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HABEAS,STAYED

United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:18-cv-10225-MLW

Calderon Jimenez v. Cronen et al Assigned to: Judge Mark L. Wolf related Cases: 1:19-cv-11296-WGY
1:19-cv-10400-MLW 1:18-cv-11596-MLW Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Det

Date Filed: 02/05/2018 Jury Demand: None Nature of Suit: 463 Habeas Corpus - Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Lilian Pahola Calderon Jimenez

represented by Adriana Lafaille American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Email: alafaille@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough Wilmer Cutler Pickering Hale and Dorr, LLP 60 State Street Boston, MA 02109 (617) 526-6000 Email: colleen.mccullough@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617-526-6143 Email: allyson.slater@wilmerhale.com ATTORNEY TO BE NOTICED

Christina Luo Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6921 Email: christina.luo@wilmerhale.com ATTORNEY TO BE NOTICED

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Jonathan A. Cox Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617-526-6609 Email: jonathan.cox@wilmerhale.com ATTORNEY TO BE NOTICED
Kathleen M. Gillespie Attorney at Law 6 White Pine Lane Lexington, MA 02421 339-970-9283 Email: kathleen.m.gillespie@outlook.com ATTORNEY TO BE NOTICED
Kevin S. Prussia Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6243 Fax: 617-526-5000 Email: kevin.prussia@wilmerhale.com ATTORNEY TO BE NOTICED
Matthew W. Costello Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6313 Email: matt.costello@wilmerhale.com ATTORNEY TO BE NOTICED
Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Fax: 617-451-0009 Email: msegal@aclum.org ATTORNEY TO BE NOTICED
Michaela P. Sewall Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109 617-526-6770 Email: michaela.sewall@wilmerhale.com ATTORNEY TO BE NOTICED
Shirley X. Cantin
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WilmerHale 60 State Street Boston, MA 02109 917-287-1166 Email: shirley.cantin@wilmerhale.com TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

Petitioner Luis Gordillo

Stephen Nicholas Provazza Wilmer Hale LLP 60 State Street Boston, MA 02109 617-526-6212 Email: stephen.provazza@wilmerhale.com ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

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Michaela P. Sewall (See above for address)
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ATTORNEY TO BE NOTICED

Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

Petitioner Sandro De Souza

Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED

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Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020
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ATTORNEY TO BE NOTICED

Petitioner Carmen Sanchez

Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED

Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

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Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
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Petitioner Oscar Rivas

CM/ECF - USDC Massachusetts - Version 6.3.3 as of 11/7/2020
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED

Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED

Petitioner Celina Rivera Rivas

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED

Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

Petitioner Lucimar De Souza

Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Colleen M. McCullough (See above for address) LEAD ATTORNEY
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PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED

Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

Petitioner Sergio Francisco

Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Allyson T. Slater (See above for address)
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ATTORNEY TO BE NOTICED

Christina Luo (See above for address) ATTORNEY TO BE NOTICED

Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED

Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED

Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED

Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED

Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED

Petitioner Deng Gao

Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED

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Christina Luo (See above for address) ATTORNEY TO BE NOTICED
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Petitioner Amy Chen

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Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED
Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED
Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED
Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED
Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED
Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen M. McCullough (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson T. Slater (See above for address) ATTORNEY TO BE NOTICED
Christina Luo (See above for address) ATTORNEY TO BE NOTICED
Jonathan A. Cox (See above for address) ATTORNEY TO BE NOTICED

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Kathleen M. Gillespie (See above for address) ATTORNEY TO BE NOTICED
Kevin S. Prussia (See above for address) ATTORNEY TO BE NOTICED
Matthew W. Costello (See above for address) ATTORNEY TO BE NOTICED
Michaela P. Sewall (See above for address) ATTORNEY TO BE NOTICED
Shirley X. Cantin (See above for address) TERMINATED: 03/30/2020 ATTORNEY TO BE NOTICED
Stephen Nicholas Provazza (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Christopher Cronen Boston Field Ofﬁce Director, Immigration and Customs Enforcement

represented by Eve A. Piemonte U.S. Attorney's Ofﬁce 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3100 Fax: 617-748-3969 Email: eve.piemonte@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Larakers U.S. Department of Justice, Ofﬁce of Immigration Litigation District Court Section P.O. Box 868 Washington, DC 20044 (202) 353-4419 Email: mary.l.larakers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub U.S. Department of Justice, Ofﬁce of Immigration Litigation

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Respondent Kirstjen M NIELSEN Secretary of Homeland Security
Respondent Yolanda Smith Superintendent of Suffolk County Correctional Facility

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P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-305-7551 Email: jacob.weintraub@usdoj.gov ATTORNEY TO BE NOTICED
William Weiland U.S. Department of Justice Ofﬁce of Immigration Litigation - DCS P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 305-0770 Email: william.h.weiland@usdoj.gov ATTORNEY TO BE NOTICED
represented by Eve A. Piemonte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
William Weiland (See above for address) ATTORNEY TO BE NOTICED
represented by Eve A. Piemonte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
William Weiland (See above for address) ATTORNEY TO BE NOTICED

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Respondent
STEVEN W TOMPKINS Sherrif of Suffolk County

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represented by Eve A. Piemonte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Respondent
Thomas Homan Acting Director, Immigration and Customs Enforcement

William Weiland (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Respondent
Thomas Brophy Immigration and Customs Enforcement, Enforcement and Removal Ofﬁce, Boston Field Ofﬁce Director

William Weiland (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED

Respondent
Donald J. Trump President of the United States

William Weiland (See above for address) ATTORNEY TO BE NOTICED
represented by Mary Larakers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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J. Max Weintraub (See above for address) ATTORNEY TO BE NOTICED
William Weiland (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/05/2018
02/06/2018 02/06/2018 02/06/2018
02/06/2018 02/06/2018 02/06/2018 02/06/2018 02/07/2018 02/08/2018 02/08/2018

# Docket Text
1 PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number 01016995758 Fee status: Filing Fee paid., ﬁled by Lilian Pahola Calderon Jimenez. (Attachments: # 1 Civil Cover Sheet Cover, # 2 Civil Cover Sheet Category form, # 3 Exhibit 1 Declaration of Martin D. Harris, # 4 Exhibit 2 Declaration of Marcela Ordonez, # 5 Exhibit 3 printout from uscis.gov, # 6 Exhibit 4 interview notice, # 7 Exhibit 5 I-130 approval)(Lafaille, Adriana) (Attachment 1 replaced on 2/6/2018) (McDonagh, Christina). (Attachment 2 replaced on 2/6/2018) (McDonagh, Christina). (Entered: 02/05/2018)
2 NOTICE of Appearance by Matthew Segal on behalf of Lilian Pahola Calderon Jimenez (Segal, Matthew) (Entered: 02/06/2018)
3 ELECTRONIC NOTICE of Case Assignment. Judge Mark L. Wolf assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Danieli, Chris) (Entered: 02/06/2018)
4 Summons Issued as to Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (McDonagh, Christina) (Entered: 02/06/2018)
5 Online access to documents in this case is limited to counsel of record only. All documents are available for review in the Ofﬁce of the Clerk. Counsel of record: please note that you will need to log into CM/ECF to access any documents in this case. (Franklin, Yvonne) (Entered: 02/06/2018)
6 Judge Mark L. Wolf: ORDER entered. (Bono, Christine) (Entered: 02/06/2018)
7 ELECTRONIC NOTICE of Hearing Re: Petition for Writ of Habeas Corpus. Hearing set for 2/21/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 02/06/2018)
8 Judge Mark L. Wolf: ORDER entered. MEMORANDUM and ORDER. (Bono, Christine) (Entered: 02/06/2018)
9 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bono, Christine) (Entered: 02/07/2018)
10 NOTICE of Appearance by Eve A. Piemonte on behalf of Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS (Piemonte, Eve) (Entered: 02/08/2018)
11 NOTICE of Appearance by Mary Larakers on behalf of Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS (Larakers, Mary) (Entered:

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02/12/2018 02/13/2018 02/13/2018 02/13/2018 02/14/2018 02/15/2018
02/16/2018 02/21/2018 02/23/2018

02/08/2018)

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12 STATUS REPORT (JOINT) by Lilian Pahola Calderon Jimenez, Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Piemonte, Eve) (Entered: 02/12/2018)

13 Writ of Habeas Corpus ad Testiﬁcandum Issued as to LILIAN PAHOLA CALDERON JIMENEZ for 2/21/2018. (Bono, Christine) (Entered: 02/13/2018)

14 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Respondents shall, by 10:00 a.m. on February 14, 2018, ﬁle and serve on petitioner an afﬁdavit addressing the foregoing questions. 2. If necessary, the parties may request an extension of the deadline in paragraph 1 and the deadlines for brieﬁng, which may require rescheduling the February 21, 2018 hearing." ORDER entered. (Attachments: # 1 Boston Herald Article) (Bono, Christine) (Entered: 02/13/2018)

15 MOTION for Extension of Time to February 20, 2018 to File Response/Reply as to 14 Order, by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Attachments: # 1 Afﬁdavit)(Piemonte, Eve) (Entered: 02/13/2018)

16 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Respondent need not respond to the February 13, 2018 Order (Docket No. 14) on February 14, 2018. 2. The parties need not make the submissions required by paragraph 3 of the February 6, 2018 Order (Docket No. 6) on the dates directed. 3. A further Order identifying issues, providing the parties an opportunity to confer, and establishing a revised brieﬁng schedule will issue." ORDER entered. (Bono, Christine) (Entered: 02/14/2018)

17 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Respondents shall, by 12:00 noon on February 21, 2018, ﬁle an afﬁdavit from an ICE representative describing: (a) the ofﬁcial who made the original decision that Calderon should be detained; (b) the legal basis for the decision, including whether ICE considered her detention mandatory or discretionary; (c) the procedures followed in reaching the decision and, if any, the individualized reasons for it; (d) the ofﬁcial who decided that Calderon should be released; (e) the reason(s) for her release; (f) the reason(s) why she was released on February 13, 2018, rather than sooner or later; (g) whether respondents assert that they had, and still have, the authority to detain Calderon without an individualized determination of dangerousness and risk of ﬂight; (h) whether Calderon has been released for a deﬁned period of time and, therefore, may be detained again; (i) whether any individuals other than Calderon and de Oliveira were arrested while taking steps to seek permanent residency at a Massachusetts or Rhode Island CIS ofﬁce in January 2018; (j) if so, whether any of those individuals have received individualized determinations of dangerousness and risk of ﬂight without ﬁling petitions under §2241; and (k) whether any of them have also been released. 2. The parties shall confer and, by 12:00 noon on February 23, 2018, report, jointly if possible, concerning: (a) whether they have reached an agreement to resolve this case; (b) the issues to be litigated, including but not limited to whether Calderon's release moots the issue of ICE's authority to detain her; and (c) a proposed schedule for brieﬁng the issues identiﬁed." ORDER entered. MEMORANDUM AND ORDER (Bono, Christine) (Entered: 02/15/2018)

18 ELECTRONIC NOTICE Canceling 2/21/2018 Hearing. (Bono, Christine) (Entered: 02/16/2018)

19 AFFIDAVIT of Respondents by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Larakers, Mary) (Entered: 02/21/2018)

20 STATUS REPORT by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Larakers, Mary) (Entered: 02/23/2018)

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02/27/2018
03/27/2018 04/03/2018 04/04/2018 04/05/2018
04/05/2018 04/10/2018
04/10/2018 04/10/2018 04/11/2018

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21 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. The proposed schedule for brieﬁng respondents' motion to dismiss (Docket No. 20 at 14) is ADOPTED. Respondents shall, by March 27, 2018, ﬁle the motion to dismiss. Petitioner shall respond by April 10, 2018. Respondents shall ﬁle any reply by April 20, 2018. 2. A hearing on the motion to dismiss shall be held on May 7, 2018, at 9:30 a.m. 3. The parties shall, by April 3, 2018, confer and report whether the Department of Homeland Security agrees not to detain petitioner until the motion to dismiss is decided. If not, petitioner shall state whether she intends to move for a preliminary injunction and, if so, when she proposes to do so." ORDER entered. (Bono, Christine) (Entered: 02/27/2018)
22 First MOTION to Dismiss by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 03/27/2018)
23 STATUS REPORT by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Larakers, Mary) (Entered: 04/03/2018)
24 Judge Mark L. Wolf: "Petitioner shall, by April 13, 2018, update this report concerning whether she intends to move for a preliminary injunction and, if so, when." ENDORSED ORDER entered. re 23 Status Report ﬁled by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS (Bono, Christine) (Entered: 04/04/2018)
25 Judge Mark L. Wolf: "It is hereby ORDERED that a hearing will be held on May 8, 2018 [at 10:00 a.m., and continue from day to day, if necessary] to address the issue common to the three above-captioned cases of whether the defendants were required to follow the procedures described in 8 C.F.R. §241.4, or any procedures required by the United States Constitution, when deciding to detain the petitioners. The hearing will then address the issues unique to each case." ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 04/05/2018)
26 ELECTRONIC NOTICE of Hearing.Hearing set for 5/8/2018 10:00 AM, and continuing day to day, if necessary, in Courtroom 10 before Judge Mark L. Wolf. See Order 25 Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310MLW(Bono, Christine) (Entered: 04/05/2018)
27 AMENDED COMPLAINT (AMENDED CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241) against Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Thomas Homan, Thomas Brophy, Donald J. Trump, ﬁled by Lilian Pahola Calderon Jimenez, Luis Gordillo, Sandro De Souza, Carmen Sanchez, Oscar Rivas, Celina Rivera Rivas, Lucimar De Souza, Sergio Francisco, Deng Gao, Amy Chen.(Prussia, Kevin) (Entered: 04/10/2018)
28 NOTICE of Appearance by Jonathan A. Cox on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Cox, Jonathan) (Entered: 04/10/2018)
29 NOTICE of Appearance by Stephen Nicholas Provazza on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Provazza, Stephen) (Entered: 04/10/2018)
30 MOTION for Order to Show Cause and for Emergency Relief Preserving the Court's Jurisdiction by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit 1 - Afﬁdavit of Sandro Jose de Souza (Redacted - Public Version), # 2 Exhibit 2 - Afﬁdavit of Oscar Rivas, # 3 Exhibit 3 -

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04/11/2018

31 Assented to MOTION to Seal Document 30 MOTION for Order to Show Cause and for Emergency Relief Preserving the Court's Jurisdiction (Motion to Seal Portions of Exhibit 1 to Petitioners' April 11, 2018 Motion for Order to Show Cause) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 04/11/2018)

04/13/2018

32 Judge Mark L. Wolf: "It is hereby ORDERED that: 1. In order to preserve the court's jurisdiction, to provide the parties an opportunity to attempt to resolve this case and, if necessary, to brief the issues properly, the named petitioners and Lucimar de Souza shall not be moved outside the District of Massachusetts, temporarily or permanently, during the pendency of this case. See 28 U.S.C. §1651(a)("[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."). This requirement may be reconsidered by the court sua sponte or upon motion by either party. 2. A further order concerning a schedule for conferring and brieﬁng shall issue." ORDER entered. (Bono, Christine) (Entered: 04/13/2018)

04/16/2018

34 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bono, Christine) (Entered: 04/16/2018)

04/16/2018

Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 30 Motion for Order. See Memorandum and Order 34 (Bono, Christine) (Entered: 04/18/2018)

04/19/2018

35 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. The parties to these cases shall, by April 26, 2018, confer and report, jointly if possible. The report shall: (1) identify issues common to all or many of these cases, and issues unique to a particular case or cases, including any issues not identiﬁed in this Memorandum; (2) propose a schedule for brieﬁng the issues in these cases that are not yet briefed; (3) propose an agenda for the May 8, 2018 hearing; and (4) identify any other matters the court should consider to promote a just and efﬁcient resolution of these cases. 2. A status conference will be held on May 1, 2018, at 10:00 a.m., to discuss the matters addressed in this Memorandum, the proposals of the parties, and a schedule for these cases." ORDER entered. MEMORANDUM AND ORDER. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv10307-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 04/19/2018)

04/19/2018

36 STATUS REPORT (JOINT) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Lafaille, Adriana) (Entered: 04/19/2018)

04/19/2018

37 MOTION for Clariﬁcation of this Court's April 13, 2018 Order by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Lafaille, Adriana) (Entered: 04/19/2018)

04/20/2018

38 First Opposition re 37 MOTION for Clariﬁcation of this Court's April 13, 2018 Order ﬁled by Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Entered: 04/20/2018)

04/23/2018

39 MOTION for Leave to File Excess Pages by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 04/23/2018)

04/23/2018

40 Second MOTION to Dismiss by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A) (Larakers, Mary) (Entered: 04/23/2018)

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ELECTRONIC NOTICE Canceling 5/7/2018 Hearing. See Order at docket entry 25 . (The May 1, 2018 and May 8, 2018 hearings remain as previously scheduled.) (Bono, Christine) (Entered: 04/24/2018)
41 NOTICE of Appearance by Michaela P. Sewall on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Sewall, Michaela) (Entered: 04/24/2018)
42 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 04/26/2018)
43 Judge Mark L. Wolf: "The afﬁdavit shall be sealed, at least temporarily. However, if the information redacted in the public record becomes relevant and possibly material, it may be unsealed." ENDORSED ORDER entered granting 31 Motion to Seal Document (Bono, Christine) (Entered: 04/27/2018)
Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 39 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Bono, Christine) (Entered: 04/27/2018)
44 MOTION to Dismiss by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 04/27/2018)
ELECTRONIC NOTICE of Hearing. Status Conference set for 5/1/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. See 4/19/2018 Order 35 Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579MLW(Bono, Christine) (Entered: 04/27/2018)
45 Response by Lucimar De Souza to 34 Memorandum & ORDER, 40 Second MOTION to Dismiss . (Prussia, Kevin) (Entered: 04/30/2018)
46 MOTION to Certify Class by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 04/30/2018)
47 MEMORANDUM in Support re 46 MOTION to Certify Class ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Prussia, Kevin) (Entered: 04/30/2018)
48 Assented to MOTION for Leave to File Excess Pages by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 04/30/2018)
49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 04/30/2018)
50 MEMORANDUM in Support re 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Prussia, Kevin) (Entered: 04/30/2018)

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51 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Status Conference held on 5/1/2018. Parties shall order transcript on an expedited basis. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Piemonte, Kanwit, Sady, Cox, Provazza, Lafaille, Segal, Pomerlau, Cortes del Olmo; Probation: Gina Affsa) Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579-MLW(Bono, Christine) (Entered: 05/01/2018)

05/02/2018

Judge Mark L. Wolf: ELECTRONIC ORDER entered ﬁnding as moot 15 Motion for Extension of Time to File Response/Reply (Bono, Christine) (Entered: 05/02/2018)

05/02/2018

52 Judge Mark L. Wolf: ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv10307-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/02/2018)

05/03/2018

53 Transcript of Status Conference held on May 1, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 5/24/2018. Redacted Transcript Deadline set for 6/4/2018. Release of Transcript Restriction set for 8/1/2018. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310MLW, 1:18-cv-10579-MLW(Scalfani, Deborah) (Entered: 05/03/2018)

05/03/2018

54 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:18-cv10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579-MLW(Scalfani, Deborah) (Entered: 05/03/2018)

05/03/2018

55 MEMORANDUM in Support re 44 MOTION to Dismiss ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 05/03/2018)

05/03/2018

56 STATUS REPORT by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 05/03/2018)

05/03/2018

57 MEMORANDUM OF LAW by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez to 52 Order. (Prussia, Kevin) (Entered: 05/03/2018)

05/04/2018

58 Writ of Habeas Corpus ad Testiﬁcandum Issued as to Lucimar de Souza for 5/8/2018. (Bono, Christine) (Entered: 05/04/2018)

05/04/2018

59 MOTION for Leave to Appear Pro Hac Vice for admission of Colleen M. Mccullough Filing fee: $ 100, receipt number 0101-7125965 by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Certiﬁcate of Colleen M. McCullough in Support of Motion)(Prussia, Kevin) (Entered: 05/04/2018)

05/04/2018

60 JOINT STATEMENT of counsel regarding order of issues to be considered. (Lafaille, Adriana) (Entered: 05/04/2018)

05/07/2018

61 Judge Mark L. Wolf: ELECTRONIC ORDER entered Granting 59 Motion for Leave to Appear Pro Hac Vice Added Colleen M. McCullough. Attorneys admitted Pro Hac Vice must register for electronic ﬁling if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Franklin, Yvonne) (Entered: 05/07/2018)

05/07/2018 62 NOTICE of Appearance by Kathleen M. Gillespie on behalf of Lilian Pahola Calderon

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Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez, Yolanda Smith (Gillespie, Kathleen) (Entered: 05/07/2018)

05/07/2018

63 Amended JOINT STATEMENT of counsel regarding order of issues to be considered. (Lafaille, Adriana) (Entered: 05/07/2018)

05/08/2018

64 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 5/8/2018. (Exhibits entered: (1) 4/27/18 "Decision to Continue Detention" letter directed to Lucimar de Souza; (2) 5/3/18 "Notice to Alien of File Custody Review" letter directed to Eduardo Junqueira). Decision and Order shall issue. Parties shall order transcript on an expedited basis. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Piemonte, Sady, Lafaille, Cox, McCullough, Pomerleau, Marzouk; Probation Ofﬁcer Susan Walls) Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579MLW(Bono, Christine) (Entered: 05/08/2018)

05/08/2018

65 Judge Mark L. Wolf: "The proposed brieﬁng schedule is hereby ADOPTED. Hearing date(s) will be set after brieﬁng is complete. ENDORSED ORDER entered. re 63 Joint statement of counsel (Bono, Christine) (Entered: 05/08/2018)

05/08/2018

66 Judge Mark L. Wolf: ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv10307-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/09/2018)

05/11/2018 67 AFFIDAVIT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 05/11/2018)

05/11/2018 68 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 05/11/2018)

05/14/2018

69 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. The hearing originally scheduled for May 15, 2018, and postponed to accommodate the schedule of counsel for respondents in Calderon, shall be held on May 22, 2018, at 10:00 a.m. and, if necessary, continue on May 23, 2018. 2. Each ICE ofﬁcial identiﬁed in the Afﬁdavits from ICE Representatives ﬁled on February 21, 2018 and May 11, 2018 shall appear at the May 22, 2018 hearing to testify, if necessary. 3. Each potential witness shall comply with the Sequestration Order being issued with this Order." ORDER entered. (Attachments: # 1 Sequestration Order)Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310MLW(Bono, Christine) (Entered: 05/14/2018)

05/14/2018

70 Judge Mark L. Wolf: "The May 15, 2018 hearing is hereby CANCELLED and will be rescheduled." ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307MLW(Bono, Christine) (Entered: 05/14/2018)

05/16/2018

71 NOTICE of Appearance by J. Max Weintraub on behalf of Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump (Weintraub, J.) (Entered: 05/16/2018)

05/18/2018 72 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 05/18/2018)

05/18/2018

73 Transcript of Hearing held on May 8, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/8/2018. Redacted Transcript Deadline set for 6/18/2018. Release of Transcript Restriction set for 8/16/2018. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579-MLW(Scalfani, Deborah) (Entered: 05/18/2018)

05/18/2018

74 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at

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http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:18-cv10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579-MLW(Scalfani, Deborah) (Entered: 05/18/2018)
ELECTRONIC NOTICE : Hearing set for 5/22/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. Hearing shall continue 5/23/2018, if necessary, 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. See 69 Associated Cases: 1:18-cv-10225MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/21/2018)
75 Transcript of Lobby Conference held on May 8, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/11/2018. Redacted Transcript Deadline set for 6/21/2018. Release of Transcript Restriction set for 8/20/2018. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW, 1:18-cv10310-MLW, 1:18-cv-10579-MLW(Scalfani, Deborah) (Entered: 05/21/2018)
76 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:18-cv10225-MLW, 1:18-cv-10307-MLW, 1:18-cv-10310-MLW, 1:18-cv-10579-MLW(Scalfani, Deborah) (Entered: 05/21/2018)
77 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Acting Assistant Field Ofﬁce Director Marc McGee shall attend the May 22, 2018 hearing and be prepared to testify if necessary. 2. Mr. McGee and Acting Field Ofﬁce Director Thomas Brophy shall review Dos Santos' records and be prepared to testify regarding, among other things, whether "ICE ofﬁcers told [Dos Santos] he would not be allowed to [sign travel documents]," and if so, why. Report (Docket No. 57) at 52. 3. Petitioner Edjann Dos Santos shall also be prepared to testify if necessary." ORDER entered. Associated Cases: 1:18-cv-10225MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/21/2018)
78 Opposition re 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief ﬁled by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 05/21/2018)
79 RESPONSE to Motion re 44 MOTION to Dismiss ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 05/21/2018)
80 Letter/request (non-motion) from John Hawkinson. (Bono, Christine) (Entered: 05/23/2018)
81 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 5/22/2018. Petitioner E. Dos Santos is present. Witnesses Thomas Brophy and James Rutherford called. Witnesses sworn and give testimony. Exhibits 1-8 entered. Hearing continued to 5/23/2018. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Weintraub, Sady, Pomerleau, Marzouk, Rubin, Lafaille, Prussia, Cox, McCullough, Segal, Sewall) Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/23/2018)
84 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Unless otherwise ordered, the hearing that began on May 22, 2018 shall resume on May 30, 2018, at 9:30 a.m. 2. The parties in Calderon v. Cronen, C.A. No. 18-10225, shall confer and, by May 25, 2018 at 12:00 noon, report whether they have reached an agreement to resolve the case or any

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issues in it and, if not, how the case should proceed, including: whether the schedules for brieﬁng the motions to dismiss, for a preliminary injunction, and/or for class certiﬁcation should be modiﬁed; whether they request more time to confer; and whether the hearing on May 30, 2018 should be continued. If the parties do not request that the May 30, 2018 hearing be continued, they shall propose an agenda for it. 3. The parties in Dos Santos v. Nielsen, C.A. No. 10310, shall, by May 29, 2018, report the status of the case or ﬁle a stipulation of dismissal. 4. The parties in Calderon shall order the transcript of the May 22 and 23, 2018 hearings." ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18cv-10310-MLW(Bono, Christine) (Entered: 05/24/2018)

05/23/2018

85 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Brophy, Rutherford, and Lyons shall not discuss with each other or any other prospective witness: (a) what each was asked or answered at the May 22 and 23 hearings; and (b) the facts concerning the cases of De Souza, Junqueira, and Lilian Calderon. 2. Brophy, Rutherford, and Lyons may discuss, among themselves and with other employees of ICE, the general issues raised by the De Souza, Junqueira, and Calderon cases, and any related cases, in discharging their duties as ICE ofﬁcials, including in making the transition to Lyons as Acting Field Ofﬁce Director on June 1, 2018. 3. The May 14, 2018 Sequestration Order otherwise remains in effect." ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310MLW(Bono, Christine) (Entered: 05/24/2018)

05/24/2018

82 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 5/23/2018. Petitioner E. Dos Santos is present. Witnesses Thomas Brophy and James Rutherford remain under oath and testimony continues. Exhibits 9 and 10 entered. Exhibits A and B entered under seal. Witness Todd Lyons is sworn and gives testimony. Hearing continued to 5/30/2018. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Weintraub, Sady, Pomerleau, Marzouk, Rubin, Lafaille, Prussia, Cox, McCullough, Segal, Sewall) Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/24/2018)

05/24/2018

83 Exhibit and Witness List. (Attachments: # 1 Exhibit 2, # 2 Exhibit 6, # 3 Exhibit 9, # 4 Exhibit 10; Exhibit 4 is DVD video format and available in the Clerk's Ofﬁce upon request.)Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310-MLW(Bono, Christine) (Entered: 05/24/2018)

05/25/2018

86 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 05/25/2018)

05/25/2018

87 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. The May 30, 2018 hearing is CANCELLED and, if necessary, will be rescheduled. 2. The parties shall continue to confer and, by 12:00 noon on June 1, 2018, report whether any or all of the remaining issues in this case have been resolved. If all issues have not been resolved, they shall report whether the evidence at the May 22 and 23, 2018 hearings requires additional submissions concerning the motions to dismiss, for preliminary injunction, and/or for class certiﬁcation. If so, the parties shall propose a schedule for additional brieﬁng. 3. Although it may be altered following the June 1, 2018 report, the brieﬁng schedule proposed in paragraph 4 of the Joint Statement is adopted." ORDER entered. (Bono, Christine) (Entered: 05/25/2018)

06/01/2018 88 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/01/2018)

06/04/2018

89 Transcript of Hearing held on May 22, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/25/2018. Redacted Transcript Deadline set for 7/5/2018. Release of Transcript Restriction set for 9/4/2018.

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Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310-MLW(Scalfani, Deborah) (Entered: 06/04/2018)

06/04/2018

90 Transcript of Hearing held on May 23, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/25/2018. Redacted Transcript Deadline set for 7/5/2018. Release of Transcript Restriction set for 9/4/2018. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310-MLW(Scalfani, Deborah) (Entered: 06/04/2018)

06/04/2018

91 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:18-cv10225-MLW, 1:18-cv-10310-MLW(Scalfani, Deborah) (Entered: 06/04/2018)

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93 Transcript of Lobby Conference held on May 23, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/29/2018. Redacted Transcript Deadline set for 7/9/2018. Release of Transcript Restriction set for 9/6/2018. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10310-MLW(Scalfani, Deborah) (Entered: 06/08/2018)

06/08/2018

94 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm Associated Cases: 1:18-cv10225-MLW, 1:18-cv-10310-MLW(Scalfani, Deborah) (Entered: 06/08/2018)

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95 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER.Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-10307-MLW(Bono, Christine) (Entered: 06/11/2018)

06/14/2018

96 REPLY to Response to 40 Second MOTION to Dismiss ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/14/2018)

06/14/2018

97 REPLY to Response to 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 06/14/2018)

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98 DECLARATION re 97 Reply to Response to Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Provazza, Stephen) (Entered: 06/14/2018)

06/19/2018

99 Opposition re 46 MOTION to Certify Class ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/19/2018)

06/22/2018 100 NOTICE by Kirstjen M NIELSEN Substitute Party (Larakers, Mary) (Entered: 06/22/2018)

06/22/2018 101 EXHIBIT re 100 Notice (Other) by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/22/2018)

06/22/2018 102 Assented to MOTION for Extension of Time to July 6, 2018 to File Response/Reply in

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Support of Class Certiﬁcation by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 06/22/2018)
103 Assented to MOTION for Leave to File sur-reply by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 06/22/2018)
104 Judge Mark L. Wolf: ENDORSED ORDER entered granting 102 Motion for Extension of Time to File Response/Reply (Bono, Christine) (Entered: 06/25/2018)
105 Judge Mark L. Wolf: ENDORSED ORDER entered granting 103 Motion for Leave to File Document ; If counsel has not already done so, counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Bono, Christine) (Entered: 06/25/2018)
106 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bono, Christine) (Entered: 06/26/2018)
107 DECLARATION re 106 Memorandum & ORDER of Interim Field Ofﬁce Director Adducci by Kirstjen M NIELSEN. (Attachments: # 1 Declaration of Rebecca J. Adducci) (Piemonte, Eve) (Entered: 06/28/2018)
108 MOTION for Leave to Depose ICE Directors Adducci, Brophy, and Lyons by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 06/28/2018)
109 Judge Mark L. Wolf: ORDER entered. (Bono, Christine) (Entered: 06/29/2018)
ELECTRONIC NOTICE Setting Hearing on Motion(s). Motion Hearing set for 8/14/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. See Order, 109 . (Bono, Christine) (Entered: 07/03/2018)
110 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 07/06/2018)
111 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Lafaille, Adriana) (Entered: 07/06/2018)
112 SUR-REPLY to Motion re 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 07/06/2018)
113 REPLY to Response to 46 MOTION to Certify Class (Reply Brief in Support of Petitioners' Motion for Class Certiﬁcation) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 07/06/2018)
114 MOTION to Take Deposition from Rebecca Adducci, Thomas Brophy, and Todd Lyons by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 07/09/2018)
115 MEMORANDUM in Support re 114 MOTION to Take Deposition from Rebecca Adducci, Thomas Brophy, and Todd Lyons ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo,

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Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 07/09/2018)
116 Opposition re 114 MOTION to Take Deposition from Rebecca Adducci, Thomas Brophy, and Todd Lyons ﬁled by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 07/13/2018)
117 Judge Mark L. Wolf: ENDORSED ORDER entered. MEMORANDUM AND ORDER. Accordingly, it is hereby ORDERED that:
1.Petitioner's Motion for Leave to Depose ICE Directors Adducci, Brophy, and Lyons (Docket Nos. 108 , 114 ) is ALLOWED in part and DENIED in part.
2.Respondents shall, by July 18, 2018, produce all documents concerning: (a) the 2018 policies and general practices of the ICE Boston Field Ofﬁce concerning the arrest, detention, and removal of aliens presenting for I-130 interviews at CIS ofﬁces or otherwise pursuing the provisional waiver process; (b) the identity and status of all aliens arrested while at a CIS ofﬁce in 2018 within the jurisdiction of the ICE Boston Field Ofﬁce while appearing for an I-130 interview, including: whether and for how long they have been detained; whether and when they received or will receive notices of custody reviews and custody reviews; whether and when ICE intends to deport them; whether they have received stays of removal; and whether ICE considered their applications for provisional waivers when deciding whether to deport them; and (c) the reasons for the decision to give De Souza a June 12, 2018 notice to depart the United States and to withdraw it, and the identity of the ofﬁcial(s) who made those decisions.
3.Petitioners may take one six-hour deposition of Adducci. They shall confer concerning whether depositions of Brophy and Lyons remain necessary and, if so, petitioners may take one up to four-hour deposition of each. The depositions shall be taken by July 27, 2018.
4.Petitioners shall by, August 1, 2018, supplement their submissions on the pending motions.
5. Respondents shall, by August 7, 2018, supplement their submissions on the pending motions.
6.A hearing on the pending motions shall commence on August 14, 2018, at 10:00 a.m., and may continue from day to day.
(Franklin, Yvonne) (Entered: 07/16/2018)
118 MOTION to Continue hearing on the motions to dismiss, for preliminary injunctive relief, and for class certiﬁcation to 8/22/2018 by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 07/16/2018)
Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 118 Motion to Continue. This hearing is rescheduled to take place 8/15/2018 at 10:00 A.M., in Courtroom 10 before Judge Mark L. Wolf, and shall continue on 8/20/2018 and 8/21/2018, if necessary. (Bono, Christine) (Entered: 07/17/2018)
119 Assented to MOTION for Protective Order by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 07/19/2018)
120 STATUS REPORT Regarding Discovery by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 07/21/2018)

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121 STATUS REPORT (Response to Respondents' Status Report Regarding Discovery) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Prussia, Kevin) (Entered: 07/23/2018)
Judge Mark L. Wolf: "ALLOWED. However, the court may modify the Stipulated Protective Order sua sponte with prior notice to the parties. In addition, with any motion to seal, a party shall ﬁle under seal the document sought to be sealed and a redacted version of it for the public record." ELECTRONIC ORDER entered granting 119 Motion for Protective Order (Bono, Christine) (Entered: 07/24/2018)
122 NOTICE of Appearance by William Weiland on behalf of Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump (Weiland, William) (Entered: 07/24/2018)
123 Joint MOTION for Extension of Time to July 30, 2018 to take Deposition by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 07/25/2018)
124 Judge Mark L. Wolf: ELECTRONIC ORDER entered ALLOWING 123 Motion for Extension of Time to JULY 30, 2018 to take deposition. (Franklin, Yvonne) (Entered: 07/26/2018)
125 DECLARATION re 19 Afﬁdavit by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 07/27/2018)
126 Assented to MOTION to Seal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 08/01/2018)
127 MEMORANDUM in Support re 46 MOTION to Certify Class , 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief (Supplemental Brief) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 08/01/2018)
128 DECLARATION re 127 Memorandum in Support of Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Provazza, Stephen) (Entered: 08/01/2018)
130 ELECTRONIC NOTICE Setting Hearing on Motion(s). Motion Hearing set for 8/15/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. Hearing shall continue on 8/20/2018 and 8/21/2018, if necessary. See 7/17/2018 Order allowing 118 for reference. (Bono, Christine) (Entered: 08/06/2018)
131 NOTICE by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Notice of Subsequent Authority) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Prussia, Kevin) (Entered: 08/06/2018)
133 Assented to MOTION to Seal Supplemental Memorandum in Further Support of Respondents' Opposition to Petitioners' Motions for Preliminary Injunctive Relief and Class Certiﬁcation by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 08/07/2018)

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135 Judge Mark L. Wolf: "It is hereby ORDERED that the hearing previously scheduled to begin on August 15, 2018 and continue on August 20 and 21, 2018, shall begin instead on August 20, 2018, at 10:30 a.m., and continue from day to day until concluded. Interim Field Ofﬁce Director Rebecca Adducci shall be available to testify if necessary." ORDER entered. (Bono, Christine) (Entered: 08/10/2018)
136 ELECTRONIC NOTICE Resetting Hearing on Motion (s). Motion Hearing set for 8/20/2018 10:30 AM in Courtroom 10 before Judge Mark L. Wolf. Motion Hearing set for 8/21/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf, if necessary. See 7/17/2018 Order allowing 118 for reference. (Bono, Christine) (Entered: 08/10/2018)
137 NOTICE by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Petitioner's Notice of Filing) (Attachments: # 1 Exhibit 1 - Petitioner's Supplemental Memorandum, # 2 Exhibit 2 - Provezza Declaration, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J)(Prussia, Kevin) (Attachment 4 replaced on 8/14/2018)with corrected version provided by ﬁler. (Franklin, Yvonne). (Entered: 08/13/2018)
138 REDACTION to 133 Assented to MOTION to Seal Supplemental Memorandum in Further Support of Respondents' Opposition to Petitioners' Motions for Preliminary Injunctive Relief and Class Certiﬁcation byKirstjen M NIELSEN. (Attachments: # 1 Exhibit A-K)(Larakers, Mary) (Entered: 08/14/2018)
139 NOTICE by Kirstjen M NIELSEN (Larakers, Mary) (Entered: 08/16/2018)
140 NOTICE by Kirstjen M NIELSEN re 139 Notice (Other) Corrected (Larakers, Mary) (Entered: 08/17/2018)
141 Judge Mark L. Wolf: "It is hereby ORDERED that both Interim Field Ofﬁce Director Rebecca Adducci and incoming Acting Field Ofﬁce Director Todd Lyons shall be available to testify, if necessary, at the hearing beginning on August 20, 2018, at 10:30 a.m. and continuing from day to day if necessary." ELECTRONIC ORDER entered. re 140 Notice (Other) ﬁled by Kirstjen M NIELSEN (Bono, Christine) (Entered: 08/17/2018)
142 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 8/20/2018 re 22 First MOTION to Dismiss ﬁled by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, 46 MOTION to Certify Class ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza, 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Luis Gordillo, Carmen Sanchez, Amy Chen, Lucimar De Souza, Lilian Pahola Calderon Jimenez. Hearing shall resume at 10:00 AM on Tuesday, 8/21/2018. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Piemonte, Larakers, Weiland, Lafaille, Cox, Segal, Prussia, Provazza, Sewall, Gillespie) (Bono, Christine) (Entered: 08/20/2018)
143 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 8/21/2018 re 22 First MOTION to Dismiss ﬁled by Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, 46 MOTION to Certify Class ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza, 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera

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Rivas, Oscar Rivas, Luis Gordillo, Carmen Sanchez, Amy Chen, Lucimar De Souza, Lilian Pahola Calderon Jimenez. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Weiland, Piemonte, Prussia, Lafaille, Provazza, Gillespie, Sewall, Segal, Cox) (Bono, Christine) (Entered: 08/22/2018)
144 ELECTRONIC NOTICE Resetting Hearing on Motion: Motion Hearing set for 8/23/2018 11:00 AM in Courtroom 10 before Judge Mark L. Wolf. Hearing continued from 8/21/2018. (Bono, Christine) (Entered: 08/22/2018)
145 Notice of Supplemental Authorities re 44 MOTION to Dismiss (Attachments: # 1 Centro Presente v. DHS, # 2 Ramos v. Nielsen)(Lafaille, Adriana) (Entered: 08/22/2018)
146 ELECTRONIC NOTICE Resetting Hearing on Motion *** AS TO TIME ONLY *** 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief, 46 MOTION to Certify Class , 22 First MOTION to Dismiss : Motion Hearing set for 8/23/2018 01:30 PM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) Modiﬁed to reﬂect correct date (Bono, Christine). (Entered: 08/22/2018)
147 ELECTRONIC NOTICE (CORRECTED) Resetting Hearing on Motion *** AS TO TIME ONLY *** 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief, 46 MOTION to Certify Class , 22 First MOTION to Dismiss : Motion Hearing set for 8/23/2018 01:30 PM in Courtroom 10 before Judge Mark L. Wolf. (Previous docket entry 146 reﬂected time change for incorrect date and has been modiﬁed to reﬂect correct date and time.) (Bono, Christine) (Entered: 08/22/2018)
148 EXHIBIT Hearing August 21, 2018 by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 08/22/2018)
149 EXHIBITS 1-3. Hearing August 21, 2018. (Bono, Christine) (Entered: 08/23/2018)
150 ELECTRONIC NOTICE Resetting Hearing *** AS TO TIME ONLY *** on Motion 49 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief, 46 MOTION to Certify Class , 22 First MOTION to Dismiss : Motion Hearing set for 8/23/2018 02:30 PM in Courtroom 10 before Judge Mark L. Wolf. This is a time change only. (Bono, Christine) (Entered: 08/23/2018)
151 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Hearing held on 8/24/2018 re 44 oral decision on Respondents' MOTION to Dismiss ﬁled by Kirstjen M NIELSEN. Motion denied. Lobby Conference conducted with parties following Court proceedings. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Weiland, Sady, Prussia, Lafaille, Segal, Sewall, Cox, Provazza, Gillespie) (Bono, Christine) (Entered: 08/24/2018)
152 Judge Mark L. Wolf: ORDER entered denying 40 Motion to Dismiss; denying 44 Motion to Dismiss; ﬁnding as moot 22 Motion to Dismiss (Bono, Christine) (Entered: 08/27/2018)
153 Transcript of Motion Hearing held on August 20, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 9/17/2018. Redacted Transcript Deadline set for 9/27/2018. Release of Transcript Restriction set for 11/26/2018. (Scalfani, Deborah) (Entered: 08/27/2018)
154 Transcript of Motion Hearing held on August 21, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact

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Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 9/17/2018. Redacted Transcript Deadline set for 9/27/2018. Release of Transcript Restriction set for 11/26/2018. (Scalfani, Deborah) (Entered: 08/27/2018)
155 Transcript of Motion Hearing/Ruling held on August 23, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 9/17/2018. Redacted Transcript Deadline set for 9/27/2018. Release of Transcript Restriction set for 11/26/2018. (Scalfani, Deborah) (Entered: 08/27/2018)
156 SEALED Transcript of Sealed Lobby Conference held on August 23, 2018, before Judge Mark L. Wolf. Court Reporter Name: Kelly Mortellite (Scalfani, Deborah) (Entered: 08/27/2018)
157 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 08/27/2018)
158 STATUS REPORT by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 09/12/2018)
159 Judge Mark L. Wolf: "...For the foregoing reasons, this court has jurisdiction, petitioners state plausible claims on which relief can be granted, and their detention claims are not moot. Therefore, respondents' Motion to Dismiss the First Amended Complaint (Docket No. 44) is hereby DENIED." ORDER entered. MEMORANDUM AND ORDER(Bono, Christine) (Entered: 09/21/2018)
160 Judge Mark L. Wolf: "...It is, therefore, hereby ORDERED that: 1. The parties shall confer and, by October 3, 2018, jointly if possible but separately if necessary: (a) Submit a Joint Report which updates their responses to the August 21, 2018 Order; (b) Address the additional issues identiﬁed in this Memorandum; (c) Propose a schedule to complete, by November 7, 2018, brieﬁng of the issue of when a petitioner's right to have ICE consider the pursuit of a provisional waiver before ordering removal vests; (d) Propose a schedule for other matters, including possible discovery, brieﬁng of petitioners' motion for class certiﬁcation, and, if necessary, their motion for preliminary injunction; (e) Address any other issues the parties request be discussed at the scheduling conference. 2. A scheduling conference shall be held on October 9, 2018, at 11:00 a.m." ORDER entered. MEMORANDUM AND ORDER. (Bono, Christine) (Entered: 09/21/2018)
161 ELECTRONIC NOTICE of Scheduling Conference. Scheduling Conference set for 10/9/2018 11:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 09/21/2018)
162 STATUS REPORT by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 10/03/2018)
163 DECLARATION of Adriana Lafaille with regard to Local Rule 16.1(d)(3) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Lafaille, Adriana) (Entered: 10/09/2018)
164 CERTIFICATION pursuant to Local Rule 16.1 . (Larakers, Mary) (Entered: 10/09/2018)
165 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Scheduling Conference held on 10/9/2018. Brieﬁng schedule discussed. Lobby Conference is held.

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Parties shall confer and report by 12:00 noon on Monday, 10/15/2018. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Piemonte, Lafaille, Cox, McCullough, Segal, Gillespie, Sewall, Provazza) (Bono, Christine) (Entered: 10/09/2018)
166 Transcript of Motion Hearing held on October 9, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 11/1/2018. Redacted Transcript Deadline set for 11/13/2018. Release of Transcript Restriction set for 1/9/2019. (Scalfani, Deborah) (Entered: 10/11/2018)
167 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 10/11/2018)
168 Judge Mark L. Wolf: ORDER entered. (Bono, Christine) (Entered: 10/11/2018)
169 ELECTRONIC NOTICE Setting Hearing on Motion Motion Hearing set for 12/6/2018 09:00 AM in Courtroom 10 before Judge Mark L. Wolf. If necessary, Motion Hearing set for 12/7/2018 09:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 10/11/2018)
170 SEALED Transcript of SEALED Lobby Conference held on October 9, 2018, before Judge Mark L. Wolf. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com (Scalfani, Deborah) (Entered: 10/12/2018)
171 DECLARATION (Supplemental) of Adriana Lafaille with regard to Local Rule 16.1(d)(3) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Lafaille, Adriana) (Entered: 10/12/2018)
172 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 10/15/2018)
173 ANSWER to 27 Amended Complaint, by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 10/16/2018)
174 Judge Mark L. Wolf: "It is hereby ORDERED that: 1. The brieﬁng schedule proposed in the parties' Joint Report (Docket No. 172) is ADOPTED. 2. The parties shall continue to confer and, by November 7, 2018, report whether they have agreed to settle this case or to jointly request that it be stayed." ORDER entered. (Bono, Christine) (Entered: 10/18/2018)
175 MEMORANDUM in Support re 46 MOTION to Certify Class (Updated) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit 1 - Provazza Declaration (Redacted), # 2 Exhibit 2 - Corbaci Afﬁdavit)(Prussia, Kevin) (Entered: 10/24/2018)
176 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 11/07/2018)
177 Joint MOTION for Leave to File Excess Pages by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 11/07/2018)
178 Opposition re 46 MOTION to Certify Class Updated ﬁled by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larakers, Mary) (Entered: 11/07/2018)

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179 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 177 Motion for Leave to File Excess Pages. (Bono, Christine) (Entered: 11/08/2018)
180 Judge Mark L. Wolf: "The parties shall continue to confer and, by November 19, 2018, report further concerning whether they have agreed to settle or stay this case." ENDORSED ORDER entered. re 176 Status Report ﬁled by Kirstjen M NIELSEN (Bono, Christine) (Entered: 11/08/2018)
181 Assented to MOTION for Extension of Time to November 15, 2018 to File Response/Reply as to 46 MOTION to Certify Class , to Extend Time to File Respondents' Sur-Reply to November 21, 2018, and Continue the Hearing on Pending Motions until December 7, 2018 by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 11/13/2018)
182 Judge Mark L. Wolf: ELECTRONIC ORDER entered.

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181 Petitioner's Assented-To Motion for Extension of Time to File a Reply Brief to 46 Motion for Class Certiﬁcation until 11/15/2018 and ﬁle a Sur-Reply until 11/21/2018 is ALLOWED. The request to re-schedule the beginning of the hearing to 12/7/2018 as opposed to 12/6/2018 is DENIED WITHOUT PREJUDICE. (Montes, Mariliz) Modiﬁed on 11/15/2018 (Montes, Mariliz). NEF Regenerated. (Entered: 11/14/2018)
183 Reset Deadlines as to 46 MOTION to Certify Class . Replies due by 11/15/2018; Surreplies due by 11/21/2018. (Montes, Mariliz) (Entered: 11/14/2018)
184 REPLY to Response to 46 MOTION to Certify Class ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 11/15/2018)
185 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 11/19/2018)
186 Judge Mark L. Wolf: "It is hereby ORDERED that the parties shall continue to confer and report on the status of their discussions by December 3, 2018." ENDORSED ORDER entered. re 185 Status Report ﬁled by Kirstjen M NIELSEN (Bono, Christine) (Entered: 11/21/2018)
187 SUR-REPLY to Motion re 46 MOTION to Certify Class ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 11/21/2018)
188 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 12/03/2018)
189 NOTICE by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas (Petitioners' Notice of Subsequent Authority) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Prussia, Kevin) (Entered: 12/04/2018)
190 ELECTRONIC NOTICE Resetting *** AS TO TIME ONLY *** Hearing on Motion Motion Hearing set for 12/6/2018 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 12/05/2018)
191 ELECTRONIC NOTICE Setting Continued Hearing on Motion, if necessary. See 169 . Motion Hearing set for 12/7/2018 09:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 12/06/2018)
192 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 12/6/2018 re 46 MOTION to Certify Class ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis

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Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. Parties shall order copy of transcript. Further brieﬁng due 1/11/2019; replies due 1/25/2019. Hearing tentatively set for 2/14-2/15/2019. Parties shall confer and report again by 12/20/2018. Separate Order shall issue. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.) (Attorneys present: Larakers, Piemonte, Lafaille, Provazza, Segal, Cox, Gillespie, Sewall, McCullough) (Bono, Christine) (Entered: 12/06/2018)
193 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER.(Bono, Christine) (Entered: 12/07/2018)
194 ELECTRONIC NOTICE Setting Hearing on Motion. Motion Hearing set for 2/14/2019 09:30 AM in Courtroom 10 before Judge Mark L. Wolf. If necessary, motion hearing shall continue on 2/15/2019 09:30 AM in Courtroom 10 before Judge Mark L. Wolf. See 193 . (Bono, Christine) (Entered: 12/11/2018)
195 Transcript of Hearing held on December 6, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 1/4/2019. Redacted Transcript Deadline set for 1/14/2019. Release of Transcript Restriction set for 3/14/2019. (Scalfani, Deborah) (Entered: 12/14/2018)
196 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 12/14/2018)
197 Transcript of Lobby Conference held on December 6, 2018, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 1/8/2019. Redacted Transcript Deadline set for 1/18/2019. Release of Transcript Restriction set for 3/18/2019. (Scalfani, Deborah) (Entered: 12/18/2018)
198 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 12/18/2018)
199 NOTICE of Appearance by Shirley X. Cantin on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Cantin, Shirley) (Entered: 12/20/2018)
200 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 12/20/2018)
201 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Petitioner's request for a revised brieﬁng schedule is ALLOWED, the proposed revised schedule is ADOPTED, and the February 14-15, 2019 hearing is CANCELLED. The hearing will be rescheduled after brieﬁng is complete. 2. The parties shall continue to confer and, by January 18, 2019, report whether they have reached an agreement to settle this case or to request jointly that it be stayed." ORDER entered. (Bono, Christine) (Entered: 12/26/2018)
202 ELECTRONIC NOTICE Canceling 2/14-2/15/2019 Motion Hearing. (Bono, Christine) (Entered: 12/26/2018)

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203 Judge Mark L. Wolf: ORDER entered ﬁnding as moot 37 Motion for Clariﬁcation ; ﬁnding as moot 48 Motion for Leave to File Excess Pages ; granting 126 Motion to Seal; granting 133 Motion to Seal. (Bono, Christine) (Entered: 01/07/2019)

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204 MOTION to Stay Deadlines in Light of Lapse of Appropriations by Kirstjen M NIELSEN. (Attachments: # 1 Text of Proposed Order)(Larakers, Mary) (Entered: 01/10/2019)

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205 RESPONSE to Motion re 204 MOTION to Stay Deadlines in Light of Lapse of Appropriations ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Prussia, Kevin) (Entered: 01/10/2019)

01/11/2019

206 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Counsel for the parties shall confer and, by January 14, 2019, report whether they have reached agreement on conditions to be imposed on the requested stay and, if not, their respective positions on the three conditions the Petitioners propose. If jointly requested, the court will extend this deadline. 2. Respondents shall continue to provide to Petitioners the monthly report(s) on which the agreed-upon stay of Petitioners' Motion for Temporary Restraining Order and Preliminary Injunctive Relief (Docket No. 49) has been conditioned." ORDER entered. (Bono, Christine) (Entered: 01/11/2019)

01/14/2019 207 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 01/14/2019)

01/15/2019 208 Judge Mark L. Wolf: ENDORSED ORDER entered re 207 Status Report ﬁled by Kirstjen M NIELSEN. (Bono, Christine) (Entered: 01/15/2019)

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209 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cantin, Shirley) (Entered: 01/15/2019)

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210 DECLARATION re 209 Status Report by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A)(Provazza, Stephen) (Entered: 01/15/2019)

01/17/2019

211 Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. Respondents' Motion for Stay in Light of Lapse of Appropriations ( Docket No. 204) is ALLOWED to the extent that further litigation of this case is STAYED until February 5, 2019. Therefore, the parties are excused from making the submissions on January 18 and 25, 2019 previously ordered. 2. Respondents shall continue to provide petitioners the monthly reports they have been providing by agreement. 3. The parties shall continue to confer and attempt to agree on the conditions, if any, that should be imposed if the stay is extended beyond February 5, 2019. 4. Any motion to extend the stay shall be ﬁled by January 29, 2019, and state the conditions, if any, the respondents propose concerning the stay. Petitioners shall, by January 31, 2019, respond to any such motion and state the conditions for any further stay they propose. 5. If the government shutdown ends before February 5, 2019, the parties shall confer and promptly ﬁle a motion to lift the stay with a proposed schedule for making the submissions delayed because of the stay." ORDER entered granting 204 Motion to Stay (Bono, Christine) (Entered: 01/17/2019)

01/29/2019 212 Joint MOTION Lift Stay by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 01/29/2019)

02/01/2019

213 Judge Mark L. Wolf: "This motion is hereby ALLOWED, except with regard to the proposed hearing dates, which will be determined after the motions are fully briefed and/or the court determines whether a criminal trial scheduled to begin on April 22, 2019

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will commence then." ENDORSED ORDER entered granting 212 Motion. (Bono, Christine) (Entered: 02/01/2019)

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214 NOTICE of Appearance by Matthew W. Costello on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Costello, Matthew) (Entered: 02/14/2019)

02/14/2019

215 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 02/14/2019)

02/15/2019

216 Judge Mark L. Wolf: "The parties shall, by March 7, 2019, confer and update this Report." ENDORSED ORDER entered. re 215 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza (Bono, Christine) (Entered: 02/15/2019)

02/21/2019

217 Joint MOTION for Leave to File Excess Pages by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 02/21/2019)

02/21/2019

218 Supplemental MEMORANDUM in Support re 46 MOTION to Certify Class ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 02/21/2019)

02/22/2019

219 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 217 Motion for Leave to File Excess Pages ; If counsel has not already done so - counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Bono, Christine) (Entered: 02/22/2019)

03/07/2019

220 MEMORANDUM in Support re 44 MOTION to Dismiss and re 99 Respondents' Opposition to Petitioners' Motion for Class Certiﬁcation ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 03/07/2019)

03/07/2019

221 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 03/07/2019)

03/21/2019

222 Assented to MOTION for Extension of Time to File (1) Petitioners' Supplemental Reply Memorandum in Support of the Motion for Class Certiﬁcation and to File (2) Respondents' Supplemental Sur-Reply in Opposition to the Motion for Class Certiﬁcation by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 03/21/2019)

03/21/2019 223 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 222 Motion for Extension of Time (Bono, Christine) (Entered: 03/21/2019)

03/22/2019

224 Supplemental REPLY to Response to 46 MOTION to Certify Class ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 03/22/2019)

03/29/2019 225 Second MEMORANDUM in Support re 44 MOTION to Dismiss and re 99 Respondents'

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Opposition to Petitioners' Motion for Class Certiﬁcation ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 03/29/2019)
226 Notice of Supplemental Authorities re 46 MOTION to Certify Class (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 04/15/2019)
227 Judge Mark L. Wolf: ORDER entered. (Bono, Christine) (Entered: 04/17/2019)
228 ELECTRONIC NOTICE of Hearing. See Order, 227 Hearing set for 5/2/2019 09:30 AM in Courtroom 10 before Judge Mark L. Wolf. Hearing set for 5/3/2019 09:30 AM in Courtroom 10 before Judge Mark L. Wolf (if necessary). (Bono, Christine) (Entered: 04/17/2019)
229 MOTION for Discovery (Motion to Open Discovery for the Named Petitioners) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 04/18/2019)
230 MEMORANDUM in Support re 229 MOTION for Discovery (Motion to Open Discovery for the Named Petitioners) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 04/18/2019)
231 DECLARATION re 229 MOTION for Discovery (Motion to Open Discovery for the Named Petitioners) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cantin, Shirley) (Entered: 04/18/2019)
232 Judge Mark L. Wolf: ORDER entered. re 229 MOTION for Discovery (Motion to Open Discovery for the Named Petitioners). It is hereby ordered that defendants shall, by April 29, 2019, respond to this motion. It may be addressed at the hearing that will begin on May 2, 2019. (Garvin, Brendan) (Entered: 04/19/2019)
233 Joint MOTION to Continue Hearing to May 3, 2019 by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 04/25/2019)
234 Joint MOTION to Continue Hearing to May 22-24, 2019 by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 04/25/2019)
235 Judge Mark L. Wolf: ORDER entered:
The 234 Joint Motion to Continue Hearing is DENIED. If, by April 26, 2019, plaintiffs' counsel ﬁle an afﬁdavit demonstrating good cause to begin the hearing on May 3, 2019 and continue it, if necessary, on May 6, 2019, the court may do so. (Montes, Mariliz) (Entered: 04/26/2019)
236 RESPONSE TO COURT ORDER by Kirstjen M NIELSEN re 227 Order . (Larakers, Mary) (Entered: 04/26/2019)
237 RESPONSE TO COURT ORDER by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez re 235 Order on Motion to Continue, . (Cantin, Shirley) (Entered: 04/26/2019)

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238 Judge Mark L. Wolf: ORDER entered. (Bono, Christine) (Entered: 04/29/2019)
239 ELECTRONIC NOTICE OF RESCHEDULING. Hearing set for 5/3/2019 09:30 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 04/29/2019)

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240 Opposition re 229 MOTION for Discovery (Motion to Open Discovery for the Named Petitioners) ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Weiland, William) (Entered: 04/30/2019)
241 NOTICE by Kirstjen M NIELSEN of Party Substitution (Attachments: # 1 Exhibit A) (Larakers, Mary) (Entered: 05/02/2019)

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242 ELECTRONIC NOTICE OF RESCHEDULING -- AS TO TIME ONLY -- Hearing set for 5/3/2019 10:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 05/02/2019)
243 Notice of Supplemental Authorities re 46 MOTION to Certify Class (Attachments: # 1 Exhibit A)(Prussia, Kevin) (Entered: 05/02/2019)

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244 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Hearing held on 5/3/2019. Parties shall confer and report by 5/8/2019. Parties shall reserve 5/16/19 for further hearing. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Larakers, Weiland, Kanwit, Lafaille, Cantin, McCullough, Gillespie, Provazza, Costello) (Bono, Christine) (Entered: 05/06/2019)
245 Judge Mark L. Wolf: "For the reasons stated in the lobby following court on May 3, 2019, it is hereby ORDERED that: 1. The parties shall, by May 8, 2019, confer and report on their respective positions concerning discovery in view of the rulings rendered orally on May 3, 2019. The parties shall also identify the motions and parts of motions that remain to be decided, and propose a schedule for any requested brieﬁng. 2. The hearing on the pending motions will continue on May 16, 2019, at 9:30 a.m." ORDER entered. (Bono, Christine) (Entered: 05/06/2019)
246 ELECTRONIC NOTICE Setting Hearing on Pending Motions. See Order, 245 . Motion Hearing set for 5/16/2019 09:30 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 05/08/2019)
247 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cantin, Shirley) (Entered: 05/08/2019)
248 Transcript of Hearing held on May 3, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/3/2019. Redacted Transcript Deadline set for 6/13/2019. Release of Transcript Restriction set for 8/12/2019. (Scalfani, Deborah) (Entered: 05/13/2019)

05/13/2019

249 SEAlED Transcript of Lobby Conference held on May 3, 2019, before Judge Mark L. Wolf. Kelly Mortellite at mortellite@gmail.com (Scalfani, Deborah) (Entered: 05/13/2019)

05/13/2019

250 ELECTRONIC NOTICE Resetting Hearing on Motion **AS TO TIME ONLY** Motion Hearing set for 5/16/2019 02:15 PM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 05/13/2019)

05/15/2019 251 Judge Mark L. Wolf: "At the May 16, 2019 hearing, the court expects to: 1. Decide orally the motion to dismiss concerning Petitioners' Equal Protection and Due Process-vesting

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claims. 2. Reserve judgment on the contention that citizen spouses have a liberty interest in remaining in the United States with their alien spouses and, therefore, a right to Due Process before their alien spouses are removed. 3. Possibly hear argument on respondents' contention concerning subject matter jurisdiction over the claims of individuals ordered removed after August 29, 2016. 4. Hear argument on any discovery issues. 5. Address scheduling." ORDER entered. (Bono, Christine) (Entered: 05/15/2019)
252 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 5/16/2019 re 44 MOTION to Dismiss ﬁled by Kirstjen M NIELSEN, 46 MOTION to Certify Class ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza, 40 Second MOTION to Dismiss ﬁled by Kirstjen M NIELSEN. Separate Order to follow. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Weiland, Larakers, Piemonte, Lafaille, Cantin, Prussia, Gillespie, Provazza, Costello, Segal) (Bono, Christine) (Entered: 05/17/2019)
253 Judge Mark L. Wolf: ORDER entered. (Bono, Christine) (Entered: 05/17/2019)
254 Transcript of Motion Hearing held on May 16, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 6/12/2019. Redacted Transcript Deadline set for 6/24/2019. Release of Transcript Restriction set for 8/20/2019. (Scalfani, Deborah) (Entered: 05/22/2019)
255 SEALED Transcript of Lobby Conference held on May 16, 2019, before Judge Mark L. Wolf. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com (Scalfani, Deborah) (Entered: 05/22/2019)
256 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 05/22/2019)
257 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 05/28/2019)
258 Judge Mark L. Wolf: ENDORSED ORDER entered. re 257 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. The request to report by May 31, 2019 is hereby allowed. The parties may, however, request additional time to confer if it might be helpful. (Loret, Magdalena) (Entered: 05/31/2019)
259 Joint MOTION for Extension of Time to 06/05/2019 to File Joint Report by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 05/31/2019)
260 STATUS REPORT by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Weiland, William) (Entered: 06/05/2019)
261 STATUS REPORT (Petitioners' Report) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 06/05/2019)

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262 DECLARATION re 261 Status Report by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A - Email Chain) (Provazza, Stephen) (Entered: 06/05/2019)
263 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 259 Motion for Extension of Time to File (Loret, Magdalena) (Entered: 06/06/2019)
264 STATUS REPORT SUPPLEMENT by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS. (Weiland, William) (Entered: 06/07/2019)
265 STATUS REPORT (Supplement) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 06/07/2019)
266 DECLARATION re 265 Status Report by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A)(McCullough, Colleen) (Entered: 06/07/2019)
267 Assented to MOTION to Seal Exhibit A by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 06/17/2019)
268 Emergency MOTION for Temporary Restraining Order , Emergency MOTION to Stay Removal of Class Member ( Responses due by 7/1/2019) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Declaration of Shirely X. Li Cantin, # 2 Exhibit A (Redacted))(Cantin, Shirley) (Additional attachment(s) added on 6/18/2019: # 3 Exhibit A Sealed) (Montes, Mariliz). Modiﬁed on 6/18/2019 to detach memorandum in support and re-docket as a new entry (See Doc. 275) (Montes, Mariliz). (Entered: 06/17/2019)
269 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting (267) Motion to Seal in case 1:18-cv-10225-MLW Associated Cases: 1:18-cv-10225-MLW, 1:18-cv-11596-MLW, 1:19-cv-10258-MLW, 1:19-cv-10400-MLW, 1:19-cv-11296-MLW(Loret, Magdalena) (Entered: 06/17/2019)
270 Judge Mark L. Wolf: ORDER entered. Associated Cases: 1:18-cv-10225-MLW, 1:18-cv11596-MLW, 1:19-cv-10258-MLW, 1:19-cv-10400-MLW, 1:19-cv-11296-MLW(Loret, Magdalena) (Entered: 06/17/2019)
271 Opposition re 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/17/2019)
272 EXHIBIT re 271 Opposition to Motion Declaration Marcos Charles by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/17/2019)
273 NOTICE by Kirstjen M NIELSEN re 270 Order Unavailability of Field Ofﬁce Director (Larakers, Mary) (Entered: 06/17/2019)
275 MEMORANDUM in Support of 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Thomas Homan, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Montes, Mariliz) (Entered: 06/18/2019)

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274 ELECTRONIC NOTICE Setting Hearing on Motion 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member : Motion Hearing set for 6/18/2019 11:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Bono, Christine) (Entered: 06/18/2019)
276 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Hearing re: Petitioners' Emergency Motion for Temporary Restraining Order and Stay of Removal of Class Member Mr. V (Docket No. 268) held on 6/18/2019. Court hears arguments. Motion taken Under Advisement. Parties to submit Afﬁdavits by 6:00 p.m. on 6/19/19. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Lafaille, Prussia, Cantin, Provazza, Costello, Segal, McCullough, Larakers, Piemonte) (Loret, Magdalena) (Entered: 06/19/2019)
277 Transcript of Motion Hearing held on June 18, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 7/10/2019. Redacted Transcript Deadline set for 7/22/2019. Release of Transcript Restriction set for 9/17/2019. (Scalfani, Deborah) (Entered: 06/19/2019)
278 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 06/19/2019)
279 NOTICE by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Petitioners' Notice and Declaration of Mr. V) (Attachments: # 1 Exhibit 1 - Declaration)(Cantin, Shirley) (Entered: 06/19/2019)
280 Assented to MOTION to Seal Document 279 Notice (Other), by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 06/19/2019)
281 Supplemental Opposition re 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member ﬁled by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 06/19/2019)
283 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 280 Motion to Seal Document (Loret, Magdalena) (Entered: 06/20/2019)
282 Judge Mark L. Wolf: ORDER entered re 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza (Loret, Magdalena) (Entered: 06/20/2019)
284 RESPONSE TO COURT ORDER by Kirstjen M NIELSEN re 282 Order, Declaration Marcos Charles. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 06/20/2019)
286 Assented to MOTION to Withdraw 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 06/20/2019)

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287 Judge Mark L. Wolf: ORDER entered granting 286 Motion to Withdraw 268 Emergency MOTION for Temporary Restraining Order Emergency MOTION to Stay Removal of Class Member. "Therefore, the prohibition on 'Mr. V's' removal in the June 17, 2019 Order (Docket No. 270) is VACATED and he may be removed." (Loret, Magdalena) (Entered: 06/21/2019)
288 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 06/21/2019)
289 STATUS REPORT in Response to June 21, 2019 Order by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 06/25/2019)
290 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A)(Cantin, Shirley) (Entered: 06/25/2019)
291 DECLARATION re 290 Status Report by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit 1)(McCullough, Colleen) (Entered: 06/25/2019)
292 Assented to MOTION to Seal Document 291 Declaration, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Additional attachment(s) added on 6/26/2019: # 1 Exhibit 1 Filed under seal) (Montes, Mariliz). (Entered: 06/25/2019)
293 ELECTRONIC NOTICE of Hearing re: Docket No. 288. Hearing set for 6/27/2019 02:00 PM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 06/26/2019)
294 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Evidentiary Hearing held on 6/27/2019. Marcos Charles, Acting Field Ofﬁce Director present and answers Court's questions. Ex. 1: Redacted ICE Chart [Docket No. 291-1], admitted. Parties shall by 7/10/19, ﬁle joint statement memorializing the Court's 6/27/19 oral orders concerning notice to class members and the information concerning class members respondents must provide to class counsel. Respondents may ﬁle motion requesting relief re: notice issue by 7/19/19. Petitioners shall ﬁle their response by 8/2/19. Any reply shall be ﬁled by 8/9/19. Parties to order transcript on expedited basis. Order to follow. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Lafaille, Cantin, Segal, McCullough, Larakers, Piemonte) (Loret, Magdalena) (Entered: 06/28/2019)
296 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 292 Motion to Seal Document. (Loret, Magdalena) (Entered: 06/28/2019)
295 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 06/28/2019)
297 Transcript of Motion Hearing held on June 27, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 7/22/2019. Redacted Transcript Deadline set for 8/1/2019. Release of Transcript Restriction set for 9/30/2019. (Scalfani, Deborah) (Entered: 07/01/2019)
298 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at

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07/10/2019 300 RESPONSE TO COURT ORDER by Kirstjen M NIELSEN re 295 Order . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Larakers, Mary) (Entered: 07/10/2019)

07/10/2019 301 RESPONSE TO COURT ORDER by Kirstjen M NIELSEN re 295 Order Proposed Order. (Larakers, Mary) (Entered: 07/10/2019)

07/19/2019 302 MOTION for Reconsideration re 295 Order by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 07/19/2019)

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303 Assented to MOTION to Seal Exhibits by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 07/25/2019)

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304 MOTION for Order to Show Cause by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Text of Proposed Order) (Prussia, Kevin) (Entered: 07/25/2019)

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305 MEMORANDUM in Support re 304 MOTION for Order to Show Cause (Public Version) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 07/25/2019)

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306 DECLARATION re 305 Memorandum in Support of Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Costello, Matthew) (Additional attachment(s) added on 8/29/2019: # 20 Exhibit A-G-unredacted version) (Montes, Mariliz). (Entered: 07/25/2019)

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308 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 303 Motion to Seal temporarily, without prejudice to possible unsealing in whole or in part. Petitioners shall, by July 30, 2019 at 10:00 a.m., ﬁle another motion to seal with more limited redactions, and an afﬁdavit and memorandum explaining why such redactions are justiﬁed. See F.T.C. v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 (1st Cir. 1987); United States v. Kravetz, 706 F.3d 47, 52, 54 (1st Cir. 2013); Docket No. 223, Ark. Teacher Ret. Sys. v. State Street, C.A. No. 11-10230 (D. Mass. May 16, 2018) (Wolf, J.). (Loret, Magdalena) (Entered: 07/26/2019)

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309 Judge Mark L. Wolf: ELECTRONIC ORDER entered re 301 Response to Court Order ﬁled by Kirstjen M NIELSEN. Parties shall, by 7/31/19, jointly if possible, but separately if necessary, ﬁle the proposed Class Notice. (Loret, Magdalena) (Entered: 07/29/2019)

07/29/2019 310 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Amended Order, # 2 Alien List redacted).(Loret, Magdalena) (Entered: 07/29/2019)

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311 Judge Mark L. Wolf: ORDER entered. It is hereby ordered that, if necessary, a hearing on Petitioners' Motion for Order to Show Cause (Docket No. 304) and other pending matters shall be held on 8/2/19 at 10:30 a.m.(Loret, Magdalena) (Entered: 07/30/2019)

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312 ELECTRONIC NOTICE Setting Hearing on Motion 304 MOTION for Order to Show Cause and other pending matters : Motion Hearing set for 8/2/2019 10:30 AM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 07/30/2019)

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313 Assented to MOTION to Seal (Renewed) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 07/30/2019)
314 MEMORANDUM in Support re 313 Assented to MOTION to Seal (Renewed) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 07/30/2019)
315 DECLARATION re 313 Assented to MOTION to Seal (Renewed) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Costello, Matthew) (Entered: 07/30/2019)
316 Joint MOTION for Protective Order by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A: Proposed Certiﬁcation)(Weiland, William) (Entered: 07/30/2019)
317 Assented to MOTION to Seal Response to Motion for Order to Show Cause by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 07/30/2019)
318 RESPONSE to Motion re 304 MOTION for Order to Show Cause ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Larakers, Mary) (Entered: 07/30/2019)
319 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cantin, Shirley) (Entered: 07/30/2019)
320 First MOTION for Extension of Time to August 14, 2019 to Complete Discovery (unopposed) by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Weiland, William) (Entered: 07/30/2019)
321 Judge Mark L. Wolf: "ALLOWED. The submission shall be made by 11:00 a.m. on July 31, 2019. In the future, any motion to seal that does not include the materials to be sealed shall be ﬁled before the deadline for the submission." ENDORSED ORDER entered granting 317 Motion to Seal (Bono, Christine) (Entered: 07/31/2019)
322 Judge Mark L. Wolf: ORDER entered re 304 MOTION for Order to Show Cause ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. Hearing on petitioners' Motion for Order to Show Cause and other pending matters shall be held on 8/2/19 at 1:30 p.m., rather than 10:30 a.m., as previously indicated. (Loret, Magdalena) (Entered: 07/31/2019)
323 NOTICE Resetting a Hearing. Hearing on petitioners' Motion for Order to Show Cause and other pending matters shall be held on 8/2/19 at 1:30 p.m., rather than 10:30 a.m., as previously indicated, Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 07/31/2019)

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325 NOTICE by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez re 309 Order Joint Proposed Class Notice (Attachments: # 1 Joint Proposed Class Notice)(Prussia, Kevin) (Entered: 07/31/2019)
326 Opposition re 302 MOTION for Reconsideration re 295 Order ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 08/01/2019)
327 DECLARATION re 304 MOTION for Order to Show Cause by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Redacted Declaration, # 2 Exhibit 1)(Cantin, Shirley) (Additional attachment(s) added on 8/2/2019: # 3 Unredacted version of declaration, # 4 Exhibit 1 ﬁled under seal) (Montes, Mariliz). (Entered: 08/02/2019)
328 Judge Mark L. Wolf: ORDER entered re 327 Declaration, ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. An unredacted version of this submission shall be ﬁled forthwith and brought to the 8/2/19 hearing as well. (Loret, Magdalena) (Entered: 08/02/2019)
333 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 8/2/2019 re 304 MOTION for Order to Show Cause ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. Marcos Charles and Todd Lyons present. By 6:00 p.m. on 8/6/19, plaintiffs to ﬁle statement that there is no objection to an unredacted version of Declaration being unsealed or ﬁle a a memorandum indicating that the sealing is justiﬁed. Respondents' reply due by 8/9/19. Scheduling Conference set for 8/27/19 at 2:00 p.m. Parties to confer and report to Court by 8/8/19. Scheduling Order to issue. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Lafaille, Cantin, Sewall, Larakers, Weiland) (Loret, Magdalena) (Entered: 08/06/2019)
329 SEALED Transcript of Lobby Conference held on August 2, 2019, before Judge Mark L. Wolf. Kelly Mortellite at mortellite@gmail.com (Scalfani, Deborah) (Entered: 08/05/2019)
330 Transcript of Hearing held on August 2, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 8/26/2019. Redacted Transcript Deadline set for 9/5/2019. Release of Transcript Restriction set for 11/4/2019. (Scalfani, Deborah) (Entered: 08/05/2019)
331 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 08/05/2019)
334 ELECTRONIC NOTICE of Scheduling Conference. Scheduling Conference set for 8/27/2019 02:00 PM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 08/06/2019)
335 STIPULATION (Clawback Agreement and Fed. R. Evid. 502(d) order) by Thomas

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Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Weiland, William) (Entered: 08/06/2019)
336 MOTION to Seal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A - Supplemental Redacted Declaration)(Cantin, Shirley) (Entered: 08/06/2019)
337 MEMORANDUM in Support re 336 MOTION to Seal ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cantin, Shirley) (Entered: 08/06/2019)
338 Judge Mark L. Wolf: ORDER entered.
By August 8, 2019, the parties shall confer and report regarding any agreement they have reached concerning: (a) changed the Boston Ofﬁce of Immigration and Customs Enforcement (ICE) will make to the Notice to Alien of File Custody Review provided to individuals in custody and related issues; (b) the result of ICE's Boston's custody review and (c) what if anything, ICE-Boston intends to do concerning the individuals in custody. If the parties have not reached an agreement concerning issue (c) they shall propose dates as to supplemental ﬁling to Motion to Show Cause.
316 Joint Motion for Protective Order is ALLOWED with some modiﬁcations. (see Order)
320 Respondents' Unopposed Request to Extend Deadline for Production of Discovery to August 14, 2019 is ALLOWED.
A Federal Rule Civil Procedure 16(b) Conference shall be held on August 27, 2019 at 2:00 PM. The parties shall confer and by August 20, 2019, ﬁle a joint statement.
(Discovery to be completed by 8/14/2019) (Attachments: # 1 sample scheduling order) (Montes, Mariliz) (Entered: 08/07/2019)
339 ELECTRONIC NOTICE of Hearing.
Scheduling Conference is set for 8/27/2019 at 02:00 PM in Courtroom 10 before Judge Mark L. Wolf. (Montes, Mariliz) (Entered: 08/07/2019)
340 Judge Mark L. Wolf: ORDER entered. re 301 Parties' Joint Statement,
It is hereby ORDERED that:
1. Within the ﬁrst seven days of each month, respondents shall provide to class counsel a spreadsheet of class members checking in with the Boston ofﬁce of U.S. Immigration and Customs Enforcement ("ICE-Boston") during the prior month. That spreadsheet shall include the following information: (a) name; (b) alien number; (c) date of check-in; (d) whether any Form I-130, I- 212, or I-601A ﬁled by or on behalf of the class member is approved, denied, or pending with U.S. Citizenship and Immigration Services ("USCIS"), not including any ﬁling, approval, or denial date; (e) a yes or no column indicating whether the class member has criminal history; (f) the date of the next scheduled check in; (g) additional instructions given to the class member at his or her check-in if applicable; {h) attorney of record name and contact information if the attorney has ﬁled a Form G-28 with ICE or the Immigration Court, and (i) status of any application for any ﬁled I-246, Application for a Stay of Deportation or Removal.

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2. Within the ﬁrst seven days of each month, Respondents shall provide a spreadsheet to class counsel of class members detained by ICE-Boston during the prior month, including individuals who became class members after they were detained (the "monthly detention report"). That spreadsheet shall include the following information: (a) name; (b) alien number; (c) date detained; (d) whether any Form I-130, I-212, or I-601A ﬁled by or on behalf of the class member is approved, denied, or pending with users, not including any ﬁling, approval, or denial date; (e) date of the ﬁnal order of removal as determined by ICE Boston;(f) status of any ﬁled Form I-246, Application for a Stay of Deportation or Removal; (g) a yes or no column indicating whether the class member has criminal history; (h) attorney of record name and contact information if a Form G-28 has been ﬁled with ICE or the Immigration Court; (i) country of origin; (j) Order of Supervision Revocation date, if applicable; {k) date of last Post Order Custody Review Notice and any Decision, if applicable; (1) whether the class members' potential eligibility to apply for a Form I-601A was considered by ICE Boston; and (m) the title of the individual who made the ﬁnal decision to effectuate the removal of the class member.
3.Contemporaneous with the monthly detention report, respondents shall also provide to class counsel, a copy of any Notice of Revocation of Release, Notice to Alien of File Custody Review, and Post Order Custody Review Decision for each class member ICEBoston detains, if applicable.
4. Within ﬁve business days of the detention of a class member, respondents shall notify class counsel that a class member has been detained. If. an individual becomes a class member after he or she is detained, respondents shall notify class counsel within ﬁve business days of identifying the individual as a class member. Such notice must only include the detained alien's name, alien number, country of origin, and a statement that the person is being considered for removal and has been given the Class Notice attached as Exhibit A hereto.
5. Respondents shall provide petitioners' counsel with notice of any decision to effectuate a class member's removal, as previously ordered on June 28, 2019. See Docket No. 295 at paragraph 4. Such notice shall include the information described sections (a)-(m) of the monthly detention report, and a brief narrative description of what factors and information were considered in making the decision to remove the class member. This narrative description shallbe comparable to the narrative description provided in the spreadsheet contained in Docket Number 291-1.
6. ICE-Boston shall distribute the Class Notice attached as Exhibit A to (a) class members checking in with ICE-Boston when the alien appears at an ICE ofﬁce for their next inperson check in; (b) class members currently detained by ICE-Boston; (c) class members who are subsequently arrested or detained by ICE after the issuance of this order; and (d) class members whose application for a stay of removal (Form I-246) has been adjudicated, if the ofﬁcial adjudicating the request knows that the individual is a class member based on the information submitted in the application.
7. Petitioners shall provide respondents with translations of the Class Notice in at least Spanish and Portuguese, and may provide respondents with translations in other languages as well. Respondents shall provide the Class Notice to class members in English and in any other language for which petitioners have provided a translation that the class member speaks or reads.(Montes, Mariliz) (Entered: 08/07/2019)
341 Assented to MOTION for Extension of Time to 8/16/2019 to File Response/Reply as to 302 MOTION for Reconsideration re 295 Order by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 08/07/2019)

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342 STATUS REPORT and Motion for Extension of Time to Meet and Confer by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Weiland, William) (Entered: 08/08/2019)

08/08/2019

343 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 341 Motion for Extension of Time to File Response/Reply to 8/16/2019. Sur-Reply due by 8/23/2019. (Loret, Magdalena) (Entered: 08/09/2019)

08/08/2019

344 Judge Mark L. Wolf: ORDER entered re 341 Assented to MOTION for Extension of Time to 8/16/2019 to File Response/Reply as to 302 MOTION for Reconsideration re 295 Order. No further extensions will be granted. (Loret, Magdalena) (Entered: 08/09/2019)

08/09/2019

345 Judge Mark L. Wolf: ORDER entered re 342 Status Report ﬁled by Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, Thomas Brophy, Donald J. Trump, Steven W Tomkins. ALLOWED.(Loret, Magdalena) (Entered: 08/12/2019)

08/14/2019 346 Reset Deadlines as to 302 MOTION for Reconsideration re 295 Order . Defendant's Reply due by 8/16/2019. (Montes, Mariliz) (Entered: 08/14/2019)

08/14/2019 08/14/2019 08/16/2019

347 Reset Deadlines: re. 342 order, parties to confer and report to court by 8/14/2019 (Montes, Mariliz) (Entered: 08/14/2019)
348 STATUS REPORT in response to August 7, 2019 Order by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Entered: 08/14/2019)
349 Assented to MOTION for Extension of Time to August 16, 2019 11:59 P.M. to File the Reply and Supplemental Memorandum in Support of Motion for Order to Show Cause and for Leave to File a Memorandum No Longer than 25 Pages by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 08/16/2019)

08/16/2019

350 REPLY to Response to 302 MOTION for Reconsideration re 295 Order ﬁled by Thomas Brophy, Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Entered: 08/16/2019)

08/16/2019 351 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 349 Motion for Extension of Time. (Loret, Magdalena) (Entered: 08/16/2019)

08/16/2019

352 MOTION to Seal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 08/16/2019)

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353 Assented to MOTION to Withdraw Motion to Show Cause and Lift the Stay of Removal of Class Member Mr. K, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Additional attachment(s) added on 8/19/2019: # 1 unredacted version) (Montes, Mariliz). (Entered: 08/16/2019)
354 REPLY to Response to 304 MOTION for Order to Show Cause (Reply and Supplemental Memorandum in Support of Petitioners' Motion for Order to Show Cause, ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cantin, Shirley) (Additional attachment(s) added on 8/19/2019: # 1 unredacted version) (Montes, Mariliz). (Entered: 08/16/2019)

08/16/2019 355 DECLARATION re 354 Reply to Response to Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao,

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Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28)(Cantin, Shirley) (Attachment 3 replaced on 8/19/2019) (Montes, Mariliz). Modiﬁed on 8/19/2019 to replace Exhibit 3 with corrected version provided by counsel. (Montes, Mariliz). (Additional attachment(s) added on 8/19/2019: # 29 Unrected version of the Declaration) (Montes, Mariliz). (Additional attachment(s) added on 8/20/2019: # 30 Exhibit 1 (unredacted version), # 31 Exhibit 2 (unredacted version), # 32 Exhibit 3 (unredacted version), # 33 Exhibit 4 (unredacted version), # 34 Exhibit 5 (unredacted version), # 35 Exhibit 6 (unredacted version), # 36 Exhibit 7 (unredacted version), # 37 Exhibit 8 (unredacted version), # 38 Exhibit 9 (unredacted version), # 39 Exhibit 10 (unredacted version), # 40 Exhibit 11 (unredacted version), # 41 Exhibit 12 (unredacted version), # 42 Exhibit 13 (unredacted version), # 43 Exhibit 14 (unredacted version), # 44 Exhibit 15 (unredacted version), # 45 Exhibit 16 (unredacted version), # 46 Exhibit 17 (unredacted version), # 47 Exhibit 18 (unredacted version), # 48 Exhibit 19 (unredacted version), # 49 Exhibit 20 (unredacted version), # 50 Exhibit 21 (unredacted version), # 51 Exhibit 22 (unredacted version), # 52 Exhibit 23 (unredacted version), # 53 Exhibit 24 (unredacted version), # 54 Exhibit 25 (unredacted version), # 55 Exhibit 26 (unredacted version), # 56 Exhibit 27 (unredacted version), # 57 Exhibit 28 (unredacted version)) (Montes, Mariliz). (Attachment 4 replaced on 8/27/2019) (Montes, Mariliz). Modiﬁed on 8/27/2019 to replace Exhibit 4 (redacted) provided by counsel. (Montes, Mariliz). (Entered: 08/16/2019)
356 MOTION for Extension of Time to 08/30/2019 to File Response/Reply as to 343 Order on Motion for Extension of Time to File Response/Reply by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 08/20/2019)
357 REPORT of Rule 26(f) Planning Meeting. (Cantin, Shirley) (Entered: 08/20/2019)
358 Judge Mark L. Wolf: ORDER entered denying 356 Motion for Extension of Time to File Response/Reply. Respondents shall, by 8/23/19, before 11:59 p.m., ﬁle their sur-reply. However, if at the 8/27/19 hearing, the Court ﬁnds it would be fair and helpful to allow respondents to supplement their submission, and to continue the hearing before deciding the motion to show cause, it will do so. (Loret, Magdalena) (Entered: 08/21/2019)
359 Assented to MOTION to Seal by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, Donald J. Trump.(Larakers, Mary) (Entered: 08/23/2019)
360 SUR-REPLY to Motion re 304 MOTION for Order to Show Cause ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Larakers, Mary) (Attachment 3 replaced on 8/26/2019) (Montes, Mariliz). Modiﬁed on 8/26/2019 to replace Exhibit 3 with redacted version provided by counsel (Montes, Mariliz). (Additional attachment(s) added on 8/27/2019: # 8 Unredacted version of Calderon's SurReply Brief, # 9 Exhibit A-G-unredacted version) (Montes, Mariliz). (Entered: 08/23/2019)
361 Assented to MOTION to Seal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cox, Jonathan) (Entered: 08/27/2019)

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362 DECLARATION re 304 MOTION for Order to Show Cause by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit 1 - Afﬁdavit of Kimberly Williams, Esq.)(Cox, Jonathan) (Additional attachment(s) added on 8/27/2019: # 2 Exhibit 1 Aff. of Kimberly Williams-unredacted version) (Montes, Mariliz). (Entered: 08/27/2019)

08/27/2019

364 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Hearing re: Scheduling Conference and other pending matters held on 8/27/2019. Marcos Charles, Acting Field Ofﬁce Director, present. Parties shall order transcript of today's proceedings. Parties to confer and report regarding further brieﬁng by 9/10/19. Status Conference scheduled for 1/22/20 at 3:00 p.m. Further Status Conference set for 3/24/20 at 3:00 p.m. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Lafaille, Cox, Segal, Costello, Larakers, Piemonte) (Loret, Magdalena) (Entered: 08/28/2019)

08/28/2019

365 ELECTRONIC NOTICE of Hearing. Status Conference set for 1/22/2020 03:00 PM in Courtroom 10 before Judge Mark L. Wolf. Further Status Conference set for 3/24/2020 03:00 PM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 08/28/2019)

08/28/2019 366 Judge Mark L. Wolf: ORDER entered. (Attachments: # 1 Scheduling Order)(Loret, Magdalena) (Entered: 08/28/2019)

08/28/2019 367 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 336 Motion to Seal. (Loret, Magdalena) (Entered: 08/28/2019)

08/28/2019 368 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 352 Motion to Seal. (Loret, Magdalena) (Entered: 08/28/2019)

08/28/2019 369 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 359 Motion to Seal. (Loret, Magdalena) (Entered: 08/28/2019)

08/28/2019 370 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 361 Motion to Seal. (Loret, Magdalena) (Entered: 08/28/2019)

09/02/2019

371 Transcript of Motion Hearing held on August 27, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 9/23/2019. Redacted Transcript Deadline set for 10/3/2019. Release of Transcript Restriction set for 12/2/2019. (Scalfani, Deborah) (Entered: 09/02/2019)

09/02/2019

372 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 09/02/2019)

09/10/2019

373 STATUS REPORT in response to August 28,2019 Order by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Entered: 09/10/2019)

09/24/2019

374 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 09/24/2019)

09/25/2019

375 NOTICE by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez re 315 Declaration,, Revised Exhibit C To Their Motion For Order To

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10/01/2019 376 Assented to MOTION to Seal Supplemental Opposition to Petitioners' Motion for Order to Show Cause by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 10/01/2019)

10/01/2019

377 Supplemental MEMORANDUM in Opposition re 304 MOTION for Order to Show Cause ﬁled by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Larakers, Mary) (Entered: 10/01/2019)

10/02/2019 378 Judge Mark L. Wolf: ORDER entered granting 376 Motion to File Under Seal. (Loret, Magdalena) (Entered: 10/02/2019)

10/02/2019 379 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 10/02/2019)

10/02/2019

380 ELECTRONIC NOTICE of Hearing. Hearing set for 11/4/2019 10:00 AM and 11/5/2019 09:00 AM in Courtroom 10 before Judge Mark L. Wolf as to pending matters. (Loret, Magdalena) (Entered: 10/02/2019)

10/03/2019

381 Consent MOTION to Seal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 10/03/2019)

10/03/2019

382 MOTION for Immediate Interim Release by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 10/03/2019)

10/03/2019

383 Supplemental MEMORANDUM in Support re 382 MOTION for Immediate Interim Release , 304 MOTION for Order to Show Cause ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Additional attachment(s) added on 10/4/2019: # 1 unredacted version of Supplemantal Memorandum) (Montes, Mariliz). (Entered: 10/03/2019)

10/04/2019

384 Judge Mark L. Wolf: ORDER entered re 382 MOTION for Immediate Interim Release ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. (Loret, Magdalena) (Entered: 10/04/2019)

10/04/2019

385 ELECTRONIC NOTICE Setting Hearing on 382 MOTION for Immediate Interim Release: Motion Hearing set for 10/10/2019 01:30 PM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 10/04/2019)

10/04/2019 387 NOTICE by Kirstjen M NIELSEN re 384 Order, Settlement Authority for October 10, 2019 Hearing (Larakers, Mary) (Entered: 10/04/2019)

10/07/2019

388 Judge Mark L. Wolf: ORDER entered granting 381 Motion to Seal. The documents may be ﬁled under seal at least temporarily. However, it is foreseeable that some of the redacted information may be relied upon by the Court and, therefore, later made public. See FTC v. Standard Financial Management, 830 F. 2d 404 (1st Cir. 1987). (Loret, Magdalena) (Entered: 10/07/2019)

10/07/2019 389 Judge Mark L. Wolf: Sequestration ORDER entered regarding 10/10/19 hearing. (Loret, Magdalena) (Entered: 10/07/2019)

10/07/2019 390 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 10/07/2019)

10/07/2019 391 Assented to MOTION to Seal Opposition to Petitioners' Motion for Immediate Interim Release by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN,

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Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 10/07/2019)
392 Opposition re 382 MOTION for Immediate Interim Release ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Additional attachment(s) added on 10/9/2019: # 1 unredacted version) (Montes, Mariliz). (Entered: 10/07/2019)
393 ELECTRONIC NOTICE of Hearing. Hearing set for 10/11/2019 11:00 AM in Courtroom 10 before Judge Mark L. Wolf. Continued hearing on Motion for Immediate Interim Release (#382).(Loret, Magdalena) (Entered: 10/10/2019)
394 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 10/10/2019 re 382 MOTION for Immediate Interim Release ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. Court hears argument from counsel. Witness, Marcos Charles, sworn and gives testimony. Cross-examination of Charles. Re-direct of Charles. Exhibit 1, 2, 3, 4, 5, and 6 admitted into evidence. Parties reach agreement to release three of the six petitioners on mutually agreeable conditions. Day 2 of hearing scheduled for 10/11/19 at 11:00 a.m. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Lafaille, Cantin, Segal, McCullough, Gillespie, Larakers, Weintraub) (Loret, Magdalena) (Entered: 10/11/2019)
395 Exhibit and Witness List from hearing on Motion for Immediate Interim Release 10/10/19. (Loret, Magdalena) (Entered: 10/11/2019)
396 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Motion Hearing held on 10/11/2019 re 382 MOTION for Immediate Interim Release ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. Court hears argument from counsel. Petitioners Romilson Ferreira, Ana Rodriguez, and Elton Moniz present and sworn. Witness, Michael Bernacke, sworn and gives testimony. Cross-examination of Bernacke. Re-direct of Bernacke. Exhibits 7 and 8 admitted into evidence. Witness, Elton Moniz, sworn and gives testimony. Crossexamination of Moniz. Re-direct of Moniz. Witness, Taylor Moniz, sworn and gives testimony. Witness, Romilson Ferreira, sworn and gives testimony. Cross-examination of Ferreira. Re-direct of Ferreira. Witness, Rachel Jane Gregoire, sworn and gives testimony. Cross-examination of Gregoire. Ana Rodriguez sworn, does not give testimony at request of Attorney Lafaille. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.) (Attorneys present: Lafaille, Cantin, Segal, McCullough, Larakers, Weintraub, Pomerleau, Rubin) (Loret, Magdalena) (Entered: 10/15/2019)
397 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 10/15/2019)
399 Exhibit and Witness List from hearing on Motion for Immediate Interim Release on 10/11/19 (Day 2). (Loret, Magdalena) (Entered: 10/15/2019)
400 NOTICE of Appearance by Todd C. Pomerleau on behalf of Elton Moniz and Romilson Fereirra. (Loret, Magdalena) (Entered: 10/15/2019)
401 NOTICE of Appearance by Jeffrey B. Rubin on behalf of Elton Moniz and Romilson Ferreira. (Loret, Magdalena) (Entered: 10/15/2019)
398 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER: As stated in Court on 10/11/19, it is hereby ORDERED that Respondents shall, by 10/16/19, ﬁle any Immigration and Customs Enforcement manual or guidance on 8 C.F.R. section 241.4,

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including but not limited to subsection (i)(3) regarding the 180-day review personal interview requirement. (Loret, Magdalena) (Entered: 10/15/2019)
402 ELECTRONIC NOTICE Setting Hearing on Motion 304 MOTION for Order to Show Cause : Motion Hearing set for 11/4/2019 10:00 AM and 11/5/2019 09:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 10/15/2019)
403 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 10/16/2019)
404 RESPONSE TO COURT ORDER by Kirstjen M NIELSEN re 397 Order . (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 10/16/2019)
405 Assented to MOTION for Extension of Time to 10/23/19 to File Response to Court Order ECF No. 398 by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 10/17/2019)
406 Judge Mark L. Wolf: ORDER entered re 403 Joint Status Report. (Loret, Magdalena) (Entered: 10/17/2019)
407 Set Deadlines re. 406 Order: Parties' Status Report due by 10/22/2019; Respondents' Response due 10/17/2019 and by 10/21/2019. (Montes, Mariliz) (Entered: 10/17/2019)
408 STATUS REPORT by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 10/17/2019)
409 Judge Mark L. Wolf: ORDER entered re 408 Status Report ﬁled by Kirstjen M NIELSEN. (Loret, Magdalena) (Entered: 10/18/2019)
410 Transcript of Motion Hearing held on October 10, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 11/8/2019. Redacted Transcript Deadline set for 11/18/2019. Release of Transcript Restriction set for 1/16/2020. (Scalfani, Deborah) (Entered: 10/18/2019)
411 SEALED Transcript of Lobby Conference held on October 10, 2019, before Judge Mark L. Wolf. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com (Scalfani, Deborah) (Entered: 10/18/2019)
412 REDACTED Transcript of Motion Hearing held on October 11, 2019, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 11/8/2019. Redacted Transcript Deadline set for 11/18/2019. Release of Transcript Restriction set for 1/16/2020. (Scalfani, Deborah) (Additional attachment(s) added on 11/26/2019: # 1 Redacted Transcript) (Scalfani, Deborah). (Entered: 10/18/2019)
413 SEALED Transcript of Lobby Conference held on October 11, 2019, before Judge Mark L. Wolf. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com (Scalfani, Deborah) (Entered: 10/18/2019)
414 ELECTRONIC NOTICE of Hearing. Hearing set for 10/23/2019 01:30 PM in Courtroom 10 before Judge Mark L. Wolf pursuant to Order dated 10/18/19, Docket No. 409. (Loret, Magdalena) (Entered: 10/18/2019)
415 RESPONSE TO COURT ORDER by Kirstjen M NIELSEN re 409 Order . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Larakers, Mary) (Entered: 10/21/2019)

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416 STATUS REPORT Response to Court Orders (ECF Nos. 406, 409) by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 10/21/2019)

10/22/2019 10/22/2019

417 Judge Mark L. Wolf: ORDER entered. The 10/23/19 hearing is CANCELLED. (Loret, Magdalena) (Entered: 10/22/2019)
418 ELECTRONIC NOTICE Canceling Hearing on 10/23/19. (Loret, Magdalena) (Entered: 10/22/2019)

10/25/2019

419 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cantin, Shirley) (Entered: 10/25/2019)

11/01/2019 420 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 11/01/2019)

11/01/2019

421 ELECTRONIC NOTICE Resetting Hearing on Motion 304 MOTION for Order to Show Cause : Motion Hearing set for 12/3/2019 09:00 AM and 12/4/2019 09:00 AM in Courtroom 10 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 11/01/2019)

11/07/2019

422 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 11/07/2019)

11/08/2019

423 Judge Mark L. Wolf: ORDER entered re 422 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. It is hereby ORDERED that the parties shall continue to confer and, by 11/19/19, report whether any of the individuals have withdrawn the portion of the Motion for an Order to Show Cause. If not, the remaining disputes and the parties' respective positions concerning them shall be described with speciﬁcity. (Loret, Magdalena) (Entered: 11/08/2019)

11/08/2019

424 Transcript Redaction Request re 412 Transcript, by attorney Colleen M. McCullough. (McCullough, Colleen) (Main Document 424 replaced on 11/13/2019) (Montes, Mariliz). Modiﬁed on 11/13/2019 to replace with corrected request provided by counsel and correcting transcript from 410 to 412 (Montes, Mariliz). (Entered: 11/08/2019)

11/08/2019

425 MOTION to Redact 412 Transcript, (For Additional Redactions) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (McCullough, Colleen) (Main Document 425 replaced on 11/13/2019) (Montes, Mariliz). Modiﬁed on 11/13/2019 to replace with corrected version provide by counsel and link motion to correct transcript (Montes, Mariliz). (Entered: 11/08/2019)

11/13/2019

426 Notice of correction to docket made by Court staff. Correction: Docket No. 425 by replacing with corrected version provided by counsel. (Montes, Mariliz) (Entered: 11/13/2019)

11/19/2019

428 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 11/19/2019)

11/20/2019 11/20/2019

429 Judge Mark L. Wolf: ORDER entered re 428 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. In view of this report, it is hereby ORDERED that: (1) The 12/3/19 hearing is cancelled; and (2) the parties shall continue to confer and by 12/6/19, further respond to the 11/8/19 order at Docket No. 423. (Loret, Magdalena) (Entered: 11/20/2019)
430 ELECTRONIC NOTICE Canceling Hearing on Motion for Order to Show Cause (No.

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304) on 12/3/19 and 12/4/19. (Loret, Magdalena) (Entered: 11/20/2019)
431 Judge Mark L. Wolf: ORDER entered re 424 Transcript Redaction Request, ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. ALLOWED. Redacted versions shall be ﬁled forthwith. (Loret, Magdalena) (Main Document 431 replaced on 11/20/2019) (Montes, Mariliz). Modiﬁed on 11/20/2019 to replace names in page 2(Montes, Mariliz). (Entered: 11/20/2019)
432 Judge Mark L. Wolf: ORDER entered granting 425 Petitioners' Unopposed Motion for Additional Redactions 412 Transcript. ALLOWED. Redacted versions shall be ﬁled forthwith. (Loret, Magdalena) (Entered: 11/20/2019)
433 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Prussia, Kevin) (Entered: 12/06/2019)
434 Assented to MOTION for Extension of Time to Amend Complaint or Any Motion to File Additional Pleadings by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Prussia, Kevin) (Entered: 12/06/2019)
435 Judge Mark L. Wolf: ORDER entered re 433 December 6, 2019 Joint Status Report. "In view of this report, it is hereby ORDERED that the parties shall continue to confer and, by 1/10/20, further respond to the 11/8/19 Order."(Loret, Magdalena) (Entered: 12/12/2019)
436 Judge Mark L. Wolf: ORDER entered granting 434 Motion to Extend the Deadline to File any Amended Complaint. (Loret, Magdalena) (Entered: 12/12/2019)
437 MOTION for Immediate Interim Release by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cox, Jonathan) (Entered: 12/20/2019)
438 MEMORANDUM in Support re 437 MOTION for Immediate Interim Release ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cox, Jonathan) (Entered: 12/20/2019)
439 DECLARATION re 437 MOTION for Immediate Interim Release by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Cox, Jonathan) (Entered: 12/20/2019)
440 Judge Mark L. Wolf: ORDER entered re 437 MOTION for Immediate Interim Release as to Seoun Kim ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. (Loret, Magdalena) (Entered: 12/23/2019)
441 Opposition re 437 MOTION for Immediate Interim Release ﬁled by Thomas Brophy, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 12/24/2019)
442 MOTION to Vacate 440 Order, Hearing Date and Decide Motion on Pleadings by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 12/24/2019)

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443 Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. It is hereby ordered that to the extent that the Motion (Docket No. 437 ) requests a temporary restraining order, it is ALLOWED as follows: 1. ICE shall release Kim forthwith on the conditions previously imposed and promptly report to the court that this has been done. 2. Paragraph 3 of the December 23, 2019 order (Docket No. 440 ) is VACATED. 3. This temporary restraining order shall expire on January 8, 2020, at 12:00 noon unless ICE consents to its extension to at least January 17, 2020, at 6:00 p.m., or good cause is shown for an extension. 4. Respondents shall, by 10:00 a.m. on December 26, 2019, report whether they consent to an extension of this temporary restraining order to at least January 17, 2020. If not, the court will conduct the December 27, 2019 hearing, at 9:30 a.m., as previously ordered. (Rynne, Michelle) (Entered: 12/24/2019)
444 STATUS REPORT in response to court order (ECF No. 443) by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Entered: 12/26/2019)
445 Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that: 1. Respondents shall report forthwith whether Kim has been released and, if so, the conditions of his release. 2. The December 27, 2019 hearing is RESCHEDULED for January 16, 2020, at 9:30 a.m. 3. The parties shall report forthwith if the restraint on Kim's removal in Civ. No. 19-12342ADB has been lifted and, if so, whether and when Kim has been removed. 4. The parties shall confer and, by January 6, 2020, report whether they have agreed to a resolution of the Motion and, if not, report concerning the matters discussed in this Order and any other matters they deem relevant. (Loret, Magdalena) (Entered: 12/26/2019)
446 ELECTRONIC NOTICE Setting Hearing on Motion for Immediate Interim Release as to Seoun Kim (Docket No. 437). Motion Hearing set for 1/16/2020 09:30 AM in Courtroom 2 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 12/26/2019)
447 STATUS REPORT Response to Court Orders ECF Nos. 443, 445 by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 12/26/2019)
448 Assented to MOTION for Extension of Time to File Any Amended Complaint or Motion to File Additional Pleadings and Any Response Thereto by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Provazza, Stephen) (Entered: 01/03/2020)
449 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (McCullough, Colleen) (Entered: 01/06/2020)
450 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 448 Motion for Extension of Time to File Any Amended Complaint or Motion to File Additional Pleadings and Any Response Thereto. (Loret, Magdalena) (Entered: 01/07/2020)
451 Judge Mark L. Wolf: ELECTRONIC ORDER entered re 449 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. ALLOWED. Parties shall further report by 1/8/20 as to whether they have agreed to a resolution of Mr. Kim's Motion for Immediate Interim Release or, if not, regarding the matters identiﬁed in the Court's Order. (Loret, Magdalena) (Entered: 01/07/2020)
452 NOTICE by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 420 Order, 419

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Status Report Class Member Violation of Order of Supervision (Larakers, Mary) (Entered: 01/08/2020)
453 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Costello, Matthew) (Entered: 01/08/2020)
454 Judge Mark L. Wolf: ORDER entered re 453 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. It is hereby ORDERED that: 1. The Motion for Immediate Release (Docket No. 437) is MOOT. 2. The Motion for Order to Show Cause (Docket No. 304) is MOOT. 3. The stay of removal as to the remaining individuals at issue in the Motion for Order to Show Cause is LIFTED. See Docket No. 307. 4. The hearing scheduled for January 16, 2020 is CANCELLED. 5. With regard to the status conference scheduled for January 22, 2020, see Docket No. 366-1, the parties shall confer and, by January 17, 2020, report regarding their positions on whether the status conference should be rescheduled and, if not, provide a proposed agenda for the status conference which states the parties' positions on the matters to be addressed and identiﬁes the submissions relevant to each item.(Loret, Magdalena) (Entered: 01/09/2020)
455 Judge Mark L. Wolf: ELECTRONIC ORDER entered ﬁnding as moot 304 Motion for Order to Show Cause. (Loret, Magdalena) (Entered: 01/09/2020)
456 ELECTRONIC NOTICE Canceling Hearing set for 1/16/20. (Loret, Magdalena) (Entered: 01/09/2020)
457 RESPONSE TO COURT ORDER by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 398 Memorandum & ORDER, . (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 01/10/2020)
458 NOTICE by Thomas Brophy, Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 295 Order Substituted Party (Larakers, Mary) (Entered: 01/13/2020)
459 NOTICE Resetting a Hearing ***AS TO LOCATION ONLY***. Status Conference set for 1/22/2020 03:00 PM in Courtroom 2 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 01/16/2020)
460 ELECTRONIC NOTICE Canceling Hearing. Status Conference set for 1/22/20 is off. (Loret, Magdalena) (Entered: 01/17/2020)
461 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Provazza, Stephen) (Entered: 01/17/2020)
462 Judge Mark L. Wolf: ORDER entered re 461 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. The parties shall, by 2/4/20, ﬁle an updated status report, which may request more time to propose a time-line for future events. (Loret, Magdalena) (Entered: 01/21/2020)
463 Set Deadlines: In re. 462 Order: Status Report due by 2/4/2020. (Montes, Mariliz) (Entered: 01/21/2020)
464 Assented to MOTION for Extension of Time to File Any Amended Complaint by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio

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465 Judge Mark L. Wolf: ORDER entered granting 464 Motion to Extend Deadline to File any Amended Complaint. (Loret, Magdalena) (Entered: 01/27/2020)
466 Emergency MOTION to Enjoin the Removal of Two Class Members by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Cantin, Shirley) (Entered: 01/27/2020)
467 MEMORANDUM in Support re 466 Emergency MOTION to Enjoin the Removal of Two Class Members ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit 1 - Declaration of Ana Rodriguez, # 2 Exhibit 1-A - Letter, # 3 Exhibit 2 - Declaration of Isabelle Santay) (Cantin, Shirley) (Entered: 01/27/2020)
468 DECLARATION re 466 Emergency MOTION to Enjoin the Removal of Two Class Members by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A - Calderon Notice Detailed Class Member, # 2 Exhibit B - Notice Detention Removal Calderon Class Member, # 3 Exhibit C Provisional Unlawful Presence Waivers _ USCIS, # 4 Exhibit D - Q&A Provisional Waiver Engagement)(McCullough, Colleen) (Entered: 01/27/2020)
469 Judge Mark L. Wolf: ORDER entered re 466 Emergency MOTION to Enjoin the Removal of Two Class Members (Salvador Rodriguez-Aguasviva and Erik RodriguezOseguera) ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. (Loret, Magdalena) (Entered: 01/27/2020)
470 ELECTRONIC NOTICE of Hearing. Hearing on Petitioners' request for Temporary Restraining Orders tentatively set for 1/28/2020 02:30 PM in Courtroom 2 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 01/27/2020)
471 STATUS REPORT Requesting Postponement 1/28/20 Hearing by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 01/27/2020)
472 Assented to MOTION Appear Telephonically re 470 Notice of Hearing, 471 Status Report, 469 Order, by Kirstjen M NIELSEN.(Larakers, Mary) (Entered: 01/27/2020)
473 Judge Mark L. Wolf: ENDORSED ORDER entered.

re 471 Status Report ﬁled by Kirstjen M NIELSEN.

"In view of this report, a hearing on January 28, 2020 will not be necessary. A further Order will issue after petitioners respond to the January 27, 2020 Order."(Montes, Mariliz) (Entered: 01/28/2020)

01/28/2020

474 STATUS REPORT by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Provazza, Stephen) (Entered: 01/28/2020)

01/28/2020

475 STATUS REPORT (Corrected) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Provazza, Stephen) (Entered: 01/28/2020)

01/28/2020 476 ELECTRONIC NOTICE Canceling Hearing on Petitioners' request for Temporary

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477 Judge Mark L. Wolf: ORDER entered. (Loret, Magdalena) (Entered: 01/30/2020)
478 Joint MOTION for Extension of Time to 2/14/20 to File Opposition and to 2/21/20 to File Reply by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 01/31/2020)
479 Judge Mark L. Wolf: ORDER entered granting 478 Motion for Extension of Time. ALLOWED and so ordered. Parties shall report by 2/7/20 as to whether they have agreed to resolve the motion. If parties have not reached agreement, Respondents will ﬁle their opposition to the motion by 2/14/20 and Petitioners will ﬁle their reply by 2/21/20. A hearing will be held on the motion, if necessary. (Loret, Magdalena) (Entered: 02/03/2020)
480 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (McCullough, Colleen) (Entered: 02/04/2020)
481 Judge Mark L. Wolf: ENDORSED ORDER entered re 480 Status Report.

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The request is ALLOWED, however the report shall be ﬁled by 3:30 p.m.(Montes, Mariliz) (Entered: 02/06/2020)
482 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (McCullough, Colleen) (Entered: 02/07/2020)
483 Joint MOTION for Extension of Time of the Court's August 28, 2019 Scheduling Order by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(McCullough, Colleen) (Entered: 02/07/2020)
485 Judge Mark L. Wolf: ORDER entered granting 483 Joint Motion to Extend Deadlines. ALLOWED and so ordered. (Loret, Magdalena) (Entered: 02/12/2020)
484 ELECTRONIC NOTICE Canceling Further Status Conference set for 3/24/20. (Loret, Magdalena) (Entered: 02/10/2020)
486 Assented to MOTION for Extension of Time to 02/20/20 to File Answer re 482 Status Report, 485 Order on Motion for Extension of Time to ﬁle Opposition, MOTION for Extension of Time to 02/20/2020 to File Response/Reply as to 485 Order on Motion for Extension of Time ( Responses due by 2/27/2020) by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 02/13/2020)
487 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 486 Motion for Extension of Time to File Response/Reply re 482 Status Report, 485 Order on Motion for Extension of Time to ﬁle Opposition (Responses due by 2/20/2020, Replies due by 3/5/2020.) (Loret, Magdalena) (Entered: 02/14/2020)
488 Joint MOTION for Leave to File Excess Pages by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 02/20/2020)
489 Opposition re 466 Emergency MOTION to Enjoin the Removal of Two Class Members ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN,

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Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larakers, Mary) (Entered: 02/20/2020)

02/24/2020

490 MOTION to Withdraw 466 Emergency MOTION to Enjoin the Removal of Two Class Members and to Lift the Stay of His Removal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(McCullough, Colleen) (Entered: 02/24/2020)

02/25/2020

491 Judge Mark L. Wolf: ORDER entered granting 490 Motion to Withdraw 466 Emergency MOTION to Enjoin the Removal of Two Class Members and to Lift the Stay of His Removal of class member Rodriguez-Oseguera. "The Motion is hereby ALLOWED and the stay of removal of Mr. Rodriguez-Oseguera is LIFTED. He may, therefore, be removed." (Loret, Magdalena) (Entered: 02/25/2020)

02/27/2020 492 Judge Mark L. Wolf: ELECTRONIC ORDER entered withdrawing 268 Motion for TRO; withdrawing 268 Motion to Stay. (Loret, Magdalena) (Entered: 02/27/2020)

02/28/2020

493 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 488 Motion for Leave to File Excess Pages; Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Loret, Magdalena) (Entered: 02/28/2020)

03/05/2020

494 REPLY to Response to 466 Emergency MOTION to Enjoin the Removal of Two Class Members ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Cox, Jonathan) (Entered: 03/05/2020)

03/05/2020

495 DECLARATION re 494 Reply to Response to Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Costello, Matthew) (Entered: 03/05/2020)

03/05/2020

496 NOTICE by Thomas Brophy, Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 482 Status Report, 466 Emergency MOTION to Enjoin the Removal of Two Class Members of Unavailability for Hearing (Larakers, Mary) (Entered: 03/05/2020)

03/19/2020 497 Assented to MOTION for Leave to File surreply to ECF No. 468 by Kirstjen M NIELSEN. (Attachments: # 1 Supplement)(Larakers, Mary) (Entered: 03/19/2020)

03/19/2020

498 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 497 Motion for Leave to File surreply to ECF No. 468. Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to ﬁle granted on (date of order)- in the caption of the document. (Loret, Magdalena) (Entered: 03/19/2020)

03/19/2020 499 SUR-REPLY to Motion re 466 Emergency MOTION to Enjoin the Removal of Two Class Members ﬁled by Kirstjen M NIELSEN. (Larakers, Mary) (Entered: 03/19/2020)

03/24/2020

500 MOTION for Immediate Interim Release of Class Member Salvador RodriguezAguasviva, or, Alternatively, to Schedule Telephonic Hearing by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Provazza, Stephen) (Entered: 03/24/2020)

03/24/2020 501 Judge Mark L. Wolf: ELECTRONIC ORDER entered with regard to Petitioner Salvador

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Rodriguez-Aguasivas Emergency Motion (Docket No. 500 ) (the Motion), it is hereby ORDERED that:
1. Counsel for Respondent and Petitioner shall confer and, by 12 noon on March 25, 2020, Respondent shall either report that the Motion has been resolved by agreement or ﬁle an opposition to it.
2. If the Motion is not resolved, a telephone conference shall be held on March 26, 2020, at 11:00 am.
3. If the court determines a hearing is necessary, it shall be held on March 27, 2020, at 10:00am, at the Moakley Federal Courthouse. The Petitioner, his counsels, counsel for Respondents Mary Larakers, and Acting Field Ofﬁcer Todd Lyons shall be present.
(adminn, ) (Entered: 03/24/2020)
502 Judge Mark L. Wolf: ELECTRONIC ORDER entered re 500 MOTION for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva, or, Alternatively, to Schedule Telephonic Hearing. With regard to Petitioner Salvador Rodriguez-Aguasivas Emergency Motion (Dkt. No. 500) (the Motion), on further reﬂection, it is hereby ORDERED: 1. Counsel for Respondent and Petitioner shall confer and, by 12 noon on March 25, 2020, Respondent shall either report that the Motion has been resolved by agreement or ﬁle an opposition to it. 2. If the Motion is not resolved, a telephone conference shall be held today, March 25, 2020, at 1:30 pm.3. If the court determines a hearing is necessary, it shall be held on March 26, 2020, at 11:00 am at the Moakley Federal Courthouse. The Petitioner, his counsel, counsel for Respondents Mary Larakers, and Acting Field Ofﬁcer Todd Lyons shall be present.(Loret, Magdalena) (Entered: 03/25/2020)
503 MEMORANDUM in Opposition re 500 MOTION for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva, or, Alternatively, to Schedule Telephonic Hearing ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larakers, Mary) (Entered: 03/25/2020)
504 ELECTRONIC NOTICE of TELEPHONIC Hearing re: MOTION (Docket No. 500) for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva, Hearing reset for 3/25/2020 from 1:30 p.m. to 02:15 PM before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 03/25/2020)
505 Electronic Clerk's Notes for proceedings held before Judge Mark L. Wolf: Telephonic Motion Hearing held on 3/25/2020 re 500 MOTION for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva, or, Alternatively, to Schedule Telephonic Hearing. Counsel present argument. Court orders release of class member RodriguezAguasviva no later than 3/26/20. Counsel to confer and report as to whether the can resolve the Motion to Enjoin Removal by 4/3/20. (Court Reporter: Kelly Mortellite at mortellite@gmail.com.)(Attorneys present: Provazza, Gillespie, Lafaille, Segal, Prussia, Weintraub, Larakers, Piemonte. Counsel present via telephone.) (Loret, Magdalena) (Entered: 03/25/2020)
506 Judge Mark L. Wolf: ELECTRONIC ORDER entered re 500 MOTION for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. For the reasons explained at the March 25, 2020 hearing that was conducted by telephone, it is hereby ORDERED that: 1.The Motion for Immediate Interim Release of Class Member

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Salvador Rodriquez-Aguasviva (Docket No. 500) is ALLOWED. 2.Respondents shall release petitioner Rodriguez-Aguasviva no later than March 26, 2020, on the conditions that: (a) he reside with his wife in Lawrence, Massachusetts and not leave their residence except for medical reasons, with the approval of Respondents ; and (b) he shall be subject to electronic monitoring by Respondents. Respondents shall report to the court when Rodriguez-Aguasviva has been released. 3.Rodriguez-Aguasvivas counsel shall inform his wife and him of the conditions of his release, and provide Respondents of the address at which he will reside. 4.Counsel shall confer and, by April 3, 2020, report whether they have agreed to a resolution of the Motion to Enjoin Removal of Rodriguez-Aguasviva (Docket No. 466) and, if not, suggest dates after April 12, 2020, for a hearing on the merits of that motion, which may require testimony by Todd Lyons. 5.The parties shall order the transcript of the March 25, 2020 hearing. (Loret, Magdalena) (Entered: 03/25/2020)
507 Judge Mark L. Wolf: Memorandum and ORDER entered. (Attachments: # 1 Exhibit A: Transcript of 3.25.20 hearing)(Loret, Magdalena) (Entered: 03/26/2020)
508 NOTICE of Withdrawal of Appearance by Matthew W. Costello (Notice of Withdrawal of Shirley X. Li Cantin) (Costello, Matthew) (Entered: 03/26/2020)
509 Set Deadlines:
In re. 506 Order, Status Report due by 4/3/2020 (Montes, Mariliz) (Entered: 03/26/2020)
510 NOTICE by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 507 Order (Larakers, Mary) (Entered: 03/26/2020)
511 NOTICE of Withdrawal of Appearance by Shirley X. Cantin (Cantin, Shirley) (Entered: 03/27/2020)
512 Transcript of Telephone Conference held on March 25, 2020, before Judge Mark L. Wolf. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kelly Mortellite at mortellite@gmail.com Redaction Request due 4/17/2020. Redacted Transcript Deadline set for 4/27/2020. Release of Transcript Restriction set for 6/25/2020. (Scalfani, Deborah) on 3/27/2020) (Entered: 03/27/2020)
513 NOTICE is hereby given that an ofﬁcial transcript of a proceeding has been ﬁled by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) (Entered: 03/27/2020)
514 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Provazza, Stephen) (Entered: 04/03/2020)
515 Judge Mark L. Wolf: ELECTRONIC ORDER entered re 514 Status Report ﬁled by Sandro De Souza, Deng Gao, Sergio Francisco, Celina Rivera Rivas, Oscar Rivas, Carmen Sanchez, Luis Gordillo, Amy Chen, Lilian Pahola Calderon Jimenez, Lucimar De Souza. "In view of the Joint Status Report (Dkt. No. 514), it is hereby ORDERED that the parties shall continue to confer and, by April 10, 2020, respond further to the March 25, 2020 Order." (Loret, Magdalena) (Entered: 04/06/2020)
516 Reset Deadlines: Per 515 Order: Status Report due by 4/10/2020 (Montes, Mariliz) (Entered: 04/07/2020)

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517 Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that class counsel and counsel for respondents shall confer and, by April 9,2020, report jointly if possible concerning: 1. Whether Ayabar is a member of the class in this case. 2. Whether any of the orders in this case have been violated with regard to Ayabar and, if so, how and why. 3. Whether Ayabar should be ordered returned to Massachusetts.4. Whether Ayabar's petition should be reassigned to thiscourt. See L.R. 40.1 (g)&(i)(1).(Loret, Magdalena) (Entered: 04/07/2020)
518 Notice of correction to docket made by Court staff. Correction: removal of duplicate entry 518. The entry was a copy of 517 . (adminn, ) (Entered: 04/07/2020)
519 Reset Deadlines: In re. to 517 Order: Status Report due by 4/9/2020 (Montes, Mariliz) (Entered: 04/08/2020)
520 STATUS REPORT in response to April 7, 2020 Order by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Larakers, Mary) (Entered: 04/09/2020)
521 Judge Mark L. Wolf: ORDER entered re 520 Status Report ﬁled by Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, Thomas Brophy, Donald J. Trump, STEVEN W TOMPKINS. (Loret, Magdalena) (Entered: 04/10/2020)
522 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Costello, Matthew) (Entered: 04/10/2020)
523 Judge Mark L. Wolf: ELECTRONIC ORDER entered. It is hereby ORDERED that counsel shall confer and, by April 15, 2020, ﬁle a list of the names of the members of the class in this case to the extent that they are known. If deemed appropriate, a party may move to have the list ﬁled under seal. See L.R. 7.2. (Loret, Magdalena) (Entered: 04/13/2020)
524 Set Deadlines: In re. 523 Order: File list of the names of members of the class due by 4/15/2020. (Montes, Mariliz) (Entered: 04/14/2020)
525 MOTION for Clariﬁcation re 523 Order, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Costello, Matthew) (Entered: 04/14/2020)
526 Judge Mark L. Wolf: ELECTRONIC ORDER entered regarding 525 Motion for Clariﬁcation. It is hereby ORDERED that: 1. In view of the April 13, 2020 Motion for Clariﬁcation (Docket No. 525), the court states that it intends that Respondents ﬁle a list of individuals that ICE has identiﬁed as class members and provided to petitioners' counsel. 2. In view of the Joint Status Report (Dkt. No. 522), the parties shall continue to confer and, by April 17, 2020, respond further to the March 25, 2020 Order. (Loret, Magdalena) (Entered: 04/15/2020)
527 Joint MOTION to Seal Document Class List by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 04/15/2020)
529 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 527 Motion to Seal Document 527 Joint MOTION to Seal Document Class List. (Loret, Magdalena) (Entered: 04/16/2020)
530 STATUS REPORT (Joint) by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Costello, Matthew) (Entered: 04/16/2020)

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531 Judge Mark L. Wolf: ORDER entered ﬁnding as moot 466 Motion to Enjoin Removal of Salvador Rodriguez-Aguasviva. In view of the parties' April 16, 2020 Status Report (Dkt. No. 530), it is hereby ORDERED that: 1. The Motion to Enjoin the Removal of Mr. Salvador Rodriguez-Aguasviva (Dkt. No. 466) is MOOT. 2. The stay of removal as to Rodriguez-Aguasviva is LIFTED. See Dkt. No. 469. 3. The Order requiring that Rodriguez-Aguasviva not leave his residence except for medical reasons (Dkt. No. 506) is LIFTED. (Loret, Magdalena) (Entered: 04/16/2020)
532 Assented to MOTION for Extension of Time by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Costello, Matthew) (Entered: 05/01/2020)
533 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 532 Motion to Extend Deadlines. The Assented-to Motion to Extend Deadlines is ALLOWED. The proposed new deadlines are adopted. The joint report concerning settlement and summary judgment motions shall be ﬁled by 8/28/20. A Status Conference shall be held on 9/15/20, at 2:00 p.m. in Courtroom 2 before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 05/04/2020)
534 Reset Deadlines: Amended Pleadings due by 6/30/2020; fact discovery to be completed by 8/7/2020; Status Report due by 8/28/2020. (Montes, Mariliz) Modiﬁed on 5/8/2020 to correct deadline. NEF Regenerated(Montes, Mariliz). (Entered: 05/05/2020)
535 NOTICE of Appearance by Allyson T. Slater on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Slater, Allyson) (Entered: 07/07/2020)
536 STIPULATION Concerning Remote Deposition by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Costello, Matthew) (Entered: 07/15/2020)
537 Joint MOTION for Extension of Time by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Provazza, Stephen) (Entered: 08/05/2020)
538 Judge Mark L. Wolf: ORDER entered granting 537 Motion for Extension of Time of Scheduling Order deadlines. Proposed deadlines are hereby adopted, Scheduling Order is modiﬁed as speciﬁed in the attached. Status Conference on 9/15/20 is cancelled, new date TBD. (Loret, Magdalena) (Entered: 08/06/2020)
539 ELECTRONIC NOTICE Canceling Status Conference set for 9/15/20. New date TBD. (Loret, Magdalena) (Entered: 08/06/2020)
540 Joint MOTION re 69 Order,, Witness Sequestration (ECF No. 69-1) by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Weiland, William) (Entered: 08/26/2020)
541 NOTICE of Appearance by Christina Luo on behalf of Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez (Luo, Christina) (Entered: 08/26/2020)
542 Assented to MOTION to Lift Court-Imposed Conditions of Release re 506 Order,,,,,, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza,

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Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(McCullough, Colleen) (Entered: 08/27/2020)

08/28/2020

543 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 540 Joint Motion regarding Witness Sequestration. ALLOWED and so ORDERED. (Loret, Magdalena) (Entered: 08/28/2020)

08/28/2020

544 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 542 Motion to Lift CourtImposed Conditions of Release regarding 506 Order on class member Salvador Rodriguez-Aguasviva. (Loret, Magdalena) (Entered: 08/28/2020)

09/21/2020

545 Assented to MOTION for Extension of Time to Deadlines to Complete Discovery by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Weiland, William) (Entered: 09/21/2020)

09/25/2020

546 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 545 Motion for Extension of Time to Complete Discovery. The Court adopts the parties' proposed schedule. (Loret, Magdalena) (Entered: 09/25/2020)

10/05/2020

547 NOTICE by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 295 Order New Deputy Field Ofﬁce Director (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 10/05/2020)

10/05/2020

548 MOTION for Protective Order AND TO LIMIT THE SCOPE OF A DEPOSITION UNDER RULE 30(d)(3)(B) by Kirstjen M NIELSEN. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Larakers, Mary) (Entered: 10/05/2020)

10/19/2020

549 Assented to MOTION to Seal Document by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Provazza, Stephen) (Entered: 10/19/2020)

10/19/2020

550 MEMORANDUM in Opposition re 548 MOTION for Protective Order AND TO LIMIT THE SCOPE OF A DEPOSITION UNDER RULE 30(d)(3)(B) ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Slater, Allyson) (Entered: 10/19/2020)

10/19/2020

551 DECLARATION re 550 Memorandum in Opposition to Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K) (Provazza, Stephen) (Additional attachment(s) added on 10/20/2020: # 12 Exhibit ﬁled under seal, # 13 Exhibit F ﬁled under seal, # 14 Exhibit G ﬁled under seal, # 15 Exhibit I ﬁled under seal, # 16 Exhibit J ﬁled under seal) (Montes, Mariliz). (Entered: 10/19/2020)

10/20/2020

552 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 549 Motion to Seal Certain Exhibits to Petitioners Opposition to Respondents Motion for a Protective Order. (Loret, Magdalena) (Entered: 10/20/2020)

10/21/2020

553 NOTICE by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 295 Order Appointment of New Deputy Field Ofﬁce Director (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 10/21/2020)

10/23/2020 554 MOTION for Leave to File 15-page reply in support of ECF No. 548 by Thomas Brophy,

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Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 10/23/2020)
555 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 554 Respondents' Motion for Leave to File 15-page reply in support of ECF No. 548. Counsel using the Electronic Case Filing System should now ﬁle the document for which leave to ﬁle has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include Leave to ﬁle granted on (date of order)- in the caption of the document. (Loret, Magdalena) (Entered: 10/26/2020)
556 REPLY to Response to 548 MOTION for Protective Order AND TO LIMIT THE SCOPE OF A DEPOSITION UNDER RULE 30(d)(3)(B) ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, Donald J. Trump. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Larakers, Mary) (Entered: 10/28/2020)
557 NOTICE by Thomas Brophy, Christopher Cronen, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 295 Order Appointment of New Acting Deputy Field Ofﬁce Director (Attachments: # 1 Exhibit A)(Larakers, Mary) (Entered: 11/05/2020)
558 Assented to MOTION for Extension of Time to January 30, 2021 to Complete Document Production and Fact Discovery by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Weiland, William) (Entered: 11/13/2020)
559 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 558 Motion for Extension of Time to Complete Document Production and Fact Discovery. (Loret, Magdalena) (Entered: 11/16/2020)
560 MOTION to Dismiss for lack of subject-matter jurisdiction, MOTION for Judgment on the Pleadings Count 3 of First Amended Complaint ( Responses due by 12/2/2020) by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Larakers, Mary) (Entered: 11/18/2020)
561 NOTICE of Withdrawal of Appearance by Christina Luo on behalf of Stephen N. Provazza, (Luo, Christina) (Entered: 11/23/2020)
562 ELECTRONIC NOTICE Setting Hearing on Motion 548 MOTION for Protective Order.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

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Motion Hearing set for 12/3/2020 01:30 PM in Remote Proceeding: Boston before Judge Mark L. Wolf. (Loret, Magdalena) (Entered: 11/24/2020)

11/24/2020 563 Assented to MOTION for Extension of Time to December 16, 2020 to File

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Response/Reply as to 560 MOTION to Dismiss for lack of subject-matter jurisdiction MOTION for Judgment on the Pleadings Count 3 of First Amended Complaint by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Luo, Christina) (Entered: 11/24/2020)
564 ELECTRONIC NOTICE Canceling Hearing on Motion 548 for Protective Order. New date TBD. (Loret, Magdalena) (Entered: 11/30/2020)
565 Assented to MOTION to Seal by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(McCullough, Colleen) (Entered: 11/30/2020)
566 MOTION to Compel Discovery by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(McCullough, Colleen) (Entered: 11/30/2020)
567 MEMORANDUM in Support re 566 MOTION to Compel Discovery ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (McCullough, Colleen) (Entered: 11/30/2020)
568 DECLARATION re 566 MOTION to Compel Discovery by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(McCullough, Colleen) (Entered: 11/30/2020)
569 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 563 Petitioners' Motion for Extension of Time until December 16, 2020 to File Response/Reply as to 560 Motion to Dismiss. (Loret, Magdalena) (Entered: 12/01/2020)
570 Joint MOTION for Extension of Time by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez.(Slater, Allyson) (Entered: 12/11/2020)
571 Joint MOTION for Extension of Time to December 22, 2020 and December 23, 2020, respectively, to File Response/Reply as to 566 MOTION to Compel Discovery, 560 MOTION to Dismiss for lack of subject-matter jurisdiction MOTION for Judgment on the Pleadings Count 3 of First Amended Complaint by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump.(Weiland, William) (Entered: 12/11/2020)
572 Judge Mark L. Wolf: ORDER entered granting 570 Joint Motion for Extension of Time to Extend Deadlines. ALLOWED and SO ORDERED. (Loret, Magdalena) (Entered: 12/11/2020)
573 Judge Mark L. Wolf: ELECTRONIC ORDER entered granting 571 Motion for Extension of Time to December 22, 2020 and December 23, 2020, respectively, to File Response/Reply as to 566 MOTION to Compel Discovery, 560 MOTION to Dismiss for lack of subject-matter jurisdiction MOTION for Judgment on the Pleadings Count 3 of First Amended Complaint. (Loret, Magdalena) (Entered: 12/14/2020)
574 NOTICE by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump re 295 Order

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Appointment of Interim Deputy Field Ofﬁce Director (Attachments: # 1 Declaration of Interim Deputy Field Ofﬁce Director)(Weiland, William) (Entered: 12/22/2020)
575 Opposition re 566 MOTION to Compel Discovery ﬁled by Thomas Brophy, Christopher Cronen, Thomas Homan, Kirstjen M NIELSEN, Yolanda Smith, STEVEN W TOMPKINS, Donald J. Trump. (Attachments: # 1 Exhibit A: Petitioners' First Set of RFP (excerpted), # 2 Exhibit B: Petitioners' Second Set of RFP (excerpted), # 3 Exhibit C: Riordan Dep. Ex. 16, # 4 Exhibit D: Riordan Dep. Tr. (exceprted), # 5 Exhibit E: McCleary Dep. Tr. (excerpted))(Weiland, William) (Entered: 12/22/2020)
576 Opposition re 560 MOTION to Dismiss for lack of subject-matter jurisdiction MOTION for Judgment on the Pleadings Count 3 of First Amended Complaint ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (McCullough, Colleen) (Entered: 12/23/2020)
577 Judge Mark L. Wolf: ORDER entered. It is hereby ORDERED that the parties confer and, by January 12, 2021, report concerning their views on whether this case should be stayed for some period of time and any related issues. (Loret, Magdalena) (Entered: 12/28/2020)
578 STATUS REPORT (Joint), by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Slater, Allyson) (Entered: 01/12/2021)
579 REPLY to Response to 566 MOTION to Compel Discovery ﬁled by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Slater, Allyson) (Entered: 01/12/2021)
580 DECLARATION re 579 Reply to Response to Motion, by Lilian Pahola Calderon Jimenez, Amy Chen, Sandro De Souza, Lucimar De Souza, Sergio Francisco, Deng Gao, Luis Gordillo, Oscar Rivas, Celina Rivera Rivas, Carmen Sanchez. (Attachments: # 1 Exhibit A)(Slater, Allyson) (Entered: 01/12/2021)

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Ruchita Coomar 1:18-cv-10225MLW
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 Case 1:18-cv-10225-MLW Document 27 Filed 04/10/18 Page 1 of 32

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

LILIAN PAHOLA CALDERON JIMENEZ )

and LUIS GORDILLO,

)

SANDRO DE SOUZA and CARMEN

)

SANCHEZ,

)

OSCAR RIVAS and CELINA RIVERA )

RIVAS,

)

LUCIMAR DE SOUZA and SERGIO

)

FRANCISCO,

)

DENG GAO and AMY CHEN,

)

)

Individually and on behalf of all others

)

similarly situated,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

KIRSTJEN M. NIELSEN,

)

Secretary of Homeland Security,

)

THOMAS HOMAN,

)

Acting Director, Immigration and Customs )

Enforcement,

)

THOMAS BROPHY,

)

Immigration and Customs Enforcement,

)

Enforcement and Removal Office,

)

Boston Field Office Director,

)

YOLANDA SMITH,

)

Superintendent of Suffolk County House of )

Correction,

)

STEVEN W. TOMPKINS,

)

Sheriff of Suffolk County,

)

DONALD J. TRUMP,

)

President of the United States,

)

)

Defendants-Respondents. )

)

No. 1:18-cv-10225-MLW
AMENDED CLASS ACTION COMPLAINT AND PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
ORAL ARGUMENT REQUESTED

Case 1:18-cv-10225-MLW Document 27 Filed 04/10/18 Page 2 of 32
INTRODUCTION This case concerns the government’s practice of subjecting noncitizens to detention and removal while they follow the government’s own regulations for obtaining lawful immigration status based on their marriages to U.S. citizens. Petitioners1 are married couples— each comprising one U.S. citizen and one noncitizen with a final order of removal—whose lives have been unlawfully and unconstitutionally upended by this practice. Petitioners’ plight arises from the incompatible actions of two Department of Homeland Security (DHS) agencies. One agency, U.S. Citizenship and Immigration Services (USCIS), enacted regulations in 2016 that allow Petitioners to pursue a process whereby noncitizen spouses of U.S. citizens can legalize their immigration status, and thereby address their Final Order of Removals, while largely remaining in the United States with their families. But another agency, Immigration and Customs Enforcement (ICE), detains or seeks to remove noncitizen Petitioners following this “stateside” provisional waiver process, ostensibly because those Petitioners are subject to final orders of removal. ICE thus defeats the “stateside” provisional waiver process’s express purpose, which is to protect United States citizens and their spouses from the extended and potentially indefinite family separation that would occur if their spouses had to leave the U.S. for the duration of their efforts to regularize their status. In effect, the government’s one hand beckons Petitioners forward, and its other hand grabs them. ICE now carries the day, seemingly because (unlike USCIS) it possesses armed agents, jail cells, and the mistaken belief it has unfettered authority to target Petitioners pursuing the provisional waiver process. What ICE lacks, though, is a lawful basis for its actions. Its
1 Plaintiffs-Petitioners are referred to herein as Petitioners; Defendants-Respondents are referred to as Respondents.
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efforts to detain and remove noncitizen Petitioners violates the rights of all Petitioners under the due process and equal protection guarantees of the U.S. Constitution, the Immigration and Nationality Act and its regulations, and the Administrative Procedure Act.
On behalf of themselves and all others similarly situated, Petitioners seek declaratory and injunctive relief preserving their ability to remain with their families while availing themselves of the 2016 provisional waiver regulations. Without this Court’s intervention, ICE will continue systematically targeting the very individuals that the provisional waiver regulations were meant to protect, at great cost to them and their U.S. citizen spouses.
PARTIES Petitioner Lilian Pahola Calderon Jimenez was apprehended by ICE on January 17, 2018 and detained in immigration custody at the Suffolk County House of Correction in Boston, Massachusetts. She was released from custody on February 13, 2018 and granted a stay of removal that expires on May 12, 2018. She remains subject to the jurisdiction of the Boston Field Office of ICE Enforcement and Removal Operations (ERO). Her U.S. citizen husband is Petitioner Luis Gordillo. Petitioner Lucimar de Souza was apprehended by ICE on January 30, 2016 and is detained at the Suffolk County House of Corrections in Boston Massachusetts. She remains
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subject to the jurisdiction of the ICE-ERO Boston Field Office. Her U.S. citizen husband is Petitioner Sergio Francisco.
Petitioner Sandro de Souza is subject to GPS monitoring and has been ordered to leave the United States on April 24, 2018. He is subject to the jurisdiction of the ICE-ERO Boston Field Office. His U.S. citizen wife is Petitioner Carmen Sanchez.
Petitioner Oscar Rivas is subject to GPS monitoring and has been ordered to leave the United States on May 2, 2018. He is subject to the jurisdiction of the ICE-ERO Boston Field Office. His U.S. citizen wife is Petitioner Celina Rivera Rivas.
Petitioner Deng Gao has a pending I-130 application. He is subject to the jurisdiction of the ICE-ERO Boston Field Office. His U.S. citizen wife is Petitioner Amy Chen.
Respondent Kirstjen M. Nielsen is the Secretary of Homeland Security, the arm of the federal government responsible for the enforcement of immigration laws. Secretary Nielson is the ultimate legal custodian of the noncitizen Petitioners and the noncitizen members of the proposed Class. She is sued in her official capacity.
Respondent Thomas D. Homan is the Acting Director for ICE, the department of DHS responsible for apprehending, detaining, and removing Petitioners. Director Homan is a legal custodian of the noncitizen Petitioners and the noncitizen members of the proposed Class. He is sued in his official capacity.
Respondent Thomas Brophy is the Acting Field Office Director for the ICE-ERO Boston Field Office. He is the immediate legal custodian of the noncitizen Petitioners. He is sued in his official capacity.
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Respondent Yolanda Smith is the Superintendent of the Suffolk County House of Correction. She was Ms. Calderon’s direct custodian until February 13, 2018, and continues to be Ms. Lucimar de Souza’s direct custodian. She is sued in her official capacity.
Respondent Steven W. Tompkins is the Sheriff of Suffolk County. He was also Ms. Calderon’s direct custodian until February 13, 2018, and continues to be Ms. Lucimar de Souza’s direct custodian. He is sued in his official capacity.
Respondent Donald J. Trump is the President of the United States and is ultimately responsible for the policies of all federal agencies, including DHS. He is sued in his official capacity.
JURISDICTION AND VENUE This Court has jurisdiction under 28 U.S.C. § 1331 (federal question), § 1361 (federal employee mandamus action), § 1651 (All Writs Act—mandamus), and § 2241 (habeas corpus), and Art. I § 9, cl. 2 of the U.S. Constitution (“Suspension Clause”), as Petitioners and members of the proposed Class are currently in custody under color of the authority of the United States in violation of the Constitution, laws, or treaties of the United States. See Devitri v. Cronen, No. 17-cv-11842-PBS, 2017 WL 5707528, at *2-3 (D. Mass. Nov. 27, 2017) (final orders constitute “custody” for purposes of habeas). Venue is proper in this Court because Petitioner and members of the proposed Class are subject to the jurisdiction of the ICE-ERO Boston Field Office. Accordingly, a substantial part of the events or omissions giving rise to the claims have occurred and will occur in the District of Massachusetts, including decisions concerning the detention and/or removal of noncitizen Petitioners and other noncitizen members of the proposed Class. 28 U.S.C. §§ 1391, 2241. Respondent Brophy is responsible for detention and removal decisions for individuals
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subject to the jurisdiction of the ICE-ERO Boston Field Office, and, on information and belief, is based in Massachusetts.
STATUTORY AND REGULATORY BACKGROUND The Immigration and Nationality Act (INA) allows the noncitizen spouses of U.S. citizens to apply for lawful permanent resident status in the United States. 8 U.S.C. § 1151(b)(2)(A)(i). If the noncitizen relative is in the United States unlawfully but is eligible for “adjustment of status” under 8 U.S.C. § 1255, he may apply to “adjust” to the status of a lawful permanent resident without leaving the country. But if that noncitizen relative is ineligible or unable to adjust his status, he must leave the United States in order to apply for an immigrant visa at a U.S. consulate. In general, noncitizens who entered the country with a visa and were never ordered removed may be eligible to adjust their status. Others, including those who crossed the border unlawfully and—as relevant here—those who have outstanding orders of removal, may generally not adjust their status, and must go abroad in order to apply to return as lawful permanent residents. The latter process is at issue in this case. Under that process, the noncitizen spouse must travel abroad to interview with a consular official and obtain an immigrant visa from the Department of State. But if he is subject to any grounds of inadmissibility described in 8 U.S.C. § 1182(a), he will not be permitted to immigrate to the United States unless a waiver of that ground is available and is granted in his case. In 2013, USCIS promulgated regulations that made it possible for the undocumented spouses of U.S. citizens to remain in the United States for most of the process of seeking permanent residency. The regulations reduced the time that the noncitizen spouse would need to wait overseas from many months or years to a few weeks, making it possible for many more families to pursue lawful status. Then, in 2016, the agency expanded that process to make
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it available to noncitizens with final orders of removal—including the noncitizen Petitioners and class members here. I. The 2013 Provisional Waiver Regulations
A noncitizen who has been unlawfully present in the United States for at least a year who departs and then seeks to return is ordinarily inadmissible (and thus barred from reentry) for 10 years. 8 U.S.C. § 1182(a)(9)(B)(i)(II).2 The Attorney General, however, may waive this inadmissibility ground if denying admission would cause “extreme hardship” to a U.S. citizen or lawful permanent resident spouse or parent. Id. § 1182(a)(9)(B)(v).
Prior to 2013, a noncitizen spouse of a U.S. citizen had to remain outside the United States while he or she applied for an immigrant visa and an unlawful presence waiver— often for “well over a year.” Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Proposed Rule, 77 Fed. Reg. 19902 (Apr. 2, 2012). USCIS recognized that “the prolonged separation from immediate relatives … cause[d] many U.S. citizens to experience extreme humanitarian and financial hardship.” Id.; see also id. at 19906 (“[A]n immediate relative’s extended absence from the United States can give rise to the sort of extreme hardships to U.S. citizen family members that the unlawful presence waivers are intended to address and, if the waiver is merited, avoid.”). It further acknowledged that, due to this hardship, “many immediate relatives who may qualify for an immigrant visa are reluctant to proceed abroad to seek an immigrant visa.” Id.
In 2013, USCIS created a special provisional, or “stateside,” waiver process that allowed the noncitizen spouses of U.S. citizens to pursue permanent residency almost entirely
2 A noncitizen who has been unlawfully present in the United States for more than 180 days but less than one year who departs and then seeks to return is ordinarily inadmissible for 3 years. Id. § 1182(a)(9)(B)(i)(I).
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from within the United States. By regulation, USCIS allowed these noncitizens to apply for and obtain a provisional unlawful presence waiver prior to departing for their consular interviews abroad. Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Final Rule (“2013 Final Rule”), 78 Fed. Reg. 535, 536 (Jan. 3, 2013).
USCIS enacted the streamlined provisional waiver process for the express purpose of “reduc[ing] the overall visa processing time, the period of separation of the U.S. citizen from his or her immediate relative, and the financial and emotional impact on the U.S. citizen and his or her family due to the immediate relative’s absence from the United States.” 77 Fed. Reg. at 19907. The process further would “encourage individuals to take affirmative steps to obtain an immigrant visa to become [lawful permanent residents] as reduced waiting times abroad would render it an efficient, more predictable process, rather than one with unpredictable and prolonged periods of separation.” Id.
But the 2013 regulations authorized stateside provisional waivers only for noncitizens not subject to any inadmissibility ground other than the unlawful presence bar. Thus, they did not directly benefit individuals with final orders of removal or their U.S. citizen spouses—i.e., Petitioners and proposed class members. II. The 2016 Provisional Waiver Regulations
In 2016, USCIS expanded the stateside provisional waiver program to cover, among others, those who have final orders of removal. A person who leaves the country with a final order of removal outstanding is inadmissible (and thus barred from reentry) for 10 years
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after his removal or departure. 8 U.S.C. § 1182(a)(9)(A).3 The Attorney General, however, may waive this requirement by granting permission to reapply for admission. Id. § 1182(a)(9)(A)(iii) (providing that the Attorney General may “consent[]” to the alien’s application for readmission).
The 2016 regulation expressly extended the streamlined stateside provisional waiver process to cover individuals who would be subject to inadmissibility on the basis of a prior removal order. See Expansion of Provisional Unlawful Presence Waivers of Inadmissibility; Final Rule (“2016 Final Rule”), 81 Fed. Reg. 50244, 50245 (July 29, 2016).
USCIS included noncitizens subject to final orders of removal in the 2016 regulation in order to afford them and their U.S. citizen family members the same benefits of certainty and reduced financial and emotional hardship that the 2013 regulation had provided to others. Specifically, the 2016 regulations note that the stateside provisional waiver process “encourage[s] individuals who are unlawfully present in the United States to seek lawful status after departing the country,” “reduce[s] the hardship that U.S. citizen and [lawful permanent resident] family members of individuals seeking the provisional waiver may experience as a result of the immigrant visa process,” and “offers applicants and their family members the certainty of knowing that the applicants have been provisionally approved for a waiver before departing from the United States.” Id. at 50245-46.
Thus, as a result of the 2016 stateside provisional waiver regulations, a noncitizen spouse of a U.S. citizen can remain in the United States while applying for waivers of
3 The period is five years for noncitizens who were removed or departed under expedited removal orders or after removal proceedings initiated upon arrival in the United States, 8 U.S.C. § 1182(a)(9)(A)(i), and 20 years in the case of a noncitizen convicted of an aggravated felony, id. § 1182(a)(9)(A)(ii).
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inadmissibility associated with both his unlawful residency and his prior removal order. The applicant need only travel abroad once provisionally approved for both of these waivers. III. The Stateside Provisional Waiver Application Process
Under the 2016 regulations, a noncitizen and his U.S. citizen spouse may follow a five-part process to allow the noncitizen to apply to become a lawful permanent resident with minimal time processing overseas.
First, the U.S. citizen spouse may file a Form I-130, Petition for Alien Relative. USCIS may require an appearance at an interview to determine whether the U.S. citizen and noncitizen spouses have a bona fide marriage.
Second, the noncitizen spouse may file a Form I-212, Permission to Reapply for Admission into the United States After Deportation or Removal. Consistent with the 2016 regulations, noncitizens can file a Form I-212 and obtain conditional approval prior to their departure from the United States if they will become subject to inadmissibility on the ground of having been previously removed or having departed with a final order of removal outstanding. 8 C.F.R. § 212.2(j); 2016 Final Rule, 81 Fed. Reg. at 50262.
Third, once a Form I-212 is conditionally approved, a noncitizen spouse may apply for a provisional unlawful presence waiver using Form I-601A, Application for Provisional Unlawful Presence Waiver. Id.; 8 C.F.R. § 212.7(e).4
Fourth, once the noncitizen obtains a provisional unlawful presence waiver, he or she must go abroad to appear for an immigrant visa interview at a U.S. consulate, 8 C.F.R.
4 Prior to filing an I-601A, the noncitizen must also pay the immigrant visa processing fee to the Department of State. 8 C.F.R. § 212.7(e)(5)(ii)(F)(1).
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§ 212.7(e)(3)(v), after which the Department of State may issue an immigrant visa if no other inadmissibility grounds apply.
Fifth, the noncitizen may travel to the United States with his or her immigrant visa. Upon admission to the United States, the noncitizen becomes a lawful permanent resident.
In sum, these regulations allow an otherwise eligible individual who is the spouse of a U.S. citizen—and who lives in the United States unlawfully and with a final order of removal outstanding—to demonstrate the bona fide nature of his marriage, prove his eligibility for the necessary waivers of inadmissibility, depart the country briefly to obtain an immigrant visa, and then return to the United States to rejoin his family as a lawful permanent resident. All in all, the provisional waiver application process shortens the time that a noncitizen applicant is separated from his family from years to approximately one month.
FACTUAL ALLEGATIONS Although the 2016 regulations remain in effect, ICE has adopted a policy and practice of detaining and seeking to remove individuals availing themselves of the provisional waiver process. I. Petitioners Lilian Pahola Calderon Jimenez and Luis Alberto Gordillo Petitioner Lilian Pahola Calderon Jimenez came to the United States from Guatemala with her family in 1991, when she was three years old. She and her family entered the U.S. by crossing its border with Mexico. In 1999, when Ms. Calderon was 12 years old, an immigration judge denied her father’s application for asylum, and gave her and her family 60 days to voluntarily depart the United States.
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The Board of Immigration Appeals (BIA) affirmed that order in 2002, providing Ms. Calderon and her family 30 days to voluntarily depart.5 When they did not leave, that voluntary departure grant automatically became a final order of removal. See 8 C.F.R. § 1240.26. Ms. Calderon was 15 years old.
In 2008, the BIA denied a motion to reopen that immigration proceeding, filed on behalf of Ms. Calderon and her parents.
Ms. Calderon applied for Deferred Action for Childhood Arrivals (DACA) in May 2016. In April 2017, her application for DACA was denied because, according to the government, she had not provided sufficient evidence of her continuous presence in the United States.
In 2016, while her DACA application was pending, Ms. Calderon and Petitioner Luis Gordillo began the process of pursuing her residency by virtue of their marriage.
Ms. Calderon and Mr. Gordillo were high school sweethearts and have lived together for more than 10 years. They had their first child, a daughter, in 2013. Their son was born in 2016. Like their father, both children are U.S. citizens.
Ms. Calderon and Mr. Gordillo were married in September 2016, after the birth of their second child.
Mr. Gordillo filed an I-130 petition in November 2016. Ms. Calderon and Mr. Gordillo were scheduled for an I-130 interview on January 17, 2018 at USCIS’s offices in Johnston, Rhode Island.
5 Ms. Calderon and her family lodged a petition for review at the Court of Appeals for the First Circuit, but did not pursue it. A motion to voluntarily dismiss the petition stated that counsel had been informed that the family had departed the country.
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Consistent with the purpose of an I-130 interview to assist in verification of their marriage, the interview notice instructed Ms. Calderon and Mr. Gordillo to bring “proof of [their] marital relationship,” including their children’s birth certificates and other documents.
Ms. Calderon and Mr. Gordillo were interviewed on January 17, 2018. Immediately after USCIS completed Ms. Calderon’s portion of the interview, ICE entered the interview room, handcuffed, and apprehended Ms. Calderon.
Outside, Mr. Gordillo was informed he was “all set.” Petitioner’s abrupt detention caused significant harm to her four-year-old daughter and 22-month-old son. Her daughter began having nightmares three or four times a night, bursting into tears without warning, crying for her mother, and becoming frightened by brief separations from other family members. Her son could not sleep in his crib on his own and became distressed because his mother was not there to soothe him. Both children face the risk of lasting trauma from nearly a month of separation. Upon information and belief, nothing in Ms. Calderon or Mr. Gordillo’s interview provided grounds for Ms. Calderon’s detention and attempted removal. To the contrary, Ms. Calderon was informed that the I-130 was approved, meaning that USCIS recognized her marital relationship to a U.S. citizen as legitimate, the first step in her effort to apply for permanent residency. ICE determined Ms. Calderon to be a flight risk on the basis that she was subject to final order of removal yet still present in the United States. In doing so, ICE relied on an algorithm, the Risk Classification Assessment. See Lyons Affidavit (Dkt. No. 19) ¶ 6. On information and belief, the Risk Classification Assessment heavily biases outcomes in favor of detention in any case in which a noncitizen has a final order of removal and did not depart, even
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though the 2016 provisional waiver process allows individuals in precisely this situation to address these deficiencies in their immigration status and become lawful permanent residents by virtue of their marriage to U.S. citizens.
ICE’s determination that Ms. Calderon is a flight risk was reached irrespective of her efforts to avail herself of the 2016 provisional waiver regulations, or the facts that she has been in the United States for 26 years, is married to a U.S. citizen, and is the primary caretaker of her two U.S. citizen children. Instead, ICE noted that “[t]he availability of bed space and lack of child-care issues were also considered and determined to weigh in favor of detention.” Id.
ICE further stated that its actions were “in accordance with Executive Order 13768 of January 25, 2017 – Enhancing Public Safety in the Interior of the United States … and ICE’s operating procedures.” Id. Executive Order 13768, issued on January 25, 2017, defined as a removal priority noncitizens subject to “final orders of removal … who have not complied with their legal obligation to depart the United States.”6
Ms. Calderon poses no danger or flight risk. Indeed, she was released without conditions on February 13, 2018, shortly after the filing of this litigation, and granted a three-month stay of removal. On March 8, 2018, Ms. Calderon filed a Form I-212, Permission to Reapply for Admission into the United States After Deportation or Removal. That application was approved on April 2, 2018.7
6 Executive Order: Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), available at https://www.whitehouse.gov/presidential-actions/executive-order-enhancing-publicsafety-interior-united-states/. 7 Petitioner has also filed a motion to reopen her immigration case, and requested an emergency stay of removal from the BIA. The BIA has not ruled on these requests.
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Ms. Calderon’s stay of removal expires May 12. But she remains subject to the threat of detention at any time, see Apr. 3, 2018 Joint Status Report (Dkt. No. 23), and to removal once her administrative stay expires in May. II. Petitioners Lucimar de Souza and Sergio Francisco
Petitioners Lucimar de Souza and Sergio Francisco have been married since August 22, 2006. They have a 10-year-old son.
Ms. Lucimar de Souza is subject to a final order of removal and is detained. Mr. Francisco is a U.S. citizen.
Ms. Lucimar de Souza is a native of Brazil, and arrived in the United States in 2002. After being apprehended at the border, she did not receive notice of her immigration court hearing. When she failed to attend, she was ordered removed on June 11, 2002.
In May 2014, Ms. Lucimar de Souza filed a motion to reopen her removal proceedings. Her motion was denied in June 2014. She appealed that denial to the BIA, which dismissed her appeal on July 23, 2015.
Mr. Francisco filed his I-130 Petition on September 26, 2016. Mr. Francisco and Ms. Lucimar de Souza attended their I-130 interview on January 30, 2018. The petition was approved.
Immediately after the interview concluded Ms. Lucimar de Souza was detained. She is being held at the Suffolk County House of Correction in Boston.
Ms. Lucimar de Souza filed an emergency motion to reopen her removal proceedings on January 30, 2018. But the BIA’s systems did not properly reflect that Ms. Lucimar de Souza was detained, so the agency declined to hear her appeal on an expedited basis. The BIA’s systems were not corrected until March 8, 2018 following over a month in prison and
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thirteen phone calls from her attorney to ICE and the BIA. The motion to reopen remains pending.
On March 23, 2018, Ms. Lucimar de Souza’s immigration attorney filed a request for bond or supervised release with ICE. ICE has not responded.
Ms. Lucimar de Souza’s counsel is currently in the process of preparing her I-212 application.
Ms. Lucimar de Souza poses no danger or flight risk. Ms. Lucimar de Souza’s detention has been extremely trying for her family, especially her 10-year-old son, who has begged to be allowed to stay with his mother in detention rather than go back home without her. III. Petitioners Sandro de Souza and Carmen Sanchez Petitioners Sandro de Souza and Carmen Sanchez have been married since April 14, 2011. They live with Mr. Sandro de Souza’s 20-year-old son. Mr. Sandro de Souza is subject to a final order of removal and has been ordered to depart the United States by April 24; Ms. Sanchez is a U.S. citizen. Mr. Sandro de Souza is a native of Brazil and has lived in the United States since 1997, when he entered on a tourist visa. Mr. Sandro de Souza fled Brazil after his life was threatened by a criminal group whose prior assault he had reported to the police. Mr. Sandro de Souza was placed into removal proceedings in 2005 and applied for asylum in 2007. His application was denied in 2010, but he was granted a voluntary departure. The BIA affirmed the immigration judge’s decision on September 8, 2011. When Mr. Sandro de Souza did not leave, his voluntary departure was converted to an order of removal.
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By then, Mr. Sandro de Souza was married to Ms. Sanchez, a U.S. citizen. On October 31, 2011, Ms. Sanchez filed an I-130 Petition for Mr. Sandro de Souza. The couple attended an I-130 interview on June 13, 2013 in Boston.
The day before his interview, Mr. Sandro de Souza voluntarily went to ICE’s Burlington Office to enter into an order of supervision. He has regularly reported to ICE ever since and has received stays of removal.
After the 2013 provisional waiver regulations went into effect, Mr. Sandro de Souza moved to reopen his immigration proceedings based on his potential eligibility to seek an I-601A waiver. The BIA declined to reopen the case because Ms. Sanchez’s I-130 was still pending.
USCIS failed to act on Ms. Sanchez’s I-130 petition for almost seven years despite numerous inquiries and requests to process his application. Finally, USCIS interviewed Mr. Sandro de Souza and Ms. Sanchez for a second time on March 1, 2018 and approved their I130.
On February 8, 2017, the Field Office Director of ICE’s Boston Field Office denied Mr. Sandro de Souza’s application for a stay of removal. Mr. Sandro de Souza continued to report to ICE as required.
At his January 2018 check-in, Mr. Sandro de Souza was told to purchase an airline ticket to depart the United States by March 9, 2018. The date was pushed back because of progress on his I-130. But Mr. Sandro de Souza was ultimately told to appear on March 20, 2018 to present tickets for departure from United States by April 24, 2018.
At his March 20, 2018 check-in, Mr. Sandro de Souza was placed on electronic monitoring and given instructions to depart, despite the approval of his I-130. That day, he again
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applied for a stay of removal. It was denied. On information and belief, if he does not depart by April 24, 2018, he will face the threat of detention and removal.
Ms. Sanchez and Mr. Sandro de Souza’s son both suffer from mental health issues that are likely to be exacerbated of Mr. Sandro de Souza is forced to depart the United States. IV. Petitioners Oscar Rivas and Celina Rivera Rivas
Petitioners Oscar Rivas and Celina Rivera Rivas have been married since December 23, 2016. They have two kids together: a seven-year-old daughter and a five-year-old son.
Mr. Rivas is subject to a final order of removal and has been ordered to depart the United States by May 2, 2018. Ms. Rivera is a U.S. citizen.
Mr. Rivas is a native of El Salvador. He entered the United States in 2006 at the age of 18 after being beaten and shot at by a gang that he refused to join. He is afraid that if he returns to El Salvador he will be killed.
Mr. Rivas was placed into removal proceedings upon entry and filed a timely application for asylum. An immigration judge denied asylum and ordered his removal in 2009. The BIA dismissed his appeal in 2011, and dismissed his motion to reconsider in 2012. After losing these appeals, Mr. Rivas surrendered to ICE.
After Mr. Rivas surrendered to ICE, he was granted a stay of removal in 2013, which was renewed annually. In March 24, 2017, his application for a stay was denied for the first time.
By then, Mr. Rivas and Ms. Rivera had recently married. On April 12, 2017, Ms. Rivera, who was at that time a legal permanent resident, filed an I-130 Petition for Mr. Rivas. When she became a citizen on September 22, 2017, she upgraded her I-130 petition to that of a petition for an immediate relative of a U.S. citizen.
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Mr. Rivas filed his I-212 Application on July 7, 2017. The USCIS has yet to respond to either application.
At his March 1, 2018 check-in with ICE, Mr. Rivas was ordered to return to ICE’s office on April 2, 2018 with airline ticket departing the U.S. by May 2, 2018. On April 2, 2018, Mr. Rivas returned to ICE with these tickets. That day, ICE placed Mr. Rivas on electronic monitoring. On information and belief, if he does not depart by May 2, Mr. Rivas will be subject to detention and removal.
Mr. Rivas’s departure would devastate his wife and children and make it difficult for them to afford housing and other basic necessities. V. Petitioners Deng Gao and Amy Chen
Petitioners Deng Gao and Amy Chen have been married since May 20, 2016. They live with Mr. Gao’s thirteen-year-old son, Ms. Chen’s eight-year-old son, Ms. Chen’s fiveyear-old daughter, and their six-week-old son.
Mr. Gao is subject to a final order of removal and fears that he will be detained at his I-130 interview. Ms. Chen is a U.S. citizen.
Mr. Gao is a native of China and arrived in the United States in 2005 on a K-3 visa after his family arranged his courtship to a woman who was a U.S. citizen. Upon arrival, he learned that his new wife had severe special needs and that he would be under the control of his in-laws, who did not allow him to see his immigration paperwork and threatened to ruin his immigration case if he ceased supporting his wife.
Mr. Gao missed a hearing before an immigration judge on September 10, 2008 because he never received notice of the hearing. He was ordered removed.
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After fleeing his first wife’s family, Mr. Gao moved to Massachusetts, where he met Ms. Chen in 2011. They started dating in 2014 and were legally married in 2016, after Mr. Gao’s divorce was finalized.
The immigration court denied Mr. Gao’s motion to reopen his immigration case on August 17, 2017. His appeal is currently pending.
Ms. Chen filed her I-130 Petition on June 28, 2016. It is still pending and he is in the queue for an interview in Boston.
Mr. Gao and Ms. Chen worry that Mr. Gao could be detained at his I-130 interview and removed. Their family is completely dependent on Mr. Gao for financial support, and has trouble imagining how they would care for their children—particularly Mr. Gao’s thirteen-year-old son, who needs constant care—if he were removed to China.
CLASS ACTION ALLEGATIONS As this Court has noted, and as Petitioners’ cases demonstrate, Ms. Calderon’s detention was “part of a pattern that has emerged in related cases.” Feb. 15, 2018 Order (Dkt. No. 17) at 2. ICE has admitted that five individuals other than Petitioner Calderon were arrested while seeking permanent residency at a Massachusetts or Rhode Island USCIS office in January 2018 alone. Lyons Affidavit (Dkt No. 19) ¶¶ 12-14; see also Oliveira v. Moniz et al., No. 18-cv-10150-MLW. Ms. Lucimar de Souza is one of these individuals. This Court has also observed that the petitioner in Arriaga Gil v. Tompkins, No. 17-cv-10743-MLW, was one of five noncitizens aliens arrested by ICE at a USCIS office in March 2017 while seeking lawful permanent residency by virtue of their marriages to U.S. citizens. Feb. 15, 2018 Order (Dkt. No. 17) at 2.
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Petitioners now bring this action for themselves and as a class action on behalf of others similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2), or, in the alternative, as a class-action habeas, on behalf of a class of people pursuing the provisional waiver application process. This proposed class is defined as:
Any U.S. citizen and his or her noncitizen spouse who (1) has a final order of removal and has not departed the U.S. under that order; (2) is the beneficiary of a pending or approved I-130, Petition for Alien Relative, filed by the U.S. citizen spouse; and (3) is not “ineligible” for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (vi).
Numerosity: The proposed class meets the requirements of Federal Rule of Civil Procedure 23(a)(1) because it is so numerous that joinder would be impracticable. On information and belief, the proposed class presents a common scenario in Massachusetts’ immigrant communities, and there are well over 40 putative class members. According to its own statistics, in the third quarter of 2017 alone, USCIS had 9,336 pending I-130 applications filed by U.S. citizens on behalf of their immediate family members in states within the jurisdiction of ICE-ERO Boston Field Office. Even if less than one percent of these were filed by and on behalf of class members who were otherwise eligible, the numerosity requirement would be readily satisfied. In addition, as U.S. citizens continue to file I-130 applications for noncitizen spouses who are subject to final orders of removal, additional members will join the class in the future. Moreover, the inherent transitory state of the putative class members as I-130 applications are submitted and noncitizen class members acquire lawful permanent resident status or are removed further demonstrates that joinder is impracticable.
Commonality: The proposed Class meets the requirements of Federal Rule of Civil Procedure 23(a)(2) because class members share common issues of law and fact, including, but not limited to, whether the government may detain or remove noncitizen class members on
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the basis of their removal orders alone, and without regard to their efforts to correct deficiencies in their immigration status under the 2016 provisional waiver regulations.
Typicality: The requirements of Federal Rule of Civil Procedure 23(a)(3) are satisfied because petitioners’ claims are typical of those of the proposed class as a whole. Petitioners and the class of individuals they seek to represent are all either: (1) subject to final removal orders, married to U.S. citizens, and have a pending or approved I-130 petition submitted by their spouse, or (2) the U.S. citizen spouse of such a person. Petitioners assert that detaining or taking steps toward removing noncitizen petitioners violates all petitioners’ Fifth Amendment rights to due process and equal protection, the Immigration and Nationality Act and applicable regulations, and the Administrative Procedure Act. Their claims therefore raise the same legal questions at the core of the class claims.
Adequacy: The requirements of Federal Rule of Civil Procedure 23(a)(4) are satisfied. Petitioners will adequately represent the proposed class because they seek the same relief as the other members of the proposed class and do not have any interests adverse to those of the proposed class as a whole. In addition, the proposed class is represented by counsel from Wilmer Cutler Pickering Hale and Dorr LLP, the American Civil Liberties Union Foundation of Massachusetts, and immigration attorney Kathleen Gillespie. These counsel have experience litigating class actions, including class actions involving the rights of noncitizens.
Finally, the proposed Class satisfies Federal Rule of Civil Procedure 23(b)(2) because immigration authorities have acted on grounds that are generally applicable to the proposed Class, in that all class members or their spouses have pending I-130 petitions and face potential detention or removal without regard to their efforts to correct deficiencies in their
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immigration status under the 2016 provisional waiver regulations. Classwide injunctive and
declaratory relief is therefore appropriate.
ALLEGATIONS RELATING TO ANIMUS
On information and belief, Respondents’ efforts to restrict eligibility for the
stateside provisional waiver process for eligible noncitizen petitioners and class members is
motivated by racial animus and animus based on national origin. Indeed, many of
Respondents’ immigration policies—from the decisions to render one million noncitizens
unlawfully present,8 to the calls for the elimination of “chain migration,”9 to the policies
obstructing citizenship for lawful permanent residents in the military10—can hardly be
understood as means of protecting national security or controlling illegal immigration. Instead,
on information and belief, Respondents’ immigration policies reflect a consistent desire to
drive out immigrants of color and prevent non-white people from becoming American.
8 Adam Adelman, “Trump Ends DACA Program, No New Applications Accepted,” NBC News (Sept. 5, 2017), https://www.nbcnews.com/politics/immigration/trump-dreamers-dacaimmigration-announcement-n798686 (noting that termination of DACA affected 800,000 “Dreamers”); Nick Miroff & David Nakamura, “200,000 Salvadorans May Be Forced to Leave the U.S. as Trump Ends Immigration Protections,” Wash. Post (Jan. 8, 2018), https:// www.washingtonpost.com/world/national-security/trump-administration-to-end-provisional -residency-for-200000-salvadorans/2018/01/08/badfde90-f481-11e7-beb6-c8d48830c54d _story.html. 9 Julie Bykowicz & Rebecca Ballhaus, “Trump Revives Attack on Diversity Visa, ‘Chain Migration’ in Speech,” Wall St. J. (Feb. 23, 2018), https://www.wsj.com/articles/trump-revives -attack-on-diversity-visa-chain-migration-in-speech-1519410081; Nick Miroff, “Family Ties Drive U.S. Immigration. Why Trump Wants to Break the ‘Chains,’” Wash. Post. (Jan. 2, 2018), https://www.washingtonpost.com/world/national-security/how-chain-migration-became-a-targetin-trumps-immigration-agenda/2018/01/02/dd30e034-efdb-11e7-90ed-77167c6861f2_story.html, (“Attorney General Jeff Sessions, Homeland Security Secretary Kirstjen Nielsen and other Trump Cabinet members have also hammered at ‘chain migration’ in recent weeks, calling it a threat to American workers and national security.”). 10 Jim Garamone, “DoD Announces Policies Affecting Foreign Nationals Entering Military,” U.S. Dep’t of Defense (Oct. 13, 2017), https://www.defense.gov/News/Article/Article /1342430/dod-announces-policies-affecting-foreign-nationals-entering-military/.
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Respondent Trump’s statements provide evidence of this animus. He has asked why the United States could not have more immigrants from Norway, a predominantly white country.11 While campaigning, he labeled Mexican immigrants as criminals and rapists12; as President, he famously stated that Haitians “all have AIDS”13 and expressed a desire to reduce immigration from “shithole” countries such as Haiti, El Salvador, and African nations.14 Respondent Trump declined to criticize white nationalist demonstrators15 and pardoned an Arizona sheriff convicted of contempt of a judicial order requiring that he cease racially profiling Latinos, calling the sheriff an “American patriot.”16
11 Henrik Prysker Libell & Catherin Porter, “From Norway to Haiti, Trump’s Comments Stir Fresh Outrage,” N.Y. Times (Jan. 11, 2018), https://www.nytimes.com/2018/01/11/world/trump -countries-haiti-africa.html. 12 Katie Reilly, “Here Are All the Times Donald Trump Insulted Mexico,” Time (Aug. 31, 2016), http://time.com/4473972/donald-trump-mexico-meeting-insult/. 13 Michael D. Shear & Julie Hirschfield Davis, “Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda,” N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017 /12/23/us/politics/trump-immigration.html. 14 Josh Dawsey, “Trump Derides Protections for Immigrants from ‘Shithole’ Countries,” Wash. Post. (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-forimmigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7 -91af-31ac729add94_story.html; Julie Hirschfield Davis et al., “Trump Alarms Lawmakers with Disparaging Words for Haiti and Africa,” N.Y. Times (Jan. 11, 2018), https://www.nytimes.com /2018/01/11/us/politics/trump-shithole-countries.html. 15 Glenn Thrush & Maggie Haberman, “Trump Is Criticized for Not Calling Out White Supremacists,” N.Y. Times (Aug. 12, 2017), https://www.nytimes.com/2017/08/12/us/trump -charlottesville-protest-nationalist-riot.html. 16 Julie Hirschfield Davis & Maggie Haberman, “Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration,” N.Y. Times (Aug. 25, 2017), http://www.nytimes.com /2017/08/25/us/politics/joe-arpaio-trump-pardon-sheriff-arizona.html.
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CLAIMS FOR RELIEF Count 1 - Immigration and Nationality Act and Applicable Regulations
The foregoing allegations are realleged and incorporated herein. The INA does not condemn individuals who live in the United States unlawfully and under final orders of removal to permanent separation from their U.S. citizen spouses and children. Instead, it allows these individuals, if otherwise eligible, to leave the U.S. temporarily and return as lawful permanent residents—if they are granted waivers of applicable inadmissibility grounds under 8 U.S.C. § 1182(a). Specifically, § 1182(a)(9)(A)(iii) allows an individual who departed under an order of removal to avoid a bar on admission by obtaining the “consent[]” of the Attorney General. And § 1182(a)(9)(B)(v) allows an individual who lived in the United States unlawfully to avoid a similar 3-to-10-year bar by demonstrating that a denial of admission would cause “extreme hardship” to a U.S. citizen spouse or parent. These regulations thus allow an otherwise eligible individual who is the spouse of a U.S. citizen—and who lives in the United States unlawfully and with a final order of removal—to demonstrate the bona fide nature of his or her marriage, prove his or her eligibility for required waivers, depart the country briefly to complete processing of an immigrant visa application at a U.S. consulate, and then return to the United States to rejoin his or her family as a lawful permanent resident. Detaining and threatening to detain and remove noncitizen Petitioners and other noncitizen members of the proposed class without allowing them to follow these provisional waiver procedures violates the INA and applicable regulations.
Count 2 - Due Process under the U.S. Constitution The foregoing allegations are realleged and incorporated herein.
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Due process protects a noncitizen’s liberty interest in the adjudication of applications for relief and benefits made available under the immigration laws. See Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) (recognizing protected interests in the “right to seek relief’ even when there is no “right to the relief itself”). Moreover, Petitioners and class members have a liberty interest in being able to remain in the United States in order to pursue adjudications for relief under the provisional waiver process—which was specifically designed to allow them to take steps towards legalization from within the United States in order to avoid protracted separation from their U.S. citizen spouses and other family members.
Due process also protects a U.S. citizen’s liberty interest in living with his spouse in the United States. Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” (quoting Loving v. Virginia, 388 U.S. 1, 12 (1967))). The citizen Petitioners and other citizen members of the proposed class have a protected due process interest in their spouse’s ability to remain in the United States while seeking lawful permanent residency through the provisional waiver process.
Finally, due process protects Petitioners from being the victims of a bait and switch. See, e.g., Raley v. State of Ohio, 360 U.S. 423, 438-439 (1959) (“convicting a citizen for exercising a privilege which the State clearly had told him was available to him” was the “most indefensible sort of entrapment by the State” and violated the Due Process Clause).
Detaining and threatening to detain and remove noncitizen Petitioners and other noncitizen members of the proposed class without allowing them to follow the 2016 provisional waiver procedures violates all Petitioners’ rights under the Due Process Clause of the Fifth Amendment.
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Count 3 – Equal Protection under the U.S. Constitution The foregoing allegations are realleged and incorporated herein. Petitioners have a right under the Fifth Amendment to the U.S. Constitution to equal protection of the laws. On information and belief, Executive Order 13768—and Respondents’ practice of subjecting noncitizen Petitioners and noncitizen members of the proposed class to detention and removal despite their efforts to legalize their immigration status—are motivated by racial animus and animus based on national origin and are unlawful. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265266 (1977) (explaining that courts must look at whether “a discriminatory purpose” was “a motivating factor” in assessing whether a government action violates the equal protection clause).
Count 4 - Administrative Procedure Act The foregoing allegations are realleged and incorporated herein. The Administrative Procedure Act (APA) forbids agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A court reviewing agency action “must assess … whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”; it must “examin[e] the reasons for agency decisions—or, as the case may be, the absence of such reasons.” Judulang v. Holder, 565 U.S. 42, 53 (2011) (quotations omitted). Detaining and threatening to detain and remove noncitizen petitioners and other noncitizen members of the proposed class without allowing them to follow these provisional waiver procedures is and would be arbitrary and capricious under the APA.
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The APA also sets forth rulemaking procedures that agencies must follow before adopting substantive rules. See 5 U.S.C. § 553. DHS followed these rulemaking procedures to establish the provisional waiver process for the unlawful presence waiver, see 2013 Final Rule, 78 Fed. Reg. at 536, and to expand the availability of that waiver to noncitizens living with final orders of removal, see 2016 Final Rule, 81 Fed. Reg. at 50244.
ICE’s sudden decision to prohibit some noncitizens with final orders of removal from pursuing the process created by these regulations—a prohibition accomplished in this case by detaining and attempting to remove noncitizen petitioners and other noncitizen members of the proposed class in the midst of their efforts to legalize their status—improperly alters these substantive rules without notice-and-comment rulemaking and without considering the reliance interests created by the regulations, in violation of the APA.
Count 5 - Immigration and Nationality Act and Applicable Regulations (as applied to individuals in detention)
The foregoing allegations are realleged and incorporated herein. The Immigration and Nationality Act (INA) provides for mandatory detention during the 90-day “removal period” that begins immediately after a noncitizen’s order of removal becomes final. 8 U.S.C. § 1231(a)(1). After the 90-day removal period, the INA and its applicable regulations provide that detaining noncitizens is generally permissible only upon notice to the noncitizen and after an individualized determination of dangerousness and flight risk. See 8 U.S.C. § 1231(a)(6); 8 C.F.R. § 241.4(d), (f), (h) & (k). Interpreted in light of the United States Constitution the INA, the applicable regulations do not permit detention of the noncitizen Petitioners and class members simply on the basis of their prior order of removal and without any determination of danger and flight risk by a neutral magistrate. Nor do they authorize detention of the noncitizen Petitioners and class
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members to be substantially determined by an algorithm that, on information and belief, creates a presumption of detention for any individual who has a final order of removal and has not departed the United States.
The government’s detention of Ms. Calderon and Ms. Lucimar de Souza violated and violates the INA and applicable regulations. Moreover, by detaining and threatening to detain other class members without a meaningful determination of flight risk and danger, the government violates the INA and applicable regulations.
Count 6 - Due Process under the U.S. Constitution (as applied to individuals in detention)
The foregoing allegations are realleged and incorporated herein. Other than as punishment for a crime, due process permits the government to take away liberty only “in certain special and narrow nonpunitive circumstances … where a special justification … outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (quotations omitted). Such special justification exists only where a restraint on liberty bears a “reasonable relation” to permissible purposes. Jackson v. Indiana, 406 U.S. 715, 738 (1972); see also Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Zadvydas, 533 U.S. at 690. In the immigration context, those purposes are “ensuring the appearance of aliens at future immigration proceedings and preventing danger to the community.” Zadvydas, 533 U.S. at 690 (quotations omitted). Those substantive limitations on detention are closely intertwined with procedural due process protections. Foucha, 504 U.S. 78-80. Noncitizens have a right to adequate procedures to determine whether their detention in fact serves the purposes of ensuring their appearance or protecting the community. Id. at 79; Zadvydas, 533 U.S. 692; Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 949 (9th Cir. 2008). Where laws and regulations fail to
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provide such procedures, the habeas court may assess whether the noncitizen’s immigration detention is reasonably related to the purposes of ensuring her appearance or protecting the community, Zadvydas, 533 U.S. at 699, or require release unless a bond hearing is provided.
Because Ms. Calderon and Ms. Lucimar de Souza pose no danger or flight risk and were detained while pursuing available avenues to legalize their immigration status through their U.S. citizen spouses, their detention was and is not reasonably related to its purposes, and is unlawful.
Moreover, because Ms. Calderon and Ms. Lucimar de Souza and other members of the proposed class face detention without any meaningful determination of danger or flight risk, and on the basis of an algorithm that, on information and belief, creates a presumption of detention for any individual who has a final order of removal and has not departed the United States, their detention violates due process.
REQUEST FOR ORAL ARGUMENT Petitioner respectfully requests oral argument on this Amended Class Action Complaint and Petition for Habeas Corpus.
PRAYER FOR RELIEF Petitioner asks that this Court grant the following relief:
Order Ms. Lucimar de Souza’s immediate release from custody, or, in the alternative, require the government to provide her with a bond hearing in front of an immigration judge;
Enjoin the removal of all the noncitizen Petitioners while they are pursuing legalization by way of the provisional waiver process;
Declare that Respondents’ policy and practice of subjecting noncitizen Petitioners and other noncitizen members of the proposed class for detention or removal on the basis of a
30

Case 1:18-cv-10225-MLW Document 27 Filed 04/10/18 Page 31 of 32

final order of removal and thereby denying them the ability to avail themselves of the provisional

waiver process is contrary to law;

Enjoin Respondents from subjecting noncitizen Petitioners and other noncitizen

members of the proposed class to detention or removal on the basis of a final order of removal,

without regard to their efforts to pursue legalization under the provisional waiver regulations;

Enjoin Respondents from detaining any Petitioner or class member without notice

and an opportunity to be heard, unless exigent circumstances exist;

Enjoin Respondents from continuing to hold any Petitioner or class member in

detention without an individual bond hearing;

Award attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)

and 5 U.S.C. § 504, if applicable; and

Order any further relief this Court deems just and proper.

Respectfully submitted this 10th day of April, 2018.

/s/ Kevin Prussia

Matthew R. Segal (BBO # 654489) Adriana Lafaille (BBO # 680210) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170
Kathleen M. Gillespie (BBO # 661315) Attorney at Law 6 White Pine Lane Lexington, MA 02421 (339) 970-9283

Kevin Prussia, Esq. (BBO # 666813) Jonathan Cox, Esq. (BBO # 687810) Stephen Provazza, Esq. (BBO # 691159) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 kevin.prussia@wilmerhale.com jonathan.cox@wilmerhale.com stephen.provazza@wilmerhale.com
Attorneys for Petitioners

31

Case 1:18-cv-10225-MLW Document 27 Filed 04/10/18 Page 32 of 32 CERTIFICATE OF SERVICE
I hereby certify that on April 10, 2018, a true copy of the foregoing will be electronically filed with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF).
/s/ Kevin Prussia Kevin Prussia
32

 
 Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

LILIAN PAHOLA CALDERON JIMENEZ, )

)

Petitioner,

)

)

)

KIRSTJEN M. NIELSEN,

)

Secretary of Homeland Security,

)

CHRISTOPHER CRONEN,

)

Immigration and Customs Enforcement, )

Boston Field Office Director,

)

YOLANDA SMITH,

)

Superintendent of Suffolk County

)

Correctional Facility,

)

STEVEN W. TOMPKINS,

)

Sheriff of Suffolk County,

)

)

Respondents.

)

)

Civ. No.
PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241
ORAL ARGUMENT REQUESTED

INTRODUCTION

1. Petitioner Lilian Pahola Calderon Jimenez is in immigration

detention—and faces the prospect of removal—because she was seized by

Immigration and Customs Enforcement (ICE) while following the very instructions

that the government gave her for seeking to stay in this country while applying to

become a lawful permanent resident. On January 17, 2018, ICE abruptly detained

Ms. Calderon after she and her U.S. citizen husband appeared for an interview at

the offices of U.S. Citizenship and Immigration Services (USCIS). Without this

Court’s intervention, the government will continue to detain Ms. Calderon, and may

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 2 of 16
undertake efforts remove her, in violation of federal law, federal regulations, and due process—and at great risk to her already-traumatized children.
2. Ms. Calderon is 30 years old and has lived in the United States since she was three. She has been subject to a final order of removal since her father’s asylum application was denied when she was 15. She is now married to a U.S. citizen and has two U.S. citizen children, ages four and one.
3. In 2016, new regulations created a streamlined process for certain individuals—who had unlawfully entered the country and were living with final orders of removal—to seek lawful permanent residency based on a family relationship to a United States citizen. Ms. Calderon and her husband availed themselves of these regulations. In November 2016, they filed the immigration petition that constitutes the first step in this process.
4. To confirm their relationship, Ms. Calderon and her husband appeared for a USCIS interview on January 17, 2018. But after her interview, Petitioner was unexpectedly detained by ICE. Upon information and belief, ICE intends to remove Ms. Calderon based on her 2002 removal order.
5. This seizure occurred even though Ms. Calderon followed procedures that the government itself has prescribed for avoiding such a tragedy. In effect, the government’s left hand beckoned her forward, and its right hand grabbed her.
6. Ms. Calderon’s detention and intended removal violate and would violate the Immigration and Nationality Act and its regulations, the Administrative Procedures Act, and the U.S. Constitution’s due process guarantee. Unless habeas
2

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 3 of 16
relief is granted, she faces removal to a country she does not know, and continued detention away from her U.S. citizen husband and children.
PARTIES 7. Petitioner Lilian Pahola Calderon Jimenez was detained by ICE on January 17, 2018. She remains in immigration custody at the Suffolk County House of Correction in Boston, Massachusetts. 8. Respondent Kirstjen M. Nielsen is the Secretary of Homeland Security and is Petitioner’s ultimate legal custodian. She is sued in her official capacity. 9. Respondent Christopher Cronen is the Field Office Director for ICE Enforcement and Removal Operations in ICE’s Boston Field Office. He is one of Petitioner’s legal custodians, and is sued in his official capacity. 10. Respondent Yolanda Smith is the Superintendent of the Suffolk County House of Correction and is Petitioner’s immediate custodian. She is sued in her official capacity. 11. Respondent Steven W. Tompkins is the Sherriff of Suffolk County and is Petitioner’s immediate custodian. He is sued in his official capacity.
JURISDICTION AND VENUE 12. This Court has jurisdiction under 28 U.S.C. § 2241 (habeas corpus) and Article I, Section 9, Clause 2, of the United States Constitution (Suspension Clause). 13. Venue is proper in the District of Massachusetts because Petitioner is currently detained at the Suffolk County House of Correction in Boston,
3

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 4 of 16
Massachusetts, under color of the authority of the United States, in violation of the Constitution, laws or treaties thereof. 28 U.S.C. §§ 1391, 2241.
FACTS I. Petitioner’s immigration history.
14. Petitioner Lilian Pahola Calderon Jimenez came to the United States from Guatemala with her family in 1991, when she was three years old. Ex. 1, ¶ 3. She and her family entered the U.S. by crossing its border with Mexico. Ex. 2, ¶ 6.
15. In 1999, when Petitioner was 12 years old, an immigration judge denied her father’s application for asylum, and gave her and her family 60 days to voluntarily depart the United States. Ex. 1, ¶ 4.
16. The Board of Immigration Appeals (BIA) affirmed that order in 2002, providing Petitioner and her family 30 days to voluntarily depart. When they did not leave, that voluntary departure grant automatically became a final order of removal. Ex. 1, ¶¶ 5-6; see 8 C.F.R. § 1240.26. Petitioner was 15 years old.
17. In 2008, the BIA denied a motion to reopen that immigration proceeding, filed on behalf of Petitioner and her parents. Ex. 1, ¶¶ 8-11.
18. Petitioner applied for Deferred Action for Childhood Arrivals (DACA) in May 2016. In April 2017, her application for DACA was denied because, according to the government, she had not provided sufficient evidence of her continuous presence in the United States. Ex. 1, ¶ 12.
4

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 5 of 16
II. Petitioner’s effort to avail herself of “provisional waiver” regulations and become a lawful permanent resident. 19. In 2016, while her DACA application was pending, Petitioner began
the process of seeking to become a lawful permanent resident by virtue of her marriage to a U.S. citizen. Ex. 2, ¶¶ 4-23.
20. Petitioner and her husband were high school sweethearts and have lived together for more than 10 years. They had their first child, a daughter, in 2013. Their son was born in 2016. Like their father, both children are U.S. citizens.
21. Petitioner and her husband were married in September 2016, after the birth of their second child.
22. Government regulations permit a noncitizen who has married a U.S. citizen to apply to become a lawful permanent resident, and to seek to remain in this country during most of the process of pursuing that application, even if the noncitizen has a final order of removal, and even if the noncitizen entered the country without inspection.
a. A noncitizen who enters the United States without inspection— i.e., by crossing the border—is ordinarily ineligible to “adjust” her status to that of a lawful permanent resident, even if she marries a United States citizen. Instead, the immigration laws generally require her to leave the United States and then to seek to “immigrate” to the country by virtue of her marriage. Ex. 2, ¶¶ 5-6.
b. In turn, immigrating to the United States is possible only if she obtains a waiver of any applicable grounds of “inadmissibility,” including
5

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 6 of 16
provisions that render noncitizens inadmissible if they have previously lived unlawfully in the United States, or departed the United States under a prior order of removal. See 8 U.S.C. § 1182(a)(9); Ex. 2, ¶¶ 8-10.
c. Recognizing the need for family unity during the potentially lengthy process of applying for waivers of inadmissibility, regulations allow noncitizens who entered the United States without inspection to apply for provisional waivers of inadmissibility while still living with their families in United States. See 8 C.F.R. §§ 212.2(j) & 212.7(e). The regulations are designed to allow these noncitizens to await the results of those applications in the United States, and travel abroad for a consular interview after obtaining approvals of the required waivers. See Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Final Rule, 78 Fed. Reg. 536, 536 (Jan. 3, 2013).
d. These regulations enable noncitizens who are ineligible to adjust their status in the United States, but who qualify for waivers of inadmissibility, to avoid lengthy separations from their families while seeking lawful status. See id. at 536, 574; Ex. 3 (printout from www.uscis.gov). 23. Under these laws and regulations, Petitioner and her husband undertook a process that has five basic steps. See Ex. 2, ¶¶ 16-22. 24. First, Petitioner’s husband—the U.S. citizen petitioner—had to demonstrate the existence of a bona fide marital relationship to Petitioner—the
6

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 7 of 16
noncitizen for whom he intended to seek an immigration benefit—by filing an I-130, Petition for Alien Relative. An interview is often required as part of the adjudication of the I-130 petition. See Ex. 2, ¶ 17.
25. Second, to overcome the ground of inadmissibility that would bar Petitioner from applying for readmission within 10 years of departing the country after an order of removal, Petitioner would need to obtain the Attorney General’s “consent[]” to her application for readmission. See 8 U.S.C. § 1182(a)(9)(A)(ii), (iii). To do so, Petitioner would need to file an I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. See 8 C.F.R. § 212(j); Ex. 2, ¶ 18.
26. Third, after obtaining a conditional approval of her I-212 application, Petitioner would need to overcome the 10-year bar on admission to the United States for individuals who have lived in the country unlawfully for more than one year. See 8 U.S.C. § 1182(a)(9)(B)(i)(II). To do so, she would need to file an I-601A, Application for Provisional Unlawful Presence Waiver, and demonstrate that refusal of admission would cause “extreme hardship” to her U.S. citizen spouse. See 8 U.S.C. § 1182(a)(9)(B)(v); Ex. 2, ¶ 19.
27. Fourth, Petitioner would have to depart the United States to complete her application for an immigrant visa abroad, with an interview at a U.S. consulate. Ex. 2, ¶ 21.
28. Fifth, if approved, Petitioner would be permitted to return to the United States with her immigrant visa. Upon admission to the United States,
7

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 8 of 16
Petitioner would become a lawful permanent resident. Ex. 2, ¶ 22. 29. Petitioner and her husband began that process in November 2016,
when her husband filed an I-130 petition. Ex. 2, ¶ 23. 30. They were scheduled for an I-130 interview on January 17, 2018 at
USCIS’s offices in Johnston, Rhode Island. Ex. 2, ¶ 25; Ex. 4. 31. Consistent with the purpose of an I-130 interview to assist in
verification of their marriage, the interview notice instructed Petitioner and her husband to bring “proof of [their] marital relationship,” including their children’s birth certificates and other documents. Ex. 4. III. Petitioner’s detention during the provisional waiver process.
32. Petitioner and her husband were interviewed on January 17, 2018. 33. ICE detained Petitioner immediately after her interview. 34. Upon information and belief, nothing in Petitioner or her husband’s interview provided grounds for Petitioner’s detention and attempted removal. 35. To the contrary, Petitioner was informed that the I-130 was approved, meaning that USCIS recognized her marital relationship to a U.S. citizen as legitimate, the first step of her effort to apply for permanent residency. Ex. 4, ¶ 28; Ex. 5. 36. Petitioner poses no danger or flight risk. 37. Upon information and belief, her detention and intended removal is founded on nothing other than her 2002 removal order—which she was attempting to address through the provisional waiver process.
8

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 9 of 16
38. Petitioner’s abrupt detention has already caused significant harm to her four-year-old daughter and 22-month-old son. Her daughter has begun having nightmares three or four times a night, bursting into tears without warning, crying for her mother, and becoming frightened by brief separations from other family members. Her son can no longer sleep in his crib on his own and becomes distressed because his mother is not there to soothe him. Ex. 1, Attachment.
39. Both children face the risk of lasting trauma if their separation from their mother continues. Ex. 1, Attachment.
40. According to media accounts, at least three other individuals attempting to take advantage of the provisional waiver regulations were detained in January 2018 at their I-130 interviews. See Antonio Planas, ICE arresting spouses seeking legal residency: ‘Callous’ crackdown shakes up family, Boston Herald (Jan. 30, 2018), available at bostonherald.com/news/local_coverage/2018/01/ice_arresting_ spouses_seeking_legal_residency.
41. Since her detention, Petitioner has filed a motion for an administrative stay of removal from ICE. She has also filed a motion to reopen her immigration case, and requested an emergency stay of removal from the BIA. Neither ICE nor the BIA have ruled on these requests. Ex. 1, ¶¶ 15-20.
42. Upon information and belief, ICE intends to remove Petitioner from the United States.
43. Without intervention of this Court, Petitioner may be removed from the United States without the opportunity to continue applying for permanent
9

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 10 of 16
residency by way of the provisional waiver regulations, and without the opportunity to obtain a decision on her motion to reopen her immigration case. Alternatively, Petitioner will continue to be detained while pursuing immigration relief. Both outcomes would be unlawful.
CLAIMS FOR RELIEF Count 1 - Immigration and Nationality Act and Applicable Regulations
(as applied to Petitioner’s detention) 44. The foregoing allegations are realleged and incorporated herein. 45. Interpreted in light of the Constitution, the Immigration and Nationality Act (INA) and its applicable regulations did not permit Petitioner’s abrupt detention while she was engaged in the process of attempting to regularize her immigration status and without any determination that she poses a danger or flight risk. The INA makes detention mandatory only during the “removal period”— a 90-day period that began when Petitioner’s order of removal became final, and has long since expired. 8 U.S.C. § 1231(a)(1). After the 90-day period, detention is permissible only in certain circumstances, upon notice to the noncitizen and after an individualized determination of dangerousness and flight risk. See 8 U.S.C. § 1231(a)(6); 8 C.F.R. § 241.4(d), (f), (h) & (k). 46. Petitioner’s detention 13 months after she began the process of applying for her permanent resident status—without any notice, opportunity to present argument or evidence, or individualized determination that she poses a danger and flight risk, and based on nothing more than the outstanding order of removal that she was seeking to address—violates the INA and its regulations.
10

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 11 of 16
Count 2 - Due Process under the U.S. Constitution (as applied to Petitioner’s detention)
47. The foregoing allegations are realleged and incorporated herein. 48. Other than as punishment for a crime, due process permits the government to take away liberty only “in certain special and narrow nonpunitive circumstances . . . where a special justification . . . outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (quotations omitted). Such special justification exists only where a restraint on liberty bears a “reasonable relation” to permissible purposes. Jackson v. Indiana, 406 U.S. 715, 738 (1972); see also Foucha v. Louisiana, 504 U.S. 71, 79 (1992); Zadvydas, 533 U.S. at 690. In the immigration context, those purposes are “ensuring the appearance of aliens at future immigration proceedings and preventing danger to the community.” Zadvydas, 533 U.S. at 690 (quotations omitted). 49. Those substantive limitations on detention are closely intertwined with procedural due process protections. Foucha, 504 U.S. 78-80. Noncitizens have a right to adequate procedures to determine whether their detention in fact serves the purposes of ensuring their appearance or protecting the community. Id. at 79; Zadvydas, 533 U.S. 692; Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 949 (9th Cir. 2008). Where laws and regulations fail to provide such procedures, the habeas court must assess whether the noncitizen’s immigration detention is reasonably related to the purposes of ensuring her appearance or protecting the community. Zadvydas, 533 U.S. at 699.
11

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 12 of 16
50. Because Petitioner was detained without any determination that she poses a danger or flight risk, and because she in fact poses no danger or flight risk, her detention violates due process.
Count 3 - Immigration and Nationality Act and Applicable Regulations (as applied to Petitioner’s removal)
51. The foregoing allegations are realleged and incorporated herein. 52. The INA does not condemn individuals who live in the United States unlawfully and under final orders of removal to permanent separation from their U.S. citizen spouses and children. Instead, it allows these individuals, if otherwise eligible, to leave the U.S. temporarily and return as lawful permanent residents—if they are granted waivers of applicable inadmissibility grounds under 8 U.S.C. § 1182(a). Specifically, § 1182(a)(9)(A)(iii) allows an individual who departed under an order of removal to avoid a 10-year bar on admission by obtaining the “consent[]” of the Attorney General. And § 1182(a)(9)(B)(v) allows an individual who lived in the United States unlawfully for more than a year to avoid a similar 10-year bar by demonstrating that a denial of admission would cause “extreme hardship” to a U.S. citizen spouse or parent. 53. Recognizing that requiring a noncitizen to await the adjudication of these waivers overseas would create precisely the “extreme hardship” that the waiver of unlawful presence is designed to avoid, the Department of Homeland Security’s regulations interpret the INA to permit an individual who requires waivers under 8 U.S.C. § 1182(a)(9)(A)(iii) and (B)(v) to obtain conditional, advance approval of these waivers before she departs the U.S. to complete the immigrant
12

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 13 of 16
visa process. See 8 C.F.R. §§ 212.2(j) & 212.7(e); Expansion of Provisional Unlawful Presence Waivers of Inadmissibility; Final Rule, 81 Fed. Reg. 50244, 50245 (July 29, 2016).
54. These regulations thus allow an otherwise eligible individual who is married to a U.S. citizen—and who lives in the United States unlawfully and with a final order of removal—to demonstrate the bona fide nature of her marriage, prove her eligibility for required waivers, depart the country briefly to complete processing of an immigrant visa application at a U.S. consulate, and then return to the United States to rejoin her family as a lawful permanent resident.
55. Petitioner was abruptly detained by ICE after she presented herself for an interview as part of this process. ICE’s efforts to remove Petitioner without allowing her to follow these provisional waiver procedures violates the INA and applicable regulations.
Count 4 - Due Process under the U.S. Constitution (as applied to Petitioner’s removal)
56. The foregoing allegations are realleged and incorporated herein. 57. Due process protects a noncitizen’s liberty interest in the adjudication of applications for relief and benefits made available under the immigration laws. See Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) (recognizing protected interests in the “right to seek relief” even when there is no “right to the relief itself”). Petitioner has a protected due process interest in her ability to apply for provisional waivers and ultimately for legal permanent resident status.
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Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 14 of 16
58. Any efforts by ICE to remove Petitioner, without allowing her to avail herself of the procedures created by the INA and its regulations, violate and would violate due process.
59. Moreover, any efforts by ICE to remove Petitioner also violate and would violate due process by depriving her of her interest in the adjudication of her motion to reopen. See Devitri v. Cronen, --- F. Supp. 3d ----, 2018 WL 661518, *5-6 (D. Mass. Feb. 1, 2018).
Count 5 - Administrative Procedures Act (as applied to Petitioner’s detention and removal) 60. The foregoing allegations are realleged and incorporated herein. 61. The Administrative Procedures Act (APA) forbids agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A court reviewing agency action “must assess . . . whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”; it must “examin[e] the reasons for agency decisions—or, as the case may be, the absence of such reasons.” Judulang v. Holder, 565 U.S. 42, 53 (2011) (quotations omitted). 62. Petitioner’s detention and any efforts to remove Petitioner under the facts alleged here, including facts showing that she was seized after a USCIS interview while availing herself of the provisional waiver process created under the INA, are and would be arbitrary and capricious under the APA. 63. The APA also sets forth rule-making procedures that agencies must follow before adopting substantive rules. See 5 U.S.C. § 553. The Department of
14

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Homeland Security followed these rulemaking procedures to establish the provisional waiver process for the unlawful presence waiver, see 78 Fed. Reg. 536, and to expand the availability of that waiver to noncitizens living with final orders of removal, see 81 Fed. Reg. 50244.
64. ICE’s sudden decision to prohibit some noncitizens with final orders of removal from pursuing the process created by these regulations—a prohibition accomplished in this case by detaining and attempting to remove Ms. Calderon in the midst of her efforts to legalize her status—improperly alters these substantive rules without notice-and-comment rulemaking, in violation of the APA.
REQUEST FOR ORAL ARGUMENT 65. Petitioner respectfully requests oral argument on this Petition.
PRAYER FOR RELIEF Petitioner asks that this Court grant the following relief: 1. Order Petitioner’s release from custody; 2. Enjoin Respondents from removing Petitioner from the United States until she has had the opportunity to apply for and receive decisions on her waivers of inadmissibility under 8 U.S.C. § 1182(a)(9) as part of the provisional process made available to her by 8 C.F.R. § 212.7(e); and until she has had an opportunity to receive a decision on her motion to reopen her immigration proceedings, and to seek judicial review of that determination if necessary; 3. Award attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and 5 U.S.C. § 504, if applicable; and,
15

Case 1:18-cv-10225-MLW Document 1 Filed 02/05/18 Page 16 of 16 4. Order any further relief this Court deems just and proper. Respectfully submitted this 5th day of February, 2018.
/s/ Adriana Lafaille Matthew R. Segal (BBO # 654489) Adriana Lafaille (BBO # 680210) American Civil Liberties Union Foundation of Massachusetts, Inc. 211 Congress Street Boston, MA 02110 (617) 482-3170
16

 
 Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 1 of 9

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ,
Petitioner,

C.A. No. 18-10225-MLW
V.

KIRSTJEN M. NIELSEN, ET AL., Respondents.

MEMORANDUM AND ORDER

WOLF, D.J.

February 15, 2018

On February 5, 2018, petitioner Lilian Pahola Calderon

Jimenez brought this case, pursuant to 28 U.S.C. §2241, to

challenge, among other things, her detention after being arrested

at a United States Citizenship and Immigration Services ("CIS")

office, by United States Immigration and Customs Enforcement

("ICE") officers, while she was in the process of seeking to become

a permanent resident by virtue of her marriage to a United States

citizen. As more fully explained below, the court ordered that the
parties confer in an effort to resolve this matter, and established

an expedited briefing schedule leading to a February 21, 2018

hearing if they could not reach an agreement. After the parties

reported on February 12, 2018 that it would be necessary to

litigate, on February 13, 2018 the court ordered respondents to provide petitioner certain information at 10:00 a.m. on February

14, 2018, as the memorandum in support of the petition was due

later that day.

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 2 of 9
In the evening of February 13, 2018, respondents filed a motion to extend the deadline to respond to the February 13, 2018 Order. The Motion was filed before respondents' counsel conferred
with petitioner's counsel as required by Rule 7.1(a)(2) of the
Local Rules of the United States District Court for the District of Massachusetts. The Motion stated that the petitioner has been released from detention and that respondents expect to file a motion to dismiss the petition. The Motion indicated that
respondents nevertheless assumed that petitioner would be required
to address all of the implications of her release for her petition in the memorandum previously ordered to be filed on February 14, 2018. The court found that it would be unreasonable to do so.
Therefore, the court relieved the parties of the deadlines
for filings established by the February 6, 2018 Order and the February 13, 2018 Order. See Feb. 14, 2018 Order. The court stated
that this further Order would issue.
Calderon's release before a hearing previously scheduled for
February 21, 2018 is part of a pattern that has emerged in related cases assigned to the court. In March 2017, Leandro Arriaga Gil
was one of five undocumented aliens arrested by ICE at a CIS office
while seeking permanent resident status by virtue of their marriages to United States citizens, among other things. Arriaga's
petition pursuant to 28 U.S.C. §2241 challenged ICE's assertion
that it had the unreviewable authority to detain an alien subject

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 3 of 9

to a final order of removal, issued many years before, without any

duty to make an individualized determination concerning whether

the alien should be released, including released on certain

conditions, while challenging his or her removal and seeking

authorization to remain in the United States with his or her

American spouse and, often, children.

After hearing argument on May 5, 2017, the court expressed

its inclination to decide that there was a reasonable likelihood

that Arriaga would prove that he was entitled to a bail hearing,

and to issue a temporary restraining order requiring his release

while his motion for a preliminary injunction was being litigated.

See Arriaga Gil v. Tomkins, C.A. No. 17-10743, May 5, 2017 Transcript (Docket No. 28) at 60-61, 75-76. However, during a

break in the hearing, before the court issued its decision, ICE
agreed to release Arriaga and also to stay his deportation until

the legal process for determining whether he would be allowed to

stay in the United States and become a lawful permanent resident

was completed.

at 81; Stipulation of Settlement (Docket No.

24-1 in Arriaga).^ Accordingly, Arriaga's case was dismissed.

1 See also M. Valencia, "Immigration Officials Agree to Release
Lawrence Immigrant who was Detained without Bail," Boston Globe (May 6, 2017)("In a sudden reversal, federal authorities agreed Friday to free a national of the Dominican Republic who was arrested by immigration authorities in March at a government office
in Lawrence while filing paperwork to become a legal US resident.
The decision was made as US District Judge Mark L. Wolf suggested he was willing to overrule immigration authorities and order the

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 4 of 9
The court has not been informed of whether the four similarly situated aliens who were arrested by ICE on the same day as
Arriaga, but did not file petitions under §2241 (at least in the
District of Massachusetts), ever received an individualized determination of whether they should be released or whether they, like Arriaga, should be provided an opportunity to attempt to
obtain permanent resident status as the spouse of a United States citizen. In addition, the government did not, in its Stipulation of Settlement with Arriaga, disclaim its position that it is lawful, after the 90-day removal period specified in 8 U.S.C. §1231(a)(1), to detain an alien subject to a final order of
deportation without following the procedures set forth in federal
regulations. See 8 C.F.R. §241.4.
On January 26, 2018, Fabiano Mateus de Oliveira filed a
petition in this District Court alleging that he was, like Arriaga, arrested by ICE at a CIS office while attempting to obtain permanent resident status based on his marriage to a United States
citizen. See De Oliveira v. Moniz et al., C.A. No. 18-10150, Docket No. 1. This court ordered a briefing schedule. On February
12, 2018, the parties stipulated to dismissal of the case. The
man's release or order that he be entitled to a bond hearing,
saying the man was deprived of due process rights when he was
arrested and detained for close to 40 days.").

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 5 of 9
media reported that ICE had agreed to release de Oliveira. See A. Planas, "Brazilian Still Set on Getting Green Card After Being
Detained," Boston Herald (Feb. 13, 2018).
Like Arriaga and de Oliveira, Calderon was arrested by ICE while at a CIS office for an appointment concerning her effort to
become a permanent resident based on her marriage to a United
States citizen. She alleges that at least three other aliens
similarly seeking permanent resident status as spouses of United
States citizens were also arrested by ICE at a CIS office in
January 2018. In her §2241 petition, Calderon seeks an
individualized determination concerning whether she should be released and other relief, including an order that she shall not be removed from the United States until the legal process to determine whether she should be allowed to become a permanent resident is complete. The court ordered that the parties confer
concerning whether they could reach an agreement to resolve this case. See Feb. 6, 2018 Order (Docket No. 6). It also established a schedule for expedited briefing on February 14 and 16, 2018, leading to a February 21, 2018 hearing if they could not agree.
Id.
On February 12, 2018, the parties reported that they had not
agreed on a settlement. On February 13, 2018, the court issued an
Order requiring that respondents disclose, by 10:00 a.m. on February 14, 2018: "(a) the official who made the decision that

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 6 of 9
[Calderon] should be detained; (b) the legal basis for the decision, including whether ICE considered her detention mandatory or discretionary; and, if it was a discretionary decision, (c) the procedures followed in reaching it and the individualized reasons for it, if any." Feb. 13, 2018 Order (Docket No. 14). In the evening of February 13, 2018, respondents reported that Calderon
had been released, stated that they expect to file a motion to
dismiss the petition, and requested an extension of time to respond to the February 13, 2018 Order.^ The court has not been informed of the procedures that led to Calderon's release, the reasons for it, or whether ICE asserts that it had lawfully detained Calderon and has the authority to do so again in the same manner. Nor has the court been advised of the status of the aliens alleged to be similarly situated to Calderon, other than de Oliveira, who were also arrested at a CIS office in January 2018. See Petition at
S140.
Although the Arriaqa and de Oliveira cases were settled and dismissed by agreement of the parties, there is not a similar agreement in this case. As respondents plan to file a motion to dismiss, the court notes that Calderon's release may not necessarily moot her claims concerning detention or her other claims. See, e.g., Kinqdomware Techs, Inc. v. United States, 136
2 Respondents represented that the decision to release Calderon
was made prior to the February 13, 2018 Order.

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 7 of 9
S. Ct. 1969, 1976 (2016) ("[T]his Court's precedents recognize an
exception to the mootness doctrine for a controversy that is 'capable of repetition, yet evading review.'")(citation omitted);
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)("A defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.")(citation omitted); United States v. W.T. Grant Co., 345
U.S. 629, 632-33 & n.5 (1953) ("It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of
repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption. ),
Rosales-Garcia v. Holland, 322 F.3d 386, 395-97 (6th Cir. 2003)
(release from immigration detention did not moot habeas
petitioner's claims where government could, and made no promise
that it would not, again revoke parole; in addition, because the
government could release petitioner at any time once he was detained, "such detention can always evade review"); Biodiversity Legal Found, v. Badgley, 309 F.3d 1166, 1173-74 (9th Cir. 2002) (finding challenged action "capable of repetition, yet evading review" where government "exhibit[ed] a pattern" of taking the actions requested by individual plaintiffs "shortly after suit is
commenced" without conceding the illegality of the challenge

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 8 of 9
practic©); A. Wright & A. Mill6r, 13C Fed. Prac. & Proc. Juris./
§§3533.7, 3533.8 {3d ed.)(discussing these principles). It is now important that certain relevant information be
provided to Calderon and the court, that the parties confer again, and that any issue of mootness, among others, be properly briefed.
Accordingly, it is hereby ORDERED that:
1. Respondents shall, by 12:00 noon on February 21, 2018,
file an affidavit from an ICE representative describing: (a) the official who made the original decision that Calderon should be detained; (b) the legal basis for the decision, including whether ICE considered her detention mandatory or discretionary; (c) the
procedures followed in reaching the decision and, if any, the
individualized reasons for it; (d) the official who decided that Calderon should be released; (e) the reason(s) for her release;
(f) the reason(s) why she was released on February 13, 2018, rather
than sooner or later; (g) whether respondents assert that they had, and still have, the authority to detain Calderon without an individualized determination of dangerousness and risk of flight;
(h) whether Calderon has been released for a defined period of
time and, therefore, may be detained again; (i) whether any individuals other than Calderon and de Oliveira were arrested while taking steps to seek permanent residency at a Massachusetts or Rhode Island CIS office in January 2018; (j) if so, whether any of those individuals have received individualized determinations of
8

Case 1:18-cv-10225-MLW Document 17 Filed 02/15/18 Page 9 of 9
dangerousness and risk of flight without filing petitions under
§2241; and (k) whether any of them have also been released. 2. The parties shall confer and, by 12:00 noon on February
23, 2018, report, jointly if possible, concerning: (a) whether they have reached an agreement to resolve this case; (b) the issues to be litigated, including but not limited to whether Calderon's
release moots the issue of ICE's authority to detain her; and (c)
a proposed schedule for briefing the issues identified.
UNITED STATES DISTRICT JUDGE

 
 Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 1 of 62

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ
AND LUCIMAR DE SOUZA, ET AL. Petitioner-Plaintiffs,

V.

C.A. No. 18-10225-MLW

CHRISTOPHER CRONEN, ET AL,
Respondent-Defendants

EDUARDO RALPH JUNQUEIRA, Petitioner,
V.
STEVEN SOUZA, ET AL,
Respondents.

C.A. No. 18-10307-MLW

MEMORANDUM AND ORDERS

WOLF, D.J.

June 11, 2018

I.

SUMMARY

This country was born with a declaration of universal human rights, proclaiming that: "all men are created equal, that they

are endowed by their Creator with certain unalienable rights," and

that "among these" is "Liberty." U.S.C.A. Declaration of Independence (1776). This concept was codified in the Fifth

Amendment to the United States Constitution, which states in part
that "no person shall be...deprived of...liberty...without due

1 This Memorandum and Order amplifies and, to a limited extent,
updates a decision delivered orally in court on May 8, 2018.

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 2 of 62
process of the law." U.S. Const. Amend. V. As the Supreme Court has written, "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas v. Davis, 533 U.S. 678, 690 (2001). As the words "no person" indicate, and as the Supreme Court has confirmed, "the Due Process Clause applies to all 'persons' within the United States whether their presence here is lawful, unlawful, temporary, or permanent." Id. at 693.
The United States has historically been distinguished by its dedication to treating lawfully and fairly all among us, including aliens who are in the country illegally. However, as Supreme Court Justice Louis D. Brandeis observed, in each generation we "must labor to possess that which [we] have inherited." Paul Freund, "Mr. Justice Brandeis," in On Law and Justice at 119 (1968). These cases are a reminder that Justice Brandeis was right.
Lucimar De Souza, a Brazilian national, entered the United States unlawfully in 2002. She alleges that she did not receive notice of the hearing to determine whether she should be deported from the United States. In any event, in June 2002, De Souza was ordered to leave the country and did not.
Eduardo Junqueira, who was also born in Brazil, entered the United States unlawfully in 2004. He was apprehended and deported later that year. Junqueira soon reentered the United States
unlawfully.

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 3 of 62
In 2006, De Souza married a United States citizen. They have an 11-year old son who is a United States citizen. Junqueira also married a United States citizen. They have two children, ages 10 and 12, who are United States citizens. Neither De Souza nor Junqueira has ever violated any law other than by entering and remaining in the United States illegally.
De Souza and Junqueira present the United States with dilemmas. As generous as the United States has traditionally been in admitting immigrants and refugees, it cannot accommodate everyone who aspires to live here. Therefore, its immigration laws must be enforced. However, the country also has a strong interest in not destroying families by deporting the wives, husbands, mothers, and fathers of United States citizens.
To reconcile these competing interests, the United States has established a process for determining whether aliens in the country illegally should be allowed to remain here with their families and become lawful Permanent Residents. The first step in that process requires the alien to prove to United States Citizenship and Immigration Services ("CIS"), an agency of the Department of Homeland Security ("DHS"), that his or her marriage is bona fide, rather than a sham to obtain immigration benefits. Both De Souza and Junqueira have attempted to utilize this process.
On January 30, 2018, at a scheduled appointment at a CIS office, De Souza and her husband were found to have a genuine

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 4 of 62
marriage. De Souza was, however, immediately arrested there by another agency of DHS, Immigration and Customs Enforcement ("ICE") . Similarly, on February 1, 2018, Junqueira and his wife were at a CIS office for a scheduled interview concerning their marriage. Before the interview began, ICE arrested Junqueira.
De Souza and Junquiera each filed petitions for habeas corpus asserting they are being detained by ICE in violation of the Constitution and laws of the United States, and seeking an order directing ICE to release them. De Souza is also attempting to represent a putative class in challenging the authority of ICE to arrest aliens at CIS offices and, wherever they are arrested, to deport them before CIS decides whether to grant them provisional
waivers that would allow them to seek to remain in the United States with their families.
Federal law also creates a process for determining whether aliens like De Souza and Junqueira, who have been ordered removed, should be detained while the government attempts to effectuate their removal. A federal statute, 8 U.S.C. §1231(a)(2), requires
that an alien ordered removed from the United States be detained
for up to 90 days, ordinarily starting on the date the order becomes final. These 90 days are defined by the statute as the "removal period." Id. §1231(a)(l). ICE must give an alien notice and an opportunity to be heard before detaining him or her for longer than 90 days. See 8 C.F.R. §241.4. At the time of the May

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 5 of 62
8, 2018 hearing in these cases, ICE had detained De Souza and Junqueira for more than 90 days without following the process prescribed by its regulations.
ICE initially argued that the regulations do not apply to De Souza, and that they had not been violated with respect to Junqueira. ICE subsequently acknowledged that the regulations do apply and, even on its interpretation, which may be incorrect, the regulations were violated in each case. See May 8, 2018 Tr. at 1518, 22-25, 35-36. However, ICE contends that the court does not have the power to provide a remedy for the unlawful detention of an alien who has not been in custody for at least six months. ICE relies on the Supreme Court's decision in Zadvydas in making this
claim.
ICE'S argument is unmeritorious. The Fifth Amendment guarantee of due process has two components. The substantive component prohibits restrictions on liberty that are not narrowly tailored to serve a compelling state interest, no matter what process is employed in deciding to impose them. In addition, a person who is detained has a right to procedural due process, meaning a right to a fair process for challenging the reasons for detention. Fundamental features of procedural due process are fair notice of the reasons for the possible loss of liberty and a meaningful opportunity to address them. Zadvydas addressed the substantive due process component of the Fifth Amendment. The

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 6 of 62
Supreme Court held, in effect, that an alien's right to substantive due process could be violated by prolonged detention even if the alien's right to procedural due process had been satisfied. See 533 U.S. at 697. Implicitly assuming that the alien had been afforded procedural due process, the Court found that detention of an alien for up to six months is presumptively reasonable for the purpose of the substantive due process analysis. Id. at 701.
However, as Justice Anthony Kennedy wrote in his dissent in Zadvydas, without dispute from the majority, "[w]ere the [DHS], in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures..." Id. at 72425. Justice Kennedy's position was a particular application of a
long line of Supreme Court and other decisions holding that regulations are laws that the government must obey. In the "McCarthy era," the Supreme Court held that having issued regulations delegating to the Board of Immigration Appeals (the "BIA") the discretion to decide whether an alien should be deported, the Attorney General could not dictate the BIA's
decisions. See Accardi v. Shauqhnessy, 347 U.S. 499, 502—04 (1954).
During the "Watergate" era, the Attorney General issued regulations delegating to a Special Prosecutor the authority to conduct investigations relating to the 1972 election of President

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 7 of 62
Richard Nixon. See United States v. Nixon, 418 U.S. 683, 694-96 (1974). This authority included the power to issue subpoenas and to seek judicial enforcement of them, including by contesting any assertion of Executive Privilege. Id. at 694-95. The President claimed that he had the unreviewable power to assert that privilege and refuse to comply with the Special Prosecutor's subpoena for tapes the President secretly made in the Oval Office. Id. at 693. The Supreme Court rejected this claim, holding that the regulation had "the force of law," the "Executive Branch [was] bound by it," and the Court was "bound to respect and enforce it." Id. at 695, 696. Finding that the subpoena was properly issued and that the Executive Privilege did not provide a basis to quash it, the Court ordered the President to comply with the subpoena. Id. at 716.
The predecessor to DHS, the Immigration and Naturalization Service ("INS"), issued regulations that were expressly intended to provide all aliens the due process that is constitutionally required before deciding whether their detention should be continued following the initial 90-day removal period. ICE now argues that those regulations provide that any alien ordered removed can later be detained for 90 days before his or her custody is reviewed. See May 8, 2018 Tr. at 15. It acknowledges that the alien and his or her attorney must be given notice of that custody review 30 days in advance to afford them the opportunity to provide information in support of the alien's release. See 8 C.F.R.

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 8 of 62
§241.4 (d) (3), (h) (2). ICE has a duty to obey these regulations even if they provide greater protection than is constitutionally required. See Nelson v. INS, 232 F.3d 258, 262 (1st Cir. 2000).
As indicated earlier, it is undisputed that neither De Souza nor Junquiera were provided the process required under ICE's interpretation of the regulations and, the court finds, by the Fifth Amendment. Indeed, ICE made no effort to follow the process prescribed by its regulations until alerted to issues raised in the litigation of these cases. As De Souza was arrested and detained on January 30, 2018, she was entitled to a custody review no later than about April 30, 2018, and to notice of it to her attorney and her by about March 30, 2018. Instead De Souza, but not her attorney, was given a notice on April 23, 2018 of a custody review to be conducted on or about April 30, 2018. On April 27, 2018, the ICE Deputy Field Office Director decided to continue De Souza's detention before her attorneys had an opportunity to
provide information in support of her release. In the notice of that decision, the Deputy Field Office Director represented that De Souza had been personally interviewed. However, De Souza was never interviewed. The Acting Field Office Director subsequently
filed a sworn declaration stating, falsely, that De Souza had received notice seven days before her custody review. A May 1,
2018 hearing in these cases evidently prompted ICE to recognize that it had violated its regulations in continuing to detain De
8

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 9 of 62
Souza. It then decided to conduct another custody review 30 days later and to continue to deprive De Souza of her liberty at least
until that review occurred.
Junqueira was arrested on February 1, 2018 and, therefore, was entitled to a custody review no later than about May 1, 2018. Neither Junqueira nor his attorney received notice that any such review had been scheduled. Again, evidently alerted to ICE's unlawful conduct by the litigation in these cases, on May 3, 2018, the Acting and Deputy Field Office Directors decided that Junqueira would be released that day. However, after being contacted by an ICE lawyer, the Acting Field Office Director reversed that decision. ICE subsequently issued a notice that Junqueira would receive a custody review on about June 3, 2018, which would have deprived him too of his liberty at least until that review was
conducted.
As indicated earlier, with regard to both De Souza and Junqueira, ICE argues that this court lacks the authority to order a remedy for its unlawful conduct. However, as the Supreme Court held in Zadvydas, §2241 habeas corpus proceedings provide a forum for statutory and constitutional challenges to post-removal detention. 533 U.S. at 693. The presumption created by Zadvydas, that up to six months of detention is reasonable, is based on the assumption that ICE followed the process prescribed by its
regulations to ensure that continued detention was justified. This

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 10 of 62
assumption is not true for either De Souza or Junqueira. As of May 8, 2018, ICE was detaining each of them in violation of its regulations and without the "due process of law" required by the Fifth Amendment. Therefore, each is entitled to judicial relief.
Habeas corpus is an equitable remedy. The court has the discretion to fashion relief that is fair in the circumstances, including to order an alien's release. In view of ICE's repeated violations of its regulations — and its indifference to its duty to obey the law — it would not now be fair to keep De Souza or Junqueira incarcerated for another 30 days. Therefore, the court will promptly decide if either or both should be released pending possible deportation.2
ice's illegal actions concerning De Souza and Junqueira have had profound human consequences that would continue without the court's intervention. It appears likely that De Souza and Junqueira will each be able to prove that if released, they will not be dangerous or flee and, therefore, that each will be entitled to
release. Each will nevertheless still face the threat of being
deported and separated from their families. Each day with their families is now particularly precious. Any unjustified loss of liberty for even another day would be a painful form of irreparable
harm to them and to the United States citizens who love them.
2 After the court rendered this decision orally on May 8, 2018, ICE released De Souza and Junqueira.
10

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 11 of 62
If accepted, ICE's argument that the court lacks the power to grant petitioners relief in these cases would deeply damage the Constitution's system of checks and balances that, as intended by the nation's Founders, has been fundamental to protecting the rights of every person--citizens as well as aliens. As the Supreme Court reminded in the case of a prisoner detained at Guantanamo, the writ of habeas corpus gives the "Judiciary... a time-tested device...to maintain the delicate balance of governance that is itself the surest safeguard of liberty" and "protects the rights of the detained by [conferring] the duty and authority on the Judiciary to call the jailor to account." Boumediene v. Bush, 553 U.S. 723, 745 (2008) .
The unlawful treatment of De Souza and Junqueira occurred in cases that ICE knew would be subject to scrutiny by a federal judge. This suggests that other aliens who do not have lawyers to file suit on their behalf are also being illegally deprived of their liberty and irreparably harmed by being separated from their families before possibly being deported. The effort by De Souza and others to maintain her case as a class action to enjoin an
alleged pattern of unlawful conduct by ICE presents these issues. They are not yet ripe for resolution.
However, it should be noted that in Boumediene, the Supreme Court explained the historic significance of the loss of liberty and the fundamental importance of habeas corpus to our democracy.
11

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 12 of 62
As the Court wrote, in advocating for the adoption of the
Constitution in 1788, "Alexander Hamilton explained in The
Federalist No. 84:
[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone... are well worthy of recital: 'To bereave a man of life. . .or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he
calls 'the bulwark of the British Constitution.' C.
Rossiter ed., p. 512 (1961) (quoting 1 Blackstone 4 id., at 438) ."
Boumediene, 553 U.S. at 744 (emphasis in original).
This court was informed that after it issued its decisions
regarding De Souza and Junqueira on May 8, 2018, the Boston ICE
Field Office reviewed its files and found 30 to 40 other
individuals were being detained without the procedural due process
ice's regulations were intended to provide. See May 22, 2018 Tr.
at 86; May 23, 2018 Tr. at 138. ICE released about 20 of them. Id.
at 51. The court has not been informed of the status of the other
10 to 20 aliens who, evidently, were also denied due process.
II. JURISDICTION
28 U.S.C. §2241(c)(3) authorizes a district court to issue a
writ of habeas corpus to a person "in custody in violation of the
12

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 13 of 62
Constitution or laws or treaties of the United States." The writ
of habeas corpus "entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law" and to obtain relief, including release, if he is being unlawfully detained.
Boumediene, 553 U.S. at 779. The Illegal Immigration Reform and Immigrant Responsibility
Act and Real ID Act, codified in 8 U.S.C. §1252, places certain limits on judicial review in immigration cases. See 8 U.S.C. §§1252(a) (2) (B) (ii), 1252(b)(9), 1252(g). However, "§2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention." See Zadvydas, 533 U.S. at 688 (addressing 8 U.S.C. §§1252(a) (2) (B) (ii) and 1252(g)); see also Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (addressing 8 U.S.C. §§1252(g) and 1252(b)(9)); Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007)(addressing 8 U.S.C.
§1252(b)(9)).
De Souza and Junqueira have each been previously ordered removed from the United States. Each claims, among other things, that ICE violated 8 U.S.C. §1231(a)(6) and the Due Process Clause of the Fifth Amendment by detaining him or her for more than three months without the opportunity to be heard required by DHS regulations. These are "statutory and constitutional challenges to
post-removal-period detention," for which §2241 gives the court
13

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 14 of 62
jurisdiction. Zadvydas, 533 U.S. at 688; Jennings, 138 S. Ct. at 841; Aguilar, 510 F.3d at 11.
III. THE LEGAL FRAMEWORK A. The Fifth Amendment Due Process Clause
Congress has "'plenary power' to create immigration law, and [the] judicial branch must defer to Executive and Legislative decisionmaking in that area. But that power is subject to important constitutional limitations." Zadvydas, 533 U.S. at 694-95 (citations omitted). The Due Process Clause of the Fifth Amendment imposes one such limitation. As indicated earlier, it states that "No person shall...be deprived of life, liberty, or property, without due process of law." U.S. Const. Amend. V. As also noted earlier, the Fifth Amendment "applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Zadvydas, 533 U.S. at 693; see also Wing Wong v. United States, 163 U.S. 228, 238 (1896). The Due Process Clause protects an alien subject to a final order of deportation, "though the nature of that protection may vary depending upon status and circumstance." Zadvydas, 533 U.S. at
693-94.
Due process has two components. The "substantive component... forbids the government to infringe certain 'fundamental' liberty interests ^ all, no matter what process is provided, unless the infringement is narrowly tailored to serve a
14

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 15 of 62
compelling state interest." Reno v. Flores, 507 U.S. 292, 301-02 (1993)(emphasis added); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). "Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects." Zadvydas, 533 U.S. at 690. Except as punishment for a crime, detention of any "person" is justified only "in special and narrow non-punitive circumstances, where a special justification...outweighs the individual's constitutionally protected interest in avoiding physical restraint." Id. In addition, detention may only continue as long as it bears a "reasonable relation" to permissible purposes. Id.
"When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner." United States v. Salerno, 481 U.S. 739, 746 (1987); Morrissey v. Brewer, 408 U.S. 471, 482, 484 (1972). Therefore, although "Congress's broad immigration powers allow it to pass a law authorizing an alien's initial detention... those implementing the statute [must] provide individualized procedures through which an alien might contest the basis of his detention." Diop v. ICE, 656 F.3d 221, 232 (3d Cir. 2011); see also Demore v. Kim, 538 U.S. 510, 532 (2003)(Kennedy, J., concurring). "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridqe, 424 U.S. 319, 333 (1976).
15

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 16 of 62
When regulations are promulgated to protect a fundamental right derived from the Constitution or a federal statute, such as the Fifth Amendment right to notice and an opportunity to be heard, the Due Process Clause requires federal agencies to follow them, "even when those regulations provide greater protection than is constitutionally required." Nelson, 232 F.Sd at 262; Accardi, 347 U.S. 267-68; Waldron v. INS, 17 F.Sd 511, 518 (2d Cir. 1994); Rombot V. Souza, 296 F.Supp.Sd 383, 388 (D. Mass. 2017)(Saris, D.J.). "So long as [a] regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it." Nixon, 418 U.S. at 695-96. In essence, the government, as well as the governed, must follow the law, and in habeas it is the court's duty to ensure that it does. See Boumediene, 553 U.S. at 741 (stating the "from an early date it was understood that the King, too, was subject to the law," and that by the 1600s, habeas courts could ensure that he followed it when detaining individuals).
B. The Post-Order Detention Statute
8 U.C.S. §1231 authorizes the Secretary of Homeland Security (the "Secretary")3 to detain aliens subject to final orders of
3 The statute refers to the Attorney General as the official exercising the authority to detain aliens subject to a final order of removal, and to adjudicate applications for immigration benefits. Before 2002, the INS exercised those powers on behalf of
16

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 17 of 62

removal while efforts are made to obtain travel documents and

deport them. The statute provides that when an alien is "ordered

removed" from the United States, "the [Secretary of Homeland

Security] shall remove the alien from the United States within a

period of 90 days (in this section referred to as the 'removal

period')." §1231(a) (1) (A). The removal period begins on "[t]he

date the order of removal becomes administratively final," the

date of a court's final disposition if the removal order is

judicially reviewed, or "the date the alien is released from [non-

immigration] detention," whichever is latest. Id. §1231 (a) {1) (B).

The statute contemplates that if the alien is not immediately

removed, he or she will be detained for at least 90 days, stating

that "during the removal period, the [Secretary] shall detain the

alien."

§1231 (a) (2) .

Congress and the President foresaw that the Secretary might

unable to remove some aliens within the removal period. The statute

provides that "[i]f the alien does not leave or is not removed

within the removal period, the alien, pending removal, shall be

subject to supervision under regulations prescribed by the

[Secretary]." Id. §1231(a)(3). The statute also states that aliens

the Attorney General. The Homeland Security Act of 2002 abolished

the INS and transferred the immigration powers previously

exercised by the Attorney General to the Secretary of Homeland

Security and divisions of DHS, ICE and CIS. See Clark v. Martinez,

543

U.S.

371,

374

(2005) (citing

6

U.S.C.

§§251(2), 252(a)(3), 271(b)).

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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 18 of 62
who entered the United States unlawfully, among others, "may be
detained beyond the removal period." Id. §1231(a) (6) (emphasis
added).
The parties agree that the 90-day removal period for both De
Souza and Junqueira has elapsed. Therefore, if they may be detained
at all,4 they are subject to §1231 (a) (6), which makes detention
discretionary.5
Although §1231 (a) (6) states that the Secretary "may" detain
an inadmissible alien beyond the removal period, it does not
authorize the government to detain an alien indefinitely merely
because he or she is subject to a final order of removal. In
^ De Souza argues that she cannot be detained now because she cannot be deported while seeking the provisional waivers necessary to remain with her family in the United States, and if her deportation is not likely in the near future, detention is not permissible. See Traverse and Response in Support of Release from Custody (Docket No. 45) at 8-9. In addition, she asserts that there is no basis to find that she is a risk of flight or danger to the community. Id. at 9-10. She argues that, therefore, the decision to detain her would be arbitrary and capricious and violate substantive due process and the Administrative Procedure Act even if ICE used the required procedures to make it. Id. Because the court has found that ICE was detaining De Souza in violation of its regulations during the May 8, 2018 hearing, it is unnecessary
to address these arguments.
5 At the latest, De Souza's removal order became final on July 23, 2015, when the BIA dismissed the appeal of the decision denying the motion to reopen her 2002 removal order. See Affidavit of Tiffany Andrade, SIS[5-6. Therefore, her removal period ended no later than October 21, 2015. DHS reinstated Junqueira's removal order on February 1, 2018, starting the removal period again. See 8 U.S.C. §1231(a)(5). Therefore, his removal period ended on May 2, 2018 at the latest.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 19 of 62
Zadvydas, the Supreme Court addressed the substantive component of
the Due Process Clause. It held that the statute's use of the word
"may" was "ambiguous," as it "suggest [ed] discretion," but not "unlimited discretion." 533 U.S. at 697. Without an explicit limit on how long the government could detain an alien, §1231 (a) (6) raised a serious constitutional question: "whether, irrespective of the procedures used, the Constitution permits detention that is indefinite and potentially permanent." 533 U.S. at 696 (emphasis added)(citation omitted). To avoid having to decide the constitutional question, the court read "an implicit limitation into the statute" based on "its basic purpose, namely, assuring the alien's presence at the moment of removal." Id. at 699. It held that §1231(a)(6) authorizes detention only so long as it is "reasonably necessary to secure [the alien's] removal." Id.
In Zadvydas, the Court implicitly assumed that the Attorney General had followed the procedures prescribed in 8 C.F.R. §241.4,
which are discussed below. The Court held that even when the
Attorney General finds that an alien poses a risk of flight or danger to the community, "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by
statute." Id. The Court reasoned that the statute's "first
justification—preventing flight—is weak or nonexistent where removal seems a remote possibility at best." Id. at 690.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 20 of 62
The Court also held that there is a six-month period in which
the Attorney General's, now the Secretary's, decision to detain an
alien is "presumptively reasonable." Id. at 701.® The Court
directed that "after this 6-month period, once the alien provides
good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future, the Government must
respond with evidence sufficient to rebut that showing," and if it
does not, the court "should hold continued detention unreasonable
and no longer authorized by statute." Id. at 699-701. As explained
® Respondents acknowledged at the May 1, 2018 hearing that the presumption that detention is reasonable for six months can be rebutted in particular cases. See May 1, 2018 Tr. at 29. This is correct. In establishing the presumption, the Court cited County of Riverside v. McLaughlin, 500 U.S. 44, 56-58 (1991), in which it presumed that 48 hours is a reasonable time to detain a defendant in a criminal case before providing a probable cause hearing. Zadvydas, 533 U.S. at 701. In County of Riverside, the Court explained that the 48-hour presumption could be rebutted "if the arrested individual can prove that her probable cause determination was delayed unreasonably." 500 U.S. at 56. The Court also cited Cheff v. Schnackenberg, 384 U.S. 373, 379-80 (1966) (plurality op.), which "adopted [the] rule, based on [the] definition of 'petty offense' in the United States Code, that [the] right to a jury trial extends to all cases in which a sentence of six months or greater is imposed." Zadvydas, 533 U.S. at 701. However, in Cheff, the Court suggested that the serious "nature" of some crimes could require the protection of a jury trial for conviction, even though the maximum penalty is less than six months in prison. 384 U.S. at 380. As an example, the Court cited District of Columbia v. Colts, 282 U.S. 63 (1930), in which the Court required a jury trial to convict for the offense of reckless driving at an excessive speed, even though the maximum punishment for a first offender was a $100 fine and 30 days in jail. See Cheff, 384 U.S. at 380; see also id. at 388 (Douglas, J. , dissenting)(describing the facts of Colts).
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 21 of 62
below, Zadvydas did not decide the implications of depriving a detained alien of his or her right to procedural due process.
C. The Post-Order Custody Review Regulations 8 C.F.R §241.4 delegates to ICE the authority to detain aliens beyond the initial 90-day removal period. It establishes standards and procedures ICE must follow to do so. The regulation provides that ICE will periodically review an alien's records and consider
whether to continue detention or release the alien. See 8 C.F.R.
§241.4 (d), (h) , (i) & (k) . ICE must conduct the initial review "prior to the expiration of the removal period," id. §241.4(h)(1), (k) (1) (i) , or "as soon as possible thereafter," id. §241.4(k)(2)(iv), unless it makes written findings that the "detainee's prompt removal is practicable and proper," or that there is other "good cause" for postponing the review, id. §241.4(k) (3). If the review is postponed, ICE must use "reasonable care" to conduct the review "once the reason for delay is remedied
or if the alien is not removed from the United States as
anticipated at the time review was suspended or postponed." Id. ICE must "provide written notice to the detainee approximately 30 days in advance of the pending records review so that the alien may submit information in writing in support of his or her
release." Id. §241.4(h)(2). In addition, ICE must "forward by
regular mail a copy of any notice or decision that is being served
21

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 22 of 62

on the alien" to the alien's attorney if he or she is represented.

Id. §241.4(d)(3).

To obtain release, the alien must show that: his or her

immediate removal is not practical or proper; he or she is not

likely to be violent or "pose a threat to the community following

release"; and he or she does not "pose a significant risk of

flight" or of "violat[ing] the conditions of release." Id.

§241.4(e). The regulation requires ICE to consider "the likelihood

that the alien is a significant flight risk or may abscond to avoid

removal," "favorable factors, including ties to the United States

such as the number of close relatives residing here lawfully," and

factors bearing on the alien's dangerousness, such as criminal

history, disciplinary infractions, and past immigration

violations, among others.

§241.4(f). It also requires that ICE

issue a written decision. Id. §241.4(d).

When the INS published 8 C.F.R. §241.4 on December 21, 2000,

it explained that the regulation was intended to provide aliens

procedural due process, stating that §241.4 "has the procedural

mechanisms that... courts have sustained against due process

challenges." Detention of Aliens Ordered Removed, 65 F.R. 80281-

01, at 80283 (2000). INS cited, among other decisions, Chi Thon

Nqo V. INS, 192 F.3d 390, 398 (3d Cir. 1999) . Id. In Ngo, the Third

Circuit held that "the process due even to excludable aliens requires an opportunity for an evaluation of the individual's

22

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 23 of 62
current threat to the cominunity and his risk of flight." 192 F.3d at 398. It held that a process by which "Directors simply relied on the aliens' past criminal history and the fact that they were facing removal from the United States" to "summarily conclude[e] that the aliens posed such risks and deny[] them release," was "not satisfactory and d[id] not afford due process." Id. at 399. The INS stated that, in an effort to provide the constitutionally required due process, §241.4 "contemplates individualized determinations where each case must be reviewed on its particular facts and circumstances, and affords aliens periodic reconsideration in a non-adversarial process." 65 F.R. at 80284.
The procedures in §241.4, therefore, are not meant merely to "facilitate internal agency housekeeping, but rather afford important and imperative procedural safeguards to detainees." Bonitto V. ICE, 547 F.Supp.2d 747, 757-58 (S.D. Tex. 2008). They protect the fundamental Fifth Amendment right to notice and an opportunity to be heard, and must be followed. See Rombot, 296 F.Supp.3d at 388; D'Alessandro v. Mukasey, 628 F.Supp.2d 368, 388403 (W.D.N.Y. 2009). When DHS fails to do so, the court may order ICE to conduct a custody review, or conduct the review itself and, if warranted, order the alien released. See Rombot, 296 F.Supp.3d
at 388-89.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 24 of 62
D. The Provisional Waiver Process
Federal immigration laws permit an undocumented alien who has been ordered removed from the United States, and is married to a United States citizen, to seek to become a lawful Permanent Resident. To do so, he or she must obtain the permission of two government agencies. First, the alien must apply to CIS for waivers of the Secretary of DHS's right to enforce two statues that would bar the alien from applying for a visa for ten years after departing the United States. As the first step in the process of obtaining waivers, the alien's spouse must file a "Form 1-130" application with CIS. CIS then interviews the couple to determine whether their marriage is genuine. If CIS finds the marriage is authentic, the alien may file another series of forms asking CIS to exercise its discretion to grant the waivers. CIS may grant the waivers if it finds that failure to do so would "result in extreme
hardship to the citizen...spouse." 8 U.S.C. §1182(9) (B) (v) . Under a 2016 regulation, the alien may pursue these waivers while in the United States, as well as while abroad."^ See Expansion of
Provisional Unlawful Presence Waivers of Inadmissibility; Final
Rule, 81 Fed. Reg. 50244, 50245 (July 29, 2016). If the alien has
The petitioners in the Calderon putative class action, including De Souza, claim that DHS must allow them to remain in the United States while seeking the waivers. This issue is not yet ripe to be
decided.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 25 of 62
re-entered the United States unlawfully, the alien must remain outside the United States for ten years, then apply for a waiver. See 8 U.S.C. §1182(a)(9)(C).
If an alien receives waivers and therefore permission to apply for a visa, but is ineligible to "adjust" his or her status in the United States because of his or her unlawful entry,® the alien must travel to his or her country of origin and meet with a representative of the United States Department of State. The State Department official conducts an interview and, if appropriate,
issues a visa which authorizes the alien to re-enter the United
States and, upon doing so, to become a lawful Permanent Resident.
IV. FACTS AND PROCEDURAL BACKGROUND
In March 2017, five aliens, including Leandro Arriaga Gil, were arrested by ICE while at the Lawrence, Massachusetts CIS office for an 1-130 interview. See Arriaga v. Tomkins, C.A. No. 17-10743, Docket No. 1.® Arriaga filed a habeas petition under §2241 and a motion for a temporary restraining order requiring his
® An alien who lawfully enters the United States and overstays his or her visa, and then marries a United States citizen, may "adjust" his or her status to that of a lawful permanent resident without leaving the United States. See 8 U.S.C. §1255. However, the petitioners are not eligible to do so because they unlawfully
entered the United States. Id.
® See also Milton J. Valencia, "Immigration Officials Agree to Release Lawrence Immigrant Who Was Detained without Bail," Boston
Globe, May 5, 2017, https://www.bostonglobe.eom/metro/2017/05/05/ judge-reviews-case-lawrence-immigrant-detained-without-bail/ c4CkszjUhyd4ExUu33uLYI/story.html.
25

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 26 of 62
release. ICE detained Arriaga, whose removal period had expired in 2001, for about one month without giving him a custody review. Therefore, at a May 5, 2017 hearing on Arriaga's motion for a temporary restraining order, this court indicated it was likely to decide that ICE violated its regulations and allow the motion. During a break, before the court announced its final decision, ICE agreed to release Arriaga and to allow him to stay in the United States until CIS processed his application for a waiver. The court was not informed of what happened to the four similarly situated aliens who did not bring cases in federal court.
In January 2018, at least eight individuals, including De Souza, Fabiano Mateus de Oliveira, and Lilian Pahola Calderon Jiminez, were arrested by ICE at their 1-130 interviews in Massachusetts and Rhode Island. See Affidavit of Todd M. Lyons SI12; see also De Oliveira v. Moniz, C.A. No. 18-10150, Docket No. 1; May 23, 2018 Tr. at 22-23. Junqueira was similarly arrested on February 1, 2018 at a CIS office in Connecticut. C.A. No. 1810307, Amended Petition at 532. De Souza, Junqueira, De Oliveira, and Calderon each filed petitions under 28 U.S.C. §2241, which were properly designated as related to Arriaga and assigned to this court. See Rule 40.1(g) of the Local Rules of the United
States District Court for the District of Massachusetts.
The court scheduled briefing and hearings to decide whether De Oliveira and Calderon, like Arriaga, were entitled to bail
26

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 27 of 62
hearings and possible release. See De Oliveira, C.A. No. 18-10150,
Jan. 26, 2018 Order (Docket No. 5); Calderon, C.A. No. 18-10225,
Feb. 6, 2018 Order (Docket No. 6). Shortly before each of their
hearings, ICE agreed to release De Oliveira and Calderon. See De
Oliveira, C.A. No. 18-10150 (Docket No. 16) ; Calderon, C.A. No.
18-10225 (Docket No. 15) . ICE did not, however, agree to release
De Souza or Junqueira.^° Therefore, on May 8, 2018, the court held
a hearing to decide whether De Souza and Junqueira were entitled
to relief.
A. Lucimar De Souza
De Souza, who is from Brazil, entered the United States
unlawfully on February 22, 2002. Aff. of Tiffany R. Andrade (Docket
No. 50-5), SI4. Upon entering the United States, she was detained
by immigration officials. Id. While in detention, she provided
On February 21, 2018, Deputy Field Office Director Todd Lyons represented that ICE arrested five individuals other than De
Oliveira and Calderon at Massachusetts and Rhode Island CIS offices
in January of 2018. See Lyons Aff. at SI12. On May 22, 2018, the court ordered Acting Field Office Director Brophy to report on the status of these five individuals. At a May 23, 2018 hearing, Brophy
confirmed that ICE arrested five individuals other than Calderon and De Oliveira at CIS offices in Massachusetts and Rhode Island
in January of 2018. See May 23, 2018 Tr. at 23. One of them, Jovel Calderon Morales, was still being detained in violation of §241.4. Id. at 25-26. On about May 23, 2018, Brophy directed that Morales be released. Id. at 25. The others had been released or deported. Id. However, these five did not include De Souza, who was detained in Massachusetts during that same period. Id. at 28. Therefore, it appears that Lyons' February 21, 2018 declaration underrepresented
the number of aliens who had been arrested at Massachusetts and
Rhode Island CIS offices, and that Brophy's May 23, 2018 list of arrestees may not have been complete. Id. at 28-29.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 28 of 62
immigration officers with the address of a friend in Waterbury, Connecticut. Id. She was released, stayed in Waterbury briefly, then moved to Danbury, Connecticut. Id. Her friend allegedly told De Souza that he did not receive any communications concerning her immigration case. Id. On June 11, 2002, De Souza did not appear at a hearing the Immigration Court had scheduled to determine whether she should be deported. Id. 515. As a result, an Immigration Judge ordered her removed. Id. Despite her 2002 final order of removal, De Souza stayed in the United States. On August 26, 2006, she married Sergio Santos Francisco, a United States citizen. Id. at 513. They have an 11 year-old-son. Id. In May 2014, she moved to reopen the proceedings. Id. 516. Her motion to reopen was denied. Id. On July 23, 2015, the BIA affirmed the decision. Id. 517.
On September 29, 2016, Francisco filed an 1-130 petition on De Souza*s behalf to begin the process of applying for provisional waivers. Id. 519. On December 28, 2017, CIS sent De Souza and Francisco a notice that CIS would interview them on January 30, 2018 at the John F. Kennedy Federal Building in Boston, Massachusetts. Id. 5110 & Ex. B. The notice instructed the couple to bring "clear and convincing evidence that you have been residing together in a bona fide marital relationship from the date of marriage continuously to the present." Id., Ex. B. De Souza and
Francisco attended the interview. Id. 5110. CIS determined that
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 29 of 62
their marriage is legitimate and approved the 1-130 petition. Id.
Ex. A.
However, when De Souza left the building, five ICE officers arrested her. Id. Sll. From January 30, 2018 to May 8, 2018, she was held at the South Bay House of Corrections in Boston. Id. SI3.
Immediately after she was arrested, De Souza filed an emergency motion in the BIA to reopen her case and stay her deportation so that she could pursue her waiver applications with CIS. Id. 513. In addition, on March 23, 2018, she submitted to ICE a Request for Bond or Supervised Release. Id. 520.
On April 10, 2018, De Souza and Francisco joined the Amended Complaint in Calderon v. Nielsen, C.A. No. 18-10225, with four other couples, as petitioner-plaintiffs. In that putative class action, plaintiffs seek an order enjoining ICE from detaining or deporting them or similarly situated individuals^^ until CIS adjudicates their applications for waivers. In any event, they request an order prohibiting ICE from detaining or deporting them
In particular, they seek to represent: "any U.S. citizen and his or her noncitizen spouse who: (1) has a final order of removal and has not departed the U.S. under that order; (2) is the beneficiary of a pending or approved 1-130, Petition for Alien Relative, filed by the U.S. citizen spouse; (3) is not "ineligible" for a provisional waiver under 8 C.F.R. § 212.7(e)(4)(i) or (vi); and (4) is within the jurisdiction of Boston ICE-ERO field office (comprising Massachusetts, Rhode Island, Connecticut, Vermont, New Hampshire, and Maine)." C.A. No. 18-10225, Motion for Class
Certification (Docket No. 46).
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 30 of 62
without giving them an opportunity to be heard and a written explanation of why the class member should not be permitted to remain in the United States while pursuing waivers from CIS. They also seek to prevent ICE from continuing any class members' detention for longer than two weeks without a bond hearing before an Immigration Judge, at which the government would bear the burden to demonstrate by clear and convincing evidence that the alien poses a danger or flight risk, and that no conditions of release will reasonably assure the safety of the community or the alien's appearance or cooperation with any order to depart. See Motion for Temporary Restraining Order and Preliminary Injunctive Relief
(Docket No. 49). De Souza individually requested that respondents be ordered
to show cause for her detention, under 28 U.S.C. §2243, which establishes procedures for §2241 petitions.on April 16, 2018,
the court granted the motion and directed ICE to submit an affidavit explaining, among other things, why De Souza was detained and what procedures ICE followed in making the decision to detain
her.
12 Section 2243 states that "a court, justice, or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled
thereto." 30

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 31 of 62
On April 11, 2018, De Souza filed with CIS an 1-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal, which is the second step in the process of seeking the permission of CIS to pursue a visa before traveling to Brazil for an interview with the Department of
State. Id.
On April 13, 2018, the BIA declined to exercise its discretion to reopen De Souza's proceedings in the Immigration Court and stay her deportation. Id. 522, Ex. D. It reasoned that under the operative 2016 regulations, it was not necessary that De Souza's proceedings be reopened in order to request waivers from CIS while in the United States, and that she could seek an administrative stay of deportation from ICE. Id. (citing 8 C.F.R. §212.7(e)(4)(iv), §241.6(a)).
As ordered by this court, on April 23, 2018, respondents submitted an affidavit of ICE Deputy Field Office Director James Rutherford to explain the decision to detain De Souza after her
arrest. He wrote that ICE used a Risk Classification Assessment,
a computer algorithm, to make the determination, which was reviewed by Supervisory Deportation Officer Stephen Wells. Rutherford Aff. (Docket No. 40-1) 555-6. Rutherford explained that in deciding
that De Souza should be detained:
[] Wells considered De Souza's final order of removal and the fact that De Souza is not eligible for any immigration
benefits that would allow her to remain in the United
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 32 of 62
States to be evidence of flight risk. [] Wells also considered the availability of bed space, her lack of health issues and her lack of dependent-care issues (De Souza's child was in the care and custody of his father and there were no elderly or infirmed parents to care for) in making his discretionary decision. Id. SI6. Rutherford asserted that ICE "still ha[d] the authority to
detain De Souza without an individualized determination of
dangerousness and risk of flight" under §1231(a)(6). Id. 57. In addition, he noted that De Souza breached her bond by failing to appear for her 2002 immigration hearing, but he did not state that
Wells considered this a reason for her detention. Id. 56. He also
stated that ICE had requested, but not yet received from the Brazilian consulate, the documents necessary to deport De Souza to Brazil (also called "travel documents"). Id.
On April 23, 2018, respondents also filed a motion to dismiss the Amended Complaint. See Respondent's Opposition to Petition for Writ of Habeas Corpus and Motion to Dismiss (Docket No. 40) ("Apr. 23, 2018 0pp."). The same day, ICE gave De Souza a Notice to Alien of File Custody Review, informing her that she could submit
information in favor of her release, and that ICE would conduct a
custody review "on or about" April 30, 2018. See Aff. of Tiffany
Andrade 521 & Ex. E. ICE did not send a copy of the notice to any of De Souza's attorneys. De Souza mailed a copy to one of them.
Tiffany Andrade, who received it on April 27, 2018. Id. 523. Ms. Andrade worked quickly to submit by April 30, 2018 documents in
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 33 of 62
support of De Souza's release and a request for an administrative stay of removal. Id. SIS123-24.
ICE subsequently made a series of false or misleading statements relating to the decision to continue De Souza's detention. On April 21, 2018, Deputy Field Office Director Rutherford, on behalf of Acting Field Office Director Brophy,
decided to continue De Souza's detention. The Notice of the
decision signed by Rutherford and sent to De Souza stated that "[t]his decision has been made based on a review of your file and/or your personal interview and consideration of any information you submitted to ICE reviewing officials." Notice of Decision to Continue Detention, May 8, 2018 Ex. 1. De Souza was not, however, interviewed before the decision was made. Nor was the information she sought to submit considered because, as a result of ICE'S failure to provide De Souza and her attorneys timely notice, in violation of §241.4 (h) (2) and (d) (3), her attorneys were not aware that a custody review had been scheduled until the day it was conducted. In any event, the Notice of the
decision stated that De Souza's detention would continue because
she had "failed to demonstrate significant equities within the United States...[and] would pose a significant risk of flight if released from ICE custody." Id. De Souza received the Notice of the decision on May 2, 2018.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 34 of 62
At a May 1, 2018 hearing, respondents' counsel from the Department of Justice, who represented that she was in constant communication with ICE, stated that she did not know when a decision would be made concerning De Souza's possible release. See May 1, 2018 Tr. at 37. Therefore, the court ordered the parties to report on De Souza's status by May 3, 2018, not knowing that the decision to continue her detention had already been made. See May 2, 2018 Order 54.
That Order evidently prompted Acting Field Office Director Brophy to focus on De Souza's case. On May 3, 2018, Brophy signed, under penalties of perjury, an affidavit stating that ICE had decided to deny De Souza's application for a stay of removal and continue her detention, and that De Souza had been served with the decision on May 2, 2018. May 3, 2018 Brophy Decl. 54. Brophy also stated that "[t]he notice of Post Order Custody Review (POCR) was served upon De Souza on April 23, 2018, seven days prior [sic] the occurrence of the custody review." Id. This statement was false, as the decision to continue De Souza's detention was made on April 27, 2018, four days after the notice was provided to her. In addition, the notice was not served on her attorneys.
In his affidavit, Brophy acknowledged that "the [post-order custody review] notice was not sent to counsel for De Souza." Id. He stated that, therefore, "on May 3, 2018, due to irregularities in the timing of De Souza's [post-order custody review] notice,
34

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 35 of 62
ICE provided De Souza and her attorney with a new [post-order custody review] notice with the required 30 days' notice of a renewed [post-order custody review] to be conducted...on or about June 3, 2018." Id. 55.
B. Eduardo Junqueira Eduardo Junqueira was born in Brazil. Amended Petition, 52. He is 35 years old. Id. 520. In June 2004, Junqueira crossed the border unlawfully, was arrested, and was placed into deportation proceedings. Id. 521. On July 23, 2004, he was ordered removed and was deported. Id. 522; Resp. Apr. 6, 2018 Memo., Ex. 3.
In November 2004, Junqueira re-entered the United States without authorization. Id. He subsequently married a United States citizen, with whom he has two children, aged 10 and 12. Id. 524. He has resided continuously in the United States for more than thirteen years. Id.
Because of his illegal reentry, Junqueira is not eligible for a waiver of inadmissibility from CIS and, therefore, may not remain in the United States while he pursues his application for lawful
Permanent Resident status. Id. 527. This means he must leave the
country for ten years before seeking permission to reapply for a
visa. Id.
However, in February 2017, an immigration attorney erroneously advised Junqueira and his wife that he was eligible to apply for a waiver of inadmissibility from CIS while in the United
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 36 of 62
States. Id. at 529. As a result, his wife filed a Form 1-130 with
CIS seeking to prove their marriage is genuine. Id. On February 1, 2018, Junqueira and his wife appeared for a
scheduled interview at the Hartford, Connecticut CIS office. Id. 531. The same day, ICE reinstated Junqueira's removal order under
8 U.S.C. §1231(a)(5) and 8 C.F.R. §1241.8. S^ Resp. Apr. 6, 2018 Memo., Ex. 3. Before the interview began, ICE arrested Junqueira.
Amended Petition 532. On May 8, 2018, he was still detained at the Bristol County, Massachusetts House of Correction. Amended Petition, 56.
Junqueira filed his §2241 petition on February 16, 2018. Originally, he challenged the legality of his detention and ICE's attempts to remove him from the United States before he received a decision on his 1-130 and eventual applications for waivers from CIS. On April 6, 2018, respondents filed a motion to dismiss, which argued, in part, that Junqueira is ineligible for a waiver until he has remained outside the United States for ten years due to his illegal reentry. On April 26, 2018, Junqueira filed an Amended Petition, which conceded that he is not eligible for an inadmissibility waiver. Id. 53. The Amended Petition, therefore, does not seek a stay of Junqueira's removal. However, he continues to challenge ICE's decision to detain him without complying with the §241.4 procedures. Id. 5539-43.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 37 of 62

On May 3, 2018, Deputy Field Office Director Rutherford and

Acting Field Office Director Brophy decided to release Junqueira.

See May 11, 2018 Brophy Aff., 16; May 22, 2018 Tr. at 68.

Junqueira's wife was contacted and told he was being transferred

to the Burlington, Massachusetts ICE office in preparation for

release. She drove to Burlington from Connecticut to get him. When

Junqueira's counsel discovered he was being moved to Burlington,

he contacted Department of Justice counsel for respondents, who

did not know of the decision to release Junqueira. See May 8, 2018

Tr. at 8. Department of Justice counsel communicated with attorneys

in the office of ICE's Chief Counsel. Id. At least one of those

lawyers spoke to Brophy. See May 22, 2018 Tr. at 68. Brophy then

reversed the decision to release Junqueira and directed that his

detention continue. Id. at 68-69. Instead of releasing Junqueira

on May 3, 2018, ICE gave him a Notice of File Custody Review to

occur on June 3, 2018, and he was returned to the Bristol County

House of Correction. Id.
As of May 8, 2018, ICE had not communicated that Brophy had

decided to release Junqueira and reversed that decision, or the reasons for Junqueira's continued detention, to its counsel at the Department of Justice or to Junqueira's counsel. See May 8, 2018

Tr. at 11-12, 24.

V.

ANALYSIS

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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 38 of 62
ICE failed to follow its regulations with respect to both De Souza and Junqueira when it decided to detain each of them for approximately four months. As explained earlier, 8 C.F.R. §241.4 (h) (2) and (d) (3) provide that the alien and his or her attorney must be given written notice approximately 30 days in advance of a custody review by ICE to determine whether detention should continue, so that the alien can submit information to support a request for his or her release. Id. §241.4 (d) (3), (h) (2). As now interpreted by ICE, the regulations require that an alien's custody be reviewed within 90 days of his or her detention, unless there are exceptional circumstances, which ICE does not assert in these cases. May 8, 2018 Tr. at 15; 8 C.F.R. §241.4 (k) (2) (iv) , (k)(3).
Because De Souza was detained on January 30, 2018, ICE should have given her attorney and her notice of a custody review by approximately March 30, 2018. It did not. On April 27, 2018, ICE
decided to continue De Souza's detention before she had an
opportunity to provide information in support of her release. It then made a series of false or misleading statements concerning that decision. When ICE finally recognized that it had violated §241.4, characterizing the violation as an "irregularit[y]," ICE decided to belatedly give De Souza 30 days' notice of a custody
review and to detain her at least until the review occurred on
about June 3, 2018. Therefore, in essence, ICE decided that because
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 39 of 62
i t had acted unlawfully in violating its regulations, De Souza, who might be entitled to be released and to be reunited with her family before her possible deportation, should lose her liberty
for at least another month.
ICE dealt with Junqueira in a comparable manner. Junqueira was arrested and detained on February 1, 2018. Therefore, under §241.4 as now interpreted by ICE, Junqueira his attorney should have been given notice by April 1, 2018, that his custody would be reviewed on about May 1, 2018. No such notice was ever provided. Evidently recognizing this violation of the regulations, Rutherford and Brophy decided that Junqueira should be released on May 3, 2018. However, without any opportunity for Junqueira or his attorney to submit anything in favor of release, the decision to release him was reversed, and ICE decided to continue his detention until at least June 3, 2018. Once again, ICE decided that because it had acted unlawfully, an alien who might deserve to be released and reunited with his family before his possible deportation should
be detained for at least another month.
Respondents have at different times made different arguments for the lawfulness of ICE's conduct in detaining De Souza and Junqueira for more than three months without the notice and opportunity to be heard required by §241.4.
First, respondents asserted that "[t]he Post Order custody Review Regulations [8 C.F.R. §241.4] do not apply to Ms. De Souza"
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 40 of 62
because she had not been detained during her 90-day removal period.
Apr. 23, 2018 0pp. at 11-12. Therefore, respondents argued De Souza
and others similarly situated had no right to notice, an
opportunity to be heard, or an individualized determination of
whether they would be released after 90 days, because the removal
period had long ago expired.
In addition, respondents argued that the court does not have
the authority to order release from ICE detention until an alien
has been detained for at least six months. Id. at 11. More
specifically, respondents wrote:
To the extent that Ms. de Souza, and any of the other alien Petitioners, are challenging the lawfulness of their immigration detention, this Court has no basis to grant any relief because Ms. De Souza's detention, and the detention of any of the other alien Petitioners, is lawful under 8 U.S.C. § 1231(a) (6) and as a matter of constitutional interpretation under Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Section 1231(a)(6) authorizes detention of aliens with orders of removal beyond the 90 day removal period. 8 U.S.C. §1231 (a) (6). Detention pursuant to this section is presumptively reasonable for six-months, thereby making habeas petitions filed prior to the six-month mark not ripe for adjudication.
Id.
ICE repeatedly asserted that §241.4 did not apply to De Souza,
and other similarly situated aliens, once she was detained, and
that she was not entitled to any individualized determination of
whether she should be released, evidently for at least six months.
On February 21, 2018, ICE Deputy Field Office Director Todd M. Lyons stated in an affidavit that ICE "still [had] the authority
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 41 of 62
to detain [De Souza's co-petitioner Lilian] Calderon," who had also not been detained during her removal period, "without an individualized determination of dangerousness and risk of flight." Feb. 21, 2018 Lyons Deal. (Docket No. 40-1), SI7. On April 23, 2018, Deputy Field Office Director Rutherford stated that ICE "still [had] the authority to detain De Souza without an individualized determination of dangerousness and risk of flight." Apr. 23, 2018 Rutherford Decl. (Docket No. 40-1), 57. ICE's conduct was consistent with the contention that §241.4 did not apply to De Souza, or to Junqueira either. As explained earlier, ICE did not follow the regulation in any respect with regard to De Souza or Junqueira until government lawyers contacted them on about April 23 and May 3, 2018, to request affidavits concerning De Souza's and Junqueira's petitions.
ICE's initial argument that §241.4 does not apply to aliens who are arrested after their 90-day removal period has expired is contradicted by 8 U.S.C. §1231 and "the [agency's] intent at the time of [§241.4]'s promulgation." Caruso v. Blockbuster-Sony Music Entm't Ctr. at Waterfront, 193 F.3d 730, 736 (3d Cir. 1999) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). In enacting §1231, Congress contemplated that ICE might not discharge its duty to detain every alien within the removal period. Section 1231(a)(3), therefore, provides that "[i]f the alien does not leave or is not removed within the removal period,
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 42 of 62
the alien, pending removal, shall be subject to supervision under regulations prescribed by the [Secretary of Homeland Security]." Section 241.4 is one of those regulations.33 respondents initially argued, aliens first detained after the removal period are never entitled to a custody review to determine whether they should be released, they would not be "subject to supervision under [the] regulations prescribed by the [Secretary]," which include §241.4. ICE would, therefore, regularly and repeatedly be in violation of §1231 (a) (3).
In promulgating 8 C.F.R. §241.4, INS explained that all aliens, including aliens first detained following their removal period, would be eligible for possible release under §241.4. More specifically, when it published §241.4 in the Federal Register,
INS stated that:
This rule establishes a permanent custody review procedure applying to aliens who are detained following expiration of the 90-day removal period...This permanent review procedure governs all post-order custody reviews inclusive of aliens who are the subjects of a final order of removal, deportation, or exclusion, with the exception
of inadmissible Mariel Cubans...
Detention of Aliens Ordered Removed, 65 Fed. Reg. at 80291
(emphasis added). As explained earlier, §241.4 was intended to provide these aliens the procedural due process courts had found to be constitutionally required. Id. at 80283. If, as ICE initially
The relevant regulations also include 8 C.F.R. §241.5, which governs the terms of release.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 43 of 62
claimed, §241.4 authorizes the detention of aliens like De Souza, who are arrested after the expiration of their removal periods, without an individualized determination concerning their detention for up to six months, the regulation would likely be unconstitutional as applied.
Perhaps recognizing that it was legally untenable to continue to contend that ICE's failure to detain De Souza during her 90day removal period gave it the unfettered discretion to later detain her for up to six months without notice and any opportunity to be heard, ICE changed its position. At the May 1, 2018 hearing, in its May 3, 2018 supplemental memorandum, and at the May 8, 2018 hearing, the respondents argued that "the procedures in 8 C.F.R. §241.4 apply to petitioners," including De Souza and Junqueira, and that "once an alien has been detained for 90 days under the post-order detention statute, they are entitled to a post-order custody review pursuant to 8 C.F.R. §241.4." Respondents' Response to Court's May 2, 2018 Order (Docket No. 55) at 4; see also May 1, 2018 Tr. at 30 ("It's the government's position that after 90 days of being in detention, [De Souza] will receive all of the
procedures available in 8 C.F.R. §241."); May 8, 2018 Tr. at 15. Therefore, ICE now concedes that it must review the detention of any alien, including aliens who were not detained during their removal period, but maintains that it is not required to do so until 90 days after the alien is arrested. ICE asserts that the
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 44 of 62
agency's current interpretation of its regulation deserves
deference from the court. See Christopher v. SmithKline Beecham
Corp., 567 U.S. 142, 155 (2012); Auer v. Robbins, 519 U.S. 452,
461 (1997) .
It is questionable whether ICE's more recent interpretation
of §241.4 deserves such judicial deference. Such deference is not
justified:
when the agency's interpretation is "'plainly erroneous or inconsistent with the regulation.'" [Auer, 519 U.S.] at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). . . [or] when there is reason to suspect that the agency's interpretation "does not reflect the agency's fair and considered judgment on the matter in question." Auer, [519 U.S.] at 462, 117 S.Ct. 905; see also, e.g., Chase Bank [v. McCoy, 131 S. Ct. 871, 881 (2011)], when the agency's interpretation conflicts with a prior interpretation, see, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994), or. when it appears that the interpretation is nothing more than a "convenient litigating position," Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 213 (1988), or a "post hoc rationalizatio[n] advanced by an agency seeking to defend past agency action against attack," Auer, [519 U.S.] at 462, (quoting Bowen, [488 U.S.] at 212) .
Christopher, 567 U.S. at 155. This may be such a case.
Section 241.4 is ambiguous with regard to detention of aliens
like De Souza who were not detained during their initial 90-day
removal periods as required by 8 U.S.C. §1231(a)(2) and 8 C.F.R.
§241.3. As described earlier, in enacting §1231, Congress and the
President anticipated that not all aliens ordered removed would be
deported during the removal period. See §1231(a)(3)(referring to
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 45 of 62
"an alien" who "does not leave...within the removal period"). However, in promulgating §241.4, INS evidently assumed that all aliens would be detained during the removal period. As explained earlier, the regulation applies to all aliens detained following the removal period. See 65 Fed. Reg. at 80291. Yet, the regulation is entitled "Continued detention of [certain] aliens beyond the removal period," suggesting that all aliens will have been detained within the removal period. Id. (emphasis added). In addition, §241.4(h)(2) and (k)(1)(i) require 30 days' notice "to the detainee" and an initial custody review "prior to the expiration of the removal period." In cases in which an alien is not in custody during the removal period, it would not be possible to give timely notice and conduct a timely custody review.
However, ICE's current interpretation of the ambiguous regulation, giving it 90 days after arrest within which to conduct all custody reviews, is inconsistent with the regulation's express "requirement that the review occur prior to the expiration of the removal period," §241.4(h)(2), (h)(1), (k)(2)(emphasis added), in the absence of exceptional circumstances, id. §241.4(k)(2)(iv), (k)(3). The 90-day removal period runs from "[t]he date the order [of removal] becomes administratively final," the date of a court's final disposition if the removal order is judicially reviewed, or "the date the alien is released from [non-immigration] detention," whichever is latest. Id. §241.4 (g) (1) (i) ; see also 8 U.S.C.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 46 of 62
§1231 (a) (1) (B) . The regulation does not state that the removal period runs from the date the alien is first detained.
The regulation can be reasonably read in a manner that is consistent with its language and that would not require ICE to give aliens notice of a custody review before arresting and detaining them, while still affording these aliens due process. The regulations permit ICE to issue the 30-day notice and conduct the custody review "as soon as possible []after" the removal period, "allowing for any unforeseen circumstances or [an] emergent situation." §241.4(k)(2)(iv). ICE could, consistent with this provision, give notice and decide whether detention is justified "as soon as possible" after the arrest of an alien who was not detained during his or her removal period. Id. This approach would also be consistent with the authority to postpone a custody review "for good cause" as long as "reasonable care [is]
exercised to ensure that the alien's case is reviewed once the
reason for delay is remedied." Id. §241.4(k)(3). Therefore, for an alien arrested after the removal period like De Souza, i t would be faithful to the language of §241.4 to interpret the regulation as requiring notice promptly after arrest and a custody review approximately 30 days later.
This interpretation of the regulation would not only be consistent with the language of §241.4 (h) (1) and (k) (1) (i) , it
would also be reasonable. An alien who is detained after the
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 47 of 62
expiration of the removal period, during which detention is
mandatory, has not "conspir[ed] or act[ed] to prevent [her]
removal." §1231(a) (1) (C). Indeed, ICE concedes De Souza has not
done so. See Rutherford Aff., 55 (stating that De Souza's detention
"is discretionary under 8 U.S.C. §1231(a) (6)") . After the
expiration of an alien's removal period, there are good reasons
not to automatically detain him or her for 90 days before
considering the alien's release. As Judge David Barron has written,
"the more time an individual spends in the community, the lower
her bail risk is likely to be, and the more probable it is that a
fair custody review would result in her release." Castaneda v.
Souza, 810 F.3d 15, 41 (1st Cir. 2015).
Three months' detention without a statutory mandate under
§1231 (a) (2), or at least an informal opportunity to be heard, may
be unconstitutional.^'^ "Congress may make rules as to aliens that
Among other factors, the fact that no statute requires the detention of aliens who, like De Souza and Junqueira, are detained beyond the removal period distinguishes this case from Demore, 538 U.S. at 521. In that case, the Court held that Congress could, by statute, require ICE to detain an alien who committed certain crimes for the "brief period necessary [to complete his or her] removal proceedings," which the Court believed was ordinarily from one to four months. Id. at 523, 529. In any event, in Demore, Justice Kennedy concurred only because the alien was afforded "individualized procedures" to determine whether his detention was mandatory under the statute or, if not, justified by a risk of flight or danger to the community. Id. at 531-32 (Kennedy, J., concurring). Therefore, even when "the Executive Branch must detain an alien at the beginning of removal proceedings, without a bond hearing," it "may do so consistent with the Due Process Clause" only if "the alien is given some sort of hearing when
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 48 of 62
would be unacceptable if applied to citizens." Demore, 538 U.S. at 521. However, even parolees, who are also "properly subject[]...to many restrictions not applicable to other citizens," are guaranteed "some minimal inquiry" to determine whether there is "probable cause to hold the parolee for the final decision of the parole board on revocation." Morrissey v. Brewer, 408 U.S. 471, 482, 485-87 (1972) . That inquiry must be "conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is
fresh and sources are available." Id. at 485. The formal revocation
hearing must then take place "within a reasonable time after the parolee is taken into custody," which has been held to be up to
two months. Id. at 488.
Similarly, when ICE arrests an alien who has been released on conditions under §241.4(d) (1), it is required to "notif[y] [her] of the reasons for [the] revocation [and]...her return to [ICE] custody," and "afford[] [her] an informal interview promptly after...her return to [ICE] custody to afford [her] an opportunity to respond to the reasons for revocation stated in the notification," §241.4(1) (1). This process precedes a full custody review conducted "approximately three months after release is
initially detained at which he may challenge the basis for his detention" and seek to show it is not authorized by statute. Diop,
656 F.Sd at 232.
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 49 of 62
revoked." Id. §241.4 (i) (3). It would, therefore, be reasonable, and arguably constitutionally necessary, to interpret §241.4 to require that an alien who is first detained after his or her removal period expires, and who will not be immediately removed, receive a prompt opportunity to demonstrate that §1231(a)(6) and §241.4, which address post-removal-period detention, do not authorize her detention. As explained earlier, §1231(a)(6) and §241.4 do not authorize detention after the removal period has expired if the alien will not be immediately removed and is not a flight risk or dangerous because detention would not be "reasonably necessary to secure removal." Zadvydas, 533 U.S. at 699; see also 8 C.F.R. §241.4(e)-(f).
However, it is not now necessary to decide whether ICE's current interpretation of §241.4 is correct. It is undisputed that ICE violated §241.4 as i t now interprets i t with regard to both De Souza and Junqueira. See May 8, 2018 Tr. at 15-18, 22-25, 35-36. Nevertheless, ICE continues to assert that the court does not have the authority to remedy those violations. As indicated earlier, respondents argued on April 23, 2018 that "the Supreme Court's analysis in Zadvydas is the sole inquiry in cases like Ms. de Souza's and the alien Petitioners'," and under Zadvydas, "detention pursuant to §1231(a) (6) is presumptively reasonable for six-months, thereby making habeas petitions filed prior to the six-month mark not ripe for adjudication." Apr. 23, 2018 0pp. at
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11. Respondents amplified this argument at the May 8, 2018 hearing, stating that "the right implicated in Zadvydas is the right to detention that is connected with its purposes. And the purpose[] articulated in Zadvydas is to ensure the alien's presence at the time of removal. And that is the only right that this court has the authority to decide with regard to whether the detention is constitutional or not." May 8, 2018 Tr. at 31. Respondents assert that under Zadvydas, post-removal-order detention lacks a reasonable connection with its purposes only when it becomes "prolonged" and "removal isn't foreseeable." Id. at 26. Therefore, respondents argue, the court may not order relief for the detained alien as long as his or her removal is reasonably foreseeable and, in any event, not until the alien has spent at least six months in
detention.
Respondents' contention is incorrect, however, because they fail to recognize the distinction between the substantive and procedural components of the Due Process Clause discussed earlier. Again, the "substantive component... forbids the government to infringe certain 'fundamental' liberty interests ^ all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Flores, 507 U.S. at 301-02. The Court in Zadvydas held that aliens have a liberty interest in "[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint," which "lies at
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the heart of the liberty that Clause protects." Zadvydas, 533 U.S.

at 690. Therefore, detention violates substantive due process when

it does not "bear[] a reasonable relation" to a "special

justification...[that]

outweighs

the

individual's

constitutionally protected interest in avoiding physical

restraint." Zadvydas, 533 U.S. at 690.

However, even if there are constitutionally permissible

reasons to detain an alien, meaning that it "survives substantive

due process scrutiny," the decision to do so must result from a

fair process. Salerno, 481 U.S. at 746. In the immigration context,

as the Third Circuit has held, while Congress may "pass a law

authorizing an alien's initial detention...those implementing the

statute[] [must] provide individualized procedures through which

an alien might contest the basis of his detention." Diop, 656 F.3d

at 232. The fundamental features of procedural due process are

fair notice and a meaningful opportunity to be heard. See Mathews,

424 U.S. at 333-34, 348.

In Zadvydas, the Supreme Court addressed only the issue of

when an alien's right to substantive due process would be violated

by prolonged detention. It held, in part, that "an alien's liberty

interest is, at the least, strong enough to raise a serious

question as to whether, irrespective of the procedures used, cf.

post, at 2515-2517 (Kennedy, J., dissenting), the Constitution

permits detention that is indefinite and potentially permanent."

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Zadvydas, 533 U.S. at 695 (emphasis added). In doing so, the Supreme Court recognized that an alien's right to substantive due process could be violated even if the requirements of procedural due process had been satisfied. As explained earlier, the Court also decided that for a substantive due process analysis, courts should presume that detention for less than six months is reasonably related to §1231(a)'s permissible purpose of ensuring the alien's presence at the time for removal. Id. at 700-01.
In Zadvydas, the Court described the post-removal period procedures required by 8 U.S.C. §1231 and 8 C.F.R. §241.4. Id. at 683-84. It implicitly assumed that those procedures had been properly employed in deciding that there could be a violation of the alien's substantive due process right to freedom from unreasonable detention "irrespective of the procedures used," referencing Justice Kennedy's dissent. Id. at 696. The Court did not suggest that it disagreed with Justice Kennedy's view that a violation of the right to procedural due process would justify judicial relief.
In his dissent from the majority's substantive due process analysis. Justice Kennedy argued that a removable alien challenging detention had only a right to procedural due process, writing: "[w]hether a due process right is denied when removable aliens who are flight risks or dangerous to the community are detained turns, not on the substantive right to be free, but on
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 53 of 62
whether there are adequate procedures to review their cases..." Id. at 721 {Kennedy, J., dissenting). He then explained—without dispute from the majority—his view that:
like the prisoner in Board of Pardons v. Allen, who sought federal-court review of the discretionary decision denying him parole eligibility, removable aliens held pending deportation have a due process liberty right to have the INS conduct the review procedures in place. See 482 U.S., at 381. Were the INS, in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures under 8 C.F.R. § 241.4 (2001).
This is not the posture of the [Zadvydas] case[], however. Id. at 724-25. In contrast, the situation Justice Kennedy described is exactly the posture of De Souza's case and Junqueira's case. Each has been arbitrarily denied the process prescribed by §241.4, which, as Justice Kennedy recognized, is intended to codify the
procedural due process requirements of the Fifth Amendment. In Alexander v. Attorney General, the Third Circuit agreed
with Justice Kennedy, stating that "Zadvydas is not the only word on post-removal detention." 495 Fed. App'x 274, 277 (3d Cir. 2012).
The court observed that "regulations promulgated around the time of, and after, the Zadvydas decision established a series of processes for determining whether an alien should be released from custody after the expiration of the ninety-day removal period," discussing §241.4 in particular. Id. Therefore, the court held that "a failure to satisfy Zadvydas [by showing that there is 'no
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significant likelihood of removal in the reasonably foreseeable future'] may not necessarily be fatal to an alien's ability to prevail on an alternative ground predicated on regulatory noncompliance, " and remanded to the district court to determine whether DHS had complied with its regulations. Id.
The duty of the President and his subordinates to obey the regulations they have promulgated has been repeatedly recognized by the Supreme Court. During the "McCarthy Era," the Court held that having delegated by regulation to the BIA the discretion to decide, subject to appeal to him, whether an alien should be deported, the Attorney General could not "sidestep the Board or dictate its decision in any manner." Accardi, 347 U.S. at 267.
In Nixon, 418 U.S. at 694, the Attorney General had by
regulation delegated to a Special Prosecutor the authority to obtain subpoenas and seek judicial enforcement of them in his investigation, including by contesting the assertion of Executive Privilege. The President later claimed that he did not have to comply with the Special Prosecutor's subpoena for tapes of
conversations between the President and his aides. Id. at 692. He
argued that he had the unreviewable authority to assert Executive Privilege and withhold the tapes. Id. The Supreme Court rejected both contentions. It held that the regulation had "the force of law," "the Executive Branch was bound by it," and the Court was "bound to respect and enforce it." Id. at 696. Holding that the
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Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 55 of 62
Special Prosecutor properly issued the subpoena and showed that the Executive Privilege did not provide a basis to quash it, the Court ordered the President to produce the requested tapes. Id. at
713-14.
As the Supreme Court held in Nixon, regulations like §241.4, which are promulgated through a formal notice-and-comment process, have "the force of law." 418 U.S. at 695; see also Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015)(explaining that "Rules issued through the notice and comment process are often referred to as 'legislative rules' because they have the 'force and effect of law'"); Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 (D.C. Cir. 1986)(Scalia, J.)("A properly adopted substantive
rule establishes a standard of conduct which has the force of
law."); Adrian Vermeule & Cass Sunstein, "The Morality of Administrative Law," 131 Harv. L. Rev. 1924, 1956-60 (2018). 28 U.S.C. §2241(c)(3) authorizes this court to order relief for any person, including an alien, who is "in custody in violation of
the...laws...of the United States."
The court recognizes that not every procedural error violates the constitutional right to due process and justifies judicial
intervention. See Matias v Sessions, 871 F.3d 65, 72 (1st Cir.
2017) . However, as explained earlier, when the government violates a regulation intended to protect a fundamental right derived from the Constitution or a federal statute, such as the Fifth Amendment
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right to notice and an opportunity to be heard, the court may order
relief. See Waldron, 17 F.3d at 518. As explained earlier, 8 C.F.R.
§241.4 was promulgated in an effort to provide aliens the
procedural due process that courts had found to be constitutionally
required. See 65 Fed. Reg. at 80283.^^ The court may issue a writ
of habeas corpus to enforce §241.4 even if the regulation provides
greater protection than is constitutionally required. See Accardi,
347 U.S. at 265-68; Nelson, 232 F.3d at 262; Rombot, 296 F.Supp.3d
at 388.
It is undisputed that ICE violated §241.4 with regard to both
De Souza and Junqueira. They are entitled to judicial relief.
Zadvydas, 533 U.S. at 724 {Kennedy, J., dissenting); accord Rombot,
15 The Calderon petitioners "do not concede that the procedures under Section 241.4 are adequate for the protection of Petitioners' and class members' constitutional rights." Response in Opposition to Motion to Dismiss the First Amendment Complaint at 30 n.l3. Rather, the petitioners argue that §241.4's presumption favoring detention violates their due process rights because they:
are entitled to protections beyond those that must be granted to every detainee with a final order of removal. Detention of individuals in the process of seeking lawful permanent resident status cannot be presumptively reasonable—even if all of the Section 241.4 procedures are followed—because the government cannot be presumed to have any interest in the removal of people who may soon become lawful permanent residents, and individuals presenting themselves for legalization cannot be presumed to be flight risks during the pendency of the application
process.
Id.; see also Memorandum in Support of Motion for a Temporary
Restraining Order and Preliminary Injunctive Relief (Docket
No. 50 in Calderon) at 23.
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296 F.Supp.Sd at 388; Bonitto, 547 F.Supp.2d at 757-58; D'Alessandro^ 628 F.Supp.2d at 388-403.
VI. REMEDY
As indicated earlier, habeas corpus is, at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 319 (1995). 28 U.S.C. §2243 provides that "[t]he court shall... dispose of the matter as law and justice require." Historically, "common-law habeas corpus was, above all, an adaptable remedy" in which the "court's role was most extensive in cases of pretrial and noncriminal detention." Boumediene, 128 S. Ct. at 2267. "[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority... to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Id. at 2271.
As this court has repeatedly recognized, "[w]hile the court's discretion to devise an equitable remedy is considerable, it is not unfettered." Flores-Powell v. Chadbourne, 677 F.Supp.2d 455, 474 (D. Mass. 2010) (Wolf, D.J.); Ferrara v. United States, 384 F.Supp.2d 384, 434 (D. Mass. 2005), aff'd, 456 F.3d 278 (1st Cir. 2006). "Rather, the remedy should be tailored to the injury suffered...and should not unnecessarily infringe on competing interests." Flores-Powell, 677 F.Supp.2d at 476 (quoting United States V. Gordon, 156 F.3d 376, 381 (2d Cir. 1998)).
57

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 58 of 62
As indicated earlier, ICE argued on May 8, 2018, that the remedy for its violation of its regulations and the constitutional rights of De Souza and Junqueira to procedural due process should be a custody review to be conducted by ICE on about June 3, 2018. This would not be equitable.
ICE has repeatedly demonstrated an inability to perform lawfully and to decide fairly whether detention is justified for either De Souza or Junquiera. Its indifference to its duty not to deprive aliens of liberty without due process is not unique to these cases. For example, in Doe v. Smith, 2017 WL 6509344, at *9 (D. Mass. 2017)(Sorokin, D.J.), the court held that ICE's "repeated errors suggesting negligence, incompetence or bad faith on the part of the agency ha[d] prolonged Doe's [deportation] proceedings and, thus, his detention." Among other things, ICE erroneously informed the Immigration Court that Doe had been released, and that a new bond hearing was not necessary. Id. at *7. Therefore, the district court rejected ICE's argument that "the only appropriate remedy was another bond hearing identical to the two [Doe] already had before the [Immigration Judge], which had been infected by ICE's misconduct," and ordered Doe's release. Id. at *8-9. Similarly, in Rombot, 296 F.Supp.3d at 388-89, the court found that ICE had repeatedly failed to follow the procedures
required by §241.4 in detaining the petitioner, therefore violated his constitutional right to due process, and ordered that the
58

Case 1:18-cv-10225-MLW Document 95 Filed 06/11/18 Page 59 of 62
petitioner be released. See also D'Allessandro v. Mukasey, 628 F.Supp.2d 368, 387-406 (W.D.N.Y. 2009)(finding ICE's failure to follow requirements of §241.4 violated alien's right to procedural due process and ordering alien's release).
In view of the foregoing, it would not be appropriate to allow ICE to decide again whether De Souza's or Junquiera's detention should continue. It would be particularly unfair to require that petitioners remain detained for another 30 days while ICE attempts to remedy its failure to follow its regulations and to provide each of them due process. As explained earlier, both petitioners face the prospect of being deported and separated from their families. Each day with their families is, therefore, precious. Any unjustified loss of liberty for even one more day would be a particularly painful form of irreparable harm to them and to the
United States citizens who love them.
Furthermore, it appears likely that De Souza and Junqueira will each be able to persuade the court that they should be
released under the standards in §241.4(e) and (f) . There is no evidence that ICE has obtained the documents necessary to deport
either petitioner to Brazil. Therefore, their immediate removal does not appear possible. See §241.4 (e) (1) . It appears that if released, neither is likely to be a danger to the community because neither has a criminal history. See §241.4(e)-(f). Nor does it appear that either is likely to flee. Among other factors, their
59

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"ties to the United States," including "close relatives residing here lawfully," appear to outweigh their "prior immigration violations" of having entered the United States unlawfully. §241.4(f). In addition, both of them have lived in the United States for more than fourteen years, have spouses and children who are United States citizens, and seek to pursue lawful Permanent Resident status through a process prescribed by law. As indicated earlier, CIS's waiver process is designed to prevent "extreme hardship" to United States citizens that would result from the alien's inability to live with them in the United States and support them. Absconding or violating their conditions of release would seriously jeopardize De Souza's and Junqueira's chances of living in this country with their families.
In these circumstances, it is most appropriate that the court exercise its equitable authority to remedy the violations of petitioners' constitutional rights to due process by promptly deciding itself whether each should be released. See §241.4(f); Zadvydas, 533 U.S. at 699; of. McCarthy v. Madigan, 503 U.S. 140, 147 (1992) ("[IJmpending irreparable injury flowing from delay incident to following the prescribed procedure...may contribute to finding that exhaustion is not required."); see also FloresPowell, 677F. Supp.2d at 463 (citing Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986)).
60

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VII. CONCLUSION
For the foregoing reasons, the court finds that De Souza and Junquiera are each being detained in violation of the Constitution and laws of the United States, and that the court should determine whether their continued detention is justified. Accordingly, on May 8, 2018, the court ALLOWED De Souza and Junqueira's Petitions for Writs of Habeas Corpus under 28 U.S.C. §2241 (C.A. No. 1810225, Docket No. 27, and C.A. 18-10307, Docket No. 22) concerning their detention and scheduled a bail hearing at which the court would decide whether they should be released. After this decision was announced in court on May 8, 2018, ICE released De Souza and Junqueira.
As discussed at the May 8, 2018 hearing, ICE failed to follow the procedures required by §241.4 and to provide petitioners with the due process the Constitution requires in these two cases, which ICE knew were subject to judicial scrutiny. This causes concern that ICE may be violating the rights of many other detained aliens who do not have counsel to file petitions for habeas corpus on their behalf in federal court. That concern may soon be addressed in the context of the claims in Calderon for class certification and preliminary injunction. However, at least some members of the
class may suffer unjustified irreparable harm before these issues are decided, including by being deported without the opportunity
61

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to spend time with their families that they would have had if their constitutional right to due process had been respected.
At hearings on May 22 and 23, 2018, the court was informed that after the court issued its decisions regarding De Souza and Junqueira, ICE reviewed detainee files in the Burlington, Massachusetts Field Office, found 30 to 40 additional cases in which the §241.4 procedures had not been followed, and released approximately 20 aliens. See May 22, 2018 Tr. at 86; May 23, 2018 Tr. at 51, 138. The court has not been informed of the status of the additional 10 to 20 aliens who were evidently also denied due
process.
UNITED STATES DISTRICT JUDGE
62

 
 Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 1 of 48

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ AND LUIS GORDILLO, ET AL.,
individually and on behalf of all others similarly situated,
Petitioner-Plaintiffs,
V.
KIRSTJEN M. NIELSEN, ET AL.,
Respondent-Defendants.

C.A. No. 18-10225-MLW

WOLF, D.J.

MEMORANDUM AND ORDER

September 21, 2018

Table of Contents

I. SUMMARY

2

II. PROCEDURAL HISTORY

^

III. THE PROVISIONAL WAIVER REGULATIONS

6

IV. THE MOTION TO DISMISS STANDARD

10

V.

THE FACTS

VI. JURSIDICTION

VII. THE MERITS OF THE MOTION TO DISMISS

28

VIII.PETITIONERS' DETENTION CLAIMS

42

IX. ORDER

This Memorandum is based upon the transcript of the decision rendered orally on August 23, 2018. This Memorandum: adds a
summary, some discussion, and citations; deletes some colloquy;
and clarifies some language.

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 2 of 48
I. SUMMARY
Petitioners are unauthorized aliens in various stages of the
process of seeking to become Lawful Permanent Residents, and their spouses, who are United States citizens. Among other things, p0titioners claim that Immigration and Customs Enforcement ("ICE")/ an agency of the Department of Homeland Security ("DHS"), is attempting to remove the alien petitioners from the United
States in violation of regulations permitting them to apply for provisional waivers of their inadmissibility.
More specifically, petitioners claim that ICE's attempts to remove the aliens before they can pursue and receive a decision on
their applications for provisional waivers violates the Immigration and Nationality Act ("INA"), 8 C.F.R. §212.7, and the
Due Process Clause of the Fifth Amendment. In particular, they
allege that §212.7 gives the aliens a liberty interest in remaining
with their families in the United States while they pursue their
applications for provisional waivers with Citizenship and Immigration Services ("CIS"), another agency of DHS. They also allege that the Constitution provides the United States citizen petitioners with a liberty interest in living with their spouses
in the United States while their provisional waiver applications
are being decided. They claim that ICE is unlawfully depriving them of those liberty interests by attempting to deport the alien

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 3 of 48
petitioners based solely on their final orders of removal and
without considering whether they should be allowed to pursue
provisional waivers. Petitioners also assert that ICE's actions are "arbitrary and
capricious" under the Administrative Procedures Act ("APA"),
5 U.S.C. §706(2) (A). Finally, petitioners alleged that ICE is
unlawfully targeting them for deportation on the basis of their
race in violation of their constitutional right to Equal
Protection.
Petitioners have moved for a preliminary injunction. They
also seek certification to represent a class of similarly situated
individuals.
Respondents have moved to dismiss on multiple grounds. Respondents assert that three provisions of the REAL ID Act, which
amended 8 U.S.C. §1252, deprive this court of jurisdiction over this case. With regard to the merits, respondents argue that
petitioners fail to state any claim on which relief can be granted.
For the reasons explained in this Memorandum, the
respondents' motion to dismiss is being denied. The court finds that it has jurisdiction concerning the petitioners' claims and that petitioners have stated a claim upon which relief can be granted. More specifically, contrary to respondents' contention,
8 U.S.C. §§1252(a)(5) and 1252(b)(9) do not divest the court of

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 4 of 48
jurisdiction in this case because there is not a means to have the issues presented decided by a court of appeals. 8 U.S.C. §1252(g) would strip this court of jurisdiction over petitioners' claims if allowed to operate. However, the Suspension Clause of the Constitution guarantees petitioners review of their claims in some
federal court, and because those claims cannot be presented to a court of appeals, this court has jurisdiction.
In addition, petitioners have stated a plausible claim that they are being deprived of their right to procedural due process. The court finds that ICE may only remove petitioners after
considering the fact that they are pursuing those waivers and the policies codified in the provisional waiver regulations. The court is reserving judgment on the viability of petitioners' other claims
regarding removal, including their APA and Equal Protection
claims. The court has previously decided petitioners' claims
concerning detention. See Jimenez v. Cronen, 317 F. Supp. 3d 626 (D. Mass. 2018), and now finds they are not moot. Petitioners' motions for a preliminary injunction and for class certification
will be addressed in future proceedings.
II. PROCEDURAL HISTORY
Petitioners filed their Petition for Writ of Habeas Corpus on
February 5, 2018. On April 10, 2018, the petitioners filed an
Amended Complaint and Petition for Writ of Habeas Corpus.

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 5 of 48
On April 13, 2018, the court ordered respondents not to remove
any of the named alien petitioners from Massachusetts while this case is pending. ^ ICE has directed its officers to obey this Order. See Resp. 0pp. to Mot. for Clarification (Docket No. 38).
On April 23, 2018, respondents filed their Motion to Dismiss the Amended Complaint, which petitioners opposed. On May 8, 2018,
the court issued an oral decision regarding the petitioners' detention claims. See May 8, 2018 Tr. (Docket. No. 73) ; May 8, 2018 Order (Docket No. 66). On June 11, 2018, the court issued a
Memorandum amplifying that decision. See Jimenez, 317 F. Supp. 3d
626. In that Memorandum, the court explained that it had
jurisdiction to consider claims by aliens that ICE violated the statute and regulations governing detention and removal, as well
as the Due Process Clause, by detaining the aliens for more than three months without an opportunity to be heard. Id. at 637. The court also held that ICE had failed to follow its regulations with
respect to the two aliens whose detention was then at issue, Eduardo Junqueira and Lucimar De Souza. Id. at 647-52. The court
concluded that the most appropriate remedy for ICE's violation of their rights to due process would be an exercise of its equitable
^ As some petitioners reside in Rhode Island and Connecticut, respondents have properly construed the April 13, 2018 Order to prohibit their removal from those states as well.

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 6 of 48
authority to decide promptly itself whether each should be
]^02_03^3ed. Id. at 656~68. However^ on May 8/ 2018^ after the court s
oral ruling, ICE released Junqueira and De Souza. ICE subsequently released approximately 20 other aliens that it determined were
being improperly detained. Id. at 658.
On August 20 and 21, 2018, the court held hearings on
petitioners' claims concerning removal, as well as respondents' argument that their detention claims are now moot. On August 23, 2018, the court denied the motion to dismiss these claims in an
oral decision, which this Memorandum memorializes and amplifies.
III. THE PROVISIONAL WAIVER REGULATIONS
At the heart of petitioners' procedural due process claims
are regulations that give CIS the discretion to permit certain
aliens with final orders of removal or deportation to remain in the United States with their United States citizen spouses, and often their citizen children, while seeking a discretionary
decision by CIS that, if granted, would make him or her a Lawful
Permanent Resident after departing the United States briefly. S^ 8 C.F.R. §212.7{e); Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50244 (July 29, 2016), Provisional Unlawful Presence Waivers of Inadmissibility—for Certain Immediate Relatives, 78 Fed. Reg. 536 (Jan. 3, 2013).

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 7 of 48
Pursuant to 8 U.S.C. §1182(a)(9)(B)(i){II), an alien who has been unlawfully present in the United States for at least one year and then leaves the country is barred from re-entering the United
States for ten years. Pursuant to 8 U.S.C. §1182 (a) (9) (B) (i) (I) , if an alien has been in the United States unlawfully for more than
180 days but less than one year and then departs, he or she is
barred from re-entering the United States for three years. However,
the Secretary of DHS has been given by statute the discretion to waive these unlawful presence bars if refusing to admit an alien would "result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien." 8 U.S.C.
§1182 (a) (9) (B) (V) .
The authority and responsibility to make this waiver determination was delegated to CIS. See 8 C.F.R. §212.7(e). Before 2013 an alien had to be outside the United States to apply for an
unlawful presence waiver by submitting a Form 1-601. S^ 78 Fed. Reg. at 565. In 2013, DHS recognized that: this scheme caused a
separation of United States citizen spouses, and often United
States citizen children, from their husbands, their wives, and
parents for a year or more; this created financial, emotional, and
humanitarian hardships that the waiver process is intended to avoid; and that separating families that included at least one United States citizen was incompatible with promoting family

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 8 of 48
unification, an important objective of the United States
immigration laws. See id♦ Therefore, in 2013, DHS adopted regulations to permit unlawful aliens who were immediate relatives
of United States citizens to apply while in the United States for
provisional waivers of the unlawful presence bars to readmission,
and to leave only briefly before being readmitted and becoming
Lawful Permanent Residents upon re-entering the country. See id. In 2016 these regulations were amended and expanded to make
unlawful aliens with final orders of removal eligible for
provisional waivers. See 8 C.F.R. §212.7 (e) ; 81 Fed. Reg. at 50244 45. DHS explained that the 2016 regulation was promulgated to address the significant emotional and financial hardship that Congress aimed to avoid when it authorized the waiver. See id. at
50243-45.
Under the 2016 regulations, an alien subject to a final removal order and his United States citizen spouse may follow a
five-part process that allows the alien to apply to become a Lawful
Permanent Resident without leaving the United States except for a brief trip to a United States consulate abroad.
First, the United States citizen spouse may file a Form I-
130, Petition For Alien Relative. See 8 C.F.R. §212.7(e) (3) (vi);
8 U.S.C. §1182 (a) (9) (B) (v) . CIS may require an appearance at an interview to determine whether the United States citizen and the

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 9 of 48
alien's spouse have a bona fide marriage. See 8 U.S.C. §1153(f), §1154(a){l); Nat'1 Lawyers Guild, 1 Immigr. Law and Defense,
§§4:38-39.
Second, the alien spouse may file a Form 1-212, Permission to
Reapply For Admission to the United States After Deportation Or
Removal. 81 Fed. Reg. at 50245. Consistent with the 2016
regulations, aliens can file a Form 1—212 and obtain conditional approval prior to their departure from the United States if they will become subject to inadmissibility on the ground of having previously been removed or having departed with a final order of
removal. See 8 C.F.R. §212.2(j); 81 Fed. Reg. at 50262.
Third, after a Form 1-212 is conditionally approved, an
application for a provisional unlawful presence waiver using a
Form I-601A, Application For Provisional Unlawful Presence Waiver,
may be filed. S^ 8 C.F.R. §212.7 (e); 81 Fed. Reg. at 50245, 50256.
Fourth, after an alien obtains a provisional unlawful
presence waiver, he or she must leave the United States and appear for an immigrant visa interview at a United States consulate, and the Department of State may issue an immigrant visa if no other
inadmissibility ground applies. See 8 C.F.R. §212.7(e)(12),
(e) (3) (V) .

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 10 of 48
Fifth, the alien may travel to the United States with his or her immigrant visa. Upon admission to the United States, the alien
becomes a Lawful Permanent Resident. See id. §212.7(e) (12) (i) . In essence, these regulations allow an otherwise eligible
ij^^ividual who is the spouse of 3 United States citizen, and who lives in the United States unlawfully with a final order of removal
outstanding, to seek to demonstrate the bona fide nature of his or her marriage, obtain the necessary waivers of inadmissibility, depart the country only briefly to obtain an immigrant visa, and
then return to the United States to rejoin his or her family as a Lawful Permanent Resident. The provisional waiver application
process was designed to shorten the time that an alien applicant is separated from his or her family. See 78 Fed. Reg. at 536, 565;
81 Fed. Reg. at 50244, 50271.
IV. THE MOTION TO DISMISS STANDARD
A motion to dismiss must be denied if a plaintiff has shown
"a plausible entitlement to relief." Bell Atl. Corp.—y_;—Twombly,
550 U.S. 544, 559 (2007). That is, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S.
10

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 11 of 48

662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "Where a

coniplaint pleads facts that are 'merely consistent with a

defendant's liability, it 'stops short of the line between

possibility and plausibility of entitlement to relief.'"

at

678 (quoting Twombly, 550 U.S. at 557).

In considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the court must "take all factual allegations

as true and . . . draw all reasonable inferences in favor of the

plaintiff." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96

(1st Cir. 2007); Maldonado v. Fontanes, 568 F. 3d 263, 266 (1st

Cir. 2009). The court "neither weighs the evidence nor rules on

the merits because the issue is not whether plaintiffs will

ultimately prevail, but whether they are entitled to offer evidence

to support their claims." Day v. Fallen Cmty. Health

—In^j_,

917 F. Supp. 72, 75 (D. Mass. 1996).

"Under Rule 12(b)(6), the district court may properly

consider only facts and documents that are part of or incorporated

into the complaint." Rivera v. Centre Medico de Turabo, Inc., 575

F.3d 10, 15 (1st Cir. 2009) (quotations omitted); Watterson v.

Page, 987 F.2d 1, 3 (1st Cir. 1993). However, there are "narrow
exceptions for documents the authenticity of which are not disputed

by the parties; for official public records; for documents central

to plaintiff['s] claim; or for documents sufficiently referred to

11

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 12 of 48
in the complaint." Watterson, 987 F.2d at 3-4. When "a complaint's factual allegations are expressly linked to — and admittedly
upon — a document (the authenticity of which is not challenged), that document effectively merges into the pleadings
and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)." Beddall v. St. Street Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998). When such documents contradict an
allegation in the complaint, the document trumps the allegation.
See Clorox Co. P.R. v. Proctor & Gamble Consumer Co., 228 F.3d 24, 32 (1st Cir. 2000) (citing Northern Ind. Gun & Outdoor Shows, Inc. V. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998)).
V. THE FACTS
Petitioners allege the following facts.
Petitioners are aliens with final orders of removal who are
pursuing provisional waivers and are at various stages of the process, and their citizen spouses. The respondents include the
Secretary of DHS, the Acting Director of ICE, the Acting Boston
Field Office Director of the Enforcement and Removal Office of ICE
(the "Boston ICE office"), and the President of the United States.
Lilian Pahola Calderon Jimenez's family brought her to the United States from Guatemala in 1991, when she was three. In 2002,
when she was 15, the Board of Immigration Appeals ("BIA") ordered her to voluntarily depart. When she did not, a final order of
12

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 13 of 48
removal automatically entered. Calderon married Luis Gordillo, a United States citizen, in 2016, after they had lived together for
10 years. They have two children, ages two and four, who are United
States citizens. ICE arrested Calderon at her 1-130 interview on
January 17, 2018. On February 13, 2018, shortly after she filed the original complaint in this case, ICE released her and granted
her a three-month administrative stay of removal, which was later
extended to August 18, 2018. See Harris Aff. (Mot. for Prelim.
Inj., Docket No. 50-3, Ex. C) 131. The BIA subsequently granted
her a further stay of removal. CIS has approved Calderon's Form I130 and 1-212 advance waiver of the final order-based bar. See id. 130. She is in the process of preparing her I-601A. See id. ^32.
Lucimar De Souza, who immigrated from Brazil, was ordered removed in 2002. She married Sergio Francisco, a United States
citizen, in 2006. They have a ten-year-old son who is a United States citizen. De Souza was arrested on January 30, 2018, immediately after the interview at which the request for an 1-130
was approved. De Souza has a pending 1-212 application to lift the
final order-based bar. ICE released her on May 8, 2018, after this court held that ICE was detaining her in violation of its
regulations and the Fifth Amendment's guarantee of due process.
See Jimenez, 317 F. Supp. 3d at 658.
13

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 14 of 48
Sandro de Souza fled Brazil in 1997 after being threatened by
a criminal group, entered the United States on a tourist visa, overstayed, married United States citizen Carmen Sanchez in April 2011, and was ordered removed in September 2011. He voluntarily reported to ICE on June 12, 2017, while applying for an 1-130, and
was released under an order of supervision. At his January 2018
check-in, ICE told de Souza to depart the United States by March 9, 2018. He had an 1-130 interview on March 1, 2018, and was not arrested. His 1-130 application was approved. Because of progress on his 1-130, ICE postponed his departure date to April 24, 2018. As a result of this court's April 13, 2018 Order that petitioners not be removed during the pendency of this case, De Souza is still
in the United States.
Oscar Rivas entered the United States in 2006 from El Salvador after being beaten and shot by a gang he refused to join. He was ordered removed in 2012, and in 2013 was granted a stay of removal
by ICE, which has been renewed annually. Rivas married United
States citizen Celina Rivera Rivas in 2016. They have two
daughters, ages five and seven. Rivas has pending 1-130 and 1-212 applications, but has not had an interview. At a March 1, 2018 ICE
check-in, he was ordered to depart by May 2, 2018. He too is still in the United States as a result of this court's April 13, 2018
Order.
14

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 15 of 48
Deng Gao came to the United States from China in 2005 on a visa, was ordered removed in 2008, married United States citizen Amy Chen in 2016, and filed an 1-130 petition that year. The couple has four children, ranging from a few months to 13-years old. They
have not had an 1-130 interview, but fear Gao will be arrested if
he appears for one.
It is undisputed that the petitioners have all filed motions to reopen their immigration cases with the BIA, and all but one, Gao, have been denied. See Harris Aff. 512 (Calderon); Andrade Aff. (Mot. for Prelim. Inj . , Ex. E, Docket No. 50-5) 556-7, 22 (Lucimar De Souza); Sniffin Aff. (Mot. for Prelim. Inj., Ex. B, Docket No. 50—2) 519 (Rivas); Loscocco Aff. (Mot. for Prelim. Inj., Ex. F, Docket No. 50-6) 59 (Sandro De Souza); Corbaci Aff. (Mot. for Prelim. Inj., Ex. G, Docket No. 50-7) 513 (Gao) (appeal to BIA
pending). Calderon filed a second motion to reopen in January 2018, which was pending as of April 30, 2018. S^ Harris Aff. 5520-22. All of the petitioners except Gao have requested administrative stays of removal from ICE under 8 C.F.R. §241.6. However, only
Calderon has been granted a stay. If petitioners are removed or
deported, they would be required to file 1-601 applications from
outside the United States. 81 Fed. Reg. at 50245. As indicated 0arii02r, this would often cause them to be separated from their
15

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 16 of 48
United States citizen spouses and children for a year or more. See
78 Fed. Reg. at 565. Petitioners seek to represent a class comprising;
Any United States citizen and his or her noncitizen spouse who (1) has a final order of removal and has not departed the United States under that order; (2) is the beneficiary of a pending or approved 1-130, Petition for
Alien Relative, filed by the United States citizen
spouse; and (3) is not "ineligible" for a provisional
waiver under 8 C.F.R. §212.7(e)(4)(i) or (vi).
VI. JURSIDICTION
28 U.S.C. §2241 gives district courts jurisdiction to grant a writ of habeas corpus to individuals in custody in violation of the Constitution or laws or treaties of the United States. The
respondents do not dispute that the petitioners are all in custody" for the purpose of §2241 because of their final orders of removal and, for four of the petitioners, orders of supervision that require that they appear for removal when ordered to do so. See Resp. Reply in Supp. of Mot. to Dismiss (Docket No. 96) at 2
n.l. The court in any event finds that the petitioners are in custody. See Devitri v. Cronen, 290 F. Supp. 3d 86, 90 (D. Mass.
2017) ("Devitri I").
The respondents argue that three provisions of the REAL ID Act of 2005, codified at 8 U.S.C. §1252 (a) (5), (b) (9) and (g) ,
strip this court of jurisdiction concerning petitioners' claims regarding removal. Section 1252(a)(5), titled "Exclusive means of
16

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 17 of 48
review," 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," including
habeas review, "of an order of removal entered or issued under any
provision of this chapter." Section 1252 (b)(9), titled
"Consolidation of questions for judicial review," provides that:
Judicial 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. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas
corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title,
or by any other provision of law (statutory^ or nonstatutory), to review such an order or such questions
of law or fact.
Neither of these provisions applies to petitioners' claims.
Despite its broad terms, §1252(b)(9), like §1252(a)(5), only governs review of an order of removal. 8 U.S.C. §1252(a)(l), (b) . Therefore, in I.N.S. v. St. Cyr, 533 U.S. 289, 313 (2001), the Supreme Court held that §1252 (b)(9) does not bar habeas jurisdiction over claims not subject to judicial review under
§1252 (a) (1) . The REAL ID Act did not alter the language in §1252 (b) on which St. Cyr relied. Accordingly, as the First Circuit
explained in Aauilar v. I.C.E., 510 F.3d 1, 11 (1st Cir. 2007),
"§1252(b)(9) is a judicial channeling provision, not a claim-
17

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 18 of 48
barring on©." It do©s not apply to claiitis that "cannot be raised efficaciously within the administrative proceedings delineated by
the INA," because the failure to exercise habeas jurisdiction over such claims "would foreclose them from any meaningful judicial review." Id. However, if petitioners could raise their claims in the Immigration courts and obtain review of an adverse decision by a court of appeals, this court would lack jurisdiction concerning
them. See id. at 17-18.
Petitioners claim that DHS's decision, made by ICE, to execute
their removal orders without considering that they have initiated
the provisional waiver process violates their right to receive a decision on the requested waivers before they leave the United
States. This claim could not "effectively be handled through the available administrative process," id. at 11, because it is too
late for petitioners to file motions to reopen removal proceedings as only 90 days are permitted to do so. See 8 U.S.C.
§1229a{c)(7)(C)(i).
Respondents assert that petitioners could raise their provisional waiver claims on motions to reopen their cases sua sponte," which, if granted, would vacate their removal orders.
However, the Immigration court could not reopen petitioners' cases because, if it did so, it could not provide any relief concerning their claims. As the First Circuit explained in Pandit v. Lynch,
18

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 19 of 48
"[i]n order for a motion to reopen to succeed, it must . . . establish a prima facie case for the underlying substantive relief
sought." 824 F.3d 1, 3 (1st Cir. 2016) (quotations omitted). If a petitioner's removal proceedings were reopened, he or she would be ineligible to apply for, or be considered for, a provisional waiver, which is the substantive relief sought. See 8 C.F.R.
§212.7 (e) (4) (iii).
In addition, as a result of a recent decision by the Attorney
General, the Immigration court could not close or stay the
proceedings to make petitioners eligible again for provisional
waivers. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 292 (2018),
2018 WL 2299243.
In any event, petitioners' claims would not be subject to
judicial review in the First Circuit, under §1252 (a) (1), of their
final orders of removal or their motions to reopen them. See
Cyr, 533 U.S. at 313. "Judicial review" of a "final order" by a court of appeals "includes all matters on which the validity of the final order is contingent." Cano-Saldarriaqa v. Holder, 729 F.3d 25, 27 (1st Cir. 2013) (quoting I.N.S. v. Chadha, 462 U.S. 919, 938 (1983)). As indicated earlier, petitioners do not challenge the validity of their orders of removal or any decision on which they are contingent. Rather, they only challenge ICE's decision, on behalf of DHS, to enforce the order while they are
19

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 20 of 48
pursuing provisional waivers. In Cheng Fan Kwok, the Supreme Court
held that the court of appeals could not directly review the
Immigration and Naturalization Service {"INS") District Director's decision not to stay the execution of a removal order. See 392 U.S. 206, 213 (1968). The Court explained that the "application for a stay assumed the prior existence of an order of deportation," and the "petitioner did not attack the deportation order itself"; instead, he "sought relief [consistent] with it." Id. (quotations omitted). Therefore, the court of appeals could not review the
denial of the stay. Id.
Although Cheng Fan Kwok analyzed §1252(b) (9)'s predecessor, courts of appeals have held that under §1252(b)(9), they do "not have jurisdiction over denials of petitions [to ICE] to stay removal." Casillas v. Holder, 656 F.3d 273, 274 (6th Cir. 2011); see also Duron v. Johnson, 898 F.3d 644, 646-47 (5th Cir. 2018). Therefore, the court of appeals would not have a means to review the claims in this case. Accordingly, §1252(b)(9) does not strip
this court of jurisdiction.
The other jurisdictional provision on which respondents rely is 8 U.S.C. §1252(g). Section 1252(g) provides that "no court shall have jurisdiction to hear any cause or claim by or on behalf of
any alien arising from the decision or action by the [Secretary of DHS] to commence proceedings, adjudicate cases, or execute removal
20

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 21 of 48
ord©rs against any alien." It applies only to these three discrete actions, including the decision to "execute removal orders.
V. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) . ICE'S decision not to stay petitioners' deportation is a decision
"directly part of a decision to execute a removal order." Moussa V. Jenifer, 389 F.Sd 550, 554 (6th Cir. 2004); see also Devitri I,
290 F. Supp. 3d at 91.
However, the question is not whether the action the
petitioners seek to enjoin is "taken to remove an alien but whether
the legal questions in this case arise from such an action. Jennings v. Rodriguez, 138 S.Ct. 830, 841 n.3 (2018) (emphasis in
original). Petitioners argue that their claims "arise from" DHS's misinterpretation of a regulation, not from the decision to execute
their removal orders and, therefore, §1252(g) does not apply in this case. Some courts of appeals have agreed, holding that
§1252(g) does not apply to "a purely legal question that does not challenge the Attorney General's discretionary authority, even if
the answer to that legal question . . . forms the backdrop against which the Attorney General will later exercise discretionary
authority." United States v. Hovsepian, 359 F. 3d 1144, 1155 (9th Cir. 2004); see also Jama v. I.N.S., 329 F.3d 630 (8th Cir. 2003).
Those decisions emphasize that in Reno the Supreme Court stated that "[s]ection 1252(g) was directed against a particular evil:
21

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 22 of 48

attGinpts to iniposG judicial constiraints upon prosGCUtorial

discrGtion." HovsGpian, 359 F. 3d at 1155 {quoting RGno, 525 U.S.

at 485 n.9) ;

also Jama, 329 F.3d at 632 (citing Reno, 525 U.S.

at 482-85). WhGthor ICE can romovG an applicant for a provisional

vy^aivGr basGd solGly on an outstanding order of removal, thus

"fail[ing] to exercise the discretion authorized" by the

provisional waiver regulations, is a question of law concerning

what a regulation requires, not a claim that ICE abused the

discretion that it exercised. St. Cyr, 533 U.S. at 307.

Nevertheless, this court finds that §1252(g) applies to the

legal question raised by petitioners' claim. This court

understands that statutes must be read, where plausible, to avoid

the serious constitutional questions that would arise if they
stripped habeas jurisdiction. See St. Cyr, 533 U.S. at 299-300.

However, "the canon of constitutional avoidance comes into play

only when, after application of ordinary textual analysis, the

statute is found to be susceptible of more than one construction.

Jennings, 138 S.Ct. at 842-43 (quotations omitted). This court

finds that §1252(g) is not ambiguous. Unlike other provisions in

§1252, it does not limit itself to "discretionary" decisions, s^

8 U.S.C. §1252(a) (2) (B) (ii), or preserve jurisdiction over "constitutional claims or questions of law," s^ i^

§1252 (a) (2) (D) . In Kucana v. Holder, the Supreme Court stated that

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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 23 of 48
"[w]here Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." 558 U.S. 233, 249 (2010) (quoting Nken v. Holder, 556 U.S. 418, 430 (2009)). Petitioners have not suggested alternative language that Congress could have
used if it wanted to make any more clear that §1252(g) covers the claims alleged here, without using a broad phrase such as "relating to." Such a broad formulation would threaten to bar jurisdiction over claims that Congress did not intend to cover, including, for
example, challenges to detention in the execution of an order. See
Zadvydas v. Davis, 533 U.S. 678, 688 (2001). In addition, as the Eighth Circuit has summarized:
[The Supreme Court's] reference to discretionary decisions [in Reno] did not say that §1252(g) applies only to discretionary decisions, notwithstanding plain language that includes no such limitation. "Congress often passes statutes that sweep more broadly than the main problem they were designed to address." Gonzales v. Oregon, 546 U.S. 243, 288 (2006). The terms of the statute, not the principal concerns of the enacting
legislators, must govern.
Silva V. United States, 866 F. 3d 938, 941 (8th Cir. 2017); see also Foster v. Townsley, 243 F. 3d 210, 213 (5th Cir. 2001); Devitri
I, 290 F. Supp. 3d at 91. Although the Eighth Circuit in Silva concluded that §1252(g) contains an implied exception for habeas corpus petitioners but applies to claims for damages, it did not
23

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 24 of 48
identify any basis in the text for that distinction. See 866 F.3d
at 941. In addition, the Supreme Court in Reno explained that
§1252(g) exists not only to protect exercises of discretion from judicial review, but also to reduce the "deconstruction, fragmentation, and hence prolongation of removal proceedings, by avoiding "separate rounds of judicial intervention outside the streamlined process that Congress has designed." 525 U.S. at 485-
87.
Petitioners assert that ICE cannot execute their removal orders and thus "eliminate the availability of provisional waivers
arbitrarily or on the basis of grounds unsupported by the regulations* purposes and unrelated to an applicant's eligibility for legalization under the process." Pet. Memo, in Supp. of Prelim. Inj . (Docket No. 50) at 10. Although this is, as indicated earlier, a legal claim, it is also a direct challenge to the decisions to
execute their removal orders. In particular, petitioners seek to
enjoin removal until ICE considers that they are pursuing provisional waivers. Therefore, the court finds that §1252(g), if
allowed to operate, would bar jurisdiction over the claim. However, the Suspension Clause of the Constitution requires
that this court exercise jurisdiction over petitioners' claim that the I-601A waiver regulation, 8 C.F.R. §212.7, requires ICE to consider their pursuit of provisional waivers before deciding to
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 25 of 48
execute their removal orders. As indicated earlier, 28 U.S.C. §2241
gives district courts jurisdiction to grant a writ of habeas corpus
to individuals "in custody in violation of the Constitution or laws or treaties of the United States." Article I, §9, clause 2 of the Constitution provides that "[t]he Privilege of the Writ of
Habeas Corpus shall not be suspended, unless in Cases of Rebellion
or Invasion that public safety may require it." The Supreme Court has held that "[b]ecause of that Clause, some 'judicial intervention in deportation cases * is unquestionably 'required by the Constitution.'" St. Cyr, 533 U.S. at 300 (quoting Heikkila v.
Barber, 345 U.S. 229, 235 (1953)).
In St. Cyr, the Court explained that the habeas jurisdiction
required by the Constitution extends to questions of law concerning an alien's eligibility for discretionary relief, including claims, such as petitioners here, that DHS failed to
make a discretionary decision required by regulation. Id. at 304. In Heikkila, involving an earlier statutory immigration scheme,
the Supreme Court indicated that it had exercised habeas jurisdiction only "insofar as it was required by the Constitution."
325 U.S. at 234-35; see also St. Cyr, 533 U.S. at 304. Similarly, as noted in St. Cyr, in Accardi v. Shauqhnessy, the Court held
that "a deportable alien had a right to challenge the Executive s
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 26 of 48
failure to exercise the discretion authorized by the law. 533 U.S. at 308 {citing 347 U.S. 260 (1954)). The Court explained:
It is important to emphasize that [the Court is] not here reviewing and reversing the manner in which
discretion was exercised. If such were the case [it] would be discussing the evidence in the record
supporting or undermining the [petitioners'] claim[s] to discretionary relief. Rather, [the Court] object [s] to
the Board's alleged failure to exercise its own discretion, contrary to existing valid regulations.
Accardi, 347 U.S. at 268; see also Saint Fort v. Ashcroft, 329 F.3d 191, 203 (1st Cir. 2003); Goncalves v. Reno, 144 F. 3d 110, 125 (1st Cir. 1998) . Therefore, as in Accardi, in this case the Constitution requires that, if it is a colorable claim, some court must have jurisdiction to review petitioners' claim that by
deporting or removing them without considering their applications for provisional waivers, DHS is failing to exercise the discretion required by 8 C.F.R. §212.7, even though this court could not
review a discretionary decision for possible abuse if DHS' s
discretion was actually exercised.
As the Supreme Court wrote in St. Cyr, "Congress could, without raising any constitutional questions, provide an adequate substitute [for habeas corpus] through the courts of appeals." 533 U.S. at 314 n.38. To do so, it must provide petitioners "a
meaningful opportunity to demonstrate" that ICE will execute their
removal orders "pursuant to the [alleged] erroneous application or
interpretation of relevant law," and an opportunity to seek
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 27 of 48
adequate relief — in this case, a stay of removal until DHS considers their pursuit of the provisional waivers authorized by
statute and DHS regulations. Boumediene v. Bush, 553 U.S. 723, 779-80 (2008) (quotations omitted); see also Devitri I, 290 F.
Supp. 3d at 93.
However, as explained earlier, the administrative process
leading to direct review in the court of appeals could not adequately address petitioners' challenge to the execution of
their removal orders in this case. As in Devitri v. Cronen, 289 F.
Supp. 3d 287, 294 (D. Mass. 2018) ("Devitri II"), if deported, petitioners would be deprived of the relief they assert the regulations entitle them to seek from DHS — an opportunity to
remain in the United States with their families until they must
briefly travel abroad for their visa interviews. Therefore, if petitioners' claim is colorable, this court must exercise §2241
habeas jurisdiction over it.
A claim is "colorable" if it is not "so insubstantial,
implausible, foreclosed by prior decisions of [the Supreme Court],
or otherwise completely devoid of merit as not to involve a federal controversy." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998). In this case, the petitioners' claim under §2241 is not only colorable. As explained below, it also meets the higher
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 28 of 48
standard of being "plausible." This court, therefore, has
jurisdiction to decide it.
VII. THE MERITS OF THE MOTION TO DISMISS
As indicated earlier, respondents have moved to dismiss under Rule 12(b)(6), alleging that petitioners have failed to state a claim on which relief can be granted. This contention is not correct. Petitioners have alleged a procedural due process claim rooted in the provisional waiver regulations on which relief can
be granted. As this case will continue in any event, it is not necessary for the court to decide now the viability of petitioners'
other claims, including whether family ties create a liberty interest entitling them to due process or their Equal Protection
claims with regard to removal. Accordingly, the court is not doing
so.
Petitioners have stated a plausible procedural due process
claim that ICE may only remove an alien who is pursuing a
provisional waiver after considering that fact and the policy
reasons for the provisional waiver regulations. As the court
explained on May 8, 2018, and amplified in its June 11, 2018
Memorandum and Order, see Jimenez, 317 F. Supp. 3d 626, the Due Process Clause of the Fifth Amendment protects the "liberty" of
"all 'persons' within the United States, including aliens, [regardless of] whether their presence here is lawful, unlawful.
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 29 of 48
temporary, or permanent." Zadvydas, 533 U.S. at 693. A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty,' . . . or it may arise
from an expectation or interest created by [other] laws or
policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A regulation is for the purpose of a case such as this a "law." See Goncalves, 144 F.3d at 125. To create a constitutionally protected
interest in a benefit, a regulation must create a "legitimate claim of entitlement" to it. Kv Dept. of Corr. v. Thompson, 490 U.S.
454, 460 (1989).
When a regulation grants an entitlement to apply for relief, "[t]he availability of relief (or, at least, the opportunity to seek it) is properly classified as a substantive right and a
"legitimate expectation[]" even when the relief depends on the
exercise of an agency's discretion. Arevalo v. Ashcroft, 344 F.3d 1^ 11, 14 (1st Cir. 2003). For example, the INA, 8 U.S.C. §1229 (a) (7) (a) f states that "an alien may file one motion to reopen." (emphasis added). This has been held to create a right to have the BIA adjudicate the motion. See Santana v. Holder, 731 F.3d 50, 55-56 (1st Cir. 2013); Devitri II, 289 F. Supp. 3d at 291. The regulation at the heart of this case uses comparable language, stating that "certain immigrants," including immigrants who are subject to final orders of removal, "may apply" for a
29

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 30 of 48
provisional waiver. 8 C.F.R. §212.7(a)(1), (e)(4)(iv) (emphasis
added). The regulation also states that "USCIS will adjudicate a
provisional unlawful presence waiver application." Id.
§212.7 (e)(8) (emphasis added).
Therefore, although the regulation does not require CIS, acting on behalf of DHS, to grant a provisional unlawful presence
waiver, it does require that the agency exercise discretion in deciding whether to do so. As the Supreme Court explained in Accardi, "if the word 'discretion' means anything in a statutory or administrative grant of power, it means that the recipient must exercise his authority according to his own understanding and conscience." 347 U.S. at 266-67. Therefore, as the First Circuit
recognized in Succar v. Ashcroft, courts have reviewed and reversed
decisions to remove an alien where "the effect [would] preclude an alien from even applying for relief" that he or she is entitled to
pursue under a statute or regulation. 394 F.3d 8, 19-20 (1st Cir.
2005) .
Again, as in Accardi:
It is important to emphasize that [the court is] not reviewing . . . the manner in which discretion was
exercised. If such were the case [it] would be discussing the evidence in the record supporting or undermining the
[petitioners'] claim[s] to discretionary relief. Rather, [the Court] object[s] to [DHS's] alleged failure to
exercise its own discretion, contrary to existing valid
regulations.
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 31 of 48
Accardi, 347 U.S. at 268; see also Succar, 394 F. 3d at 29 n.28 ("[T]he Attorney General cannot categorically refuse to exercise discretion favorably for classes deemed eligible by the statute."). This court may, therefore, decide petitioners' claim on a petition for habeas corpus under 28 U.S.C. §2241. See
Goncalves, 144 F.3d at 125.
The court concludes that 8 C.F.R. §212.7 requires DHS, acting
through ICE, to consider an eligible alien's application for a provisional unlawful presence waiver before deciding to remove him
or her from the United States. The regulation entitles an eligible
applicant to relief that is distinct from a waiver granted while
the alien is outside of the United States. As explained earlier, in the 2016 explanation of the regulation, DHS stated that "without
[the ability to pursue a provisional waiver], individuals who must seek a waiver of inadmissibility abroad through the Form 1-601 waiver process after the immigrant visa interview may face longer
separation times from their families in the United States and will experience less certainty regarding the approval of a waiver of
the three- to ten-year unlawful presence bar before departing from the United States." 81 Fed. Reg. at 50246. The regulation was
designed to avoid the "extreme" and "significant emotional and
financial hardship that Congress aimed to avoid when it authorized the waiver." Id. at 50245. On its website, CIS states that the
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 32 of 48
provisional waivGir "procGSS was dovGlopsd to sliort©n th© tiin© that
U.S. citiz©ns and lawful p©rman©nt r©sid©nt family m©mb©rs ar©
s©parat©d from th©ir r©lativ©s whil© thos© r©lativ©s ar© obtaining immigrant visas to b©com© lawful p©rman©nt r©sid©nts of th© Unit©d
Stat©s." S©© Mot. for Pr©lim. Inj., Dock©t No. 50, Ex. I, at 1. Tharofor©, th© provisional waiv©r r©gulation prot©cts a
"pr©vailing purpos©" of th© INA: to "impl©m©nt[] th© und©rlying
int©ntion of our immigration laws r©garding th© pr©s©rvation of
th© family unit." Nwozuzu v. Hold©r, 726 F.3d 323, 332 (2d Cir. 2013) (quoting H.R. Rep. No. 82-1365 (1952)). Cartain provisions
of the INA were enacted because "Congress felt that, in many circumstances, it was more important to unite families and preserve
family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep
undesirable or harmful aliens out of the country." 1 'N. 3. y_^
Errico^ 385 U.S. 214, 220 (1966).
Accordingly, in the explanation of th© 2016 regulation, DHS
promised applicants that it would decide an application for provisional waiver before th© alien was required to leave th©
United States. In describing th© benefits of th© 2016 regulation,
DHS stated:
Those applying for provisional waivers will receive advance notice of USCIS' decision to provisionally waive - j - o r ten—year unlawful presence bar before
they leave the United States for their immigrant visa
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 33 of 48
interview abroad. This offers applicants and their
family members the certainty of knowing that the applicants have been provisionally approved for waivers
of the three and ten-year unlawful presence bars before departing from the United States.
81 Fed. Reg. at 50246 (emphasis added).
DHS also stated that:
Instead of attending multiple immigrant visa interviews and waiting abroad while UCIS adjudicates a waiver
application as required under the Form 1-601 process, the provisional waiver process allows individuals to file a provisional waiver application while in the
United States and receive a notification of USCIS' decision on their provisional waiver application before departing for Department of State consular processing of
their immigrant visa applications.
Id. at 50271 (emphasis added).
The text of 8 C.F.R. §212.7 (e) also manifests the Secretary
of DHS's expectation that the alien would be in the United States until the application for a provisional waiver is adjudicated. An alien is eligible if, among other things, he or she "[w]ill depart
from the United States to obtain the immigrant visa." 8 C.F.R.
§212.7(e)(3)(v) (emphasis added). Eligible aliens must
"[p]rovide[] biometrics to USCIS at a location in the United States designated by us USCIS." I^ §212.7 (e) (3) (ii) , (e)(6) (emphasis
added). In addition, "[i]f an alien fails to appear for a biometric
services appointment or fails to provide biometrics in the United
States as directed by USCIS, a provisional unlawful presence waiver
application will be considered abandoned and denied." I^
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§212.7(e) (6) (ii) {emphasis added). It would be impossible for

somebody to attend a biometrics appointment "in the United States"

after he or she was deported and barred from re-entering. The

regulation also states that "[a] provisional unlawful presence

waiver granted under this section . . . [d]oes not take effect

unless and until the alien who applied for and obtained the

provisional unlawful presence waiver . . . [d]eparts from the

United States" for an interview abroad. Id. §212.7 (e) (12) (i)

(emphasis added).

However, respondents argue that the regulation does not

constrain ICE's discretion to execute a removal order because it

also states that "[a] pending or approved provisional unlawful
presence waiver does not constitute a grant of lawful immigration

status or a period of stay authorized by the Secretary.

•

§212.7(e)(2)(i). This contention is incorrect. In 2013, DHS

characterized this provision as "mak[ing] clear that approval of

the provisional unlawful presence waiver is discretionary, and

"does not constitute a grant of any lawful immigration status or

create a period of stay authorized by the Secretary for purposes

of INA §212(a) (9) (B) , 8 U.S.C. §1182 (a) (9) (B) . " 78 Fed. Reg. at
561 (emphasis added). 8 U.S.C. §212(a) (9) (B) defines unlawful presence" for the purpose of determining whether and for how long

an alien is inadmissible for having been illegally present in the

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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 35 of 48
United States. In effect, 8 C.F.R. §212.7(e)(2)(i) provides that
a pending application for a provisional waiver does not make an alien lawfully present, and that if he or she remains in the United States for more than a year while the application is pending, he or she may become subject to the ten-year bar for admission rather than for the three-year bar. It also clarifies that applicants are not eligible for certain immigration benefits available to aliens who are lawfully present. Unlike the statute and regulation governing stays of removal by DHS, 8 U.S.C. §1231 (c) (2) and 8 C.F.R. §241.6, the regulation does not refer to a "stay of removal" or a "stay of deportation." See generally 8 C.F.R. §212.7 (e).
Nevertheless, the court finds that ICE may deport an alien before CIS has the opportunity to adjudicate his or her application
for a provisional waiver if it makes an individualized decision to
do so based on more than the mere fact that the alien is subject to a final order of removal. In its explanation of the 2013 Rule, DHS stated that it did not intend the pending waiver application
to prevent ICE from removing all aliens applying for unlawful presence waivers. See 78 Fed. Reg. at 555. Therefore, DHS evidently
intended that in some circumstances ICE should be allowed to remove
aliens who are applying for provisional waivers. However, a
decision by ICE to remove an alien pursuing a provisional waiver solely because he or she has a final order of removal would, as a
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 36 of 48
practical matter/ eliminate that alien's right to apply for a provisional waiver and CIS's opportunity to decide the merits of the application before the alien must depart the United States and be separated from his or her family. The binding promises to United
States citizens and their alien spouses in the provisional waiver
regulations would be meaningless, and their purposes would be
undermined/ if ICE were not required to consider that an alien
with a final order of removal is seeking a provisional waiver
before requiring him or her to leave the United States. There is
no reason to conclude that, having promulgated the provisional
waiver regulations in 2013, and amended them in 2016 to make aliens
with final orders of removal eligible for such waivers, the
Secretary of DHS intended to allow ICE to ignore the regulations
and their important purposes.
In essence, this case is analogous to Ceta v. Mukasey, 535 F.3d 639, 643 (7th Cir. 2008). In Ceta, the Seventh Circuit held • on direct review, not habeas review, that although it did not
generally have jurisdiction to review an immigration judge's
discretionary decision, such as the denial of a continuance, it "retain[ed] jurisdiction ... if that denial operates to nullify some statutory right or leads inescapably to a substantive adverse decision on the merits of an immigration claim." I^ at 646
(quotations omitted). The Seventh Circuit found that "[t]he
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Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 37 of 48
[immigration judge]'s denial — more specifically, the BIA s
affirmation of that denial — of Mr. Ceta's request for a
continuance amounts," under the circumstances of that case, "to a
denial of his statutory right to apply for adjustment of status."
Id. The Seventh Circuit explained:
The BIA's ruling has the effect of a substantive ruling
on [Mr. Ceta's] application to adjust his status. Under the INA, in general, an administratively final order of removal, unless appealed, must be executed within a
period of 90 days. Moreover, once an alien has been
removed, he no longer may obtain adjustment of status based on marriage. See . . . 8 U.S.C. §§1182(a) {9} (A), 1255(a)(2). Because of the denial of the continuance, therefore, Mr. Ceta's statutory right to apply for
adjustment of status is trapped within a regulatory
interstice: Section 1255 and the amended regulation, 8 C.F.R. §245.2(a) (1) , afford him an opportunity to seek
adjustment of status with the USCIS, but he will be deported by [ICE] before the USCIS is able to adjudicate
that application. Indeed, under the new regulatory
regime, unless these subagencies engage in some minimal
coordination of their respective proceedings for
example, by the immigration courts favorably exercising
discretion, in the appropriate case, to continue
proceedings to allow the other subagency to act—the
statutory opportunity to seek adjustment of status will
prove to be a mere illusion.
Id. at 646-47 (emphasis added) (quotations and citations omitted).
This reasoning is equally applicable in the instant case in
which the regulations create an entitlement to receive a decision
concerning a provisional waiver in the United States. Therefore,
the court finds that ICE may not order the removal of an alien
pursuing a provisional waiver solely because he or she is subject
to a final order of removal. Rather, ICE must consider the reasons
37

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 38 of 48
for the provisional waiver regime and the facts of the alien's particular case before deciding to order a removal that eliminates CIS's opportunity to decide the merits of the request, and the right of the alien to pursue, and potentially receive, a
provisional waiver. Other courts addressing the provisional waiver process have reached similar conclusions. See Villavicencio
Calderon v. Sessions, 2018 WL 3584704 (S.D.N.Y. 2018); Martinez v.
Nielsen, C.A. No. 18-10963 (D.N.J. 2018); You v. Nielsen, 2018 WL
3677892, at *10 (S.D.N.Y. 2018). The court finds that it is also plausible that if this case
is dismissed, ICE will deny petitioners' future requests for stays of removal and execute their removal orders without determining whether there is a reason, other than their final orders of
removal, that petitioners should be prevented from remaining in
the United States while they pursue provisional waivers. In their
Amended Complaint, petitioners allege with adequate specificity a "pattern" of arrests at the CIS offices, indicating that ICE has been "systematically targeting" for arrest, detention, and removal individuals who were applying for provisional waivers or launching that process at their 1—130 interviews. This claim is plausible.
2While the court must decide the motion to dismiss based on the
complaint itself, the court has been presented with evidence
relevant to the merits of petitioners' claims in connection with
the pending motion for preliminary injunction. The court is not relying on that evidence for the purpose of deciding the motion to
38

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 39 of 48
The respondents asserted for the first time at the August 20, 2018 hearing that even if 8 C.F.R. §212.7 entitles aliens seeking an unlawful presence waiver to an exercise of discretion concerning their applications before they are deported, that entitlement only vests when they receive an approved 1—212 waiver of the removal order—based bar and become eligible for a provisional unlawful
presence waiver under §212.7{e) (3) and (e) (4). The respondents did not present this argument in their several memoranda concerning
the motions to dismiss or for preliminary injunction. As a result,
the petitioners did not have fair notice and an opportunity to
address it in their submissions. Nor did the court have an
opportunity to consider it before the hearings on August 20 and 21, 2018, or to receive further briefing before rendering its oral
decision on August 23, 2018.
The First Circuit has held that "issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). Courts in the District of Massachusetts also apply this rule. e.g., Kuznarowis v. Tobey Hosp., 2018 WL 3213491, at *5 (D. Mass. 2018) (Gorton, J.); De Giovanni v. Jani-
dismiss. However, that evidence, which was discussed by the court
on August 23, 2018, reinforces the conclusion that the petitioners' claim is plausible. See Aug. 23, 2018 Tr. (Docket No. 155) at 35.
39

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 40 of 48
King Int'l, Inc., 968 F. Supp. 2d 447, 450 (D. Mass. 2013) (Wolf, j. ) ; Coppersmith v. Lehman Bros., Inc., 344 F. Supp. 2d 783, 790 n.5 (D. Mass. 2004) (Gorton, J.). Therefore, respondents' argument
that only petitioners and putative class members with approved I-
212 waivers are entitled to an adjudication of their provisional
v^aiver applications is deemed waived for the purpose of the motion to dismiss. If properly presented, the issue may be decided at
later stages of this case.
In view of the foregoing, the motion to dismiss petitioners'
procedural due process claims based on the provisional waiver regulations is being denied. As indicated earlier, because this
case will continue in any event, it is not necessary to decide now
the viability of petitioners' other claims regarding removal, including whether their family ties create a liberty interest entitling them to due process or their Equal Protection claim.
The court notes that this ruling on the respondents' motion to dismiss does not compel them to disregard the President of the United States' January 25, 2017 Executive Order: Border Security
and Immigration Enforcement Improvements, or the guidance concerning it provided by then-Secretary of DHS John Kelly. S^
Exec. Order No. 13768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017); Memorandum of John Kelly, on Enforcement of the Immigration Laws to Serve the National Interest
40

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 41 of 48
(Feb. 20, 2017) (the "Kelly Memorandum"). The Kelly Memorandum states that DHS "no longer will exempt classes or categories of removable aliens from potential enforcement." Kelly Memorandum at 2. This court's ruling on petitioners' motion to dismiss does not
exempt all aliens with final orders of removal who are seeking provisional waivers from being removed. Rather, it only requires
that ICE consider their pursuit of provisional waivers, and the reasons for the regulations that created them, in making an individualized determination concerning whether the alien should
j-)0 required to leave the United States before his or her
application is adjudicated by CIS.
The Kelly Memorandum directs DHS personnel to give priority to seven categories of removable aliens, beginning with aliens who have been convicted of any criminal offense." Id. In the sixth
category are "aliens subject to a final order of removal [who] have not complied with their legal obligation to depart the United
States." Id. However, the Kelly Memorandum encourages ICE to
allocate appropriate resources to prioritize enforcement activities within these categories for example, by prioritizing enforcement activities against removable aliens who are convicted felons or who are involved in gang activity or drug trafficking.
Id.
41

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 42 of 48

In addition, the Kelly Memorandum provides that establishing

priorities for removal "is not intended to remove the individual,

case-by-case decisions of immigration officers." Id. at 4. To the

contrary, the Secretary instructed that "[t]he exercise of

prosecutorial discretion with regard to any alien who is subject

to arrest . . . or removal in accordance with law shall be made on

a case-by-case basis." Id. This court's decision only requires

that ICE consider an alien's pursuit of a provisional waiver in

making that individualized, discretionary decision.

In any event, as Judge Brett Kavanaugh testified on September

6, 2018, in connection with his nomination to become an Associate

Justice of the United States Supreme Court, "a court order that

requires a president to do something or prohibits a president from

doing something under the [C]onstitution or laws of the United

States is the final word." See CNN Rush Transcript (Sept. 6, 2018),

http://transcripts.cnn.com/TRANSCRIPTS/1809/06/ip.02.html (citing

United States v. Nixon, 418 U.S. 683 (1974); Cooper v. Aaron, 358

U.S. 1 (1958); Marbury v. Madison, 5 U.S. 137 (1803)). Therefore,

if ICE perceives some inconsistency between the Kelly Memorandum

and this court's Order, it must obey the Order.

VIII.

PETITIONERS' DETENTION CLAIMS

The remaining claims subject to the motion to dismiss relate

to detention. For the reasons explained orally on May 8, 2018, and

42

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 43 of 48

in the June 11, 2018 Memorandum and Order, petitioners have stated

plausible claims that respondents were detaining them without due

process in violation of the Fifth Amendment and ICE's regulations,

as interpreted by ICE.

Jimenez, 317 F. Supp. 3d 626.

Respondents now argue that because petitioners have been released,

their detention claims are moot. This contention is incorrect.
Petitioners allege that if the court vacates the April 13,

2018 Order which, in effect, directs DHS not to remove them from

the United States during the pendency of these habeas proceedings,

ICE will detain them for removal and continue their detention in

violation of 8 C.F.R. §241.4 and the Due Process Clause of the

Fifth Amendment. As the First Circuit wrote in Dubois v. U.S.

Department of Agriculture, "the court need not determine the

standing of all plaintiffs if at least one plaintiff has standing

to maintain each claim" for prospective relief. 102 F. 3d 1273,

1282 (1st Cir. 1996) (discussing Wash. Legal Found, v. Mass. Bar

Found., 993 F.2d 962, 971-72 (1st Cir. 1993)); see also Ry. Labor

Execs. Ass'n v. United States, 987 F.2d 806, 810 (D.C. Cir. 1993).

Petitioners Calderon and De Souza were each detained when

they filed their claims. Each alleges that her detention was not reasonably related to permissible purposes. See Zadvydas, 533 U.S.

at 690. In Jimenez, this court decided that De Souza's claims were
not only plausible, they were valid. Jimenez, 317 F. Supp. 3d at

43

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 44 of 48

656. As explained in Jimenez, petitioners were detained without

the benefit of procedures sufficient to satisfy the requirements

of the Fifth Amendment.

i^ at 652-53 (discussing Mathews v.

Eldridge, 424 U.S. 319 (1976) and Morrissey v. Brewer, 408 U.S.

471 (1972)).
In addition, petitioners now face an "actual and imminent" threat that ICE will again detain them without complying with its
own interpretation of the post-order custody review regulation, 8
C.F.R. §241.4, which petitioners allege does not provide the constitutionally required Due Process. As explained in Jimenez,
317 F. Supp. 3d at 650-51, ICE may be interpreting §241.4 incorrectly and, therefore, detaining aliens for longer than the regulation permits. In any event, Calderon was released only after
she filed this case. Her release was part of a pattern of ICE
releasing detainees who filed petitions for writs of habeas corpus, but continuing to detain other individuals without complying with §241.4, even as ICE interprets it. Indeed, ICE has admitted that at least until May 2018, it frequently kept aliens in detention in violation of §241.4. See May 8, 2018 Tr. at 15-18, 22-25, 35-36; Jimenez, 317 F. Supp. 3d at 635. After this court's May 8, 2018 Order, ICE discovered that it was detaining at least 30 aliens in violation of its regulations, as it interpreted them. S^ i^ at

637.

44

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 45 of 48
Although ICE released both De Souza and Calderon, their claims regarding detention are not moot because there is a reasonable
likelihood that in the future ICE will violate the process the court found is due to them. More specifically, there is a reasonable likelihood that ICE will detain the petitioners again and continue their detention without the notice and opportunity to
be heard required by ICE's regulations and the Fifth Amendment. As
the Supreme Court has held, "[a] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). Rather, "a
defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur." Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOO, Inc., 528 U.S. 167, 190 (2000)). Respondents have
not satisfied this requirement.
In their April 3, 2018 status report, respondents stated that they may detain Calderon again to effectuate her removal. See Docket No. 23. The respondents have not disclaimed an intention to detain De Souza again if her detention claims are dismissed. The
court has been informed that the Boston ICE office has undertaken efforts, including internal auditing, training, and hiring new staff to ensure that detainees receive notice and an opportunity
45

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 46 of 48

to be heard before being detained for more than three months.

However, there is evidence that the Boston ICE office has continued

to violate §241.4 after the training occurred. See June 26, 2018

Memorandum and Order (Docket No. 106) at 2 (citing Matias v.

Tomkins, C.A. No. 18-11056, Docket No. 26 at 1); May 8, 2018 Tr.

at 96-108.
In addition, on August 12, 2018, ICE gave De Souza a notice
to depart the United States despite this court's April 13, 2018

Order that she not be removed during the pendency of this case.
See Mot. for Leave to Depose ICE Directors Adducci, Brophy, and
Lyons (Docket No. 108) at 2. This indicates that ICE staff might
not be receiving or implementing the instructions of superiors. In addition, there is the potential for changes in the leadership of

the ICE Boston Office that creates a risk that new management will

be appointed and end the current efforts to improve ICE's detention

and custody review practices. For example, this court adjourned

these proceedings in May 2018 to provide then-Acting ICE Boston

Office Director Thomas Brophy an opportunity to devote attention

to making a transition to his designated acting successor, Todd

Lyons.

May 23, 2018 Order (Docket No. 85) at 2. However, Lyons

was only allowed to serve for four days before being replaced by

Rebecca Adducci, who disclaimed representations made to the court

46

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 47 of 48
by Lyons. See Notice of Substituted Party (Docket No. 100);
Declaration of Rebecca J. Adducci (Docket No. 100) SIS. In these circumstances, the respondents have not shown that
it is "absolutely clear" that petitioners cannot "reasonably expect" ICE will not violate the Constitution and relevant
regulations by detaining them again and causing them irreparable
harm. The Supreme Court and courts of appeals have found that a detainee's release did not moot comparable claims brought by alien habeas petitioners where "absent action by this court[,] the
government could redetain [the petitioner], and deny him [due process], at any time." S^ Diouf v. Napolitano, 634 F.3d 1081,
1084 n.3 (9th Cir. 2011); see also Clark v. Martinez, 543 U.S.
371, 376 n.3 (2005); Rosales-Garcia v. Holland, 322 F. 3d 386, 395 (6th Cir. 2003) . This court reaches the same conclusion in this
case.
ipj^0j^0£Qre, it is not necessary to address petitioners
arguments that the issues regarding detention are "capable of repetition, yet evading review," or that their claims are "inherently transitory" and the request for class certification preserves a live controversy even if their individual claims become
moot. See Pet. Response to Mot. to Dismiss (Docket No. 79) at 6-
8.
47

Case 1:18-cv-10225-MLW Document 159 Filed 09/21/18 Page 48 of 48
IX. ORDER
For the foregoing reasons, this court has jurisdiction,
petitioners state plausible claims on which relief can be granted,
and their detention claims are not moot. Therefore, respondents' Motion to Dismiss the First Amended Complaint (Docket No. 44) is
hereby DENIED. UNITED STATES DISTRICT JUDGE
48

 
 Case 1:18-cv-10225-MLW Document 193 Filed 12/07/18 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ AND LUIS GORDILLO, ET AL.,
individually and on behalf of all others similarly situated,

Petitioner-Plaintiffs,

V.

C.A. No. 18-10225-MLW

KIRSTJEN M. NIELSEN, ET AL.,
Respondent-Defendants.

MEMORANDUM AND ORDER

WOLF, D.J.

December 7, 2018

As stated in court on December 6, 2018, for the reasons

explained in Alii v. Decker, 650 F.3d 1007, 1014-21 {3d Cir. 2011)

and in Reid v. Donelan, 2018 WL 5269992 at *6-8 (D. Mass. Oct. 23,

2018), the court finds that 8 U.S.C. §1252 (f) (1) does not prohibit

the possible issuance of class-wide declaratory relief in this

case. Among other things, as the Supreme Court has written;

[E]ven though a declaratory judgment has 'the force and effect of a final judgment, ' 28 U.S.C. §2201, it is a much milder form of relief than an injunction. Though it may be persuasive, it is not ultimately coercive; noncompliance with it may be inappropriate,
but is not contempt.

Steffel V. Thompson, 415 U.S. 452, 471 (1974).

In addition, contrary to respondents' contention, conduct

inconsistent with a declaratory judgment does not invariably lead

Case 1:18-cv-10225-MLW Document 193 Filed 12/07/18 Page 2 of 4
to the issuance of an injunction. To establish eligibility for an injunction restraining the conduct of a government official, a party must prove not only a violation of law, but also that it is likely to continue in the future. See Farmer v. Brennan, 511 U.S. 825, 845-47 (1994). The Supreme Court has indicated that district courts should use caution in issuing injunctive orders against
government officials and that it may be appropriate to give those officials an opportunity to rectify violations of law before issuing an injunction. Id. at 846-47. In any event, a court may find that a declaratory judgment was and remains justified, but that an injunction is not necessary or appropriate because the government has represented that it will obey the law as declared by the court in the future. See e.g. South Boston Allied War Council V. City of Boston, 875 F. Supp. 891, 920 (D. Mass. 1995).
In view of the foregoing, §1252(f)(1) does not prohibit the
possible issuance of class-wide declaratory relief in this case if
the putative class is certified.
There is a question concerning whether class-wide injunctive relief for a violation of a pertinent provision, rather than the operation of that provision, is barred by §1252(f)(1). See e.g. Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010), rev'd on other grounds sub nom. Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018). However, as agreed by petitioners, the resolution of that issue will not affect the definition of the putative class or

Case 1:18-cv-10225-MLW Document 193 Filed 12/07/18 Page 3 of 4
discovery in this case. Therefore, as the law on this issue may be clarified before it has practical significance in this case, the court is not now deciding it. See e.g. Re id, 2018 WL 5269992 at
*6.
As also stated at the hearing on December 6, 2018, and in the
lobby conference that followed it, it is hereby ORDERED that: 1. The parties shall confer and by December 20, 2018: (a) Report whether they have agreed to settle this case or
to request jointly that it be stayed; and (b) Present any request they may have for discovery. 2. The parties shall, by January 11, 2019, each submit a
memorandum addressing:
(a) Whether the statutes and regulations governing the Form 1-130 {"Petition for an Alien Relative") and/or the Form 1-212
("Application for Permission to Reapply for Admission into the
United States After Deportation or Removal") establish a right to apply for each and, therefore, alone create a liberty interest
which entitles an alien to Due Process.
(b) If there is a right to apply for approval of an 1-130
application or 1-212 application, whether there is a right to
receive a decision regarding those applications while still in the
United States.

Case 1:18-cv-10225-MLW Document 193 Filed 12/07/18 Page 4 of 4
(c) Whether the statutes and regulations governing the
provisional wavier process establish a right to apply for a provisional wavier beginning at the 1-130 or 1-212 stage.
(d) Explain their respective positions on the merits of the petitioners claims' concerning the Administrative Procedure Act, 5 U.S.C. §§553, 706(2)(A), and the Equal Protection Clause of the Fifth Amendment, and the relevance of those claims for
certification of the proposed class.
(e) Any other issues that should be decided prior to further briefing and argument concerning class certification.
3. The parties shall, by January 25, 2019, file any replies. 4. A hearing on any pending motion(s) shall begin on February 14, 2019, at 9:30 a.m., and continue on February 15, 2019,
if necessary.
5. The parties shall order a transcript of the December 6,
2018 hearing and lobby conference.
UNITED STATES DISTRICT JUDGE

 
 Case 1:18-cv-10225-MLW Document 253 Filed 05/17/19 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ
AND LUIS GORDILLO, ET AL.,
individually and on behalf of all others similarly situated,
Petitioners-Plaintiffs,

V.

C.A. No. 18-10225-MLW

KEVIN McALEENAN, ET AL.,
Respondents-Defendants.

ORDER

WOLF, D.J.

May 17, 2019

For the reasons stated in court on May 3, 2019 and May 16,

2019, it is hereby ORDERED that:

1. Respondents' Motion to Dismiss (Docket Nos. 40 & 44) is

DENIED with respect to Counts 1 (Immigration and Nationality Act

and Applicable Regulations), 3 (Equal Protection under the United

States Constitution), and 4 (Administrative Procedure Act) of

Petitioners' Amended Complaint (Docket No. 27). The court reserves

judgment on the contention that citizen spouses have a liberty

interest in remaining in the United States with their alien spouses

and, therefore, a right to Due Process before their alien spouses

are removed.

Case 1:18-cv-10225-MLW Document 253 Filed 05/17/19 Page 2 of 3
2. Petitioners' Motion for Class Certification (Docket No.
46) is ALLOWED. More specifically, for the purposes of Counts 1
(Inunigration and Nationality Act and Applicable Regulations), 3
(Equal Protection under the United States Constitution), and 4
(Administrative Procedure Act), the court certifies a class under
Federal Rule of Civil Procedure 23(b)(2), defined as:
[A]ny United States citizen and his or her noncitizen spouse who (1) has a final order of removal and has not departed the United States under that order; (2) is the beneficiary of a pending or approved 1-130, Petition for
Alien Relative, filed by the United States citizen
spouse; (3) is not "ineligible" for a provisional waiver
under 8 C.F.R. § 212.7(e)(4)(i) or (vi); and (4) is
within the jurisdiction of Boston Immigration and
Customs Enforcement-Enforcement and Removal Operations
("ICE-ERG") field office (comprising Massachusetts, Rhode Island, Connecticut, Vermont, New Hampshire, and
Maine).
The representatives of the class are Oscar Rivas, Celina
Rivera Rivas, Lucimar De Souza, Sergio Francisco, Deng Gao, and
Amy Chen.
For the purposes of Count 2 (Due Process under the United
States Constitution, other than detention), the court certifies a
sub-class, defined as:
[A]ny United States citizen and his or her noncitizen spouse who (1) has a final order of removal and has not departed the United States under that order; (2) is the beneficiary of an approved 1-130, Petition for Alien Relative, and conditionally approved 1-212, Application
for Permission to Reapply for Admission into the United States After Deportation or Removal; (3) is not
"ineligible" for a provisional waiver under 8 C.F.R. § 212.7 (e) (4) (i) or (vi) ; and (4) is within the

Case 1:18-cv-10225-MLW Document 253 Filed 05/17/19 Page 3 of 3
jurisdiction of Boston ICE-ERO field office (comprising Massachusetts, Rhode Island, Connecticut, Vermont, New Hampshire, and Maine). 3. The parties shall, by May 28, 2019, confer and report regarding whether they have agreed to settle this case or to request jointly that it be stayed. The parties may also request
more time to confer.
If the case is to proceed, the parties shall address: whether
notice should be directed to class members under Federal Rule of
Civil Procedure 23(c) (2) (A) and, if so, how; when the court should decide the appropriate definition of a class with respect to petitioners' detention-related claims (Counts 5 and 6); and the nature of the limited discovery to be conducted by July 31, 2019. If there are disagreements concerning the scope of such limited discovery, the parties shall explain their respective positions.
4. The parties shall order the transcript of the May 16, 2019 hearing and lobby conference.
UNITED OTATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

LILIAN PAHOLA CALDERON JIMENEZ, )

and LUIS GORDILLO, et al.,

)

)

Individually and on behalf of all others

)

similarly situated,

)

)

Plaintiffs-Petitioners,

)

)

v.

)

)

CHAD WOLF, et al.,

)

)

Defendants-Respondents.

)

)

No. 1:18-cv-10225-MLW

MOTION FOR IMMEDIATE INTERIM RELEASE OF CLASS MEMBER SALVADOR RODRIGUEZ-AGUASVIVA, OR, ALTERNATIVELY, TO SCHEDULE TELEPHONIC
HEARING

While Petitioners’ motion challenging class member Salvador Rodriguez-Aguasviva’s

intended removal based solely on his in absentia order (Dkt. 466, “Emergency Motion”) remains

pending, Mr. Rodriguez-Aguasviva is locked up in a facility in which an employee has already

been confirmed to have COVID-19.1 Respondents do not contend that Mr. Rodriguez-

Aguasviva poses any threat to public safety. See, e.g., McCullough Decl. Ex. A, Dkt. 468-1;

Lyons Decl., Dkt. 489-1. What is more, the government continues to impede a timely resolution

of Petitioner’s Motion by failing to provide Petitioners or the Court with the documents that it

relies upon to defend Mr. Rodriguez-Aguasviva’s removal. See Resp’ts’ Surreply in Support of

1 Press Release, Sheriff Joseph D. McDonald Jr., Plymouth Co. Sheriff, Statement of Sheriff Joseph D. McDonald Jr., Mar. 23, 2020, www.pcsdma.org/forms/employee_positive.pdf; Jeremy C. Fox, Plymouth Sheriff’s Department Employee Tests Positive for COVID-19, Bos. Globe (Mar. 23, 2020), https://www.bostonglobe.com/2020/03/23/nation/plymouth-sheriffsdepartment-employee-tests-positive-covid-19/?event=event25.
1

their Opp’n 5 n.1, Dkt. 499 (hereinafter “Resp’ts’ Sur-Reply”); E-mail from Mary Larakers to Pet’rs (Mar. 3, 2020 12:37 PM), Costello Decl. Ex. C, Dkt. 495-3. Given the escalating threat to his well-being, Petitioners respectfully ask that the Court order Mr. Rodriguez-Aguasviva’s release during the pendency of the Motion. See Xochihua-Jaimes v. Barr, No. 18-71460, Order, Dkt. 53, at 1 (9th Cir. Mar. 23, 2020) (ordering release of petitioner and staying removal sua sponte “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers”); In The Matter of the Extradition of Alejandro Toledo Manrique, No. 19-MJ-71055, 2020 WL 1307109, at *2 (N.D. Cal. Mar. 19, 2020) (ordering release of inmate due to COVID-19 outbreak under appropriate bail and supervision provisions). In the alternative, Petitioners request a prompt telephonic hearing regarding Mr. Rodriguez-Aguasviva’s removal. Respondents oppose this motion to the extent it seeks Mr. Rodriguez-Aguasviva’s release and assent to the extent it seeks the scheduling of a prompt telephonic hearing on Petitioners’ Emergency Motion to Enjoin the Removal of Two Class Members, Dkt. 466.
Petitioners filed their Motion challenging Mr. Rodriguez-Aguasviva’s removal based solely on his in absentia order of removal on January 27, 2020. Emergency Mot. to Enjoin the Removal of Two Class Members, Dkt. 466. The Court ordered that Respondents refrain from removing him from the Court’s jurisdiction during the pendency of their Emergency Motion. Order, Dkt. 469. The parties completed scheduled briefing on March 5, 2020, and on March 19, 2020, Respondents sought leave to file and thereafter filed a Sur-Reply brief. See Resp’ts’ Assented-to Mot. for Leave to File Surreply, Dkt. 497; Resp’ts’ Sur-Reply, Dkt. 499. During the
2

pendency of the Emergency Motion, the Commonwealth and the Nation have entered into a State
of Emergency due to the widespread outbreak of the coronavirus disease COVID-19.2
Time is of the essence before the virus becomes widespread within Plymouth and other
facilities, which would render Mr. Rodriguez-Aguasviva, who poses no threat to public safety or
national security if released, trapped inside this nightmare scenario. Experts have found that
prison populations are especially at risk because of crowded, unsanitary facilities and prisoners’
complete inability to practice social distancing.3 As the disease takes hold of the state’s
Correctional Facilities, Mr. Rodriguez-Aguasviva will be helpless to protect himself:
[B]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible. Separating sick people from well people to prevent the disease from spreading can be nearly impossible in prison, since prisoners are already grouped according to security and other logistical considerations. Even so-called social distancing can prove impossible. People in prisons and jails live every minute of the day in close proximity to each other.4
Recognizing the risk the virus poses to inmates and the community at large, District
Attorneys throughout Massachusetts are working to release prisoners to reduce crowding. The
Suffolk County District Attorney’s office, for example, is reviewing the custody of individuals
2 See Declaration of a State of Emergency to Respond to COVID-19, Mass. Exec. Order No. 591 (Mar. 20, 2020), https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-ofemergency-to-respond-to-covid-19; Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID - 19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/.
3 Martin Kaste, Prisons and Jails Worry About Becoming Coronavirus ‘Incubators’, Nat. Pub. Radio (Mar. 13, 2020, 12:00 PM), www.npr.org/2020/03/13/815002735/prisons-and-jails-worryabout-becoming-coronavirus-incubators; Lauren-Brooke Eisen, How Coronavirus Could Affect U.S. Jails and Prisons, Brennan Ctr. For Justice (Mar. 13, 2020), www.brennancenter.org/ourwork/analysis-opinion/how-coronavirus-could-affect-us-jails-and-prisons.
4 The Justice Collaborative, Explainer: Prisons and Jails are Particularly Vulnerable to COVID - 19 Outbreaks, https://thejusticecollaborative.com/wpcontent/uploads/2020/03/TJCVulnerabilityofPrisonsandJailstoCOVID19Explainer.pdf (emphasis removed).
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who “pose no meaningful risk to public safety” for potential release.5 Last Friday, the first Massachusetts prison inmate tested positive for COVID-19.6 Since then, there have been seven more confirmed COVID-19 cases in Massachusetts prisons and jails.7
The Court should exercise its authority to release Mr. Rodriguez-Aguasviva from
custody. Federal courts have inherent authority to release individuals whose cases “present[] the
sort of ‘extraordinary circumstances’ where release pending completion of habeas proceedings is
appropriate.” Healy v. Spencer, 406 F. Supp. 2d 129, 130 (D. Mass. 2005) (citing Glynn v.
Donnelly, 470 F.2d 95, 98 (1st Cir. 1972)) (allowing release of detainee in part because of an
“utter absence of any risk of flight or risk to the community”). The COVID-19 outbreak is just
such an extraordinary circumstance that justifies Mr. Rodriguez-Aguasviva’s release before he
faces the prospect of infection without the medical and family support he would have outside of
prison.
Notably, timely resolution of Petitioners’ Motion to Enjoin is complicated not only by the
COVID-19 pandemic itself—which has brought challenges for both courts and attorneys—but
also by the government’s reliance on disputed factual claims and a secret factual record.
Respondents’ position is that Petitioners must simply wait for documents that are indisputably
relevant to the underlying Motion—and heavily relied on by Respondents in their opposition—to
be turned over in the ordinary course of discovery. See Resp’ts’ Sur-Reply 5 fn.1; E-mail from
5 Jenifer B. McKim, As Coronavirus Cases Climb, At Least 6 Mass DAs Move to Release Sick, Elderly Inmates (Mar. 19, 2020), www.wgbh.org/news/local-news/2020/03/19/rollinsmoves-to-release-sick-elderly-inmates-from-prison-to-avoid-coronavirus-infections.
6 First Coronavirus Case in Massachusetts Prison Confirmed by Officials, (Mar. 21, 2020, 5:33 PM), www.wcvb.com/article/inmate-at-bridgewater-prison-massachusetts-treatment-centertests-positive-for-coronavirus-officials-say/31846456#.
7 Deborah Becker & Beth Healy, 8 People in Mass. Prisons and Jails Diagnosed with COVID-19 (last updated Mar. 24, 2020, 10:06 AM), www.wbur.org/commonhealth/2020/03/23/coronavirus-massachusetts-prisoner.
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Mary Larakers to Pet’rs (Mar. 3, 2020 12:37 PM), Costello Decl. Ex. C, Dkt. 495-3. Given the escalating public health crisis, Mr. Rodriguez-Aguasviva cannot afford that wait. This outbreak has reached a critical point before the virus has exploded in Massachusetts correctional facilities and further slowed down the ability of the parties and the Court to react to events.
If the Court does not order Mr. Rodriguez-Aguasviva’s release, Petitioners respectfully request that the Court schedule a telephonic hearing as soon as possible regarding their Emergency Motion. Although Respondents’ Sur-Reply brief raises new arguments and issues, in the interest of time, Petitioners are willing to address those issues at oral argument. Simply put, Mr. Rodriguez-Aguasviva’s ongoing detention unnecessarily places his health at risk, and his release—or a swift resolution of the Emergency Motion—would allow him to spend this time safely at home with his family and ensure that he does not spend more time than necessary in prison.
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Respectfully submitted this 24th day of March, 2020.

Matthew R. Segal (BBO # 654489) Adriana Lafaille (BBO # 680210) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170
Kathleen M. Gillespie (BBO # 661315) Attorney at Law 6 White Pine Lane Lexington, MA 02421 (339) 970-9283

/s/ Stephen N. Provazza
Kevin S. Prussia (BBO # 666813) Michaela P. Sewall (BBO # 683182) Jonathan Cox (BBO # 687810) Stephen Provazza (BBO # 691159) Colleen M. McCullough (BBO # 696455) Matthew W. Costello (BBO # 696384) WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 kevin.prussia@wilmerhale.com michaela.sewall@wilmerhale.com jonathan.cox@wilmerhale.com stephen.provazza@wilmerhale.com colleen.mccullough@wilmerhale.com matthew.costello@wilmerhale.com

Attorneys for Petitioners

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(2)
I certify that, in accordance with Local Rule 7.1(a)(2), counsel for Petitioners conferred with counsel for Respondents on March 24, 2020 in an attempt to resolve the issues raised in this motion. Respondents oppose this motion to the extent it seeks Salvador Rodriguez-Aguasviva’s release and assent to the extent it seeks the scheduling of a prompt telephonic hearing on Petitioners’ Emergency Motion to Enjoin the Removal of Two Class Members, Dkt. 466.
/s/ Stephen N. Provazza Stephen N. Provazza

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 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

LILIAN PAHOLA CALDERON JIMENEZ

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AND LUIS GORDILLO, ET AL.,

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individually and on behalf of all )

others similarly situated,

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Petitioners-Plaintiffs,

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v.

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CHAD WOLF, ET AL.,

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Respondents-Defendants.

)

C.A. No. 18-10225-MLW

MEMORANDUM AND ORDER

WOLF, D.J.

March 26, 2020

Attached is a transcript of the decision, issued orally on March 25, 2020, granting the Motion for Immediate Interim Release of Class Member Salvador Rodriguez-Aguasviva (Docket No. 500).

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* * * * * THE COURT: I'm going to decide this matter, and I will explain my decision. The transcript will be a record of the decision and you must order it. It's possible I'll write this up, but I do think this is an urgent matter and I should tell you my decision, so I will. First, I've concluded for the reasons described by the Second Circuit in Mapp v. Reno, 241 F. 3d 221 at 230, a 2001 Second Circuit case, that District Courts do have the power to order the release of immigration detainees on bail. I don't think that the REAL ID Act alters that fundamental authority. As I said earlier, I believe that the Glynn v. Donnelly case, the First Circuit case, 470 F.2d 95, 98 is distinguishable in a material respect. In Glynn, the First Circuit did hold that in certain extraordinary circumstances a District Court could release a detained petitioner before the petition was decided on the merits. It created a higher standard or stated a higher standard than the Second Circuit in Mapp. In Glynn, the petitioner was somebody who had been convicted of a crime. I believe his appeal had been denied, and then he was petitioning for habeas corpus, but he had no presumption of innocence. In this case, it's important to remember we're talking about a civil detainee, somebody who has never been charged, let alone convicted of any crime. And I think that the Mapp

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test or something similar or perhaps less is appropriate. As I said, the Mapp test where the court in Mapp said -- I don't know -- somebody perhaps didn't mute their phone because, unless I'm hearing the court reporter, there's something clicking, banging.
But the court in Mapp said the court considering a habeas petitioner's fitness for bail must inquire into whether the habeas petitioner raises substantial claims and whether extraordinary circumstances exist to make the grant of bail necessary to make the habeas remedy effective. And I would add to that that, even if those requirements are met, the court would have to be satisfied that the petitioner would not be a danger to the community, reasonably assured that the petitioner would not be a danger to the community or not would flee if released on reasonable feasible conditions.
I do find, without expressing any prediction of how the merits will be resolved, that a substantial claim or question is raised by the petitioner's habeas petition. The initial description by ICE of the reason for his detention -- well, the reason for his detention sent to petitioner's counsel in an email was that in effect -- well, that he was likely to be unable -- the petitioner was likely to be unable to receive an approved I-601A because he did not appear at his removal hearing. He was ordered removed in absentia. The essence of this, the way it was stated initially indicated that ICE was

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under the impression or misimpression that the petitioner is ineligible for an I-601A.
While I've commended Mr. Lyons and Mr. Charles on many things they've done, since June 2018, I have found ICE has repeatedly failed to understand its own regulations as I held in 2018. And I learned, to my dismay, in the fall of 2019, when the witness responsible for much of the national program for many years testified that he didn't understand -- he didn't realize there was a regulation that required that everybody detained more than six months had to be interviewed. It would be sadly consistent with the pattern in this case if ICE misunderstood whether somebody who failed to appear for a removal hearing was ineligible for an I-601A.
And indeed it appears that ICE's position has evolved and they don't take that position anymore. Mr. Lyons has articulated in his declaration other reasons for the detention, but there is the question of whether those reasons were in his mind when he decided to detain the petitioner or whether the affidavit that appears to have been drafted by a lawyer has rationalizations that weren't part of the decisionmaking process at issue. That's an issue that I may need to hear testimony on. I also -- but I do think that there's a substantial question, a substantial claim.
In addition, I find that extraordinary circumstances exist that make the grant of bail necessary to make the habeas

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effective, to make the habeas remedy effective. To be blunt, we're living in the midst of a coronavirus pandemic. Some infected people die; not all, but some infected people die. If the petitioner is infected and dies, the case will be moot. The habeas remedy will be ineffective.
And being in a jail enhances risk. Social distancing is difficult or impossible. Washing hands repeatedly may be difficult. There is, it appears not to be disputed, one court -- one Plymouth County jail employee who has been infected, and there's a genuine risk that this will spread throughout the jail. Again, the petitioner is in custody with people charged with or convicted of crimes. He's not been charged or convicted of anything.
I've also considered what I ordinarily consider in making or reviewing bail decisions in criminal cases. There's no contention that the petitioner will be dangerous to any individual or the community if he's released on reasonable conditions.
ICE does contend that he would be a risk of flight. That is based on the fact that he missed one immigration hearing at which his removal was ordered and apparently did not tell ICE of his change of address. And he is facing a serious risk of being removed. He may not prevail on the habeas petition. And if he does, he may not get a provisional waiver.
However, there's no indication that the petitioner has

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anyplace to go. Being among other people, say, in a homeless shelter is very dangerous, like being in a jail. There's no indication that he has any relatives or others who might take him in other than his wife. And I am ordering that he live with his wife in Lawrence, Massachusetts; that he stay in their residence, except if there is a medical need for him to leave; and, unless it's a genuine emergency, he would need the permission of ICE to leave. And he is to be on electronic monitoring, so if he leaves the residence when he hasn't been authorized to leave, ICE would know that and, if appropriate, could come back to me to revoke his release.
In addition, there are certain equities that favor the release of the petitioner. He's now been detained since September 4, 2019. On January 27, the motion was filed to enjoin his removal. As I indicated in the course of the argument, with the assent of petitioner's counsel, class counsel, ICE has repeatedly been given extensions of time to respond to the motion.
On January 31, 2020, the parties filed a joint motion to give ICE until February 14 to confer, and then on February 13, the respondents filed an unopposed motion for an extension of time to file their opposition until February 20, which I allowed. Then I was asked not to schedule a hearing in this case until after March 25 because Mr. Lyons would not be available from March 10 to 24. I accommodated that. And I was

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told that local counsel, Ms. Piemonte, would be on trial until April 6. On March 19 I allowed the respondent's motion for respondents to file a sur-reply. And though it's possible, except for ICE asking for and receiving extensions of time to respond or file a sur-reply, that there would have been a hearing and a decision on this case earlier.
So essentially we're in a circumstance where an individual who has not been accused of any crime has been detained for -I think it comes to about six and a half months. Part of that is because I've stayed his removal pending the decision on his motion to enjoin removal, but because of accommodations to ICE, that wasn't fully briefed until less than a week ago, and I had been asked to defer to Mr. Lyons' availability, which I did.
So for all of those reasons, I'm ordering that the petitioner be released no later than tomorrow, March 26, 2020, on the conditions I articulated and will memorialize in a brief order.
I'm ordering counsel for ICE to inform me when he has been released, and if there's some problem with implementing this order by tomorrow, you'll have to let me know promptly. Petitioners' counsel I'm directing, ordering, to inform the petitioner and his wife of my decision, including the requirements that he live with his wife and that he be on electronic monitoring. And he'll have to confirm for ICE, he'll have to provide ICE her address if they don't have it and

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