibits filed herewith, the
6
7 proposed class satisfies the numerosity, commonality, typicality, and adequacy of representation

8 requirements of Rule 23(a) and the requirements of Rule 23(b)(2). In addition, the undersigned

9 counsel is suitable for appointment as class counsel under Rule 23(g). Plaintiffs respectfully
10 request that this Court certify the proposed class and appoint undersigned counsel as counsel for 11
the class. 12

13 14 Dated: May 18, 2020

ORRICK, HERRINGTON, & SUTCLIFFE LLP

15 /s/ R. David Hosp

16 R. David Hosp

17

ORRICK, HERRINGTON & SUTCLIFFE, LLP

222 Berkeley St. Ste 2000

18

Boston, MA 02116

Telephone: (617) 880-1886

19

Facsimile: (617) 880-1801

20

Email: dhosp@orrick.com

21

Paige Pavone

ORRICK, HERRINGTON & SUTCLIFFE, LLP

22

51 West 52nd Street

23

New York, NY 10019 Telephone: (212) 506-3604

24

Facsimile: (212) 506-5151

Email: ppavone@orrick.com

25

26

Attorneys for Plaintiffs

27

1

Case 2:20-cv-00424-GBW-KRS Document 4 Filed 05/18/20 Page 3 of 3

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 18, 2020, a true and correct copy of the foregoing

3 PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS

4 COUNSEL was served with the Clerk of the Court by using the CM/ECF system, which

5 provided an electronic notice and electronic link of the same to all attorneys of record through

6 the Court’s CM/ECF system.

7 8 Dated: May 18, 2020

By: /s/ Paige Pavone

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

2

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 1 of 15

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

Paige Pavone

6 ORRICK, HERRINGTON & SUTCLIFFE, LLP

7

51 West 52nd Street New York, NY 10019

8 Telephone: (212) 506-3604 Facsimile: (212) 506-5151

9 Email: ppavone@orrick.com

10

11 Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF NEW MEXICO

15 FRANKLIN GOMEZ CARRANZA and 16 RUBEN TORRES JAUREGUI,

17

Plaintiffs,

18

v.

19 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
20 Defendants.
21

Case No. 20-CV-424
BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

22

23

24

25

26

27

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 2 of 15

1 2
I. 3 II. 4 5 6 7 III. 8 9 10 11 12 13 14 15 IV. 16 17 18 19 20 21 22 23 24 25 26 27

TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................. 1
BACKGROUND ............................................................................................................... 2
A. Defendants’ Policies and Practices Severely Restrict Plaintiffs’ Access to Counsel and Ability to Gather Evidence ............................................................... 2
B. Plaintiffs Suffer Prejudice, Injury, and Prolonged Detention as a Result of Defendants’ Unconstitutional Telephone Policies and Practices........................... 2
C. The Named Plaintiffs ............................................................................................. 3
ARGUMENT ..................................................................................................................... 3
A. The Proposed Class Satisfies the Requirements of Rule 23(a).............................. 4
1. The Proposed Class is So Numerous That Joinder Is Impracticable ......... 4
2. Questions of Law and Fact are Common to All Members of the Proposed Class ........................................................................................... 5
3. The Named Plaintiffs’ Claims are Typical of the Proposed Class They Seek to Represent ............................................................................. 6
4. Plaintiffs and Their Counsel Will Fairly and Adequately Protect the Interests of the Class ............................................................................ 7
B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2) ......................... 8
C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel Pursuant to Rule 23(g)(1)...................................................................................................... 9
CONCLUSION................................................................................................................ 10

i

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 3 of 15

1
2 Cases
3

TABLE OF AUTHORITIES

Page(s)

4

Access Now, Inc. v. PHC-Las Cruces, Inc., Civ. No. 09-1156 JCH/LAM, 2012 WL 13081445 (D.N.M. Feb. 10, 2012) ...................... 8, 9

5 Anderson Living Trust v. WPX Energy Prod., LLC,

6

306 F.R.D. 312 (D.N.M. 2015)................................................................................................ 4

7 Colo. Cross Disability Coal. v. Abercrombie & Fitch Co.,

765 F.3d 1205 (10th Cir. 2014) ............................................................................................... 6 8

Daye v. Cmty. Fin. Serv. Ctrs.,

9

LLC, 313 F.R.D. 147 (D.N.M 2016) ....................................................................................... 7

10 DG ex rel. Stricklin v. Devaughn,

11

594 F.3d 1188 (10th Cir. 2010) ............................................................................................... 8

12 Gianzero v. Wal-Mart Stores Inc.,

No. CIV 09-00656 REB/BNB, 2010 WL 1258071 (D. Colo. Mar. 29, 2010)

13

(Blackburn, J.).......................................................................................................................... 6

14 Gonzales v. City of Albuquerque,

15

No. CIV 09–0520 JB/RLP, 2010 WL 4053947, (D.N.M. Aug. 21, 2010) .............................. 4

16 In re Intelcom Grp. Sec. Litig., 169 F.R.D. 142 (D. Colo. 1996) (Daniel, J.)............................................................................ 5

17 Lopez v. City of Santa Fe,

18

206 F.R.D. 285 (D.N.M. 2002)................................................................................................ 7

19 Menocal v. GEO Grp., Inc.,

20

882 F.3d 905 (10th Cir. 2018) ................................................................................................. 6

21 Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999) ................................................................................................... 4

22 Payne v. Tri-State CareFlight, LLC,

23

332 F.R.D. 611 (D.N.M. 2019)........................................................................................ 4, 5, 6

24 Rex v. Owens, 585 F.2d 432 (10th Cir. 1978) ................................................................................................. 4
25

26

Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180 (10th Cir.2002) ................................................................................................ 7

27

ii

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 4 of 15

1 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 599 U.S. 393 (2010)................................................................................................................. 3
2

3

Shook v. Board of Cty. Comm’rs, 543 F.3d 597 (10th Cir. 2008) ................................................................................................. 8

4 Wal-Mart v. Dukes,

5

564 U.S. 338 (2011)................................................................................................................. 5

6 Statutes

7 8 U.S.C. § 1158.............................................................................................................................. 3

8 Fed. R. Civ. P. 23 ........................................................................................................................... 3
9 Fed. R. Civ. P. 23(a) .......................................................................................................... 3, 4, 7, 8
10 Fed. R. Civ. P. 23(a)(1).................................................................................................................. 4 11
Fed. R. Civ. P. 23(a)(2).................................................................................................................. 5 12
Fed. R. Civ. P. 23(a)(3).................................................................................................................. 6 13
Fed. R. Civ. P. 23(a)(4).................................................................................................................. 7 14
Fed. R. Civ. P. 23(b)(1).................................................................................................................. 8 15 16 Fed. R. Civ. P. 23(b)(2).......................................................................................................... 4, 8, 9
17 Fed. R. Civ. P. 23(b)(3).................................................................................................................. 8
18 Fed. R. Civ. P. 23(g)(1).................................................................................................................. 9
19 Fed. R. Civ. P. 65(d) .................................................................................................................. 8, 9

20

21

22

23

24

25

26

27

iii

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 5 of 15

1 I. INTRODUCTION

2

Individuals detained in the Otero County Detention Processing Center (“Otero”) and the

3 El Paso Service Processing Center (“El Paso”) must access free, confidential legal calls in order

4 to speak to their attorneys and to be able to effectuate their constitutional, statutory, and

5 regulatory rights in their immigration proceedings. This case challenges the federal

6 government’s systematic denial of such access.

7

Proposed class members (“Plaintiffs”) are individuals who are or will be detained in the

8 custody of Immigration and Customs Enforcement (“ICE”) at El Paso and Otero. ICE controls

9 the terms and conditions of Plaintiffs’ detention and their access to telephones. As set forth in

10 the Complaint, ICE has unreasonably and unconstitutionally deprived Plaintiffs of their access to

11 communicate with the outside world telephonically, including with their counsel or prospective

12 counsel. Because of ICE’s conduct and policies, Plaintiffs are unable to obtain or communicate

13 with counsel and gather evidence for the defense of their immigration cases – which for class

14 members is their only safeguard against the persecution they will suffer if involuntarily deported

15 to their country of origin. Plaintiffs cannot individually challenge ICE’s systematic denial of

16 telephone access, making this matter ideal for prosecution as a class action.

17

The core legal question – whether Defendants’ denial and restriction of telephone access

18 to detained individuals in Otero and El Paso violate Plaintiffs’ constitutional, statutory, and

19 regulatory rights to access counsel – is common to the entire class. The unconstitutional

20 restrictions on telephone access imposed by ICE are substantially similar in Otero and El Paso.

21 Critically, Franklin Gomez Carranza and Ruben Torres Jauregui (the “Named Plaintiffs”) may

22 not remain in ICE custody long enough to prosecute individual claims to a conclusion.

23 Certification of a class consisting of all current and future detained individuals in El Paso and

24 Otero thus provides the only viable means to adjudicate the underlying claims.

25

26

27

1

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 6 of 15

1 II. BACKGROUND1

2

A. Defendants’ Policies and Practices Severely Restrict Plaintiffs’ Access to

3 Counsel and Ability to Gather Evidence

4

Plaintiffs cannot receive incoming telephone calls or voicemail messages in either El

5 Paso or Otero. To make an outgoing call, Plaintiffs – including indigent Plaintiffs – must either:

6 (1) dial out from the housing unit phones, incurring the sometimes exorbitant cost of the call and

7 compromising privacy and confidentiality; or (2) rely on an ad hoc policy that certain ICE

8 officials may allow Plaintiffs to make a free call from a detention officer office phone or

9 personal cell phone, again compromising privacy and confidentiality, not to mention leaving this

10 process up to each individual ICE agent. See Declaration of Franklin Gomez Carranza ¶¶ 8, 12,

11 13, 16 (“Gomez Carranza Decl.”); Declaration of Ruben Torres Jauregui ¶¶ 4, 5 (“Torres

12 Jauregui Decl.”); see also Declaration of David Jackson ¶¶ 5, 9 (“Jackson Decl.”). Even when

13 Plaintiffs manage to make outgoing calls, the calls are not private or confidential, suffer from

14 interfering background noise and poor sound quality, and spontaneously disconnect and/or are

15 subject to time limits. See Gomez Carranza Decl. ¶ 16; Torres Jauregui Decl. ¶ 6; see also

16 Jackson Decl. ¶ 9. In Otero, no legal intake calls are permitted at all, and as a result, many

17 individuals go without attorney representation that they would otherwise be entitled to. See

18 Jackson Decl. ¶ 10.

19

B. Plaintiffs Suffer Prejudice, Injury, and Prolonged Detention as a Result of

20 Defendants’ Unconstitutional Telephone Policies and Practices.

21

By denying and severely restricting telephone access, Defendants’ policies and practices

22 severely and unconstitutionally deprive Plaintiffs and members of the proposed class from

23 seeking release from immigration custody or relief from deportation under the immigration laws

24 in a number of ways. See Gomez Carranza Decl. ¶¶ 17, 18. First, Defendants’ policies and

25 practices make it extremely difficult, if not impossible, to secure private counsel from within El

26 1 For a full account of the facts and allegations in this case, please see the Complaint, Dkt. Entry
27 No. 1.

2

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 7 of 15

1 Paso and Otero. See Jackson Decl. ¶ 10. Otero, for example, effectively forbids any free,

2 confidential legal intake calls by requiring attorneys to present evidence of an attorney-client

3 relationship. This, in essence, would require attorneys conducting legal intakes to enter into an

4 attorney-client relationship with the detained individual before the call. See id. Second, even

5 when detained individuals secure counsel, Defendants’ policies and practices undercut the

6 effectiveness of the representation by restricting the length of phone calls and not providing

7 confidentiality or privacy. See Gomez Carranza Decl. ¶¶ 8, 13, 16, 17, 18, 19; Torres Jauregui

8 Decl. ¶ 6. Third, by being unable to have full-length, free, confidential legal calls to prepare a

9 defense, attorneys routinely must seek continuances to adequately prepare for forthcoming

10 hearings, resulting in unnecessarily prolonged detention, which also impairs the ability of

11 Plaintiffs to present their legal claims effectively and timely. See Gomez Carranza Decl. ¶ 17.

12

C. The Named Plaintiffs

13

Plaintiff Franklin Gomez Carranza is in ICE custody at Otero and previously was held in

14 ICE custody at El Paso. Gomez Carranza Decl. ¶¶ 3, 4. He is seeking asylum under 8 U.S.C. §

15 1158 for fear of persecution for his sexuality in his home country of Honduras. Id. ¶¶ 5, 19.

16 Plaintiff Ruben Torres Jauregui is in ICE custody at Otero. Torres Jauregui Decl. ¶ 3. He is

17 seeking asylum under 8 U.S.C. § 1158 for fear of persecution for protesting corruption in the

18 Cuban government. Defendants’ restrictions on telephone access in Otero and El Paso have

19 harmed Plaintiff Gomez Carranza and Plaintiff Torres Jauregui by, inter alia, interfering with

20 their ability to access counsel, preventing them from preparing for their immigration court

21 hearings, and necessitating motions to continue those hearings, thus prolonging their detention in

22 ICE custody. See Gomez Carranza Decl. ¶¶ 8, 13, 16, 17, 18, 19; Torres Jauregui Decl. ¶¶ 4, 5.

23 III. ARGUMENT

24

Federal Rule of Civil Procedure 23 governs class actions in federal court, and a plaintiff

25 whose suit meets the requirements of that Rule has a “categorical” right “to pursue his claim as a

26 class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 599 U.S. 393, 398

27 (2010). To meet these requirements, the “suit must satisfy the criteria set forth in subdivision (a)

3

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 8 of 15

1 (i.e., numerosity, commonality, typicality, and adequacy of representation), and it also must fit

2 into one of the three categories described in subdivision (b).” Id. (citing Rule 23).

3

Plaintiffs seek to represent a class of: “All current and future adults who are or will be

4 detained in immigration custody at the El Paso Service Processing Center and the Otero

5 Processing Center.” This class easily meets all of Rule 23’s requirements. First, the proposed

6 class satisfies all of the requirements of Rule 23(a): numerosity, commonality, typicality, and

7 adequacy of representation. Second, the action is maintainable under Rule 23(b)(2), which

8 allows class actions for declaratory or injunctive relief where “the party opposing the class has

9 acted or refused to act on grounds that apply generally to the class, so that final injunctive relief

10 or corresponding declaratory relief is appropriate respecting the class as a whole[.]” Fed. R. Civ.

11 P. 23(b)(2). Declaratory and injunctive relief is appropriate to the proposed class. Id.

12

A. The Proposed Class Satisfies the Requirements of Rule 23(a).

13

1. The Proposed Class is So Numerous That Joinder Is Impracticable.

14

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is

15 impracticable.” Fed. R. Civ. P. 23(a)(1). In the Tenth Circuit, there is “no set formula” to

16 determine whether the numerosity requirement is met, rather it is a “fact-specific inquiry best left

17 to the district court’s discretion.” Gonzales v. City of Albuquerque, No. CIV 09–0520 JB/RLP,

18 2010 WL 4053947, at *7 (D.N.M. Aug. 21, 2010) (internal quotations omitted) (quoting Rex v.

19 Owens, 585 F.2d 432, 436 (10th Cir. 1978)). To show numerosity, “the exact number of

20 potential members need not be shown, and a court may make common sense assumptions to

21 support a finding that joinder would be impracticable.” Payne v. Tri-State CareFlight, LLC, 332

22 F.R.D. 611, 658 (D.N.M. 2019) (internal quotations omitted).

23

The proposed class more than meets the Rule 23(a)(1) requirement that the class be “so

24 numerous that joinder of all members is impracticable.” The class here is too numerous,

25 consisting of over 1,500 members: Otero houses approximately 798 individuals and El Paso

26 houses approximately 806 individuals. See Anderson Living Trust v. WPX Energy Prod., LLC,

27 306 F.R.D. 312, 436 (D.N.M. 2015) (noting that the a “per se numerosity threshold seems to

4

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 9 of 15

1 exist somewhere south of the 150 proposed class members” (quoting Mullen v. Treasure Chest

2 Casino, LLC, 186 F.3d 620 624 (5th Cir. 1999))). Given the number of individuals in the

3 proposed class, joinder would be impracticable. Accordingly, the numerosity requirement is

4 satisfied.

5

2. Questions of Law and Fact are Common to All Members of the

6

Proposed Class.

7

Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed.

8 R. Civ. P. 23(a)(2). Even “factual differences in the claims of the individual putative class

9 members should not result in a denial of class certification where common questions of law

10 exist.” Payne, 332 F.R.D. at 654 (quoting In re Intelcom Grp. Sec. Litig., 169 F.R.D. 142, 148

11 (D. Colo. 1996) (Daniel, J.)). The commonality requirement involves a showing “(i) that the

12 common question is central to the validity of each claim that the proposed class brings; and

13 (ii) that the common question is capable of a common answer.” Id. (citing Wal-Mart v. Dukes,

14 564 U.S. 338, 348-52 (2011)). “Thus, the common question or questions cannot be ‘incidental,’

15 nor can the plaintiff submit a long list of ‘incidental’ questions or issues, and say that they

16 predominate over the real issues.” Id. at 661.

17

The proposed class and its named representatives share factual and legal issues more than

18 adequate to support findings of commonality. The central question driving this case is whether

19 Defendants’ denial and restriction of telephone access to detained individuals in Otero and El

20 Paso violate Plaintiffs’ constitutional, statutory, and regulatory rights to access counsel. The

21 Defendants’ failure to provide adequate telephone access affects all class members and

22 Plaintiffs’ injuries do not arise out of circumstances unique to each class member. Further, all

23 class members seek the same declaratory and injunctive relief. This Court’s determination of the

24 legality of Defendant’s actions and inactions on one or more of the grounds the class alleges will

25 resolve all class members’ claims in “one stroke.” See Wal-Mart, 564 U.S. at 350.

26

While Defendants may assert that the individual Named Plaintiffs’ situations are different

27 based on where they are currently in custody, or whether they have a claim for relief in

5

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 10 of 15

1 immigration court, the basis of liability is not dependent upon their individual circumstances, but

2 instead on whether Defendants have provided Plaintiffs with telephone access that enables them

3 to engage in meaningful conversations with, and to receive adequate representation from, their

4 attorneys. This is the issue that predominates, and the differences that Defendants may assert

5 would be incidental facts and thus irrelevant to this motion. See Payne, 332 F.R.D. at 661.

6 Accordingly, the proposed class satisfies the commonality requirement of Rule 23(a)(2).

7

3. The Named Plaintiffs’ Claims are Typical of the Proposed Class They

8

Seek to Represent.

9

Rule 23(a)(3) requires that the named representative’s claims or defenses be “typical of

10 the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Typicality measures whether a

11 sufficient nexus exists between the claims of the named representatives and those of the class at

12 large.” Payne, 332 F.R.D. at 661. “[D]iffering fact situations of class members do not defeat

13 typicality . . . so long as the claims of the class representative and class members are based on the

14 same legal or remedial theory.” Menocal v. GEO Grp., Inc., 882 F.3d 905, 914 (10th Cir. 2018)

15 (quoting Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1216 (10th

16 Cir. 2014)). The Tenth Circuit “has said that the typicality requirement is satisfied if there are

17 common questions of law or fact.” Payne, 332 F.R.D. at 661 (citing Gianzero v. Wal-Mart

18 Stores Inc., No. CIV 09-00656 REB/BNB, 2010 WL 1258071, at *3 (D. Colo. Mar. 29, 2010)

19 (Blackburn, J.) (collecting cases)). As such, a proposed class representative will not be

20 considered “typical” if “the representative is subject to a unique defense that is likely to become

21 a major focus of the litigation.” Id. In such a case, the concern is that the representative will

22 devote more time and effort to their unique defense as opposed to the common class issue. Id.

23

For reasons similar to those of commonality, typicality is satisfied. The Named Plaintiffs

24 are members of the class, their injuries arise from the same course of conduct—Defendants’

25 restrictions on telephone access to class members—and seek the same relief as the class. The

26 same is true of the legal injury: the Named Plaintiffs’ claims and the claims of all other class

27 members concern whether Defendants’ failure to provide detained immigrants telephone access

6

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 11 of 15

1 to their counsel is a violation of their statutory or constitutional rights. Further, Named Plaintiffs

2 do not have any particular claims or defenses that would distract from that of the overall class.

3 See Payne, 332 F.R.D. at 661. Accordingly, the Named Plaintiffs satisfy the typicality

4 requirement.

5

4. Plaintiffs and Their Counsel Will Fairly and Adequately Protect the

6

Interests of the Class.

7

The final Rule 23(a) requirement is that “the representative parties will fairly and

8 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In evaluating this

9 requirement, “[t]he Tenth Circuit has identified two questions relevant to the adequacy of

10 representation inquiry: (i) whether the named plaintiffs and their counsel have any conflicts with

11 other proposed class members; and (ii) whether the named plaintiffs and their counsel will

12 vigorously prosecute the action on the class’ behalf.” Daye v. Cmty. Fin. Serv. Ctrs., LLC, 313

13 F.R.D. 147, 164 (D.N.M 2016) (quoting Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d

14 1180, 1187–88 (10th Cir.2002)). “In considering this second question, the experience and

15 competence of the attorney representing the class may inform the court’s analysis.” Id. at 164

16 (citing Lopez v. City of Santa Fe, 206 F.R.D. 285, 289-90 (D.N.M. 2002)).

17

The Named Plaintiffs are adequate representatives of the Class because their interests in

18 the vindication of the legal claims raised here are entirely aligned with the interests of the other

19 Class Members, who each have the same basic statutory and constitutional claims. See Gomez

20 Carranza Decl. ¶ 20. They are members of the Class, and their interests coincide with, and are

21 not antagonistic to, those of the other Class Members. Id.

22

There are no known conflicts of interest among class members. See Gomez Carranza

23 Decl. ¶ 21; Torres Jauregui Decl. ¶ 8. The Named Plaintiffs and class members are suffering the

24 same harms. They assert the same legal claims, seek the same litigation outcomes, and would

25 benefit from the same declaratory and injunctive relief requiring the Defendants to provide

26 telephone access for communications with attorneys. Moreover, the Named Plaintiffs are not

27 seeking monetary relief, so no financial conflict can arise between the claims of the Named

7

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 12 of 15

1 Plaintiffs and those of other class members. The Named Plaintiffs are committed to a class-wide

2 resolution, and they will fairly and adequately protect the interests of the class. See Gomez

3 Carranza Decl. ¶ 20. Further, counsel representing the Named Plaintiffs are experienced and

4 competent and will represent the needs of the class. See Daye, 313 F.R.D. at 164; see also

5 Declaration of Paige Pavone ¶¶ 2-9 (“Pavone Decl.”). Accordingly, the Named Plaintiffs satisfy

6 the adequacy of representation requirement.

7

B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2).

8

Assuming the proposed class satisfies the requirements of Rule 23(a), Plaintiffs must also

9 meet the requirements of Rule 23(b)(1), (2), or (3). DG ex rel. Stricklin v. Devaughn, 594 F.3d

10 1188, 1199 (10th Cir. 2010). Class certification under Rule 23(b)(2) is authorized where “the

11 party opposing the class has acted or refused to act on grounds that apply generally to the class,

12 so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

13 class as a whole.” Where class members seek only injunctive relief, Rule 23(b)(2) requires that

14 (1) the “defendants’ actions or inactions are based on grounds generally applicable to all class

15 members” and (2) the injunctive relief sought is “appropriate for the class as a whole.” Access

16 Now, Inc. v. PHC-Las Cruces, Inc., Civ. No. 09-1156 JCH/LAM, 2012 WL 13081445, at *5

17 (D.N.M. Feb. 10, 2012) (quoting Shook v. Board of Cty. Comm’rs, 543 F.3d 597, 612 (10th Cir.

18 2008)). These requirements include “cohesiveness among class members with respect to their

19 injuries.” Id. To establish this cohesiveness, plaintiffs much show that the class is “sufficiently

20 cohesive that any classwide injunctive relief satisfies Rule 65(d)’s requirement that every

21 injunction state its terms specifically; and describe in reasonable detail the act or acts restrained

22 or required.” Id. (internal quotations omitted) (quoting Shook, 543 F.3d at 612). Plaintiffs must

23 also show that the injuries are “sufficiently similar that they can be remedied in a single

24 injunction without differentiating between class members.” Id. (internal quotations omitted).

25

The proposed class satisfies the requirements of Rule 23(b)(2) because Defendants do not

26 provide telephone access for class members to contact and effectively communicate with their

27 attorneys. This harm is applicable to all class members. Defendants’ challenged practices are

8

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 13 of 15

1 not tailored to individual Plaintiffs, but apply to the population of immigrants in ICE custody

2 who are, or will in the future be, subject to the Defendants’ refusal to provide telephone access

3 that satisfies Plaintiffs’ constitutional, statutory, and regulatory rights to access counsel. The

4 relief is applicable to the class as a whole because the relief would remedy the issues that the

5 class as a whole is experiencing.

6

As to the cohesiveness requirement, the injunctive relief requested would satisfy

7 Rule 65(d). See Access Now, Inc., 2012 WL 13081445, at *7. Here, the injunctive relief

8 requested specifically seeks to remedy Defendants’ violations of the class members’

9 constitutional, statutory, and regulatory rights by ensuring that class members can communicate

10 with their attorneys. The injunctive relief specifically includes that Defendants provide free,

11 confidential legal calls, and to make reasonable accommodations for non-legal calls for indigent

12 class members. Compl. at pages 28-29. The injunctive relief would also include requiring

13 Defendants to ensure the privacy of legal calls and no obstructive background noise. Id.

14 Further, the injunctive relief requested includes Defendants assisting class members in

15 penetrating telephone voicemail tress for legal calls, leaving voicemails for legal calls, providing

16 class members with adequate notice about the communication options available to them, and

17 providing accommodations for non-English speaking class members, illiterate class members,

18 and class members with disabilities. Id. These remedies provided by injunctive relief would

19 rectify the harm committed by Defendants and ensure Plaintiffs’ access to counsel. Further to

20 the cohesiveness requirement, the injury sustained by the class members is “sufficiently similar,”

21 because all of the class members are unable to effectively communicate with their attorneys or

22 prospective attorneys. See Access Now, Inc., 2012 WL 13081445, at *7. As such, the injunctive

23 relief would remedy this injury. Therefore, certification under Rule 23(b)(2) is appropriate.

24

C. The Court Should Designate Plaintiffs’ Counsel as Class Counsel Pursuant to

25

Rule 23(g)(1).

26

The Court must appoint Class counsel, considering “(i) the work counsel has done in

27 identifying or investigating potential claims in the action; (ii) counsel’s experience in handling

9

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 14 of 15

1 class actions, other complex litigation, and the types of claims asserted in the action; (iii)

2 counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to

3 representing the class.” These factors strongly support appointing Orrick, Herrington, &

4 Sutcliffe LLP (“Orrick”) as counsel. See Pavone Decl. ¶¶ 2-9.

5

Plaintiffs’ counsel satisfies all four criteria. Id. As reflected in the complaint, Plaintiffs’

6 counsel has already devoted substantial time investigating the factual and legal issues in this case

7 and will continue do so throughout the pendency of the litigation. See id. ¶ 8. The class counsel

8 is experienced in handling class actions and other complex litigation. Id. ¶¶ 2-5, 7. Counsel has

9 already committed many hours to representing the Class and will continue to advocate to ensure

10 Class Members have adequate access to counsel via the telephone. See ¶ 8.

11 IV. CONCLUSION

12

For the foregoing reasons, Plaintiffs respectfully request that this Court certify the

13 proposed Class and appoint the undersigned counsel as counsel for the Class.

14 Dated: May 18, 2020

ORRICK, HERRINGTON, & SUTCLIFFE LLP

15

/s/ R. David Hosp

16

R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP

17

222 Berkeley St. Ste 2000

18

Boston, MA 02116

Telephone: (617) 880-1886

19

Facsimile: (617) 880-1801

Email: dhosp@orrick.com 20

Paige Pavone

21

ORRICK, HERRINGTON & SUTCLIFFE, LLP

22

51 West 52nd Street

New York, NY 10019

23

Telephone: (212) 506-3604

Facsimile: (212) 506-5151

24

Email: ppavone@orrick.com

25 Attorneys for Plaintiffs
26

27

10

Case 2:20-cv-00424-GBW-KRS Document 5 Filed 05/18/20 Page 15 of 15

1

CERTIFICATE OF SERVICE

2

I hereby certify that on May 18, 2020, a true and correct copy of the foregoing BRIEF IN

3 SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND

4 APPOINTMENT OF CLASS COUNSEL was served with the Clerk of the Court by using the

5 CM/ECF system, which provided an electronic notice and electronic link of the same to all

6 attorneys of record through the Court’s CM/ECF system.

7 8 Dated: May 18, 2020

By: /s/ Paige Pavone

9

10

11

12

13

14

15

16

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18

19

20

21

22

23

24

25

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11

Case 2:20-cv-00424-GBW-KRS Document 6 Filed 05/18/20 Page 1 of 4

R. David Hosp ORRICK, HERRINGTON & SUTCLIFFE, LLP 222 Berkeley St. Ste 2000 Boston, MA 02116 Telephone: (617) 880-1886 Facsimile: (617) 880-1801 Email: dhosp@orrick.com
Paige Pavone ORRICK, HERRINGTON & SUTCLIFFE, LLP 51 West 52nd Street New York, NY 10019 Telephone: (212) 506-3604 Facsimile: (212) 506-5151 Email: ppavone@orrick.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

FRANKLIN GOMEZ CARRANZA AND Case No. 20-CV-424 RUBEN TORRES JAUREGUI,

Plaintiffs,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL.,

DECLARATION OF FRANKLIN GOMEZ CARRANZA IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

Defendants.

I, Franklin Gomez Carranza, declare as follows: 1. I make this declaration from my personal knowledge and, if called to testify to these
facts, could and would do so competently. 2. I am 21-years-old and a native and citizen of Honduras.

Case 2:20-cv-00424-GBW-KRS Document 6 Filed 05/18/20 Page 2 of 4
3. I am currently detained in ICE custody at the Otero County Processing Center. I have been detained here since March 20, 2020.
4. Before ICE transferred me to Otero, I was detained in ICE custody at the El Paso Processing Center since approximately October 2019.
5. I believe that I am entitled to asylum because I fear persecution in Honduras for my sexuality.
6. Even since being detained in ICE custody, I have had difficulty communicating with my attorney because of limited access to telephones.
7. When I was detained in El Paso, my attorney visited me in person because the telephones were not a reliable means of communication. Because of the COVID-19 pandemic shutdowns, my attorney and I must communicate over the phone now.
8. When I attempted to prepare for my immigration court hearing with my attorney over the telephone, ICE detention officers have ordered me off the call before we were through preparing; ICE detention officers have not permitted me to call my attorney when we had scheduled calls; I have not been given a private place from which to make a confidential phone call to my attorney; and I have had to pay out-of-pocket for many of my legal calls.
9. In early March, my final hearing had been cancelled. My attorney informed me this was due to the docket management system, and that I would have a new hearing. However, on Tuesday, March 17, my attorney became aware that my case had not been movd, and I was still going to have my final hearing on March 25.
10. On March 20, I was transferred to the Otero County Processing Center, 5 days before my hearing in El Paso.

Case 2:20-cv-00424-GBW-KRS Document 6 Filed 05/18/20 Page 3 of 4
11. I have become aware that on March 18, March 19, and March 20, my attorney attempted to speak with me via telephone, and that all three attempts were ignored by ICE.
12. On March 23, I managed to make contact with my attorney, but the interview was cut off after roughly an hour, and the interview was not able to continue. By that time, my lawyer was no ;onger allowed into the facility without protective gear.
13. On March 24, the day before my trial, I was allowed to speak with my lawyer. However, this interview occurred roughly 40 minutes late, and after roughly 40 minutes into our scheduled 3 hour call, an ICE officer approached me and told me to hang up the phone. I thought it was about a parole request, but he only wanted to verify that I had been talking to my lawyer. I told him that I was, and asked permission to call him back. The ICE officer told me no. My final hearing was the next day. Instead, I had to go back to my barrack and call him from there, at my own expense. I have no money, and was only able to speak for another half hour before I could no longer continue the call.
14. On March 27, I was scheduled for another phone call with my lawyer to prepare me for a new setting on April 7, but the phone lines were down due to heavy winds.
15. I was scheduled for another call on March 30, but they did not let me call 16. I am unable to speak openly with my attorney about my asylum case because I will be
overheard by ICE detention officers and other detained individuals. 17. Because of how difficult it has been to speak with my attorney over the phone and
prepare my defense, I asked my attorney to reschedule my hearing. This has resulted in me being held in ICE custody longer than necessary.

Case 2:20-cv-00424-GBW-KRS Document 6 Filed 05/18/20 Page 4 of 4
18. I am worried that if I am unable to be given the opportunity to prepare a defense with my attorney over the telephone, I will not have a fair opportunity to defend myself, and a judge may deport me.
19. I am fighting for the opportunity to remain in the United States to avoid persecution in Honduras for my sexuality. I need to be able to communicate with my attorney.
20. I would like to fight for the rights of all detained immigrants to have basic telephone access so that they can locate and communicate with lawyers. I intend to vigorously pursue the claims that have been made in the lawsuit on behalf of others who are being denied the opportunity to make telephone calls necessary to defend themselves against deportation, and I will participate in this litigation as my counsel and I determine is appropriate. I intend to remain involved with this case and represent the proposed class of detained individuals if I am released from custody.
21. I have never served as a class representative in any prior action. 22. I declare under penalty of perjury that the foregoing is true and correct to the best of
my knowledge. 23. For reasons due to the COVID-19 pandemic shutdown, I am executing this
declaration on May _1_3, 2020 via my attorney.
________________________________ For Franklin Gomez Carranza

Case 2:20-cv-00424-GBW-KRS Document 7 Filed 05/18/20 Page 1 of 3

Case 2:20-cv-00424-GBW-KRS Document 7 Filed 05/18/20 Page 2 of 3

Case 2:20-cv-00424-GBW-KRS Document 7 Filed 05/18/20 Page 3 of 3

Case 2:20-cv-00424-GBW-KRS Document 8 Filed 05/18/20 Page 1 of 3

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

Paige Pavone 6 ORRICK, HERRINGTON & SUTCLIFFE, LLP 7 51 West 52nd Street
New York, NY 10019

8 Telephone: (212) 506-3604 Facsimile: (212) 506-5151

9 Email: ppavone@orrick.com

10

11 Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF NEW MEXICO

15 FRANKLIN GOMEZ CARRANZA and 16 RUBEN TORRES JAUREGUI,

17

Plaintiffs,

18

v.

19 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
20 Defendants.
21

Case No. 20-CV-424
DECLARATION OF DAVID JACKSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

22

23

24

25

26

27

Case 2:20-cv-00424-GBW-KRS Document 8 Filed 05/18/20 Page 2 of 3

1

I, David Jackson, declare as follows:

2

1. I make this declaration from my personal knowledge and, if called to testify to these

3 facts, could and would do so competently.
4 2. As the Supervising Intake Specialist, I am responsible for scheduling phone calls with
5
clients and potential clients at both El Paso Service Processing Center and Otero 6

7

County Processing Center so that volunteers and myself have intake consultations with

8

these individuals.

9

3. As of 3/19/2020 up until 5/13/2020, I have missed approximately 20-25 calls with

10

clients and potential clients at Otero County Processing Center.

11 4. I have waited up to 4 hours to receive calls form Otero which is not included in the
12 missed calls.
13

14

5. I have been denied access to free legal calls with clients and potential clients left with

15

the option of pursuing legal calls at the cost of the detainee at Otero County Processing

16

Center.

17

6. I have been denied access to three-way call capabilities for interpreter purposes to

18

accommodate non-Spanish speaking detainees.

19 7. As of 3/19/2020 up until 5/13/2020, I have missed approximately 8-12 calls with clients
20
and potential clients at El Paso Service Processing Center. 21

22

8. I have waited up to 6 hours to receive calls from El Paso Service Processing Center

23

which is not included in the missed calls.

24

9. Both facilities have experienced difficulty in securing privacy for legal-confidential

25

calls. Both facilities have experienced numerous call-drops where the calls end pre-

26 maturely.
27

1

Case 2:20-cv-00424-GBW-KRS Document 8 Filed 05/18/20 Page 3 of 3

1

10. Las Americas Detained Deportation Team’s intake process is the first step to providing

2

free legal services to those who are detained by attaining information from each

3 detainee to have them processed into our screening, prior to representing or advocating
4 for them.
5
As of 3/19/2020 until now, roughly 35 detainees have been denied access to our intake 6

7

process due to the lack of cooperation of setting free legal calls on the part of Otero.

8

11. I declare under penalty of perjury that the foregoing is true and correct to the best of

9

my knowledge. Executed on 5/13/2020 in El Paso, Texas.

10

11 __/s/ David Jackson____________________
12 David Jackson
13

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Case 2:20-cv-00424-GBW-KRS Document 9 Filed 05/18/20 Page 1 of 4

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

Paige Pavone 6 ORRICK, HERRINGTON & SUTCLIFFE, LLP 7 51 West 52nd Street
New York, NY 10019

8 Telephone: (212) 506-3604 Facsimile: (212) 506-5151

9 Email: ppavone@orrick.com

10

11 Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

DISTRICT OF NEW MEXICO

15 FRANKLIN GOMEZ CARRANZA and 16 RUBEN TORRES JAUREGUI,

17

Plaintiffs,

18

v.

19 UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
20 Defendants.
21

Case No. 20-CV-424
DECLARATION OF PAIGE PAVONE IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL

22

23

24

25

26

27

Case 2:20-cv-00424-GBW-KRS Document 9 Filed 05/18/20 Page 2 of 4

1

I, Paige Pavone, declare as follows:

2

1. I am an attorney in private practice and a Managing Associate at Orrick, Herrington

3 & Sutcliffe LLP, where I am currently employed. The following facts are based on
4 my personal knowledge and, if called to testify to these facts, I could and would do so
5
competently. 6

7

2. I have been practicing law as a licensed attorney since 2016 and from 2017 to 2018

8

I clerked for the Honorable Dora L. Irizarry in the United States District Court for the

9

Eastern District of New York.

10

3. I have worked closely with the partner responsible for this action, R. David Hosp.

11 R. David Hosp has tried matters to both juries and judges, and his more notable cases
12 include serving as lead trial counsel for the New York Times and The Boston Globe in
13

14

Gatehouse v. The New York Times, Civ. Action No. 08-12114-WGY (D. Mass. 2009)

15

and as lead trial counsel in the successful defense of his client Recorded Books against

16

trademark and copyright claims in Brilliance Audio v. Haights Cross

17

Communications, 474 F.3d 365 (6th Cir. 2007). He has been recognized as a leading

18

practitioner in The American Lawyer, The World Trademark Review 100, and The

19 Legal 500.
20
4. I have also worked closely with the other attorney responsible for this action, Rene 21

22

Kathawala. From 2004 to 2005, Rene Kathawala clerked for the Honorable Leo

23

Glasser in the United States District Court for the Eastern District of New York. Rene

24

Kathawala has a long-standing commitment to access to justice issues, and this was

25

recognized when he was appointed to serve as a member of the New York City Bar

26

27

1

Case 2:20-cv-00424-GBW-KRS Document 9 Filed 05/18/20 Page 3 of 4

1

Association Right to Counsel Task Force and the New York City Bar Association

2

Family Court Judicial Appointment & Assignment Process Work Group.

3 5. The associates assigned to this matter, Lauren Allen and I, have significant experience
4 litigating complex class actions in federal court.
5
6. Orrick has approximately 1,000 attorneys and approximately 250 attorneys in the New 6

7

York office alone.

8

7. Orrick is uniquely situated to represent the class in this case because it was pro-bono

9

co-counsel with the American Civil Liberties Union (“ACLU”) of Northern California

10

in a similar class action suit against U.S. Immigration Customs and Enforcement

11 (“ICE”) detention facilities in the Northern District of California. See First
12 Supplemental Complaint for Injunctive and Declaratory Relief, Lyon et al v. I.C.E. et
13

14

al, No. 13-cv-05878-EMC (N.D. Cal. Aug. 27, 2015), Dkt. No. 99. In that action,

15

Orrick and the ACLU of Northern California asserted that the Northern California ICE

16

facilities were not providing adequate telephone access for detained immigrants to

17

contact their attorneys. Id. Orrick and the ACLU of Northern California successfully

18

entered into a settlement agreement with ICE and the Department of Homeland

19 Security (“DHS”), whereby ICE and DHS agreed to implement certain procedures and
20
practices that would ensure that class members were able to contact their attorneys via 21

22

the telephone. See Settlement Agreement, Lyon, No. 13-cv-05878-EMC (N.D. Cal.

23

Oct. 31, 2016), Dkt. No. 208-1; see also ACLU Settlement with ICE Will Allow

24

Immigrants Held in Detention to Use Functional Telephones for Contacting Lawyers,

25

Families, Government Agencies, ACLU NOR CAL (June 13, 2016),

26 https://www.aclunc.org/news/aclu-settlement-ice-will-allow-immigrants-held-
27

2

Case 2:20-cv-00424-GBW-KRS Document 9 Filed 05/18/20 Page 4 of 4

1

detention-use-functional-telephones-contacting; Kenrya Rankin, ICE Agrees to

2

Overhaul Phone Policy for Immigrant Detainees, COLORLINES (June 15, 2016),

3 https://www.colorlines.com/articles/ice-agrees-overhaul-phone-policy-immigrant-
4 detainees.
5
8. Since January 2020, Mr. Hosp, Mr. Kathawala, Ms. Allen, and I have been working 6

7

on a pro bono basis to investigate telephone access afforded to detained immigrants in

8

the Otero County Processing Center and the El Paso Processing Center. We have

9

researched the applicable laws and corresponded with various interested and

10

knowledgeable parties to investigate this matter. Based on this work, we are familiar

11 with the issues facing members of the proposed class in this action, specifically
12 including the factual and legal elements presented.
13

14

9. Orrick has the capacity to thoroughly and vigorously prosecute the claims in this case

15

and properly represent the plaintiff class and intends to commit all necessary resources

16

to do so.

17

10. I declare under penalty of perjury that the foregoing is true and correct to the best of

18

my knowledge. Executed on May 13, 2020 in Norfolk, Virginia.

19

20

By: ___/s/ Paige Pavone_____________________________

21

PAIGE PAVONE

22

23

24

25

26

27

3

 
 U.S. District Court United States District Court - District of New Mexico (Las Cruces)
CIVIL DOCKET FOR CASE #: 2:20-cv-00424-KG-KRS

Create an Alert for This Case on RECAP

Carranza et al v. United States Immigration and Customs Date Filed: 05/04/2020

Enforcement et al

Jury Demand: None

Assigned to: District Judge Kenneth J. Gonzales

Nature of Suit: 440 Civil Rights:

Referred to: Magistrate Judge Kevin R. Sweazea

Other

Related Case: 2:20-cv-00917-KWR-LF

Jurisdiction: U.S. Government

Cause: 42:1983 Civil Rights Act

Defendant

Plaintiff

Franklin Gomez Carranza

represented by Emma Curtis Winger American Immigration Council 1331 G Street NW Suite 200 Washington, DC 20005 617-505-5375 Email: ewinger@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Dowden Allen Orrick, Herrington & Sutcliffe LLP 51 w. 52nd Street New York, NY 10019 212-506-5254 Email: lallen@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paige Pavone Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019 212-506-5000 Email: ppavone@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rene A. Kathawala Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street

Plaintiff Ruben Torres Jauregui

New York, NY 10019 212-506-5100 Email: rkathawala@orrick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claudia Valenzuela American Immigration Council 1331 G Street NW Ste 200 Washington, DC 20005 202-507-7540 Fax: 202-742-5619 Email: cvalenzuela@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Elizabeth Goettel American Immigration Council 1331 G Street, NW, Suite 200 Washington, DC 20005 202-507-7552 Email: kgoettel@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED
David R. Hosp Orrick, Herrington & Sutcliffe LLP 222 Berkley Street Boston, MA 02116 617-880-1800 Fax: 617-880-1801 Email: dhosp@orrick.com ATTORNEY TO BE NOTICED
represented by Emma Curtis Winger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Dowden Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States Immigration and Customs Enforcement
Defendant Matthew T. Albence Acting Director of ICE
Defendant Department of Homeland Security

Paige Pavone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rene A. Kathawala (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claudia Valenzuela (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Elizabeth Goettel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David R. Hosp (See above for address) ATTORNEY TO BE NOTICED
represented by Christine Hyojin Lyman U.S. Attorney's Office - District of New Mexico 201 3rd Street NW Albuquerque, NM 87102 505-346-7274 Email: christine.lyman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine Hyojin Lyman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine Hyojin Lyman (See above for address)

Defendant Chad F. Wolf Acting Secretary of the Department of Homeland Security
Defendant Corey A. Price Field Office Director for the El Paso Field Office

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine Hyojin Lyman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christine Hyojin Lyman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/04/2020
05/04/2020 05/04/2020 05/04/2020 05/04/2020 05/04/2020

# Docket Text
1 COMPLAINT against Matthew T. Albence, Department of Homeland Security, Corey A. Price, United States Immigration and Customs Enforcement, Chad F. Wolf ( Filing Fee - Online Payment), filed by Franklin Gomez Carranza, Ruben Torres Jauregui. (Attachments: # 1 Civil Cover Sheet)(Hosp, David) (Entered: 05/04/2020)
Filing and Administrative Fees Received: $ 400 receipt number ANMDC7106785 re 1 Complaint, filed by Franklin Gomez Carranza, Ruben Torres Jauregui (Payment made via Pay.gov)(Hosp, David) (Entered: 05/04/2020)
2 NOTICE of Appearance by Paige Pavone on behalf of Franklin Gomez Carranza, Ruben Torres Jauregui (Pavone, Paige) (Entered: 05/04/2020)
Office code correction. Case office code has been changed from 1 (Albuquerque) to 2 (Las Cruces). (arp) (Entered: 05/04/2020)
United States Magistrate Judge Gregory B. Wormuth and United States Magistrate Judge Kevin R. Sweazea assigned. (arp) (Entered: 05/04/2020)
3 PLEASE TAKE NOTICE that this case has been randomly assigned to United States Magistrate Judge Gregory B. Wormuth to conduct dispositive proceedings in this matter, including motions and trial. Appeal from a judgment entered by a Magistrate Judge will be to the United States Court of Appeals for the Tenth Circuit. It is the responsibility of the case filer to serve a copy of this Notice upon all parties with the summons and complaint. Consent is strictly voluntary, and a party is free to withhold consent without adverse consequences. Should a party choose to consent, notice should be made no later than 21 days after entry of the Order setting the Rule 16 Initial Scheduling Conference. For e-filers, visit our Web site at www.nmd.uscourts.gov for more information and instructions. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (arp) (Entered: 05/04/2020)

05/04/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020 05/18/2020 06/05/2020

Summons Issued as to All Defendants. (arp) (Entered: 05/04/2020)
4 MOTION to Certify Class and Appointment of Lead Counsel by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 05/18/2020)
5 BRIEF re 4 MOTION to Certify Class and Appointment of Lead Counsel by Franklin Gomez Carranza, Ruben Torres Jauregui (Hosp, David) (Entered: 05/18/2020)
6 DECLARATION re 4 MOTION to Certify Class and Appointment of Lead Counsel (Declaration of Franklin Gomez Carranza) by Franklin Gomez Carranza, Ruben Torres Jauregui (Hosp, David) (Entered: 05/18/2020)
7 DECLARATION re 4 MOTION to Certify Class and Appointment of Lead Counsel (Declaration of Ruben Torres Jauregui) by Franklin Gomez Carranza, Ruben Torres Jauregui (Hosp, David) (Entered: 05/18/2020)
8 DECLARATION re 4 MOTION to Certify Class and Appointment of Lead Counsel (Declaration of David Jackson) by Franklin Gomez Carranza, Ruben Torres Jauregui (Hosp, David) (Entered: 05/18/2020)
9 DECLARATION re 4 MOTION to Certify Class and Appointment of Lead Counsel (Declaration of Paige Pavone) by Franklin Gomez Carranza, Ruben Torres Jauregui (Pavone, Paige) (Entered: 05/18/2020)
11 PLEASE TAKE NOTICE that this case has been reassigned to United States District Judge James A. Parker as the trial judge. Under D.N.M.LR-Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.
Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

06/09/2020
06/10/2020 06/10/2020

United States Magistrate Judge Gregory B. Wormuth no longer assigned to this case. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (arp) (Entered: 06/05/2020)
12 NOTICE REGARDING DOCUMENT ENTRIES: Because this case has been reassigned to a district judge, please be advised that any documents filed by the parties under Rule 73(b) have been permanently removed from the docket. Document(s) removed: No. 10. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (kg) (Entered: 06/09/2020)
13 NOTICE of Appearance by Lauren Dowden Allen on behalf of Franklin Gomez Carranza, Ruben Torres Jauregui (Allen, Lauren) (Entered: 06/10/2020)
14 NOTICE of Appearance by Rene A. Kathawala on behalf of Franklin Gomez Carranza, Ruben Torres Jauregui (Kathawala, Rene) (Entered: 06/10/2020)

06/10/2020
06/10/2020 06/11/2020

15 SUMMONS Returned Executed by Franklin Gomez Carranza, Ruben Torres Jauregui. Matthew T. Albence served on 5/8/2020, answer due 7/7/2020; Department of Homeland Security served on 5/8/2020, answer due 7/7/2020; Corey A. Price served on 5/8/2020, answer due 7/7/2020; United States Immigration and Customs Enforcement served on 5/8/2020, answer due 7/7/2020; Chad F. Wolf served on 5/8/2020, answer due 7/7/2020. (Pavone, Paige) (Entered: 06/10/2020)
16 CERTIFICATE OF SERVICE by Franklin Gomez Carranza, Ruben Torres Jauregui re 4 MOTION to Certify Class and Appointment of Lead Counsel, 8 Declaration, 9 Declaration, 7 Declaration, 6 Declaration, 5 Brief ( Pavone, Paige) (Entered: 06/10/2020)
17 PLEASE TAKE NOTICE that this case has been reassigned to United States District Judge Kenneth J. Gonzales as the trial judge. Under D.N.M.LR-Civ. 10.1, the first page of each document must have the case file number and initials of the assigned judges.
Accordingly, further documents filed in this matter must bear the case number and the judges' initials shown in the case caption and the NEF for this document. Kindly reflect this change in your filings.

06/11/2020 06/15/2020 06/15/2020 06/18/2020
06/19/2020

United States District Judge James A. Parker no longer assigned to this case. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (arp) (Entered: 06/11/2020)
18 NOTICE of Briefing Complete by Franklin Gomez Carranza, Ruben Torres Jauregui re 4 MOTION to Certify Class and Appointment of Lead Counsel filed by Franklin Gomez Carranza, Ruben Torres Jauregui (Attachments: # 1 Certificate of Service) (Hosp, David) (Entered: 06/11/2020)
19 Unopposed MOTION for Extension of Time to File Response/Reply as to 4 MOTION to Certify Class and Appointment of Lead Counsel and Notice of Withdrawal of Completion of Briefing by Franklin Gomez Carranza, Ruben Torres Jauregui. (Pavone, Paige) (Entered: 06/15/2020)
20 NOTICE of Appearance by Christine Hyojin Lyman on behalf of All Defendants (Lyman, Christine) (Entered: 06/15/2020)
21 ORDER by District Judge Kenneth J. Gonzales granting 19 Unopposed Motion for Extension of Time to File Response/Reply as to 4 Motion to Certify and Appointment of Lead Counsel and Notice of Withdrawal of Completion of Briefing. Response due by 6/29/2020; reply due by 7/13/2020. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 06/18/2020)
22 ORDER by Magistrate Judge Kevin R. Sweazea SETTING a telephonic status conference. A status conference to discuss the need for a scheduling conference is hereby set for July 2, 2020 at 11:00 AM. The parties shall call (888) 398-2342 and enter access code 8193818 to join the proceedings. (cbf)

06/29/2020 06/29/2020 06/30/2020
07/09/2020 07/10/2020 07/13/2020 07/20/2020 07/20/2020 08/03/2020 08/03/2020

[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/19/2020)
23 MOTION to Dismiss for Lack of Jurisdiction And Failure to State A Claim by United States Immigration and Customs Enforcement. (Lyman, Christine) (Entered: 06/29/2020)
24 RESPONSE in Opposition re 4 MOTION to Certify Class and Appointment of Lead Counsel filed by United States Immigration and Customs Enforcement. (Lyman, Christine) (Entered: 06/29/2020)
25 ORDER by Magistrate Judge Kevin R. Sweazea VACATING telephonic status conference and FINDING good cause to delay holding a scheduling conference and entering a scheduling order. Considering Defendant United States Immigration and Customs Enforcement has filed a motion to dismiss (Doc. 23 ), the telephonic status conference set for July 2, 2020 is hereby VACATED. The Court also finds good cause pursuant to Fed. R. Civ. P. 16 to delay holding a scheduling conference and entering a scheduling order. The Court will set the case for scheduling once the presiding judge resolves the pending motion to dismiss. (cbf)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 06/30/2020)
26 Unopposed MOTION for Extension of Time to File Response/Reply to Motion to Dismiss by Franklin Gomez Carranza, Ruben Torres Jauregui. (Pavone, Paige) (Entered: 07/09/2020)
27 ORDER by District Judge Kenneth J. Gonzales granting 26 Unopposed Motion for Extension of Time to File Response to 23 Motion to Dismiss for Lack of Jurisdiction And Failure to State A Claim. Response due by 7/20/2020. [THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED.] (tah) (Entered: 07/10/2020)
28 REPLY to Response to Motion re 4 MOTION to Certify Class and Appointment of Lead Counsel filed by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 07/13/2020)
29 MEMORANDUM in Opposition re 23 MOTION to Dismiss for Lack of Jurisdiction And Failure to State A Claim filed by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 07/20/2020)
30 NOTICE of Briefing Complete by Franklin Gomez Carranza, Ruben Torres Jauregui re 4 MOTION to Certify Class and Appointment of Lead Counsel filed by Franklin Gomez Carranza, Ruben Torres Jauregui (Hosp, David) (Entered: 07/20/2020)
31 Defendant's REPLY to Plaintiff's re 29 Memorandum in Opposition filed by United States Immigration and Customs Enforcement. (Lyman, Christine) (Entered: 08/03/2020)
32 NOTICE of Briefing Complete by United States Immigration and Customs Enforcement re 23 MOTION to Dismiss for Lack of Jurisdiction And Failure

08/26/2020
08/26/2020 08/26/2020
08/26/2020 08/31/2020

to State A Claim filed by United States Immigration and Customs Enforcement (Lyman, Christine) (Entered: 08/03/2020)
33 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Franklin Gomez Carranza, Ruben Torres Jauregui by Katherine Elizabeth Goettel (Association Dues - Online Payment) (Goettel, Katherine)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 08/26/2020)
Association Dues Received: $ 100 receipt number ANMDC-7276213 re: # 33 Association of Attorney Licensed Outside the District, filed by Franklin Gomez Carranza, Ruben Torres Jauregui (Payment made via Pay.gov)(Goettel, Katherine) (Entered: 08/26/2020)
34 MOTION for Preliminary Injunction by Franklin Gomez Carranza, Ruben Torres Jauregui. (Attachments: # 1 Declaration of Estrella Cedillo with Exhibits, # 2 Declaration of Maria Martinez Sanchez with Exhibits, # 3 Declaration of Max Brooks with Exhibits, # 4 Declaration of Imelda Maynard, # 5 Declaration of Elsa Goossen with Exhibits, # 6 Declaration of Joachim Marjon, # 7 Declaration of Heidi Cerneka, # 8 Declaration of David Jackson, # 9 Declaration of Margaret Brown Vega with Exhibits) (Hosp, David) (Entered: 08/26/2020)
35 MEMORANDUM in Support re 34 MOTION for Preliminary Injunction filed by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 08/26/2020)
36 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Franklin Gomez Carranza, Ruben Torres Jauregui by Paige Pavone on behalf of: Emma Winger American Immigration Council 1318 Beacon Street, Suite 18 Brookline, MA 02446 617-505-5375 ewinger@immcouncil.org

08/31/2020 09/04/2020

(Association Dues - Online Payment) (Pavone, Paige)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 08/31/2020)
37 NOTICE by Franklin Gomez Carranza, Ruben Torres Jauregui of Certification of Good Standing in Support of Request to Appear Pro Hac Vice by Emma Winger (Pavone, Paige) (Entered: 08/31/2020)
Association Dues Received: $ 100 receipt number ANMDC-7293378 re: # 36 Association of Attorney Licensed Outside the District, filed by Franklin

09/09/2020 09/23/2020 09/24/2020 10/06/2020 10/23/2020 10/30/2020

Gomez Carranza, Ruben Torres Jauregui (Payment made via Pay.gov)(Goettel, Katherine) (Entered: 09/04/2020)
38 RESPONSE to Motion re 34 MOTION for Preliminary Injunction filed by Matthew T. Albence, Department of Homeland Security, Corey A. Price, United States Immigration and Customs Enforcement, Chad F. Wolf. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit A-6, # 8 Exhibit A-7) (Lyman, Christine) (Entered: 09/09/2020)
39 REPLY to Response to Motion re 34 MOTION for Preliminary Injunction filed by Franklin Gomez Carranza, Ruben Torres Jauregui. (Attachments: # 1 Second Supplemental Declaration of David Jackson, # 2 Declaration of Rosa De Jong, # 3 Supplemental Declaration of Heidi Cerneka, # 4 Supplemental Declaration of Estrella Cedillo with Exhibit) (Hosp, David) (Entered: 09/23/2020)
40 NOTICE of Briefing Complete by Franklin Gomez Carranza, Ruben Torres Jauregui re 34 MOTION for Preliminary Injunction filed by Franklin Gomez Carranza, Ruben Torres Jauregui (Hosp, David) (Entered: 09/24/2020)
41 Unopposed MOTION for Hearing re 4 MOTION to Certify Class and Appointment of Lead Counsel, 23 MOTION to Dismiss for Lack of Jurisdiction And Failure to State A Claim, 34 MOTION for Preliminary Injunction by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 10/06/2020)
42 ORDER by District Judge Kenneth J. Gonzales referring the following to Magistrate Judge Kevin R. Sweazea: 4 Plaintiffs' Motion to Certify Class and Appointment of Lead Counsel; 23 Defendants' Motion to Dismiss for Lack of Jurisdiction; 34 Paintiffs' Motion for Preliminary Injunction; and 41 Parties' Unopposed Motion for Hearing. (tah) (Entered: 10/23/2020)
43 ORDER by Magistrate Judge Kevin R. Sweazea GRANTING 41 Unopposed Motion for Hearing and SETTING Telephonic Hearing for Oral Argument

11/02/2020 11/12/2020 11/12/2020

on 4 Motion to Certify Class, 23 Motion to Dismiss, and 34 Motion for Preliminary Injunction. Telephonic Motion Hearing set for November 17, 2020 at 02:00 PM. The parties shall call (888) 398-2342 and enter code 8193818 to join the proceedings. The parties shall also be prepared to discuss settlement of Plaintiffs' claims. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 10/30/2020)
44 NOTICE of Change of Address by Emma Curtis Winger (Winger, Emma) (Entered: 11/02/2020)
45 Joint MOTION to Continue Telephonic Motion Hearing by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 11/12/2020)
46 ORDER by Magistrate Judge Kevin R. Sweazea granting 45 Joint Motion to Continue Telephonic Motion Hearing. The hearing set for November 17, 2020 is hereby RESET for November 24, 2020 at 2:00 PM. The parties shall

11/20/2020 11/20/2020
11/23/2020
12/01/2020 12/01/2020
12/02/2020
12/10/2020 12/10/2020 12/17/2020

call (888) 398-2342 and enter code 8193818 to join the proceedings. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 11/12/2020)
47 Joint MOTION to Continue Telephonic Motion Hearing by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 11/20/2020)
48 ORDER by Magistrate Judge Kevin R. Sweazea granting 47 Joint Motion to Continue Telephonic Motion Hearing. The hearing set for November 24, 2020 is hereby RESET for December 2, 2020 at 2:00 PM. The parties shall call (888) 398-2342 and enter code 8193818 to join the proceedings. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 11/20/2020)
49 ORDER RESETTING Motion Hearing. Motion Hearing on 4 Motion to Certify Class, 23 Motion to Dismiss for Lack of Jurisdiction, and 34 Motion for Preliminary Injunction set for Tuesday December 1, 2020 at 02:00 PM. The parties shall call (888) 398-2342 and enter code 8193818 to join the proceedings. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 11/23/2020)
50 Joint MOTION to Continue Telephonic Motion Hearing by Franklin Gomez Carranza, Ruben Torres Jauregui. (Hosp, David) (Entered: 12/01/2020)
51 ORDER by Magistrate Judge Kevin R. Sweazea GRANTING 50 Joint Motion to Continue Telephonic Motion Hearing. The hearing set for December 1, 2020 is hereby RESET for December 9, 2020 at 09:00 AM. The parties shall call (888) 398-2342 and enter code 8193818 to join the proceedings. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 12/01/2020)
52 ORDER by Magistrate Judge Kevin R. Sweazea RESETTING Motion Hearing. At the request of the parties, the hearing set for December 9, 2020, is hereby RESET for December 10, 2020 at 09:00 AM. The parties shall call (888) 398-2342 and enter code 8193818 to join the proceedings. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 12/02/2020)
53 Clerk's Minutes for proceedings held before Magistrate Judge Kevin R. Sweazea: Telephonic Status Conference held on 12/10/2020. (atc) (Entered: 12/10/2020)
54 ORDER by Magistrate Judge Kevin R. Sweazea. Settlement Conference set for January 15, 2021 at 09:00 AM via Zoom. Consult Order for associated deadlines. (atc) (Entered: 12/10/2020)
55 ORDER by Magistrate Judge Kevin R. Sweazea RESETTING Settlement Conference. The Settlement Conference is hereby RESET to January 19, 2021 at 09:00 AM. All deadlines in Doc. 54 remain in place. [THIS IS A TEXTONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 12/17/2020)

01/14/2021 01/14/2021

56 **FILED IN ERROR** ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Franklin Gomez Carranza, Ruben Torres Jauregui by Paige Pavone (Association Dues - Online Payment) (Pavone, Paige)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] Modified on 1/15/2021 (snw). (Entered: 01/14/2021)
57 ASSOCIATION of Attorney Licensed Outside the District for Plaintiffs Franklin Gomez Carranza, Ruben Torres Jauregui by Paige Pavone on behalf of: Claudia Valenzuela American Immigration Council 1331 G Street NW, Suite 200 Washington, DC 20005 202-507-7540 cvalenzuela@immcouncil.org

01/14/2021 01/14/2021 01/19/2021 01/19/2021
02/02/2021 02/02/2021

(Association Dues - Online Payment) (Pavone, Paige)
[THIS IS A TEXT-ONLY ENTRY. THERE ARE NO DOCUMENTS
ATTACHED.] (Entered: 01/14/2021)
58 NOTICE by Franklin Gomez Carranza, Ruben Torres Jauregui re 57 Association of Attorney Licensed Outside the District, Claudia Valenzuela (Pavone, Paige) (Entered: 01/14/2021)
Association Dues Received: $ 100 receipt number ANMDC-7495913 re: # 57 Association of Attorney Licensed Outside the District, filed by Franklin Gomez Carranza, Ruben Torres Jauregui (Payment made via Pay.gov)(Winger, Emma) (Entered: 01/14/2021)
59 Clerk's Minutes for proceedings held before Magistrate Judge Kevin R. Sweazea: Settlement Conference held on January 19, 2021. The case did not settle. (atc) (Entered: 01/19/2021)
60 ORDER by Magistrate Judge Kevin R. Sweazea Setting Telephonic Hearing on 23 Motion to Dismiss for Lack of Jurisdiction And Failure to State A Claim. Motion Hearing set for March 10, 2021 at 10:00 AM. The parties shall call (888) 398-2342 and enter code 8193818 to join the proceedings. [THIS IS A TEXT-ONLY ENTRY. NO DOCUMENTS ARE ATTACHED.] (atc) (Entered: 01/19/2021)
61 NOTICE by Franklin Gomez Carranza, Ruben Torres Jauregui re 29 Memorandum in Opposition of Supplemental Authorities (Attachments: # 1 Exhibit Supplemental Authority 1, # 2 Exhibit Supplemental Authority 2, # 3 Exhibit Supplemental Authority 3, # 4 Exhibit Supplemental Authority 4) (Winger, Emma) (Entered: 02/02/2021)
62 Defendant's RESPONSE to Named Plaintiffs' Notice of Supplemental Authorities re 61 Notice (Other), filed by Matthew T. Albence, Department of

Homeland Security, Corey A. Price, United States Immigration and Customs Enforcement, Chad F. Wolf. (Lyman, Christine) (Entered: 02/02/2021)

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Gillan 2:20-cv-00424-KGKRS 0.80
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 Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

FRANKLIN GOMEZ CARRANZA and RUBEN TORRES JAUREGUI,

Plaintiffs, v.

No. 20-cv-00424 KG/KRS

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW T. ALBENCE, ACTING DIRECTOR OF ICE; DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; COREY A. PRICE, FIELD OFFICE DIRECTOR FOR THE EL PASO FIELD OFFICE,

Defendants.

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM
The named Plaintiffs (“Named Plaintiffs”)1 in this putative class action are two aliens in the custody of U.S. Immigration and Customs Enforcement (“ICE”) while in removal proceedings.2 Doc. 1 ¶¶ 70, 77. They allege Defendants have implemented “policies and practices that deny and severely restrict their abilities to make telephone calls necessary to consult with or obtain counsel, gather information and evidence necessary for their cases, and obtain fair hearings

1 Defendants will use “Named Plaintiffs” to refer to Messrs. Gomez Carranza and Torres Jauregui. To the extent the Complaint uses the term “Plaintiffs” to refer to unnamed class members, Defendants will refer to them as “class members” because they are not technically parties to this action until a class is certified.
2 Named Plaintiff Gomez Carranza has been released on bond. However, because this case is a putative class action, Defendants will address his claims as of the time the Complaint was filed. See, e.g., Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (noting that where named plaintiffs’ claims become moot before certification, class certification can relate back to the filing of the complaint).

Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 2 of 21
while in civil, immigration custody.” Doc. 1 ¶ 2. They seek declaratory and injunctive relief on behalf of a class of “[a]ll current and future adults who are or will be detained in immigration custody at the El Paso Service Processing Center and the Otero County Processing Center.” Id. ¶ 84.
This Court lacks jurisdiction over the claims in this case. First, Named Plaintiffs lack standing to bring claims relating to injuries they have not personally suffered, including inability of unrepresented class members to retain counsel and gather evidence, lack of representation in bond hearings, failure to provide reasonable accommodations to disabled and indigent class members, and inadequate instructions in rare languages. Because Named Plaintiffs personally allege only difficulty communicating with counsel to prepare for removal-related hearings, they have standing to bring claims based solely on those injuries. Second, the Immigration and Nationality Act (“INA”) contains a jurisdiction-channeling provision that requires “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” to be reviewed exclusively in the federal courts of appeals. Named Plaintiffs’ claims fall within Section 1252(b)(9)’s broad sweep because they are part and parcel of their removal proceedings and therefore cannot be brought in district court. Defendants therefore move the Court to dismiss the action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), or alternatively to dismiss it for failure to state a claim under Rule 12(b)(6).
Defendants notified Named Plaintiffs’ counsel of this motion, and Named Plaintiffs are opposed.
2

Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 3 of 21
MATERIAL JURISDICTIONAL FACTS3 1. Named Plaintiff Franklin Gomez Carranza is a 21-year-old citizen of Honduras who, at the time the Complaint was filed, was in ICE custody at the Otero County Processing Center (“Otero”) and was formerly in custody at El Paso Service Processing Center (“El Paso”). Doc. 1 ¶¶ 70-71. He has removal proceedings pending in El Paso Immigration Court. Id. ¶ 70. 2. Named Plaintiff Ruben Torres Jauregui is a 29-year-old citizen of Cuba who is also currently in ICE custody at Otero and also has removal proceedings pending in El Paso Immigration Court. Id. ¶¶ 77-78. 3. Both Named Plaintiffs allege that restricted or deficient telephone service, lack of privacy, and limited availability of free calls to their attorneys hindered their ability to prepare for their removal and asylum hearings, causing them to have to seek continuances and prolong their detention. Id. ¶¶ 72-75; 78-82. 4. The Complaint further alleges a host of injuries suffered by the unnamed class members rather than Named Plaintiffs, including:
a. Lack of free telephone access for indigent class members, id. ¶ 7.d; b. Lack of free telephone access to make calls to nonprofit legal services
providers and government entities, id. ¶ 7.e; c. Lack of information on telephone access for class members who speak rare
languages, id. ¶ 7.j; d. Lack of three-way calling for class members requiring interpreters, id. ¶ 50; e. Lack of assistance for class members with disabilities, id. ¶ 55; and f. Difficulty obtaining counsel, gathering evidence, and seeking “non-
immigration attorney assistance” by unrepresented class members, id. ¶¶ 56-58.
3 These facts are recited for purposes of this motion to dismiss only. Referencing and characterizing those facts does not waive Defendant’s right to contest them later.
3

Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 4 of 21
5. In Claim 1, Named Plaintiffs allege that “Defendants have violated Plaintiffs’ right to representation of counsel by denying and severely restricting Plaintiffs’ ability to make telephone calls to locate, consult with, and retain counsel, and Plaintiffs’ ability to communicate with retained counsel.” Id. ¶ 100.
6. In Claim 2, Named Plaintiffs allege that “Defendants have violated Plaintiffs’ right to a full and fair hearing by denying and severely restricting Plaintiffs’ ability to make telephone calls to gather information and obtain evidence in support of their immigration cases.” Id. ¶ 106.
7. In Claim 3, Named Plaintiffs allege that “Defendants have violated Plaintiffs’ right to petition the government by denying and severely restricting the telephone access necessary to seek legal representation and obtain documents and evidence in support of their applications for immigration benefits.” Id. ¶ 110.
8. Named Plaintiffs seek to represent a class of “[a]ll current and future adults who are or will be detained in immigration custody at the El Paso Service Processing Center and the Otero Processing Center.” Id. ¶ 84.
9. Named Plaintiffs seek declaratory and injunctive relief, class certification, appointment of class counsel, and attorneys’ fees. Id. at 28 (Prayer for Relief).
STANDARD OF REVIEW A motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) can be either facial or factual. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). If the grounds for dismissal for lack of subject matter jurisdiction are not set forth on the face of the complaint, the court may not presume the truthfulness of the complaint’s factual allegations but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). See id. Reference to such
4

Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 5 of 21
evidence outside the pleadings does not convert the motion to a Rule 56 motion unless resolution of the jurisdictional question is intertwined with the merits of the case. Id.
Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate if a plaintiff fails to state a claim upon which the court can grant the requested relief. Fed. R. Civ. P. 12(b)(6). On a motion to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). A plaintiff must furnish “more than labels and conclusions”—“a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. There must be something more than “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted).
STATUTORY BACKGROUND The INA “authorizes noncitizens to obtain direct ‘review of a final order of removal’ in a court of appeals.” Nasrallah v. Barr, — S. Ct. —, 2020 WL 2814299, at *4 (quoting 8 U.S.C. § 1252(a)(1)). More specifically, the INA provides that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5).4 The INA further provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” Id. § 1252(b)(9). Together, these provisions mean that “a noncitizen’s various challenges arising from the removal proceeding must be ‘consolidated in
4 The INA also requires that an alien “exhaust[] all administrative remedies available to the alien as of right” before a court may review a final order of removal. 8 U.S.C. § 1252(d)(1).
5

Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 6 of 21
a petition for review and considered by the courts of appeals.’” Nasrallah, 2020 WL 2814299, at *4 (quoting INS v. St. Cyr, 533 U.S. 289, 313 & n.37 (2001)). This consolidation “expedites judicial review of final orders of removal” by eliminating piecemeal review of issues by the district court. Id.
Section 1252(b)(9)’s jurisdiction-channeling provision is “‘breathtaking’ in scope and ‘vise-like’ in grip and therefore swallows up virtually all claims that are tied to removal proceedings.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007)). Indeed, “any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the [petition for review] process.” Id. (emphasis in original). As the Supreme Court has explained, this provision covers plaintiffs’ requests for “review of an order of removal,” challenges to “the decision to . . . seek removal,” or challenges to “the process by which . . . removability will be determined.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., No. 18-587, — S. Ct. —, 2020 WL 3271746, at *8 (U.S. June 18, 2020) (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2016) (plurality opinion) (alterations in original; emphasis added)).
Section 1252(b)(9)’s reach is not unlimited, however. Courts have held that “it does not strip jurisdiction when aliens seek relief that courts cannot meaningfully provide alongside review of a final order of removal.” E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., 950 F.3d 177, 186 (3d Cir. 2020) (describing this exception as applying to “now-or-never” claims).
ARGUMENT I. Named Plaintiffs Lack Standing to Bring Claims for Injuries TheyHave Not Suffered.
It is axiomatic that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991). The same holds true where the litigants seek to represent a class: “Prior to
6

Case 2:20-cv-00424-KG-KRS Document 23 Filed 06/29/20 Page 7 of 21
class certification, the named plaintiffs’ failure to maintain a live case or controversy is fatal to the case as a whole—that unnamed plaintiffs might have a case or controversy is irrelevant.” Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1159 (10th Cir. 2011); see also Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”). Consequently, “named plaintiffs in a class action seeking prospective injunctive relief must demonstrate standing by establishing they are suffering a continuing injury or are under an imminent threat of being injured in the future.” DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1197 (10th Cir. 2010).
Here, Named Plaintiffs allege that various issues with telephone access to communicate with their attorneys resulted in their inability to prepare adequately for removal or asylum hearings. See Doc. 1 ¶¶ 70-83. However, absent from the allegations specific to their personal claims is any mention of injury—or imminent threat of future injury—relating to difficulty in obtaining or retaining counsel, inability to gather information or evidence, inability to present evidence at a hearing, lack of attorney representation at hearings, or issues relating to hearings such as custody or bond determinations or redeterminations. Compare id. ¶ 9(a)-(d) with id. ¶¶ 70-83. Nor do Named Plaintiffs allege that they have experienced injuries because they are indigent, require interpreters, have disabilities, or speak rare languages. Compare id. ¶¶ 7, 50, 55 with id. ¶¶ 70-83. Moreover, Named Plaintiff Gomez Carranza does not allege any inability to access counsel or evidence while he was housed at El Paso prior to being transferred to Otero. Id. ¶ 71.
In Lewis v. Casey, the Supreme Court encountered a similar class action involving named plaintiffs seeking to obtain broad injunctive relief based on injuries they did not personally suffer. 518 U.S. 343 (1996). The named plaintiffs, inmates of various prisons in Arizona, alleged that the
7

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prison system deprived them of the right to access the courts and counsel and sought to certify a class consisting of “all adult prisoners who are or will be incarcerated by the State of Arizona Department of Corrections.” Id. at 346. The district court certified the class and held a bench trial, finding numerous shortcomings with the prison system “ranging from the training of library staff, to the updating of legal materials, to the availability of photocopying services.” Id.; see also id. at 408 n.4 (Stevens, J., dissenting) (noting that a class was certified). The district court issued a permanent injunction that “specified in minute detail the times that libraries were to be kept open, the number of hours of library use to which each inmate was entitled (10 per week), the minima l educational requirements for prison librarians (a library science degree, law degree, or paralegal degree), the content of a videotaped legal-research course for inmates (to be prepared by persons appointed by the Special Master but funded by [Defendant]), and similar matters.” Id. at 347.
The Supreme Court reversed, noting that the district court had found that only two of the named plaintiffs—both illiterate prisoners—had suffered any actual injury caused by the inadequate prison services (dismissal of one prisoner’s complaint and inability of another prisoner to file a complaint). Id. at 356. The Court rejected the notion that these illiterate prisoners’ injuries were sufficient to create “standing to complain of injuries to non-English speakers and lockdown prisoners,” since “standing is not dispensed in gross.” Id. at 358 n.6. As the Court put it, “If the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review. That is of course not the law.” Id. Because the district court’s injunction addressed “special services or special facilities required by non-English speakers, by prisoners in lockdown, and by the inmate population at large,” yet any
8

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such inadequacies “have not been found to harm any plaintiff in this lawsuit,” the Court held that these inadequacies “were not the proper object of this District Court’s remediation.” Id. at 358.
Here, similarly, the two Named Plaintiffs have alleged injuries resulting from poor telephone service, but such injuries are limited to their ability to prepare for removal hearings. 5 Assuming their allegations are true, “[t]hese two instances [are] a patently inadequate basis for a conclusion of systemwide violation and imposition of systemwide relief.” Id. at 359. Because Named Plaintiffs have not personally suffered most of the injuries alleged in the Complaint, they lack standing to bring claims relating to these injuries, regardless of whether other unidentified members of the proposed class may have standing to bring such claims. The Court should therefore dismiss Named Plaintiffs’ claims to the extent their personal allegations do not show any injury and limit its review to the issues Named Plaintiffs personally experienced—difficulty with telephone communications with their counsel during their removal proceedings. II. The Court Should Dismiss the Right-to-Counsel ClaimPursuant to Section 1292(b)(9)
and Be cause Name d Plaintiffs Have Not Alle ged Any Pre judice . Named Plaintiffs contend that “Defendants have violated Plaintiffs’ right to representation of counsel by denying and severely restricting Plaintiffs’ ability to make telephone calls to locate, consult with, and retain counsel, and Plaintiffs’ ability to communicate with retained counsel.” Doc. 1 ¶ 100. Named Plaintiffs allege that the right to counsel derives from the Fifth Amendment’s Due Process Clause, the INA (8 U.S.C. §§ 1362; 1229a(b)(4)(A)); the APA (5 U.S.C. § 555(b)); and regulations (8 C.F.R. §§ 1003.16(b); § 1292.5(b)).
5 Although Lewis involved convicted prisoners rather than detainees, the Tenth Circuit has applied its reasoning to the pretrial detention context, including the requirement to show an actual injury, i.e., “the denial of such [legal] resources hindered his or her efforts to pursue a nonfrivolous claim” Friedman v. Kennard, 248 F. App’x 918, 921 (10th Cir. 2007).
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There is no Sixth Amendment right to counsel in removal proceedings, since they are civil rather than criminal. See Michelson v. I.N.S., 897 F.2d 465, 467 (10th Cir. 1990). “Because aliens do not have a constitutional right to enter or remain in the United States, the only protections afforded are the minimal procedural due process rights for an opportunity to be heard at a meaningful time and in a meaningful manner.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (internal quotation marks omitted). “Beyond this basic protection guaranteed by the Fifth Amendment, any alleged liberty interest must be created by statute or regulation.” Id. (internal quotation marks omitted).
The INA provides that in removal proceedings, “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorize d to practice in such proceedings.” 8 U.S.C. § 1229a(b)(4)(A); see also id. § 1362 (containing substantially similar provision for removal proceedings and appeal proceedings before the Attorney General). The rules of procedure for immigration courts also contain a similar provision. See 8 C.F.R. § 1003.16(b). The regulations governing representation in immigration proceedings provide a right of counsel for one who is subject to examination. See id. § 1292.5(b).
The Administrative Procedure Act (“APA”) provides that “[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative.” 5 U.S.C. § 555(b). However, the Supreme Court has explained that “immigration proceedings . . . are not governed by the APA.” Ardestani v. I.N.S., 502 U.S. 129, 133 (1991) (citing Marcello v. Bonds, 349 U.S. 302 (1955)). Accordingly, this Court should decline to recognize an independent APAbased right to counsel in immigration proceedings.
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A. Section 1252(b)(9) Bars District Court Review of Right-to-Counsel Claims Be cause They Are Tie d to Re moval Proceedings.
Although the Tenth Circuit has not addressed this issue, the Courts of Appeals that have considered similar right-to-counsel claims have held that Section 1252(b)(9) bars district court review. For example, the Third Circuit held that claims alleging violation of the statutory right to counsel under 8 U.S.C. § 1362 were, by definition, “tied to the removal proceedings themselves” and therefore, the “court of appeals can redress any deprivation of counsel in the removal proceedings before the alien is removed.”6 E.O.H.C., 950 F.3d at 187-88. Similarly, the Ninth Circuit held that Fifth Amendment due process and statutory right-to-counsel claims “are bound up in and an inextricable part of the administrative process” of removal proceedings and therefore “must be raised through the PFR process” in the court of appeals. J.E.F.M., 837 F.3d at 1032-33. Likewise, the First Circuit held that “the alien’s right to counsel is part and parcel of the removal proceeding itself” because it “is inextricably intertwined with[] the administrative process that Congress so painstakingly fashioned.” Aguilar, 510 F.3d at 13 (dismissing both due process and statutory right-to-counsel claims). In these cases, the courts noted that because right-to-counsel claims can be reviewed as part of the petition for review process, they are not “now-or-never” claims. See E.O.H.C., 950 F.3d at 188; J.E.F.M., 837 F.3d at 1033 (citing right-to-counsel cases brought in PFRs); Aguilar, 510 F.3d at 13 (same).
6 Although the Third Circuit held that the petitioners’ Fifth Amendment right-to-counsel claim was not barred, the basis for that claim was the government’s decision to return the petitioners to Mexico under the Migrant Protection Protocols while deciding whether to grant asylum or remove them to Guatemala. E.O.H.C., 950 F.3d at 187. The court noted that the claim “ar[ose] not from the efforts to remove them to Guatemala, but from those to return them to Mexico in the meantime,” and the “constitutional harm . . . could not be remedied after a final order of removal.” Id. On these unique facts that are not present here, the court concluded that the “now-or-never” exception to Section 1252(b)(9) applied. Id.
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Numerous district courts have dismissed similar claims by aliens in removal proceedings alleging violation of the right to access counsel and due process, holding that they fall within Section 1252(b)(9)’s broad jurisdictional bar. See, e.g.,Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, No. 1:20-CV-00852 (CJN), 2020 WL 2026971, at *8-9 (D.D.C. Apr. 28, 2020) (dismissing right-to-counsel and due process claims relating to inadequate telephone access at ICE detention facilities because they were “part of the process by which . . . removability will be determined” (quoting Jennings, 138 S. Ct. at 841)); P.L. v. U.S. Immigration & Customs Enf’t, No. 1:19-CV-01336 (ALC), 2019 WL 2568648, at *3-4 (S.D.N.Y. June 21, 2019) (dismissing claims relating to policy to use video teleconferencing in removal proceedings, including violation of right to due process, right to access courts, right to counsel, and evidentiary and cross-examination privileges, since policy arose from removal proceedings); Alvarez v. Sessions,338 F. Supp. 3d 1042, 1048-49 (N.D. Cal. 2018) (dismissing Fifth Amendment right-to-counsel claims based on transfers to detention facilities far away from established counse l, noting that the right to counsel is inextricably linked to the removal process); Vetcher v. Sessions, 316 F. Supp. 3d 70 (D.D.C. 2018) (dismissing claims relating to lack of access to law library materials at detention facility as “inextricably linked to the order of removal” (internal quotation marks omitted)); Mochama v. Zwetow, No. CV 14-2121-KHV, 2017 WL 36363, at *6 (D. Kan. Jan. 3, 2017) (relying on Aguilar, dismissing Fifth Amendment right-to-counsel claim alleging that ICE officers refused to allow detainee see his lawyer); Wheeler v. Unk nown Named Agents of ICE, No. CV 16-6655 DOC (SS), 2016 WL 6126260, at *3 (C.D. Cal. Oct. 20, 2016) (dismissing claim that detention facility violated right to counsel by placing plaintiffs in solitary confinement without access to an attorney before their bond and asylum hearings, since the claims “arise directly from Plaintiffs’ removal proceedings and are therefore barred from district court review”).
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Several district court cases have concluded otherwise, holding that right-to-counsel claims
are merely collateral to removal proceedings and therefore can escape Section 1252(b)(9)’s reach.7
See, e.g., Arroyo v. United States Dep’t of Homeland Sec., No. SACV19815JGBSHKX, 2019 WL
2912848, at *3 (C.D. Cal. June 20, 2019); Torres v. United States Dep’t of Homeland Sec., 411 F.
Supp. 3d 1036, 1047-48 (C.D. Cal. 2019) (relying on Arroyo). However, these cases appear to be
outliers, and several courts have found Arroyo unpersuasive. See Avilez v. Barr, No. 19-CV-08296-
CRB, 2020 WL 570987, at *3 (N.D. Cal. Feb. 5, 2020) (noting that “Arroyo is difficult to reconcile
with the broad language of J.E.F.M.”); Anaya Murcia v. Godfrey, No. C19-587-JLR-BAT, 2019
WL 5597883, at *7 (W.D. Wash. Oct. 10, 2019), report and recommendation adopted, 2019 WL
5589612 (W.D. Wash. Oct. 30, 2019) (“The Court declines to follow Arroyo. The decision is at
odds with the three other analogous cases the Court has been able to identify.”).
Here, Named Plaintiffs’ constitutional and statutory right-to-counsel claim is tied to their
ongoing removal proceedings.8 Named Plaintiff Gomez Carranza alleges that the conditions at
7 Several other cases finding jurisdiction are distinguishable. In a recent case raising a right-tocounsel claim in the immigration detention context, the District Court for the District of Columbia avoided the question whether Section 1252(b)(9) barred the right-to-counsel claim, finding jurisdiction based solely on a substantive due process claim. See S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec., No. CV 18-760 (CKK), 2020 WL 3265533, at *14 (D.D.C. June 17, 2020) (“The Court does not venture an opinion here as to whether it would have jurisdiction over Plaintiff’s Fifth Amendment access to counsel claim, as it decides the Motion on the basis of Plaintiff’s substantive due process claim.”). Named Plaintiffs do not raise a substantive due process claim here. In another case, the District of Oregon found jurisdiction over a right-to-counsel claim after finding that the plaintiffs’ removal proceedings had not yet begun, making Section 1252(b)(9) inapplicable. See Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067, 1076 (D. Or. 2018). Here, both Named Plaintiffs allege they are in removal proceedings.
8 In an effort to evade Section 1252(b)(9), Named Plaintiffs make generalized allegations about the right to counsel in proceedings such as custody or bond hearings. Doc. 1 ¶¶ 26-27, 66-67. However, because neither Named Plaintiff alleges he has been personally deprived of counsel in such proceedings, Named Plaintiffs lack standing to bring any claims relating to such proceedings. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[A] plaintiff must demonstrate standing for each claim he seeks to press.”).
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Otero made it difficult for him to “prepare for his final removal hearing” and caused the hearing to be delayed for two months. Doc. 1 ¶¶ 73, 75. Named Plaintiff Torres Jauregui alleges that the conditions caused difficulty while he prepared for “his final merits hearing on his asylum petition,” leading him to seek a continuance. Id. ¶¶ 79, 81. Because asylum is a form of relief from remova l, right-to-counsel claims arising from the asylum context have also been rejected by district courts on grounds of Section 1252(b)(9). See Rivas Rosales v. Barr, No. 20-CV-00888-EMC, 2020 WL 1505682, at *7-9 (N.D. Cal. Mar. 30, 2020) (dismissing right-to-counsel claims relating to use of video teleconferencing for asylum hearings because claims “pertain specifically to and arise from their removal proceedings” (emphasis in original)); Wheeler, 2016 WL 6126260, at *3 (dismis s ing right-to-counsel claim alleging that plaintiff in solitary confinement could not access her attorney before her asylum hearing). Given that Named Plaintiffs’ right-to-counsel claims are inextricably linked to their removal proceedings, Section 1252(b)(9) channels these claims into the court of appeals once properly exhausted, and the district court lacks jurisdiction to entertain them. See E.O.H.C., 950 F.3d at 187-88; J.E.F.M., 837 F.3d at 1029, 1035; Aguilar, 510 F.3d at 18.
That Named Plaintiffs seek to challenge alleged policies and practices that apply to entire facilities does not alter the result. As the Ninth Circuit explained in J.E.F.M., the INA “channel[s ] review of all claims, including policies-and-practices challenges, through the PFR process whenever they ‘arise from’ removal proceedings.” 837 F.3d at 1035 (quoting 8 U.S.C. § 1251(b)(9)); see also Aguilar, 510 F.3d at 14 (noting that a “pattern and practice claim is not a freestanding cause of action but merely a method of proving an underlying legal violation”). Nor does the class action device also save their right-to-counsel claim from the exhaustion and channeling requirements. See Aguilar, 510 F.3d at 14 (noting that aliens cannot “dodge the channeling machinery of section 1252(b)(9) simply by draping individual claims in the mantle of
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a class action,” and that “courts must always be wary of strategic behavior designed to sidestep exhaustion requirements”); J.E.F.M., 837 F.3d at 1038 (“We recognize that a class remedy arguably might be more efficient than requiring each applicant to file a PFR, but that is not a ground for ignoring the jurisdictional statute.”).
Named Plaintiffs must raise their right-to-counsel claims in their removal proceedings and properly exhaust them before raising them in a petition for review in the court of appeals. Accordingly, this Court should dismiss Claim 1 for lack of jurisdiction.
B. Even If the Court Holds That It Has Jurisdiction over the Right-to-Counsel Claim, Name d Plaintiffs Have Faile d to Alle ge Any Pre judice .
Although aliens in a removal proceeding are entitled to due process under the Fifth Amendment, “due process is not equated automatically with a right to counsel.” Michelson, 897 F.2d at 467. Rather, the plaintiff “must demonstrate prejudice which implicates the fundamental fairness of the proceeding.” Id. The Tenth Circuit requires a showing that “there is a reasonable likelihood” that the outcome would have been different. United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc).
Here, Named Plaintiffs have not alleged that they received an adverse decision as a result of any communication issues with their attorneys, or even that “they lacked representation from counsel of their choosing at any hearing.” Mateo v. Holder, 506 F. App’x 756, 759 (10th Cir. 2012). Rather, they allege that as a result of these issues, they have been allowed to delay their proceedings in order to have more time to prepare. Doc. 1 ¶¶ 75, 81. While they may have suffered inconveniences that “limit[ed] the effectiveness of communications with counsel,” Named Plaintiffs have not alleged that these inconveniences were “‘tantamount to the denial of counsel.’” Lyon v. U.S. Immigration & Customs Enf’t, 171 F. Supp. 3d 961, 975-76 (N.D. Cal. 2016) (quoting Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir. 2005)).
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As the Supreme Court noted in Lewis, a prisoner alleging denial of the right to access courts and counsel “cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense.” 518 U.S. at 351. Rather, he “must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim,” such as dismissal of a complaint he drafted for “failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known,” or inability to file a complaint in the first place because he “was so stymied by inadequacies of the law library.” Id. Because Named Plaintiffs have failed to allege any prejudice rising to the level of a due process violation, the Court should dismiss Claim 1 for failure to state a claim. III. The Court Lacks Jurisdiction ove r Name d Plaintiffs’ Claim Re lating to the Right to
a Full and Fair He aring, and Name d Plaintiffs Have Not Alle ged Any Pre judice . Named Plaintiffs allege that the telephone issues at Otero and El Paso has violated their Fifth Amendment due process right to a full and fair hearing in removal proceedings, including a reasonable opportunity to gather and present evidence. Doc. 1 ¶ 103. Named Plaintiffs further allege violations of their statutory right to gather and present evidence in connection with their removal proceedings, 8 U.S.C. § 1229a(b)(4)(B), as well as their right to a full and fair custody redetermination hearing, id. § 1226(a). Doc. 1 ¶¶ 104-05. An alien “is entitled to a full and fair removal hearing that comports with due process.” Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017). To prevail on a due process claim, the alien “must establish both that he was deprived of due process and that that deprivation prejudiced him.” Id. An alien in a removal proceeding “shall have a reasonable opportunity to
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examine the evidence against the alien, to present evidence on the alien’s own behalf, and to crossexamine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B).9
A. Named Plaintiffs Do Not Allege Any Injury Relating to a Lack of a Full and Fair Hearing and Therefore Lack Standing to Bring Claim 2.
Named Plaintiffs contend that Defendants’ policies and practices “deny and severely restrict their abilities . . . to gather information and evidence necessary for their cases, and to obtain fair hearings while in civil, immigration custody.” Doc. 1 ¶ 2. However, Named Plaintiffs make no allegations that phone issues hindered them from gathering information and evidence or rendered any hearing unfair. Indeed, the allegations regarding gathering evidence refer to “those Plaintiffs who cannot afford an attorney and are not able to retain pro bono counsel,” for whom “telephone contact with the outside world is essential to gather the evidence and government documents necessary to defend against removal charges, locate witnesses, seek relief from removal, including protection from persecution or torture, and do other things necessary to represent themselves in legal proceedings.” Id. ¶ 5; see also id. ¶ 27 (noting that if detained individuals “do not have representation, they must independently gather information and evidence in connection with bond redetermination hearings”).
Here, both Named Plaintiffs are represented by counsel, who presumably has the ability to gather information and evidence on their clients’ behalf. Tellingly, the individual allegations do not include any examples of how inadequate phone service impaired Named Plaintiffs’ ability to gather evidence. Furthermore, they have not alleged any due process violations at any hearings.
9 Although Named Plaintiffs cite 8 U.S.C. § 1226(a) for the proposition that they are entitled to a full and fair custody redetermination hearing, this provision provides that an alien may be arrested and detained pending removal, and that the Attorney General may release the alien on bond or conditional parole. It does not contain any language regarding the right to a full and fair hearing. In any event, because Plaintiffs lack standing regarding any Section 1226(a) hearings, Defendants will focus on Named Plaintiffs’ claims relating to the right to a full and fair removal hearing.
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Because Plaintiffs have not personally suffered any injury relating to the right to a full and fair hearing, they lack standing to bring Claim 2.
B. Section 1252(b)(9) Deprives This Court of Jurisdiction over the Full-and-Fair Hearing Claim.
As with Named Plaintiffs’ right-to-counsel claim, the full-and-fair hearing claim is inextricably linked to their removal proceedings because it relates to “part of the process by which their removability will be determined.” Jennings, 138 S. Ct. at 841 (plurality opinion) (emphasis added). Other courts have dismissed similar due process claims pursuant to Section 1252(b)(9). See, e.g., Aguilar, 510 F.3d at 18 (“To the extent that [the plaintiffs] arguably have raised procedural due process claims above and beyond their right-to-counsel claims—such as their vaguely articulated plaints about difficulties in calling witnesses and in presenting evidence at the removal proceedings—we find that section 1252(b)(9) mandates their exhaustion.”); P.L., 2019 WL 2568648, at *8 (“Plaintiffs’ access-to-counsel and due process claims arise from the course of removal hearings, placing them within § 1252(b)(9)’s broad jurisdictional bar.”); Vetcher, 316 F. Supp. 3d at 77 (“At bottom, Vetcher’s claims that he has been denied due process during his removal proceedings are enmeshed with his removal proceedings and can be adequately reviewed through a petition for review in the Fifth Circuit. They must, therefore, proceed through the judicial-review process Congress supplied in § 1252.”). Accordingly, the Court should dismiss Claim 2 pursuant to Section 1252(b)(9).
C. Section 1229a(b)(4)(B) Does Not Confer a Statutory Right to Gather Information and Evidence for Removal Proceedings.
Named Plaintiffs cite 8 U.S.C. § 1229a(b)(4)(B) as conferring a “statutory right to gather and present evidence in connection with their removal proceedings under the INA.” Doc. 1 ¶ 104. Although this provision does provide an alien the right “to present evidence on the alien’s own behalf,” it does not mention any right to gather evidence in advance of the hearing. 8 U.S.C.
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§ 1229a(b)(4)(B (emphasis added). Accordingly, if the Court concludes it has subject matter jurisdiction, it should dismiss the claim under Section 1229a(b)(4)(B) for failure to state a claim. See Lyon, 171 F. Supp. 3d at 977 (concluding that the INA does not “provide for a general right to investigate and gather evidence in advance of and in preparation for a removal hearing”).
D. Named Plaintiffs Have Failed to Allege Prejudice From Any Inability to Use the Telephone to Gather Information and Evidence.
To prevail on their Fifth Amendment full-and-fair hearing claim, Named Plaintiffs must show prejudice, i.e., “a reasonable likelihood” that the outcome of the proceeding would have been different. Aguirre-Tello, 353 F.3d at 1209. Here, Named Plaintiffs do not allege any prejudice because their hearings were continued or delayed and thus had not occurred at the time they filed the Complaint. Doc. 1 ¶¶ 75, 81. Absent any allegation of prejudice, Named Plaintiffs cannot state a Fifth Amendment due process claim, and the Court should dismiss the constitutional full-andfair hearing claim under Rule 12(b)(6). IV. Named Plaintiffs’ First Amendment Claim Is Duplicative of Their Other Claims and
Should Be Dismissed for the Same Reasons. Named Plaintiffs’ third claim alleges that “Defendants have violated Plaintiffs’ right to petition the government by denying and severely restricting the telephone access necessary to seek legal representation and obtain documents and evidence in support of their applications for immigration benefits.” Doc. 1 ¶ 110. Although the Tenth Circuit does not appear to have addressed the First Amendment right to petition the government for redress of grievances in the immigration context, other courts of appeals have held that the right extends to the right to petition for asylum. See, e.g., MaldonadoPerez v. I.N.S., 865 F.2d 328, 332 (D.C. Cir. 1989); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1036 (5th Cir. 1982); see also Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 595 (9th Cir. 1992), as amended on denial of reh’g (June 18, 1993) (noting that “the First
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Amendment extends to the right to petition an administrative agency”). Where the claim relates to meaningful access to the administrative process, “the focus of the First Amendment analysis is essentially the same as that under the Due Process Clause.” Nat’l Ass’n of Radiation Survivors, 994 F.2d at 595.
A. Named Plaintiffs Lack Standing to Raise Their First Amendment Claim Because They Do Not Allege Any Injury Relating to Inability to Obtain Counsel or Evidence.
Named Plaintiffs’ First Amendment claim is duplicative of their Fifth Amendment claims alleging violation of the right to counsel and the right to a full and fair hearing. However, because Named Plaintiffs do not personally allege an inability to obtain counsel or evidence, they have not suffered the injury they allege to support their First Amendment claim. Doc. 1 ¶ 110. Because they cannot rely on the experiences of unnamed class members to fulfill the injury requirement, the Court should dismiss Claim 3 for lack of standing. See Donelson v. United States, 730 F. App’x 597, 601 (10th Cir. 2018) (holding that “a named plaintiff must possess standing as to each individua l claim asserted in a complaint”).
B. This Court Lacks Jurisdiction over the First Amendment Claim Because of Se ction 1252(b)(9).
To the extent Named Plaintiffs’ First Amendment claim relates to their personal allegations relating to right to counsel and the right to a full and fair hearing in removal proceedings, the claim also falls within the ambit of Section 1252(b)(9) for the same reasons set forth above. Consequently, Named Plaintiffs must first exhaust this claim and then consolidate it with all their other claims arising out of removal proceedings in a petition for review filed in the court of appeals. The Court should dismiss the First Amendment claim for lack of jurisdiction.
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CONCLUSION The Court should dismiss this case for lack of subject-matter jurisdiction, or alternatively, for failure to state a claim.
Respectfully submitted. JOHN C. ANDERSON United States Attorney
/s/ Christine H. Lyman 6/29/2020 CHRISTINE H. LYMAN Assistant United States Attorney District of New Mexico P.O. Box 607 Albuquerque, NM 87103 505-346-1532 Christine.Lyman@usdoj.gov CERTIFICATE OF SERVICE I hereby certify that on June 29, 2020, Defendants filed through the United States District Court CM/ECF System the foregoing document, causing it to be served by electronic means on all counsel of record. /s/ Christine H. Lyman 6/29/2020 CHRISTINE H. LYMAN Assistant United States Attorney
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 Case 2:20-cv-00424-KG-KRS Document 24 Filed 06/29/20 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

FRANKLIN GOMEZ CARRANZA and RUBEN TORRES JAUREGUI,

Plaintiffs, v.

No. 20-cv-00424 KG/KRS

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW T. ALBENCE, ACTING DIRECTOR OF ICE; DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; COREY A. PRICE, FIELD OFFICE DIRECTOR FOR THE EL PASO FIELD OFFICE,

Defendants.

DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF CLASS COUNSEL (DOC. 4)
The Court should decline to certify a class under Federal Rule of Civil Procedure 23. First, as set forth in Defendants’ Motion to Dismiss, Doc. 23, this Court lacks subject matter jurisdiction over Named Plaintiffs’ claims.1 They lack standing to bring claims for injuries they have not personally suffered and cannot rely on the injuries of absent putative class members to manufacture standing. Furthermore, to the extent Named Plaintiffs—or any unnamed class members, for that matter—do have standing based on the injuries they personally suffered, their claims must be exhausted and brought in a petition for review filed in the court of appeals. See 8 U.S.C. §§ 1252(a)(5), 1252(b)(9). If the Court concludes that there is no subject matter jurisdiction, it need not reach the issue of class certification.

1 Defendants will use “Named Plaintiffs” to refer to Messrs. Gomez Carranza and Torres Jauregui. To the extent the Complaint uses the term “Plaintiffs” to refer to unnamed class members, Defendants will refer to them as “class members” to distinguish them from Named Plaintiffs.

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Second, Named Plaintiffs’ class certification motion cannot survive the rigorous analysis required under Rule 23. Although Named Plaintiffs seek to represent all current and future detaine d individuals at Otero County Processing Center (“Otero”) and El Paso Service Processing Center (“El Paso”), they cannot satisfy the commonality and typicality prerequisites because of the highly individualized nature of their claims and defenses. They also cannot satisfy the adequacy requirement to the extent one Named Plaintiff’s claims are moot and proposed class counsel has not demonstrated any willingness to engage in in-person communications with the class. Moreover, Named Plaintiffs cannot satisfy the requirements for certification as an injunctive relie f class. Named Plaintiffs propose a sprawling nine-part injunction, including “reasonable accommodations” for indigent and disabled class members and “an adequate process” for scheduling legal calls. However, because their proposal does not describe in reasonable detail what Defendants must do to comply, the Court cannot fashion injunctive relief satisfying Federal Rule of Civil Procedure 65. Doc. 1 at 28.
FACTUAL BACKGROUND Named Plaintiff Franklin Gomez Carranza is a 21-year-old citizen of Honduras who, at the time of the Complaint, was in the custody of U.S. Immigrations and Customs Enforcement (“ICE”) at Otero and was formerly in custody at El Paso.2 Doc. 1 ¶¶ 70-71. He has removal proceedings pending in El Paso Immigration Court. Id. ¶ 70. Named Plaintiff Ruben Torres Jauregui is a 29-
2 Named Plaintiff Gomez Carranza has been released on bond. However, Defendants do not contend that his release moots the claims of unnamed class members and will therefore address his claims as of the time the Complaint was filed. See, e.g., Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (noting that where named plaintiffs’ claims become moot before certification, class certification can relate back to the filing of the complaint); see also United States v. SanchezGomez, 138 S. Ct. 1532, 1538 (2018) (noting that “a class action would be moot if no named class representative with an unexpired claim remained at the time of class certification” (emphasis added)).
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year-old citizen of Cuba who is also currently in ICE custody at Otero and also has removal proceedings pending in El Paso Immigration Court. Id. ¶¶ 77-78. Both Named Plaintiffs allege that restricted or deficient telephone service, lack of privacy, and limited availability of free calls to their attorneys hindered their ability to prepare for their removal and asylum hearings, causing them to have to seek continuances and prolong their detention. Id. ¶¶ 72-75; 78-82.
Named Plaintiffs allege a broad array of other telephone-related issues suffered by the class members that they do not specifically claim to have experienced, including lack of free telephone service for indigent class members, lack of free telephone service to contact government entities, and lack of information in rare languages about accessing phone services. Id. ¶ 7. These disparate issues, according to Named Plaintiffs, violate the putative class members’ right to representation by counsel, right to a full and fair hearing, and right to petition the government for redress of their grievances. Id. ¶¶ 100, 106, 110. Named Plaintiffs seek to represent a class of “[a]ll current and future adults who are or will be detained in immigration custody at the El Paso Service Processing Center and the Otero Processing Center.” Id. ¶ 84. They seek declaratory and injunctive relief, class certification, appointment of class counsel, and attorneys’ fees. Id. at 28 (Prayer for Relief).
STANDARD OF REVIEW “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki,442 U.S. 682, 700-01 (1979)). The party seeking class certification bears the burden of proving that it meets all four of the prerequisites set forth in Federal Rule of Civil Procedure 23(a), and that the proposed class action falls within one of the three types of actions permitted under Rule 23(b). See Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997).
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Rule 23 does not set forth a mere pleading standard,” and a plaintiff “must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes,564 U.S. 338, 350 (2011). The Court must conduct a “rigorous” class certification analysis, which may “entail some overlap with the merits of the plaintiff’s underlying claim.” Id. at 351. If the Court is not fully satisfied that all Rule 23 requirements are met, the Court cannot certify the class. Id.; see also Vallario v. Vandehey, 554 F.3d 1259, 1269 (10th Cir. 2009) (“[T]he district courts must decide each case on its own facts, taking into account whatever practical and prudential considerations apply to the matter at hand.” (internal quotation marks omitted)).
Rule 23(a) requires a party seeking to certify a class to demonstrate that: (1) the class is so numerous that joinder is impractical (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the named plaintiffs are typical of claims or defenses of the class (“typicality”); and (4) the named plaintiffs will fairly and adequately protect the interest of the class (“adequacy of representation”). Fed. R. Civ. P. 23(a).
In addition, “the proposed class must satisfy at least one of the three requirements listed in Rule 23(b).” Wal-Mart, 564 U.S. at 345. Here, Named Plaintiffs seek certification under Rule 23(b)(2), which applies when “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.” Fed. R. Civ. P. 23(b)(2). “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, 564 U.S. at 360 (internal quotation marks omitted).
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ARGUMENT I. The Court Need Not Reach the Issue of Class Certification Because It Lacks Subject
Matter Jurisdiction Over this Action. Although Rule 23 provides that a court must determine whether to certify a class “[a]t an early practicable time,” Fed. R. Civ. P. 23(c)(1)(A), “[t]he court may rule on motions pursuant to Rule 12, Rule 56, or other threshold issues before deciding on certification; however, such rulings bind only the named parties.” Annotated Manual for Complex Litigation § 21.133 (4th ed.) (emphasis added). Because “[e]fficiency and economy are strong reasons for a court to resolve challenges to personal or subject-matter jurisdiction before ruling on certification,” a court “should direct counsel to raise such challenges before filing motions to certify” and “should rule early on motions to dismiss.” Id.; see also 3 Newberg on Class Actions § 7:9 (5th ed.) (“Ruling first on dispositive motions is typically a more efficient procedure and will often render moot the necessity of a court ruling on certification.”) (footnotes omitted). The Tenth Circuit has noted that there is no obligation for a district court to rule on a class certification motion before a dispositive motion. See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1207-08 (10th Cir. 2015) (affirming where the district court stayed ruling on class certification motion, granted the defendant’s motion for summary judgment, and denied class certification motion as moot). Dismissal before certification is not only preferable from an efficiency standpoint, but it also preserves the claims of unnamed class members. Reed v. Bowen, 849 F.2d 1307, 1313 (10th Cir. 1988) (noting that “should any members of the putative class decide to assert this suit in the future, they are, of course, not bound by the dismissal of the named plaintiffs’ claims); see also Rector v. City & Cty. of Denver,348 F.3d 935, 949-50 (10th Cir. 2003) (after finding the named plaintiffs lacked standing to bring certain claims, decertifying class to avoid adversely affecting the interests of the unnamed class members). Accordingly, the Court
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should consider Defendants’ motion to dismiss before considering the motion to certify the class. If the Court concludes that dismissal of Named Plaintiffs’ claims is appropriate, it need not reach the question of certification. See, e.g., P.L. v. U.S. Immigration & Customs Enf’t, No. 1:19-CV01336 (ALC), 2019 WL 2568648, at *4 (S.D.N.Y. June 21, 2019) (in a case raising similar accessto-counsel and due process claims, granting motion to dismiss for lack of subject matter jurisdiction without reaching the pending class certification motion). II. The Proposed Class Does Not Meet All Four Prerequisites Under Rule 23(a).
Certification is inappropriate because Named Plaintiffs fail to show that they meet all four of Rule 23(a)’s requirements.3
A. The Propose d Class Does Not Satisfy the Commonality Re quire me nt. Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury[.]’” Wal-Mart, 568 U.S. at 349-50 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). It is not sufficient for a plaintiff to show that the class members “all suffered a violation of the same provision of law,” since that alone “gives no cause to believe that all their claims can productively be litigated at once.” Id. at 350. Rather, “[t]heir claims must depend upon a common contention” that “is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Here, Named Plaintiffs assert that the common question of law or fact “is whether Defendants’ denial and restriction of telephone access to detained individuals in Otero and El Paso violate Plaintiffs’ constitutional, statutory, and regulatory rights to access counsel.” Doc. 5 at 9.
3 Defendants do not contest that the proposed class satisfies the numerosity requirement of Rule 23(a)(1).
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Of course, “at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality.” Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998) (en banc). “[R]ather than adequately advancing a discrete question of law, plaintiffs merely attempt to broadly conflate a variety of claims to establish commonality via an allegation of ‘systematic failures.’” J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999).
Indeed, the Complaint alleges a laundry list of alleged telephone-related issues that go far beyond the overarching category of “denial and restriction of telephone access.” For example, the Complaint alleges the following injuries suffered by various categories of detainees:
• Represented class members complain about noise, call quality, and lack of privacy when speaking with their attorneys. Id. ¶¶ 33-36.
• Indigent class members complain that phone calls are too expensive. Doc. 1 ¶ 41. • Class members calling numbers with an automated greeting or voicemail tree compla in
about getting disconnected. Id. ¶¶ 48-49. • Class members needing interpreters complain about lack of three-way calling. Id. ¶ 50. • Disabled class members complain about lack of accommodations. Id. ¶ 55. • Class members who speak rare languages complain about lack of instructions in their
language. Id. • Unrepresented class members complain about difficulty obtaining counsel, gathering
evidence, and seeking “non-immigration attorney assistance.” Id. ¶¶ 56-58. Given the sheer breadth of these allegations, Named Plaintiffs cannot show that the class members have “suffered the same injury,” or that there is a common question whose resolution “will resolve an issue that is central to each one of the claims in one stroke.” Wal-Mart, 568 U.S. at 349-50 (internal quotation marks omitted).
Furthermore, the claims relating to the denial of the right to counsel and the right to a full and fair hearing sound in due process, which the Supreme Court has cautioned requires an individualized analysis. See Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018) (directing court on
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remand to consider “whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims” given that due process “‘calls for such procedural protections as the particular situation demands’” (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). To prevail on a due process claim, a plaintiff must show prejudice. See Michelson v. I.N.S., 897 F.2d 465, 467 (10th Cir. 1990) (Fifth Amendment right-to-counsel); Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017) (Fifth Amendment right to a full-andfair removal proceeding). Whether there is prejudice depends on the facts and circumstances of each case. For example, in Vilchez v. Holder, the petitioner alleged that a video-conferenced immigration hearing violated his right to due process and right to a fair hearing pursuant to 8 U.S.C. § 1229a(b)(4)(B).4 682 F.3d 1195, 1199-1200 (9th Cir. 2012). The Ninth Circuit noted that such claims “must be determined on a case-by-case basis, depending on the degree of interference with the full and fair presentation of petitioner’s case caused by the video conference, and on the degree of prejudice suffered by the petitioner.” Id.
Because the due process claims require an individualized analysis, they are not susceptible to classwide resolution in one stroke. The Court should therefore find that Named Plaintiffs have not met the commonality requirement of Rule 23(a)(2).
B. Nor Doe s the Proposed Class Satisfy the Typicality Re quire me nt. Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” The commonality and typicality requirements “tend to
4 The petitioner in Vilchez filed a petition for review directly in the Ninth Circuit Court of Appeals rather than seeking review by the district court as Named Plaintiffs do here. See 682 F.3d at 1198. As Defendants argue in their motion to dismiss, challenges to due process relating to removal hearings may not be brought in district court because 8 U.S.C. § 1252(b)(9) channels such claims into the courts of appeals through the petition for review process. As Vilchez demonstrates, an alien does not lack the ability to challenge due process violations simply because the district court does not get the first bite at review.
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merge.” Wal-Mart, 564 U.S. at 349 n.5 (quoting Falcon, 457 U.S. at 157-58 n.13). “[D]iffering fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). A named plaintiff is not typical if he “is subject to a unique defense that is likely to become a major focus of the litigation.” Beck v. Maximus, Inc., 457 F.3d 291, 301 (3d Cir. 2006).
Here, Named Plaintiffs are two represented aliens in removal proceedings. Doc. 1 ¶¶ 70, 78. They allege that the poor telephone service at Otero has injured them by “interfering with their ability to access counsel, preventing them from preparing for their immigration court hearings, and necessitating motions to continue those hearings, thus prolonging their detention in ICE custody.” Doc. 5 at 7. Named Plaintiffs’ injuries do not appear to be typical of the class of all detainees at El Paso and Otero, however. For example, Named Plaintiffs allege that only 36% of detainees nationwide are represented by counsel. Doc. 1 ¶ 68. Assuming that this figure is representative of El Paso and Otero, the majority of class members are not represented. Moreover, although the Complaint makes wide-ranging allegations regarding class members who are disabled, indigent, or speak rare languages, Named Plaintiffs do not allege that they experience similar issues as such class members. Named Plaintiffs’ claims may also be subject to unique defenses. Since due process requires a showing of prejudice, whether their claims are meritorious will depend on the facts and circumstances of their particular hearings, as well as whether any deficiencies resulted from telephone access issues or the performance of their counsel notwithstanding such issues.
Commonality and typicality rise and fall together. See Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982) (“In determining whether the typicality and commonality requirements have been fulfilled, either common questions of law or fact presented by the class will be deemed
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sufficient.”). For the same reasons that Named Plaintiffs cannot show a common question of law or fact, they also cannot show that their claims and defenses are typical of the class they seek to represent. Consequently, the Court should find that they do not satisfy the typicality requirement of Rule 23(a)(3).
C. Name d Plaintiff Gome z Carranza and Propose d Class Counsel Have Not Met The ir Burde n to Show The y Will Ade quate ly Re pre sent the Class.
Rule 23(a)(4) requires that “the representative parties . . . fairly and adequately protect the interests of the class.” The adequacy requirement tends to merge with the commonality and typicality requirements. See Falcon,457 U.S. at 157-58 n.13. “‘When the court reviews the quality of the representation under Rule 23(a)(4), it will inquire not only into the character and quality of the named representative party, but also it will consider the quality and experience of the attorneys for the class.’” Lewis v. Clark, 577 F. App’x 786, 793 (10th Cir. 2014) (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1769.1 (3d ed.2005) (footnote omitted)). “Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th Cir. 2002) (internal quotation marks omitted).
Here, Named Plaintiff Gomez Carranza is now out on bond, but the declaration he filed was drafted before his release. See Doc. 6. The Court should therefore consider whether Named Plaintiff Gomez Carranza will vigorously prosecute the action on behalf of the class given the change in his circumstances. See, e.g., Reed v. Bowen, 849 F.2d 1307, 1312 (10th Cir. 1988) (noting the need for “the district court to determine whether mooted named plaintiffs will remain adequate class representatives”). Furthermore, for the reasons stated below in Section IV, the Court
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should also consider whether proposed class counsel Orrick will prosecute this action vigorously in light of its attorneys’ apparent reluctance or inability to travel to Otero and El Paso in person, even though telephone communications with their clients is allegedly inadequate. III. The Proposed Class Does Not Satisfy the Requirements for Certification under
Rule 23(b)(2). The proposed class must also satisfy one of the Rule 23(b) requirements for certification. Here, Named Plaintiffs rely on Rule 23(b)(2), which requires that they show that “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.” Fed. R. Civ. P. 23(b)(2). “Ensuring the provisions of Rule 23(b)(2) are met requires the district court take a close look at the relationship between a proposed class, its injuries, and the relief sought.” Vallario, 554 F.3d at 1267 (internal quotation marks omitted). “Ultimately, if equitable relief is not uniformly applicable to the class, and thus time-consuming inquiry into individual circumstances or characteristics is required, little is gained from the case proceeding as a class action.” Id. “Rule 23(b)(2) demands a certain cohesiveness among class members with respect to their injuries, the absence of which can preclude certification.” Shook v. Bd. of Cty. Comm’rs of Cty. of El Paso, 543 F.3d 597, 604 (10th Cir. 2008). If the class is cohesive, “any classwide injunctive relief can satisfy the limitations of Federal Rule Civil Procedure 65(d)—namely, the requirement that it ‘state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.’” Id. (quoting Fed. R. Civ. P. 65(d)(1) (alteration in the original)). Moreover, cohesiveness among the class members obviates the need for “relief specifically tailored to each class member . . . to correct the allegedly wrongful conduct of the defendant.” Id. (internal quotation marks omitted).
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The Motion for Class Certification describes the proposed class’s injuries at a high level of abstraction to make them appear to be uniform and applicable to the entire class: “Defendants do not provide telephone access for class members to contact and effectively communicate with their attorneys.” Doc. 5 at 12. However, the myriad injuries alleged in the Complaint belie the assertion that the class—consisting of all present and future detainees at Otero and El Paso—is cohesive. As noted above in Section II.A., these alleged injuries range from complaints that phone calls are too expensive for indigent class members to concerns that class members who speak rare languages lack translated instructions. Given all of these disparate injuries alleged by different groups of class members, the proposed class does not satisfy Rule 23(b)(2)’s requirement that “class members’ injuries must be sufficiently similar that they can be addressed in an single injunction that need not differentiate between class members.” Shook, 543 F.3d at 604.
To satisfy the cohesiveness requirement, “a motion for class certification must describe the equitable relief sought in sufficient detail that the district court can conceive of an injunction that comports with the requirements of Rules 23(b)(2) and 65(d).” Vallario, 554 F.3d at 1267-68; see also Shook, 543 F.3d at 605 n.4. Here, the motion for class certification describes the equitable relief sought as follows:
The injunctive relief specifically includes that Defendants provide free, confidential legal calls, and to make reasonable accommodations for non-legal calls for indige nt class members. Compl. at pages 28-29. The injunctive relief would also include requiring Defendants to ensure the privacy of legal calls and no obstructive background noise. Id. Further, the injunctive relief requested includes Defendants assisting class members in penetrating telephone voicemail tress [sic] for legal calls, leaving voicemails for legal calls, providing class members with adequate notice about the communication options available to them, and providing accommodations for non-English speaking class members, illiterate class members, and class members with disabilities. Doc. 5 at 13.
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The relief sought by the proposed class bears many similarities to the relief sought in Shook. There, the named plaintiffs sought to represent a class of current or future El Paso County Jail inmates with serious mental health needs, or alternatively, “all persons who are now, or in the future will be, confined in the El Paso County Jail.” Shook, 543 F.3d at 602. They sought “an injunction establishing standards across a wide range of areas affecting mentally ill inmates.” Id. In affirming the district court’s denial of class certification under Rule 23(b)(2), the Tenth Circuit noted that much of the relief requested would require “the district court to craft an injunction that takes into account the specific circumstances of individual inmates’ plights.” Id. at 605. For example, the plaintiffs’ request for “adequate screening and precautions to prevent self-harm and suicide” would require individualized inquiries into “how and in what ways individual inmates are predisposed to harm themselves.” Id. Moreover, the plaintiffs “eschewed any effort to give content to what it would mean to provide adequate mental health staff, adequate screening, or an adequate system for delivering medication.” Id. at 606. Because Rule 65(d) requires the injunction to be sufficiently specific that the court and defendant can evaluate compliance, “a class certification motion requesting injunctive relief that simply prescribes ‘adequate’ or ‘appropriate’ levels of services fails to indicate how final injunctive relief may be crafted to ‘describe[ ] in reasonable detail . . . the acts . . . required.’” Id. (quoting Fed. R. Civ. P. 65(d)).
Here, as in Shook, Named Plaintiffs “seek an injunction ordering a wide range of behavior conformed to an essentially contentless standard, bounded only by reference to ambiguous terms like ‘reasonable’ behavior or ‘adequate’ treatment.” Id. at 608. For example, they seek telephone access sufficient to “receive adequate representation from” their attorneys, “reasonable accommodations for non-legal calls for indigent class members,” “adequate notice about the communication options available to them,” an “adequate process by which immigration attorneys
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can schedule legal calls,” and the “ability to have calls with attorneys in a place of reasonable quiet.” Doc. 5 at 10, 13 (emphasis added); Doc. 1, Prayer for Relief ¶ 4 (emphasis added). Such language fails to give the Court “any indication as to how injunctive relief can be crafted to satisfy the specificity requirements of Rule 65(d).” Shook, 543 F.3d at 607-08.
Because Named Plaintiffs “seek to enjoin a ‘wide range of behavior’ against the ‘broad class framed in the complaint,’” yet fail to “‘give content’ to the equitable relief they request,” this Court should deny certification under Rule 23(b)(2). Vallario, 554 F.3d at 1268 (quoting Shook, 543 F.3d at 605, 607). IV. The Court Should Not Appoint Orrick as Class Counsel Without a Stronge r Showing
As to the Resources It Is Willing to Commit to Representing the Class. Named Plaintiffs seek to appoint attorneys from the firm Orrick as class counsel pursuant to Rule 23(g)(1), which requires the Court to consider: “(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). Defendants do not contest that Orrick satisfies the first three requirements. See Pavone Decl., Doc. 9. However, Orrick does not explain what resources it will commit to representing the class other than to state in conclusory fashion that it “intends to commit all necessary resources to do so.” Id. ¶ 9; see also Doc. 5 at 14. The entire premise of this case is that the proposed class cannot adequately communicate with their attorneys by telephone, and in-person visitation by their attorneys is too time-consuming and expensive to be a viable alternative. If attorneys cannot reach their clients by telephone, as the Complaint alleges, it is unclear that the Orrick attorneys can adequately represent the class unless they are willing to visit their clients in person.
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According to the Complaint, “[i]n-person visits by out-of-state counsel to El Paso or Otero often are prohibitively expensive and unreasonably time-consuming.” Doc. 1 ¶ 4. “For example, in order for a pro bono attorney based in New York to physically visit a detained client in El Paso, he or she would have to take a 1+ stop flight totaling approximately 16 roundtrip travel hours and costing upwards of $400. To visit a detained client in Otero, a New York-based attorney would be forced to add the time and expense of renting a car and driving from El Paso to Otero.” Id. ¶ 61. Moreover, “[w]ith COVID-19-related mandated remote working and social distancing policies, in-person visitation is all but impossible.” Id. ¶ 62.
The Orrick attorneys listed in the Pavone Declaration are all based on the East Coast (New York and Boston), according to Orrick’s website (www.orrick.com). Named Plaintiffs have not explained whether their proposed choice of class counsel would be willing to travel all the way to El Paso or Otero if the need arises.5 Indeed, it appears that no Orrick attorneys have visited either facility in person. See Pavone Decl., Doc. 9 ¶ 8 (noting that Orrick investigated this matter by “research[ing] the applicable laws and correspond[ing] with various interested and knowledgeable parties”). Nor has Orrick explained what “COVID-19-related mandated remote working and social distancing policies” would prevent their attorneys from making an in-person visit. In-person attorney visits are still available at El Paso and Otero, and the Orrick attorneys do not specifica lly allege that they are among the attorneys who cannot visit because they lack personal protective equipment. Doc. 1 ¶¶ 52, 80.
5 Although Orrick did represent a similar class in an action in the Northern District of California, Orrick has an office in San Francisco, the attorneys representing the class were based in San Francisco, and the facilities at issue in that case were “21, 83, 123, and 282 driving miles from San Francisco,” Lyon v. U.S. Immigration & Customs Enf’t, 171 F. Supp. 3d 961, 964 (N.D. Cal. 2016), which is not as arduous a journey as Named Plaintiffs characterize for a New York-based pro bono attorney to come to Otero.
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Because proposed class counsel have not presented evidence that they will devote the time and effort to make in-person visits when needed, they have not satisfied the requirements of Rule 23(g)(1), and the Court should decline to appoint them as class counsel. See, e.g., Goers v. L.A. Entm’t Grp., Inc., No. 2:15-CV-412-FTM-99CM, 2017 WL 78634, at *6 (M.D. Fla. Jan. 9, 2017) (declining to appoint class counsel “[a]bsent assurances” that counsel had the necessary resources to devote to the action); Fisher v. United States, 69 Fed. Cl. 193, 201 (2006) (declining to appoint class counsel when the plaintiff “failed to present the Court with sufficient evidence” to show, inter alia, that counsel had resources necessary to litigate the case). V. Denial of Class Certification Does Not Deprive Named Plaintiffs and the Unnamed
Class Members of a Remedy. Named Plaintiffs argue that class certification is appropriate because “Plaintiffs cannot individually challenge ICE’s systemic denial of telephone access,” and class certification “thus provides the only viable means to adjudicate the underlying claims.” Doc. 5 at 5. The Tenth Circuit has cautioned district courts “against giving undue weight to [plaintiffs’] claims that they will be unable to obtain judicial review of [defendants’] jail practices absent certification of their requested class.” Vallario, 554 F.3d at 1269. As the Tenth Circuit noted in Shook, “[n]either does the inability of plaintiffs to have this particular class certified defeat their ability to have these issues reviewed either individually or even through the class action mechanism.” 543 F.3d at 610-11. The sole consideration for the Court is whether this particular class satisfies the requirements of Rule 23, without regard to other avenues for relief. “Only if the district court is convinced that the requirements of the federal rules are satisfied may it certify a class.” Vallario, 554 F.3d at 1269.
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CONCLUSION For the foregoing reasons, the Court should deny Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel (Doc. 4).
Respectfully submitted. JOHN C. ANDERSON United States Attorney
/s/ Christine H. Lyman 6/29/2020 CHRISTINE H. LYMAN Assistant United States Attorney District of New Mexico P.O. Box 607 Albuquerque, NM 87103 505-346-1532 Christine.Lyman@usdoj.gov
CERTIFICATE OF SERVICE I hereby certify that on June 29, 2020, Defendants filed through the United States District Court CM/ECF System the foregoing document, causing it to be served by electronic means on all counsel of record.
/s/ Christine H. Lyman 6/29/2020 CHRISTINE H. LYMAN Assistant United States Attorney
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 Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 1 of 28

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

René A. Kathawala 6 Paige Pavone

7

Lauren D. Allen ORRICK, HERRINGTON & SUTCLIFFE, LLP

8 51 West 52nd Street New York, NY 10019

9 Telephone: (212) 506-3604

Facsimile: (212) 506-5151 10 Email: ppavone@orrick.com

11

12 Attorneys for Plaintiffs 13

14

UNITED STATES DISTRICT COURT

15

DISTRICT OF NEW MEXICO

16 FRANKLIN GOMEZ CARRANZA and
17 RUBEN TORRES JAUREGUI,

Case No. 20-CV-00424 (JAP) (KRS)

18 Plaintiffs,

19

v.

20 UNITED STATES IMMIGRATION AND 21 CUSTOMS ENFORCEMENT, et al.,
22 Defendants.

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

23

24

25

26

27

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1 2
I. 3 II. 4 III. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 IV. 21 22 23 24 25 26 27

TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................. 1
LEGAL STANDARD........................................................................................................ 2
ARGUMENT ..................................................................................................................... 3
A. Named Plaintiffs Have Standing to Bring this Action on Behalf of the Proposed Class ....................................................................................................... 3
1. Plaintiffs meet the Article III standing requirements................................. 3
2. Defendants’ narrow standing argument concedes that Named Plaintiffs have standing, but impermissibly conflates standing with class certification. ...................................................................................... 6
3. Defendants’ standing arguments fail because they conflate claims and allegations, continuing to improperly characterize a Rule 23 adequacy of representation argument as standing. ................................... 8
4. Lewis v. Casey does not support Defendants’ position.............................. 9
B. 8 U.S.C. § 1252(b)(9) is Not Applicable Here and Therefore the Court Has Subject Matter Jurisdiction over Plaintiffs’ Claims............................................. 10
1. The Supreme Court has narrowly interpreted Section 1252(b)(9). ......... 11
2. Section 1252(b)(9) does not apply to Plaintiffs’ claims because they are collateral to the removal process............................................... 13
3. Section 1252(b)(9) does not apply to Plaintiffs’ claims because they are effectively unreviewable via a petition for review. .................... 17
C. Plaintiffs Have a Right to a Full and Fair Hearing and Have Properly Stated Their Fifth Amendment Due Process Claim............................................. 19
1. Plaintiffs have a statutory right to present evidence, which naturally encompasses gathering evidence. ............................................ 19
2. Plaintiffs need not allege prejudice to satisfy the elements of a Fifth Amendment Due Process Claim, but have done so by alleging prolonged detention. ................................................................................ 20
CONCLUSION................................................................................................................ 21

ii

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 3 of 28

1
2 Cases
3

TABLE OF AUTHORITIES

Page(s)

4

Abraham v. WPX Prod. Prods., LLC, 184 F. Supp. 3d 1150 (D.N.M. 2016) ........................................................................................8

5 Aguilar v. U.S. Immigration and Customs Enf’t,

6

510 F.3d 1 (1st Cir. 2007) ........................................................................................................15

7 Alvarez v. Sessions,

338 F. Supp. 3d 1042 (N.D. Cal. 2018) ...................................................................................15 8

Anaya Murcia v. Godfrey,

9

No. C19-587-JLR-BAT, 2019 WL 5597883 (W.D. Wash. Oct. 10, 2019) .............................15

10 Arroyo v. U.S. Dep’t of Homeland Sec.,

11

No. SACV19815JGBSHKX, 2019 WL 2912848 (C.D. Cal. June 20, 2019)..........................17

12 Ashcroft v. Iqbal,

556 U.S. 662 (2009)...................................................................................................................2 13

Avilez v. Barr,

14

No. 19-CV-08296-CRD, 2020 WL 570987 (N.D. Cal. Feb. 5, 2020).....................................15

15 Badwan v. Gonzales,

16

494 F.3d 566 (6th Cir. 2007) ...................................................................................................20

17 Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)...................................................................................................................2

18

Benjamin v. Fraser,

19

264 F.3d 175 (2d Cir. 2001).................................................................................................5, 10

20 Cancino-Castellar v. Nielsen,

21

338 F. Supp. 3d 1107 (S.D. Cal. 2018)....................................................................................14

22 Clark v. United States, 234 F. Supp. 3d 1127 (D.N.M. 2014) ........................................................................................3

23

Colo. Cross Disability Coal. v. Abercrombie & Fitch Co.,

24

765 F.3d 1205 (10th Cir. 2014) .................................................................................................6

25 Cressman v. Thompson,

26

719 F.3d 1139 (10th Cir. 2013) .................................................................................................4

27 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)...................................................................................................................8

iii

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 4 of 28

1 Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) .......................................................................................................10, 12
2

3

Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011).......................................................................................................5

4 Donelson v. United States,

5

730 F. App'x 597 (10th Cir. 2018).........................................................................................6, 7

6 E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec.,

950 F.3d 177 (3d Cir. 2020).........................................................................................14, 15, 18 7

Elrod v. Burns,

8

427 U.S. 347 (1976)...................................................................................................................5

9 Franco-Gonzales v. Holder,

10

767 F. Supp. 2d 1034 (C.D. Cal. 2010) .............................................................................17, 18

11 Gerstein v. Pugh,

420 U.S. 103 (1975)...................................................................................................................5 12

J.E.F.M. v. Lynch,

13

837 F.3d 1026 (9th Cir. 2016) .....................................................................................11, 13, 15

14 Jennings v. Rodriguez,

15

138 S. Ct. 830 (2018) ....................................................................................................... passim

16 Jones v. Hunt,

410 F.3d 1221 (10th Cir. 2005) .................................................................................................2

17

Kikumura v. Hurley,

18

242 F.3d 950 (10th Cir. 2001) ...................................................................................................5

19 Lewis v. Casey,

20

518 U.S. 343 (1996).............................................................................................................9, 10

21 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...................................................................................................................4

22

Menocal v. GEO Grp., Inc.,

23

882 F.3d 905 (10th Cir. 2018) .................................................................................................14

24 Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell,

25

363 F.3d 1072 (10th Cir. 2004) .................................................................................................3

26 Mochama v. Zwetow, No. CV 14-2121-KHV, 2017 WL 36363 (D. Kan. Jan. 3, 2017) ............................................15
27

iv

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 5 of 28

1 Morgan v. City of Rawlins, 792 F.2d 975 (10th Cir. 1986) ...................................................................................................2
2

3

Nicodemus v. Union Pac. Corp., 318 F.3d 1231 (10th Cir. 2003) .................................................................................................3

4 Nielsen v. Preap,

5

139 S. Ct. 954 (2019) .........................................................................................................10, 12

6 Ochieng v. Mukasey,

520 F.3d 1110 (10th Cir. 2008) ...............................................................................................13 7

P.L. v. Immigration & Customs Enf’t,

8

No. 1:19-CV-01336 (ALC), 2019 WL 2568648 (S.D.N.Y. June 21, 2019)............................16

9 R.R. v. Orozco,

10

No. CV 20-564 KG/GBW, 2020 WL 3542333 (D.N.M. June 30, 2020) ..........................13, 14

11 Radic v. Fullilove,

198 F. Supp. 162 (N.D. Cal. 1961) ..........................................................................................20 12

Ramirez v. United States Immigration & Customs Enforcement,

13

2020 U.S. Dist. LEXIS 115875 (D.D.C. July 2, 2020)..............................................................5

14 Rezaq v. Nalley,

15

2010 WL 5157317 (D. Colo. Aug. 17, 2010), aff'd, 677 F.3d 1001 (10th Cir.

2012) ........................................................................................................................................20

16 Rivas Rosales v. Barr,

17

No. 20-CV-00888-EMC, 2020 WL 1505682 (N.D. Cal. Mar. 30, 2020)................................16

18 Rodriguez-Castillo v. Nielsen,

19

No. 5:18-cv-1317-ODW-MAA, 2018 WL 6131172 (C.D. Cal. June 21, 2018) .....................17

20 Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002) .................................................................................................3

21 S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec.,

22

No. CV 18-760 (CKK), 2020 WL 3265533 (D.D.C. June 17, 2020) ................................14, 18

23 Torres v. United States Dep't of Homeland Sec., 411 F. Supp. 3d 1036 (C.D. Cal. 2019) ........................................................................... passim
24

25

Torres-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009) .................................................................................................20

26 U.S. v. Aguirre-Tello,

27

353 F.3d 1199 (10th Cir. 2004) ...............................................................................................20

v

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 6 of 28

1 Wheeler v. Unknown Named Agents of ICE, No. CV 16-6655 DOC (SS), 2016 WL 6126260 (C.D. Cal. Oct. 20, 2016) ...........................15
2

3

Woerner v. Bd. of Educ. of Rio Rancho Pub. Sch., No. 1:18-CV-1231-WJ-JFR, 2019 U.S. Dist. LEXIS 216793 (D.N.M. Dec. 16,

4

2019) ..........................................................................................................................................3

5 Xuyue Zhang v. Barr, 2020 U.S. Dist. LEXIS 54424 (C.D. Cal. Mar. 27, 2020) .........................................................5
6 Statutes
7 8 U.S.C. § 1229a ......................................................................................................................16, 17
8
9 8 U.S.C. § 1252...................................................................................................................... passim
10 Fed. R. Civ. P 12(b)(6).....................................................................................................................2
11 Fed. R. Civ. P 23..........................................................................................................................1, 6

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

vi

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 7 of 28

1 I. INTRODUCTION

2

Defendants seek to dismiss Plaintiffs’ claims by repackaging them as simply right-to-

3 counsel claims in immigration court proceedings. But Plaintiffs and the class they represent seek
4 something far broader—telephone access to the outside world, a constitutional and statutory right
5
that has become all the more urgent because of COVID-19, as in-person visitation has become 6

7 impracticable and discouraged by U.S. Immigration and Customs Enforcement (ICE) for

8 personal and public health reasons.1 But, due to Defendants’ practices and a disregard for their

9 own policies, telephone communication that is free, confidential, and of adequate duration has

10 not been regularly available between legal representatives and detained individuals at the El Paso
11 and Otero Service Processing Centers. Defendants’ actions have largely cut off Plaintiffs and
12 putative class members from the outside world, impeding their ability to find an attorney,
13 interfering with the attorney-client relationship in the limited circumstances that are possible,
14
15 hampering their ability to gather evidence, limiting their ability to speak with family or friends to

16 support their case, and making it nearly impossible to prepare their removal defense, seek bond,

17 file for affirmative immigration benefits, file a habeas petition, or file a civil rights lawsuit.

18

Now, in opposition to Plaintiffs’ request for telephonic access to counsel, Defendants ask

19 this Court to depart from Supreme Court precedent and the holdings of numerous other circuits
20 and make new law that would prevent this Court from hearing challenges to institution-wide
21

22 immigration detention conditions. Defendants attempt to recast Plaintiffs’ claims as seeking

23 review of their removal proceedings when their claims go far beyond that. Defendants also ask

24

25

26 1

ICE Guidance on COVID-19: Visitation at Detention Facilities,

27 https://www.ice.gov/coronavirus (last visited July 9, 2020) (“Non-contact legal visitation (e.g.,

Skype or teleconference) should be offered first to limit exposure to ICE detainees.”).

1

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 8 of 28

1 this Court to dismiss this case on standing grounds, asserting that Plaintiffs’ injuries do not

2 represent the injuries of the entire class – an argument appropriate only under a Rule 23 analysis.
3 Contrary to Defendants’ position, Plaintiffs have standing and this Court has subject
4 matter jurisdiction over Plaintiffs’ claims. Plaintiffs meet the Article III standing requirements,
5 which even Defendants concede. Seeking instead to narrow the claims for which Plaintiffs have
6
7 standing, Defendants improperly convert their standing argument to an adequacy-of-

8 representation argument. Moreover, this Court is not barred from hearing Plaintiffs’ claims

9 under 8 U.S.C. § 1252(b)(9), which the Supreme Court has narrowly interpreted. Quite simply,
10 the § 1252(b)(9) jurisdictional bar does not apply where claims, such as those brought here, 11
address systemwide detention conditions that are collateral to the removal process and are 12
effectively unreviewable through a petition for review. Finally, Plaintiffs have properly stated a 13 14 claim for deprivation of their statutory and constitutional rights to a full and fair hearing. For the
15 reasons that follow, we respectfully ask this Court to deny Defendants’ motion and allow

16 Plaintiffs to proceed in their efforts to secure telephonic access and to certify the proposed class.

17 II.
18
19

LEGAL STANDARD Dismissal is “a harsh remedy which must be cautiously studied, not only to effectuate the

20 spirit of the liberal rules of pleading but also to protect the interests of justice.” Morgan v. City

21 of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986). To survive a motion to dismiss under Rule

22 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
23 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 24
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). In deciding whether the plaintiff has 25
adequately stated a claim for relief, courts will view the totality of the circumstances as alleged 26 27 in the complaint in the light most favorable to the plaintiff. Jones v. Hunt, 410 F.3d 1221, 1229

2

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 9 of 28

1 (10th Cir. 2005). “The key question is whether a plaintiff has nudged his or her claim across the

2 line from conceivable to plausible.” Woerner v. Bd. of Educ. of Rio Rancho Pub. Sch., No. 1:18-
3 CV-1231-WJ-JFR, 2019 U.S. Dist. LEXIS 216793, at *10 (D.N.M. Dec. 16, 2019) (quoting
4 Twombly, 550 U.S. at 570).
5 Federal courts must have a statutory basis for asserting subject matter jurisdiction.
6
7 Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir. 2003). In challenging subject

8 matter jurisdiction, defendants may either facially attack the sufficiency of the complaint’s

9 allegations, or present evidence to challenge the factual basis upon which subject matter
10 jurisdiction rests. Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 11
2004). On motions to dismiss for lack of subject matter jurisdiction that raise a facial attack on 12
the sufficiency of the complaint’s allegations as to subject matter jurisdiction, the Court 13 14 considers the complaint’s allegations to be true. Clark v. United States, 234 F. Supp. 3d 1127,
15 1134 (D.N.M. 2014) (citing Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)).

16 III.
17
18

ARGUMENT
A. Named Plaintiffs Have Standing to Bring this Action on Behalf of the Proposed Class

19

1. Plaintiffs meet the Article III standing requirements.

20

Defendants’ failure to provide basic telephone access to Plaintiffs has interfered with

21 Plaintiffs’ ability to obtain and access counsel and has resulted in Plaintiffs’ prolonged detention
22 and inability to prepare for their immigration proceedings – a problem ICE can remedy with
23 minimal effort. See, e.g., Lyon v. ICE, N.D. Cal. No. 3:13-cv-05878, Stipulated Settlement, ECF
24
25 No. 280-1 (settling ICE telephone access case).

26

Standing has three elements: (1) plaintiff must suffer an injury in fact that is actual or

27 imminent; (2) the injury must be fairly traceable to the challenged action of the defendant; and

3

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 10 of 28

1 (3) it must be likely that the injury will be redressed by the relief requested. Lujan v. Defenders

2 of Wildlife, 504 U.S. 555, 560 (1992).2 When evaluating a plaintiff’s standing at the motion to

3 dismiss stage, both the trial and reviewing courts must accept as true all material allegations of
4 the complaint, and must construe the complaint in favor of the complaining party. Cressman v.
5
Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013). 6

7

Plaintiff Gomez Carranza alleges that Defendants’ policies and practices have caused him

8 great difficulty communicating with his counsel. Complaint (“Compl.”), Dkt. Entry No. 1, at ¶

9 70. See also Decl. of Gomez Carranza ¶ 17, Dkt. Entry No. 6. Stripped of his right to access
10 counsel, Plaintiff Gomez Carranza’s detention was prolonged because he was unable to prepare 11
his defense for his removal hearing, effectively forcing him to move to continue the hearing. 12
Compl. at ¶ 75. Similarly, Plaintiff Torres Jauregui has sat in immigration detention far longer 13 14 than necessary because Defendants’ policies and procedures have caused him great difficulty
15 communicating with his counsel. Compl. at ¶ 78. He has been prevented from preparing for his

16 asylum hearing and therefore was forced to move to continue the hearing on multiple occasions.

17 Compl. at ¶ 81-82. See also Decl. of Torres Jauregui at ¶ 4 (“Here on the inside, they don’t

18 make phone calls available for preparing my case.”). Injunctive relief that includes mandating

19 that Defendants provide free confidential and private legal telephone access to Plaintiffs that is
20
not unreasonably limited in duration will redress Plaintiffs’ injuries. 21

22

Because Defendants have made it impossible for Named Plaintiffs to speak with their

23 attorneys with the time and privacy necessary to prepare for their immigration hearings or other

24 legal matters, they have been denied the right to access counsel, the right to a full and fair

25

2
26

Because Defendants do not cite the elements of standing, or address or dispute the “fairly

traceable” or “redressability” prongs, Plaintiffs focus their analysis on “injury in fact.”

27 Nevertheless, it is clear that Plaintiffs’ injuries would be redressed by the requested relief

designed to remedy the telephone access problems at El Paso and Otero. See Compl. at 28-29.

4

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 11 of 28
1 hearing, and the right to petition the government, including to seek to terminate their removal 2 proceedings altogether. Without access to counsel, a full and fair hearing, and the right to 3
petition the government, Named Plaintiffs have each personally suffered from constitutional 4
violations and prolonged detention. The Supreme Court, the Tenth Circuit, and federal courts 5
nationwide routinely find that violations of constitutional rights alone constitute irreparable 6 7 injury. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, 8 for even minimal periods of time, unquestionably constitutes irreparable injury.”); Kikumura v.
9 Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“[W]hen an alleged constitutional right is involved, 10 most courts hold that no further showing of irreparable injury is necessary.”); Benjamin v. 11
Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (“[W]here the right at issue is provided directly by the 12
Constitution or federal law, a prisoner has standing to assert that right even if the denial of that 13 14 right has not produced an actual injury.”). And prolonged detention is alone an injury in fact 15 with long-term consequences. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (noting that
16 “consequences of prolonged detention” may be serious, including interruption of one’s source of
17 income and impairment of one’s family relationships); Diop v. ICE/Homeland Sec., 656 F.3d 18 221, 227 (3d Cir. 2011) (finding that prolonged immigration detention, caused in part by “a 19
combination of continuances to find a lawyer” “was certainly an injury in fact, caused by the 20
Government”); Xuyue Zhang v. Barr, 2020 U.S. Dist. LEXIS 54424, at *19 (C.D. Cal. Mar. 27, 21 22 2020) (“[T]he Court finds that each passing day Petitioner spends within the walls of 23 [immigration detention] is an irreparable injury: a day of freedom he cannot get back.”); Ramirez
24 v. United States Immigration & Customs Enforcement, 2020 U.S. Dist. LEXIS 115875, *225 25 (D.D.C. July 2, 2020) (“Courts in this and other jurisdictions have found that deprivations of 26
physical liberty are the sort of actual and imminent injuries that constitute irreparable harm and 27
5

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 12 of 28

1 have likewise recognized that the major hardship posed by needless prolonged detention is a

2 form of irreparable harm.”).

3 2. Defendants’ narrow standing argument concedes that Named Plaintiffs

4

have standing, but impermissibly conflates standing with class

certification.

5

Defendants raise a narrow argument on Named Plaintiffs’ standing. Defendants 6

7 acknowledge that Named Plaintiffs have standing to bring this action on behalf of detained

8 individuals who, due to Defendants’ institution-wide policies, experience “difficulty with

9 telephone communications with their counsel during their removal proceedings.” MTD at 2, 9

10 (“Because Named Plaintiffs personally allege only difficulty communicating with counsel to
11 prepare for removal-related hearings, they have standing to bring claims based solely on those 12
injuries.”) (emphasis added). 13
Instead, Defendants assert that Named Plaintiffs lack standing to bring claims on behalf 14
15 of class members who have characteristics that Named Plaintiffs do not share, including class
16 members who speak rare languages, who are disabled, who are indigent,3 and who have

17 immigration proceedings other than removal proceedings. This is not a standing argument, but
18 an argument as to Named Plaintiffs’ typicality and adequacy to represent the class, and, as such,
19 is not appropriate to raise here. See Donelson v. United States, 730 F. App'x 597, 602 (10th Cir.
20 2018) (“We have cautioned against conflating the independent doctrines of standing and
21 22 adequacy of a class representative.”) See also Colo. Cross Disability Coal. v. Abercrombie &
23 Fitch Co., 765 F.3d 1205, 1213 (10th Cir. 2014) (“Although the concepts of standing and

24 adequacy of status to maintain a class action appear related, they are independent criteria and

25 must be evaluated separately.”).

26

27 3

The Complaint alleges that Named Plaintiff Gomez Carranza is indigent. See Compl. at ¶

75. See also Declaration of Franklin Gomez Carranza, Dkt. No. 6, at ¶ 13.

6

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 13 of 28

1

To illustrate the difference between standing and class certification, the Tenth Circuit has

2 provided an example: “in assessing whether an injunction might apply to multiple locations of a
3 single company, we do not require a named plaintiff to prove standing as to each location.
4 Instead, the scope of relief for that single claim would turn on the application of Fed. R. Civ. P.
5 23.” Donelson, 730 F. App’x. at 602. This example is particularly apt when reviewing
6
7 Defendants’ Motion to Dismiss (“MTD”). Defendants assert that Named Plaintiff Gomez

8 Carranza lacks standing, in part, because he “does not allege any inability to access counsel or

9 evidence while he was housed at El Paso prior to being transferred to Otero.” MTD, Dkt. Entry
10 No. 23, at 7. First of all, that is factually incorrect.4 But as the Tenth Circuit made clear, the 11
question of whether a Named Plaintiff has standing does not depend on an analysis of whether he 12
has suffered an injury at each location alleged. See Colo. Cross Disability Coal., 765 F.3d at 13 14 1212 (finding that named plaintiff had standing to bring an Americans with Disabilities Act
15 claim for inaccessible Hollister storefronts nationwide, even though she had no intention to visit

16 every store and only experienced an injury at a single storefront).

17

18

19

20

21

22

23 4

Contrary to Defendants’ assertion, Named Plaintiff Gomez Carranza does allege an

access to counsel injury while detained at El Paso. See Compl. at ¶ 70-71 (“Ever since being

24 detained, Plaintiff Gomez Carranza has had great difficulty communicating with his counsel

because of ICE’s unconstitutional restrictions on his telephone access in El Paso and Otero…. At 25 El Paso, Plaintiff Gomez Carranza faced limited access to telephones, including extremely poor

26

connectivity issues.”) See also Gomez Carranza Declaration, Dkt. No. 6 at ¶ 6-7 (“Ever since being detained in ICE custody, I have had difficulty communicating with my attorney because of

27 limited access to telephones. When I was detained in El Paso, my attorney visited me in person

because the telephones were not a reliable means of communication.”).

7

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 14 of 28

1

3. Defendants’ standing arguments fail because they conflate claims and

allegations, continuing to improperly characterize a Rule 23 adequacy of

2

representation argument as standing.

3

A named plaintiff must possess standing as to each individual claim asserted in a

4 complaint. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Defendants, however,
5 appear to conflate claims and allegations. Named Plaintiffs Gomez Carranza and Torres
6

7 Jauregui possess standing for each claim alleged here, even if they have not personally

8 experienced every allegation in the complaint.

9

For example, the complaint alleges that Defendants’ institution-wide policies and

10 practices do not provide information on telephone access to Plaintiffs who speak rare languages.
11 See Compl. at ¶ 7.j. This allegation does not render Named Plaintiffs, who speak Spanish, 12
without standing to bring claims asserting violations of their constitutional and statutory rights to 13
access counsel, to a full and fair hearing, and to petition the government. Additionally, 14
15 Defendants highlight Plaintiffs’ allegation that Defendants do not provide telephone access

16 assistance to disabled class members, asserting there is no standing because Named Plaintiffs do

17 not personally suffer from physical disabilities. MTD at 3. But Named Plaintiffs do not lack

18 standing because their injuries stemming from Defendants’ violations of their rights to access
19 counsel, to a full and fair hearing, and to petition the government differ in the details from a
20 disabled class member. “As long as the named Plaintiffs can demonstrate that they have
21 22 standing to assert the claims they have alleged, whether the named Plaintiffs can represent
23 certain proposed class members is better addressed at the class certification stage.” Abraham v.

24 WPX Prod. Prods., LLC, 184 F. Supp. 3d 1150, 1199 (D.N.M. 2016) (finding that named

25 plaintiffs had standing to bring a lawsuit brought on behalf of owners of royalty and overriding 26 royalty interests even though named plaintiffs were not royalty owners, but rather only 27

8

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 15 of 28

1 overriding royalty interest owners, because they needed only establish that at least one named

2 plaintiff suffered the injury that gives rise to each claim).

3

4

4. Lewis v. Casey does not support Defendants’ position.

5

Defendants’ reliance on Lewis v. Casey, 518 U.S. 343 (1996), is misplaced. In Lewis,

6 post-conviction plaintiffs alleged an injury in a subpar prison law library that would prevent

7 them from bringing constitutional claims in the future. The Court found that because there was

8 no “freestanding right to a law library,” plaintiffs had to “go one step further and demonstrate

9 that the alleged shortcomings in the library … hindered his efforts to pursue a legal claim.” Id. at
10
351. 11

12

Here, Plaintiffs do not assert that they have a standalone right to telephone access and

13 that the mere subpar telephone infrastructure is the injury. Rather, Plaintiffs allege that they

14 have a right to access counsel, a right to a full and fair hearing, and a right to petition the

15 government and that the subpar telephone infrastructure and Defendants’ telephone access
16 policies and practices have obstructed their constitutional rights. For Named Plaintiffs, the
17 telephone access at Otero and El Paso have resulted in concrete injuries, including an inability to
18 communicate with counsel; an inability to prepare for their immigration hearings; and a resulting
19
20 need to continually postpone their immigration hearings until such a time that their right to

21 access counsel is not obstructed, leading to prolonged and unnecessary debilitating detention.

22

The Lewis Court analogized the plaintiff there to “a healthy inmate who had suffered no

23 deprivation of needed medical treatment” claiming a “violation of his constitutional right to
24 medical care.” Id. at 350. By no means are Named Plaintiffs “healthy inmates”—detained
25 individuals with unfettered access to counsel attempting to bring a class action on behalf of
26
27 detained individuals without adequate access to counsel. Even Defendants acknowledge that

9

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 16 of 28

1 Named Plaintiffs allege “difficulty communicating with counsel” and thus “they have standing to

2 bring claims” based on their injuries. MTD at 2. Based on Defendants’ own concessions, Lewis
3 is distinguishable. See also Benjamin v. Fraser, 264 F.3d 175, 179, 185 (2d Cir. 2001)
4 (distinguishing Lewis in a case brought by pretrial detained individuals challenging detention
5 conditions affecting attorney visitation and law libraries, finding that plaintiffs did not need to
6
7 establish an actual injury beyond the due process violation to have standing to assert a Sixth

8 Amendment right to counsel claim). Thus, Defendants’ argument lacks merit.

9

B. 8 U.S.C. § 1252(b)(9) is Not Applicable Here and Therefore the Court Has

10

Subject Matter Jurisdiction over Plaintiffs’ Claims

11

Defendants argue that the Court lacks subject matter jurisdiction based on a sweeping,

12 unreasonable interpretation of the jurisdiction channeling provision at 8 U.S.C. § 1252(b)(9)—

13 the breadth of which the Supreme Court has recently rejected. See Dep’t of Homeland Sec. v.

14 Regents of the Univ. of California, 140 S. Ct. 1891, 1907 (2020); Nielsen v. Preap, 139 S. Ct.
15 954, 960, 962 (2019); Jennings v. Rodriguez, 138 S. Ct. 830, 840-41 (2018). Section 1252(b)(9)
16 removes jurisdiction from the district court of “all questions of law and fact . . . arising from any
17 action taken or proceeding brought to remove an alien from the United States[.]” 8 U.S.C. §
18
19 1252(b)(9). Defendants contort Plaintiffs’ claims to fit into the § 1252(b)(9) jurisdiction-

20 channeling box. But Plaintiffs’ claims are not about the right to counsel in removal proceedings

21 alone; Plaintiffs challenge the conditions of their detention, which has resulted in little to no
22 access to counsel, interfering with their statutory and constitutional rights. The Supreme Court 23
has rejected Defendants’ sweeping view of § 1252(b)(9)’s jurisdictional bar, finding that 24
§ 1252(b)(9) cannot be used to strip jurisdiction over claims that are collateral to the immigration 25 26 removal process, or to shield the government from violations of law that cannot be meaningfully
27 reviewed on a petition for review from a final order of removal. Jennings, 138 S. Ct. at 840-41.

10

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 17 of 28

1 Plaintiffs’ claims, which arise from the unlawful conditions of their confinement, do not seek

2 review of any aspect of their removal proceedings, and cannot be remedied through the

3 administrative review process, do not fall within § 1252(b)(9)’s “zipper clause.” Id. at 853.
4

5

1. The Supreme Court has narrowly interpreted Section 1252(b)(9).

6

Contrary to Defendants’ arguments in this case, the Supreme Court has repeatedly

7 rejected any broad interpretation of § 1252(b)(9) that would sweep in Plaintiffs’ claims. In
8 Jennings, the Supreme Court considered whether § 1252(b)(9) strips a district court of 9
jurisdiction to hear a challenge to the government’s practice of prolonged detention of a 10
noncitizen for more than six months without an individualized bond hearing. 138 S. Ct. at 839. 11
12 Justice Alito’s plurality opinion in Jennings (joined in relevant part by Chief Justice Roberts and
13 Justice Kennedy) pointed to two fundamental principles to evaluate whether an issue of law or

14 fact is truly “arising from any action taken or proceeding brought to remove an alien from the

15 United States.” Id. at 839-40.
16 First, Justice Alito reasoned that legal questions that are “too remote” or collateral to the
17 removal process do not fall within the scope of § 1252(b)(9). Id. at 840-41 & n.3; see also id. at
18 876 (J. Breyer, dissenting) (observing that § 1252(b)(9) “by its terms applies only ‘[w]ith respect
19
20 to review of an order of removal under [§ 1252(a)(1)]’”) (quoting 8 U.S.C. § 1252(b)); J.E.F.M.

21 v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016) (finding that § 1252(b)(9) does not apply to

22 “claims that are independent of or collateral to the removal process”). Justice Alito observed that
23 “uncritical literalism” in interpreting the phrase “arising from” could lead to “staggering results” 24
that “no sensible person could have intended.” Jennings, 138 S. Ct. at 840 (citations omitted). 25
Among those claims Justice Alito viewed as too remote were those “based on allegedly 26 27 inhumane conditions of confinement.” Id. at 840.

11

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1

While the Supreme Court in Jennings did not decide the precise contours of § 1252(b)(9),

2 the Court identified the type of claims the immigrant Respondents were not presenting:
3 “[R]espondents are not asking for review of an order of removal; they are not challenging the
4 decision to detain them in the first place or to seek removal; and they are not even challenging
5 any part of the process by which their removability will be determined.” Id. at 841. The Court
6
7 reasoned that “under these circumstances, § 1252(b)(9) does not present a jurisdictional bar.” Id.

8 The same is true here. Plaintiffs do not challenge a removal order (none exists), they do not

9 challenge ICE’s decision to detain them or its decision to institute removal proceedings, and they

10 do not challenge the removal proceeding process itself. Rather, they challenge their

11 constitutional and statutory rights to communicate with the outside world while in detention. See
12 generally Compl.
13

14

Since Jennings, the Supreme Court has twice affirmed that claims which do not challenge

15 a removal order or removal proceedings are beyond the scope of § 1252(b)(9). There can be no

16 dispute that this is the case here. Most recently, in Regents of the University of California, which

17 addressed the legality of the Administration’s rescission of wide-scale prosecutorial discretion,

18 the Supreme Court confirmed that § 1252(b)(9) “‘does not present a jurisdictional bar’ where
19 those bringing suit ‘are not asking for review of an order of removal,’ ‘the decision . . . to seek
20 removal,’ or ‘the process by which . . . removability will be determined.’” 140 S. Ct. at 1907
21
22 (citing Jennings, 138 St. Ct. at 841, 875-76); see also Preap, 139 S. Ct. at 962 (same).

23

Second, in Jennings Justice Alito reasoned that “arising from” should not be interpreted

24 in a way that makes a claim “effectively unreviewable,” i.e., an interpretation that would

25 “depriv[e] that detainee of any meaningful chance for judicial review.” 138 S. Ct. at 840. In
26 particular, Justice Alito observed that where a claim involved prolonged detention, any review
27

12

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1 tied to a final order of removal would not be “meaningful” because “[b]y the time a final order of

2 removal was eventually entered, the allegedly excessive detention would have already taken

3 place.” Id. “Cramming” those claims into review of removal orders would be “absurd.” Id.
4 Accordingly, Plaintiffs’ access to counsel claims while they prolongedly sit in detention are not
5
subject to § 1252(b)(9)’s administrative exhaustion requirement. See id. 6

7

2. Section 1252(b)(9) does not apply to Plaintiffs’ claims because they are

collateral to the removal process.

8 Consistent with Justice Alito’s first point, it is well-established that claims which do not

9

challenge a removal order or the removal process fall outside the scope of § 1252(b)(9). See, 10

11 e.g., J.E.F.M., 837 F.3d at 1032 (determining that “claims that are independent of or collateral to

12 the removal process do not fall within the scope of § 1252(b)(9)”); Ochieng v. Mukasey, 520

13 F.3d 1110, 1115 (10th Cir. 2008) (holding § 1252(b)(9) no impediment to claim that “would not

14 be seeking review of an order of removal, but review of [petitioner’s] detention”); R.R. v.
15 Orozco, No. CV 20-564 KG/GBW, 2020 WL 3542333, at **5-6 (D.N.M. June 30, 2020)
16 (finding petitioner’s detention challenge and claim to procedural protections under the
17 Trafficking Victims Protection Reauthorization Act (TVRPA) beyond scope of § 1252(b)(9)
18
19 because petitioner “d[id] not merely challenge his removal order”).

20

In this case, Plaintiffs do not seek review of the decision to place them in removal

21 proceedings or any aspect of those proceedings. See generally Compl. Rather, Plaintiffs’ claims
22 arise from Defendants’ policies and practices regarding telephone access in El Paso and Otero— 23
a condition of confinement that unduly interferes with access to counsel and leads to prolonged 24
detention. Compl. at 1-4, ¶¶ 1-9; see also id. at 16, ¶¶ 56-58; id. at 20-21, ¶ 75; id. at 22-23, 25 26 ¶ 82. Further, the interference with counsel does not just threaten Plaintiffs’ removal
27 proceedings, but threatens Plaintiffs’ legal rights in a variety of proceedings “in which

13

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 20 of 28

1 immigrants have statutory rights, for example Joseph hearings, as well non-immigration civil and

2 criminal matters, completely apart from the removal process.” Torres v. United States Dep't of
3 Homeland Sec., 411 F. Supp. 3d 1036, 1049 (C.D. Cal. 2019); see also, e.g., Menocal v. GEO
4 Grp., Inc., 882 F.3d 905 (10th Cir.), cert. denied, 139 S. Ct. 143 (2018) (affirming class
5 certification of detained immigrants’ forced labor claims under the Trafficking Victims
6
7 Protection Act (TVPA)); R.R., 2020 WL 3542333, at *5-6 (granting, in part, preliminary

8 injunction to 17-year-old petitioner challenging government’s detention decision in violation of

9 the TVRPA). Plaintiffs seek only declaratory and injunction relief against Defendants that

10 would ameliorate these unlawful conditions. Compl. at 28-29. Any relief awarded to Plaintiffs

11 would have no impact on any removal order. See id. As such, Plaintiffs’ claims are “too
12 remote” to the removal process to require exhaustion under § 1252(b)(9).
13

14

Courts have repeatedly held that § 1252(b)(9) does not bar claims arising from

15 institution-wide unlawful conditions of immigration detention and prolonged immigration

16 detention. See, e.g., Jennings, 138 S. Ct. at 840-41; E.O.H.C. v. Sec’y United States Dep’t of

17 Homeland Sec., 950 F.3d 177, 185 (3d Cir. 2020) (stating that under Jennings, § 1252(b)(9)
18 “does not bar challenges to conditions of confinement”) (emphasis in original); S. Poverty Law 19
Ctr. v. U.S. Dep’t of Homeland Sec., No. CV 18-760 (CKK), 2020 WL 3265533, at *16 (D.D.C. 20
June 17, 2020) (finding no jurisdictional bar to substantive due process claim that punitive 21
22 immigration detention conditions limited access to counsel, but declining to address statutory
23 right to counsel claims); Cancino-Castellar v. Nielsen, 338 F. Supp. 3d 1107, 1116–17 (S.D. Cal.

24 2018) (due process claim that delay in appearing before immigration judge unlawfully prolonged

25 detention not barred by § 1252(b)(9)). 26

27

14

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1

Defendants are wrong to suggest that there is a bright line rule against bringing right to

2 counsel and due process claims in district court, even when those claims arise from conditions of
3 confinement and are collateral to any removal proceedings. Defendants rely primarily on
4 J.E.F.M., but in that case plaintiffs sought appointment of counsel at government expense in
5 removal proceedings. 837 F.3d at 1029–30. Here, Plaintiffs’ do not seek any procedural
6
7 protections in removal proceedings—rather they seek injunctive relief to remedy conditions of

8 their confinement. Compl. at 28-29. Notably, the J.E.F.M. plaintiffs did not challenge the

9 conditions of their confinement because they were not detained.

10

E.O.H.C. is likewise of no help to Defendants where, there, the court found § 1252(b)(9)

11 barred plaintiffs’ statutory right to counsel claims that “had nothing to do with conditions of
12 confinement,” and allowed Plaintiffs’ constitutional claims to go forward. 950 F.3d at 187-88.
13

14 In this case, Plaintiffs’ claims have everything to do with conditions of confinement. Similarly,

15 in Aguilar v. U.S. Immigration and Customs Enf’t, petitioners challenged their arrest and transfer

16 away from counsel, but not unlawful conditions of confinement limiting attorney access. 510

17 F.3d 1, 13 (1st Cir. 2007) (noting “petitioners claim that their detention and subsequent transfer 18 by the government infringed their rights to counsel”).5 19

20 5

Defendants cite a handful of district court cases, but none support Defendants’ position.

See MTD at 12-14, 18. Several cases are distinguishable because the claims do not arise from 21 institution-wide conditions of confinement. See Avilez v. Barr, No. 19-CV-08296-CRD, 2020

22

WL 570987, at *2-3 (N.D. Cal. Feb. 5, 2020) (challenging ICE decision to transfer individuals to facilities far from counsel); Anaya Murcia v. Godfrey, No. C19-587-JLR-BAT, 2019 WL

23 5597883, at *1 (W.D. Wash. Oct. 10, 2019), report and recommendation adopted, No. C19-587JLR, 2019 WL 5589612 (W.D. Wash. Oct. 30, 2019) (noncitizen seeking return to United States

24 following successful motion to reopen removal proceedings); Alvarez v. Sessions, 338 F. Supp.

3d 1042, 1044 (N.D. Cal. 2018) (challenging ICE decision to transfer individual to facility far 25 from counsel); Mochama v. Zwetow, No. CV 14-2121-KHV, 2017 WL 36363, at *6 (D. Kan.

26

Jan. 3, 2017) (alleging ICE officers failed to respond to noncitizen’s request to speak to counsel); Wheeler v. Unknown Named Agents of ICE, No. CV 16-6655 DOC (SS), 2016 WL 6126260, at

27 *3 (C.D. Cal. Oct. 20, 2016) (alleging fourteen day stay in solitary confinement while in

15

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 22 of 28

1

Much more relevant is Torres v. U.S. Dep’t of Homeland Sec., 411 F. Supp. 3d 1036,

2 1047-1049 (C.D. Cal. 2019), a case directly on point, in which the court found jurisdiction over
3 right to counsel and due process claims of individuals in immigration detention to whom ICE
4 denied adequate telephone access. The Torres plaintiffs raised virtually identical challenges to
5 ICE telephone access policies and practices in a detention center in California. Id. at 1045
6
7 (alleging inter alia failure to comply with ICE’s Performance-Based National Detention

8 Standards, failure to provide free, confidential, and private legal calls, failure to allow calls of

9 adequate duration and quality, and failure to charge reasonable rates for calls). The court
10 observed that, as here, “Plaintiffs take pains to tailor their claims only to the conditions of their 11
removal-related detention, and do not challenge the legal sufficiency or any procedural aspect of 12
their removal proceedings.” Id. at 1048. In holding that § 1252(b)(9) did not bar the plaintiffs’ 13 14 right to counsel claims, the court found that plaintiffs’ access to counsel claims caused a range of
15 harms unconnected to removal proceedings, including the burden to the attorney-client

16 relationship itself, as well harms in non-removal proceedings. Id. at 1048-49. The court

17 concluded that the plaintiffs had asserted right to counsel and due process claims “arising solely
18 from the conditions of their detention and assert[ed] rights that can be violated without reference
19 to the effect on their underlying removal proceedings.” Id. at 1049. Here too, Plaintiffs’ claims
20

21

22

23 immigration detention violated individual’s right to counsel). Two sought a specific procedural protection in removal proceedings. See P.L. v. Immigration & Customs Enf’t, No. 1:19-CV-

24 01336 (ALC), 2019 WL 2568648, at *3 (S.D.N.Y. June 21, 2019) (seeking to limit use of video

teleconferencing in removal proceedings); Rivas Rosales v. Barr, No. 20-CV-00888-EMC, 2020 25 WL 1505682, at *1 (N.D. Cal. Mar. 30, 2020) (same). To the extent that any of these cases

26

support a bright line rule that all access to counsel and procedural due process claims arising from conditions of immigration detention must be channeled through a petition for review,

27 regardless of their connection to the removal process, they are contrary to Supreme Court precedent and carry no persuasive weight. See Jennings, 138 S. Ct. at 840-41.

16

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1 arise solely from the conditions of their detention and assert rights that can be vindicated without

2 challenging their removal proceedings. See id.
3 The holding in Torres is consistent with other decisions finding jurisdiction over access
4 to counsel and due process claims that are unrelated to any challenge to removal proceedings.
5 See Arroyo v. U.S. Dep’t of Homeland Sec., No. SACV19815JGBSHKX, 2019 WL 2912848, at
6
7 *13 (C.D. Cal. June 20, 2019) (holding no jurisdictional bar where immigrants challenging their

8 transfer away from counsel “assert harm that accrues by conduct imposing significant burden on

9 the attorney-client relationship without looking to the effect of that burden on the underlying
10 removal proceedings”); Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034, 1045 (C.D. Cal. 11
2010) (finding § 1252(b)(9) did not bar claims of mentally incompetent individuals seeking 12
appointed counsel in removal proceedings where the remedy would not provide relief in removal 13 14 proceedings but instead only “relief that would help to ensure their meaningful participation in
15 removal and/or custody proceedings” and where those claims could not be meaningfully raised

16 in a petition for review); cf. Rodriguez-Castillo v. Nielsen, No. 5:18-cv-1317-ODW-MAA, 2018

17 WL 6131172 (C.D. Cal. June 21, 2018) (granting temporary restraining order requiring

18 telephone access for jailed immigrants). Plaintiffs’ systemic claims arising from the conditions

19 of their confinement are simply not the sort of claims that must be “cramm[ed]” into a petition
20
for review. Jennings, 138 S. Ct. at 840. 21

22

3. Section 1252(b)(9) does not apply to Plaintiffs’ claims because they are effectively unreviewable via a petition for review.

23 The second principle recognized by the Supreme Court’s analysis in Jennings is that §
24 1252(b)(9) should not strip jurisdiction from claims when it would deprive the individual of “any
25

26 meaningful chance for judicial review.” 138 S. Ct. at 840-41. “In other words, [§ 1252(b)(9)]

27 does not strip jurisdiction when aliens seek relief that courts cannot meaningfully provide

17

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 24 of 28

1 alongside review of a final order of removal. . . . [T]he point of the provision is to channel claims

2 into a single petition for review, not to bar claims that do not fit within that process.” E.O.H.C.,
3 950 F.3d at 186. In particular, the Supreme Court noted that a petition for review of a final order
4 of removal is not an effective means for reviewing detention that predates entry of a final order
5 of removal because “by the time a final order of removal was eventually entered, the allegedly
6
7 [unlawful] detention would have already taken place.” 138 S. Ct. at 840.

8

In this case, Plaintiffs suffer prolonged detention because they are unable to access

9 counsel or prepare for hearings due to Defendants’ restrictions on telephone access. Compl. at 4,
10 ¶ 9; id. at 16, ¶ 57; id. at 18, ¶¶ 65-67; id. at 20-21, ¶ 75; id. at 22, ¶¶ 81-82. Waiting until a 11
removal order enters—if one ever does—will not remedy the harm Plaintiffs continue to suffer 12
unnecessarily languishing in immigration detention because of inadequate telephone access. 13 14 Moreover, Plaintiffs cannot receive “meaningful review” of their claims through removal
15 proceedings because an immigration judge is “powerless to remedy the conditions alleged.”

16 Torres, 411 F. Supp. 3d at 1049 (citing 8 C.F.R. §§ 1240.1, 1240.31, 1240.41); see Executive

17 Office of Immigration Review, Immigration Court Practice Manual, § 9.1(b) (July 2, 2020)
18 (“Immigration Judges have no jurisdiction over . . . the conditions in the detention facility.”). 19
Section 1252(b)(9) is a jurisdiction channeling provision, not a jurisdiction stripping provision, 20
and therefore must not be read to deny meaningful review of Plaintiffs’ claims. See Torres, 411 21
22 F. Supp. 3d at 1049; S. Poverty Law Ctr., 2020 WL 3265533, at *16 (finding § 1252(b)(9)
23 inapplicable to conditions of confinement claim in part because it would leave plaintiffs without

24 any remedy); Franco-Gonzales, 767 F. Supp. 2d at 1045 (mentally incompetent noncitizen’s

25 claims seeking appointed counsel not subject to exhaustion requirement where “they are unable
26 to meaningfully participate in their respective immigration proceedings”). For these reasons,
27

18

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 25 of 28

1 Plaintiffs claims should not be channeled to the court of appeals but should be heard now before

2 this Court.
3 C.
4

Plaintiffs Have a Right to a Full and Fair Hearing and Have Properly Stated Their Fifth Amendment Due Process Claim

5

1. Plaintiffs have a statutory right to present evidence, which naturally

encompasses gathering evidence. 6

Defendants assert that Plaintiffs’ Second Claim for Relief (Right to Full and Fair 7

8 Hearings), based in part on Plaintiffs’ statutory right to gather and present evidence under 8

9 U.S.C. § 1229a(b)(4)(B), should be dismissed because, while “this provision does provide an

10 alien the right ‘to present evidence on the alien’s own behalf,’ it does not mention any right to
11 gather evidence in advance of the hearing.” MTD at 18 (emphasis in original). Defendants’ 12
argument is unsupported. 13
First, Defendants do not explain why the entire claim would need to be dismissed 14 15 because Plaintiffs characterize their right to “present evidence” as a right to “gather and present
16 evidence.”

17

Second, a right to a “reasonable opportunity” to present evidence is meaningless if it does

18 not include the right to compile or organize that evidence. If the meaning of § 1229a(b)(4)(B)
19 were as narrow as Defendants suggest, then “presenting evidence” could only mean testifying on 20
one’s own behalf because the detained individual would have no opportunity to obtain evidence 21
from outside of the detention facility. Yet, the language of the statute is “evidence,” not 22
23 “testimony,” even though elsewhere in the statute it distinguishes between testimony and
24 evidence. See 8 U.S.C. § 1229a(b)(4)(C) (requiring that a complete record of “all testimony and

25 evidence produced at the proceeding” be kept) (emphasis added). The statute’s use of this

26 specific language would be rendered superfluous and thus render’s Defendants’ argument as 27
meritless.

19

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 26 of 28

1

Third, courts have made clear that the right to present evidence goes hand in hand with

2 the right “to be heard” and “to press [one’s] case fully.” Torres-Chavez v. Holder, 567 F.3d
3 1096, 1102 (9th Cir. 2009). See also Radic v. Fullilove, 198 F. Supp. 162, 165 (N.D. Cal. 1961)
4 (“Under our form of Government, the right to a hearing embraces not only the right to present
5 evidence in support of one’s position, but also a reasonable opportunity to know the claims of the
6
7 opposing party with the privilege of seeking to refute those claims.”) In Badwan v. Gonzales,

8 494 F.3d 566, 567 (6th Cir. 2007), the Sixth Circuit found that an immigration judge abused his

9 discretion in denying petitioner’s unopposed motion for a continuance to obtain evidence. The
10 court found that petitioner should have been permitted to obtain a proper translation of a 11
document, essentially equating “presenting evidence” with obtaining evidence. 12

13

2. Plaintiffs need not allege prejudice to satisfy the elements of a Fifth

Amendment Due Process Claim, but have done so by alleging prolonged

14

detention.

15

Defendants assert that “[t]o prevail on their Fifth Amendment full-and-fair hearing claim,

16 Named Plaintiffs must show prejudice.” MTD at 19. But, to state a Due Process claim,
17 Plaintiffs must satisfy just two elements: a protected liberty interest and denial of an appropriate
18

19 level of process. Rezaq v. Nalley, 2010 WL 5157317, at *4 (D. Colo. Aug. 17, 2010), aff'd, 677

20 F.3d 1001 (10th Cir. 2012). In support of their position, Defendants cite U.S. v. Aguirre-Tello,

21 353 F.3d 1199, 1204 (10th Cir. 2004), which held that “when a previous deportation order is

22 attacked” on a petition for review, a petitioner must demonstrate prejudice in order to show that a
23 deportation proceeding was fundamentally unfair. The court adopted the “reasonable likelihood” 24
of a different outcome standard, rather than the stricter “would have obtained” a different 25
outcome standard. Id. at 1209. Here, Plaintiffs are not attacking any removal order, and thus, 26
27 Aguirre-Tello is inapposite. Still, as explained further in Section IV(A)(i), supra, Plaintiffs have

20

Case 2:20-cv-00424-KG-KRS Document 29 Filed 07/20/20 Page 27 of 28

1 been prejudiced by the prolonged detention resulting from the effective deprivation of the

2 hearings.

3 4 IV.

CONCLUSION

5

For the reasons stated above, Plaintiffs respectfully request this Court to deny

6 Defendants’ Motion to Dismiss.

7 Respectfully Submitted,
8

9 Dated: July 20, 2020 10 11 12 13 14 15

ORRICK, HERRINGTON, & SUTCLIFFE LLP
/s/ R. David Hosp
R. David Hosp ORRICK, HERRINGTON & SUTCLIFFE, LLP 222 Berkeley St. Ste 2000 Boston, MA 02116 Telephone: (617) 880-1886 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

16

René A. Kathawala

17

Paige Pavone

Lauren D. Allen

18

ORRICK, HERRINGTON & SUTCLIFFE, LLP

51 West 52nd Street

19

New York, NY 10019

20

Telephone: (212) 506-3604 Facsimile: (212) 506-5151

21

Email: ppavone@orrick.com

22 Attorneys for Plaintiffs
23

24

25

26

27

21

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1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on this 20th day of July, 2020, Plaintiffs filed through the United

4 States District Court CM/ECF System the foregoing document, causing it to be served by

5 electronic means on all counsel of record.

6

/s/ R. David Hosp

R. David Hosp

7

Attorney for Plaintiffs

8

9

10

11

12

13

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 Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

FRANKLIN GOMEZ CARRANZA and RUBEN TORRES JAUREGUI,

Plaintiffs, v.

No. 20-cv-00424 KG/KRS

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW T. ALBENCE, ACTING DIRECTOR OF ICE; DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; COREY A. PRICE, FIELD OFFICE DIRECTOR FOR THE EL PASO FIELD OFFICE,

Defendants.

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION (DOC. 29) TO MOTION TO DISMISS (DOC. 23)
The only injuries that Named Plaintiffs have suffered arise from their alleged difficulty communicating with their counsel via telephone to prepare for their removal proceedings. See Doc. 1 ¶¶ 72-75, 79-82. Yet Named Plaintiffs also allege a laundry list of miscellaneous problems with the telephone systems at El Paso Service Processing Center and Otero County Processing Center that have absolutely nothing to do with them or their removal proceedings. See id. ¶ 7. Because “standing is not dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996), Named Plaintiffs have standing only to bring claims relating to the deficiencies in telephone service that they allege affected their removal proceedings.
These claims, however, are precluded from this Court’s review by 8 U.S.C. § 1252(b)(9), which channels claims relating to access to counsel and due process in removal proceedings into judicial review of a final order of removal. Named Plaintiffs now seek to evade Section 1252(b)(9)

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 2 of 12
by recasting their claims as challenging “conditions of confinement” collateral to their removal proceedings. See Doc. 29 at 21.1 However, they did not allege any collateral conditions of confinement claims in the Complaint—all three claims assert alleged violations of procedural rights in immigration proceedings. Doc. 1 ¶¶ 95-99, 103-04, 109. Consequently, their claims fall within the ambit of Section 1252(b)(9). Named Plaintiffs also argue that application of Section 1252(b)(9) would deprive them of a remedy, but the immigration court can provide relief such as continuances or venue changes, and the Court of Appeals can—and routinely does—review properly exhausted access-to-counsel and due process claims on a petition for review. To the extent Named Plaintiffs seek to remedy conditions of their confinement that are independent of, and collateral to, their assertions of procedural rights in removal proceedings, they are free to raise such a claim in the district court and seek relief. They have not done so.
Even if the Court determines it has jurisdiction, Named Plaintiffs have failed to state a claim for relief. All of the claims asserted sound in due process because they allege the right to counsel, the right to a full and fair hearing, and the right to meaningful access to the administrative process. To prevail on a due process theory in the Tenth Circuit, an alien “must demonstrate prejudice which implicates the fundamental fairness of the proceeding.” Michelson v. I.N.S., 897 F.2d 465, 467 (10th Cir. 1990). Here, Named Plaintiffs have failed to identify any prejudice implicating the fundamental fairness of a proceeding and have therefore failed to state a claim for which this Court can grant relief.
The Court should therefore grant Defendants’ Motion to Dismiss (Doc. 23) and deny Plaintiffs’ Motion for Class Certification (Doc. 4) as moot.
1 Citations to Named Plaintiffs’ filings are to the page number stamped at the top by the Court rather than the number at the bottom of the page.
2

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 3 of 12
ARGUMENT I. Named Plaintiffs Lack Standing to Raise Claims Based on Government Actions That
Did Not Injure Them. Defendants do not dispute that Named Plaintiffs have standing to assert claims based on the difficulties they allegedly experienced in communicating with their counsel to prepare for their removal-related hearings. See Doc. 23 at 2. However, “a litigant cannot ‘by virtue of his standing to challenge one government action, challenge other governmental actions that did not injure him.’” Donelson v. United States Through Dep’t of the Interior, 730 F. App’x 597, 602 (10th Cir. 2018) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 n.5 (2006)). “Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Blum v. Yaretsky, 457 U.S. 991, 999 (1982). This is true because “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Hence, the Court should dismiss the claims to the extent they allege injuries that Named Plaintiffs did not personally suffer, such as inability to access phone service due to disabilities or lack of translations into rare languages. Named Plaintiffs argue that they should be allowed to bring their hodge-podge of telephone-related claims because the breadth of their claims implicates class certification issues rather than standing. However, the Supreme Court has made clear that courts may limit the breadth of class action claims under the standing doctrine rather than Rule 23. For example, in Lewis v. Casey, the Supreme Court noted that its determination that “respondents lacked standing to complain of injuries to non-English speakers and lockdown prisoners does not amount to a conclusion that the class was improper.” 518 U.S. at 358 n.6. Named Plaintiffs also analogize to nationwide Americans with Disabilities Act class actions where the named plaintiff has not
3

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 4 of 12
personally visited every location of a chain yet still has standing to bring a claim for nationwide injunctive relief. Doc. 29 at 13 (citing Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014)). The issue in Abercrombie & Fitch was a raised porch design common to store locations across the country, which the named plaintiff indisputably encountered when visiting one store in a wheelchair. See 765 F.3d at 1209-10. The Tenth Circuit evaluated the proper geographic scope of relief under the rubric of Rule 23. Here, the issue is myriad of telephone issues, only certain of which the Named Plaintiffs personally experienced. Under Lewis v. Casey, they lack standing to raise claims based on other issues that they have not experienced, either on their own behalf or on behalf of a class.2 518 U.S. at 358 n.6 (noting that standing “to complain of one administrative deficiency” does not “automatically confer[] the right to complain of all administrative deficiencies” (emphasis in original)).
Although Named Plaintiffs contend that Lewis v. Casey is inapposite, they do so only to argue that they do not need to allege “actual injury” beyond a due process violation to have standing to bring their claims. Doc. 29 at 15. Again, Defendants do not argue that Named Plaintiffs lack standing to raise claims based on their own alleged difficulties with communicating with their counsel. In any event, Named Plaintiffs are incorrect to claim that no actual injury is required. They cite a Second Circuit case, Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001), for this proposition. However, the Tenth Circuit, which governs this case, does require actual injury. See,
2 Named Plaintiffs misconstrue Defendants’ argument regarding Named Plaintiff Gomez Carranza’s access to counsel claims at El Paso. Doc. 29 at 13 n.4. Because Named Plaintiff Gomez Carranza concedes that his counsel visited him in person, Doc. 6 ¶ 7, he cannot plausibly contend that he was denied access to counsel. The right to access to counsel does not require any particular means of access. See, e.g., Lobato v. Gonzales, No. CV 14-753 WJ/GBW, 2015 WL 13651121, at *7 (D.N.M. Dec. 16, 2015), report and recommendation adopted, No. CV 14-753 WJ/GBW, 2016 WL 10591982 (D.N.M. Jan. 19, 2016) (holding that “a prisoner cannot demonstrate an injury on the basis of denial of attorney phone calls when the prison provides alternative methods of contacting a lawyer”).
4

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e.g., Abiodun v. Gonzales, 217 F. App’x 738, 742–43 (10th Cir. 2007) (finding that the petitioner, who alleged a due process violation based on inadequate legal materials, at his detention facility, “failed to demonstrate any actual injury that ‘hindered his efforts to pursue a legal claim’ and thus “fail[ed] to satisfy the actual injury component of constitutional standing to bring this claim” (quoting Lewis, 518 U.S. at 351)); accord Peoples v. CCA Det. Centers, 422 F.3d 1090, 1107 (10th Cir. 2005), opinion vacated in part on reh’g en banc, 449 F.3d 1097 (10th Cir. 2006) (in part of panel decision left intact by the en banc decision, requiring pretrial detainee alleging deprivation of access to courts to allege “actual injury, not mere deprivation, as a ‘constitutional prerequisite’ to bringing a claim” (quoting Lewis, 518 U.S. at 351)). II. Named Plaintiffs’ Alleged Injuries Arise out Their Removal Proceedings and Cannot
Be Brought in District Court Under 8 U.S.C. § 1252(b)(9). A. Named Plaintiffs’ Claims Are Inextricably Intertwined with the Removal
Process. In the Complaint, Named Plaintiffs state that they “challenge policies and practices that deny and severely restrict their abilities to make telephone calls necessary to consult with or obtain counsel, to gather information and evidence necessary for their cases, and to obtain fair hearings while in civil, immigration custody.” Doc. 1 ¶ 2. All three of their claims seek to vindicate procedural rights that arise out of immigration proceedings, id. ¶¶ 95-99, 103-04, 109, and more specifically, their removal proceedings, id. ¶¶ 70, 77. As the First Circuit explained in Aguilar, “claims that are based upon an alleged deprivation of an alien’s right to counsel in connection with a removal proceeding, whether pending or imminent, arise from the removal proceeding. By any realistic measure, the alien’s right to counsel is part and parcel of the removal proceeding itself. See 8 U.S.C. § 1362.” Aguilar v. ICE, 510 F.3d 1, 13 (1st Cir. 2007); J.E.F.M. v. Lynch, 837 F.3d 1026, 1033 (9th Cir. 2016) (holding that rightto-counsel claims “‘arise from’ removal proceedings and “are bound up in and an inextricable part
5

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 6 of 12
of the administrative process”); E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., 950 F.3d 177, 187-88 (3d Cir. 2020) (holding that the statutory right to counsel under Section 1362 “is tied to the removal proceedings themselves”).
The same reasoning applies to Plaintiffs’ other claims because they also arise out of their removal proceedings. See, e.g., Aguilar, 510 F.3d at 18 (holding that procedural due process claims alleging “difficulties in calling witnesses and in presenting evidence at the removal proceedings” fall within Section 1252(b)(9)); Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, No. 1:20-CV-00852 (CJN), — F.3d —, 2020 WL 2026971, at *8-9 (D.D.C. Apr. 28, 2020) (“Plaintiffs’ access-to-counsel and due process claims arise from the course of removal hearings, placing them within § 1252(b)(9)’s broad jurisdictional bar.”).
Because Named Plaintiffs’ claims are intertwined with their removal proceedings, they are challenging “part of the process by which their removability will be determined.” Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (plurality op.). Section 1252(b)(9) therefore channels their claims in to the petition for review process in the Court of Appeals. J.E.F.M., 837 F.3d at 1033.
B. The Exception for Collateral Claims Does Not Apply. “Claims that are independent of or collateral to the removal process do not fall within the scope of § 1252(b)(9).” J.E.F.M., 837 F.3d 1026, 1032 (9th Cir. 2016). For example, Justice Alito’s plurality opinion in Jennings referenced a hypothetical Bivens action “based on allegedly inhumane conditions of confinement” as the type of claim collateral to the removal process. 138 S. Ct. at 840. Named Plaintiffs seek to avail themselves of this exception by recharacterizing their claims as challenging the conditions of their confinement rather than the fairness of their immigration proceedings. This shift in focus is likely attributable to the Southern Poverty Law Center (“SPLC”) decision, which came out six weeks after Named Plaintiffs filed their Complaint. S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec., No. CV 18-760 (CKK), 2020 WL 3265533
6

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 7 of 12
(D.D.C. June 17, 2020). In SPLC, the organizational plaintiff claimed that “conditions at . . . four detention centers are so restrictive that they are punitive in violation of the Fifth Amendment’s substantive due process clause.” Id. at *16. The SPLC court held that a “substantive due process claim alleging punitive conditions of confinement is not barred by section 1252(b)(9)” and avoided deciding whether Section 1252(b)(9) would bar the organizational plaintiff’s Fifth Amendment access-to-counsel claim.3 Id. *14, *16.
Here, the Complaint does not raise any causes of actions alleging that the conditions of confinement at Otero and El Paso, by themselves, are punitive or inhumane. Indeed, the Complaint does not even mention the term “conditions of confinement” except to describe ICE’s detention standards. Doc. 1 ¶ 28. Soon after filing their Complaint, Named Plaintiffs filed a motion for class certification that also failed to mention “conditions of confinement” but instead argued that detainees “must access free, confidential legal calls in order to speak to their attorneys and to be able to effectuate their constitutional, statutory, and regulatory rights in their immigration proceedings.” Doc. 5 at 5 (emphasis added). Post-SPLC, Named Plaintiffs seek to focus solely on conditions of confinement: “Here, Plaintiffs’ [sic] do not seek any procedural protections in removal proceedings—rather they seek injunctive relief to remedy conditions of their confinement.” Doc. 29 at 21 (emphasis added). Yet the procedural rights they are seeking to vindicate arise from their removal proceedings. See Doc. 29 at 15 (noting that “Plaintiffs do not
3 The court acknowledged that the “conditions of confinement claim raises issues addressing access to counsel”; however, because the organizational plaintiff defended immigrants in proceedings other than removal proceedings, the court found that the substantive due process claim did not “directly invoke[] the detained immigrants’ right to counsel in removal proceedings.” Id. at *17. Here, by contrast, the Named Plaintiffs are individuals in removal proceedings, and their allegations regarding the conditions of their confinement directly invoke their right to counsel in removal proceedings.
7

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 8 of 12
assert that they have a standalone right to telephone access”). Accordingly, Named Plaintiffs are in fact seeking procedural protections for their removal proceedings.
In any event, to the extent Named Plaintiffs now allege that their conditions of confinement are punitive independent of any impact on their removal proceedings, Named Plaintiffs may not avoid dismissal by raising new claims in response to a motion to dismiss. See, e.g., Wroten v. Walmart, No. 19-CIV-1125 MV/JHR, 2020 WL 2364570, at *2 (D.N.M. Apr. 20, 2020), report and recommendation adopted, 2020 WL 2330018 (D.N.M. May 11, 2020); see also Boyer v. Bd. of Cty. Comm’rs of Johnson Cty., 922 F. Supp. 476, 482 (D. Kan. 1996) (“It is inappropriate to use a response to a motion to dismiss to essentially raise a new claim for the first time.”). In deciding this motion to dismiss, the Court should consider the procedural claims raised in the Complaint, and not the substantive claims Named Plaintiffs neglected to assert.
C. Named Plaintiffs Are Not Left Without a Remedy If Required to Exhaust Their Claims and File a Petition for Review in the Court of Appeals.
According to Named Plaintiffs, their claims must be allowed to proceed notwithstanding Section 1252(b)(9) because otherwise, they would have no remedy. Doc. 29 at 17-18. These concerns are overstated. As Named Plaintiffs concede, “Section 1252(b)(9) is a jurisdiction channeling provision, and not a jurisdiction stripping provision.” Hence, Section 1252(b)(9) does not “foreclose all judicial review of agency actions. Instead, [it] channel[s] judicial review over final orders of removal to the courts of appeals.” J.E.F.M., 837 F.3d at 1031 (emphasis in original). In other words, Named Plaintiffs “can have their day in court, but just not in this Court.” Vetcher v. Sessions, 316 F. Supp. 3d 70, 77 (D.D.C. 2018) (internal quotation marks and citation omitted).
Furthermore, “[t]he remedies left open by section 1252(b)(9) are neither inadequate nor ineffective to protect the petitioners’ rights. Each petitioner’s right to counsel can be adequately addressed and effectively vindicated before an immigration judge (who can grant a continuance,
8

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 9 of 12
order a change of venue, or take other pragmatic steps to ensure that the right is not sullied).” Aguilar, 510 F.3d at 18 (citation omitted). Here, for example, Named Plaintiffs each obtained a continuance when they felt unprepared for their hearings. Doc. 1 ¶¶ 75, 81. To the extent the immigration judge denies such a request, Named Plaintiffs can exhaust the issue before the Board of Immigration Appeals and raise it during the petition for review process. See J.E.F.M., 837 F.3d at 1033 (noting that “[r]ight-to-counsel claims are routinely raised in petitions for review filed with a federal court of appeals”); see also Vaccaro v. Holder, 465 F. App’x 744, 745 (10th Cir. 2011) (addressing the immigration judge’s denial of a continuance on a petition for review but finding the claim unexhausted); Abiodun, 217 F. App’x at 742 & n.6 (noting that the petitioner could have raised claims relating to the right to counsel and lack of opportunity to review evidence in removal proceedings in a previous petition for review, provided they had been properly exhausted).
Although the immigration judge lacks jurisdiction over conditions in a detention facility, Doc. 29 at 24, Named Plaintiffs can still seek relief from the district court if they allege claims that are truly collateral to their removal proceedings, such as claims “based on allegedly inhuman conditions of confinement,” Jennings, 138 S. Ct. at 840; see also E.O.H.C., 950 F.3d at 186 (describing claims to which Section 1252(b)(9) would not apply, including denial of halal or kosher food or withholding of medication). Moreover, the fact that conditions of confinement can affect procedural rights does not bar applicability of Section 1252(b)(9) when the procedural rights arise from removal proceedings and any injury can be remedied in that context. For example, in National Immigration Project, the plaintiffs alleged that conditions at ICE detention facilities— including restrictions on in-person visits and telephone calls, scheduling difficulties, lack of confidentiality, and charges for calls—deprived them of the right to counsel. 2020 WL 2026971, at *6, *8. The court held that because the detainees were in removal proceedings, their access-to-
9

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counsel and due process claims “arise as a ‘part of the process by which . . . removability will be determined.’” Id. at *9 (quoting Jennings, 138 S. Ct. at 841 (ellipsis in original)). Similarly, in Vetcher, the plaintiff alleged that deficiencies in the ICE detention facility’s law library impaired his ability to meaningfully contest his removal charges and thus violated his right to due process. 316 F. Supp. 3d at 75. Even though the due process claim stemmed from facility issues, the court found that Section 1252(b)(9) required it be exhausted and channeled to the court of appeals on a petition for review.
Named Plaintiffs further argue that they will obtain no relief if required to wait until a removal order to bring their claims, since their decision to seek continuances has prolonged their detention. Doc. 19 at 24. The problem with this argument is that Named Plaintiffs do not bring a challenge to their prolonged detention, a cause of action that the Jennings plurality determined was not subject to Section 1252(b)(9). 138 S. Ct. at 840. Named Plaintiffs cannot manufacture an escape hatch from Section 1252(b)(9) by failing to assert a claim and then lamenting that they are left with no remedy for that unasserted claim. Named Plaintiffs chose to frame their complaint as seeking remedies for violations of procedural rights, and Named Plaintiffs can adequately vindicate those rights as Congress intended—by exhausting their claims and consolidating them with all other removal-related claims in a petition for review to the Tenth Circuit. III. Even If the District Court Has Jurisdiction, Named Plaintiffs Fail to State a Claim
Absent Any Allegation of Prejudice. Immigrant detainees lack the right to counsel under the Sixth Amendment, and “due process is not equated automatically with a right to counsel.” Michelson v. I.N.S., 897 F.2d 465, 468 (10th Cir. 1990). “[B]efore [the court] may intervene based upon a lack of representation, petitioner must demonstrate prejudice which implicates the fundamental fairness of the proceeding.” Id.; Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) (“To prevail on a due
10

Case 2:20-cv-00424-KG-KRS Document 31 Filed 08/03/20 Page 11 of 12
process claim, an alien must establish not only error, but prejudice.”); see also Hernandez Lara v. Barr, 962 F.3d 45, 56 & n.14 (1st Cir. 2020) (noting circuit split on whether prejudice is required to show a due process violation in immigration proceedings and citing Michelson as a Tenth Circuit decision requiring prejudice).
Contrary to binding Tenth Circuit precedent, Plaintiffs contend that they are exempt from the prejudice requirement or that prolonged detention is sufficient to show prejudice for purposes of the Fifth Amendment.4 Doc. 29 at 26-27. The cases make clear, however, that not only must there be prejudice, but the prejudice must “implicat[e] the fundamental fairness of a proceeding.” Michelson, 897 F.2d (emphasis added). Tellingly, Plaintiffs do not argue that the alleged telephone issues caused them prejudice at any immigration proceeding and thus have failed to state a cognizable claim that their right to due process was violated. See Van Dinh v. Reno, 197 F.3d 427, 435 (10th Cir. 1999) (concluding that a class complaint alleging “a totally speculative future violation of due process” from detainees’ lack of access to counsel did “not allege that an actual or continuing constitutional violation had occurred that could be remedied by judicial action”).
CONCLUSION For the foregoing reasons, the Court should grant Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Doc. 23) and deny as moot Named Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel (Doc. 4).
4 Because the First Amendment claim is based on meaningful access to the administrative process, it should be analyzed in the same way as the due process claims. See Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 595 (9th Cir. 1992), as amended on denial of reh’g (June 18, 1993).
11

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Respectfully submitted. JOHN C. ANDERSON United States Attorney /s/ Christine H. Lyman 8/3/2020 CHRISTINE H. LYMAN Assistant United States Attorney District of New Mexico P.O. Box 607 Albuquerque, NM 87103 505-346-1532 Christine.Lyman@usdoj.gov
CERTIFICATE OF SERVICE I hereby certify that on August 3, 2020, Defendants filed through the United States District Court CM/ECF System the foregoing document, causing it to be served by electronic means on all counsel of record.
/s/ Christine H. Lyman 8/3/2020 CHRISTINE H. LYMAN Assistant United States Attorney
12

 
 Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 1 of 33

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

René A. Kathawala 6 Paige Pavone

7

Lauren D. Allen ORRICK, HERRINGTON & SUTCLIFFE, LLP

8 51 West 52nd Street

New York, NY 10019

9 Telephone: (212) 506-3604

Facsimile: (212) 506-5151 10 Email: ppavone@orrick.com

11 Katherine Melloy Goettel (Pro Hac Vice Admission Pending)

12

AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200

13

Washington, DC 20005 Tel.: (202) 507-7552

14 Email: kgoettel@immcouncil.org

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

18

19 FRANKLIN GOMEZ CARRANZA and RUBEN TORRES JAUREGUI,
20 Plaintiffs,
21

v. 22

23

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

24 Defendants.

25

Case No. 20-CV-00424 (KG) (KRS)
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

26

27

i

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 2 of 33

1 2
I. 3 II. 4 5 6 7 8 9 10 11 12 13 14 15 III. 16 IV. 17 18 19 20 21 22 23 24 25 26 27 V.

TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................. 1
STATEMENT OF FACTS ................................................................................................ 2
A. ICE Acknowledges COVID-19’s Substantial Impact and the Resulting Need to Expand Telephone Access But Does Not Comply with Its Own Policies at Otero. .................................................................................................... 2
B. Despite ICE Policy Promoting Expanded Telephone Access, Restrictive Practices at Otero Have Rendered All Communications With the Outside World Nearly Impossible. ...................................................................................... 3
1. Defendants Refuse to Implement Procedures for Scheduling Legal Calls at Otero. ............................................................................................ 3
2. Defendants Refuse to Schedule Legal Intake Calls between NonProfit Legal Service Providers and Individuals Detained at Otero............ 5
3. Defendants Create Impossible Procedural Hurdles, Including Mandating Signed G-28 Forms, for Scheduling Legal Calls..................... 7
4. When Defendants Refuse to Facilitate Legal Calls, Calls Are Prohibitively Expensive or of Insufficient Length..................................... 8
5. When Defendants Fail to Facilitate Legal Calls, Calls Are Monitored and Lack Privacy.................................................................... 10
6. Defendants Fail to Provide Reliable, Quality Phone and Tablet Service at Otero........................................................................................ 12
LEGAL STANDARD...................................................................................................... 12
ARGUMENT ................................................................................................................... 13
A. Plaintiffs have a Substantial Likelihood of Succeeding on the Merits of their Claims. ......................................................................................................... 13
1. Plaintiffs have a Substantial Likelihood of Succeeding on their Fifth Amendment Due Process and Access to Counsel Statutory Claims. ..................................................................................................... 13
a. Defendants’ Restrictive Telephone Access Practices Have Violated Plaintiffs’ Fifth Amendment Rights.............................. 13
b. Defendants’ Restrictive Telephone Access Practices Have Violated Plaintiffs’ Statutory Rights............................................ 15
c. Case Law Makes Clear that Plaintiffs have a Substantial Likelihood of Success on the Merits............................................ 15
2. Plaintiffs have a Substantial Likelihood of Succeeding on their First Amendment Claims. ........................................................................ 18
B. Defendants’ Failure to Provide for Telephone Access Irreparably Harms Plaintiffs and Putative Class Members. ............................................................... 19
C. The preliminary injunction would cause no injury to Defendants and would be in the public interest ............................................................................. 24
CONCLUSION................................................................................................................ 26

ii

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 3 of 33

1
2 Cases
3

TABLE OF AUTHORITIES

Page(s)

4

A.O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir.1976).................................................................................................... 19

5 Ardestani v. INS,

6

502 U.S. 129 (1991)............................................................................................................... 14

7 Awad v. Ziriax,

670 F.3d 1111 (10th Cir. 2012) ............................................................................................. 25 8

Daniels v. Morris Cnty. Corr. Facility,

9

No. CIV.A. 06-2460(DMC), 2006 WL 2524177 (D.N.J. Aug. 30, 2006)............................. 18

10 Diallo v. Gonzales,

11

447 F.3d 1274 (10th Cir. 2006) ............................................................................................. 14

12 Dine Citizens Against Ruining Our Env’t v. Jewell,

839 F.3d 1276 (10th Cir. 2016) ............................................................................................. 12 13

Doe v. McAleenan,

14

415 F. Supp. 3d 971 (S.D. Cal. 2019).................................................................................... 25

15 Eight N. Indian Pueblos Council, Inc. v. Kempthorne,

16

No. CV 06-745 WJ/ACT, 2006 WL 8443876 (D.N.M. Sept. 15, 2006) ............................... 25

17 Fraihat v. ICE litigation,

2020 WL 1932570 (C.D. Cal. Apr. 20, 2020) ....................................................................... 23

18

Free the Nipple-Fort Collins v. City of Fort Collins, Colorado,

19

916 F.3d 792 (10th Cir. 2019) ........................................................................................ 24, 25

20 Fund for Animals v. Clark,

21

27 F. Supp. 2d 8 (D.D.C.1998) .............................................................................................. 25

22 Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917 (W.D. Tex. 2018).................................................................................. 18

23

Hennigh v. City of Shawnee,

24

155 F.3d 1249 (10th Cir. 1998) ............................................................................................. 14

25 Innovation Law Lab v. Nielsen,

26

310 F. Supp. 3d 1150 (D. Or. 2018) .......................................................................... 17, 20, 22

27 Jackson v. King, No. 2:12-CV-00421-MCA-RHS, 2013 WL 12334146 (D.N.M. Mar. 30, 2013).................. 24

iii

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 4 of 33

1 Johnson ex rel. Johnson v. Brelje, 701 F.2d 1201 (7th Cir. 1983) ......................................................................................... 17, 18
2

3

Johnson v. Galli, 596 F. Supp. 135 (D. Nev. 1984) ........................................................................................... 19

4 Kikumura v. Hurley,

5

242 F.3d 950 (10th Cir. 2001) ............................................................................................... 19

6 Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001)............................................................................................................... 18 7

Logan v. Pub. Emps. Ret. Ass’n,

8

163 F. Supp. 3d 1007 (D.N.M. 2016) .................................................................................... 13

9 Lyon v. ICE,

10

No. 13-cv-05878-EMC (N.D. Cal. Oct. 31, 2016) ................................................................ 25

11 McClendon v. City of Albuquerque,

272 F. Supp. 2d 1250 (D.N.M. 2003) .............................................................................. 19, 20 12

Medina v. DHS,

13

313 F. Supp. 3d 1237 (W.D. Wash. 2018)............................................................................. 25

14 Moore v. Janing,

15

427 F. Supp. 567 (D. Neb. 1976) ........................................................................................... 18

16 Nken v. Holder,

556 U.S. 418 (2009)............................................................................................................... 24

17

Orantes-Hernandez v. Meese,

18

685 F. Supp. 1488 (C.D. Cal. 1988) ...................................................................................... 17

19 Osborn v. Shillinger,

20

932 F.2d 975 (10th Cir. 1991) ............................................................................................... 14

21 Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245 (10th Cir. 2016) ............................................................................................. 12

22

Prairie Band of Potawatomi Indians v. Pierce,

23

253 F.3d 1234 (10th Cir. 2001) ............................................................................................. 19

24 Procunier v. Martinez,

25

416 U.S. 396 (1974)............................................................................................................... 14

26 Ramirez v. ICE, 310 F. Supp. 3d 7 (D.D.C. 2018) ........................................................................................... 21
27

iv

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 5 of 33

1 Reno v. Flores, 507 U.S. 292 (1993)............................................................................................................... 14
2

3

Rodriguez-Castillo v. Nielsen, No. 5:18-CV-01317-ODW-MAA, 2018 WL 6131172 (C.D. Cal. June 21,

4

2018) ...................................................................................................................................... 17

5 S. Poverty Law Ctr. v. DHS,

No. CV 18-760 (CKK), 2020 WL 3265533 (D.D.C. June 17, 2020) ............................. passim

6

Strandberg v. City of Helena,

7

791 F.2d 744 (9th Cir. 1986) ................................................................................................. 18

8 Torres v. DHS,

9

411 F. Supp. 3d 1036 (C.D. Cal.) .................................................................................... 16, 18

10 Torres v. DHS,

Case No. 18-2604, 2020 WL 3124216 (C.D. Cal. April 11, 2020) ................................ passim

11

United States v. Aguirre-Tello,

12

353 F.3d 1199 (10th Cir. 2004) ............................................................................................. 14

13 United States v. Cias,

14

No. CR 10-0420 JP, 2010 WL 11530513 (D.N.M. July 29, 2010) ....................................... 14

15 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)............................................................................................................... 18

16 Upshaw v. Alameda Cnty.,

17

377 F. Supp. 3d 1027 (N.D. Cal. 2019) ................................................................................. 25

18 Woods v. Bd. of Cnty. Comm’rs,

19

No. 1:20-cv-00529-PJK-LF, 2020 U.S. Dist. LEXIS 126526 (D.N.M. July 17, 2020) ...................................................................................................................................... 13

20 Statutes
21 5 U.S.C. § 555(b) ........................................................................................................................ 15
22 8 U.S.C. § 1226(a) ....................................................................................................................... 15
23 8 U.S.C. § 1229a .......................................................................................................................... 15
24
8 U.S.C. § 1362............................................................................................................................ 15 25

26 Other Authorities

27 8 C.F.R. § 1003.16(b) .................................................................................................................. 15

v

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 6 of 33
1 8 C.F.R. § 1292.5(b) .................................................................................................................... 15 2 Performance-Based National Detention Standards 2011 (Dec. 2016) .................................. 24, 25 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 7 of 33

1 I. INTRODUCTION

2

The coronavirus pandemic has all but halted in-person legal visitation for detained non-

3 citizens. Despite this, Immigration and Customs Enforcement (“ICE”) is not providing
4 individuals detained at the Otero County Detention Processing Center (“Otero”) with access to
5 counsel through the only safe means currently available: a reliable procedure to schedule free,
6
7 private, and confidential legal calls. While ICE publicly recognizes the heightened need “to

8 facilitate communication with families and attorneys through extended access to telephones”

9 during the COVID-19 pandemic, see ICE Guidance on COVID-19,

10 https://www.ice.gov/coronavirus (last visited August 21, 2020), Plaintiffs at Otero suffer from

11 the substantial impact of Defendants’ curtailment of in-person visitation without meaningful
12 telephone access. Immediate court intervention is required to protect Plaintiffs from the
13
ongoing, irreparable harm that results. 14

15

Telephone access conditions in Otero have deteriorated even further since the filing of

16 the complaint in early May. Defendants refuse to facilitate free, confidential, and private calls

17 with legal service providers; effectively prohibit legal intake calls; frequently disconnect calls
18 after 5 to 10 minutes; and force Plaintiffs to make legal calls on recorded lines. In the rare 19
circumstances where a legal service provider has been able to schedule a legal call through ICE, 20
the process has been unreliable and time-consuming. These practices are unacceptable no matter 21 22 the state of the world. In a global pandemic when ICE has issued policies limiting all in-person
23 visitation, highly restrictive telephone access violates Plaintiffs’ fundamental rights.

24

Telephones are an efficient and crucial means through which detained individuals

25 communicate with counsel and family. Providing telephone access that is free, unmonitored,
26 private, subject to consistent and reliable scheduling, and of meaningful duration takes little 27
effort from Defendants. At the same time, meaningful telephone access ensures that Defendants

1

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 8 of 33

1 are in compliance with their legal obligations to provide detained individuals with due process,

2 including access to counsel, and the right to petition the government. In fact, Defendants have
3 already sketched out much of the relief that Plaintiffs request in their Performance-Based
4 National Detention Standards. On a policy level, ICE acknowledges the exceptionally critical
5 value of telephonic and other remote communication methods during a global pandemic, but in
6
7 practice, ICE field officers responsible for Otero fail to make telephones accessible. Instead, for

8 days and weeks, Plaintiffs and their counsel endure ignored and often dead-end communications

9 with ICE to set up calls, only to have eventual legal calls drop, be too noisy, or not occur at
10 scheduled times. There is no justification, logic, or legitimate public interest in Defendants’ 11
telephone access practices at Otero and we respectfully ask this Court to certify a class,1 and to 12
issue injunctive relief to ensure, protect, and restore Plaintiffs’ rights. 13

14 II. STATEMENT OF FACTS

15

A. ICE Acknowledges COVID-19’s Substantial Impact and the Resulting Need

16

to Expand Telephone Access But Does Not Comply with Its Own Policies at

Otero.

17 The health impact of COVID-19 is even more pronounced in ICE detention facilities than
18 outside of those facilities, with 150 confirmed cases to-date amongst the approximately 800
19

20 detained individuals at Otero. See ICE Guidance on COVID-19. Accordingly, ICE has taken

21 many precautionary measures to curtail in-person visitation, which necessitates alternative access

22 to maintain Plaintiffs’ constitutional and statutory rights. In April 2020, ICE suspended social

23 visitation in all detention facilities. Id. In-person legal visitation is permitted with restrictions.
24 “Non-contact legal visitation (e.g., Skype or teleconference) should be offered first to limit 25

26

27 1 The parties have fully briefed class certification and incorporate those arguments herein. See Mot. for Class Certification, ECF No. 4; Reply in Support of Mot. for Class Certification, ECF No. 28.

2

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 9 of 33

1 exposure to ICE detainees.” Id. This has not been made available at Otero. Legal visitors must

2 undergo health screenings and wear personal protective equipment. Id. Justifiably, many non-
3 profit legal service providers and law firms, including those with attorneys working pro bono,
4 have instructed employees not to travel or conduct in-person work.
5 ICE has acknowledged the “substantial impact” of curtailed in-person visitation and has
6
7 recognized that expanded telephone access and remote visitation is the appropriate response. Id.

8 ICE recommends that detention facilities “[c]onsider allowing increased telephone privileges

9 without a cost barrier to maintain mental health and connection with others while isolated.”
10 ICE ERO, U.S. ICE Enforcement and Removal Operations COVID-19 Pandemic Response 11
Requirements Version 3.0, July 28, 2020 (“ICE Pandemic Response”), p. 23, 12
https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (emphasis 13 14 added). ICE policy calls for implementing much of the relief Plaintiffs seek, including: “virtual
15 visitation”; “[a]dding all immigration attorneys of record to the Talton2 Pro-bono [free and

16 unmonitored] platform”; “a process for detainees/attorneys to schedule appointments and

17 facilitate the calls”; and “[l]everaging technology (e.g., tablets, smartphones) to facilitate

18 attorney/client communication.” See id. at p. 19.

19 B. Despite ICE Policy Promoting Expanded Telephone Access, Restrictive

20

Practices at Otero Have Rendered All Communications With the Outside

World Nearly Impossible. 21

22

1. Defendants Refuse to Implement Procedures for Scheduling Legal

Calls at Otero.

23 Despite the increased reliance on telephone communications during the coronavirus
24

pandemic, and despite repeated efforts by multiple attorneys and legal service organizations to 25

26 establish a working procedure, ICE has not set up any procedure for facilitating free, confidential

27 2 Talton is the phone service provider at Otero.

3

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 10 of 33

1 legal calls at Otero. See Decl. of Estrella Cedillo, dated August 20, 2020 (“Cedillo Decl.”) at ¶ 6;

2 Decl. of María Martínez Sánchez, dated Aug. 18, 2020 (“Sánchez Decl.”) at ¶¶ 5-10; Decl. of
3 Max Brooks (“Brooks Decl.”), dated August 7, 2020, at ¶ 5.; Decl. of Imelda Maynard, dated
4 August 17, 2020 (“Maynard Decl.”) at ¶ 3. Attorneys have reported that “ICE does not reliably
5 or promptly respond to [their] requests to arrange telephone calls to [their] clients. As a result,
6
7 despite emails and phone calls to ICE officers, ICE does not reliably convey messages to . . .

8 clients or arrange for phone calls at the time requested.” Brooks Decl. at ¶ 3a. In fact, on several

9 occasions, ICE officials have refused to set up any legal calls for detained individuals and have
10 affirmatively told attorneys that they would “no longer set up calls with detainees.” Sánchez 11
Decl. at ¶ 10 (referencing an April email from the ICE Assistant Field Office Director stating 12
that ICE would end making calls and explaining “[t]his is for all calls not just intake”); Cedillo 13 14 Decl. at ¶ 9 (explaining that in May, the ICE Deputy Field Office Director said he would not
15 require ICE officers to set up free, confidential legal intake calls at Otero).

16

If ICE does schedule a call, which happens, infrequently, on an ad hoc basis, it often

17 takes days of repeated requests, and ICE often does not ensure that scheduled calls actually take
18 place. Brooks Decl. at ¶ 9 (noting that seven scheduled calls through ICE were not honored 19
between June 3, 2020, and July 31, 2020 between one legal representative and her client); Decl. 20
of Elsa Goossen, dated Aug. 19, 2020 (“Goossen Decl.”), at ¶¶ 6-10 (explaining that “it took 21
22 eight business days to schedule [] one phone call,” including nine emails and multiple calls to the

23 facility); see id. at ¶¶ 11-15, 17-18 (reporting that an attorney was only able to schedule an

24 urgent call with the intervention of an Assistant United States Attorney); Cedillo Decl. at ¶ 15

25 (explaining that a volunteer with Santa Fe Dreamers had to make four email separate requests in
26 order to arrange one call with a potential client, and when he finally made the call, it was a paid,
27

4

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1 non-confidential call); see id. at ¶ 17 (reporting that again it took four requests to schedule one

2 call that was on a paid, recorded line).
3 As a result of the absence of any procedure, attorneys have been unable to have free,
4 confidential legal calls with their clients. For example, in order to maintain in contact with his
5 clients and prospective clients, one attorney “had to create a work-around,” where he asked
6
7 detained individuals to call him every day, but they “had to make these calls using their own

8 funds and the calls were on a recorded line.” Decl. of Joachim Marjon, dated August 16, 2020

9 (“Marjon Decl.”), at ¶ 4. See also Decl. of Heidi Cerneka (“Cerneka Decl.”), dated August 17,

10 2020 at ¶ 5 (explaining that ICE “never arranged for a free, confidential legal call” with a client

11 seeking asylum, so instead those calls were on a recorded line and required the family to deposit
12 funds into his account).
13

14

2. Defendants Refuse to Schedule Legal Intake Calls between Non-Profit Legal Service Providers and Individuals Detained at Otero.

15 A thorough legal intake is necessary before a legal service provider can represent a
16 detained individual. Supplemental Decl. of David Jackson (“Jackson Decl.”), dated August 17,
17
2020, at ¶ 4. Without sufficient information about a potential client and his or her legal claims, 18

19 and without permission from the client to enter an attorney-client relationship, an attorney cannot

20 commit to representation. See Cedillo Decl. at ¶ 10. Legal intake programs are critical for

21 Plaintiffs and putative class members in expedited removal proceedings, full removal

22 proceedings, bond hearings, habeas petitions, parole requests, civil litigation, and affirmative 23
applications for immigration benefits. See Jackson Decl. at ¶ 2; Marjon Decl. at ¶ 6; Cedillo 24
Decl. at ¶ 2. Due to the COVID-19 pandemic, legal service providers that work with individuals 25 26 detained in Otero, including the Las Americas Immigrant Advocacy Center (“Las Americas”)
27 and Santa Fe Dreamers Project (“Santa Fe Dreamers”), have stopped conducting in-person legal

5

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 12 of 33

1 intakes and have attempted to transition to telephonic legal intakes. Jackson Decl. at ¶ 5; Cedillo

2 Decl. at ¶ 3.

3

There is no formal procedure for scheduling legal intake calls at Otero. Jackson Decl. at

4 ¶ 5; Cedillo Decl. at ¶ 7. From March 19, 2020, to May 13, 2020, David Jackson, the
5 Supervising Intake Specialist at Las Americas, arranged an informal system through which he
6

7 would contact ICE Supervisory Detention and Deportation Officer Roberto Sanchez to schedule

8 legal intake calls with potential clients. Jackson Decl. at ¶ 5. See also Decl. of David Jackson,

9 dated May 13, 2020, Dkt. Entry No. 8. However, that arrangement proved to be unreliable: 20

10 to 25 of the arranged calls were not honored and, when they were honored, the calls were several

11 hours late, which defeated the purpose of scheduling. Id. at ¶¶ 3-4. ICE stopped responding to
12 Las Americas’ legal intake scheduling requests in May. Since then, Las Americas has been
13
unable to schedule legal intake calls through ICE. Jackson Decl. at ¶ 6. 14

15

As a workaround, Las Americas has directly funded legal intake calls for potential

16 clients, when available, incurring $10 to $15 per call. Jackson Decl. at ¶ 7. They do so by

17 putting money into potential clients’ commissary accounts solely to conduct a legal intake to

18 determine whether to take on the individual as a client. Id. Because ICE does not arrange these
19 calls, detained individuals must place these paid calls from the phones in the housing units,
20 which are recorded and thus are not confidential or private. Id. at ¶ 8. Las Americas serves eight
21 immigration detention facilities in addition to Otero. Otero is the only center where ICE refuses
22
23 to arrange free legal intake calls. Id. at ¶ 11.

24

The Santa Fe Dreamers Project has also been unable to schedule legal intake calls at

25 Otero through ICE. Cedillo Decl. at ¶ 5 (“[W]e have had the most difficulty reaching individuals 26 for legal intakes.”). In fact, the ICE Deputy Field Office Director told Santa Fe Dreamers 27
Project attorney Estrella Cedillo that “he would not force his ICE officers to set up free,

6

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 13 of 33

1 confidential legal intake calls.” Id. ¶ 9. As a result, though Attorney Cedillo regularly attempts

2 to arrange legal intake calls by contacting ICE supervisory officers, this procedure “never results

3 in a free, confidential call.” Id. ¶ 6.

4

3. Defendants Create Impossible Procedural Hurdles, Including

5

Mandating Signed G-28 Forms, for Scheduling Legal Calls.

6

As an additional obstructive measure, Defendants have demanded that legal

7 representatives produce a signed G-28 form before permitting legal calls or legal intake calls
8 with individuals detained at Otero. See Brooks Decl. at ¶¶ 3e, 5; Goossen Decl. at ¶¶ 11-12. A
9 G-28 is a U.S. Citizenship and Immigration Services (USCIS) form that serves as a legal
10
11 representative’s notice of an attorney-client relationship with a detained individual for

12 immigration matters before DHS.3 See USCIS, G-28, Notice of Entry of Appearance as Attorney

13 or Accredited Representative, https://www.uscis.gov/g-28 (last accessed Aug. 21, 2020).

14 Defendants have required that legal representatives produce a signed G-28—verifying the
15 attorney-client relationship—before they will agree to arrange a legal intake call. See Brooks
16 Decl. at ¶ 3e, 5, 7; Cedillo Decl. at ¶ 10. A legal representative cannot ethically enter an
17 appearance on behalf of a client who has not retained her and before they have ever even spoken.
18
19 See Cedillo Decl. at ¶ 10 (“It is not possible for [counsel at the Santa Fe Dreamers Project] to

20 enter into a representation agreement with an individual that we have not met with before, and

21 therefore, it is not possible for us to provide a signed G-28 for a person we have not met.”). Id.
22 Thus, Defendants’ refusal to schedule legal intake calls without signed G-28 forms is a catch-22 23
that prevents the scheduling of many if not all legal intake calls at Otero. Id. 24

25 3 Attorneys not seeking to represent clients in matters related to immigration, including civil rights and
26 federal habeas litigation, do not sign G-28s with their clients, yet ICE still requests that they do so before scheduling legal calls. Goossen Decl. at ¶¶ 11-12. (“ACLU attorneys do not practice immigration law;
27 therefore, G-28s are not applicable to our ability to access legal calls with detainees.”).

7

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 14 of 33

1

Despite the impracticability of in-person visitation during COVID-19, and ICE policy

2 limiting the practice, Defendants have required that a G-28 form be submitted with wet
3 signatures by both the legal representative and the client before permitting the scheduling of
4 legal calls. See Brooks Decl. at ¶ 7. Because legal service providers must now necessarily mail
5 a G-28 to their clients and then wait for the client to mail the signed form back, it is often not
6
7 possible to obtain a wet signature before an urgent legal call is necessary. Brooks Decl. at ¶ 3e.

8 Significantly, even when counsel provides ICE with a signed G-28 form, ICE refuses to schedule

9 legal calls. Cedillo Decl. at ¶ 10 (“[E]ven when we have an original, signed G-28, ICE has not

10 arranged for free legal calls.”).

11 4. When Defendants Refuse to Facilitate Legal Calls, Calls Are

12

Prohibitively Expensive or of Insufficient Length.

13

If ICE does not facilitate a legal call, people detained at Otero currently have two means

14 of reaching the outside world: calls made over housing unit telephones and calls using a
15 program called Getting Out on tablets. See Decl. of Margaret Brown Vega, dated August 19,
16 2020 (“Vega Decl.”), at ¶ 3; Sánchez Decl. at 7. Both the housing unit phones and the tablets
17 require payment, except for free ten-minute calls discussed below. Vega Decl. at ¶ 3. While
18
19 certain legal service providers approved by the Executive Office for Immigration Review

20 (“EOIR”) may have one telephone number that detained individuals may call for free through the

21 Otero phone system, this system does not provide for free calls where the provider’s staff and
22 volunteers have separate phone lines.4 See Jackson Decl. at ¶ 5. Therefore, if they cannot access 23
the no-cost, ten-minute calls, detained individuals can only place calls if they have funds in their 24
commissary accounts. Cerneka Decl. at ¶ 3; Marjon Decl. at ¶ 4; Brooks Decl. at ¶ 3c. 25

26 4 Attorneys have reported that even calls to numbers on the EOIR list suffer from defects. See Maynard
27 Decl. at ¶ 3a (noting that legal intake calls made through the EOIR list automatically cut off after five minutes).

8

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 15 of 33

1

The cost of calls is “sometimes prohibitive.” Cerneka Decl. at ¶ 3. Talton charges

2 approximately twenty cents a minute while legal calls can last hours. Cedillo Decl. at ¶ 11. As a
3 result, attorneys report that they must keep legal calls short because of clients’ limited funds.
4 Marjon Decl. at ¶ 9 (“I had to work as quickly as possible, because our clients were [] paying for
5 the calls.”). When funds run out, calls abruptly disconnect before attorneys and clients can
6
7 complete necessary conversations. Brooks Decl. at ¶ 8a (reporting that a paid phone call “cut off

8 before [an] intake could be completed”). In one instance, a volunteer with Santa Fe Dreamers

9 Project attempted to conduct an intake with a potential client, but the potential clients’ funds ran

10 out before the volunteer could complete the intake. Cedillo Decl. at ¶ 14. As a result, Santa Fe
11 Dreamers Project could not represent him and he was removed. Id. The cost has become such a
12 barrier to legal intake calls at Las Americas that the legal service provider has been forced to
13
14 spend at least $400 on phone calls—an unsustainable expense. Jackson Decl. at ¶ 9.

15

In response to the coronavirus pandemic, since April, ICE has stated that it provides

16 detained individuals in Otero with a finite number of free ten-minute calls each month.5 Cerneka

17 Decl. at ¶ 3; Brooks Decl. ¶ 3c; Vega Decl. at ¶ 26. However, a ten-minute call is inadequate for
18 most legal calls. See Cerneka Decl. at ¶ 3 (“[A] ten-minute call is generally inadequate to
19 accomplish what needs to be accomplished on a legal call, such as drafting declarations,
20 discussing an upcoming hearing, or preparing testimony.”). If Plaintiffs use back-to-back ten-
21

22

23

5 While ICE represents that it is providing 500-520 free call minutes a month to detained individuals during the pandemic, see ICE Guidance on COVID-19, this does not appear to be the case at Otero.

24 Detained individuals in Otero have reported receiving between zero and nine free ten-minute calls a week. See Vega Decl. at ¶¶ 27-28. For individuals placed in solitary confinement after testing positive for

25 COVID-19, the free ten-minute calls are unavailable altogether. Id. at ¶ 32. Moreover, “ICE has not given detained individuals clear information about when [the] free calls are available and how many free

26 calls they have.” Id. at ¶ 26. ICE personnel have acknowledged that its wall posters alerting detained

individuals to the ten-minute free calls may be ineffectual if detained individuals cannot read or

27 understand them. See Cedillo Decl. at ¶ 8.

9

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 16 of 33

1 minute calls, the legal call suffers from frequent interruptions from warning messages that the

2 allotted ten minutes will soon conclude and from automatic disconnection every ten minutes.
3 See Brooks Decl. at ¶¶ 3c, 8a. Attorneys have reported that such fragmented phone calls create
4 difficulties in maintaining a conversation, cause confusion, and hamper the development of legal
5 claims. See Brooks Decl. at 8a (noting that the disjointed ten-minute calls prevented a legal
6
7 representative from asking the client the “full range of questions that would have strengthened

8 his declaration,” ultimately contributing to a negative finding against him); Maynard Decl. at ¶

9 3a (noting that it is “extremely difficult, if not impossible, to effectively conduct an intake that is
10 continuously interrupted”). 11
Plaintiffs are also forced to choose between using the free ten-minute calls, if available, 12
to contact their counsel or contact their families. See Cerneka Decl. at ¶ 3 (“While clients can 13 14 place a ten-minute free call, if they use that call to contact their attorney then they cannot use it []
15 to maintain contact with their family or anyone else.”); Brooks Decl. at ¶ 3c (noting that if clients

16 choose to use their allotted ten-minute calls to contact counsel, they cannot “contact family or

17 anyone else in the outside world”). Such a choice is contrary to Defendants’ public statements

18 about the need for free calls “to maintain mental health and connection with others while

19 isolated.” ICE Pandemic Response at p. 23.

20

5. When Defendants Fail to Facilitate Legal Calls, Calls Are Monitored

21

and Lack Privacy.

22

Whether detained individuals use one of their allotted free ten-minute calls or pay for

23 calls, those calls are generally on recorded lines and therefore break the attorney-client privilege.
24 Marjon Decl. at ¶ 4; Cerneka Decl. at ¶ 3; Brooks Decl. at ¶ 7; Cedillo Decl. at ¶ 11. As a result,
25

26 Plaintiffs have been forced to engage in legal calls without confidentiality in order to prepare

27 their claims or defenses. See Marjon Decl. at ¶ 4 (explaining that he was forced to speak to

10

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 17 of 33

1 clients and potential clients about representation in a lawsuit against ICE on recorded calls);

2 Brooks Decl. at ¶ 7 (describing Cuban asylum seeker detained in Otero who could make just one
3 ten-minute non-confidential call to his counsel in preparation for a request for reconsideration to
4 the Asylum Office of a negative credible fear finding); Cerneka Decl. at ¶ 5 (explaining that
5 despite his attorney’s four separate requests to ICE to arrange for free, confidential calls, a
6
7 Mexican asylum seeker was forced to conduct all calls to prepare for a request for voluntary
8 departure on a recorded line).6

9

In addition, Plaintiffs are often forced to make calls within earshot of other detained

10 individuals and therefore without any privacy. See Marjon Decl. at ¶ 5 (“My clients and
11 potential clients had to make these calls from the dormitory and other people were often within
12 earshot.”); Brooks Decl. at ¶ 8i (“All of the calls with [our] client came from a phone in the
13
14 barracks. Our client did not have privacy and our intern could hear detainees around him.”).

15 The lack of privacy, combined with an automated statement that the call may be recorded, may

16 impact frank conversations, especially concerning sensitive matters such as past persecution or

17 health conditions. See Marjon Decl. ¶¶ 5-6 (explaining that it was “incredibly difficult” to
18 develop an attorney-client relationship and gather sensitive medical information on non19
confidential calls where “other people were often within earshot”). One person detained at Otero 20
failed to find legal representation because “he could not speak to [legal service providers] the 21
22 way he wanted to on the phone. He wanted to converse privately and [was] embarrassed to have

23 to talk in front of others in public about his situation.” Vega Decl. at ¶ 45; see id. at ¶ 41

24 (describing a call from a woman who said that her brother, who was detained at Otero, did not

25
26 6 On an individual basis, ICE has agreed to add a few legal service provider numbers to an attorney list maintained by Talton that should allow for unmonitored (though not free) calls. See Cedillo Decl. at ¶ 12.
27 ICE has not offered to make this procedure available to all attorneys, legal representatives, and volunteers who must access clients and potential clients at Otero.

11

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 18 of 33

1 want to communicate using the available tablets because “[h]e understood that tablet

2 conversations were recorded”).

3 6. Defendants Fail to Provide Reliable, Quality Phone and Tablet

4

Service at Otero.

5

In addition to refusing to facilitate free, confidential, and private legal calls, Defendants

6 have failed to ensure that the phones and tablets at Otero remain operational, that calls are of
7 adequate quality so that the speakers can be understood, that calls do not drop, and that 8
individuals in solitary confinement are able to make any calls at all. See Vega Decl. at ¶¶ 6-16, 9
18-25, 30-34. Between April and June 2020, Margaret Brown Vega, coordinator for Advocate 10
11 Visitors with Immigrants in Detention (“AVID”), recorded numerous reports of non-functioning
12 phones and tablets. Id. at ¶¶ 6-16. For a two-week period, from June 10 to June 24, there was no

13 reliable phone or tablet service at Otero. Id. at ¶¶ 11-16. Phone calls drop suddenly, and the

14 quality of the calls is sometimes so poor that the caller cannot be understood. Id. at ¶¶ 18-25.

15 16 III. LEGAL STANDARD

17

In the Tenth Circuit, courts analyze requests for preliminary injunctions under a four-

18 factor standard: (1) whether there is a substantial likelihood of success on the merits of the case;

19 (2) whether there will be irreparable injury to the movant if the preliminary injunction is denied;
20 (3) whether the threatened injury to the movant outweighs the injury to the other party under the 21
preliminary injunction; and (4) whether the injunction is not adverse to the public interest. Dine 22
Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). A movant 23
24 must present a prima facie case but need not show a certainty of winning. Planned Parenthood
25 Ass’n of Utah v. Herbert, 828 F.3d 1245, 1252 (10th Cir. 2016). While the movant bears the

26 burden of demonstrating all four prongs’ satisfaction, the four factors are weighed together, and a

27 strong showing for one factor can balance a weaker showing on another factor. Logan v. Pub.

12

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 19 of 33

1 Emps. Ret. Ass’n, 163 F. Supp. 3d 1007, 1026, 1033 (D.N.M. 2016) (citing 11A Wright & Miller

2 § 2948.3).

3 4 IV.

ARGUMENT

5

A. Plaintiffs have a Substantial Likelihood of Succeeding on the Merits of their

Claims.

6

Defendants’ practices impermissibly restrict Plaintiffs’ right to representation of counsel,

7

right to full and fair hearings, and right to petition the government. Ample case law involving 8

9 the same claims or analogous claims have been resolved in favor of plaintiffs.7 See, e.g., Torres

10 v. DHS, Case No. 18-2604, 2020 WL 3124216 (C.D. Cal. April 11, 2020) (granting temporary

11 restraining order, ordering ICE to grant free, confidential legal calls to detained individuals,

12 finding that ICE’s policies violated the Fifth Amendment); S. Poverty Law Ctr. v. DHS, No. CV

13 18-760 (CKK), 2020 WL 3265533, at *33-35 (D.D.C. June 17, 2020) (ordering ICE to lift
14 restrictive telephone access policies and grant detained individuals meaningful telephone access).
15

16

1. Plaintiffs have a Substantial Likelihood of Succeeding on their Fifth Amendment Due Process and Access to Counsel Statutory Claims.

17 a. Defendants’ Restrictive Telephone Access Practices Have

18

Violated Plaintiffs’ Fifth Amendment Rights.

19

Defendants have denied Plaintiffs their constitutional, statutory, and regulatory rights by

20 unreasonably restricting their telephonic access to the outside world—before and during a global
21 pandemic. Denying these rights interferes with the attorney-client relationship protected under
22 the Fifth Amendment. A successful Fifth Amendment Due Process claim requires a showing of
23

24
25 7 The District of New Mexico has found that, in addition to establishing a prima facie case, citation of prior case law on the same issue, resolved in petitioner’s favor, is sufficient to show a substantial
26 likelihood of success on the merits. See Woods v. Bd. of Cnty. Comm’rs, No. 1:20-cv-00529-PJK-LF, 2020 U.S. Dist. LEXIS 126526, at *18 (D.N.M. July 17, 2020) (finding that petitioner established that she
27 was substantially likely to prevail on the merits of her due process claim where she cited two cases addressing the same issue and ruling in plaintiff’s favor).

13

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 20 of 33

1 a protected interest and the denial of an appropriate level of process. See Hennigh v. City of

2 Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998). A non-citizen “subject to removal is entitled to
3 procedural due process under the Fifth Amendment.” United States v. Cias, No. CR 10-0420 JP,
4 2010 WL 11530513, at *8 (D.N.M. July 29, 2010), aff’d sub nom. United States v. Varela-Cias,
5 425 F. App’x 756 (10th Cir. 2011). See also Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is
6
7 well established that the Fifth Amendment entitles [non-citizens] to due process of law in

8 deportation proceedings.”); Diallo v. Gonzales, 447 F.3d 1274, 1280 (10th Cir. 2006) (“The Fifth

9 Amendment entitles aliens to due process of law in removal proceedings.”).

10

A detained individual’s due process rights include meaningful access to counsel, a full

11 and fair hearing, and gathering and presenting evidence. See Ardestani v. INS, 502 U.S. 129, 138
12 (1991) (“We are mindful that the complexity of immigration procedures, and the enormity of the
13

14 interests at stake, make legal representation in deportation proceedings especially important.”);

15 United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004) (“We have stated that when

16 facing deportation aliens are entitled to procedural due process, which provides an opportunity to

17 be heard at a meaningful time and in a meaningful manner.” (internal quotations omitted)). By
18 making telephone calls impossible in some cases and expensive, short, unreliable, and highly 19
burdensome to set up in others, ICE interferes with meaningful access to counsel and severely 20
hinders the right to present a full and fair hearing. See, e.g., Osborn v. Shillinger, 932 F.2d 975 21
22 (10th Cir. 1991) (“When a party to a judicial hearing is not allowed to supply to her or his
23 attorney evidence that would further that party’s interests at the hearing, that party’s access can

24 not, as a matter of law, be characterized as adequate, effective, and meaningful.”); Procunier v.

25 Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds by Thornburgh v. Abbott, 490
26 U.S. 401 (1989) (“[P]ractices that unjustifiably obstruct the availability of professional
27

14

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 21 of 33

1 representation or other aspects of the right of access to the courts [to detained individuals] are

2 invalid.”). 3 4

b. Defendants’ Restrictive Telephone Access Practices Have Violated Plaintiffs’ Statutory Rights.

5

The immigration laws and regulations include a panoply of rights to representation of

6 counsel, including, (1) a statutory right to representation of counsel at no expense to the
7 government under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1362; 8
1229a(b)(4)(A); (2) a statutory right to representation of counsel at no expense to the government 9
under the Administrative Procedure Act (APA), 5 U.S.C. § 555(b); (3) a regulatory right to 10
11 representation by an attorney of choice at no expense to the government under the regulations of
12 the Executive Office for Immigration Review, 8 C.F.R. § 1003.16(b) and 8 C.F.R. § 1292.5(b);

13 (4) a statutory right to gather and present evidence in connection with removal proceedings under

14 the INA, 8 U.S.C. § 1229a(b)(4)(B); and, for some non-citizens, (5) a statutory right to a full and

15 fair custody redetermination hearing, 8 U.S.C. § 1226(a). Defendants’ restrictive phone access

16
practices violate these statutory and regulatory rights as well. 17

c. Case Law Makes Clear that Plaintiffs have a Substantial

18

Likelihood of Success on the Merits.

19 Courts have found constitutional and statutory violations at other immigration detention
20 facilities based on claims just like those brought here. In response, courts have routinely held
21
22 that restrictive telephone access practices are illegal and have ordered Defendants to provide

23 free, confidential telephone access to detained individuals. The success of telephone access

24 litigation in courts across the country emphasizes the substantial likelihood of Plaintiffs’ success

25 on the merits.

26

In Torres v. DHS, petitioner sought a temporary restraining order arising from restrictive

27 telephone access that prevented effective attorney-client communications with detained

15

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1 individuals at immigration detention facilities in California. 2020 WL 3124216. The court

2 entered the temporary restraining order, finding that plaintiffs were likely to succeed on the
3 merits of their claims because defendants “likely interfered with established, ongoing attorney-
4 client relationships” as a result of policies and practices that mirror those in Otero, including (a)
5 no way for legal professionals to call detained individuals; (b) detention staff not reliably
6
7 relaying messages to detained individuals; (c) limited phones that do no function properly; (d)

8 non-confidential and monitored calls; (e) poor connections and distorting background noise; and

9 (f) expensive calls that cut off for insufficient funds. Id. at *7-9; see also Torres v. DHS, 411 F.

10 Supp. 3d 1036, 1063–64 (C.D. Cal.) (finding plaintiffs stated a claim for violation of their Fifth
11 Amendment right to access counsel based in large part on restrictive telephone access).
12 Accordingly, the court mandated that defendants enable the scheduling of free, confidential
13
14 telephone calls within 24 hours of the request. Torres, 2020 WL 3124216 at *11.

15

Likewise, in Southern Poverty Law Center v. DHS, plaintiff, a non-profit legal service

16 provider, filed for a temporary restraining order seeking telephonic and video access to counsel

17 for detained individuals in four ICE facilities. 2020 WL 3265533. In evaluating whether
18 Plaintiffs’ conditions-of-confinement claims should survive dismissal, the court found that 19
“Plaintiff has demonstrated a likelihood of success on the merits that the current conditions and 20
restrictions on remote legal visits and communications through VTCs [video teleconferencing], 21
22 legal calls, and document exchanges, taken together, are excessive . . . as COVID-19 makes in-
23 person legal visitation no longer viable or safe.” Id. at *29. The court ordered much of the relief

24 sought here, including that defendants shall:

25

• “comply with the optimal requirements in PBNDS 5.6, Telephone Access”;

26

• “ensure that [defendants’] telephones, VTC systems, and other technology used to

access legal representatives (e.g., tablets) are in proper working order”;

27

16

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1

• “ensure that attorney-client confidentiality can be maintained on all telephone calls and

2

VTCs with attorneys and legal staff.” This included that the calls “not be monitored and should not take place in an area where staff or other detained individuals can overhear

3

attorney-client conversations.”;

• “devise and implement clear internal and external procedures, in writing, for scheduling

4

and accessing telephone calls and VTCs,” and calls must “be put on the schedule within

48 hours of the request.” 5

6 See id. at *34.

7

Moreover, other courts across the country—well before COVID-19 rendered in-person

8 visitation impracticable—have recognized a detained individual’s critical need for telephone

9 access in the exercise of his constitutional rights. See Innovation Law Lab v. Nielsen, 310 F.
10 Supp. 3d 1150, 1162 (D. Or. 2018) (granting TRO on Fifth Amendment due process claim, 11
requiring detention facility to, inter alia, expand access to remote legal communications and 12
requiring those communications to be confidential, stating, “Government practices that 13
14 effectively deny access to counsel include the detention of aliens far from where potential or

15 existing counsel was located, limited attorney visitation hours, and the processing of aliens at

16 locations where telephones were not available to them.”); Rodriguez-Castillo v. Nielsen, No.

17 5:18-CV-01317-ODW-MAA, 2018 WL 6131172 (C.D. Cal. June 21, 2018) (granting TRO
18 enjoining DHS from limiting phone calls and in-person visits to detained immigrants housed at a
19 medium security prison); Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1511 (C.D. Cal.
20 21 1988), aff’d sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) (in
22 evaluating plaintiffs’ statutory and due process claims, finding that “Defendants have violated

23 detained plaintiff class members’ rights to effective representation of counsel by unduly

24 restricting attorney and paralegal visitation, failing to provide private telephone and visitation 25 facilities, and in some cases failing to provide adequate telephone access.”); See c.f., Johnson ex 26

27

17

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 24 of 33

1 rel. Johnson v. Brelje, 701 F.2d 1201, 1207 (7th Cir. 1983) (finding two ten-minute calls a week

2 to criminal defendants detained was unreasonable barrier to access courts).

3 2. Plaintiffs have a Substantial Likelihood of Succeeding on their First

4

Amendment Claims.

5

The First Amendment protects Plaintiffs’ right to petition the government and to speak

6 with those who may help them prepare for their cases by telephone, including legal professionals
7 and family members. See Torres, 411 F. Supp. 3d at 1067–68 (finding that immigration 8
detention plaintiffs successfully stated a claim under their First Amendment right to 9
communicate with the outside world by alleging, inter alia, widespread restrictions to telephone 10
11 access); Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917, 932, n.35 (W.D. Tex. 2018) (“The
12 Supreme Court has held that aliens residing in the country are entitled to the protections of the

13 First Amendment.”) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990));

14 Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (“Courts have recognized
15 detainees’ and prisoners’ first amendment right to telephone access.”); Daniels v. Morris Cnty.
16 Corr. Facility, No. CIV.A. 06-2460(DMC), 2006 WL 2524177, at *5 (D.N.J. Aug. 30, 2006)
17 (“Inmates must be afforded reasonable access to telephones so as not to infringe the First
18
19 Amendment”); Moore v. Janing, 427 F. Supp. 567, 576 (D. Neb. 1976) (“It is clear that the

20 plaintiffs have a constitutional right secured by the First Amendment to communicate with

21 persons from outside the prison by means of mail, visits and telephone calls.”); Legal Servs.

22 Corp. v. Velazquez, 531 U.S. 533, 547-48 (2001) (restrictions that “prohibit [attorney] advice or

23 argumentation” in a way that “confine[s] litigants and their attorneys” violate First Amendment).

24

As one court reasoned,

25

Ofttimes use of a telephone is essential for a pretrial detainee to

26

contact a lawyer, bail bondsman or other person in order to prepare

his case or otherwise exercise his rights. There are instances where

27

the family of a detainee or inmate may live so far away from [the

detention facility] as to make personal visitation impractical. The

18

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1

better view appears to be that there is no legitimate governmental

purpose to be attained by not allowing reasonable access to the

2

telephone, and that such use is protected by the First Amendment.

3 Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). This reasoning resonates now, during a

4 global pandemic, when even Defendants discourage in-person visitation and favor the use of

5 telephones for communication. See ICE Guidance on COVID-19.

6

B. Defendants’ Failure to Provide for Telephone Access Irreparably Harms

7

Plaintiffs and Putative Class Members.

8

ICE’s failure to provide for reliable telephone access irreparably harms Plaintiffs by

9 denying them their statutory and constitutional rights to access counsel and redress their claims.
10 See McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1258 (D.N.M. 2003); S. Poverty
11
12 Law Ctr., 2020 WL 3265533, at *32 (“[S]ubstantially restricted access to counsel . . . can cause

13 irreparable injuries related to the proceedings for which Plaintiff’s clients are preparing.”). Lack

14 of telephone access interferes with Plaintiffs’ ability to present their immigration cases resulting

15 in deportation, and it interferes with their ability to assert their civil rights, a paramount concern

16 for individuals in congregate settings during the COVID-19 pandemic. See Torres, 2020 WL

17 3124216, at *8 (“[W]ithout access to counsel, they are likely to face denial of asylum and
18 ultimately to be deported, despite meritorious claims.”).
19

20

“Irreparable harm” means that “the injury ‘must be both certain and great’ and that it

21 must not be ‘merely serious or substantial.’” Prairie Band of Potawatomi Indians v. Pierce, 253

22 F.3d 1234, 1250 (10th Cir. 2001) (quoting A.O. Smith Corp. v. FTC, 530 F.2d 515, 525 (3d

23 Cir.1976)). “When an alleged constitutional right is involved, most courts hold that no further
24 showing of irreparable injury is necessary.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 25
2001) (citing 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 26
and Procedure § 2948.1 (2d ed.1995)). In McClendon v. City of Albuquerque, the District of 27

19

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 26 of 33
1 New Mexico found irreparable harm where county jail officials denied access to attorneys and 2 limited inmates’ phone calls to five minutes. 272 F. Supp. 2d at 1258. The court reasoned that 3
because plaintiffs’ claims had “constitutional underpinnings”—the First Amendment right to 4
access counsel—plaintiffs “need not make any further showing of irreparable injury.” Id. at 5
l259. Similarly, Plaintiffs here contend that Otero’s restrictions—calls that drop after a short 6 7 time; burdensome, confusing procedures to set up a free legal call; lack of privacy and 8 confidentiality—interfere with their First Amendment right of redress and Fifth Amendment
9 right to due process. While a further showing of irreparable harm need not be shown, 10 McClendon, 272 F. Supp. 2d at 1258, Plaintiffs can show multiple instances of irreparable harm. 11
ICE’s failure to provide individuals detained in Otero with free legal calls undermines 12
their ability to obtain or consult an attorney, interfering with the statutory and constitutional right 13 14 to counsel of their choosing and the right to present their case. Without free legal calls, detained 15 individuals are charged about 20 cents per minute for non-confidential calls. Cedillo Decl. at ¶
16 11. To put this in perspective, a 30-minute intake call would cost a detained individual $6, and a
17 2-hour legal call preparing a declaration for an immigration court filing would cost $24. At best, 18 detained individuals with limited funds must make the choice between contacting their attorney 19
with their free ten-minute call or calling family members or others in the outside world. Cerneka 20
Decl. at ¶ 3. At worst, the lack of telephone access results in the government deporting 21 22 individuals—often returning to a country riddled with persecution and torture—without even 23 completing a legal intake with an attorney. See Innovation Law Lab, 310 F. Supp. 3d at 1163
24 (finding irreparable harm where “[t]he denial of access to legal assistance is likely to lead to the 25 denial of asylum and ultimately to the deportation of detainees with meritorious asylum claims”); 26
Torres, 2020 WL 3124216, at *8 (same). Between May and July 2020, at least three individuals 27
20

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 27 of 33

1 at Otero were removed before they were able to participate in legal intakes, despite Herculean

2 efforts by lawyers to arrange the calls through ICE. See Cedillo Decl. at ¶¶ 14-17; Brooks Decl.
3 at ¶ 8. An individual from El Salvador was removed after Santa Fe Dreamers staff made
4 numerous requests for a phone calls at the end of May and beginning of June. Cedillo Decl. at ¶
5 16. Another individual from Guatemala ran out of money before he could compete his legal
6
7 intake on June 16, 2020. Id. at ¶ 14. He was removed at the end of that month. Id. Similarly,

8 Las Americas attorney Max Brooks represented a client in July 2020, for whom he had difficulty

9 reaching by phone to prepare a declaration, resulting in a sub-par declaration. Brooks Decl. at ¶
10 8. The problems with phone access, and the resulting sub-par declaration “may have contributed 11
to our lack of success before the IJ and with the RFR.” Id. at ¶ 8(j). 12
For others at Otero, the lack of telephone access has prolonged their time in detention. 13 14 See Ramirez v. ICE, 310 F. Supp. 3d 7, 31 (D.D.C. 2018) (“[D]eprivations of physical liberty are
15 the sort of actual and imminent injuries that constitute irreparable harm.”). For one Cuban

16 migrant at Otero, ICE ignored four separate attempts to set up a legal intake in May 2020.

17 Cedillo Decl. at ¶ 15. Forced to communicate with him by postal mail and through only two ten-
18 minute calls, Santa Fe Dreamers successfully advocated for his release in July 2020. Id. 19
Without the telephone access issues that delayed his intake, he could have been released much 20
sooner. Id. Plaintiff Ruben Torres Jauregui was unable to prepare for his removal proceedings 21
22 because he was not able to call his attorney, nor was his attorney able to set up a free legal call
23 through ICE. Cerneka Decl. at ¶ 4. He was ordered removed.

24

Clients in expedited removal proceedings are particularly susceptible to irreparable harm

25 because those proceedings typically last only “days or weeks.” Brooks Decl. at ¶ 4. Attorney
26 Brooks has struggled to represent expedited removal clients due to ICE’s refusal to promptly
27

21

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 28 of 33

1 arrange legal calls and to schedule calls of a sufficient duration to prepare for legal proceedings.

2 Id. This is particularly troubling because many have complex asylum claims. See Innovation

3 Law Lab, 310 F. Supp. 3d at 1163 (“Early representation is particularly important in asylum
4 claims, given the complexity of treaty-based human rights statutes and the serious harm—
5
including persecution, torture, and death—that may result if asylum is improperly denied.”). 6

7

Further, Plaintiffs face the continual, irreparable harm of calls that are neither

8 confidential nor private, interfering with the attorney-client relationship. A supervisory ICE

9 deportation officer confirmed to Attorney Cedillo that, “At this time due to COVID-19
10 restrictions within the facility detainees are only allowed to use the phone in the dormitory for 11
legal purposes.” Cedillo Decl. at ¶ 18. Attorney Cerneka placed four requests with ICE to set up 12
a free, confidential legal call with her client. Cerneka Decl. at ¶ 5. ICE never responded. Id. 13 14 Instead, her client had to call her on a recorded line in a non-private setting in the cells, using his
15 own funds. Id. (“I worried throughout my representation because our calls were recorded.”).

16 Attorney Joachim Marjon sought to represent medically vulnerable individuals at Otero for the

17 purpose of a COVID-19-related habeas petition. Marjon Decl. at ¶ 2. Mr. Marjon struggled to

18 develop a trusting attorney-client relationship when he interviewed potential clients about their

19 medical history due to the lack of privacy. Id. at ¶¶ 5-6. Again, his clients and prospective
20
clients had to call him with their own funds on a public, recorded line. Id. at ¶ 4. 21

22

The harm to those detained at Otero is heightened dramatically by COVID-19, when

23 attorneys and legal representatives are restricted from in-person visits, and when the need for

24 contact with the outside world has never been greater. See S. Poverty Law Ctr., 2020 WL

25 3265533, at *32 (“[Access to counsel] is particularly pressing now, as many of Plaintiff’s clients
26 are seeking release from the Facilities based on the emergence of COVID-19; some of those
27

22

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 29 of 33

1 same clients have medical vulnerabilities that put them at high-risk for severe illness if they

2 contract COVID-19.”); Torres, 2020 WL 3124216, at *9 (recognizing “the urgency of access to
3 counsel, and the maintenance of access to courts” in light of COVID-19). Nevertheless, in April
4 2020, ICE completely cut off free, confidential legal calls to Attorney Maria Martinez Sanchez
5 and her colleagues at the ACLU of New Mexico, who were investigating civil rights and habeas
6
7 claims for detainees at Otero. Martinez Sanchez Decl. at ¶ 10. When Ms. Martinez Sanchez

8 complained to ICE that the current process for setting up legal calls was not working, ICE told

9 her that it would “no longer set up calls” and that Talton was “already providing short free calls

10 for detainees on a limited basis.” See id., Ex. B. To date, the ACLU has continued to have

11 problems making free, confidential phone calls that last more than three to five minutes. Id. at ¶¶
12 11-13.
13

14

Detained individuals are also harmed by their inability to access their rights under the

15 Fraihat v. ICE litigation. See No. EDCV 19-1546 JGB (SHKx), 2020 WL 1932570 (C.D. Cal.

16 Apr. 20, 2020). There, the Central District of California issued a preliminary injunction covering

17 a class of detained individuals with COVID-19 risk factors, finding “punitive conditions of
18 confinement, in violation of the Fifth Amendment.” Id. at *21, 25. Two detained individuals at 19
Otero tried to call a toll-free number to assess and assert their rights under the class action. 20
Neither individual was able to place the call because the number would automatically disconnect. 21
22 Vega Decl. at ¶¶ 46-47.

23

In sum, the COVID-19 pandemic has made the need for free, confidential telephone

24 access all the more critical and urgent. The lack of access to telephones is irreparably harming

25 detained individuals at Otero by interfering with their chances to find an attorney and their
26 ability to communicate with their attorney if they are lucky enough to secure one. The lack of
27

23

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 30 of 33

1 privacy and confidentiality interferes with the attorney-client relationship and affects a detained

2 individual’s ability to speak frankly with his or her attorney, especially on sensitive matters such

3 as past persecution or medical issues. ICE’s complete dereliction of its obligation to provide
4 telephone access has thus resulted in compromised legal representation at best and prolonged
5
detention and deportation at worst. 6

7

C. The preliminary injunction would cause no injury to Defendants and would

be in the public interest

8 When the government is the defendant, the third and fourth preliminary injunction

9

factors—the balance of harms and the public interest—merge. Nken v. Holder, 556 U.S. 418, 10

11 435 (2009). “The third preliminary-injunction factor involves balancing the irreparable harms

12 identified above against the harm that the preliminary injunction causes [the other party].” Free

13 the Nipple-Fort Collins v. City of Fort Collins, Colorado, 916 F.3d 792, 806 (10th Cir. 2019).

14 “When a constitutional right hangs in the balance, though, ‘even a temporary loss’ usually
15 trumps any harm to the defendant.” Id. (quoting 11A Charles A. Wright & Arthur R. Miller,
16 Federal Practice & Procedure § 2948.2 & n.10 (3d ed. & Nov. 2018 update)).
17 Here, any administrative cost to the government “pale[s] in comparison to the deprivation
18
19 of Plaintiffs’ constitutional rights” in the absence of an injunction. Jackson v. King, No. 2:12-

20 CV-00421-MCA-RHS, 2013 WL 12334146, at *8 (D.N.M. Mar. 30, 2013). The administrative

21 burden is especially low because existing ICE guidance and regulations require that Defendants
22 implement policies more protective of Plaintiffs’ rights than those currently in operation at 23
Otero. See DHS & ICE, Performance-Based National Detention Standards 2011 (Dec. 2016) 24
(“2011 PBDNS”); ICE Pandemic Response, p. 19, 23. An order enforcing Defendants’ own 25 26 access standards require Defendants to enforce what they already have the authority and means
27 to do. See Order Granting TRO, Torres, No. 5:18-cv-02604 (C.D. Cal. Apr. 11, 2020), ECF No.

24

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 31 of 33

1 144 (“Although a grant of relief requires Defendants to take steps to ensure access to counsel,

2 any administrative burden will be minor based on the limited scope of that relief, which can
3 mirror policies already envisioned by Defendants’ own regulations and guidance.”). Further, in
4 compliance with other preliminary injunctions and settlements, Defendants have already
5 implemented relief similar to that requested by Plaintiffs. See id.; S. Poverty Law Ctr., 2020 WL
6
7 3265533; see also Stipulated Settlement, Lyon v. ICE, No. 13-cv-05878-EMC (N.D. Cal. Oct.

8 31, 2016), ECF No. 280-1 (settling ICE telephone access case).

9

Furthermore, an injunction would be in the public interest. Awad v. Ziriax, 670 F.3d

10 1111, 1132 (10th Cir. 2012). “[I]t’s always in the public interest to prevent the violation of a
11 party’s constitutional rights.” Free the Nipple-Fort Collins, 916 F.3d at 807. See also Upshaw
12 v. Alameda Cnty., 377 F. Supp. 3d 1027, 1033 (N.D. Cal. 2019) (finding public interest in
13
14 enjoining punitive conditions of confinement in violation of due process); Doe v. McAleenan,

15 415 F. Supp. 3d 971, 979 (S.D. Cal. 2019) (“[T]he public interest is served by allowing

16 Petitioners’ access to retained counsel prior to and during their non-refoulement interviews.”).

17

It is also always in the public interest for the government to comply with its own publicly

18 stated policies. See 2011 PBNDS; ICE Pandemic Response at p. 19, 23. See also Eight N.
19 Indian Pueblos Council, Inc. v. Kempthorne, No. CV 06-745 WJ/ACT, 2006 WL 8443876, at *5
20 (D.N.M. Sept. 15, 2006) (“It is in the public interest that federal agencies comply with their own
21
22 policies and with federal statutes.); Medina v. DHS, 313 F. Supp. 3d 1237, 1252 (W.D. Wash.

23 2018) (“[P]ublic interest exists in ensuring that the government complies with its obligations

24 under the law and follows its own procedures.”); Fund for Animals v. Clark, 27 F. Supp. 2d 8, 15

25 (D.D.C.1998) (holding that “the public has a general interest in the meticulous compliance with
26 the law by public officials.”). As such, because Plaintiffs seek Defendants’ compliance with the
27

25

Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 32 of 33

1 Constitution, the Immigration and Nationality Act, and Defendants’ publicly stated policies, the

2 public interest favors granting an injunction.

3 V. CONCLUSION
4 For the reasons stated above, Plaintiffs respectfully request that this Court grant class-
5
wide preliminary injunctive relief. 6

7

Respectfully Submitted,

8 Dated: August 26, 2020 9 10 11 12 13 14 15 16 17 18 19 20

ORRICK, HERRINGTON, & SUTCLIFFE LLP
/s/ R. David Hosp
R. David Hosp ORRICK, HERRINGTON & SUTCLIFFE LLP 222 Berkeley St. Ste 2000 Boston, MA 02116 Telephone: (617) 880-1886 Facsimile: (617) 880-1801 Email: dhosp@orrick.com
René A. Kathawala Paige Pavone Lauren D. Allen ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019 Telephone: (212) 506-3604 Facsimile: (212) 506-5151 Email: ppavone@orrick.com

21

Katherine Melloy Goettel (Pro Hac Vice Admission

22

Pending) AMERICAN IMMIGRATION COUNCIL

23

1331 G Street, NW, Suite 200

Washington, DC 20005

24

Tel.: (202) 507-7552

Email: kgoettel@immcouncil.org 25

26

Attorneys for Plaintiffs

27

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Case 2:20-cv-00424-KG-KRS Document 35 Filed 08/26/20 Page 33 of 33

1

CERTIFICATE OF SERVICE

2

I hereby certify that on August 26, 2020, a true and correct copy of the foregoing

3 PLAINTIFFS’ MEMORANDUM IN SUPPORT OF A PRELIMINARY INJUNCTION was

4 served with the Clerk of the Court by using the CM/ECF system, which provided an electronic

5 notice and electronic link of the same to all attorneys of record through the Court’s CM/ECF

6 system.

7 8 Dated: August 26, 2020

By: /s/ Paige Pavone

9

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13

14

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 Case 2:20-cv-00424-KG-KRS Document 38 Filed 09/09/20 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

FRANKLIN GOMEZ CARRANZA and RUBEN TORRES JAUREGUI,

Plaintiffs, v.

No. 20-cv-00424 KG/KRS

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW T. ALBENCE, ACTING DIRECTOR OF ICE; DEPARTMENT OF HOMELAND SECURITY; CHAD F. WOLF, ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; COREY A. PRICE, FIELD OFFICE DIRECTOR FOR THE EL PASO FIELD OFFICE,

Defendants.

DEFENDANTS’ OPPOSITION TO NAMED PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION (DOC. 34) The Court should deny Named Plaintiffs’ Motion for a Preliminary Injunction (Doc. 34). Because the Court has not certified a class, any injunctive relief must inure to the benefit of the Named Plaintiffs only. However, Named Plaintiffs cannot meet the requirements for a preliminary injunction, especially in light of the heightened burden that applies where, as here, the request for relief mandates action (rather than prohibiting it), changes the status quo, and grants all the relief that the moving party could expect from a trial win. First, Named Plaintiffs are unlikely to succeed on the merits of their claims because the Court lacks jurisdiction under 8 U.S.C. § 1252(b)(9), and they have failed to allege the required element of prejudice to state a due process claim. See generally Doc. 23. Second, Named Plaintiffs have not shown that they will suffer imminent, irreparable harm if the injunction is not issued. Named Plaintiff Franklin Gomez Carranza is still released on bond and does not require any

Case 2:20-cv-00424-KG-KRS Document 38 Filed 09/09/20 Page 2 of 24
injunctive relief. Although Named Plaintiff Ruben Torres Jauregui did not prevail in his removal hearing two months ago, there is no indication in the record that the telephone issues alleged in the motion caused any prejudice or will impact any future proceedings. Third, Named Plaintiffs cannot show that a preliminary injunction would be in the public interest given that they seek to subvert the streamlined judicial-review process enacted by Congress in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Furthermore, while Named Plaintiffs contend that Defendants’ own policies require them to provide unlimited, free calls to any legal provider, there is no such requirement in any of the documents they cite.
FACTUAL BACKGROUND This is a putative class action challenging a myriad of allegedly deficient telephone practices at Otero Country Processing Center (“Otero”) and El Paso Service Processing Center (“El Paso”). See Doc. 1 ¶ 10. However, because Named Plaintiffs mention only Otero in their Motion for a Preliminary Injunction, see Doc. 34 at 2, and that is where Named Plaintiff Torres Jauregui is located, Defendants will focus solely on Otero. The Court has not yet ruled on Named Plaintiffs’ Motion for Class Certification. Doc. 4. As such, only Named Plaintiffs’ individual claims are before the Court at this time. A. Named Plaintiff Torres Jauregui’s Removal Proceedings Named Plaintiff Torres Jauregui alleged in the Complaint that his attorney was unable to visit him in person in March due to lack of personal protective equipment. See Doc. 1 ¶ 80. His attorney contends that as a result of telephonic difficulties at Otero, she has “been unable to set up confidential legal calls” with him “to prepare him [for] his removal proceedings.” Doc. 34-7 (Cerneka Decl.) ¶ 4. According to the Complaint, “[d]ue to the constraints that Defendants placed on Plaintiff Torres Jauregui’s ability to communicate with his counsel . . . his [May 6, 2020]
2

Case 2:20-cv-00424-KG-KRS Document 38 Filed 09/09/20 Page 3 of 24
hearing has been delayed for an additional month . . . in a highly unsafe environment.” Doc. 1 ¶ 82. According to the Immigration Judge (“IJ”), however, his hearing was continued because he was in medical quarantine on May 6. See IJ Decision, attached as Exhibit A5, at 2.
His hearing on June 1, 2020, was further delayed when his counsel provided a last-minute mental health evaluation that called into question Named Plaintiff Torres Jauregui’s ability to testify. See id. His counsel testified: “In my experience, working with Mr. Jauregui by telephone, . . . sometimes his recall is fine, and he is right there with me. And sometimes he’s more emotional and very anxious. And so, we have talked about it, and we talked about it before the last time this was scheduled. . . . And it was only last week that this came up again.” June 1, 2020 Hearing Transcript, attached as Ex. A3, at 3 ¶¶ 15-21. Neither Named Plaintiff Jauregui nor his attorney complained about inability to communicate over the telephone to prepare for the hearing.1 The IJ continued the hearing until June 30 to allow the government to evaluate him based on the new mental health evidence and also because the IJ was ill. Ex. A3 at 2.
On June 30, 2020, Named Plaintiff Torres Jauregui had his removal hearing. The IJ asked him: “[W]hen you were preparing your asylum application and your statement, were you able to— was Ms. Sernaca [sic] able to assist you in doing that?” June 30, 2020 Hearing Transcript, attached as Ex. A4, at 2 ¶¶ 23-24. He responded, “Yes.” Id. at 3 ¶ 1. When asked again whether he was able to review the application and statement, he reiterated that he was, explaining that “lately, I couldn’t have a lot of contact with my attorney because of the COVID-19, and we did it over the phone.”
1 By June 1, 2020, Ms. Cerneka had apparently obtained a face mask. See Ex. A3 at 2 ¶¶ 2, 6. Given that lack of personal protection equipment no longer appears to be an obstacle for her, and Otero provides such equipment if needed, it is unclear why she has been unable to visit Named Plaintiff Torres Jauregui in person at Otero if telephone communications are so unreliable. Renteria Decl. ¶¶ 34, 35 (noting that Named Plaintiff Torres Jauregui has not received any requests for visitors since March 2020).
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Id. at 6 ¶¶ 17-18. His attorney also mentioned a phone call she received from Named Plaintiff Torres Jauregui on the weekend of June 5. See id. at 4 ¶ 22-23.
At no point during the hearing did Named Plaintiff Torres Jauregui or his counsel complain that they were unprepared, nor did they seek a continuance. In fact, his counsel indicated that she was “confident that we can proceed today.” Id. at 5 ¶ 6. At the close of argument, when asked if there was anything else important that had not already been discussed, his counsel said there was not. Id. at 7 ¶¶ 5-8. However, the Motion for Preliminary Injunction claims that Named Plaintiff Torres Jauregui “was unable to prepare for his removal proceedings because he was not able to call his attorney, nor was his attorney able to set up a free legal call through ICE.” Doc. 35 at 27.
In her oral decision, the IJ found that “[t]he respondent is represented by counsel and has been since December 12th, 2019, a period of over six months. . . . He has a rational understanding of the proceedings and has been able to consult with and assist his attorney.” Ex. A5 at 3. Indeed, the IJ described the abundance of supporting evidence for his asylum claim: “He provided a fivepage, single-spaced, detailed written statement with the assistance of his attorney. Additionally, he provided 70 pages of supporting documents specific to himself, in support of his case, as well as 165 pages of country condition evidence.” Id. Consequently, despite the mental health concerns raised by counsel, the IJ concluded that “he has shown that he is able to meaningfully participate in these proceedings, especially as he has had [the] benefit of counsel for the past six months.” Id.
The IJ made an adverse credibility finding because of material omissions and inconsistencies in his statements to the asylum officer and discrepancies between his account of alleged political persecution with the documentary evidence submitted by his relatives. Id. at 4. The IJ further found that “respondent has not credibly shown that the harm he suffered rises to the level of persecution. The minor injuries he claimed he received when assaulted by the police over
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19 [months] ago resulted in no serious injury and consisted of a small cut and bruises. He required no medical treatment.” Id. at 5.
Furthermore, she concluded that “even if the court would otherwise find the respondent’s case credible, and if the respondent was otherwise eligible for asylum, the court would have denied the respondent’s application as a matter of discretion.” According to the IJ, Named Plaintiff Torres Jauregui refused to comply with a Customs and Border Patrol Officer’s order to stop while he attempted entry into the U.S., and “had to be pepper sprayed” after he “apparently struck or pushed” her. Id. at 6-7. The IJ found that this incident was “an extremely serious matter” that “speaks to the respondent’s complete disregard [for] the laws of the United States.” Id. at 7.
Because the IJ found Named Plaintiff Torres Jauregui ineligible for asylum, she held that he could not meet the more stringent standard for withholding of removal. Id. Furthermore, she held that he was ineligible for relief under the Convention Against Torture based on the adverse credibility determination and his inability to show he was tortured or would be subject to torture by the Cuban government. Id. at 7-8. Having denied all forms of requested relief, the IJ ordered Named Plaintiff Torres Jauregui removed to Cuba. Id. at 9.
After reading her decision, the IJ admonished Named Plaintiff Torres Jauregui that he would need to “continue to cooperate with [his] attorney so that she can assist [him] in preparing that appeal” and that he would need to “send it out in plenty of time” to avoid missing the deadline. Id. at 9 ¶¶ 19-24. Although the IJ gave him several opportunities to raise any concerns after issuing her decision at the hearing, neither he nor his attorney did so. Id. at 10 ¶¶ 3-4, 12-14.
Named Plaintiff Torres Jauregui’s notice of appeal does not mention any issues with access to counsel or inability to present evidence at the hearing. See Notice of Appeal, attached as Exhibit A6, at 3.
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B. Telephone Practices at Otero Otero abides by the 2011 Performance Based National Detention Standards (“PBNDS”) provisions governing telephone access. See Decl. of Jose Renteria, attached as Exhibit A, ¶ 4; 2011 PBNDS § 5.6, attached as Exhibit A1. The 2011 PBNDS provide for free legal phone calls to certain providers approved by U.S. Immigration and Customs Enforcement (“ICE”) Enforcement and Removal Operations (“ERO”). Ex. A1 at 1, 3-4. Calls to other legal providers are to be “direct or free.” Id. at 3. Direct calls are charged at the normal rate of 7 cents per minute. Renteria Decl. ¶ 11. Indigent detainees are permitted free calls, however. Id. ¶ 12. Since April 2020, ICE has been providing 13 free, ten-minute calls to each detainee per week. Id. ¶ 13. These free calls are one of the suggestions set forth in the ICE ERO COVID-19 Pandemic Response Requirements. See Pandemic Response Requirements, attached as Exhibit A2, at 2. Otero provides five phones and five tablets per housing unit, or one per every ten detainees. Id. ¶ 7. The telephones are separated by panels to ensure privacy, and officers are able to assist detainees in ensuring that legal calls are private. Id. ¶ 8. Detainees have access to instructions on how to ensure attorney calls are unmonitored and unrecorded, which requires verification by Otero’s outside telephone services provider (Talton). Id. ¶ 9. A G-28 form is not required. Id. Neither Named Plaintiff availed himself of this procedure. Id. Although social visits have been suspended since March 13, 2020, in-person legal visitation is still available at Otero, seven days a week and 24 hours per day. Id. ¶ 33. Attorneys who visit in person must pass a COVID-19 screening and wear personal protective equipment consisting of a face mask and gloves. Id. Otero provides personal protective equipment if the visitor needs it. Neither Named Plaintiff received any legal visitation requests after March 13, 2020. Id. ¶¶ 35, 49. Named Plaintiff Torres Jauregui called and connected with his counsel
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96 times for a total of 913 minutes between March 13, 2020, when social visitation was suspended, and September 8, 2020. Id. ¶ 33; Torres-Jauregui Call Log, attached as Exhibit A7, at 3.
STANDARD OF REVIEW Preliminary relief is “never awarded as of right” because it is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain preliminary relief, a movant must establish each of the following prerequisites: (1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may
cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest. Diné Citizens Against Ruining Our Env’t, 839 F.3d 1276, 1281 (10th Cir. 2016) (line breaks added). Because the government is a party, the third and fourth factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009). These prerequisites do not establish a balancing test, as Named Plaintiffs assert, relying on a district court decision that predated Diné Citizens by nine months. See Doc. 35 at 19-20 (citing Logan v. Pub. Emps. Ret. Ass’n, 163 F. Supp. 3d 1007, 1026, 1033 (D.N.M. 2016)). Rather, as the Tenth Circuit clarified in Diné Citizens, each must be satisfied independently, and the strength of one cannot compensate for the weakness of another. 839 F.3d at 1282 (“Under Winter’s rationale, any modified test which relaxes one of the prongs for preliminary relief and thus deviates from the standard test is impermissible.”); see also Woods v. Bd. of Cty. Comm’rs, No. 1:20-CV-00529PJK-LF, 2020 WL 4035182, at *5 (D.N.M. July 17, 2020), report and recommendation adopted,
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2020 WL 4464912 (Aug. 4, 2020) (noting that in Diné Citizens, the Tenth Circuit recognized that a “‘sliding scale’ test was ‘inconsistent’ with Supreme Court precedent”).
Moreover, preliminary relief that alters the status quo, mandates action rather than prohibits it, or “afford[s] the movant all the relief that it could recover at the conclusion of a full trial on the merits,” is “specifically disfavored.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005) (internal quotation marks omitted). Hence, a heightened burden applies in such cases, and a court is tasked with more closely scrutinizing the movants’ claims to ensure that preliminary relief is warranted. Id. Because Named Plaintiffs’ request for preliminary relief meets all three disfavored categories, they must meet this heightened burden as to each prerequisite.
ARGUMENT I. Named Plaintiffs Have Not Established a Likelihood of Success on the Merits.
Named Plaintiffs cannot show entitlement to preliminary relief because they have not established a likelihood of success on the merits of their claims. “To get a disfavored injunction, the moving party faces a heavier burden on the likelihood-of-success-on-the-merits and the balance-of-harms factors: She must make a strong showing that these tilt in her favor.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019) (internal quotation marks omitted). “Although a showing of ‘likelihood’ is not as demanding a burden as ‘certainty’ of success, the movants must show more than a mere possibility of success. Plaintiffs as movants must provide facts and theories sufficiently detailed to present a prima facie case.” Begay-Platero v. Gallup McKinley Cty. Sch. Dist., No. 18-CV-00861-PJK-SCY, 2019 WL 2008888, at *2 (D.N.M. May 7, 2019) (citing Diné Citizens, 839 F.3d at 1282; Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1252 (10th Cir. 2016)).
“For there to be a substantial likelihood of success on the merits, the Court must have jurisdiction over the matter.” Bank of New York, as Tr. v. Mehner, 375 F. Supp. 2d 1316,
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1319 (D.N.M. 2005). As Defendants argued in their motion to dismiss, the Court lacks jurisdiction over this case. See generally Doc. 23. Named Plaintiffs lack standing to bring claims exceeding the scope of the injuries they personally suffered and should be limited to challenging difficulty communicating with their counsel to prepare for their removal hearings. See Lewis v. Casey, 518 U.S. 343, 359 (1996) (holding that injuries suffered by two prisoners relating to access to legal materials were “a patently inadequate basis for a conclusion of systemwide violation and imposition of systemwide relief”). However, the claims for which they have standing fall within the ambit of 8 U.S.C. § 1252(b)(9), which channels claims arising from removal proceedings to the courts of appeals and divests the district courts of jurisdiction. See J.E.F.M. v. Lynch, 837 F.3d 1026, 1032-33 (9th Cir. 2016) (holding that Fifth Amendment due process and statutory right-tocounsel claims “are bound up in and an inextricable part of the administrative process” of removal proceedings and therefore “must be raised through the PFR process” in the court of appeals).
In addition, “for an injunction to be even theoretically available, a plaintiff must be able to articulate a basis for relief that would withstand a motion to dismiss for failure to state a claim.” Ishoo v. Bd. of Regents Univ. of New Mexico, No. CV-06-0747 MV/ACT, 2007 WL 9729216, at *14 (D.N.M. Sept. 29, 2007). To state a claim for due process violations in immigration proceedings,2 a plaintiff must allege “prejudice which implicates the fundamental fairness of the proceeding.” Michelson v. I.N.S., 897 F.2d 465, 468 (10th Cir. 1990). In other words, the plaintiff must show “a reasonable likelihood” that the outcome of the proceeding would have been different. United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en banc). Here, Named Plaintiffs have failed to allege that there was a reasonable likelihood that any adverse outcome
2 This standard would also apply to Named Plaintiffs’ First Amendment claim, which is based on the right to petition an administrative agency. See Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 595 (9th Cir. 1992), as amended on denial of reh’g (June 18, 1993).
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would have been different without the communication difficulties. At most, they allege that in one case involving an unnamed detainee who had failed his reasonable fear interview and sought representation for a request for reconsideration, “[t]he problems may have contributed to our lack of success before the [immigration judge] and with the [request for reconsideration].” Doc. 34-3 (Brooks Decl.) ¶ 8(j) (emphasis added). It is unclear, however, why the declaration obtained from the detainee was “sub-par,” Doc. 35 at 27, despite over 2.5 hours in phone time with him.3 Doc. 34-3 ¶¶ 8(a)-(d). Although Named Plaintiff Torres Jauregui was ordered removed, tellingly, there is no allegation that difficulties in reaching his counsel affected the outcome of his proceeding or that his counsel was unable to provide effective representation at the hearing. Doc. 35 at 27; see also Doc. 34-7 ¶ 4. He merely invites the Court to infer a cause-and-effect relationship. As explained above, the record in his removal proceedings shows that he and his counsel communicated numerous times over the phone and that he supplied ample evidence at the hearing. Given the IJ’s adverse credibility determination and other findings, there is no reasonable likelihood he would have prevailed if he had more time to talk to his attorney over the telephone.
Named Plaintiffs ignore all of the arguments raised in Defendants’ motion to dismiss, choosing to rely on favorable decisions in other cases to establish likelihood of success. According to Named Plaintiffs, “citation of prior case law on the same issue, resolved in petitioner’s favor, is sufficient to show a substantial likelihood of success on the merits.” Doc. 35 at 19 n.7 (citing Woods, 2020 WL 4035182, at *8). Named Plaintiffs’ reliance on Woods is misplaced, however, as
3 Another Las Americas attorney apparently had little difficulty establishing regular communication with an Otero detainee in July 2020. According to her declaration, they “spoke approximately twice a week through the whole month of July.” See Decl. of Rosa de Jong, GomezArias v. ICE, No. 20-cv-857-MV-KK, Doc. 1 at 61 (Ex. 7) ¶¶ 4-5. A legal intern was also able to speak with him regularly. See id. at 66-68 (Ex. 8) ¶¶ 12-26 (Decl. of Mattie Armstrong) (describing ten conversations with the detainee throughout the summer of 2020).
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the defendants conceded that “they did not have any cases” that were favorable to their position. 2020 WL 4035182, at *8. Because all of the cases on the identical issue favored the plaintiff, the court found that the plaintiff “met the heightened burden of making a strong showing that this factor tilts in her favor.” Id.
Here, by contrast, there are numerous cases holding that 8 U.S.C. § 1252(b)(9) vests the courts of appeals with exclusive jurisdiction over access-to-counsel claims asserted by detainees in removal proceedings. See, e.g., Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, No. 1:20-CV-00852 (CJN), — F.3d —, 2020 WL 2026971, at *8-9 (D.D.C. Apr. 28, 2020); see also Doc. 23 at 12-13 (citing cases). Indeed, one of the two cases upon which Named Plaintiffs principally rely, S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec., No. CV 18-760 (CKK), 2020 WL 3265533 (D.D.C. June 17, 2020), appeal docketed No. 20-5257 (D.C. Cir. Aug. 26, 2020) (“SPLC”)), declined ruling on the access-to-counsel claims, noting that “[t]he question of whether the Court would have jurisdiction over Plaintiff’s access to counsel claim is a complicated one and the authorities are in equipoise.” Id. at *14 n.4 (citing cases). “Equipoise” does not rise to the level of a “strong showing” of likelihood to succeed on the merits.
Furthermore, SPLC is of no assistance to Named Plaintiffs because the court granted relief based solely on a theory not raised in this case—that the “conditions at . . . four detention centers are so restrictive that they are punitive in violation of the Fifth Amendment’s substantive due process clause.” 2020 WL 3265533, at *16. As the court explained: “The Court does not venture an opinion here as to whether it would have jurisdiction over Plaintiff’s Fifth Amendment access to counsel claim, as it decides the Motion on the basis of Plaintiff’s substantive due process claim.” Id. at *14. The SPLC court’s substantive due process analysis therefore has no bearing on whether Named Plaintiffs’ claims—based on the statutory right to counsel, statutory right to a full and fair
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hearing, procedural due process, and First Amendment right to petition for redress of grievances— are likely to succeed on the merits. See Acosta Ortega v. United States Immigration & Customs Enf’t, No. 2:20-CV-00522-KWR-KBM, 2020 WL 4816373, at *9 (D.N.M. Aug. 19, 2020) (“The Court may not order preliminary injunctive relief on a claim not raised in the complaint.”).
Named Plaintiffs cite only one case with similar facts and claims arising out of telephone issues at another detention facility: Torres v. United States Dep’t of Homeland Sec., No. EDCV 18-2604 JGB (SHKx), 2020 WL 3124216 (C.D. Cal. Apr. 11, 2020), appeal docketed No. 2055647 (9th Cir. June 24, 2020). As Defendants previously noted, Doc. 23 at 13, the case upon which the Torres court primarily relied in determining it had jurisdiction notwithstanding Section 1252(b)(9) was Arroyo v. United States Dep’t of Homeland Sec., No. SACV19815JGBSHKX, 2019 WL 2912848, at *3 (C.D. Cal. June 20, 2019). See Torres, 411 F. Supp. 3d 1036, 1047-48 (C.D. Cal. 2019). The Torres court’s reliance on Arroyo is not surprising given that the same judge decided both cases. However, several other courts within the Ninth Circuit have refused to follow Arroyo because it contravenes the Ninth Circuit’s decision in J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016). See, e.g., Avilez v. Barr, No. 19-CV-08296-CRB, 2020 WL 570987, at *3 (N.D. Cal. Feb. 5, 2020); Anaya Murcia v. Godfrey, No. C19-587-JLR-BAT, 2019 WL 5597883, at *7 (W.D. Wash. Oct. 10, 2019), report and recommendation adopted, 2019 WL 5589612 (W.D. Wash. Oct. 30, 2019). It remains to be seen whether the Ninth Circuit will reverse Torres on appeal.
The other access-to-counsel cases cited by Named Plaintiffs, see Doc. 35 at 23, are also unhelpful. Two of these cases involved plaintiffs who were not in removal proceedings, and thus Section 1252(b)(9) did not bar their claims. For example, in Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067, 1077 (D. Or. 2018), the court held that Section 1252(b)(9) did not apply because the plaintiffs were “civil immigrant detainees whose removal proceedings have not yet been
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initiated.” The second case, Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1511 (C.D. Cal. 1988), aff’d sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990), involved aliens who were not in removal proceedings because they were coerced into accepting voluntary departure in lieu of a deportation hearing. In any event, Orantes-Hernandez was decided before Section 1252(b)(9) was enacted as part of IIRIRA in 1996. See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 (2020) (explaining statutory history). While Rodriguez-Castillo v. Nielsen, No. 5:18-CV01317-ODW-MAA, 2018 WL 6131172 (C.D. Cal. June 21, 2018), did involve aliens in removal proceedings, the court’s decision granting a temporary restraining order two days after the application did not describe what claims the plaintiffs had alleged, much less engage in any legal analysis. It is therefore unpersuasive.
The First Amendment cases cited by Named Plaintiffs, see Doc. 35 at 18-19, fare no better. Other than Torres, none of them involved immigrant detainees in removal proceedings alleging access-to-counsel claims. For example, Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917, 932, n.35 (W.D. Tex. 2018), did not involve access-to-counsel claims, and most of the other cases involved pretrial detainees who were not aliens in removal proceedings subject to Section 1252(b)(9), see Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986); Daniels v. Morris Cnty. Corr. Facility, No. CIV.A. 06-2460(DMC), 2006 WL 2524177, at *5 (D.N.J. Aug. 30, 2006); Moore v. Janing, 427 F. Supp. 567, 576 (D. Neb. 1976); Johnson v. Galli, 596 F. Supp. 135, 138 (D. Nev. 1984). Most inapposite of all is Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48 (2001), which involved a First Amendment challenge to the government’s refusal to allow the Legal Services Corp. to fund litigation challenging welfare laws. That case had nothing to do with the right of immigrants to petition for redress of grievances, access to counsel, or telephone service at detention facilities, but rather funding restrictions that served to regulate free speech.
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Named Plaintiffs have not addressed, let alone overcome, the concerns Defendants raised in their motion to dismiss. Although Named Plaintiffs “do not assert that they have a standalone right to telephone access and that the mere subpar telephone infrastructure is the injury,” Doc. 29 at 15, they have failed to show a causal relationship between the alleged telephone deficiencies and any actual prejudice suffered during their immigration proceedings. Because they have not made a strong showing of likelihood of success on the merits, the Court should deny the motion for preliminary relief for this reason alone. See Roberts v. Generation Next, LLC, No. 18-CV00975-WJ-LF, 2019 WL 2340960, at *2 (D.N.M. June 3, 2019) (“Since the Court has concluded that Plaintiff cannot show a substantial likelihood of success on the merits, the Court need not engage in further analysis on the other elements necessary for a party to obtain injunctive relief.”). II. Named Plaintiffs Have Not Shown They Will Suffer Imminent, Irreparable Harm.
Named Plaintiffs also fail to satisfy the requirement of showing irreparable injury if their requested relief is not granted. To constitute irreparable harm, the injury “must be both certain and great,” and “it must not be merely serious or substantial.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1262-63 (10th Cir. 2004) (internal quotation marks omitted). Moreover, a preliminary injunction is warranted only if “the injury complained of is of such imminence that there is a clear and present need for equitable relief.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal quotation marks omitted; emphasis in original). Conclusory or speculative allegations are not enough to establish a likelihood of irreparable harm. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009).
Here, Named Plaintiff Torres Jauregui has not shown he will suffer future irreparable harm unless a preliminary injunction issues. While he was ordered removed on June 30, 2020,4 he does
4 Named Plaintiffs did not seek preliminary relief until nearly four months after filing the complaint, Doc. 1, and two months after Named Plaintiff Torres Jauregui’s removal hearing. The
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not allege imminent future harm such as inability to prosecute his appeal to the Board of Immigration Appeals. See Doc. 34-7 (Cerneka Decl.) ¶ 4. “The purpose of a preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparable injury that will surely result without their issuance.” Schrier, 427 F.3d at 1267. Moreover, Named Plaintiff Gomez Carranza’s release on bond obviates the need for him to seek injunctive relief.5 See, e.g., Bravo v. Bd. of Cty. Comm’rs, No. 08-CV-0010 WJ/KBM, 2009 WL 10706836, at *6 (D.N.M. Nov. 20, 2009) (finding no irreparable harm to named plaintiffs who had been released, since “the Court does not agree that the likelihood of the future incarceration of the named Plaintiffs at [the detention facility] is sufficient to qualify as ‘presently threatened’” (quoting Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)).
Nevertheless, Named Plaintiffs argue that they are entitled to a presumption of satisfying the irreparable harm prerequisite merely because they allege constitutional violations. Doc. 35 at 25-26 (citing McClendon v. City of Albuquerque, 272 F. Supp. 2d 1250, 1258 (D.N.M. 2003)). The Tenth Circuit does not apply such a presumption, however. See Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016) (“[W]hile we must nonetheless engage in our traditional equitable inquiry as to the presence of irreparable harm in such a context [i.e., denial of the right to vote], we remain
Tenth Circuit considers delay in seeking relief to be “one factor in the irreparable harm analysis,” as it cuts against finding irreparable injury.” RoDa Drilling Co., 552 F.3d at 1211. 5 The change in circumstances for both Named Plaintiffs since they filed the complaint calls into question whether they have standing to bring their individual claims for injunctive relief. See DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1197 (10th Cir. 2010) (noting that “named plaintiffs in a class action seeking prospective injunctive relief must demonstrate standing by establishing they are suffering a continuing injury or are under an imminent threat of being injured in the future”). Moreover, at least one named plaintiff must have standing to bring claims on behalf of a class. See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018) (noting that “a class action would be moot if no named class representative with an unexpired claim remained at the time of class certification” (emphasis added)).
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cognizant that the violation of a constitutional right must weigh heavily in that analysis.”). “[A] constitutional injury is irreparable in the sense that it cannot be adequately redressed by post-trial relief. However, that has no bearing on whether the alleged constitutional injury is imminent.” Pinson v. Pacheco, 397 F. App’x 488, 492 (10th Cir. 2010) (emphasis added). Hence, Named Plaintiffs’ “contention [they] need not make a showing of future injury is without merit.” Id.
Even though a class has not been certified, Named Plaintiffs rely on injuries suffered by others to support their claim of irreparable harm. For example, Named Plaintiffs point to the costs incurred by detainees seeking to contact their attorneys. See Doc. 35 at 26. “It is well settled,” however, “that simple economic loss usually does not, in and of itself, constitute irreparable harm; such losses are compensable by monetary damages.” Schrier, 427 F.3d at 1267 (internal quotation marks omitted). Moreover, costs incurred by attorneys in making phone calls, see Doc. 35 at 15, cannot constitute irreparable injury where neither the attorneys nor their organizations are parties. See Alcresta Therapeutics, Inc. v. Azar, 318 F. Supp. 3d 321, 326 (D.D.C. 2018) (noting that “injuries to third parties are not a basis to find irreparable harm.”).
Next, Named Plaintiffs refer to removals of unnamed detainees that occurred after alleged difficulties contacting an attorney but make no effort to tie the removals to the communication issues.6 See Doc. 35 at 26-28. They also refer to the unnamed detainee whose “sub-par” declaration obtained after over 2.5 hours of telephone time “may have contributed” to the denial of his request for reconsideration. Id. at 27. However, Named Plaintiffs do not argue that any particular detainee is facing imminent, irreparable harm. In any event, removal by itself does not constitute irreparable harm. See Nken, 556 U.S. at 435 (“Although removal is a serious burden for many aliens, it is not
6 Detainees who have already been removed would not be members of the class if certified. See Doc. 1 ¶ 84 (proposing a class definition of “[a]ll current and future adults who are or will be detained in immigration custody” at El Paso and Otero).
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categorically irreparable.”). “Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.” Id. Named Plaintiffs have not alleged that these avenues of relief are unavailable.
Named Plaintiffs also argue that for some Otero detainees, “the lack of telephone access has prolonged their time in detention.” Doc. 35 at 27. Like removal, prolonged detention does not equate to irreparable harm because there are remedies for denial of the right to counsel through the administrative process. See Aguilar v. ICE, 510 F.3d 1, 18 (1st Cir. 2007) (“The remedies left open by section 1252(b)(9) are neither inadequate nor ineffective to protect the petitioners’ rights. Each petitioner’s right to counsel can be adequately addressed and effectively vindicated before an immigration judge (who can grant a continuance, order a change of venue, or take other pragmatic steps to ensure that the right is not sullied).” (citation omitted)). Furthermore, detainees awaiting removal can raise prolonged detention claims through a petition for habeas corpus. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001); Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are properly brought directly through habeas.”).
To the extent lack of telephone access has deprived detainees of their right to counsel or right to a full and fair hearing, resulting in prejudice at an immigration hearing, they must properly exhaust their claim before the Board of Immigration Appeals, and then through the petition-forreview process. See J.E.F.M., 837 F.3d at 1033 (noting that “[r]ight-to-counsel claims are routinely raised in petitions for review filed with a federal court of appeals”); E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., 950 F.3d 177, 188 (3d Cir. 2020) (“The court of appeals can redress any deprivation of counsel in the removal proceedings before the alien is removed.”). That the exhaustion process may take a while “is not enough to establish irreparable harm or excuse
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exhaustion. Virtually every non-citizen faces a delay in exhausting remedies before the Board, yet [c]ourts . . . across the country routinely hold them to the exhaustion requirement nonetheless.” Torres v. Decker, No. 18-CV-10026 (VEC), 2018 WL 6649609, at *3 n.4 (S.D.N.Y. Dec. 19, 2018); see also Arana v. Decker, No. 20 CV 4104-LTS, 2020 WL 3833459, at *3 (S.D.N.Y. July 8, 2020) (internal quotation marks omitted) (“[I]f detention alone constituted irreparable harm, then the exception would swallow the rule that . . . administrative remedies must be exhausted before resorting to the federal courts.”); accord Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (noting that “permitting [the petitioner] to present his ineffective assistance of counsel claim for the first time before the district court would allow him to bypass the administrative scheme that is in place to deal with claims such as [his]”). Of course, where a detainee prevails in an immigration proceeding, see Doc. 35 at 27 (noting that for one Cuban detainee, “Santa Fe Dreamers successfully advocated for his release in July 2020”), there is no prejudice and therefore no due process violation. See Michelson, 897 F.2d at 468.
According to Named Plaintiffs, lack of privacy when making legal phone calls constitutes irreparable harm. Doc. 35 at 28. Named Plaintiffs cite no authority for this proposition, and in any case, there are privacy dividers in the facility. Moreover, the only harm they allege in their motion is the fear of the attorneys that their conversations with their clients were not private. See id. (citing Doc. 34-6 (Marjon Decl.) ¶¶ 4-6; Doc. 34-7 (Cerneka Decl.) ¶ 5). Named Plaintiffs cannot base their claim of irreparable harm on injuries to third parties, as noted above. See Alcresta Therapeutics, Inc., 318 F. Supp. 3d at 326.
Named Plaintiffs also cite declarations relating to ACLU attorneys’ efforts to communicate with clients regarding non-immigration proceedings, such as habeas corpus petitions to obtain
18

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release due to COVID-19.7 See Doc. 35 at 28-29; see also Doc. 34-2 (Sanchez Decl.) ¶¶ 3, 13; Doc. 34-5 (Goossen Decl.) ¶¶ 11, 17; Doc. 34-6 (Marjon Decl.) ¶¶ 2, 6-8. But Named Plaintiffs brought this case to vindicate “their constitutional, statutory, and regulatory rights in their immigration proceedings.” Doc. 5 at 5 (emphasis added); see also Doc. 1 ¶¶ 95-99, 103-05, 10910. The complaint does not mention the need to access to counsel for civil proceedings outside the immigration context such as these COVID-19 habeas cases. Consequently, the Court should disregard these declarations. See P.L. v. U.S. Immigration & Customs Enf’t, No. 1:19-CV-01336 (ALC), 2020 WL 1233761, at *2 (S.D.N.Y. Mar. 13, 2020) (denying motion for reconsideration to reinstate purported bond hearing claims after dismissing case pursuant to Section 1252(b)(9), where “Plaintiffs’ Complaint expressly concerns removal proceedings” and “fails to sufficiently articulate that Plaintiffs bring separate and independent claims concerning bond hearings”).
Neither Named Plaintiff has shown he will suffer imminent, irreparable harm unless a preliminary injunction issues. Nor have Named Plaintiffs shown that any unnamed class members will suffer more than a “possibility of irreparable harm” in the absence of injunctive relief. Winter, 555 U.S. at 22. Consequently, this factor also weighs in the government’s favor.
7 It is unclear how the petitioners in these cases suffered harm from the alleged communication difficulties. The court denied their petitions because their conditions-of-confinement claims were not cognizable under 28 U.S.C. § 2241. See Acosta Ortega v. United States Immigration & Customs Enf’t, No. 2:20-CV-00522-KWR-KBM, 2020 WL 4816373, at *4 (D.N.M. Aug. 19, 2020); Betancourt Barco v. Price, No. 2:20-CV-350-WJ-CG, — F. Supp. 3d —, 2020 WL 2099890, at *6 (D.N.M. May 1, 2020); see also Betancourt Barco v. Price, No. 2:20-CV-350-WJCG, 2020 WL 4692465, at *1 (D.N.M. Aug. 13, 2020) (clarifying that the court lacked jurisdiction over the habeas petition). No amount of communication would have changed the outcome. Moreover, the petitioners filed multiple declarations in these cases, which required telephone communication, as the declarations acknowledge. See Acosta Ortega, No. 2:20-CV-00522-KWRKBM, Doc. 1-6, at 2; Doc. 23-3 at 5; see also Betancourt Barco, No. 2:20-CV-350-WJ-CG, Doc. 1-7, at 3; Doc. 1-8 at 2; Doc. 1-9 at 3; Doc. 24-6 at 5; Doc. 24-7 at 4.
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III. Preliminary Relief Would Harm the Public Interest, and Named Plaintiffs Have Not Shown Their Potential Injury Outweighs the Government’s. Finally, to prevail on their motion for preliminary relief, Named Plaintiffs must show “that
the threatened injury outweighs the harms that the preliminary injunction will cause the government or that the injunction, if issued, will not adversely affect the public interest.” Aposhian v. Barr, 958 F.3d 969, 990 (10th Cir. 2020). “These factors ‘merge’ when the government is the opposing party.” Id. at 990-91 (quoting Nken, 556 U.S. at 435).
IIRIRA replaced the former judicial-review scheme governing removal with a “‘new (and significantly more restrictive) one in 8 U.S.C. § 1252.’” Nken, 556 U.S. at 423-24 (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 490 (1999) (“AAADC”)). “The new review system substantially limited the availability of judicial review and streamlined all challenges to a removal order into a single proceeding: the petition for review.” Id. at 424 (citing, inter alia, Section 1252(b)(9)). “In enacting section 1252(b)(9), Congress plainly intended to put an end to the scattershot and piecemeal nature of the review process that previously had held sway in regard to removal proceedings.” Aguilar, 510 F.3d at 9.
Named Plaintiffs seek to circumvent the streamlined review system, which channels claims arising out of removal proceedings to the courts of appeals, in order to obtain relief from the district court without exhausting their administrative remedies. Although Named Plaintiffs believe that the administrative burdens of the requested relief are de minimis, see Doc. 35 at 30, the true injury to the government if the injunctive relief is granted is the ability to Otero detainees to “undermine[] the streamlined removal proceedings” that Congress crafted in enacting IIRIRA. Nken, 556 U.S. at 424. “[C]ourts must be mindful that the Government’s role as the respondent in every removal proceeding does not make the public interest in each individual one negligible.” Id. at 435.
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If the Court accepts Named Plaintiffs’ contention that their claims are cognizable, every missed phone call from an attorney could form the basis of a federal case, regardless of whether there was any effect on the detainee’s removal proceedings. As the First Circuit remarked in Aguilar, “[s]uch claim-splitting—pursuing selected arguments in the district court and leaving others for adjudication in the immigration court—heralds an obvious loss of efficiency and bifurcation of review mechanisms. These are among the principal evils that Congress sought to avoid through the passage of section 1252(b)(9).” 510 F.3d at 10. Accordingly, Named Plaintiffs cannot show that the “preliminary injunction would cause no injury to Defendants.” Doc. 35 at 30.
In addition to the public interest in preserving the integrity of the streamlined review process under IIRIRA, “there is a strong public interest in affording substantial deference to prison officials in managing the daily operations of a prison due to the unique nature, needs and concerns of the prison environment.” Pinson, 424 F. App’x at 756 (Turner v. Safley, 482 U.S. 78, 84-85, (1987)). Therefore, “in the prison context, a request for injunctive relief must always be viewed with great caution because judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995) (internal quotation marks omitted). Named Plaintiffs have failed to show that their desire for free legal calls of unlimited duration outweighs the government’s interest in managing the daily operations at Otero, especially since they have not shown that they or anyone else is faced with an imminent threat of a constitutional violation. Hence, they cannot show that an injunction would serve the public interest by preventing a constitutional violation.
Although Named Plaintiffs claim that the relief they seek would merely “enforc[e] Defendants’ own access standards,” id., Named Plaintiffs ask the Court to provide relief above and beyond what is set forth in the 2011 PBNDS or COVID-19 Pandemic Response Requirements.
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For example, Named Plaintiffs demand “[a]n order that Defendants make all legal calls, including legal intake calls, free of charge and without time restrictions.” Doc. 34 at 2. However, the 2011 PBNDS require only that “[d]etainees shall be able to make free calls to the ICE/ERO-provided list of free legal service providers.” 2011 PBNDS § 5.6.II.7, Ex. A1, at 1; see also id. at 3-4 (§§ 5.6.V.E, 5.6.V.E.3). As for attorneys not on the list, detainees shall be permitted “to make direct or free calls” to them. Id. at 3 (§ 5.6.V.E) (emphasis added). Moreover, the 2011 PBNDS provide that a “facility may place reasonable restrictions on the hours, frequency, and duration” of calls to legal representatives. Id. at 4 (§ 5.6.V.F.1); see also Renteria Decl. ¶ 5.
Several courts have recognized that there is no requirement in the 2011 PBNDS that all phone calls to all attorneys must be free of cost to the detainee. See SPLC, 2020 WL 3265533, at *34 (ordering the defendants to “comply with the optimal requirements in PBNDS 5.6, Telephone Access,” which “includes ensuring . . . that calls to legal representatives such as Plaintiff are direct or free, see PBNDS 5.6(V)(E)” (emphasis added); Lyon v. U.S. Immigration & Customs Enf’t, 171 F. Supp. 3d 961, 990 (N.D. Cal. 2016) (noting that the plaintiffs argued that their requested relief mirrored the 2011 PBNS requirements, including “providing direct or free calls to . . . legal representatives . . . (2011 PBNDS at § 5.6.V.E)” (emphasis added)).
Furthermore, the Pandemic Response Requirements note that “ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted,” which “may include . . . [a]dding all immigration attorneys of record to the Talton Pro-bono platform.” Ex. A2 at 2 (emphasis added). There is another suggestion that “[w]hen detainees must be housed in spaces used for administrative segregation or solitary confinement,” ICE should “[c]onsider allowing increased telephone privileges without a cost barrier to maintain mental health and connection with others while isolated.” Id. at 3 (emphasis added). There is no requirement that ICE provide all
22

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detainees with free legal phone calls of unlimited duration to any provider. Hence, Named Plaintiffs’ argument that they are only seeking to hold ICE to its own requirements is false.
To show entitlement to disfavored preliminary relief, Named Plaintiffs must satisfy a heightened burden as to each of the prerequisites. They have failed to meet this burden. The Court should therefore deny their motion for a preliminary injunction. IV. If the Court Grants Any Relief, It Must Be Tailored to Apply Only to the Named
Plaintiffs Unless the Court Grants the Motion for Class Certification. If the Court concludes that preliminary relief is appropriate, the relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. See generally Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Because the Court has not certified a class, the scope of any injunctive relief must take into account the fact that there are only two Named Plaintiffs before the Court. Consequently, “the injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.” Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983); see also Everhart v. Bowen, 853 F.2d 1532, 1539 (10th Cir. 1988), rev’d on other grounds sub nom. Sullivan v. Everhart, 494 U.S. 83 (1990) (“Absent a class certification, the district court should not have treated the suit as a class action by granting statewide injunctive relief, and accordingly should have tailored its injunction ‘to affect only those persons over [whom] it has power.’” (quoting Zepeda, 735 F.2d at 727 (alteration in original; citation omitted)). Here, given that Named Plaintiff Gomez Carranza is no longer detained, Named Plaintiff Torres Jauregui is the only person properly before the Court to whom the Court can grant injunctive relief. See Salazar v. San Juan Cty. Det. Ctr., No. CV 15-0417 JB/LF, 2016 WL 335447, at *2 n.3, *52 (D.N.M. Jan. 15, 2016) (holding that injunctive relief was moot as to prisoners who had been released or had died, since “the Court cannot meaningfully fashion an injunctive remedy for
23

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Plaintiffs that are dead or not currently incarcerated at the San Juan County Detention Center”). If the Court grants a preliminary injunction before class certification, it should tailor the remedy to prevent future, imminent harm to Named Plaintiff Torres Jauregui. Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (noting that the “remedy must be tailored to redress the plaintiff’s particular injury”). Defendants recognize that other putative class members may benefit incidentally from such relief. See Salazar, 2016 WL 335447 at *3 n.4.
CONCLUSION For the foregoing reasons, the Court should deny Named Plaintiffs’ Motion for a Preliminary Injunction.
Respectfully submitted. JOHN C. ANDERSON United States Attorney
/s/ Christine H. Lyman 9/9/2020 CHRISTINE H. LYMAN Assistant United States Attorney District of New Mexico P.O. Box 607 Albuquerque, NM 87103 505-346-1532 Christine.Lyman@usdoj.gov
CERTIFICATE OF SERVICE I hereby certify that on September 9, 2020, Defendants filed through the United States District Court CM/ECF System the foregoing document, causing it to be served by electronic means on all counsel of record.
/s/ Christine H. Lyman 9/9/2020 CHRISTINE H. LYMAN Assistant United States Attorney
24

 
 Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 1 of 18

1 R. David Hosp

ORRICK, HERRINGTON & SUTCLIFFE, LLP 2 222 Berkeley St. Ste 2000

3

Boston, MA 02116 Telephone: (617) 880-1886

4 Facsimile: (617) 880-1801 Email: dhosp@orrick.com

5

René A. Kathawala 6 Paige Pavone

7

Lauren D. Allen ORRICK, HERRINGTON & SUTCLIFFE, LLP

8 51 West 52nd Street

New York, NY 10019

9 Telephone: (212) 506-3604

Facsimile: (212) 506-5151 10 Email: ppavone@orrick.com

11 Katherine Melloy Goettel (Admitted Pro Hac Vice)

12

AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200

13

Washington, DC 20005 Tel.: (202) 507-7552

14 Email: kgoettel@immcouncil.org

15 Attorneys for Plaintiffs (additional counsel in signature block)

16

17

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

18

19 FRANKLIN GOMEZ CARRANZA and RUBEN TORRES JAUREGUI,
20 Plaintiffs,
21
v. 22

23

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

24 Defendants.

25

Case No. 20-CV-00424 (KG) (KRS)
PLAINTIFFS’ REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

26

27

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Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 2 of 18

1 2
I. 3 II. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 III. 18 19 20 21 22 23 24 25 26 27

TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................. 1
ARGUMENT ..................................................................................................................... 1
A. The Court Should Grant Class Certification Before Ruling on the Preliminary Injunction or, in the Alternative, Provisionally Certify a Class......... 1
B. Irreparable and Imminent Harm Flow From Defendants’ Constitutional Violations of Plaintiffs’ Rights. ............................................................................. 2
C. In their Opposition, Defendants Do Not Refute Several Critical Allegations in the Preliminary Injunction.............................................................. 5
D. Despite Defendants’ Disingenuous Assertion that ICE is in Compliance with the 2011 PBNDS, Current Telephone Access is Insufficient and Violates the Law. ................................................................................................... 7
1. Defendants Monitor and Record Calls, Trampling on AttorneyClient Privilege. ......................................................................................... 7
2. Defendants Do Not Comply with the 2011 PBNDS Requirement for Free Calls to Pro Bono Counsel, Unlawfully Restricting Access to Counsel in Violation of the INA and Constitution. ............................... 8
a. ICE should provide individuals free calls to pro bono legal service providers. ........................................................................... 8
b. Contrary to Defendants’ assertion, no court has held that the 2011 PBNDS do not provide for free calls to all pro bono legal representatives. .......................................................... 10
3. Restrictive Legal Call Duration Severely Compromises Attorney Representation.......................................................................................... 11
CONCLUSION................................................................................................................ 12

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1

TABLE OF AUTHORITIES 2

3

Page(s)

4 Cases

5 Aracely, R. v. Nielsen, 319 F. Supp. 3d 110 (D.D.C. 2018) ......................................................................................... 5

6 Attorney Gen. of Oklahoma v. Tyson Foods, Inc.,

7

565 F.3d 769 (10th Cir. 2009) ................................................................................................. 4

8 Damus v. Nielsen,

9

313 F. Supp. 3d 317 (D.D.C. 2018) ......................................................................................... 2

10

Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) ................................................................................................. 3

11 Innovation Law Lab v. Nielsen,

12

310 F. Supp. 3d 1150 (D. Or. 2018) ...................................................................................... 10

13 Jarpa v. Mumford, 211 F. Supp. 3d 706 (D. Md. 2016) ......................................................................................... 4
14

15

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ................................................................................................. 3

16 Meyer v. Portfolio Recovery Assocs.,

17

LLC, 707 F.3d 1036 (9th Cir. 2012) ........................................................................................ 2

18 Nken v. Holder,

556 U.S. 418 (2009)................................................................................................................. 4 19

R.I.L-R v. Johnson,

20

80 F. Supp. 3d 164 (D.D.C. 2015) ........................................................................................... 3

21 Ramirez v. ICE,

22

310 F. Supp. 3d 7 (D.D.C. 2018) ............................................................................................. 4

23 S. Poverty Law Ctr. v. U.S. Dep't of Homeland Sec.,

No. CV 18-760 (CKK), 2020 WL 3265533 (D.D.C. June 17, 2020) ............................ 5, 7, 12 24

Sanusi v. Dep’t of Homeland Sec.,

25

No. 06-CV-2929 (SJ), 2010 U.S. Dist. LEXIS 146004 (E.D.N.Y. Dec. 1,

26

2010) ...................................................................................................................................... 10

27 Topps v. Bowen, No. CIV. 85-NC-0187W, 1986 WL 15777 (D. Utah Jan. 13, 1986) ....................................... 2

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Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 4 of 18

1 Torres v. United States Dep’t of Homeland Sec., 2020 WL 3124216 (C.D. Cal. Apr. 11, 2020) ................................................................... 6, 11
2

3

Univ. of Texas v. Camenisch, 451 U.S. 390 (1981)................................................................................................................. 4

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

iv

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 5 of 18

1 I. INTRODUCTION

2

Defendants deny individuals at the Otero County Detention Processing Center (“Otero”)

3 meaningful telephone access necessary to exercise their constitutional and statutory rights to
4 communicate with legal representatives and the outside world. In their opposition (“Opp.”) to
5 Plaintiffs’ Motion for a Preliminary Injunction (“PI Mem.”), Defendants belittle the very idea of
6

7 telephone access, flippantly dismissing the access-to-counsel violations Immigration and

8 Customs Enforcement (“ICE”) perpetuates when they refuse to schedule legal calls; refuse to

9 provide individuals with free calls to pro bono counsel; and refuse to respect privacy and

10 confidentiality. Instead, Defendants posit that any attorney with a face mask should opt for in-
11 person legal visitation during a pandemic; that abbreviated, disjointed, non-confidential calls of
12 fewer than ten minutes are sufficient; that class-wide grievances can be discounted by focusing
13 14 solely on the claims of one Named Plaintiff; and that the substantial allegations and evidence
15 brought forth in Plaintiffs’ request for a preliminary injunction can be rebutted by rehashing
16 jurisdictional arguments.1 Defendants’ Opposition fails to undermine the factual and legal

17 arguments supporting the need for class-wide injunctive relief to ensure meaningful telephone
18 access at Otero in compliance with the Constitution, immigration statutes, and ICE’s own 19
policies. 20
21 II. ARGUMENT

22 A. The Court Should Grant Class Certification Before Ruling on the Preliminary

23

Injunction or, in the Alternative, Provisionally Certify a Class.

24

Defendants center their objections on the facts and circumstances of Named Plaintiff

25 Ruben Torres Jauregui—an accounting which Plaintiffs’ dispute below—and virtually ignore

26

27 1 Rather than rehashing those arguments here, Plaintiffs incorporate by reference their arguments in response to
Defendants’ Motion to Dismiss. See ECF No. 29, Mem. in Opp. to Dfts’ Mot. to Dismiss.

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1 that the Court has before it a fully briefed motion for class certification, Dkt. Nos. 4-9, 24, 28,

2 and that, therefore, the entire class’s allegations and injuries are at issue. The Court can and
3 should grant class certification along with the preliminary injunction. See, e.g., Topps v. Bowen,
4 No. CIV. 85-NC-0187W, 1986 WL 15777 (D. Utah Jan. 13, 1986) (simultaneously granting
5 6 class certification and preliminary injunction). In the alternative, the Court could provisionally
7 certify the class for purposes of adjudicating the pending preliminary injunction motion. Meyer

8 v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041–43 (9th Cir. 2012) (affirming

9 provisional class certification for purposes of preliminary injunction); Damus v. Nielsen, 313 F.

10 Supp. 3d 317, 343 (D.D.C. 2018) (granting provisional class certification and preliminary 11
injunction). While the Court must find that all the requirements of Rule 23 have been met in 12
order to provisionally certify a class, “[i]ts analysis is tempered . . . by the understanding that 13 14 such certification may be altered or amended before the decision on the merits.” Damus, 313 F.
15 Supp. at 329 (quotation omitted). For the reasons set out in Plaintiffs’ Motion for Class

16 Certification, Dkt. No. 4, such certification is warranted here.

17 B. Irreparable and Imminent Harm Flow From Defendants’ Constitutional

18

Violations of Plaintiffs’ Rights.

19

Plaintiffs and class members face multiple forms of irreparable injury that cannot be

20 redressed at the conclusion of this litigation: violation of the right to petition the government

21 under the First Amendment, the right to a full and fair hearing under the Due Process Clause and

22 the Immigration and Nationality Act (INA), prolonged detention, and the prospect of removal 23
with an inability to pursue their claims from abroad. 24
Defendants disagree that the Tenth Circuit holds that no further inquiry is necessary once 25 26 Plaintiffs show a constitutional injury, but it is clear that the Tenth Circuit weighs constitutional
27 injury heavily towards a finding of irreparable harm. In Fish v. Kobach, the Tenth Circuit

2

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1 recognized, “‘When an alleged constitutional right is involved, most courts hold that no further

2 showing of irreparable injury is necessary.’” 840 F.3d 710, 752 (10th Cir. 2016) (quoting
3 Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (internal citations omitted)). Thus, while
4 the Court must “nonetheless engage in our traditional equitable inquiry,” the Tenth Circuit
5 6 affirmed that constitutional claims are analyzed differently, and that the constitutional violation
7 must “weigh heavily” on the analysis. Fish, 840 F.3d at 752. The Tenth Circuit in Fish did not

8 depart from the oft-followed presumption that constitutional injury is, by its nature, irreparable.

9 Id. The rationale behind this presumption is that constitutional violations cannot be remedied
10 post hoc. See Kikumura, 242 F.3d at 963 (“Because the relief available to Plaintiff after trial 11
would not adequately compensate him for the alleged violations of his religious rights, the 12
district court committed legal error in holding Plaintiff had not satisfied the irreparable injury 13 14 prong of the preliminary injunction analysis.”). But regardless of the weight of that presumption,
15 Plaintiffs can show multiple instances of irreparable and imminent harm. See PI Mem. at 20.

16

Defendants contort Plaintiffs’ harm as monetary loss. Opp. at 16. That is incorrect;

17 Plaintiffs never allege monetary harm alone as the irreparable harm they face. Rather, the cost of
18 telephone calls often prohibits or substantially limits individuals’ ability to access attorneys, 19
infringing upon First and Fifth Amendment rights and unlawfully prolonging detention. See 20
R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) (“[T]he harm from detention 21
22 pursuant to an unlawful policy cannot be remediated after the fact.”). The harm is not their

23 dwindling commissary account, but that the cost of telephone calls impedes their right to contact

24 their attorneys.2

25

26 2 Tellingly, Defendants do not address two of three instances where individuals were removed from the United
States before they were able to conduct a legal intake due to lack of funds. See PI Mem. at 20-21. In the third
27 instance, Defendants hold Plaintiffs to an unreasonable standard of proving that the lack of telephone access was the
but-for cause of a class member’s unsuccessful attempt to reopen his case – a standard inappropriate at the

3

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 8 of 18

1

Defendants take the remarkable position that lack of attorney access during fast-tracked

2 immigration proceedings causes no irreparable harm. While Defendants correctly cite Nken v.
3 Holder, 556 U.S. 418, 435 (2009), for the proposition that removal does not categorically
4 constitute irreparable harm, that case did not involve the additional trampling of rights present
5 6 here – an inability to use the telephone to obtain an attorney or talk to one’s attorney or legal
7 representative during a pandemic. Another critical difference is that the Nken petitioner was

8 pursuing judicial review of his removal order, while Plaintiffs are mostly in expedited removal

9 proceedings, a process they cannot access abroad. See 8 U.S.C. § 1158(a)(1) (a non-citizen “who
10 is physically present in the United States or who arrives in the United States” may apply for 11
asylum); Sadhvani v. Holder, 596 F.3d 180, 183 (4th Cir. 2009) (“[T]he BIA did not abuse its 12
discretion in denying relief based on the statutory requirement that one must be present in the 13 14 United States to be eligible for asylum.”); see also Nken, 556 U.S. at 447–48 (“IIRIRA
15 specifically contemplated that most aliens wishing to contest final orders of removal would be

16 forced to pursue their appeals from abroad.”).

17

Defendants erroneously swat away the idea that prolonged detention “does not equate to

18 irreparable harm,” ignoring the wealth of case law that has held the opposite. See Ramirez v.
19 ICE, 310 F. Supp. 3d 7, 31 (D.D.C. 2018) (“[D]eprivations of physical liberty are the sort of
20 actual and imminent injuries that constitute irreparable harm.”); Jarpa v. Mumford, 211 F. Supp.
21

22 3d 706, 711 (D. Md. 2016) (finding the plaintiff was likely to suffer irreparable harm “because

23 the harm is loss of liberty, [which] is quintessentially the kind of harm that cannot be undone or

24 totally remedied through monetary relief.”) Plaintiffs face imminent, irreparable harm on a daily

25

26
preliminary injunction stage. See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“A party thus is not
27 required to prove his case in full at a preliminary-injunction hearing. . . .”); see also Attorney Gen. of Oklahoma v.
Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) (same).

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Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 9 of 18

1 basis on account of their inability to obtain and access their attorneys who can help them move

2 for a bond hearing, file a parole request, expedite their removal proceedings, or file a habeas

3 corpus petition. Each of these actions could shorten their detention. See Aracely, R. v. Nielsen,
4 319 F. Supp. 3d 110, 155 (D.D.C. 2018) (recognizing that “the major hardship posed by needless
5
6 prolonged detention is a form of irreparable harm”) (internal citations and quotations omitted).

7

Ironically, Defendants suggest that a preliminary injunction is improper because

8 Plaintiffs can file habeas corpus petitions, but then suggest that the Court should disregard

9 Plaintiffs’ evidence that habeas counsel was denied access to Otero. Opp. at 17, 19. When habeas
10 attorneys tried to arrange free, confidential legal calls, ICE told those attorney that it would “no
11 longer set up calls” and that Talton was “already providing short free calls for detainees on a limited
12 basis.” See PI Mem., Ex. B, Decl. of Maria Martinez Sanchez at ¶ 10. The possibility of a habeas
13 14 claim is no substitute for a preliminary injunction, especially where habeas counsel cannot speak
15 to individuals at Otero and the preliminary injunction seeks to remedy that. Plaintiffs suffer

16 immediate, irreparable harm that can only be remedied through a preliminary injunction.

17 C. In their Opposition, Defendants Do Not Refute Several Critical Allegations in the

18

Preliminary Injunction.

19

Plaintiffs’ Motion for a Preliminary Injunction raised numerous allegations, supported by

20 multiple declarations, many of which Defendants do not refute, including:

21

• Remote legal visitation is the safest means of legal communication during a pandemic,

22

even if ICE permits in-person legal visits under certain circumstances.3 See PI Mem. at 1; Opp. at 3 n.1, 6-7. Nor do Defendants dispute that many legal services providers have

23

policies restricting in-person legal visits. See Supplemental Decl. of Heidi Cerneka at ¶ 2

(“Since the start of the pandemic, Las Americas has had a policy of severely restricting

24

staff from conducting in-person visits at immigration detention facilities to protect the

25

26 3 See also S. Poverty Law Ctr. v. U.S. Dep't of Homeland Sec., No. CV 18-760 (CKK), 2020 WL 3265533, at *2
(D.D.C. June 17, 2020) (“Due to the emergence and spread of COVID-19, in-person legal visitation is no longer
27 viable as a primary vehicle of communication between legal representatives and detained individuals at these
Facilities.”).

5

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 10 of 18

1

safety of staff and their families, as well as the safety of our clients and staff at the

detention facilities.”)4 2

• ICE publicly encourages detention facilities to offer non-contact legal visitation, such as

3

Skype or teleconference, and that these technologies have not been made available at

4

Otero. See PI Mem. at 2-3.

• ICE has refused to implement a procedure to schedule legal or legal intake calls at Otero;

5

that ICE does not reliably or promptly respond to attorney requests to arrange calls with

6

their clients; and ICE has flatly refused to schedule calls between attorneys and clients at Otero. See PI Mem. at 3-5.

7

• ICE does not allow detained individuals to call free legal service providers on the

8

ICE/ERO list on anything but one main line. Additionally, Defendants do not dispute that

some calls to free legal service providers on the ICE/ERO list automatically cut off after

9

5 or 10 minutes. See PI Mem. at 8.

10

• Individuals are forced to choose between using the no-cost ten-minute calls (when

available) to contact their counsel or their families. Defendants do not dispute that using

11

back-to-back ten-minute calls leads to frequent interruptions from warning messages and

from automatic disconnection. See PI Mem. at 10. 12
• The phones and tablets frequently malfunction and that, between June 10-24, 2020, no

13

reliable service was available at all. See PI Mem. at 12.

14

• ICE has already implemented relief similar to that requested by Plaintiffs in other

lawsuits elsewhere in the country. See PI Mem. at 25.

15 • ICE has publicly recognized that curtailment of in-person visitation has a substantial

16

impact on detained individuals’ mental health and, thus, expanded telephone access is

appropriate. See PI Mem. at 3. 17

Defendants’ failure to respond to these allegations is compelling evidence of their complete 18

19 disregard for Plaintiffs’ right to counsel, trampling on their statutory and constitutional rights.

20 See Torres v. United States Dep’t of Homeland Sec., 2020 WL 3124216, at *6 (C.D. Cal. Apr.

21 11, 2020) (“Defendants’ non-responsiveness to Plaintiffs’ factual assertions is telling.”).

22

23

24

25

26 4 Defendants were “unclear why [Attorney Cerneka] has been unable to visit Named Plaintiff Torres Jauregui in
person at Otero if telephone communications are so unreliable,” despite “apparently obtain[ing] a face mask.” Opp.
27 at 3, n.1. Throughout the pandemic, Attorney Cerneka “lived with someone who is at high risk of suffering serious
illness if that person were to contract COVID-19.” Supplemental Decl. of Heidi Cerneka at ¶ 2.

6

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 11 of 18

1 D. Despite Defendants’ Disingenuous Assertion that ICE is in Compliance with the

2

2011 PBNDS, Current Telephone Access is Insufficient and Violates the Law.

3

The Court has several filings before it5 in which Plaintiffs demonstrate that they are

4 likely to succeed on the merits and how ICE fails to comply with the 2011 Performance Based

5 National Detention Standards (“2011 PBNDS”).6 In light of Defendants’ misleading statements

6 in its Opposition, Plaintiffs provide more detail of those failures herein.

7 1.

Defendants Monitor and Record Calls, Trampling on Attorney-Client Privilege.

8 Assistant Field Officer Director Jose A. Renteria’s declaration evinces the inconsistencies

9 and confusion that detained individuals and their attorneys face in the process to secure
10

11 confidential legal calls at Otero. In one paragraph, AFOD Renteria asserts that “[a]bsent a court

12 order, staff may not monitor phone calls made in reference to legal matters,” but in the very next

13 paragraph, he writes, “Detainees who wish to have an unmonitored call with their attorney must

14 submit a request with the number of the attorney.” See Rentiera Decl. at ¶ 8. Ample testimony
15 from Named Plaintiffs and attorneys representing detained individuals demonstrates that all calls 16
(including legal calls) placed from the housing unit phones are, by default, recorded. See Estrella 17
Cedillo Decl. at ¶ 17, Dkt. Entry No.34-1; Joachim Marjon Decl. at ¶ 4, 5, Dkt. Entry No. 34-6; 18 19 Heidi Cerneka Decl. at ¶ 5, Dkt. Entry No. 34-7; David Jackson Decl. at ¶ 8, Dkt. Entry No. 34-
20 8. The process for a detained individual to “submit a request with the number of the attorney” for

21 Talton, the Otero phone service provider, to verify and subsequently add to a list of “attorney

22 numbers” has never been clear. See Renteria Decl. at ¶ 9. If such a procedure is available, ICE 23

24
5 See generally Complaint, Dkt. Entry No. 1; Brief in Support of Plaintiffs’ Motion for Class Certification and
25 Appointment of Class Counsel, Dkt. Entry No. 5; and Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, Dkt.
Entry No. 29.
26 6 Even if ICE were in compliance with the PBNDS (which it is not), compliance with the PBNDS is not the sine qua
non of legality under the INA and First and Fifth Amendments. See S. Poverty Law Ctr, 2020 WL 3265533, at *26
27 (“While the PBNDS provides a helpful touchstone, whether Defendants are in compliance with PBNDS does not
indicate whether the conditions are punitive.”).

7

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 12 of 18

1 has never made it known. See Supplemental Decl. of Estrella Cedillo at ¶ 3 (“[N]o ICE official

2 has ever mentioned a procedure by which detained individuals may request that his or her
3 attorney’s number can be identified as an ‘attorney number’ with Talton. No ICE officer ever
4 responded to any of our email requests for confidential calls to explain that detained individuals
5 6 could arrange for confidential calls themselves.”); Second Supplemental Decl. of David Jackson
7 at ¶ 2 (same). Rather, contrary information has circulated at Otero. See Supplemental Decl. of

8 Estrella Cedillo at ¶ 5 (explaining that an Otero detention officer informed Attorney Cedillo’s

9 client that attorneys (not clients) had to make requests for confidential legal calls). Attorneys

10 working with individuals at Otero have struggled mightily through informal procedures to have 11
their names included on the Talton list, and ICE has ignored many of these attempts. 12
Furthermore, despite AFOD Renteria’s assertions, calls from the housing units are not private. 13 14 Id. at ¶ 6 (“In my experience, clients are often able to remain on the phone with me and easily
15 speak to individuals nearby. The privacy panels provide very little real privacy.”)

16 2. 17

Defendants Do Not Comply with the 2011 PBNDS Requirement for Free Calls to Pro Bono Counsel, Unlawfully Restricting Access to Counsel in Violation of the INA and Constitution.

18

Defendants acknowledge that the 2011 PBNDS require that individuals “shall be able to

19 make free calls to the ICE/ERO-provided list of free legal service providers and that calls to all
20 other attorneys be “direct or free.” See Opp. at 22; 2011 PBNDS § 5.6.II.7, § 5.6.V.E. However,
21
22 ICE systematically denies individuals at Otero free calls to pro bono counsel, including legal

23 representatives working with the legal service providers on the ICE/ERO-provided list, in

24 violation of the INA and the Constitution.

25 a. ICE should provide individuals free calls to pro bono legal service providers.

26

The parties do not dispute that calls to pro bono legal service providers should be free.

27 See Opp. at 22. The Executive Office for Immigration Review (“EOIR”) maintains a list of pro

8

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 13 of 18
1 bono legal service providers. See List of Pro Bono Legal Service Providers (“EOIR List”),
2 available at https://www.justice.gov/eoir/file/probonofulllist/download (last accessed Sept. 14, 3
2020). Calls to providers on this list must be free. See 2011 PBNDS § 5.6.II.7 (“Detainees shall 4
be able to make free calls to the ICE/ERO-provided list of free legal service providers…”); ICE 5 6 Guidance on COVID-19, available at https://www.ice.gov/coronavirus (last accessed September 7 14, 2020) (“All detainees are afforded telephone access and can make calls to the ICE-provided
8 list of free legal service providers and consulates at no charge to the detainee or the receiving
9 party.”) Defendants agree that these calls must be free. Opp. at 22 (citing to 2011 PBNDS § 10 5.6).7 Yet ICE denies Plaintiffs free calls to their counsel employed by or volunteering with the 11
pro bono legal service providers on the EOIR List. See Decl. of Max Brooks, Dkt. Entry No. 3412
3 (discussing difficulties in arranging free calls with clients at Otero, despite serving as an 13 14 attorney for Las Americas Immigrant Advocacy Center (“Las Americas”), a pro bono legal 15 service provider on the EOIR List); Decl. of Imelda Maynard, Dkt. Entry No. 34-4 (discussing
16 difficulties in arranging free calls with clients at Otero that would last more than five minutes,
17 despite serving as an attorney for Catholic Charities of Southern New Mexico, a pro bono legal 18 service provider on the EOIR List); Decl. of Heidi Cerneka, Dkt. Entry No. 34-7 (discussing the 19
lack of free legal calls with her client, Named Plaintiff Ruben Torres Jauregui, despite serving as 20
an attorney for Las Americas); Decl. of David Jackson, Dkt. Entry No. 34-8 (discussing the 21 22 difficulties in arranging free legal intake calls at Otero, despite working for Las Americas); Decl. 23 of Margaret Brown Vega, Dkt. Entry No. 34-9 (discussing how most calls “are paid calls in
24
7 The 2011 PBNDS cites to the “ICE/ERO free legal service provider list” and the ICE Guidance on COVID-19
25 cites to the “ICE-provided list of free legal service providers.” Plaintiffs are unable to locate an ICE-provided list
other than the EOIR List of Pro Bono Legal Service Providers, and thus assume that Defendants, the 2011 PBNDS,
26 and the ICE Guidance on COVID-19 are referring to the EOIR List, formally known as the “List of Free Legal
Service Providers.” See 80 Fed. Reg. 59503 (Oct. 1, 2015). See also 2011 PBNDS at 5.7.J.13 (“ICE/ERO shall
27 provide each facility the official list of local free legal service providers, updated quarterly by the local DOJ
Executive Office for Immigration Review.”).
9

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 14 of 18

1 which individuals call me using their commissary funds,” despite working with Catholic

2 Charities of Southern New Mexico); Decl. of Gomez Carranza, Dkt. Entry No. 6 (discussing

3 severe restrictions on the ability to speak with his attorney, employed by Las Americas, because
4 “I have no money.”); Decl. of Torres Jauregui, Dkt. Entry No. 7 (discussing having “little
5
6 communication” with his Las Americas attorney because “we have to pay for phone calls.”).

7

Legal representatives volunteering with the pro bono legal service providers on the EOIR

8 List, regardless of whether they are engaged full time as a volunteer or ordinarily work in private

9 practice, should also receive free calls from their clients. Pro bono legal service providers depend

10 on volunteers and private practice attorneys to represent detained individuals. To deny clients
11 that have engaged the services of an EOIR List member free legal calls, simply because the
12 client engages a volunteer rather than a staff attorney from the organization, is contrary to the
13
14 plain text and spirit of the 2011 PBNDS, and violates the INA and First and Fifth Amendments.

15 b.

Contrary to Defendants’ assertion, no court has held that the 2011 PBNDS do not provide for free calls to all pro bono legal representatives.

16

Defendants’ assertion that “[s]everal courts have recognized that there is no requirement

17

18 in the 2011 PBNDS that all phone calls to all attorneys must be free of cost to the detainee” is

19 misleading. Opp. at 22. In fact, as far as Plaintiffs are aware, no court has discussed whether the

20 language included in the 2011 PBNDS precludes free legal calls to all pro bono counsel. The

21 cases cited by the government merely quote the 2011 “direct or free” language without

22 discussion. If anything, courts have implied that all legal calls to pro bono counsel must be free. 23
See Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1166 (D. Or. 2018) (ordering the 24
government “to install at least four telephone lines in each unit where immigration detainees are 25 26 held, with each line capable of placing free direct calls to legal service providers.”); Sanusi v.
27 Dep’t of Homeland Sec., No. 06-CV-2929 (SJ), 2010 U.S. Dist. LEXIS 146004, at *13 n.8

10

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 15 of 18

1 (E.D.N.Y. Dec. 1, 2010) (describing an earlier iteration of the PBNDS as “requir[ing] local calls

2 to a detainee’s attorney to be provided free of charge.”); Torres, 2020 WL 3124216, at *29

3 (ordering that ICE “allow free, reasonably private legal calls on unrecorded and unmonitored

4
telephone lines”). 5

6 3.

Restrictive Legal Call Duration Severely Compromises Attorney Representation.

7

In their Opposition, Defendants attempt to quantify the length of a legal call required for

8 sufficient attorney-client communication. It is not the government’s place to determine the

9 threshold number of minutes of legal preparation that meets constitutional and statutory access-

10 to-counsel standards. Defendants otherwise offer no evidence to rebut Plaintiffs’ substantial
11 evidence that the limits on call duration at Otero interfere with attorney representation. 12
Defendants claim that individuals at Otero receive 13 ten-minute calls at no cost, which 13
expire at week’s end if not used.8 Defendants posit that 13 ten-minute opportunities to speak 14
15 with counsel are sufficient. Plaintiffs’ evidence shows they are not due to their disjointed,

16 interrupted nature, disruptive background noise, and lack of confidentiality and privacy. PI Mem.

17 at 9-10. Moreover, there is no one-size-fits-all number of minutes that satisfies constitutional and
18 statutory access-to-counsel mandates given the variation in defendant circumstances.9 19
Defendants also allege that Named Plaintiff Torres Jauregui received sufficient telephone 20
access, citing to his immigration court hearing transcript. See Opp. at 2-5. This characterization 21

22

23 8 Plaintiffs dispute that individuals detained at Otero receive 13 ten-minute no-cost calls per week. See PI Mem. at 9,

24

n.5. Defendants have put forth no evidence that these calls are in fact available. 9 As an example, Defendants express confusion as to “why [a] declaration obtained from [a] detainee was ‘sub-par,’

despite over 2.5 hours in phone time with him.” Opp. at 10. Defendants ignore evidence that the legal
25 representative—who was simultaneously attempting a legal intake while also preparing a declaration with life-or-

death consequences—“was not able to ask some questions which may have strengthened the declaration.” Brooks
26 Decl. at ¶ 8(d). In another instance, Defendants assert that Attorney Rosa de Jong “had little difficulty establishing

regular communication with an Otero detainee in July 2020.” Opp. at 10, n.3. In fact, Attorney de Jong’s client had

27 to pay for most of the calls, which were potentially monitored and suffered from background noise. Decl. of Rosa de

Jong at ¶ 3. The client was given just one legal phone call while in the hospital.

11

Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 16 of 18

1 fails to consider the context surrounding Mr. Torres Jauregui’s immigration hearings. As stated

2 in the Complaint, Attorney Cerneka was unable to contact her client in the time leading up to his
3 hearing on April 1, 2020 and, as a result, it had to be rescheduled, prolonging Mr. Torres
4 Jauregui’s detention an additional month. See Supplemental Decl. of Heidi Cerneka at ¶ 3; see
5 6 also Compl. at ¶¶ 79-82. Because of her inability to contact her client, Attorney Cerneka
7 developed a “work-around” that required Mr. Torres Jauregui to pay for the call and the calls

8 were not confidential. See Supplemental Decl. of Heidi Cerneka at ¶ 4. Attorney Cerneka did not

9 request a continuance for the June 30, 2020 hearing to avoid prolonging Mr. Torres Jauregui’s

10 confinement any longer. See id. at ¶ 5. 11
In sum, the abbreviated, limited, and disjointed telephone communications that 12
Defendants claim are adequate do not meet the constitutional standard for due process. Tellingly, 13 14 Defendants’ quantification does not comport with the 2011 PBNDS, which limits restrictions on
15 legal calls. See 2011 PBNDS at § 5.6.F.1 (“A facility may neither restrict the number of calls a

16 detainee places to his/her legal representatives, nor limit the duration of such calls by rule of

17 automatic cut-off…”). See also S. Poverty Law Ctr., 2020 WL 3265533, at *24 (finding that an
18 effective one-hour per week cap on legal calls violated the Fifth Amendment). By establishing a 19
call cap that by definition bears no relationship to the legal needs of the case, Defendants are 20
interfering with Plaintiffs’ right to counsel under the INA and the First and Fifth Amendments. 21
22 III. CONCLUSION

23

For the reasons stated above and those in their opening papers, Plaintiffs respectfully

24 request that this Court grant class-wide preliminary injunctive relief.

25

26

27

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Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 17 of 18

1 2
Dated: September 23, 2020 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Respectfully Submitted,
ORRICK, HERRINGTON, & SUTCLIFFE LLP
/s/ R. David Hosp
R. David Hosp ORRICK, HERRINGTON & SUTCLIFFE LLP 222 Berkeley St. Ste 2000 Boston, MA 02116 Telephone: (617) 880-1886 Facsimile: (617) 880-1801 Email: dhosp@orrick.com
René A. Kathawala Paige Pavone Lauren D. Allen ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, NY 10019 Telephone: (212) 506-3604 Facsimile: (212) 506-5151 Email: ppavone@orrick.com
Katherine Melloy Goettel (Admitted Pro Hac Vice) AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7552 Email: kgoettel@immcouncil.org
Emma C. Winger (Admitted Pro Hac Vice) AMERICAN IMMIGRATION COUNCIL 1318 Beacon Street, Suite 18 Brookline, MA 02446 Tel.: (617) 505-5375 Email: ewinger@immcouncil.org
Attorneys for Plaintiffs

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Case 2:20-cv-00424-KG-KRS Document 39 Filed 09/23/20 Page 18 of 18

1

CERTIFICATE OF SERVICE

2

I hereby certify that on September 23, 2020, a true and correct copy of the foregoing

3 PLAINTIFFS’ REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ PRELIMINARY

4 INJUNCTION was served with the Clerk of the Court by using the CM/ECF system, which

5 provided an electronic notice and electronic link of the same to all attorneys of record through

6 the Court’s CM/ECF system.

7 8 Dated: September 23, 2020

By: /s/ Paige Pavone

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