UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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ADRIANA AGUILAR, ANDRES LEON,

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ELENA LEON, ERIKA GABRIELA GARCIA- )

LEON through her Next Friend Adriana Aguilar, )

CARSON AGUILAR through his Next Friend )

Adriana Aguilar, NELLY AMAYA,

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MARIO PATZAN DELEON, DAVID LAZARO )

PEREZ, JOHN DOE #1, JANE DOE #1, JOHN )

DOE #2 through his Next Friend Jane Doe #1, )

JOHN DOE #3 through his Next Friend Jane

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Doe #1, JOHN DOE #4, and JOHN DOE #5 on )

behalf of themselves and all others similarly

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situated,

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Plaintiffs )

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-against-

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IMMIGRATION AND CUSTOMS

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ENFORCEMENT DIVISION OF THE UNITED )

STATES DEPARTMENT OF HOMELAND

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SECURITY, JULIE L. MYERS, Assistant Secretary)

of Homeland Security for Immigration and Customs)

Enforcement, JOHN P. TORRES, Director of the )

Office of Detention and Removal Operations,

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Immigration and Customs Enforcement,

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CHRISTOPHER SHANAHAN, New York Field )

Office Director for Detention and Removal

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Operations, and JOHN and JANE DOE ICE

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AGENTS ## 1-30,

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Defendants. )

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Civil Action No. ______________
CLASS ACTION COMPLAINT JURY TRIAL DEMANDED

Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon,

Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Does ##1-5

and Jane Doe #1 on behalf of themselves and all others similarly situated, through their undersigned attorneys allege as follows:
INTRODUCTION 1. This class action seeks declaratory, injunctive and other relief to redress Defendants’ reckless deprivation of Plaintiffs’ rights arising under the laws and Constitution of the United States. This action arises out of a pattern and practice of harassment, intimidation and unlawful arrest by Defendants of persons of Latino origin in the New York City and surrounding suburban areas. As described in detail below, Defendants’ wrongful actions include, inter alia, unreasonable and unlawful entries into the homes of Plaintiffs and other Latinos in the New York area in violation of the Fourth Amendment to the U.S. Constitution, unlawful detainment, psychological and physical abuse, and the destruction of private, personal property. 2. In 2006, the Immigration and Customs Enforcement Division of the Department of Homeland Security (commonly known as “ICE”) initiated a program titled “Operation Return to Sender.” Under this program, Defendants conducted and have continued to conduct unconstitutional and abusive raids of homes occupied by persons of Latino origin in New York City and the surrounding areas, including the homes of the named Plaintiffs. 3. The raids are ostensibly performed to arrest and remove fugitive aliens, i.e., immigrants who have been previously ordered to leave this country. However, the raids are performed in a manner that tramples on Fourth Amendment rights and leaves a trail of harm
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affecting innocent members of our society, including U.S. citizens and/or persons who have been granted permanent residency in the United States, and/or other lawful immigration status.
4. The modus operandi of “Operation Return to Sender” is to have teams of six to ten armed ICE agents raid homes of Latinos without court-issued search warrants and to do so in a manner that will obtain entry to the targeted homes without providing the occupants an opportunity to consent or refuse entry.
5. The raids are conducted late at night or in the pre-dawn hours. Though the agents know the occupants are likely to be Spanish-speaking, ICE does not ensure that Spanishspeaking agents are present. Acting in a manner that terrifies sleeping residents, ICE agents pound on and/or break down doors and windows while screaming as loudly as possible, often representing themselves as “police,” which of course they are not. When the unsuspecting residents have the opportunity to open the door to inquire about what is going on, the agents then bully or force their way into homes without first obtaining the occupants’ consent to entry.
6. Without explanation or lawful justification, the agents immediately sweep through the home, searching the premises as if an armed fugitive were present, even though they have no reasonable basis for such belief. All of these actions are conducted without good cause in a manner highly abusive and psychologically harmful to both the adults and children present.
7. Moreover, despite the inherently intrusive nature of these raids, the agents do not conduct an investigation prior to the raid to ensure that the fugitive alien they might be seeking is in fact inside the target home. As a result, the agents regularly raid homes where the fugitive is not present and could not reasonably have been believed to be present. Instead, the unstated goal
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of these raids is to gain access to constitutionally protected areas in the hope of seizing as many undocumented persons as possible. In this manner, the agents try to meet the increased arrest quotas recently imposed upon them by their superiors at ICE.
8. While ICE has been aggressively increasing the number of raids performed, ICE has not kept pace in providing adequate training to its agents to protect the constitutional rights of persons affected by ICE’s actions.
9. ICE has similarly failed to promulgate adequate rules and procedures for conducting these raids within permissible constitutional limits.
10. ICE’s failures have been repeatedly identified by such entities as the Department of Homeland Security Office of Inspector General, which have cited ICE’s lapses in training and information gathering that have contributed to the constitutional violations raised herein.
11. Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela GarciaLeon, and Carson Aguilar are members of the Leon/Aguilar family. Each is either a U.S. citizen or legal permanent resident of the United States and each is a person of Latino origin who has been victimized by ICE’s constitutional violations.
12. On or about February 20, 2007, armed ICE agents pounded on the door of the Leon/Aguilar home located at 30 Copeces Lane, East Hampton, New York between 4:30 and 5:00 a.m. The ICE agents entered the Leon/Aguilar family home without a search warrant, consent, or any exigent circumstances, conducted an unlawful search and illegally detained the Leon and Aguilar families. The agents never explained the family members’ rights, prevented them from contacting a lawyer or the police, and failed to allow them to review what the ICE
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agents said was a warrant. Having once been victimized by ICE, the Aguilar and Leon families live in constant fear that ICE agents will return and again try to unlawfully enter their home.
13. Plaintiff Nelly Amaya is of Latino origin. She too is a victim of ICE’s constitutional violations.
14. On or about February 20, 2007, armed ICE agents pounded on the door of her home located at 20 Boatsteerer’s Court, East Hampton, New York between 4:00 and 5:00 a.m. The ICE agents forcibly entered her home without a search warrant, consent, or any exigent circumstances by kicking the entry door open. The ICE agents entered her home, physically abused her, and arrested her in retaliation for Nelly’s demand to see a warrant. Nelly was never shown a warrant by ICE and lives in constant fear that ICE agents will again try to unlawfully enter her home.
15. Plaintiff Mario Patzan DeLeon is of Latino origin. He too is a victim of ICE’s constitutional violations.
16. On or about April 18, 2007, armed ICE agents pounded on the door of his home located at 417 East Avenue, Riverhead, New York at about 4:30 a.m. The ICE agents forcibly entered his home without a search warrant, consent, or any exigent circumstances, by ramming through the back door. The ICE agents arrested him, placed him in chains, and transported him to Manhattan, where he was placed in a cell, questioned, and released later that evening. The agents never explained his rights and failed to produce a warrant of any kind. Having once been victimized by ICE, Mario lives in constant fear that ICE agents will return and again try to unlawfully enter his home.
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17. Plaintiff David Lazaro Perez is of Latino origin. He too is a victim of ICE’s constitutional violations.
18. On or about March 18, 2007, armed ICE agents pounded on the door of his home located at 165 Main Street, Mount Kisco, New York at about 4:00 a.m. The ICE agents then forcibly entered his home without a search warrant, consent, or any exigent circumstances. The ICE agents arrested David, placed him in handcuffs, and transported him to Manhattan, where he was detained for several hours and then transported to a New Jersey detention center, from which he was released the next day. The agents never explained his rights and failed to produce a warrant of any kind. Having once been victimized by ICE, David lives in constant fear that ICE agents will return and again try to unlawfully enter his home.
19. Plaintiffs John Does ## 1-5 and Jane Doe #1 (collectively the “Doe Family”) are of Latino origin and are members of two generations of the Doe Family. John Does ## 1, 4 and 5 and Jane Doe #1 are adults without immigration status. John Doe #2, age three, and John Doe #3, age one, are U.S. citizens. The members of the Doe Family are also victims of ICE’s constitutional violations.
20. In early winter 2007, armed ICE agents pounded on the door of the Doe Family home located in Suffolk County, New York at about 5:30 a.m. The agents had first entered the home of another family downstairs and, upon information and belief, had detained the person the ICE agents claimed they were looking for. Then, without a warrant or any exigent circumstances, the ICE agents attempted to break down the Doe Family apartment door and forcibly enter their apartment, but the locks held. The ICE agents then tried to cajole the Doe
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Family into opening the door, but the Doe family refused. The agents ultimately left without explaining the Doe Family’s rights or producing a warrant. Having once been targeted by ICE for an unlawful entry, the Doe family lives in constant fear that ICE agents will return and attempt to unlawfully enter their apartment again.
21. As a result of the raids on their homes, Plaintiffs have been profoundly traumatized, and remain extremely fearful that the ICE agents will return to inflict further harm. Indeed, while they were illegally inside the Leon and Aguilar family home, the ICE agents threatened that they would return.
22. Without judicial intervention there will be no end to ICE’s unlawful and unconstitutional activities, and there is a credible threat of recurrent injuries to Plaintiffs and the class. By all appearances, ICE is continuing its aggressive, Latino-targeted program and increasing its unconstitutional enforcement activities without regard to the constitutional rights of those affected. The named Plaintiffs, like the other members of the class, are at real risk of further Fourth Amendment violations at the hands of ICE because they are Latino and/or associate with individuals of Latino descent.
23. ICE agents have conducted, and continue to conduct, similar raids against innocent and unsuspecting Latinos throughout ICE’s New York City Region. To put an end to these unlawful activities, Plaintiffs seek on behalf of themselves and all others similarly situated a permanent injunction restraining agents in ICE’s New York City Region from conducting home raids until they have established appropriate procedures and standards governing the
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conduct of ICE agents in performing home raids so as to assure that Plaintiffs and the class will not be subjected to the unlawful practices complained of herein.
24. Plaintiffs also seek compensation for their own damages suffered as a result of the raids on their homes.
JURISDICTION AND VENUE 25. Jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331. 26. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because inter alia (1) at least one of the defendants resides in this judicial district and (2) at least one of the Plaintiffs resides in this district and no real property is involved in this action.
PARTIES 27. Plaintiff ADRIANA AGUILAR is a citizen of the United States. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York. She appears in this action both as a Plaintiff in her individual and representative capacities and, pursuant to FRCP Rule 17 (c), as Next Friend for (a) her five-year-old son, Plaintiff CARSON AGUILAR and (b) her thirteen-year-old daughter, Plaintiff ERIKA GABRIELA GARCIALEON. 28. Plaintiff CARSON AGUILAR is a citizen of the United States. At all times relevant to this action, he was and is a resident of East Hampton, Suffolk County, New York, living with his mother, Plaintiff Adriana Aguilar. 29. Plaintiff ERIKA GABRIELA GARCIA-LEON (“Gabriela”) is a lawful permanent resident of the United States, whose citizenship application is currently pending. At
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all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York, living with her mother, Plaintiff Adriana Aguilar.
30. Plaintiff ANDRES LEON is a citizen of the United States. At all times relevant to this action, he was and is a resident of East Hampton, Suffolk County, New York.
31. Plaintiff ELENA LEON is a citizen of the United States. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York.
32. Plaintiff NELLY AMAYA is of Latino origin. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York.
33. Plaintiff MARIO PATZAN DELEON is of Latino origin. At all times relevant to this action, he was and is a resident of Riverhead, Suffolk County, New York.
34. Plaintiff DAVID LAZARO PEREZ is of Latino origin. At all times relevant to this action, he was and is a resident of Mount Kisco, Westchester County, New York.
35. Plaintiff JOHN DOE #1 is of Latino origin. At all times relevant to this action, he was and is a resident of Suffolk County, New York. Plaintiff JOHN DOE #1 is married to Plaintiff JANE DOE #1.
36. Plaintiff JANE DOE #1 is of Latino origin. At all times relevant to this action, she was and is a resident of Suffolk County, New York. Plaintiff JANE DOE #1 is married to Plaintiff JOHN DOE #1. Plaintiff JANE DOE #1 appears in this action both as a Plaintiff in her individual and representative capacities and, pursuant to FRCP Rule 17 (c), as Next Friend for (a) her three-year-old son, Plaintiff JOHN DOE #2 and (b) her one-year-old son, Plaintiff JOHN DOE #3.
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37. Plaintiff JOHN DOE #2 is a citizen of the United States. At all times relevant to this action, he was and is a resident of Suffolk County, New York, living with his parents, Plaintiffs JOHN DOE #1 and JANE DOE #1.
38. Plaintiff JOHN DOE #3 is a citizen of the United States. At all times relevant to this action, he was and is a resident of Suffolk County, New York, living with his parents, Plaintiffs JOHN DOE #1 and JANE DOE #1.
39. Plaintiff JOHN DOE #4 is of Latino origin. At all times relevant to this action, he was and is a resident of Suffolk County, New York. Plaintiff JOHN DOE # 4 is Plaintiff JANE DOE #1’s brother.
40. Plaintiff JOHN DOE #5 is of Latino origin. At all times relevant to this action, he was and is a resident of Suffolk County, New York. Plaintiff JOHN DOE # 5 is Plaintiff JANE DOE #1’s brother.
41. Defendant IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY (“Defendant ICE”) is headquartered in Washington, D.C., with an Office of Detention and Removal Operations Field Office located in New York, New York.
42. Defendant JULIE L. MYERS (“Defendant Myers”) is the Assistant Secretary of Homeland Security for Immigration and Customs Enforcement in Washington, D.C. Defendant Myers is, among other things, charged with the constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of the
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division of Immigration and Customs Enforcement. Defendant Myers is sued in her official capacity.
43. Defendant JOHN P. TORRES (“Defendant Torres”) is the Director of the Office of Detention and Removal Operations for ICE in Washington, D.C. Defendant Torres is responsible for the apprehension, detention and removal of foreign nationals charged with violation of immigration law and the supervision of sworn law enforcement officers assigned to the Detention and Removal field offices, including the field office based in New York County, New York. Defendant Torres is sued in his official capacity.
44. Defendant CHRISTOPHER SHANAHAN is the Field Office Director for the Detention and Removal Operations Field Office based in New York County, New York. Defendant Shanahan is responsible for managing enforcement activities of ICE in the downstate New York area, including Suffolk and Westchester Counties.
45. Upon information and belief, Defendant Shanahan was personally involved in and/or personally ordered or authorized the conduct of ICE agents at the homes of the named Plaintiffs as complained of herein. At a minimum, Defendant Shanahan was grossly negligent in managing the training and activities of the ICE agents under his supervision. Defendant Shanahan is sued individually.
46. At all times relevant to the incidents complained of in this action, Defendants JOHN and JANE DOE ICE AGENTS ## 1-30 were federal law enforcement agents employed by Defendant ICE.
47. Defendants John and Jane Doe ICE Agents ## 1-30 are sued individually.
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48. The true names of Defendants John and Jane Doe ICE Agents ## 1-30 are unknown to Plaintiffs, and therefore, Plaintiffs sue these Defendants by such fictitious names.
49. Upon information and belief, each Defendant is responsible for the injuries and damages suffered by Plaintiffs caused by the acts alleged in this complaint.
50. Plaintiffs will amend their complaint to state the true names of Defendants John and Jane Doe ICE Agents ## 1-30 after those names have been identified.
51. In committing the acts alleged in this complaint, Defendants John and Jane Doe ICE Agents ## 1-30 were acting on behalf of Defendant ICE.
52. Further, upon information and belief, Defendants John and Jane Doe ICE Agents ## 1-30 were acting under the immediate supervision of Defendants Torres and Shanahan and pursuant to their authorization.
53. Defendants John and Jane Doe ICE Agents ## 1-30 and Shanahan knew or should have known that committing the acts alleged in this complaint violated Plaintiffs’ clearly established constitutional rights.
FACTS Background on ICE 54. ICE is a division of the Department of Homeland Security and was formed in March 2003. ICE is comprised of four divisions, one of which is the Office of Detention and Removal Operations (“DRO”).
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55. The DRO has been running the National Fugitive Operations Program since February 2002. The goal of the National Fugitive Operations Program is to eliminate the backlog of fugitive aliens.
56. In August 2003, the DRO announced that it would step up its activities in locating and deporting fugitive aliens.
57. Since announcing its plan in 2003, ICE’s DRO has pursued its goal to increase the number of persons removed from this country.
58. As of January 2006, each Fugitive Operations Team was expected to arrest 1,000 fugitive aliens per year. By comparison, in 2003, each team was expected to make only 125 arrests.
59. However, ICE’s DRO has implemented neither a corresponding increase in training nor procedures sufficient to protect the rights of persons affected by their activities. Moreover, members of the Fugitive Operations Teams are permitted to take part in home raids without first completing whatever little training that ICE provides on how to lawfully conduct such raids.
60. Furthermore, the DRO and Fugitive Operations Teams rely on a database that purports to contain relevant information concerning, among other things, the location of fugitive aliens.
61. Much of the information in this database, however, is outdated, inaccurate and incomplete.
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62. Upon information and belief, the DRO has procedural manuals that are used to provide guidance to the Fugitive Operations Teams in conducting apprehension operations.
63. Upon information and belief, these procedural manuals are inadequate and incomplete in that, among other things, they do not contain adequate specific instructions for determining how to obtain consent to enter a private home or how ICE agents are to conduct themselves within a private home.
64. The Department of Homeland Security Office of Inspector General (the “Inspector General”) has criticized ICE for its incomplete and inaccurate background information, understaffing, and incomplete and inadequate training. Specifically, in its report of March 2007, the Inspector General noted that:
(a) the DRO immigration database contained inaccurate and incomplete information on fugitive aliens;
(b) data exchanged between the DRO and its federal partners have not been reconciled on a regular basis to ensure the identity and background information on the fugitive alien is valid;
(c) Fugitive Operations Teams are not fully staffed; (d) headquarters and other locations that support Fugitive Operations Teams are not fully staffed; (e) not all Fugitive Operations Team members have completed the Fugitive Operations Training Program; and
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(f) there is no national refresher course for those Fugitive Operations Team members who have attended the program.
The ICE Raid on the Leon/Aguilar Family Home 65. The Leon and Aguilar Plaintiffs are members of three generations of a Latino family. With one exception, all are United States citizens. The one exception is a young girl who is a lawful permanent resident of the United States and whose citizenship application is pending. 66. On the morning of February 20, 2007, the Leon and Aguilar Plaintiffs were all asleep in the Leon/Aguilar family home. 67. Between about 4:30 and 5:00 a.m., several ICE agents pulled their unmarked cars onto the road outside the family home, blocking the driveway. 68. They parked their cars in such a way as to prevent any of the cars already in the driveway from exiting the driveway. 69. The ICE agents then repeatedly rang the doorbell and pounded on the front door of the Leon/Aguilar family home. 70. Elena Leon had been asleep and was startled awake by the noise of pounding and doorbell-ringing, and went to the door. 71. When she opened the door, Elena witnessed several uniformed men standing outside the door. 72. The men were wearing sidearms, which were clearly visible. 73. Elena was stunned and terrified.
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74. The armed, uniformed men were ICE agents. 75. As soon as Elena opened the door, two of the ICE agents crossed the threshold of the front door and entered the Leon/Aguilar family home. 76. The others quickly followed. 77. The ICE agents entered the Leon/Aguilar home without permission or voluntary consent. 78. None of the ICE agents told Elena that she had the right to refuse them permission to enter her home. 79. At no time did any of the ICE agents show Elena a warrant that granted permission for them to enter the Leon/Aguilar family home. 80. There were no exigent circumstances that may have permitted the ICE agents to enter the Leon/Aguilar family home without a valid warrant or voluntary consent. 81. The ICE agents proceeded into the lower floor of the home, pounding on and opening bedroom doors. 82. When she heard the noise, Erika Gabriela Garcia-Leon (“Gabriela”) opened her bedroom door to see what was happening. Still in her nightclothes, and seeing men storming through the hallway, she slammed the door and leapt back into bed. The ICE agents opened the door. Gabriela was twelve years old at the time. 83. Andres Leon was also awakened and opened his door. He saw two agents entering the hallway from the basement door. It was apparent that the agents had been in the basement without permission.
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84. At the same time, some of the agents entered the bedroom of Adriana Aguilar, where she was asleep with her son, Carson, who was four years old.
85. The ICE agents pulled covers off of her bed and shone flashlights into her face and the face of her son, who began to cry.
86. The ICE agents searched the Aguilar/Leon family home without the consent of the Leon or Aguilar families.
87. Startled awake, frightened and confused, Adriana repeatedly asked the ICE agents who they were and what they were doing.
88. The ICE agents gathered Adriana, Andres and Gabriela in the office space on the ground floor of the house.
89. The ICE agents positioned themselves so that the exits leading out of the office area were blocked.
90. Adriana and Andres were not free to leave the office area. 91. The agents would not say who they were despite being asked to identify themselves. 92. The ICE agents would not permit Adriana to call the police or a lawyer. 93. When Adriana attempted to open a drawer to get the telephone number of a lawyer, the agents put their hands on their weapons. 94. One agent ordered her not to move.
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95. Only after the ICE agents had Adriana in the office area did they indicate that they were looking for someone specific. They listed the names of several men whom they were looking for, including a man named “Wilson Garcia.”
96. Adriana thought they might have been referring to her first husband, whose name is Wilson Patricio Garcia, but who went by his middle name, “Patricio.”
97. Adriana had divorced him five years earlier in 2002. 98. Adriana’s divorce from Wilson Patricio Garcia, her subsequent marriage to her current husband Norman Aguilar, and her purchase of the Aguilar/Leon family home together with Norman are all matters of public record easily available to ICE had they checked. 99. It was entirely unreasonable for the ICE agents to believe that they would find Wilson Patricio Garcia in the Leon/Aguilar family home at the time of the raid. 100. In the office area, the ICE agents questioned Andres, Adriana and Gabriela about Wilson Garcia. 101. While in the office area, Adriana asked the ICE agents to see a warrant. 102. One of the agents told her that they would show her the warrant. 103. However, the agents did not show her any warrant. 104. Andres also asked the ICE agents to see a warrant. 105. The ICE agents did not permit Andres to read a warrant. 106. Instead, one of the ICE agents opened and then quickly closed a manila folder containing papers that the ICE agents claimed was a warrant.
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107. The quick display of the contents of the folder did not allow Andres to confirm the existence of a warrant or the opportunity to read any of the contents.
108. Upon information and belief, the ICE agents did not have a warrant that permitted them to enter or search the Leon/Aguilar family home or to detain the Leon/Aguilar family without voluntary consent or exigent circumstances.
109. A Freedom of Information Act request seeking a copy of any such warrant was made to ICE and has been outstanding since early July 2007.
110. To date, ICE has yet to produce a copy of any such warrant. 111. As the ICE agents were leaving the office area, Adriana asked one of the agents in Spanish where the warrant was. In English, he indicated to one of his colleagues that she was asking for the warrant. 112. The ICE agents never provided any member of the Leon or Aguilar families with a copy of a warrant. 113. On the way out of the office area, one of the ICE agents, turned to twelve-yearold Gabriela and said that they would be back. Adriana Aguilar and Andres Leon heard the agent say this clearly, in English.
The ICE Raid on the Amaya Household 114. Nelly Amaya rents a basement apartment at 20 Boatsteerer’s Court in East Hampton, Suffolk County, New York. The apartment has three bedrooms. She has lived in this apartment since July 2006.
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115. At the time of the raid (described herein), Nelly shared this apartment with her exhusband, Giovany Vicuña, her father, Antonio Amaya, and her brother-in-law, Marlon Vicuña.
116. On the morning of February 20, 2007, the residents of the Amaya household were all asleep.
117. Between about 4:00 and 5:00 a.m., several ICE agents forcibly entered the Amaya household by kicking the entry door open.
118. The ICE agents entered Nelly’s home without permission or voluntary consent from her or any other member of the household.
119. The ICE agents did not explain to any member of the family that they had the right to refuse them permission to enter her home.
120. Nelly was sleeping and was awakened by the agents screaming the name of her brother-in-law, Marlon Vicuña as they entered her apartment.
121. Nelly saw several uniformed men blocking her bedroom door. 122. The men were wearing sidearms, which were clearly visible. 123. The men shone a flashlight in Nelly’s eyes while at the bedroom door. 124. The ICE agents then entered her bedroom. 125. Nelly was wearing only a t-shirt and underwear when the men entered her bedroom. 126. Immediately after crossing the threshold of Nelly’s bedroom, the two ICE agents began questioning her and repeatedly asked for Marlon Vicuña. Nelly asked who they were but they did not identify themselves.
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127. Nelly was ordered to go to the living room. 128. Nelly threw on pajama pants and a sweatshirt before being pulled by her arm into the living room. After being pulled into the living room, she asked permission to use the bathroom and was not allowed to do so privately. 129. When Nelly attempted to go to the bathroom to use the toilet, the ICE agents refused to let her close the door. 130. Nelly asked the agents for a warrant, but the agents refused to show her any warrant. 131. After she requested to see a warrant, one of the ICE agents asked Nelly her name. 132. Nelly responded, “Nelly Amaya.” 133. The ICE agent started laughing and said, “Nelly Amaya, this is your arrest order. You are under arrest.” 134. At no time did any of the ICE agents show Nelly a warrant that granted permission for them to enter or search her home or to arrest her. 135. There were no exigent circumstances that may have permitted the ICE agents to enter Nelly’s home without a valid warrant or voluntary consent. 136. The ICE agents searched the Amaya family home without permission or consent from the Amaya family. 137. The ICE agents did not say who they were. 138. One of the ICE agents put Nelly against the wall to frisk her. 139. The ICE agent twisted Nelly’s arm behind her.
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140. Nelly’s arm was already injured before the raid. During her waking hours, Nelly wore a sling, which was next to her bed when the ICE agents stormed into her bedroom.
141. The agent’s actions exacerbated Nelly’s injuries. 142. The ICE agents arrested, handcuffed and detained Nelly. 143. The handcuffs caused Nelly’s arm to swell and turn purple. 144. Nelly was then transported to the Wainscott police station where the ICE agents changed their clothes. 145. During the car ride, Nelly suffered an asthma attack. 146. The ICE agents called an ambulance while at the Wainscott police station. An emergency medical services worker took Nelly’s pulse but did not give her any treatment, and did not even look at her swollen arm. 147. Nelly was then transported from the Wainscott police station to 26 Federal Plaza in Manhattan. 148. At 26 Federal Plaza, Nelly was fingerprinted and questioned by a female officer. 149. The female officer asked, “Why did they take you in? You have a clean record.” 150. During the course of questioning the female officer also said, “You shouldn’t have asked for a warrant.” 151. While under detention, Nelly was having difficulty breathing because of her asthma. She was also still in pain from the damage to her arm. 152. She told the ICE agents on duty that she felt congested because of her asthma.
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153. Approximately 10 hours after initially detaining Nelly and without providing her any medical treatment for her asthma or her injured arm, the ICE agents released her.
154. Nelly was left to find transportation home on her own. She was dressed in her nightclothes and had no money or even a coat to keep her warm as she tried to hail a cab in the February cold. After more than an hour without success, Nelly finally was able to convince a cabdriver to take her to Queens, where a friend of hers paid the fare.
155. Nelly suffered a great deal of physical and psychological pain and discomfort and humiliation as a result of the raid, arrest and detention.
The ICE Raid at 417 East Avenue, Riverhead, NY 156. Mario Patzan DeLeon rents a room on the second floor of a rooming house at 417 East Avenue in Riverhead, Suffolk County, New York. The door to his room has a lock and a private key. 157. On April 18, 2007, at about 4:30 in the morning, Mario was awakened to the sound of shouts and loud banging. He ran into the hallway and looked out the window, where he saw several cars outside. Large lights were shining into the rooming house. 158. Mario went back into his bedroom and locked the door. 159. From his bedroom, Mario could hear the shouting and loud banging and ramming against the outside doors. After some time, Mario heard and felt men screaming and pounding against his bedroom door.
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160. Two men with uniforms who indicated that they were ICE burst into his room. They asked Mario for identification and took his wallet. Then they told him to go down to the kitchen because they just wanted to speak with him.
161. In the kitchen, Mario and seven others were placed in handcuffs. At no point were they shown a warrant or court order permitting the ICE agents to enter the house without consent. They were led outside to waiting vehicles.
162. The group of cars continued to four more houses to conduct additional raids. From the van, Mario could hear similar banging and shouting at these houses.
163. After the raids, the ICE agents stopped in a parking lot. While the men they had picked up waited in the car, the ICE agents had some coffee and donuts.
164. Mario asked an officer if he could use the bathroom. He was placed in chains and told to relieve himself outdoors, while the agents observed. Mario remained in chains for the rest of the journey.
165. After about 90 minutes, the cars arrived at 26 Federal Plaza in Manhattan. The men were taken inside the building to be interrogated. They were placed in a cell to wait while each individual was questioned, one by one.
166. Mario was released several hours later, in the evening. He had no money to return home, nor did most of the others. One of the men had managed to keep some money in his pocket, and he lent the others money to take the train home to Riverhead. They did not return home until about one o’clock in the morning of April 19, 2007.
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167. Once home, Mario learned from the other tenants in the rooming house that no one had opened the door to the agents. He observed that the front door of the house was dented and damaged from the ramming by the agents, and that one of the double locks on the front door had been pounded so hard that it left a large hole in the plaster of the doorframe. It seemed that the agents had not succeeded in opening the front door and instead had rammed through the back door, which did not have a double lock. The front door remains damaged.
168. Upstairs, in Mario’s bedroom, Mario observed that the wooden doorframe around his door had come loose from the pounding by the agents. He repaired the doorframe himself.
The ICE Raid at 165 Main Street, Mount Kisco, NY 169. David Lazaro Perez rents a room on the third floor of a rooming house at 165 Main Street in Mount Kisco, Westchester County, New York. The door to his room has a lock with a private key. 170. On March 18, 2007, at about 4:00 in the morning, David was awakened to the sound of loud pounding and knocking outside his rooming house. Bright lights were shining into the house. 171. David then heard knocking at the door of his room, and three ICE agents, two men and a woman, burst into his room. The agents, who were wearing jackets that read “ICE,” did not identify themselves. 172. The ICE agents did not say who they were looking for and did not show a warrant. Nonetheless, they asked David for his identification and then ordered him to get
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dressed. David heard other agents pounding on the doors of the rooms of other tenants and ordering them to open the doors.
173. David and other tenants of the rooming house were led into the hallway where they were placed in handcuffs and taken out of their home to waiting vans and several additional agents.
174. After a stop at the Mount Kisco police station, David and the others were transported to 26 Federal Plaza, in Manhattan, where David was detained for several hours.
175. The ICE agents took David’s belt and his wallet, which contained about seven hundred dollars in cash.
176. David and some of the others were taken to another building and detained in a cell. After several hours, he and several others were transported to a detention center, where David was jailed overnight and released.
177. Although his wallet was returned to him, his cash was not. 178. He did not arrive home in Mount Kisco until about one o’clock in the morning, two days after the raid. 179. The ICE agents had entered the rooming house and the individual rented rooms, including David’s room, without exigent circumstances, consent or a valid warrant.
The ICE Raid on the Doe Family 180. The Doe Family represents two generations of a Latino family living together in one unit of a two-family house. While each unit has a separate, locked entrance door, both units share a common entryway and a front door that is kept locked.
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181. The Doe Family lives in the unit on the upper level of the home, located at the top of a stairwell that leads up from the entryway.
182. On the night of the raid all members of the Doe Family were asleep in their home. At approximately 5:30 a.m. the Doe Family was awakened when ICE agents broke down and forcibly entered through the common entrance door of the house.
183. After the ICE agents forcibly entered through the entryway, the adult members of the Doe Family heard them break down the door and forcibly enter the downstairs apartment.
184. The children, JOHN DOE #2 and JOHN DOE #3, awakened by all of the noise, became terrified and began crying.
185. After the ICE agents had detained people from the downstairs apartment and placed them in a van, including, upon information and belief, the person the ICE agents claimed they were looking for, the ICE agents climbed the stairs and attempted to enter the Doe Family’s apartment.
186. The adult family members, JOHN DOE #1, JANE DOE #1, JOHN DOE #4, and JOHN DOE #5 heard the agents shouting in English, “Immigration! Open the door” as they were coming up the stairs.
187. The ICE agents attempted to break down the Doe Family’s entrance door and forcibly enter the apartment. The agents, however, were unable to enter the apartment.
188. One of the ICE agents tried to convince the Doe Family to open the door.
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189. Both JOHN DOE #1 and JANE DOE #1 explained to the agents that they wanted to see a warrant and that the agents should place it under the door. They insisted that they would not open the door until they saw something on paper.
190. The same agent responded that they would go and get the necessary papers if the Doe Family did not voluntarily let them in, and so the Doe Family should open the door and let them in.
191. The ICE agents then tried to convince the Doe Family that they were police and, therefore, the Doe Family should not be afraid of them and should open the door to them.
192. JANE DOE #1 told the ICE agents that there were children in the apartment that were very frightened and that the ICE agents should leave.
193. The agents ultimately became very angry and left the home. 194. The Doe Family lives in daily terror that the ICE agents will return to the apartment, break down their door, and arrest the adults in the family, separating the Doe parents from their young children. 195. Each ICE agent and Defendant Shanahan knew or should have known that ICE agents entering a home without a judicial warrant, voluntary consent, or any exigent circumstances or other lawful cause to justify the entrance is a violation of constitutional rights. 196. Each ICE agent and Defendant Shanahan knew or should have known that ICE agents conducting a search of a home without a judicial warrant, voluntary consent, or any exigent circumstances or other lawful cause to justify the search is a violation of constitutional rights.
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197. Each ICE agent and Defendant Shanahan knew or should have known that ICE agents’ detention of a person without a judicial warrant, voluntary consent or any exigent circumstances or other lawful cause to justify the detention is a violation of constitutional rights.
198. Each ICE agent and Defendant Shanahan knew or should have known that the ICE agents’ actions in gaining entry within the named Plaintiffs’ homes violated the named Plaintiffs’ constitutional rights.
199. The actions of each ICE agent and Defendant Shanahan were unprivileged. 200. Each Defendant performed all of the acts concerning the actions at the named Plaintiffs’ homes under color of federal law. 201. Each Defendant performed all of the acts concerning the complained-of actions at the named Plaintiffs’ homes, in whole or in part, while acting in his or her capacity as an employee of an agency of the federal government.
The Named Plaintiffs’ Injuries 202. As a direct and proximate result of the above conduct by Defendants, and each of them, the named Plaintiffs have been harmed, which harm includes, but is not limited to:
a. violations of their constitutional rights to be free from unreasonable searches and seizures;
b. having their homes and personal privacy invaded; c. being intimidated, harassed, humiliated, and threatened with force; d. experiencing severe emotional and mental distress; e. being illegally and unreasonably detained;
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f. being subjected to an illegal and unreasonable interrogation; g. having their personal property damaged; and h. other harm according to proof. 203. The acts described above by each Defendant were done intentionally, maliciously, and recklessly, and showed a callous disregard for, or indifference to, the named Plaintiffs’ personal safety, security, freedom, and civil and constitutional rights, and/or with intent to injure, harass, and oppress Plaintiffs and other members of the Latino community in New York.
CLASS ACTION ALLEGATIONS 204. All claims set forth in the First Claim below are brought by the named Plaintiffs individually and on behalf of all other similarly situated persons pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 205. The named Plaintiffs provisionally propose the First Claim be certified on behalf of the following class:
Persons who, because they (1) are Latino, live in residences with Latinos or are or were associated with individuals otherwise sought by ICE pursuant to Operation Return to Sender and (2) reside in the jurisdiction of the New York City regional office of ICE, have been subjected to and/or are at imminent risk of home raids by the New York City regional office of ICE. 206. The claims of the proposed class representatives and those of the proposed class members in the First Claim raise common questions of law and fact concerning, inter alia, whether Defendants have implemented, enforced, encouraged and/or sanctioned a policy, practice and/or custom of:
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(a) entering and searching homes without valid warrants or voluntary consent and in the absence of probable cause and exigent circumstances in violation of the Fourth Amendment to the United States Constitution; and
(b) stopping, detaining, investigating, searching and effecting seizures in the absence of a reasonable, articulable suspicion of unlawful activity or probable cause in violation of the Fourth Amendment to the United States Constitution.
207. These questions are common to the named Plaintiffs and to the members of the proposed class because Defendants have acted and will continue to act on grounds generally applicable to both the named Plaintiffs and proposed class members.
208. The claims of the named Plaintiffs are typical of the claims of the members of the proposed class.
209. Members of the proposed class are so numerous that the joinder of all class members is impractical.
210. The named Plaintiffs will fairly and adequately protect the interests of the members of the Plaintiff class.
211. The named Plaintiffs are represented by counsel who are experienced in federal class action litigation, including those involving civil rights issues.
212. As set forth above, the Defendants have acted on grounds generally applicable to the Plaintiff class, thereby making appropriate final injunctive and corresponding declaratory relief with respect to the class as a whole.
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CLAIMS FOR RELIEF FIRST CLAIM: CLASS ACTION CLAIM OF FOURTH AMENDMENT VIOLATIONS
(Against All Defendants) 213. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein. 214. Plaintiffs bring this claim for injunctive and declaratory relief against Defendants to redress continuing and likely future violations of the Fourth Amendment to the United States Constitution. 215. Upon information and belief, Defendants have, in violation of the Fourth Amendment to the United States Constitution, officially implemented, enforced, encouraged and/or sanctioned a policy, practice and/or custom of: (a) entering and searching homes without valid judicial warrants or voluntary consent and in the absence of probable cause and exigent circumstances; and (b) stopping, detaining, investigating, searching and effecting seizures in the absence of a reasonable, articulable suspicion of unlawful activity or probable cause. 216. As a result of Defendants’ acts and/or omissions, the Fourth Amendment rights of the Plaintiffs and class to be free from unreasonable searches and seizures and unlawful entries into their homes have been violated. 217. The Plaintiffs and class will suffer irreparable and repeated injury unless this Court orders equitable relief. Such injury includes, inter alia, the deprivation of their constitutionally protected rights under the Fourth Amendment to the United States Constitution.
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218. As a result of Defendants’ acts or omissions, at least some of the Plaintiffs and members of the class continue to suffer harm from Defendants’ challenged conduct in the form of continuing judicial and administrative proceedings seeking their removal from this country.
219. Damages cannot adequately address the injuries suffered by the Plaintiffs. 220. Compelling the Defendants, their agents, employees and successors in office, and all persons acting in concert with them to comply with the dictates of the United States Constitution does not impose an improper or undue burden on the Defendants, their agents, employees and successors in office, and others, and, in fact, it serves the public interest by ensuring compliance with well-established Constitutional protections. 221. Plaintiffs and the class are entitled to the issuance of a permanent injunction prohibiting Defendants from engaging in the unlawful and abusive practices alleged herein. 222. For reasons including, but not limited to, those stated herein, an actual dispute exists between Plaintiffs and Defendants, in which the parties have genuine and opposing interests that are direct and substantial, and of which a judicial determination will be final and conclusive. 223. This dispute entitles Plaintiffs to a declaratory judgment that in doing the acts complained of herein the Defendants denied Plaintiffs their Fourth Amendment rights and protections, including, but not limited to, the right to be free from unreasonable searches and seizures and the right to be free from unlawful entries into one’s home, in violation of the U.S. Constitution.
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224. Plaintiffs are also entitled to such other and further relief as may follow from the entry of such a declaratory judgment.
SECOND CLAIM: BIVENS CLAIM OF NAMED PLAINTIFFS (Against Defendants Christopher Shanahan and John Doe ICE Agents ## 1-30) 225. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations. 226. In doing the acts complained of, Defendants Shanahan and John and Jane Doe ICE Agents ## 1-30 deprived Plaintiffs of certain constitutionally protected rights, including, but not limited to:
a. the right to be free from unlawful entries into and searches of Plaintiffs’ homes without a valid warrant or voluntary consent and in the absence of probable cause and exigent circumstances; and
b. the right to be free from detentions without a lawful, reasonable and articulable suspicion of unlawful activity or probable cause.
227. Because these Defendants acted in clear violation of well-settled law, of which a reasonable person should have been aware, with regard to standards for home entry, search, seizure, questioning, and detention, they are not entitled to a good faith defense or official immunity defense.
228. The actions of these Defendants were intentional, malicious, and reckless and showed a callous disregard for, or indifference to, the civil rights of the Plaintiffs.
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229. The actions of these Defendants give rise to a cause of action for damages against them in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
230. As a direct and proximate result of the unlawful actions of these Defendants, Plaintiffs have suffered harm, in the form of, inter alia, outrage, humiliation, and emotional distress. Plaintiffs are entitled to compensatory and punitive damages in an amount to be determined at trial.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court: 1. Issue a Declaratory Judgment on behalf of Plaintiffs with respect to the
claims set forth in the First Claim declaring that the actions of Defendants vis-à-vis the Plaintiffs as complained of herein violated the Fourth Amendment to the United States Constitution; 2. With respect to the claims set forth in the First Claim, issue an order permanently enjoining Defendants, their agents, employees, and successors in office and all others acting in concert with them from engaging in the unlawful, abusive and discriminatory actions as set forth above; 3. Award the named Plaintiffs actual, compensatory, and punitive damages for violations of the Fourth Amendment to the United States Constitution; 4. Award Plaintiffs costs of this action;
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5. Award Plaintiffs pre- and post-judgment interest, as permitted by law;

6. Award Plaintiffs reasonable attorneys’ fees with respect to their claims set

forth in the First and Second Claims;

7. Grant Plaintiffs such other relief as the Court deems appropriate and just.

DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury on all claims and issues properly triable to a jury.

New York, New York September 20, 2007

LEBOEUF, LAMB, GREENE & MACRAE LLP

By: Patrick J. Gennardo Donna L. Gordon Richard J. Cairns Kelly H. Tsai Colin G. Stewart
125 W. 55th Street New York, New York 10019 (212) 424-8000
PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND

By: Foster Maer Jackson Chin Ghita Schwarz
90 Hudson Street, 14th Floor New York, New York 10013 (212) 739-7507
Attorneys for Plaintiffs
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 Case 1:07-cv-08224-KBF Document 202 Filed 12/21/09 Page 1 of 467

Case 1:07-cv-08224-KBF Document 202 Filed 12/21/09 Page 2 of 467

Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Juan Jose Mijangos, David Lazaro Perez, William Lazaro, Tarcis Sapon-Diaz, Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Raul Amaya, Gloria Vanessa Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez, on behalf of themselves and all others similarly situated, through their undersigned attorneys allege as follows:

INTRODUCTION

1.

This class action seeks declaratory, injunctive and other relief to redress

Defendants’ deprivation of Plaintiffs’ rights arising under the laws and Constitution of the United

States. This action arises out of a pattern and practice of unlawful entry, search and seizure by

Defendants of Latino persons within the jurisdiction of the New York City field office of ICE. As

described in detail below, Defendants’ wrongful actions include, inter alia, unreasonable and

unlawful entries into and searches and seizures of the homes of Plaintiffs and other Latinos within

the jurisdiction of the New York City field office of ICE, unlawful detainment and seizure of

Plaintiffs and other Latinos, psychological and physical abuse, and the destruction of private,

personal property in violation of the Fourth and Fifth Amendments to the U.S. Constitution.

2.

In 2006, the Immigration and Customs Enforcement Division of the Department

of Homeland Security (commonly known as “ICE”) initiated several programs to identify and

arrest aliens, including operations known as “Operation Cross Check,” “Operation Return to

Sender,” and “Operation Community Shield” (collectively and together with all similar national

or local initiatives or operations, the “Operations”). Under these programs, Defendants have

conducted, continue to conduct, and plan to conduct in the immediate future unconstitutional and

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abusive raids of homes occupied by Latino persons within the jurisdiction of the New York City

field office of ICE, including the homes of the named Plaintiffs.

3.

The raids are ostensibly performed to arrest and remove specifically identified

targets (e.g., fugitive aliens (immigrants who have been previously ordered to leave this country),

criminal non-fugitive aliens, gang members, and gang member associates). However, the raids

are performed in a manner that tramples on the Fourth and Fifth Amendment rights of persons

residing in the United States and leaves a trail of harm affecting innocent members of our society.

According to a report published by the Migration Policy Institute, since 2004 these raids have led

to a nearly sevenfold increase in detentions without any appreciable increase in the number of

arrests of the intended targets. (See Migration Policy Institute, Collateral Damage: An

Examination of ICE’s Fugitive Operations Program (Feb. 2009), attached hereto as Exhibit 1, at

13-17.)

4.

The modus operandi of the Operations is to have teams of six to ten armed ICE

agents raid homes of Latinos without court-issued search warrants and to do so in a manner that

will obtain entry to the targeted homes without providing the occupants a meaningful opportunity

to consent or refuse entry. In these raids agents were armed with submachine guns known as MP-

5s and shotguns. Furthermore, as a foreseeable result of high-level administrative policies and

pressure to increase apprehensions without providing a corresponding increase in training, ICE

agents specifically target homes occupied by residents of Latino origin, regardless of immigration

status.

5.

The raids are conducted in the pre-dawn and early morning hours. High-level

supervisors, including the Assistant District Director of ICE, approve operational plans. Such

supervisors are required to approve and provide justification for operations conducted outside of

daylight hours, but frequently fail to do so, despite the fact that such raids clearly take place. 3

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Though the agents often know that the occupants of a targeted residence are likely to be Spanish-

speaking, ICE does not ensure that Spanish-speaking agents are present. Acting in a manner that

terrifies sleeping residents, ICE agents pound on and/or break down doors and windows while

screaming as loudly as possible, often representing themselves as “police,” which of course they

are not. When the unsuspecting residents have the opportunity to open the door to inquire about

what is going on, the agents then burst into the homes without first obtaining the occupants’

consent to entry.

6.

Without explanation or lawful justification, the agents immediately sweep through

the home, searching the premises as if an armed fugitive were present, even though they have no

reasonable basis for such belief, and have not sought or obtained consent to search the premises of

the residents. Latino persons are then brought to a central location within the home to be detained

and interrogated by ICE agents regarding their immigration status. All of these actions are

conducted without good cause in a manner highly abusive and psychologically harmful to both

the adults and children present.

7.

Moreover, despite the inherently intrusive nature of these raids, the agents do not

conduct an adequate investigation prior to the raid to ensure that the alien they are purportedly

seeking is actually inside the targeted home at the time of the raid. As a result, the agents

regularly raid homes where the target is not present and could not reasonably have been believed

to be present. Indeed, ICE has refused offers of assistance from local law enforcement agencies

that could have provided more accurate information about the whereabouts of targets, thus

increasing the likelihood that agents will raid Latino homes where no target resides. The poor

quality of this intelligence was known to ICE before the raids: a 2007 investigation by the

Department of Homeland Security (“DHS”) Office of the Inspector General observed that of 96

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administrative warrants issued for October, 2007 raids in Nassau County, only nine contained up-

to-date intelligence. (See Exhibit 1 at 6.)

8.

The goal of these raids is to gain access to constitutionally protected areas in the

hope of seizing as many undocumented persons as possible. In 2006, Defendant Torres, the

Director of the Office of Detention and Removal Operations for ICE, disseminated memoranda

that imposed an 800-percent increase in arrest quotas for each Fugitive Operations Team, and that

permitted agents to meet these quotas through the arrests of non-target immigrants, or

“collaterals.” This 800-percent increase was created and implemented by individuals at the

highest levels of the Department of Homeland Security. The detention goals were defined in

terms of the number of people to be detained, not the number of criminal fugitives, the purported

targets of Fugitive Operations Teams. Thus, the Defendants clearly demonstrated an intent and

purpose to target Latino individuals, irrespective of whether or not they were criminals or

fugitives. The facts show that the Defendants achieved their stated intent: In the first fiscal year

after the detention goals were adjusted, detentions of non-criminal aliens doubled, while detention

of criminal alien fugitives remained static. In February 2007, coinciding with the beginning of

Operation Return to Sender, Defendant Torres boasted that ICE had the highest weekly total of

arrests since the inception of the program.

9.

Upon information and belief, as an intentional and foreseeable result of ICE’s

campaign to increase each team’s detentions eight-fold without providing a corresponding

increase in training or resources, ICE has resorted to unconstitutional targeting of the local Latino

population. Local businesses such as restaurants, bars, convenience stores and laundromats with

known concentrations of Latino patrons have also been targeted, and Latino patrons present

within these businesses have been targeted for unconstitutional stops and detentions based solely

on the individual’s perceived race, ethnicity, or national origin. 5

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10. These raids demonstrate a pattern and practice of conduct that deliberately targets the Latino population within the jurisdiction of the New York City field office of ICE, reflecting the pressure on ICE teams to increase arrests without receiving additional training or agents. The intent to target Latinos is demonstrated by the agents’ actions during the raids. For example, although ICE agents purportedly go to homes only when seeking a specific person or persons, (i.e., a target) ICE agents have raided Latino homes even when advised (or after they should reasonably have determined) that their target was not present, while immediately departing from homes occupied by Caucasian individuals without even asking for the target. Similarly, agents have surrounded Latino homes, detained and seized Latinos within the homes, and handcuffed Latinos prior to eliciting or reviewing any evidence of unlawful status, even when the individuals could not reasonably have been mistaken for the purported target of the raid. Often, ICE agents never even ask the Latinos encountered if the purported target lives at the home. This conduct has resulted in a disproportionately high rate of “collateral” arrests of Latinos when compared to the number of “targets” who are Latino. Further, when agents make collateral arrests of Latinos, they rarely note the basis for seizing and questioning the individual arrested. A report issued by the Immigration Justice Clinic at the Cardozo School of Law reports that in Long Island between 2006 and 2008, ICE failed to note the basis for seizing and questioning Latino collaterals in 94% of arrests. The report states that “[t]his data lends empirical support to the community complaints that during home raids ICE agents seize Latino residents based simply on their ethnic appearance or limited English proficiency.” (See “Constitution on ICE: A Report on Immigration Home Raid Operations,” Cardozo Immigration Justice Clinic, July 22, 2009, attached hereto as Exhibit 2, at 12.)
11. Despite accounts that ICE has erroneously targeted numerous Latino homes, including complaints that they have raided the same home more than once without making any
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arrests and reports that clearly show ICE has used stale intelligence, ICE has never required agents to document or input information into their records or databases noting incidents of failed attempts to find targets. As a foreseeable result of these lapses at the highest levels of ICE, Latinos face the risk of being wrongly and repeatedly targeted for raids. An investigation by the DHS Office of the Inspector General into intelligence supporting raids in Nassau County in October 2007 found that less than 10% of administrative warrants issued contained accurate intelligence.
12. ICE agents working under the jurisdiction of the New York field office have noted internally that raids have been characterized by racial profiling as well as by nonconsensual entries and searches. Defendants Chertoff, Myers, Forman, and Torres were aware of such complaints before such raids took place. These defendants condoned such unconstitutional conduct by dismissing the internal accusations without conducting proper investigations. Indeed, upon information and belief, the internal investigations into such allegations have been woefully inadequate and have not resulted in discipline for agents and supervisors or any change in ICE practice. These internal allegations of racial profiling have been corroborated by deposition testimony from a local law enforcement agency indicating that during jointly conducted raids, ICE agents on multiple occasions used derogatory and racist terms such as “wetback” to refer to the Latinos whose homes were being raided and who were being detained for questioning or arrested. Moreover, this same deposition testimony revealed that of the four bars or clubs chosen for raids on one night during the same operation, only two were known gang hangouts -- the other two were merely establishments frequented by Latinos. Such racial, ethnic, and/or national origin profiling, overt racism, selective enforcement of the federal immigration laws and regulations, and non-consensual, warrantless entry of homes are fundamentally at odds with the basic values
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upon which this country was founded and violate the Fourth Amendment and the Equal Protection Clause of the Fifth Amendment.
13. While ICE has been aggressively increasing the number of raids performed, ICE has not kept pace in providing adequate training to its agents to protect the constitutional rights of persons affected by ICE’s actions.
14. ICE has similarly failed to promulgate adequate rules and procedures for conducting these raids within permissible constitutional limits.
15. ICE’s failures have been repeatedly identified by such entities as the Department of Homeland Security Office of Inspector General (the “Inspector General”), which have cited ICE’s lapses in training and information gathering that have contributed to the constitutional violations raised herein. Senior officials at ICE, including Defendants Chertoff, Myers, Forman and Torres, knew of and reviewed these reports, yet continued to allow these inadequately trained agents to participate in ICE operations. Some agents involved in raids never received the threeweek training course for Fugitive Operations Team members, and ICE offers no “refresher training” program.
16. The training and intelligence failures of ICE have also been confirmed and criticized by Lawrence W. Mulvey, Commissioner of Police for Nassau County. In a public letter dated September 27, 2007, to Joseph A. Palmese, resident Agent-in-Charge of ICE investigations in Bohemia, New York, Commissioner Mulvey complained that when conducting raids in Nassau County that week, ICE agents lacked current intelligence, had incorrect addresses for targeted homes and displayed a “cowboy mentality.” In one instance, Commissioner Mulvey noted that ICE agents were looking for a 28-year-old suspect using a photograph of the suspect from when he was seven years old. Commissioner Mulvey also confirmed that ICE misled the Nassau County Police about the nature of the raids and that most people arrested in the raids were not
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targets of the raids but instead were undocumented immigrants. (See September 27, 2007 Letter from Commissioner Mulvey to Defendant Palmese, attached hereto as Exhibit 3.)
17. Equally troubling is that Commissioner Mulvey’s letter confirms that as of September 27, 2007, ICE plans to conduct future raids in Nassau County. (See page 2 of Exhibit 3 in which Commissioner Mulvey states that the Nassau County Police will no longer lend support for these raids, but redacts the intended targets of future raids for confidentiality reasons.) In fact, Operation Community Shield, Operation Return to Sender, and other similar operations are still ongoing.
18. Nassau County Executive Thomas R. Suozzi also complained to Defendant Chertoff about the actions and behavior of ICE agents conducting raids in Nassau County in September 2007. In his public letter dated October 2, 2007, to Defendant Chertoff, County Executive Suozzi strongly suggests that ICE agents engaged in “misconduct” and “malfeasance” and utilized tactics that crossed “the lines of legality and law enforcement best practices” when conducting the raids. He also demanded an investigation by Defendant Chertoff. Some of the victims of the raids addressed in this letter have been joined as named Plaintiffs in this matter. (See October 2, 2007 Letter from County Executive Suozzi to Defendant Chertoff, attached hereto as Exhibit 4.)
19. Rather than implementing changes as a result of these constitutional violations, senior policymakers have actively defended ICE agents’ misconduct. Defendants Chertoff and Myers received letters from Nassau County Police Commissioner Lawrence Mulvey and Nassau County Executive Thomas Suozzi. These letters stated the numerous concerns the Nassau County officials had with the conduct of the raids. Defendant Chertoff drafted a reply letter to Mr. Suozzi, but never sent it. Instead, on October 19, 2007, Defendant Myers sent a revised letter to Mr. Suozzi on Defendant Chertoff’s behalf, dismissing the claims as unsubstantiated. The
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“thorough investigation” that Defendant Myers touts in her letter was conducted without interviewing a single member of the Nassau County Police Department. In blindly defending ICE from these allegations of misconduct, Defendants Chertoff and Myers have continued to affirmatively support a policy of unconstitutional entries into homes.
20. Senior policymakers at ICE have also actively defended ICE’s unconstitutional conduct to elected officials. On October 7, 2007, at the behest of Defendant Myers, Defendants Smith and Palmese met with New York State Congressman Peter King in an attempt to assuage his concerns over the allegations of misconduct by the Nassau County officials. Defendants Smith and Palmese did this without conducting an adequate internal investigation into the allegations. Defendants Smith and Palmese’s defense of ICE’s activities effectively condoned ICE’s custom or policy of unconstitutional conduct.
21. Defendants Chertoff, Myers, Forman and Torres played active and extensive roles in formulating and implementing ICE’s strategy for alien apprehension. According to the Migration Policy Institute report, Defendant Chertoff identified expansion of alien apprehension programs as one of his “overarching goals” while at DHS. Thus, rather than simply being aware of such programs, Defendant Chertoff made them one of his primary objectives. Moreover, after such programs were implemented, despite receiving consistent and widespread complaints about a pattern and practice of constitutional violations, Defendants ICE, Chertoff, Myers, Forman, and Torres took little or no action to conduct adequate investigations of misconduct, correct violations, improve training, or otherwise address systemic failures, thus allowing the continuation of the policies they set in motion.
22. Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela GarciaLeon, and Carson Aguilar are members of the Leon/Aguilar family. Each is a U.S. citizen of the United States and is a Latino who has been victimized by ICE’s constitutional violations.
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23. On or about February 20, 2007, armed ICE agents pounded on the door of the Leon/Aguilar home located at 30 Copeces Lane, East Hampton, New York between 4:30 and 5:00 a.m. The ICE agents, including Defendant Williams, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, and ICE 8 entered the Leon/Aguilar family home without a judicial warrant, consent, or any exigent circumstances, conducted an unlawful search and illegally detained the Leon and Aguilar families. The agents never explained the family members’ rights, prevented them from contacting a lawyer or the police, and failed to allow them to review what the ICE agents said was a warrant. Having once been victimized by ICE, the Aguilar and Leon families live in constant fear that ICE agents will return and again try to unlawfully enter their home. Indeed, upon leaving the Leon/Aguilar family home, the ICE agents threatened that they would, in fact, be back.
24. Plaintiff Nelly Amaya is Latina. She too is a victim of ICE’s constitutional violations.
25. On or about February 20, 2007, armed ICE agents kicked in the door of her home located at 20 Boatsteerers Court, East Hampton, New York between 4:00 and 5:00 a.m. The ICE agents, including Defendant Williams, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7 and ICE 8, forcibly entered her home without a search warrant, consent, or any exigent circumstances. The ICE agents entered her home, physically abused her, and arrested her in retaliation for Nelly’s demand to see a warrant. Nelly was never shown a warrant by ICE and lives in constant fear that ICE agents will again try to unlawfully enter her home.
26. Plaintiffs Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Juan Jose Mijangos are Latinos. They too are victims of ICE’s constitutional violations.
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27. On or about April 18, 2007, armed ICE agents pounded on the door of their home located at 417 East Avenue, Riverhead, New York at about 4:30 a.m. The ICE agents, including ICE 1, ICE 3, ICE 4, ICE 7, ICE 8, ICE 9, ICE 10 and ICE 11, forcibly entered the home without a judicial warrant, consent, or any exigent circumstances, by ramming through the back door of their home. The ICE agents arrested Mario, Gonzalo, Victor, Yoni and Juan Jose, handcuffing them and placing Mario in chains. The four men were then transported to Manhattan, where they were detained in a room, questioned, and released later that evening. The agents never explained their rights and failed to produce a warrant of any kind. Having once been victimized by ICE, Mario, Gonzalo, Victor, Yoni, and Juan Jose live in constant fear that ICE agents will return and again try to unlawfully enter their homes.
28. Plaintiff David Lazaro Perez, William Lazaro, and Tarcis Sapon-Diaz are Latinos. They too are all victims of ICE’s constitutional violations.
29. On or about March 19, 2007, armed ICE agents, including ICE 1, ICE 6, ICE 8, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16 and ICE 17, forcibly entered their home located at 165 Main Street, Mount Kisco, New York at about 4:00 a.m. without a judicial warrant, consent, or any exigent circumstances. The ICE agents arrested David, William and Tarcis, placed them in handcuffs, and transported them to Manhattan, where they were detained for several hours. The men were later transported to a New Jersey detention center, from which they were released two days later. The agents never explained their rights and failed to produce a warrant of any kind. Having once been victimized by ICE, David, William and Tarcis live in constant fear that ICE agents will return and again try to unlawfully enter their homes.
30. Plaintiffs Sonia Bonilla and her daughters Beatriz Velasquez and Dalia Velasquez are residents of Westbury, New York. Sonia is a lawful permanent resident, and her little girls are U.S. citizens. Each is a Latina person who has been victimized by ICE’s constitutional violations.
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31. On September 24, 2007, armed ICE agents pounded on the door of the Bonilla/Velasquez home located at 710 Jefferson Street, Westbury, New York between 5:30 and 6:00 a.m. The ICE agents, including ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26 and ICE 42, entered the home without a judicial warrant, consent, or any exigent circumstances, conducted an unlawful search and illegally detained residents of the home. Four occupants of the home were arrested and no warrant of any kind was ever produced. The agents intimidated the twelve-year-old girl who opened the door while her parents were briefly out, conducted a full raid and a search. Having once been victimized by ICE, the Bonilla/Velasquez family lives in constant fear that ICE agents will return and again try to unlawfully enter their home.
32. Plaintiffs Elder Bonilla and Diana Rodriguez are residents of Westbury, New York. Elder is a lawful permanent resident, and his girlfriend Diana, who is also the mother of his two U.S. citizen children, has status as an asylee. Each is a Latino person who has been victimized by ICE’s constitutional violations.
33. On September 24, 2007, armed ICE agents pounded on the door of the Bonilla/Rodriguez home located at 22 Dogwood Lane in Westbury, New York between 5:30 and 6:00 a.m. When Elder opened the front door, ICE agents pointed a gun at his chest, immediately handcuffed him, and threw him toward the sofa. The ICE agents, including ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 43, ICE 53, ICE 54, and ICE 55, entered the home without a judicial warrant, consent, or any exigent circumstances, conducted an unlawful search, damaged doors and walls, and illegally detained residents of the home, arresting six of them, including a sixteen-year-old boy, without ever showing a warrant.
34. Plaintiff Raul Amaya and his wife, Plaintiff Gloria Vanessa Amaya, are residents of Huntington Station, New York. Raul is a U.S. citizen of Latino origin and Gloria Vanessa is a
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lawful conditional resident of Latino origin. They were both victimized by ICE’s constitutional violations.
35. Ten to fifteen ICE agents arrived at the Amaya home on September 27, 2007 at approximately 7:30 a.m. Raul was outside the home getting ready for work. The agents used profanities, and accused Raul of being “in trouble with the IRS,” “under arrest,” having no status, and holding a suspended or invalid driver’s license. After refusing to look at Raul’s documentation, and without a judicial warrant or exigent circumstances, ICE agents proceeded to enter Raul’s house without consent. When Gloria Vanessa came out to investigate the loud commotion, she was interrogated by ICE agents. The ICE agents, including ICE 27, ICE 28, ICE 29, ICE 31, ICE 32, ICE 33, ICE 36, ICE 37, ICE 54, and ICE 55 then entered and searched the home, including attempting to use a kitchen knife to pry open a locked door and attempting to kick open the basement unit. ICE agents searched the home for over an hour-and-a-half. As they were leaving, some ICE agents threatened to return later that day or in the following week.
36. Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez are residents of Huntington Station, New York and are all United States citizens. Each is a Latino person who has been victimized by ICE’s constitutional violations.
37. In approximately mid- to late-August 2006, ICE agents pounded on the door of the De La Rosa-Delgado/Jimenez home at 15 West 18th Street in Huntington Station, New York in the pre-dawn hours. The ICE agents entered the home without a judicial warrant, consent, or any exigent circumstances, and conducted an unlawful search without ever showing a warrant. The ICE agents claimed they were looking for a man named “Miguel,” and were told that no one by that name had lived at the home since Pelagia bought it in 2003.
38. Despite being told that the man they were seeking had never lived at the De La Rosa-Delgado/Jimenez home, ICE agents, including ICE 39, ICE 40, ICE 41, ICE 45, ICE 46,
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ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 56, and ICE 57 returned to the De La Rosa-Delgado/Jimenez home a little before 6:00 a.m. on September 27, 2007. Once again, ICE agents pounded on the front door of the De La Rosa-Delgado/Jimenez home, entered the home without a judicial warrant, consent, or any exigent circumstances, and conducted an unlawful search without ever showing a warrant. The ICE agents also pounded on the back door of the home. The ICE agents claimed they were looking for “Miguel,” the same person that they were seeking in 2006 and whom they were told had not lived at the home since at least 2003, if ever. The De La Rosa-Delgado/Jimenez family lives in constant fear that ICE agents will return and attempt to unlawfully enter their home for a third time.
39. As a result of the raids on their homes, Plaintiffs have been profoundly traumatized, and remain extremely fearful that the ICE agents will return to inflict further harm. Indeed, the ICE agents did return to the De La Rosa-Delgado/Jimenez home and, in several other instances, the ICE agents have made specific threats that they would return. Indeed, reports and testimony confirm that the Operations are ongoing.
40. Without judicial intervention there will be no end to ICE’s unlawful and unconstitutional activities, and there is a credible threat of recurrent injuries to Plaintiffs and the class. By all appearances, ICE is continuing its aggressive, Latino-targeted program and increasing its unconstitutional enforcement activities without regard to the constitutional rights of those affected. The named Plaintiffs, like the other members of the class, are at real risk of further Fourth and Fifth Amendment violations at the hands of ICE because they are Latino and/or live in residences with Latino individuals.
41. ICE agents have conducted, and continue to conduct, similar raids against innocent and unsuspecting Latinos throughout the area within the jurisdiction of the New York City field office of ICE. To put an end to these unlawful activities, Plaintiffs seek on behalf of
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themselves and all others similarly situated a permanent injunction restraining agents within the jurisdiction of the New York City field office of ICE from conducting home raids until they have established appropriate procedures and standards governing the conduct of ICE agents in performing home raids, selecting sites for said raids, and documenting activities during raids so as to assure that Plaintiffs and the class will not be subjected to the unlawful practices complained of herein.
42. Plaintiffs also seek compensation for their own damages suffered as a result of the raids on their homes.
JURISDICTION AND VENUE 43. Jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331 and 1346. 44. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because, inter alia, (1) at least one of the defendants resides in this judicial district and (2) at least one of the Plaintiffs resides in this district and no real property is involved in this action.
PARTIES AND OTHER RELEVANT PERSONS 45. Plaintiff ADRIANA AGUILAR is a citizen of the United States and is Latina. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York. She appears in this action both as a Plaintiff in her individual and representative capacities and, pursuant to FRCP Rule 17(c), as Next Friend for (a) her five-year-old son, Plaintiff CARSON AGUILAR and (b) her thirteen-year-old daughter, Plaintiff ERIKA GABRIELA GARCIA-LEON. 46. Plaintiff CARSON AGUILAR is a citizen of the United States and is Latino. At all times relevant to this action, he was and is a resident of East Hampton, Suffolk County, New York, living with his mother, Plaintiff Adriana Aguilar.
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47. Plaintiff ERIKA GABRIELA GARCIA-LEON (“Gabriela”) is a citizen of the United States and is Latina. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York, living with her mother, Plaintiff Adriana Aguilar.
48. Plaintiff ANDRES LEON is a citizen of the United States and is Latino. At all times relevant to this action, he was and is a resident of East Hampton, Suffolk County, New York.
49. Plaintiff ELENA LEON is a citizen of the United States and is Latina. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York.
50. Plaintiff NELLY AMAYA is Latina. At all times relevant to this action, she was and is a resident of East Hampton, Suffolk County, New York.
51. Plaintiff MARIO PATZAN DELEON is Latino. At all times relevant to this action, he was and is a resident of Riverhead, Suffolk County, New York.
52. Plaintiff GONZALO ESCALANTE is Latino. At all times relevant to this action, he was and is a resident of Riverhead, Suffolk County, New York.
53. Plaintiff VICTOR PINEDA MORALES is Latino. At all times relevant to this action, he was and is a resident of Riverhead, Suffolk County, New York.
54. Plaintiff YONI REVOLORIO is Latino. At all times relevant to this action, he was and is a resident of Riverhead, Suffolk County, New York.
55. Plaintiff JUAN JOSE MIJANGOS is Latino. At all times relevant to this action, he was a resident of Riverhead, Suffolk County, New York.
56. Plaintiff DAVID LAZARO PEREZ is Latino. At all times relevant to this action, he was and is a resident of Mount Kisco, Westchester County, New York.
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57. Plaintiff WILLIAM LAZARO is Latino. At all times relevant to this action, he was and is a resident of Mount Kisco, Westchester County, New York.
58. Plaintiff TARCIS SAPON-DIAZ is Latino. At all times relevant to this action, he was and is a resident of Mount Kisco, Westchester County, New York.
59. Plaintiff RAUL AMAYA is a citizen of the United States and is Latino. At all times relevant to this action, he was and is a resident of Huntington Station, Suffolk County, New York.
60. Plaintiff GLORIA VANESSA AMAYA is a lawful conditional resident of the United States and is Latina. She is married to Plaintiff RAUL AMAYA. At all times relevant to this action, she was and is a resident of Huntington Station, Suffolk County, New York.
61. Plaintiff SONIA BONILLA is a lawful permanent resident of the United States and is Latina. At all times relevant to this action, she was and is a resident of Westbury, Nassau County, New York. She appears in this action both as a Plaintiff in her individual and representative capacities and, pursuant to FRCP Rule 17(c), as Next Friend for (a) her twelveyear-old daughter, Plaintiff BEATRIZ VELASQUEZ and (b) her nine-year-old daughter, Plaintiff DALIA VELASQUEZ.
62. Plaintiff BEATRIZ VELASQUEZ is a citizen of the United States and is Latina. At all times relevant to this action, she was and is a resident of Westbury, Nassau County, New York, living with her parents, SONIA BONILLA and NOE VELASQUEZ.
63. Plaintiff DALIA VELASQUEZ is a citizen of the United States and is Latina. At all times relevant to this action, she was and is a resident of Westbury, Nassau County, New York, living with her parents, SONIA BONILLA and NOE VELASQUEZ.
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64. Plaintiff ELDER BONILLA is a lawful permanent resident of the United States and is Latino. At all times relevant to this action, he was and is a resident of Westbury, Nassau County, New York.
65. Plaintiff DIANA RODRIGUEZ is Latina. She has asylee status. At all times relevant to this action, she was and is a resident of Westbury, Nassau County, New York.
66. Plaintiff PELAGIA DE LA ROSA-DELGADO is a citizen of the United States and is Latina. At all times relevant to this action, she was and is a resident of Huntington Station, Suffolk County, New York. She appears in this action both as a Plaintiff in her individual and representative capacities and, pursuant to FRCP Rule 17(c), as Next Friend for her sixteen-yearold son, Plaintiff BRYAN JIMENEZ.
67. Plaintiff ANTHONY JIMENEZ is a citizen of the United States and is Latino. At all times relevant to this action, he was and is a resident of Huntington Station, Suffolk County, New York
68. Plaintiff CHRISTOPHER JIMENEZ is a citizen of the United States and is Latino. At all times relevant to this action, he was and is a resident of Huntington Station, Suffolk County, New York, living with his mother, Plaintiff Pelagia De La Rosa-Delgado.
69. Plaintiff BRYAN JIMENEZ is a citizen of the United States and is Latino. At all times relevant to this action, he was and is a resident of Huntington Station, Suffolk County, New York, living with his mother, Plaintiff Pelagia De La Rosa-Delgado.
70. Defendant IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY (“Defendant ICE”) is headquartered in Washington, D.C., with an Office of Detention and Removal Operations field office located in New York, New York.
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71. The Special Agent-in-Charge Offices of Defendant ICE OFFICE OF INVESTIGATIONS (“OI”) are responsible for the administration and management of enforcement activities within the geographic boundaries of the office. Upon information and belief, the Bohemia, New York office of Defendant ICE OI was involved in the home raids conducted in Nassau County on September 24 and 26, 2007.
72. Defendant MICHAEL CHERTOFF (“Defendant Chertoff”) was, during at least part of the relevant time, the United States Secretary of the Department of Homeland Security in Washington, D.C. Defendant Chertoff was, among other things, charged with constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of the division of Immigration and Customs Enforcement. Defendant Chertoff was the highest ranking official for the Department of Homeland Security, and was charged with supervising Assistant Secretary Julie Myers, Director of ICE’s Office of Detention and Removal Operations John Torres, and Director of ICE’s Office of Investigations Marcy Forman. Defendant Chertoff is sued individually.
73. Defendant Chertoff, pursuant to 8 U.S.C. §1103, was the ultimate decision maker for the Department of Homeland Security and all divisions of the Department of Homeland Security, including ICE. Defendant Chertoff created, approved, and implemented official policies and strategies. In late 2005 and early 2006, Defendants Chertoff and Myers conceived and announced the Secure Border Initiative (“SBI”), which was a comprehensive and aggressive immigration enforcement strategy for the United States. Operations Cross Check, Return to Sender and Community Shield were conducted under the SBI. Defendant Chertoff intended to violate constitutional rights by, inter alia, implementing these policies. Furthermore, Defendant Chertoff, as a result of being the Secretary of DHS, was involved in the planning and/or investigation of ICE agents’ conduct during raids.
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74. Defendant Chertoff identified expansion of alien apprehension programs as one of his “overarching goals” while at DHS. In order to achieve his goal, Defendant Chertoff approved an 800 percent increase in the goal for arrests per team, which led to ICE customs and policies that regularly ran afoul of constitutional rights. Defendant Chertoff held and led a publicly reported operational briefing on February 9, 2006. On behalf of Defendant Chertoff, Defendant Torres provided further detail about the impossible goal of 1,000 arrests per fugitive operations team.
75. Defendant Chertoff encouraged, endorsed, and thus intended the unconstitutional conduct by ICE during home raids. This is demonstrated, among other things, by Defendant Chertoff’s response (or lack thereof) to numerous high profile newspaper articles and letters identifying ICE’s unconstitutional conduct.
(a) From February 12, 2007 through March 9, 2007, from March 19, 2007 through April 13, 2007, and from April 16, 2007 through April 27, 2007, ICE’s Department of Removal Operations New York City field office conducted Operations Return to Sender and Cross Check. ICE raids on Plaintiffs’ homes located at 30 Copeces Lane, East Hampton, New York, 20 Boatsteerers Court, East Hampton, New York, 417 East Avenue, Riverhead, New York, and 165 Main Street, Mt. Kisco, New York, took place during this time. As early as March 1, 2007, and in publications as prominent as the New York Times, newspapers publicized the widespread unconstitutional practices of ICE. These high-profile articles detailed the unconstitutional customs and practices of ICE, and also contained quotes from various high-level ICE officials. For example, on April 10, 2007, the New York Times reported that ICE agents had entered 30 Copeces Lane, East Hampton, New York, at 5 a.m., purportedly looking for a target who had not lived in the house since 2003. After failing to find the target, the agents threatened to return. On May 23, 2007, Defendant Chertoff received a letter from counsel for
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Reinaldo Gonzales, detailing the ICE Agents’ warrantless, nonconsensual entry into 165 Main Street, Mt. Kisco, New York. This letter expressly told Defendant Chertoff that Mr. Gonzalez was restrained and “herded into a van” without the ICE agents identifying themselves, asking Mr. Gonzalez if he was undocumented, or asking him for identification. Only after much pleading was Mr. Gonzalez allowed to produce his Alien Registration Card, proving his legal status.
(b) In June 2007, ICE conducted home raids in New Haven, Connecticut. United States Senators Christopher Dodd and Joseph Lieberman, among others, sent a joint letter to Defendant Chertoff “requesting an explanation for the repeated accounts of ICE agents illegally entering homes.” (See June 11, 2007 Letter from Senators Dodd and Lieberman to Defendant Chertoff, attached hereto as Exhibit 5.) Specifically, the Senators told Defendant Chertoff that only four of the thirty-one apprehended individuals had outstanding deportation orders, that eyewitnesses saw ICE agents push their way into homes without consent, and that the operation appeared to be in retaliation for a new initiative to issue identification cards to the undocumented community. Id. Defendant Chertoff, without adequate investigation or basis, gave a blanket denial of all allegations. Defendant Chertoff staunchly defended the conduct of ICE during those raids and despite evidence to the contrary, boldly claimed “[a]t no time did any ICE FOTs enter a dwelling without consent.” (See June 14, 2007 Letter from Defendant Chertoff to Senator Dodd, attached hereto as Exhibit 6.) This claim was made either with actual knowledge of falsity or with reckless disregard as to truth or falsity, and was refuted by the findings of an immigration judge, who determined that ICE’s conduct during at least some of those home raids “worked an egregious violation” of the individuals’ Fourth Amendment rights. (See “Judge Rules Raids Violated Illegal Immigrants’ Rights,” CBS News, June 8, 2009,
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attached hereto as Exhibit 7. See also three of the decisions and orders discussed in Exhibit 7, attached hereto as Exhibit 8, 9, and 10.)
(c) From September 24, 2007, through September 29, 2007, ICE’s Office of Investigations Conducted Operation Community Shield. ICE raids on Plaintiffs’ homes located at 710 Jefferson Street, Westbury, New York, 22 Dogwood Lane, Westbury, New York, 58 East 6th Street, Huntington Station, New York, and 15 West 18th Street, Huntington Station, New York, took place during this time. On October 2, 2007, Nassau County Executive Thomas Suozzi told Defendant Chertoff of the numerous deficiencies with the ICE raids in Nassau County during Operation Community Shield. Specifically, County Executive Suozzi reiterated Commissioner Mulvey’s concerns over outdated intelligence used by ICE, the poor structure of the raid, and the “cowboy mentality” of the ICE agents. By October 4, 2007, a mere two days after receipt of the letter, Defendant Chertoff drafted a response to County Executive Suozzi. This response was yet another blanket denial of all allegations of ICE misconduct, despite the fact that it was impossible for Defendant Chertoff to have conducted an adequate investigation into the allegations in only two days. Instead of sending this draft letter, however, Defendant Chertoff instead elected to have Defendant Myers reply on his behalf. On October 19, 2007, a full seventeen days after receipt of County Executive Suozzi’s letter, Defendant Myers replied to County Executive Suozzi. However this letter was substantially the same as Defendant Chertoff’s initial draft. It is clear that, at the outset, Defendant Chertoff and Myers did not plan to conduct an investigation into the matter, and instead planned on blindly defending ICE from all allegations of misconduct. (See also “Raids Were a Shambles, Nassau Complains to U.S.,” New York Times, October 3, 2007, attached hereto as Exhibit 11.)
(d) Defendant Chertoff continued to receive complaints about ICE’s unconstitutional conduct in 2008. For example, on February 11, 2008, Congressman Jose E.
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Serrano of the 16th Congressional District of New York wrote a letter to Defendant Chertoff noting the flaws in the tactics the ICE agents use during the raids, including the use of excessive force and intimidation. Congressman Serrano also noted the perceived racial profiling on the part of some ICE officers. (See Congressman Serrano Letter to Defendant Chertoff, attached hereto as Exhibit 12.) On May 16, 2008, United States Senator Edward M. Kennedy sent a letter to Defendant Chertoff condemning the ICE custom of attempting to apprehend suspected aliens by targeting child care programs. (See Senator Kennedy Letter to Defendant Chertoff, attached hereto as Exhibit 13.) On June 12, 2008, The Commission on Security and Cooperation in Europe alerted Defendant Chertoff that detainees were being forced to take psychiatric drugs without medical reason and without consent. (See Commission Letter to Defendant Chertoff, attached hereto as Exhibit 14.)
76. As the ultimate decision-maker and final policy-maker for ICE, Defendant Chertoff had a duty to fully investigate the above allegations and immediately take corrective measures. Instead, Defendant Chertoff, having been informed of ICE’s misconduct multiple times, allowed, condoned, and actively defended and encouraged ICE’s custom or practice of violating constitutional rights during home raids. Indeed, these constitutional violations were conducted pursuant to the SBI that Defendant Chertoff created and in furtherance of his expressly stated overarching goal of expanding the alien apprehension programs.
77. Defendant JANET NAPOLITANO (“Defendant Napolitano”) is the United States Secretary of the Department of Homeland Security in Washington, D.C. She replaced Defendant Chertoff as Secretary of the Department of Homeland Security on or about January 21, 2009. Defendant Napolitano is, among other things, charged with constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of the division of Immigration and Customs Enforcement. While Defendant
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Napolitano was not the Secretary of DHS during the time of the raids at issue in the complaint, operations such as Return to Sender and Community Shield are ongoing. Indeed, Defendant Napolitano has stated that she will continue the programs that were started under President George W. Bush. (See “Napolitano Focuses on Immigration Enforcement,” New York Times, August 12, 2009, attached hereto as Exhibit 15.) Since Defendant Napolitano became Secretary of DHS, arrests and deportations have doubled when compared with the same period two years ago. Id. While Defendant Napolitano claims to have shifted the focus of these raids to criminal targets, there is no indication that the disturbing proportion of collateral arrests to target arrests has changed, that ICE agents are now conducting adequate investigations of the purported targets prior to raiding a home, or that the unconstitutional conduct complained of herein has stopped. Thus, Defendant Napolitano is not only continuing the policies that fostered the unconstitutional practices that are the subject of this complaint, but is multiplying their negative effects. Defendant Napolitano is sued for injunctive relief in her official capacity.
78. Defendant JULIE L. MYERS (“Defendant Myers”) was, during at least part of the relevant time, the Assistant Secretary of Homeland Security for Immigration and Customs Enforcement in Washington, D.C. Defendant Myers was, among other things, charged with the constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of the division of Immigration and Customs Enforcement. Defendant Myers, working hand-in-hand with Defendant Chertoff, directly supervised all aspects of ICE, including Director of ICE’s Office of Detention and Removal Operations John Torres and Director of ICE’s Office of Investigations Marcy Forman. Defendant Myers is sued individually.
79. Defendant Myers was closely involved in numerous aspects of the raids at issue. In conjunction with Defendant Chertoff, Defendant Myers was responsible for creating and
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implementing ICE’s overall comprehensive immigration enforcement strategy. In late 2005 and early 2006, Defendants Chertoff and Myers conceived and promulgated the SBI, which was a comprehensive and aggressive immigration enforcement strategy for the United States. Operations Return to Sender, Cross Check, and Community Shield were conducted under the SBI.
80. Defendant Myers coordinated ICE’s response to the Nassau County allegations, and also oversaw a grossly inadequate investigation into internal allegations of racial profiling. Upon information and belief, Defendant Myers approved Defendant Torres’s astounding 800% goal increase of target apprehensions for each fugitive operations team, as well as his policy guidance that allowed each team to count “collateral” arrests for purposes of achieving that goal. Defendant Myers intended to violate constitutional rights by, inter alia, implementing these policies, and then vigorously defended ICE in spite of mounting evidence of repeated and systematic unconstitutional conduct.
81. Upon information and belief, Defendant Myers received regular briefings on newspaper articles concerning ICE’s unconstitutional conduct and was therefore fully aware of the contents of all articles discussed above. Despite her duty to take corrective measures when faced with this knowledge, Defendant Myers actively condoned and endorsed this unconstitutional conduct.
82. Defendant JOHN MORTON (“Defendant Morton”) is the Assistant Secretary of Homeland Security for Immigration and Customs Enforcement in Washington, D.C. He replaced Defendant Myers as Assistant Secretary of Homeland Security for ICE on or about May 14, 2009. Defendant Morton is, among other things, charged with the constitutional and lawful implementation of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq., and with the administration of the division of Immigration and Customs Enforcement. While Defendant
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Morton was not the Assistant Secretary of ICE during the time of the raids at issue in the complaint, operations such as Return to Sender are ongoing. There is no evidence of material changes since 2007 in ICE policy or implementation of policies regarding these types of Operations. (See Exhibit 15.) Defendant Morton is sued for injunctive relief in his official capacity.
83. Defendant JOHN P. TORRES (“Defendant Torres”) is the Special Advisor on Enforcement and Private Sector Issues to the Assistant Secretary of ICE. From June 2005 until March of 2008, he was the Director of the Office of Detention and Removal Operations (“DRO”) for ICE in Washington, D.C., and from November 2008 to May of 2009, he was the Acting Assistant Secretary of ICE in Washington, D.C. As Director of DRO, Defendant Torres worked closely with his supervisors, Defendants Chertoff and Myers, in setting ICE DRO policies and practices. In that position Defendant Torres was responsible for the apprehension, detention and removal of foreign nationals charged with violation of immigration law and the supervision of sworn law enforcement officers assigned to the Detention and Removal field offices, including the field office based in New York County, New York. Defendant Torres is sued individually.
84. In conjunction with Defendants Chertoff and Myers, Defendant Torres created a new goal of 1,000 arrests per year for fugitive operations teams. This was an 800% increase over the previous goal. ICE agents viewed this goal as “not doable.” Defendant Torres explicitly stated that any collateral arrests made as a part of a headquarters sponsored operation would count towards that goal, knowing and intending that this would lead ICE to design operations to maximize the number of collateral arrests. At a publicly reported operational briefing held and led by Defendant Chertoff on February 9, 2006, Defendant Torres provided further detail on the impossible goal of 1,000 arrests per year for fugitive operations teams. Defendant Torres intended to violate constitutional rights by, inter alia, implementing these policies.
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85. At Defendant Torres’s direction, DRO and OI closely collaborated their efforts, essentially functioning as one unit. Defendant Torres issued memoranda creating numerous protocols regarding the coordination of raids, case management, procedures for keeping records, and dispute resolution between DRO and OI employees. Defendant Torres explicitly stated that the traditional roles of DRO and OI will overlap, and that responsibilities normally undertaken by one may be undertaken by the other, as neither area is exclusive to a particular program. Defendant Torres also issued memoranda stressing the importance of using ruses in operations. These policies advocated the use of deception by ICE agents to gain entry into the homes of unsuspecting individuals.
86. Having authority delegated by and approvals from Defendants Chertoff and Defendant Myers, Defendant Torres was the approving official for the operational plans for Return to Sender and Cross Check. These plans detailed targets, operational planning and execution, tasks for each group or office involved, coordinating instructions, and logistics. In addition, Defendant Torres authored and disseminated a specific memorandum that provided objectives, target priorities, and reporting requirements for Operation Cross Check. Defendant Torres also participated in a discussion regarding the DRO New York field office’s problems with “difficult to remove” nationalities, such as African or Chinese aliens.
87. Defendant Torres also was involved in all aspects of ICE’s response to the highly critical Inspector General’s report “An Assessment of United States Immigration and Customs Enforcement’s Fugitive Operations Teams.” By coordinating, editing, and ultimately approving a response designed to dismiss or minimize the effects of the numerous deficiencies found by the Inspector General’s report, Defendant Torres actively defended ICE’s custom or policy of unconstitutional conduct.
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88. Defendant DAVID J. VENTURELLA (“Defendant Venturella”) is the Acting Director of the Office of DRO for ICE in Washington, D.C., the position previously held by Defendant Torres. He is responsible for the apprehension, detention and removal of foreign nationals charged with violation of immigration law and the supervision of sworn law enforcement officers assigned to the DRO field offices, including the field office based in New York County, New York. While Defendant Venturella was not the Acting Director of DRO during the time of the raids at issue in the complaint, operations such as Return to Sender are ongoing. There is no evidence of material changes since 2007 in ICE policy or implementation of policies regarding these types of operations. (See Exhibit 15.) Defendant Venturella is sued for injunctive relief in his official capacity.
89. Defendant MARCY FORMAN (“Defendant Forman”) was the Director of the Office of Investigations for ICE in Washington, D.C. in 2006 and 2007, during the time of the raids described in this complaint. Upon information and belief, Defendant Forman continued to serve as the Director of OI until at least January 2009. As the Director of OI, Defendant Forman worked closely with her supervisors, Defendants Chertoff and Myers, in setting ICE OI policies and customs. She was responsible for overseeing the investigative arm of ICE and the supervision of sworn law enforcement officers assigned to the OI, including Special Agent-inCharge (“SAC”) officers based in New York County, New York and operating in the downstate New York area, including Suffolk, Nassau and Westchester Counties. Defendant Forman is sued individually.
90. Having authority delegated by and approvals from Defendants Chertoff and Defendant Myers, Defendant Forman played a significant role in the planning of the ICE raids in Nassau County in September 2007. Upon information and belief, Defendant Forman was in charge of overseeing training and setting policy regarding ICE agent conduct during home raids.
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Defendant Forman intended to violate constitutional rights by, inter alia, implementing these policies.
91. At Defendant Forman’s direction, DRO and OI closely collaborated their efforts, essentially functioning as one unit. Defendant Forman issued memoranda creating numerous protocols regarding the coordination of raids, case management, procedures for keeping records, and dispute resolution between DRO and OI employees. Defendant Forman explicitly stated that the traditional roles of DRO and OI will overlap, and that responsibilities normally undertaken by one may be undertaken by the other, as neither area is exclusive to a particular program. Defendant Forman also issued memoranda stressing the importance of using ruses in operations. These policies advocated the use of deception by ICE agents to gain entry into the homes of unsuspecting individuals.
92. Upon information and belief, Defendant Forman continued to authorize similar raids after becoming aware of concerns about the constitutionality of ICE agents’ conduct through press reports and internal investigations. Upon information and belief, Defendant Forman did not address lapses in training or otherwise change the instructions that agents under her supervision were expected to obey.
93. Defendant KUMAR KIBBLE (“Defendant Kibble”) is the Acting Director of the Office of Investigations for ICE in Washington, D.C., replacing Defendant Forman. He is responsible for overseeing the investigative arm of ICE and the supervision of sworn law enforcement officers assigned to the OI, including Special Agent-in-Charge (“SAC”) officers based in New York County, New York and operating in the downstate New York area, including Suffolk, Nassau and Westchester Counties. While Defendant Kibble was not the Acting Director of OI during the time of the raids at issue in the complaint, operations such as Community Shield are ongoing. There is no evidence of material changes since 2007 in ICE policy or
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implementation of policies regarding these types of operations. (See Exhibit 15.) Defendant Kibble is sued for injunctive relief in his official capacity.
94. Defendant CHRISTOPHER SHANAHAN (“Defendant Shanahan”) is the Field Office Director for the DRO field office based in New York County, New York. As noted above, this DRO field office had numerous problems regarding an overabundance of “difficult to remove” nationalities, such as African or Chinese aliens. Defendant Shanahan is responsible for managing enforcement activities of ICE in the downstate New York area, including Suffolk, Nassau and Westchester Counties, and implementing ICE policies throughout the New York area. Defendant Shanahan is sued individually and in his official capacity.
95. Upon information and belief, Defendant Shanahan was personally involved in and/or personally ordered, encouraged or authorized the conduct of ICE agents at the homes of the named Plaintiffs as complained of herein by enforcing increased quotas for apprehension without providing adequate resources. Defendant Shanahan intended to violate constitutional rights by, inter alia, implementing these ICE policies. Additionally, on March 8, 2007, Defendant Shanahan specifically requested, and later received a memorandum in preparation for a response to a New York Times article authored by Nina Bernstein that mentioned three raids conducted by the NYC Fugitive Operations Unit. Upon information and belief, Defendant Shanahan continued to authorize similar raids after becoming aware of concerns about the constitutionality of ICE agents’ conduct through press reports and internal investigations. Upon information and belief, Defendant Shanahan has not addressed lapses in training or otherwise changed the instructions that agents under his supervision are expected to obey.
96. Defendant PETER J. SMITH (“Defendant Smith”) is the Special Agent in Charge of the New York SAC office of Defendant ICE OI. SAC offices utilize various subordinate offices within their geographic region, including Resident Agent in Charge Offices (“RAC”), to
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enforce ICE policies. Defendant Smith implemented ICE policies throughout the New York area, and intended to violate constitutional rights by, inter alia, implementing ICE policies during raids on homes of one or more of the named Plaintiffs. The RAC office that conducted these raids did so with the approval and at the behest of Defendant Smith. Defendant Smith was in charge of ICE home raids conducted in Nassau County the week of September 24, 2007, and publicly espoused the view that warrants were not necessary because the targets of the raids were immigrants. Defendant Smith is sued individually and in his official capacity.
97. Defendant Smith was personally involved in the planning of Operation Surge during the week of September 24, 2007. Defendant Smith determined resources to be allocated by the SAC New York office, collaborated with DRO to enlist assistance for the raids, and attended and spoke at the briefing prior to the operation. Defendant Smith, working in conjunction with his subordinates, was also closely involved in crafting ICE’s response to the Nassau County allegations of ICE misconduct during Operation Surge. Defendant Smith personally met with New York State Congressman Peter King to defend ICE from the Nassau County officials’ accusations, despite not having conducted an adequate investigation into the matter.
98. Defendant JOSEPH A. PALMESE (“Defendant Palmese”) is the Resident Agent in Charge of the Bohemia, New York RAC office of Defendant ICE OI. Defendant Palmese implemented ICE policies throughout the New York area. Upon information and belief, Defendant Palmese was personally involved in and/or personally encouraged, ordered, authorized, or supervised the conduct of ICE agents in the Nassau County home raids the week of September 24, 2007. Defendant Palmese intended to violate constitutional rights by, inter alia, implementing ICE policies during these raids. As evidenced by the widespread abuses by agents under his immediate direction, Defendant Palmese provided inadequate training and/or nurtured
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an environment of impunity in which agents were expected to increase apprehensions through “collateral” arrests designed to boost apprehension statistics. Defendant Palmese is sued individually and in his official capacity.
99. Defendant Palmese had managerial oversight of the planning and execution of ICE home raids in Nassau County during the week of September 24, 2007. Defendant Palmese drafted and disseminated a tentative plan for the raids, coordinated the agents who would take part in the raids, and conducted the pre-operation briefing. At that briefing, Defendant Palmese led a general discussion regarding warrantless arrests, consent, and collateral arrests. Given the widespread nature of the Constitutional violations that occurred during these raids, Defendant Palmese failed to train adequately the ICE agents who participated in the raids. Defendant Palmese also met with New York State Congressman Peter King to defend ICE from the Nassau County officials’ accusations, despite not having conducted an adequate investigation into the matter.
100. DARREN WILLIAMS (“Defendant Williams”) is a Supervisory Detention and Deportation Officer with the New York City Fugitive Operations Team of ICE, in the New York City DRO field office. In that role, Defendant Williams delegated assignments, reviewed reports on planned and completed operations, and provided guidance to agents regarding numerous operational and investigative procedures. Defendant Williams implemented ICE policies throughout the New York area. Upon information and belief, Defendant Williams was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar and Nelly Amaya. Defendant Williams intended to violate constitutional rights by, inter alia, implementing ICE policies during these raids. Defendant Williams is sued individually and in his official capacity.
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101. Defendant Williams was involved in numerous aspects of the planning of the ICE raids on homes of one or more of the named Plaintiffs, including the selection of agents for each raid. As noted in the operational plans, Defendant Williams was an operational supervisor and member of the command center for raids conducted by the New York City DRO field office pursuant to Operation Return to Sender and Operation Cross Check. Defendant Williams also coordinated with the RAC NY office to provide Fugitive Operations team members to assist in the raids during the week of September 24, 2007. Defendant Williams has not addressed lapses in training or otherwise changed the instructions that agents under his supervision are expected to obey.
102. Defendant JEFFREY KNOPF (“Defendant Knopf”) is a Group Supervisor in the New York SAC Office of ICE Office of Investigations, but worked out of the RAC office in Bohemia, New York. Defendant Knopf implemented ICE policies throughout Nassau and Suffolk Counties on Long Island, New York. Defendant Knopf is sued individually and in his official capacity.
103. Defendant Knopf was involved in multiple aspects of the ICE raids on the homes of one or more of the named Plaintiffs, and is listed as the “ICE Supervisor” on the Enforcement Operation Plan for the ICE Operations that took place in Nassau and Suffolk County during the week of September 24, 2007. Defendant Knopf intended to violate constitutional rights by, inter alia, implementing ICE policies during these raids. Defendant Knopf also attended and spoke at a briefing prior to these ICE operations, where he directed the ICE agents on issues relating to the warrantless apprehension of undocumented aliens and home entries. Given the widespread nature of the constitutional violations that occurred during these raids, Defendant Knopf failed to adequately train the ICE agents who participated in the raids.
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104. Upon information and belief, Defendant ICE 1 (“Defendant ICE 1”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 1 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, Juan Mijangos, David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 1 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 1 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 1, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 1 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. ICE 1 was an operational supervisor and member of the command center for raids conducted by the New York City DRO field office pursuant to Operation Return to Sender and Operation Cross Check, and was an ICE point of contact with local police departments. Defendant ICE 1 is sued individually and in his/her official capacity.
105. Upon information and belief, Defendant ICE 2 (“Defendant ICE 2”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 2 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika
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Gabriela Garcia-Leon, Carson Aguilar and Nelly Amaya. Through his/her actions, as set forth herein, ICE 2 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 2 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 2, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 2 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. ICE 2 also played a critical role in the process of operational plans being approved by DRO headquarters. Defendant ICE 2 is sued individually and in his/her official capacity.
106. Upon information and belief, Defendant ICE 3 (“Defendant ICE 3”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 3 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio and Juan Jose Mijangos. Through his/her actions, as set forth herein, ICE 3 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 3 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. As a team leader, ICE 3 was responsible for leading his/her team at all times during each raid. Upon information and belief, ICE 3’s
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responsibilities as a team leader included, inter alia: assigning team members tasks for each raid, providing team members with background information regarding each residence prior to the raid, ensuring that consent to enter each residence was obtained, and making any necessary decisions on behalf of his/her team. ICE 3, as a team leader and coordinator of other ICE agents, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 3 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Through coordination with other law enforcement agencies, ICE 3 selected raid targets and locations based in part on the number of expected collateral arrests. Defendant ICE 3 is sued individually and in his/her official capacity.
107. Upon information and belief, Defendant ICE 4 (“Defendant ICE 4”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 4 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio and Juan Jose Mijangos. Through his/her actions, as set forth herein, ICE 4 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 4 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 4, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and
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unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 4 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 4 is sued individually and in his/her official capacity.
108. Upon information and belief, Defendant ICE 5 (“Defendant ICE 5”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 5 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar and Nelly Amaya. Through his/her actions, as set forth herein, ICE 5 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 5 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 5, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 5 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 5 is sued individually and in his/her official capacity.
109. Upon information and belief, Defendant ICE 6 (“Defendant ICE 6”) is a federal law enforcement agent and/or deportation officer employed by Defendant ICE. Upon information
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and belief, Defendant ICE 6 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 6 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 6 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 6, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 6 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 6 is sued individually and in his/her official capacity.
110. Upon information and belief, Defendant ICE 7 (“Defendant ICE 7”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 7 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Moralez, Yoni Revolorio and Juan Jose Mijangos. Through his/her actions, as set forth herein, ICE 7 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 7 attended a pre-raid briefing where policies and procedures
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were outlined regarding the raids on Plaintiffs’ homes. ICE 7, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 7 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 7 is sued individually and in his/her official capacity.
111. Upon information and belief, Defendant ICE 8 (“Defendant ICE 8”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 8 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, Juan Jose Mijangos, David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 8 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 8 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 8, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 8 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the
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homes. ICE 8 provided information on raid targets and also coordinated the logistics of operations he/she was involved in. Defendant ICE 8 is sued individually and in his/her official capacity.
112. Upon information and belief, Defendant ICE 9 (“Defendant ICE 9”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 9 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio and Juan Jose Mijangos. Through his/her actions, as set forth herein, ICE 9 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 9 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 9, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 9 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 9 is sued individually and in his/her official capacity.
113. Upon information and belief, Defendant ICE 10 (“Defendant ICE 10”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 10 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio and Juan Jose Mijangos. Through his/her actions, as set forth
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herein, ICE 10 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 10 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 10, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 10 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 10 is sued individually and in his/her official capacity.
114. Upon information and belief, Defendant ICE 11 (“Defendant ICE 11”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 11 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, Juan Jose Mijangos, David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 11 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 11 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 11, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and
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belief, ICE 11 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 11 is sued individually and in his/her official capacity.
115. Upon information and belief, Defendant ICE 12 (“Defendant ICE 12”) is a federal law enforcement agent and/or examining officer employed by Defendant ICE. Upon information and belief, Defendant ICE 12 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 12 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 12 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 12, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 12 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. ICE 12 was an operational supervisor and member of the command center for raids conducted by the New York City DRO field office pursuant to Operation Return to Sender. ICE 12 also coordinated the DRO response to accusations of misconduct at 165 Main Street, Mt. Kisco, New York. Defendant ICE 12 is sued individually and in his/her official capacity.
116. Upon information and belief, Defendant ICE 13 (“Defendant ICE 13”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant
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ICE 13 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 13 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 13 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 13, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 13 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 13 is sued individually and in his/her official capacity.
117. Upon information and belief, Defendant ICE 14 (“Defendant ICE 14”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 14 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 14 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 14 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 14, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited
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proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 14 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 14 is sued individually and in his/her official capacity.
118. Upon information and belief, Defendant ICE 15 (“Defendant ICE 15”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 15 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 15 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 15 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. As a team leader, ICE 15 was responsible for leading his/her team at all times during each raid. Upon information and belief, ICE 15’s responsibilities as a team leader included, inter alia: assigning team members tasks for each raid, providing team members with background information regarding each residence prior to the raid, ensuring that consent to enter each residence was obtained, and making any necessary decisions on behalf of his/her team. ICE 15, as a team leader and coordinator of other ICE agents, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 15 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. ICE 15 also led pre-raid briefings attended by both ICE and local law enforcement.
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Through coordination with other law enforcement agencies, ICE 15 selected raid targets and locations based in part on the number of expected collateral arrests. Defendant ICE 15 is sued individually and in his/her official capacity.
119. Upon information and belief, Defendant ICE 16 (“Defendant ICE 16”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 16 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs David Lazaro Perez, William Lazaro and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 16 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 16 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 16, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 16 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 16 is sued individually and in his/her official capacity.
120. Upon information and belief, Defendant ICE 17 (“Defendant ICE 17”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 17 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs David Lazaro Perez, William Lazaro, and Tarcis Sapon-Diaz. Through his/her actions, as set forth herein, ICE 17 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the
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constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 17 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 17, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 17 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 17 is sued individually and in his/her official capacity.
121. Upon information and belief, Defendant ICE 18 (“Defendant ICE 18”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 18 was personally involved in the ICE raids on the homes of Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez and Yanet Martinez. Through his/her actions, as set forth herein, ICE 18 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 18 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. As a team leader, ICE 18 was responsible for leading his/her team at all times during each raid. Upon information and belief, ICE 18’s responsibilities as a team leader included, inter alia: assigning team members tasks for each raid, providing team members with background information regarding each residence prior to the raid, ensuring that consent to enter each residence was obtained, and making any necessary decisions on behalf of his/her team. ICE 18, as a team leader and coordinator of other ICE agents, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their
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Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 18 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. ICE 18 was informed of the outdated nature of target addresses, yet elected to still lead his/her team of agents on these raids despite this failure of intelligence. ICE 18 is sued individually and in his/her official capacity.
122. Upon information and belief, Defendant ICE 19 (“Defendant ICE 19”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 19 was personally involved in the ICE raids on the homes of Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez and Yanet Martinez. Through his/her actions, as set forth herein, ICE 19 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 19 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 19, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 19 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 19 is sued individually and in his/her official capacity.
123. Upon information and belief, Defendant ICE 20 (“Defendant ICE 20”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 20 was personally involved in the ICE raids on the homes of one or more of the named
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Plaintiffs, including the homes of Plaintiffs Sonia Bonilla, Beatriz Velasquez, and Dalia Velasquez. Through his/her actions, as set forth herein, ICE 20 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 20 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 20, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 20 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 20 is sued individually and in his/her official capacity.
124. Upon information and belief, Defendant ICE 21 (“Defendant ICE 21”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 21 was personally involved in the ICE raids on the homes of Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez and Yanet Martinez. Through his/her actions, as set forth herein, ICE 21 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 21 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 21, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 21 and the other Defendants
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selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 21 is sued individually and in his/her official capacity.
125. Upon information and belief, Defendant ICE 22 (“Defendant ICE 22”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 22 was personally involved in the ICE raids on the homes of Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez and Yanet Martinez. Through his/her actions, as set forth herein, ICE 22 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 22 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 22, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 22 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 22 is sued individually and in his/her official capacity.
126. Upon information and belief, Defendant ICE 23 (“Defendant ICE 23”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 23 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Sonia Bonilla, Beatriz Velasquez and Dalia Velasquez. Through his/her actions, as set forth herein, ICE 23 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights
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of Latino persons in New York City and the surrounding suburban area. ICE 23 attended a preraid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 23, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 23 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 23 is sued individually and in his/her official capacity.
127. Upon information and belief, Defendant ICE 24 (“Defendant ICE 24”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 24 was personally involved in the ICE raids on the homes of Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez and Yanet Martinez. Through his/her actions, as set forth herein, ICE 24 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 24 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 24, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 24 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 24 is sued individually and in his/her official capacity.
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128. Upon information and belief, Defendant ICE 25 (“Defendant ICE 25”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 25 was personally involved in the ICE raids on the homes of Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez and Yanet Martinez. Through his/her actions, as set forth herein, ICE 25 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 25 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 25, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 25 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 25 is sued individually and in his/her official capacity.
129. Upon information and belief, Defendant ICE 26 (“Defendant ICE 26”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 26 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Sonia Bonilla, Beatriz Velasquez and Dalia Velasquez. Through his/her actions, as set forth herein, ICE 26 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 26 attended a preraid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 26, in conjunction with others, unlawfully entered, searched, and seized the homes of
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Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 26 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 26 is sued individually and in his/her official capacity.
130. Upon information and belief, Defendant ICE 27 (“Defendant ICE 27”) is a federal law enforcement agent employed by Defendant ICE. ICE 27 is listed as the “Case Agent” on the Enforcement Operation Plan for the ICE Operations that took place in Nassau and Suffolk Counties during the week of September 24, 2007 and was intimately involved in the planning and organization of those operations. As the Case Agent, ICE 27 was responsible for implementing ICE policies during these operations throughout the Long Island, NY area. Defendant ICE 27 intended to violate constitutional rights by, inter alia, implementing ICE policies during these raids.
131. In his/her capacity as Case Agent, ICE 27 helped conduct the briefing of the team leaders and others that was held just prior to beginning the operations. Also, prior to the operations, ICE 27 participated in a series of meetings with Defendants Palmese, Knopf, ICE 58, and ICE 59, during which those Defendants engaged in planning of the operations. As demonstrated by the widespread nature of the Constitutional violations that occurred during these raids, as the Case Agent, ICE 27 failed to adequately train agents scheduled to participate in the raids. ICE 27 also failed to properly share information, including target lists, with local law enforcement agencies. In preparation for the raids, ICE 27 was involved in selecting the team leaders and in the organization of ICE agents into teams and, upon information and belief, in the preparation of the outdated and inaccurate address lists used during the raids. Upon information
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and belief, ICE 27 and the other Defendants selected the residences and individuals targeted for immigration raids because Latinos were believed to reside at the homes.
132. Upon information and belief, Defendant ICE 27 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 27 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. As a team leader, ICE 27 was responsible for leading his/her team at all times during each raid. Upon information and belief, ICE 27’s responsibilities as a team leader included, inter alia: assigning team members tasks for each raid, providing team members with background information regarding each residence prior to the raid, ensuring that consent to enter each residence was obtained, and making any necessary decisions on behalf of his/her team. ICE 27, as a team leader and coordinator of other ICE agents, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Defendant ICE 27 is sued individually and in his/her official capacity.
133. Upon information and belief, Defendant ICE 28 (“Defendant ICE 28”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 28 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 28 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the
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constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 28 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 28, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 28 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 28 is sued individually and in his/her official capacity.
134. Upon information and belief, Defendant ICE 29 (“Defendant ICE 29”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 29 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 29 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 29 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 29, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 29 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 29 is sued individually and in his/her official capacity.
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135. Upon information and belief, Defendant ICE 30 (“Defendant ICE 30”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 30 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Elder Bonilla and Diana Rodriguez. Through his/her actions, as set forth herein, ICE 30 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 30 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 30, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 30 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 30 is sued individually and in his/her official capacity.
136. Upon information and belief, Defendant ICE 31 (“Defendant ICE 31”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 31 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 31 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 31 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 31, in conjunction with others, unlawfully entered, searched, and seized
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the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 31 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 31 is sued individually and in his/her official capacity.
137. Upon information and belief, Defendant ICE 32 (“Defendant ICE 32”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 32 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 32 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 32 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 32, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 32 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 32 is sued individually and in his/her official capacity.
138. Upon information and belief, Defendant ICE 33 (“Defendant ICE 33”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 33 was personally involved in the ICE raids on the homes of one or more of the named
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Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 33 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 33 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 33, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 33 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 33 is sued individually and in his/her official capacity.
139. Upon information and belief, Defendant ICE 34 (“Defendant ICE 34”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 34 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Elder Bonilla and Diana Rodriguez. Through his/her actions, as set forth herein, ICE 34 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 34 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 34, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 34 and the other
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Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 34 is sued individually and in his/her official capacity.
140. Upon information and belief, Defendant ICE 35 (“Defendant ICE 35”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 35 was personally involved in the ICE raids on the home of Yanet Martinez. Through his/her actions, as set forth herein, ICE 35 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 35 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 35, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 35 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 35 is sued individually and in his/her official capacity.
141. Upon information and belief, Defendant ICE 36 (“Defendant ICE 36”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 36 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 36 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 36 attended a pre-raid briefing where
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policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 36, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 36] and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 36 is sued individually and in his/her official capacity.
142. Upon information and belief, Defendant ICE 37 (“Defendant ICE 37”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 37 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 37 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 37 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 37, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 37 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 37 is sued individually and in his/her official capacity.
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143. Upon information and belief, Defendant ICE 38 (“Defendant ICE 38”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 38 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs. Through his/her actions, as set forth herein, ICE 38 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 38 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 38, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 38 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 38 is sued individually and in his/her official capacity.
144. Upon information and belief, Defendant ICE 39 (“Defendant ICE 39”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 39 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 39 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 39 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. As a team leader, ICE 39 was responsible for leading his/her team at all times during each raid. Upon information and belief, ICE 39’s responsibilities
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as a team leader included, inter alia: assigning team members tasks for each raid, providing team members with background information regarding each residence prior to the raid, ensuring that consent to enter each residence was obtained, and making any necessary decisions on behalf of his/her team. ICE 39, as a team leader and coordinator of other ICE agents, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 39 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 39 is sued individually and in his/her official capacity.
145. Upon information and belief, Defendant ICE 40 (“Defendant ICE 40”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 40 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 40 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 40 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 40, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 40 and the other Defendants selected the residences and
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individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 40 is sued individually and in his/her official capacity.
146. Upon information and belief, Defendant ICE 41 (“Defendant ICE 41”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 41 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 41 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 41 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 41, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 41 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 41 is sued individually and in his/her official capacity.
147. Upon information and belief, Defendant ICE 42 (“Defendant ICE 42”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 42 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Sonia Bonilla, Beatriz Velasquez and Dalia Velasquez. Through his/her actions, as set forth herein, ICE 42 engaged in a pattern and practice of
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conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 42 attended a preraid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 42, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 42 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 42 is sued individually and in his/her official capacity.
148. Upon information and belief, Defendant ICE 43 (“Defendant ICE 43”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 43 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Elder Bonilla and Diana Rodriguez. Through his/her actions, as set forth herein, ICE 43 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 43 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 43, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 43 and the other Defendants selected the residences and individuals targeted in these home raids for immigration
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enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 43 is sued individually and in his/her official capacity.
149. Upon information and belief, Defendant ICE 44 (“Defendant ICE 44”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 44 was personally involved in the ICE raids on the homes of Yanet Martinez. Through his/her actions, as set forth herein, ICE 44 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 44 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 44, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 44 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 44 is sued individually and in his/her official capacity.
150. Upon information and belief, Defendant ICE 45 (“Defendant ICE 45”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 45 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 45 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 45 attended a pre-raid briefing where policies and procedures were outlined
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regarding the raids on Plaintiffs’ homes. ICE 45, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 45 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 45 is sued individually and in his/her official capacity.
151. Upon information and belief, Defendant ICE 46 (“Defendant ICE 46”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 46 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 46 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 46 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 46, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 46 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 46 is sued individually and in his/her official capacity.
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152. Upon information and belief, Defendant ICE 47 (“Defendant ICE 47”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 47 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 47 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 47 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 47, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 47 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 47 is sued individually and in his/her official capacity.
153. Upon information and belief, Defendant ICE 48 (“Defendant ICE 48”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 48 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 48 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 48 attended a pre-raid briefing where policies and procedures were outlined
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regarding the raids on Plaintiffs’ homes. ICE 48, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 48 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 48 is sued individually and in his/her official capacity.
154. Upon information and belief, Defendant ICE 49 (“Defendant ICE 49”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 49 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 49 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 49 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 49, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 49 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 49 is sued individually and in his/her official capacity.
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155. Upon information and belief, Defendant ICE 50 (“Defendant ICE 50”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 50 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 50 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 50 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 50, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 50 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 50 is sued individually and in his/her official capacity.
156. Upon information and belief, Defendant ICE 51 (“Defendant ICE 51”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 51 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 51 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 51 attended a pre-raid briefing where policies and procedures were outlined
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regarding the raids on Plaintiffs’ homes. ICE 51, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 51 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 51 is sued individually and in his/her official capacity.
157. Upon information and belief, Defendant ICE 52 (“Defendant ICE 52”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 52 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 52 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 52 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 52, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 52 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 52 is sued individually and in his/her official capacity.
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158. Upon information and belief, Defendant ICE 53 (“Defendant ICE 53”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 53 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Elder Bonilla and Diana Rodriguez. Through his/her actions, as set forth herein, ICE 53 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 53 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 53, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 53 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 53 is sued individually and in his/her official capacity.
159. Upon information and belief, Defendant ICE 54 (“Defendant ICE 54”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 54 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 54 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 54 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 54, in conjunction with others, unlawfully entered, searched, and seized
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the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 54 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 54 is sued individually and in his/her official capacity.
160. Upon information and belief, Defendant ICE 55 (“Defendant ICE 55”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 55 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the homes of Plaintiffs Elder Bonilla, Diana Rodriguez, Raul Amaya and Gloria Vanessa Amaya. Through his/her actions, as set forth herein, ICE 55 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 55 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 55, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 55 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 55 is sued individually and in his/her official capacity.
161. Upon information and belief, Defendant ICE 56 (“Defendant ICE 56”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 56 was personally involved in the ICE raids on the homes of one or more of the named
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Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 56 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 56 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 56, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 56 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 56 is sued individually and in his/her official capacity.
162. Upon information and belief, Defendant ICE 57 (“Defendant ICE 57”) is a federal law enforcement agent employed by Defendant ICE. Upon information and belief, Defendant ICE 57 was personally involved in the ICE raids on the homes of one or more of the named Plaintiffs, including the home of Plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez and Bryan Jimenez. Through his/her actions, as set forth herein, ICE 57 engaged in a pattern and practice of conducting home raids in a manner that did, and was intended to, violate the constitutional rights of Latino persons in New York City and the surrounding suburban area. ICE 57 attended a pre-raid briefing where policies and procedures were outlined regarding the raids on Plaintiffs’ homes. ICE 57, in conjunction with others, unlawfully entered, searched, and seized the homes of Plaintiffs and other Latino persons and unlawfully seized and detained them within their homes based upon nothing more than their Latino appearance, inability
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to speak, or limited proficiency in, English, accent, and/or other impermissible considerations. Upon information and belief, ICE 57 and the other Defendants selected the residences and individuals targeted in these home raids for immigration enforcement actions because Latinos were believed to reside at the homes. Defendant ICE 57 is sued individually and in his/her official capacity.
163. Upon information and belief, Defendant ICE 58 (“Defendant ICE 58”) is a federal law enforcement agent employed by Defendant ICE. Defendant ICE 58 implemented ICE policies throughout Nassau and Suffolk Counties on Long Island, New York. ICE 58 was personally involved in the planning and organization of the ICE operations conducted in Nassau and Suffolk Counties during the week of September 24, 2007. ICE 58 was in contact with local law enforcement agencies during the preparations for the operations and personally met with representatives of the Nassau County Police Department the week before the operations were scheduled to begin. ICE 58 participated in several planning meetings with Defendants Palmese, Knopf, ICE 27, and ICE 58. ICE 58 was also involved in the process of compiling and providing the information necessary for the operations to receive approval from senior ICE officials. Further, ICE 58 was personally involved in the selection of the purported targets for the operations. In addition to his/her involvement in the planning of the operations, ICE 58 participated directly in the operations as the team leader of a raid team. As a team leader, ICE 58 was responsible for leading his/her team at all times during each raid. Upon information and belief, ICE 58’s responsibilities as a team leader included, inter alia: assigning team members tasks for each raid, providing team members with background information regarding each residence prior to the raid, ensuring that consent to enter each residence was obtained, and making any necessary decisions on behalf of his/her team. ICE 58 intended to violate constitutional rights
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by, inter alia, implementing ICE policies during these raids. Defendant ICE 58 is sued individually and in his/her official capacity.
164. Upon information and belief, ICE 59 (“Defendant ICE 59”) is a Group Supervisor in the Bohemia, NY RAC office of Defendant ICE OI. Defendant ICE 59 implemented ICE policies throughout Nassau and Suffolk Counties on Long Island, New York. Upon information and belief, ICE 59 supervised several of the agents involved in the planning and organization of the ICE Operations conducted in Nassau and Suffolk Counties during the week of September 24, 2007. ICE 59 intended to violate constitutional rights by, inter alia, implementing ICE policies during these raids. ICE 59 was also personally involved in the planning of these operations. ICE 59 was present during a series of meetings with Defendants Palmese, Knopf, ICE 27, and ICE 58 during which these operations were planned. Further, ICE 59 was kept aware of the planning process for these operations at all times by communications from Defendants Palmese, Knopf, ICE 27, and ICE 58. Upon information and belief, ICE 59 was also involved in the generation and/or review of internal ICE reports tracking the arrests made during the September 2007 raids.
165. ICE 59 was also personally involved in the operations beginning on September 24, 2007. ICE 59 specifically was responsible for coordinating transportation and logistical details, ensuring the completion of necessary paperwork, and approving reports created in connection with the operations. In this capacity, ICE 59 spoke at the pre-operational briefing regarding logistical issues and the paperwork that would need to be completed in connection with the operations. As demonstrated by the widespread nature of the Constitutional violations that occurred during these raids, ICE 59 failed to adequately train the ICE agents who participated in the raids. Defendant ICE 59 is sued individually and in his/her official capacity.
166. Defendant UNITED STATES OF AMERICA is a sovereign nation and exists under the Constitution of the United States of America and the laws enacted by the United States
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Congress. ICE is, and at all times relevant to this lawsuit was, an agency of the Department of Homeland Security, which in turn is an agency organized and existing under the laws of the United States. Defendant United States of America was at all times relevant to this lawsuit the employer of all Defendants named in this action.
167. At all times relevant to the incidents complained of in this action, Defendants JOHN and JANE DOE ICE AGENTS were federal law enforcement agents employed by Defendant ICE.
168. Defendants John and Jane Doe ICE Agents are sued individually and in their official capacity.
169. The true names and total number of Defendants John and Jane Doe ICE Agents are unknown to Plaintiffs, and therefore, Plaintiffs sue these Defendants by such fictitious names.
170. Upon information and belief, each John and Jane Doe ICE Agent Defendant is responsible for the injuries and damages suffered by Plaintiffs caused by the acts alleged in this complaint.
171. Plaintiffs will amend their complaint to state the true names of Defendants John and Jane Doe ICE Agents after those names have been identified.
172. At all times relevant to the incidents complained of in this action, Defendants JOHN and JANE ROE ICE SUPERVISORS were federal law enforcement officials employed by Defendant ICE.
173. The true names and total number of Defendants John and Jane Roe ICE Supervisors are unknown to Plaintiffs, and therefore, Plaintiffs sue these Defendants by such fictitious names.
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174. Upon information and belief, each John and Jane Roe ICE Supervisor Defendant is responsible for the injuries and damages suffered by Plaintiffs caused by the acts alleged in this complaint. Defendants John and Jane Roe ICE Supervisors are sued in their individual capacities.
175. Plaintiffs will amend their complaint to state the true names of Defendants John and Jane Roe ICE Supervisors after those names have been identified.
176. In committing the acts alleged in this complaint, Defendants John and Jane Doe ICE Agents and John and Jane Roe ICE Supervisors were acting on behalf of Defendant ICE.
177. Further, upon information and belief, Defendants ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, and Defendants John and Jane Doe ICE Agents, were acting under the immediate supervision of Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 12, ICE 18, ICE 27, ICE 59, and John Roe and Jane Roe ICE Supervisors and pursuant to their authorization.
178. Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors knew or should have known that committing the acts alleged in this complaint violated Plaintiffs’ clearly established constitutional rights.
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FACTS Background on ICE 179. ICE is a division of the Department of Homeland Security and was formed in March 2003. ICE is comprised of four divisions. One of these divisions is the DRO, and another is the OI. The DRO has been running the National Fugitive Operations Program since February 2002. The goal of the National Fugitive Operations Program is to eliminate the backlog of fugitive aliens. 180. In August 2003, the DRO announced that it would step up its activities in locating and deporting fugitive aliens. 181. Since announcing its plan in 2003, ICE’s DRO has pursued its goal to increase the number of persons removed from this country. 182. As of January 2006, each Fugitive Operations Team was expected to arrest 1,000 fugitive aliens per year. By comparison, in 2003, each team was expected to make only 125 arrests. 183. However, ICE’s DRO has implemented neither a corresponding increase in training nor procedures sufficient to protect the rights of persons affected by their activities. Moreover, members of the Fugitive Operations Teams are permitted to take part in home raids without first completing whatever little training ICE provides on how to lawfully conduct such raids. 184. Furthermore, the DRO and Fugitive Operations Teams rely on a database that purports to contain relevant information concerning, among other things, the location of fugitive aliens. 185. Much of the information in this database, however, is outdated, inaccurate and incomplete.
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186. The OI is responsible for investigating issues related to national security. Agents and supervisors who work under the direction of the DRO have also participated in operations directed by the OI. Upon information and belief, OI operations also make use of some of the same databases and intelligence available to the DRO. Indeed, as outlined in a joint memorandum from the directors of DRO and OI, the two programs’ responsibilities routinely overlap, as neither area of responsibility is exclusive to either program.
187. Upon information and belief, ICE has procedural manuals that are used to provide guidance to the Fugitive Operations Teams and other agents in conducting apprehension operations, including but not limited to those conducted by the DRO and by OI.
188. Upon information and belief, these procedural manuals are inadequate and incomplete in that, among other things, they do not contain adequate specific instructions for determining how to obtain consent to enter a private home or how ICE agents are to conduct themselves within a private home.
189. The Inspector General has criticized ICE for its incomplete and inaccurate background information, understaffing, and incomplete and inadequate training. Specifically, in its report of March 2007, the Inspector General noted that:
(a) the DRO immigration database contained inaccurate and incomplete information on fugitive aliens;
(b) data exchanged between the DRO and its federal partners have not been reconciled on a regular basis to ensure the identity and background information on the fugitive alien is valid;
(c) Fugitive Operations Teams are not fully staffed; (d) headquarters and other locations that support Fugitive Operations Teams are not fully staffed;
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(e) not all Fugitive Operations Team members have completed the Fugitive Operations Training Program; and
(f) there is no national refresher course for those Fugitive Operations Team members who have attended the program. (See March 2007 Report of the Inspector General, attached hereto as Exhibit 16.)
The ICE Raid on the Leon/Aguilar Family Home 190. The Leon and Aguilar Plaintiffs are members of three generations of a Latino family. All are United States citizens. 191. On the morning of February 20, 2007, the Leon and Aguilar Plaintiffs were all asleep in the Leon/Aguilar family home. 192. Between about 4:30 and 5:00 a.m., several ICE agents pulled their unmarked cars onto the road outside the family home, blocking the driveway. 193. They parked their cars in such a way as to prevent any of the cars already in the driveway from exiting the driveway. 194. The ICE agents then repeatedly rang the doorbell and pounded on the front door of the Leon/Aguilar family home. 195. Elena Leon had been asleep and was startled awake by the noise of pounding and doorbell-ringing, and went to the door. 196. When she opened the door, Elena witnessed several uniformed men standing outside the door. 197. The men were wearing sidearms, which were clearly visible. 198. Elena was stunned and terrified. 199. The armed, uniformed men were ICE agents.
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200. As soon as Elena opened the door, two of the ICE agents crossed the threshold of the front door and entered the Leon/Aguilar family home.
201. The others quickly followed. 202. The ICE agents entered the Leon/Aguilar home without permission or voluntary consent. 203. None of the ICE agents told Elena that she had the right to refuse them permission to enter her home. 204. At no time did any of the ICE agents show Elena a warrant that granted permission for them to enter the Leon/Aguilar family home. 205. There were no exigent circumstances that may have permitted the ICE agents to enter the Leon/Aguilar family home without a valid judicial warrant or voluntary consent. 206. The ICE agents proceeded into the lower floor of the home, pounding on and opening bedroom doors. 207. When she heard the noise, Erika Gabriela Garcia-Leon (“Gabriela”) opened her bedroom door to see what was happening. Still in her nightclothes, and seeing men storming through the hallway, she slammed the door and leapt back into bed. The ICE agents opened the door. Gabriela was twelve years old at the time. 208. Andres Leon was also awakened and opened his door. He saw two agents entering the hallway from the basement door. It was apparent that the agents had been in the basement without permission. 209. At the same time, some of the agents entered the bedroom of Adriana Aguilar, where she was asleep with her son, Carson, who was four years old. 210. The ICE agents pulled the covers off of her bed and shone flashlights into her face and the face of her son, who began to cry.
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211. The ICE agents searched the Aguilar/Leon family home without the consent of the Leon or Aguilar families.
212. Startled awake, frightened and confused, Adriana repeatedly asked the ICE agents who they were and what they were doing. An ICE agent responded that only ICE was permitted to ask questions, and Adriana must answer them.
213. The ICE agents gathered Adriana, Andres and Gabriela in the office space on the ground floor of the house.
214. The ICE agents positioned themselves so that the exits leading out of the office area were blocked.
215. Adriana and Andres were not free to leave the office area. 216. The agents would not say who they were despite being asked to identify themselves. 217. The ICE agents would not permit Adriana to call the police or a lawyer. 218. When Adriana attempted to open a drawer to get the telephone number of a lawyer, the agents put their hands on their weapons. 219. One agent ordered her not to move. 220. Only after the ICE agents had Adriana in the office area did they indicate that they were looking for someone specific. They listed the names of several men for whom they were looking, including a man named “Wilson Garcia.” 221. Adriana thought they might have been referring to her first husband, whose name is Wilson Patricio Garcia, but who went by his middle name, “Patricio.” 222. Adriana had divorced him five years earlier in 2002.
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223. Adriana’s divorce from Wilson Patricio Garcia, her subsequent marriage to her current husband Norman Aguilar, and her purchase of the Aguilar/Leon family home together with Norman are all matters of public record easily available to ICE had they checked.
224. It was entirely unreasonable for the ICE agents to believe that they would find Wilson Patricio Garcia in the Leon/Aguilar family home at the time of the raid.
225. In the office area, the ICE agents questioned Andres, Adriana and Gabriela about Wilson Garcia.
226. While in the office area, Adriana asked the ICE agents to see a warrant. 227. One of the agents told her that they would show her the warrant. 228. However, the agents did not show her any warrant. 229. Andres also asked the ICE agents to see a warrant. 230. The ICE agents did not permit Andres to read a warrant. 231. Instead, one of the ICE agents opened and then quickly closed a manila folder containing papers that the ICE agents claimed was a warrant. 232. The quick display of the contents of the folder did not allow Andres to confirm the existence of a warrant or the opportunity to read any of the contents. 233. Upon information and belief, the ICE agents did not have a warrant that permitted them to enter or search the Leon/Aguilar family home or to detain the Leon/Aguilar family without voluntary consent or exigent circumstances. 234. A Freedom of Information Act request seeking a copy of any such warrant was made to ICE in early July 2007. 235. To date, ICE has not produced a copy of any such warrant.
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236. As the ICE agents were leaving the office area, Adriana asked one of the agents in Spanish where the warrant was. In English, he indicated to one of his colleagues that she was asking for the warrant.
237. The ICE agents never provided any member of the Leon or Aguilar families with a copy of a warrant.
238. On the way out of the office area, one of the ICE agents, turned to twelve-yearold Gabriela and said that they would be back. Adriana Aguilar and Andres Leon heard the agent say this clearly, in English.
239. Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, and Carson Aguilar were not the targets of the raid.
240. The only occupant asked for identification was Andres. 241. Upon information and belief, the ICE agents involved in this raid included Defendants Williams, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7 and ICE 8.
The ICE Raid on the Amaya Household 242. At the time of the raid, Nelly Amaya rented a basement apartment at 20 Boatsteerers Court in East Hampton, Suffolk County, New York. The apartment has three bedrooms. She had been living in this apartment since 2006. 243. At the time of the raid (described herein), Nelly shared this apartment with her exhusband, Giovany Vicuña, her father, Antonio Amaya, and her brother-in-law, Marlon Vicuña. 244. On the morning of February 20, 2007, the residents of the Amaya household were all asleep. 245. Between about 4:00 and 5:00 a.m., several ICE agents forcibly entered the Amaya household by pushing the entry door open and kicking open the bedroom doors.
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246. The ICE agents entered Nelly’s home without permission or voluntary consent from her or any other member of her household.
247. The ICE agents did not explain to any member of the family that they had the right to refuse them permission to enter her home.
248. Nelly was sleeping and was awakened by the agents screaming the name of her brother-in-law, Marlon Vicuña as they entered her apartment.
249. Nelly saw several uniformed men blocking her bedroom door. 250. The men were wearing sidearms, which were clearly visible. One agent had bullets strapped across his chest. 251. The men shone a flashlight in Nelly’s eyes while at the bedroom door. 252. The ICE agents then entered her bedroom. 253. Nelly was wearing only a t-shirt and underwear when the men entered her bedroom. 254. Immediately after crossing the threshold of Nelly’s bedroom, the two ICE agents began questioning her and repeatedly asked for Marlon Vicuña. Nelly asked who they were but they did not identify themselves. 255. Nelly was ordered to go to the living room. 256. Nelly threw on pajama pants and a sweatshirt before being pulled by her arm into the living room. After being pulled into the living room, she asked permission to use the bathroom and was not allowed to do so privately. 257. When Nelly attempted to go to the bathroom to use the toilet, the ICE agents refused to let her close the door. 258. Nelly asked the agents for a warrant, but the agents refused to show her any warrant.
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259. After she requested to see a warrant, one of the ICE agents asked Nelly her name. 260. Nelly responded, “Nelly Amaya.” 261. The ICE agent started laughing and said, “Nelly Amaya, this is your arrest order. You are under arrest.” 262. At no time did any of the ICE agents show Nelly a warrant that granted permission for them to enter or search her home or to arrest her. 263. There were no exigent circumstances that may have permitted the ICE agents to enter Nelly’s home without a valid warrant or voluntary consent. 264. The ICE agents searched the Amaya family home without permission or consent from the Amaya family. 265. The ICE agents did not say who they were. 266. One of the ICE agents put Nelly against the wall to frisk her. 267. The ICE agent twisted Nelly’s arm behind her. 268. Nelly’s arm was already injured before the raid. During her waking hours, Nelly wore a sling, which was next to her bed when the ICE agents stormed into her bedroom. 269. The agent’s actions exacerbated Nelly’s injuries. 270. The ICE agents arrested, handcuffed and detained Nelly. 271. The handcuffs caused Nelly’s arm to swell and turn purple. 272. Nelly was then transported to the Wainscott police station where the ICE agents changed their clothes. 273. During the car ride, Nelly suffered an asthma attack. 274. The ICE agents called an ambulance while at the Wainscott police station. An emergency medical services worker took Nelly’s pulse but did not give her any treatment, and did not even look at her swollen arm.
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275. Nelly was then transported from the Wainscott police station to 26 Federal Plaza in Manhattan.
276. At 26 Federal Plaza, Nelly was fingerprinted and questioned by an officer. 277. A male officer, whom Nelly believed to be a supervisor, asked, “Why did they take you in? You have a clean record.” 278. During the course of questioning the female officer also said, “You shouldn’t have asked for a warrant.” 279. While under detention, Nelly was having difficulty breathing because of her asthma. She was also still in pain from the damage to her arm. 280. She told the ICE agents on duty that she felt congested because of her asthma. 281. Approximately 10 hours after initially detaining Nelly and without providing her any medical treatment for her asthma or her injured arm, the ICE agents released her. 282. Nelly was left to find transportation home on her own. She was dressed in her nightclothes and had no money or even a coat to keep her warm as she tried to hail a cab in the February cold. After more than an hour without success, Nelly finally was able to convince a cabdriver to take her to Queens, where a friend of hers paid the fare. 283. Nelly suffered a great deal of physical and psychological pain and discomfort and humiliation as a result of the raid, arrest and detention. 284. Nelly Amaya was not the target of the raid. 285. Upon information and belief, the ICE agents involved in this raid included Defendants Williams, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7 and ICE 8.
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The ICE Raid at 417 East Avenue, Riverhead, NY 286. At the time of the raid, Mario Patzan DeLeon rented a room on the second floor of a house at 417 East Avenue in Riverhead, Suffolk County, New York. The door to his room had a lock and a private key. 287. At the time of the raid, Gonzalo Escalante rented a room on the first floor at 417 East Avenue, which he shared with Victor Pineda Morales. The room had a private lock and key. At the time of the raid, Juan Jose Mijangos was also renting a room with its own lock and key on the first floor of the house. 288. Yoni Revolorio also rents a private room at 417 East Avenue with a private lock and key. At the time of the raid, he lived on the second floor of the house. 289. On April 18, 2007, between about 3:00 and 4:30 in the morning, Mario was awakened to the sound of shouts and loud banging. He ran into the hallway and looked out the window, where he saw several cars outside. Large lights were shining into the house. 290. Mario went back into his bedroom and locked the door. 291. Gonzalo, Victor and Juan Jose were also awakened by the pounding and shouting at the front door. Soon they heard noise coming from the kitchen on the first floor. Men were ordering them to come out of their rooms, which they did. They went into the kitchen, where several agents had gathered. It appeared that agents had forced themselves through the back door, which had a less secure lock than the front door. 292. In the kitchen, an agent grabbed Juan Jose by the neck, pushed him, and handcuffed him. Gonzalo and Victor were also handcuffed, as were others who were taken out of their rooms. 293. Agents knocked on the door of the second-floor bedroom of Yoni. They said they were police and grabbed the door. An agent put his foot in front of the door and then entered
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Yoni's room. Once inside Yoni's room, the agent grabbed Yoni by his upper arm and told him to get dressed, come downstairs and talk in the kitchen. Yoni was handcuffed and then led downstairs.
294. From his bedroom on the second floor, Mario could hear the shouting and loud banging and ramming against the outside doors. After some time, Mario heard and felt men screaming and pounding against his bedroom door.
295. Two men with uniforms who indicated that they were ICE burst into his room and ordered Mario against the wall to search him. They took Mario’s wallet. Then they told him to go down to the kitchen because they wanted to speak with him.
296. In the kitchen, the residents of the house who were not already placed in handcuffs were handcuffed. At no point were they shown a warrant or court order permitting the ICE agents to enter the house without consent. The men were led outside to waiting vehicles.
297. The group of cars continued to four or five more houses to conduct additional raids. From the vans, all of the men could hear similar banging and shouting at one or more of these houses.
298. After the raids, the ICE agents stopped in a parking lot. While the men they had picked up remained in the car, the ICE agents had some coffee and some breakfast.
299. Mario asked an officer if he could use the bathroom. He was placed in chains and told to relieve himself outdoors, while the agents observed. Mario remained in chains for the rest of the journey.
300. After several hours, the cars arrived at 26 Federal Plaza in Manhattan. The men were taken inside the building to be interrogated. About 25 men were placed in a locked room to wait while each individual was questioned, one by one.
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301. Mario, Yoni, Juan Jose, Victor and Gonzalo were released several hours later, in the evening. Most of the men had no money to return home. Some of the men had managed to keep some cash with them, and they lent the others money to take the train home to Riverhead. They did not reach their home until about one o’clock in the morning of April 19, 2007.
302. Once home, the men observed that the front door of the house was dented and damaged from the ramming by the agents, and that one of the double locks on the front door had been pounded so hard that it left a large hole in the plaster of the doorframe. It seemed that the agents had not succeeded in opening the front door and instead had rammed through the back door, which did not have a double lock. The front door remains damaged.
303. Upstairs, in Mario’s bedroom, Mario observed that the wooden doorframe around his door had come loose from the pounding by the agents. He repaired the doorframe himself.
304. Mario, Gonzalo, Victor, Juan Jose and Yoni remain frightened and traumatized by the raid. They fear that agents will return at any time to terrorize them again.
305. Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Juan Jose Mijangos were not the targets of the raid.
306. Upon information and belief, the ICE agents involved in this raid included Defendants ICE 1, ICE 3, ICE 4, ICE 7, ICE 8, ICE 9, ICE 10 and ICE 11.
The ICE Raid at 165 Main Street, Mount Kisco, NY 307. At the time of the raid (described below), David Lazaro Perez and William Lazaro rented a room in an apartment on the third floor of a building at 165 Main Street in Mount Kisco, Westchester County, New York. The door to the room has a lock with a private key. At the time of the raid, they shared this room with William’s father.
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308. Tarcis Sapon-Diaz also rents a room in an apartment at 165 Main Street. He shares the room, which is on the third floor, with his brother. The room has a private lock and key.
309. On March 19, 2007, at about 4:00 a.m., David, William, and Tarcis were awakened to the sound of loud pounding and knocking outside their building. Bright lights were shining into the building.
310. Tarcis looked out of the window of his room and saw seven or eight cars outside their building.
311. David and William heard knocking at the door of their room. They did not open their locked door. Three law enforcement agents, two men and one woman, forced open the door and burst into the room. The agents, a couple of whom were wearing jackets that read “ICE,” did not identify themselves.
312. The ICE agents did not say who they were looking for and did not show a warrant. Nonetheless, they asked the young men for their identification and then ordered them to get dressed. David and William heard other agents pounding on the doors elsewhere in the apartment and the building, and ordering the tenants to open the doors.
313. Tarcis heard loud pounding and knocking on his door. He and his brother did not open the door, but the pounding continued. Fearing that the door would be broken down, he at last opened the door. Men who he believed to be ICE agents and Mt. Kisco police officers burst into his room. They demanded identification and handcuffed him and his brother.
314. David, William, Tarcis and other tenants of the apartment building were led into the hallway. Those not already in handcuffs were handcuffed. William’s waist and legs were chained. The men were taken out of their home to waiting vans. They could see that several additional agents surrounded the building.
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315. While David, William, and Tarcis were in the hallway, an agent asked Mr. Gilberto Soto for identification. Mr. Soto gave a New York State identification card to the agent. The agent then asked Mr. Soto where he bought it.
316. After a stop at the Mount Kisco police station, David, William, Tarcis and the others were transported to 26 Federal Plaza, in Manhattan, where they were detained for several hours.
317. The ICE agents took the detainees’ belts and wallets. David’s wallet contained about seven hundred dollars in cash, and William’s contained about four hundred dollars in cash.
318. The men were taken to another building and detained in a room. After several hours, they were transported to a detention center in New Jersey, where they were jailed for two nights and David and William were injected with an unknown substance by federal employees. As noted above in paragraph 75, as late as June 12, 2008, ICE policies regarding the forced medication of detainees were continuing, and Defendant Chertoff was aware of these practices. On the afternoon of March 21, David, William, Tarcis and others were transported back to a building in Manhattan and released at about 11:00 at night. ICE did not return the men’s cash until several weeks after the raid. As a result, they were released from Department of Homeland Security custody without any cash to return home. David was lucky enough to have an ATM card, and he took out enough cash to get himself and the other released detainees home.
319. The men did not arrive home in Mount Kisco until about one o’clock in the morning of March 22, 2007. Walls and doors inside the building had been marked with signs of attempts at forcible entry and damaged in the course of the raid.
320. The men have remained fearful since the night of the raid. 321. The ICE agents had entered the apartment building and individual apartments and rooms without exigent circumstances, consent or a judicial warrant.
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322. David Lazaro Perez, William Lazaro, and Tarcis Sapon-Diaz were not the targets of the raid.
323. Upon information and belief, the ICE agents involved in this raid included Defendants ICE 1, ICE 6, ICE 8, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16 and ICE 17.
The ICE Raid at the Bonilla/Velasquez Home in Westbury, New York 324. Sonia Bonilla has been a resident of Westbury, New York, since 1992. Sonia lives at 710 Jefferson Street, in a house which she shares with her husband, Noe Velasquez, and her two daughters, Beatriz, who was twelve years old at the time of the raid, and Dalia, who was nine years old at the time of the raid. Sonia Bonilla and Noe Velasquez rent extra rooms in their house to tenants. 325. Sonia was born in El Salvador on March 3, 1976 and became a lawful permanent resident of the United States in 1992. Her children are U.S.-born citizens. 326. On Monday, September 24, 2007, Sonia awoke to drive her husband to work at the Westbury sanitation department. She and her husband left the house at about 5:45 a.m. Beatriz, who was twelve years old, and Dalia, who was nine years old, were asleep when Sonia left the house. 327. A few moments later, Beatriz was awakened by her sister Dalia. Dalia told Beatriz that police were at the house. Beatriz left her room in her pajamas to see who was at the door. Beatriz heard loud, violent knocking at the door. 328. ICE agents outside the door were shouting, “Police! Police!” Beatriz believes she heard them say, “Someone is dying upstairs.” She opened the door and saw three men and one woman standing outside the door. They did not tell her who they were. One was wearing a vest that said “police” in the front.
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329. The agents asked the little girl where her parents were. Beatriz told the agents her parents were away. ICE agents then maneuvered past Beatriz and entered the house without any invitation or consent to enter.
330. The family dog began to bark, and the agents ordered Beatriz and her sister to take the dog into their bedroom and stay there.
331. The girls could hear the agents storming through the house and bedrooms, shouting and knocking on doors of the family’s tenants. From their bedroom window, the girls could see more agents outside the house.
332. The infant of one of the tenants upstairs began to cry, and Beatriz overheard the tenant asking if he could leave the baby, who was four months old, with Beatriz and her sister. Instead agents detained the tenant and left the baby alone in the bedroom, crying.
333. At about five minutes after six, Sonia drove onto her street and saw several unmarked cars parked in front of her house and became alarmed. Sonia drove into the driveway and parked.
334. The girls could hear her mother’s van drive into the driveway. Beatriz and her sister started to scream, “Mommy! Mommy!”
335. Two men approached Sonia’s van and ordered her out. They refused to explain what was happening, instead taking her wallet and searching for her identification. One agent shone a light into her van and searched inside. They would not permit her to go inside her own home. Sonia could see that other agents were inside the house, and she was terrified for her children.
336. After a few minutes Sonia saw more agents coming out of the basement with two of her tenants. One was in handcuffs. When she entered her house, she saw that other tenants were in the living room, and four agents guarded the living room and hallway.
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337. Once finally inside her house, Sonia checked on her children. One of the agents, who had been attempting to open a locked closet in Sonia’s room, demanded a key to the closet. About four agents escorted her into her bedroom. Agents had already opened dresser drawers, and once inside the closet, searched through clothing and shoes.
338. The agents left at about 45 minutes later at about 6:30 .a.m. 339. At no point during the entire raid did any of the agents show Sonia or Beatriz a warrant of any kind or tell them who or what they were looking for. There was no search warrant, exigent circumstances, or valid, competent consent to enter the home. 340. Sonia Bonilla, her husband and her daughters live in daily fear that the ICE agents will return to the house, forcibly enter, and terrorize their family and tenants. 341. Sonia Bonilla, Beatriz Velasquez, and Dalia Velasquez were not the targets of the raid. 342. Upon information and belief, the ICE agents involved in this raid included Defendants ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26 and ICE 42.
The ICE Raid at the Bonilla/Rodriguez Home in Westbury, New York 343. Elder Bonilla is a lawful permanent resident of the United States who lived at 22 Dogwood Lane in Westbury, New York at the time of the raid. He lived with his girlfriend, Diana Rodriguez, and their two U.S. Citizen children, who were 15 months old and three months old at the time of the raid. They shared their home with several members of Diana’s family and a friend. 344. On Monday, September 24, 2007, the family was awakened by loud pounding and shouting outside the house. Elder went to the front door and saw through the window on the door that law enforcement agents were outside. They began to scream, in English, “Open the door!”
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345. Elder opened the door. Immediately, three agents burst in, and one of the agents pointed a gun at Elder’s chest. Elder was handcuffed and pushed toward the sofa in his living room. Men stormed into the house and began pounding and searching through bedrooms.
346. Upstairs, the agents handcuffed Diana and led her downstairs, leaving the children crying upstairs in their bedroom. They began handcuffing and detaining other adults in the living room, as well as Diana’s sixteen-year-old cousin. While agents kept watch in the living room, others searched upstairs, pounding on walls and breaking down the door of a storage closet.
347. Upstairs, the children continued to scream and cry. Downstairs, the men were being asked for identification.
348. Elder said he had his papers upstairs, and was escorted by agents upstairs. Once upstairs, neither he nor Diana were permitted to leave their bedroom.
349. ICE agents detained and took from the house four men, including a sixteen-yearold boy, Cesar Flores. They took Cesar with them into their custody despite the fact that his mother, Diana’s aunt, was in the home.
350. At no point did any agent show a warrant of any kind or even explain who or what they were looking for. There were no exigent circumstances that could have justified their entry, and they did not even attempt to obtain consent to enter or search.
351. Elder has not been able to sleep well or eat well since the raid. He and Diana live in constant fear that ICE agents will return to humiliate and brutalize their family.
352. Elder Bonilla and Diana Rodriguez were not the targets of the raid. 353. Upon information and belief, the ICE agents involved in this raid included Defendants ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 43, ICE 53, ICE 54, and ICE 55.
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The ICE Raid on the Amaya Home in Huntington Station, New York 354. Raul Amaya is a naturalized United States citizen. His wife, Gloria Vanessa, is a lawful conditional resident. They are both originally from El Salvador. They have resided in their ranch-style house at 58 East 6th Street, Huntington Station, Suffolk County since it was purchased in 2004. They have a two-year-old United States-born son. 355. On September 27, 2007, at about 7:30 a.m., about 10 to 15 ICE agents and local law enforcement officers surrounded Raul who was outside the house preparing his pick-up truck for work. The Amayas were each preparing to go to work. 356. At the time of the raid, the family lived in the first floor unit. The second floor had four tenants, each of whom had already left for work. The basement unit had one teenage occupant who was asleep. 357. The ICE agents yelled, made allegations and used profanities to intimidate the Amayas. ICE agents accused Raul of being “in trouble with the IRS,” “under arrest,” having no status, and, holding a suspended or invalid driver’s license. 358. Although Raul tried to show his identification, ICE agents put aside his wallet and refused to look at his documents. 359. ICE agents asked if he knew the whereabouts of a person named “Oscar.” Raul said he did not. 360. Without a judicial warrant or exigent circumstances, ICE agents proceeded to make entry into the house. 361. None of the agents identified themselves to Raul or Gloria Vanessa. 362. Gloria Vanessa came out of the house to investigate the loud commotion. As she stood outside the front door, she was interrogated by several ICE agents.
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363. An ICE agent showed Gloria Vanessa a paper with a photograph of the person they were seeking. She said she knew who he was. He was never a resident in the house.
364. One ICE agent slipped past her to enter the house. Other agents entered the house and she followed.
365. During the following ten to fifteen minutes inside the house, Gloria Vanessa was interrogated and observed ICE agents searching some of the rooms and closets and opening doors.
366. She saw ICE agents take one of her kitchen knives to attempt prying open a locked door.
367. She was ordered out of the house’s rear door into the backyard. 368. She witnessed ICE agents knocking and then attempting to kick open the basement unit which was occupied by a sleeping teenager. The teenager was questioned and released. 369. For over an hour and a half, ICE agents conducted a full search of the house, its rooms, beds, closets, and contents. 370. Raul and Gloria Vanessa were kept outside of the house while their son was left inside the bedroom. 371. As they were leaving, some ICE agents threatened to return later that day or in the following week. They said that Raul would be “in trouble” if he had lied to them. The Amayas were stricken with fear and anxiety. 372. Later, Raul decided to salvage his work day as a landscaper and drove his pick-up truck from his house. 373. While driving through nearby streets, he saw some ICE agents and parked vans. They were the same agents who had been at his home.
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374. He saw ICE agents chasing down a half dozen or more Latino men on foot near a local food store that served mainly Latino customers. The Latino men were running frantically in all directions.
375. Raul Amaya and Gloria Vanessa Amaya were not the targets of the raid. 376. Upon information and belief, the ICE agents involved in this raid included Defendants ICE 27, ICE 28, ICE 29, ICE 31, ICE 32, ICE 33, ICE 36, ICE 37, ICE 54, and ICE 55.
The Two ICE Raids on the De La Rosa-Delgado/Jimenez Home in Huntington Station, New York
377. Pelagia De La Rosa-Delgado is a naturalized United States citizen who was born in the Dominican Republic. She has resided at her home at 15 West 18th Street in Huntington Station, New York, since she purchased it in May 2003.
378. Pelagia lives with her husband, her three sons, Plaintiffs Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez, and her aunt and uncle. Pelagia also has a tenant, who lives downstairs. Pelagia’s sons are all United States-born citizens. Anthony holds two jobs. Christopher is a recent high school graduate and Bryan is a high school student.
379. ICE agents raided the family home twice within a thirteen-month period, both times in the early morning and without a judicial warrant or valid consent. In both instances, ICE purported to be looking for the same individual, a man named “Miguel” who was unknown to the family and who had not lived at the home since the family purchased it, if ever.
380. In approximately mid-to-late August, 2006, ICE agents pounded on the door of the De La Rosa-Delgado/Jimenez home before sunrise.
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381. Pelagia was awakened by loud banging and shouting at the front door. She rushed downstairs from her bedroom, still in her nightgown, as the pounding and shouting continued.
382. Pelagia had recently renovated her house and was afraid the agents would break down the door, so she opened the door. She saw several armed agents, dressed in boots and heavy jackets.
383. The ICE agents barged into Pelagia’s home without asking for permission and without obtaining voluntary consent from her or any other member of the household.
384. The ICE agents did not explain to Pelagia or any other member of the household that they had the right to refuse them permission to enter the home.
385. At no time did the ICE agents show Pelagia or any other member of the household a warrant that granted them permission to enter the De La Rosa-Delgado/Jimenez home.
386. There were no exigent circumstances that may have permitted the ICE agents to enter the De La Rosa-Delgado/Jimenez home without a valid judicial warrant or voluntary consent.
387. ICE agents were stationed around the perimeter of the home during the raid. 388. An ICE agent was stationed by the door to the home while the other ICE agents searched the residence. 389. The ICE agents told Pelagia to sit on her couch, and went throughout the home. They showed her a piece of paper with a copy of a small photograph affixed to it. The photograph was of a man she did not recognize. The agents stated they were looking for a man named “Miguel.” Pelagia does not remember the last name of the man the ICE agents were seeking.
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390. Pelagia told the ICE agents that no one named “Miguel” or fitting his description had ever lived at the home.
391. The ICE agents proceeded through the home, searching upstairs and downstairs. The agents woke up Bryan, who was thirteen years old at the time, and Pelagia’s aunt and uncle. All three were ordered out of their bedrooms into the living room, while the ICE agents demanded to know who else lived in the home.
392. Downstairs, Christopher, who was sixteen years old at the time, was doing laundry and unaware of what was happening on the ground floor. When he heard the ICE agents storming downstairs, he thought for a moment the family was being robbed. After the agents appeared, they questioned him and kept him in the laundry room during the raid, away from his mother.
393. After searching the home, the ICE agents eventually left without explaining their mistake or apologizing to the family. The family was scared and humiliated.
394. Thirteen months later, ICE agents returned to the De La Rosa-Delgado/Jimenez home, looking for the same man they had failed to find the previous year. Again, ICE agents had no judicial warrant and entered and searched the house without voluntary consent.
395. A little before 6:00 a.m. on September 27, 2007, ICE agents began pounding on the front door of the De La Rosa-Delgado/Jimenez home.
396. Pelagia’s son, Christopher, was awake after a night with a fever for which he had been at the emergency room the day before, on September 26, 2007. He was on the phone with his girlfriend when the pounding began. He opened the front door, and several ICE agents, dressed in boots and jackets, pushed past him into the home.
397. The ICE agents entered the home without asking for permission and without obtaining voluntary consent from Christopher or any other member of the household.
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398. The ICE agents did not explain to Christopher or any other member of the household that they had the right to refuse them permission to enter the home.
399. At no time did the ICE agents show Christopher or any other member of the household a warrant that granted them permission to enter the De La Rosa-Delgado/Jimenez home.
400. There were no exigent circumstances that may have permitted the ICE agents to enter the De La Rosa-Delgado/Jimenez home without a valid judicial warrant or voluntary consent.
401. When Christopher asked why the ICE agents were there, they said they were looking for a man named “Miguel.” Christopher remembered that “Miguel” was the same person that ICE was seeking the year before, and told the ICE agents that no one by that name lived at the home.
402. More ICE agents went around the yard to the back door of the home and began pounding on that door. The ICE agents who had barged into the home from the front door ordered Christopher to open the back glass door. Christopher could see that several agents were in the back yard, having surrounded the home. When Christopher slid open the back glass door, more agents entered the home without asking for permission or obtaining voluntary consent.
403. Christopher was terrified and upset. As he walked from the back glass door to the kitchen, he lifted his phone to tell his girlfriend what was happening, and an agent reached out as if to grab the phone from Christopher’s hand. A law enforcement official wearing a Suffolk County uniform told Christopher to put the phone on the kitchen counter, and Christopher obeyed.
404. Anthony and Bryan, who was fourteen years old at the time, were also awakened by the noise and by lights flashing into their bedroom window. When Anthony opened his
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bedroom door, he saw the ICE agents. Anthony attempted to return to his room to put on a shirt because he was wearing only boxer shorts. ICE agents ordered him and his brother to sit in the living room, preventing him from covering himself. Bryan was wearing shorts and a sleeveless undershirt.
405. Anthony and Bryan were detained in the living room in a state of undress while ICE agents stood watch.
406. Christopher attempted to leave the kitchen to go upstairs and wake his mother. An agent stood in front of the kitchen entranceway and put his arm across it, stopping Christopher from passing through and keeping him isolated from his mother and brothers. Another ICE agent put his hand on Anthony’s chest, physically restraining him from going towards his mother’s room.
407. The ICE agents went throughout the home, and pounded on the bedroom door of Pelagia’s aunt and uncle. The ICE agents demanded that Pelagia’s aunt and uncle leave their bedroom, and they were also detained in the living room.
408. The ICE agents asked the family members over and over again about “Miguel.” None of the ICE agents spoke fluent Spanish, so when the agents were demanding answers from Pelagia’s aunt and uncle, her sons had to translate several words.
409. ICE agents also entered and searched the downstairs of the home, where they detained and interrogated Pelagia’s husband and her tenant.
410. Pelagia was upstairs at the home sleeping when the ICE agents arrived. 411. Despite asking for their mother, the ICE agents would not allow Pelagia’s children to go upstairs. 412. The ICE went upstairs and knocked on Pelagia’s door. When she did not answer, they entered the room anyway. Pelagia’s sons could hear the agents walking around upstairs,
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above the living room, where a large storage closet adjoined Pelagia’s bedroom. When they asked again to join their mother, the ICE agents told them to stay where they were. Pelagia’s sons believe the ICE agents were in their mother’s sleeping quarters for between ten and twenty minutes.
413. Pelagia had two jobs at the time of this second ICE raid, had been up late on the night of the raid checking on Christopher’s fever, and had taken Christopher to the emergency room the previous day. She did not wake up when the ICE agents went through her bedroom and the adjoining storage area, and gave no consent to the search.
414. The ICE agents went through the house for about an hour, including searching the upstairs area of the home. After they left, Pelagia’s sons ran upstairs to see what had happened between the ICE agents and their mother. They learned that she had been asleep, and the ICE agents had searched the entire second floor without speaking to her.
415. Pelagia’s sons estimate that between ten to fifteen ICE agents were in their home. They could see many law enforcement cars and vans parked on their street.
416. The family feels violated and humiliated for the second time in a little more than a year. Although the ICE agents were told in August 2006 that “Miguel” had never lived in their home, the ICE agents returned a year later looking for the same person. Pelagia and her sons are afraid that ICE agents will return to look for “Miguel” or someone else, and terrorize them again. After the second raid, Christopher began calling his mother more frequently, fearful that something would happen to her. The whole family worries that neighbors will think they are criminals.
417. Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez were not the targets of the raid.
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418. Upon information and belief, the ICE agents involved in the September 27, 2007 raid included Defendants ICE 39, ICE 40, ICE 41, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 56, and ICE 57.
419. Each of Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors knew or should have known that ICE agents entering a home without a judicial warrant, voluntary consent, or any exigent circumstances or other lawful cause to justify the entrance is a violation of constitutional rights.
420. Each of Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors knew or should have known that ICE agents conducting a search of a home without a judicial warrant, voluntary consent, or any exigent circumstances or other lawful cause to justify the search is a violation of constitutional rights.
421. Each of Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE
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15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors knew or should have known that ICE agents’ detention of a person without a judicial warrant, voluntary consent or any exigent circumstances or other lawful cause to justify the detention is a violation of constitutional rights.
422. Each of Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors knew or should have known that the ICE agents’ actions in gaining entry within the named Plaintiffs’ homes violated the named Plaintiffs’ constitutional rights.
423. The actions of each of Defendants Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors were unprivileged.
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424. Each Defendant performed all of the acts concerning the actions at the named Plaintiffs’ homes under color of federal law.
425. Each Defendant performed all of the acts concerning the complained-of actions at the named Plaintiffs’ homes, in whole or in part, while acting in his or her capacity as an employee of an agency of the federal government.
ICE’s Pattern and Practice, if not Policy, of Performing Illegal and Unconstitutional Home Raids
426. The above described illegal conduct by Defendants is part of a broad pattern and practice, if not official policy of ICE. Allegations of similar tactics have been reported on numerous occasions all across the country. (See Exhibit 2 at 16-22.) The frequency of the raids and the similarity of the illegal conduct during home raids strongly suggest a deliberate practice if not policy of ICE.
427. For example, an October 3, 2007 New York Times article written by Nina Bernstein, entitled “Raids Were a Shambles, Nassau Complains to U.S.,” describes the raids conducted in Nassau County on September 24 and 26, 2007 (which included raids on some of the named Plaintiffs, as described above). The article states that ICE agents brandished shotguns and automatic weapons during the raids, while some wore cowboy hats. ICE asked the Nassau County police department to assist in the raids, which purportedly targeted suspected gang members. According to the Nassau County police commissioner, however, his department was “misled” into participating in these raids. He stated that ICE did not seem to have reason to believe gang members were present in the homes, refused offers to check their list of purported gang members against a police database that is updated daily, and all except 6 of 96 administrative warrants had incorrect or outdated addresses. In one case, ICE sought a 28-yearold man with a photograph taken when he was seven years old. According to the police
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commissioner, most of the individuals arrested were purported illegal immigrant workers with no criminal records. ICE admitted that it arrested at least one person who was a U.S. citizen. The cavalier attitude of ICE and total disregard for the rights of the occupants of the homes being raided are reflected in a comment attributed to Defendant Smith, the special agent in charge of the raids. He stated, “We didn’t have warrants. We don’t need warrants to make arrests. These are illegal immigrants.” (See Exhibit 11.)
428. A July 23, 2007 New York Times article written by Nina Bernstein, entitled “Promise of ID Cards Is Followed by Peril of Arrest for Illegal Immigrants,” describes ICE practices of pushing past New Haven, Connecticut residents who opened the door to agents and arbitrarily knocking at homes near to the residence listed in a deportation order after finding the target residence empty. (See “Promise of ID Cards Is Followed by Peril of Arrest for Illegal Immigrants,” New York Times, July 23, 2007, attached hereto as Exhibit 17.)
429. A September 21, 2007 Associated Press article published in THE OREGONIAN, entitled “Groups Question Immigration Raid in Central Idaho,” describes raids in Ketchum, Hailey and Bellevue, Idaho, where armed ICE agents pounded on the door and pushed their way into the home of U.S. citizens and a legal permanent resident ostensibly in search of a sexual predator with a Hispanic surname who was unfamiliar to the homeowner. (See “Groups Question Immigration Raid in Central Idaho,” The Oregonian, September 21, 2007, attached hereto as Exhibit 18.)
430. A September 19, 2007 IDAHO MOUNTAIN EXPRESS article written by Terry Smith, entitled “Immigration Agents Seize 20 Suspected Illegal Aliens: ACLU Investigating to See if Civil Rights Were Violated,” describes a pre-dawn raid in the Wood River Valley region of Idaho where ICE agents pounded on the door and pushed their way into the home without informing the occupants who they were or showing a warrant. (See “Immigration Agents Seize
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20 Suspected Illegal Aliens: ACLU Investigating to See if Civil Rights Were Violated,” Idaho Mountain Express, September 19, 2007, attached hereto as Exhibit 19.)
431. An April 28, 2007 THE DAILY REVIEW article written by Mark Prado, entitled “ACLU Sues for Boy in Immigration Raid,” describes early-morning raids in the San Francisco, California area and reports that ICE admitted to conducting home raids with only arrest warrants. ICE failed to address the charge that a search warrant was required for the home entry at issue. (See “ACLU Sues for Boy in Immigration Raid,” The Daily Review, April 28, 2007, attached hereto as Exhibit 20.)
432. An April 27, 2007 SAN FRANCISCO CHRONICLE article written by Tyche Hendricks, entitled “The Human Face of Immigration Raids in the Bay Area: Arrests of Parents Can Deeply Traumatize Children Caught in the Fray, Experts Argue,” describes the San Francisco, California area arrests made in a fugitive alien’s former residence and the ICE practice of allowing agents to identify themselves as “Police” to gain entry into homes and question individuals solely because of an association with the target of a warrant. (See “The Human Face of Immigration Raids in the Bay Area: Arrests of Parents Can Deeply Traumatize Children Caught in the Fray, Experts Argue,” San Francisco Chronicle, April 27, 2007, attached hereto as Exhibit 21.)
433. A February 3, 2007 ALAMEDA TIMES-STAR article written by David DeBolt, entitled “Immigrants in Richmond Live in Fear of Deportation,” describes an incident where ICE agents broke down the door to a Richmond, California private residence without knocking and without a warrant and proceeded to force occupants to lie on the floor. The 6:00 a.m. entry by ICE agents into the dwelling resulted in the arrests of persons other than the purported intended target. (See “Immigrants in Richmond Live in Fear of Deportation,” Alameda Times Star, February 3, 2007, attached hereto as Exhibit 22.)
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434. A November 25, 2007 New York Times article written by Nina Bernstein, entitled “Immigrant Workers Caught in Net Cast for Gangs,” describes early morning home raids conducted in Suffolk County on September 27, 2007, that were specifically targeted at local Latino residents. According to the local police department, although the operation was ostensibly conducted to deport violent gang members, only one of the eleven men arrested during the raids was even suspected of gang affiliation (the other ten were neither gang associates nor did they have criminal records). Greenport police Detective Sinning provided federal agents with names of potential gang member targets and six or seven home addresses “roughly associated” with the four targets he identified. According to Detective Sinning, one of the homes on the target list was occupied by residents who did not appear to be Latino, and ICE agents immediately walked away after seeing them. In fact, the article reports that another home swarmed by ICE agents was occupied by Greenport firefighter and U.S. citizen James Berry. When he opened the door to prevent agents from kicking it in, they looked at him, stated “I think we have the wrong address,” and walked away. (See “Immigrant Workers Caught in Net Cast for Gangs,” New York Times, November 25, 2007, attached hereto as Exhibit 23.) In contrast, at residences occupied by Latinos, agents entered and searched the homes, detained and questioned every resident within the home, and arrested anyone who could not produce proper documentation. Even when Latinos present valid identification, ICE agents question the document’s validity without any basis for doing so. The agents’ conduct demonstrates their assumption that an individual of Latino descent is presumptively a suspect because it is not reasonable for that individual to present valid United States, government-issued documentation, as well as the agents’ assumption that there is no need to question a person of Anglo descent.
435. A June 4, 2008 NORTHJERSEY.COM article by Elizabeth Llorente entitled “Immigration Raids Net 491,” describes ICE raids of private residences in the New York and
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New Jersey area that took place in May 2008. According to ICE official Harold Ort, ICE has every intention of continuing to conduct such home raids. (See “Immigration Raids Net 491,” NORTHJERSEY.COM, June 4, 2008, attached hereto as Exhibit 24.)
436. An August 26, 2008 US ICE press release entitled “New York ICE Fugitive Operations Teams arrest 130 fugitives and immigration violators in 10-day operation: 600th criminal alien fugitive arrested by the New York Fugitive Operations Teams this fiscal year,” describes recent raids in the New York vicinity that resulted in the arrests of 120 aliens, less than a third of whom had any criminal record. (See “New York ICE Fugitive Operations Teams arrest 130 fugitives and immigration violators in 10-day operation: 600th criminal alien fugitive arrested by the New York Fugitive Operations Teams this fiscal year,” US ICE press release, August 26, 2008, attached hereto as Exhibit 25.)
437. A February 18, 2009 WASHINGTON POST article by N.C. Aizenman entitled “Conflicting Accounts of an ICE Raid in Md.,” details the pressure that ICE supervisors place on their agents, which inevitably leads to constitutional violations. According to an internal ICE investigation, a supervisor warned Baltimore office team members that they were well behind the 1,000 arrest per team quota, and “I don’t care where you get more arrests, we need more numbers.” He then told the agents to go to any street corner and find illegal immigrants, and that an experienced officer knew where potential illegal aliens gather, such as a Home Depot or Lowe’s parking lots. The result was a nine-person team going to a nearby 7-Eleven and arresting 24 Latino men. While ICE agents claimed that the arrested individuals voluntarily approached the agents looking for day labor work, security camera footage directly contradicts these statements. The video confirms that at least eight individuals had no contact with the officers prior to being detained. A deportation officer on the team told ICE investigators that he did not believe the fugitive operations team was appropriately used. (See “Conflicting Accounts of an
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ICE Raid in Md.,” Washington Post, February 18, 2009, attached hereto as Exhibit 26.) On information and belief, the same behavior was exhibited by ICE agents and approved by supervisors in the New York area.
438. An August 4, 2009 New York Times article by Julia Preston entitled “Staying Tough in Crackdown on Immigrants,” states that despite the pledges by President Obama that he would alter the Bush administration’s policies on immigration enforcement, DHS is actually relying and expanding on the flawed programs that were started by the previous administration. Defendant Napolitano admitted that DHS is in fact expanding enforcement of these highly criticized initiatives. The article also noted that despite strong indications that some DHS programs were being used to harass Hispanic residents, Defendant Napolitano has not responded to those allegations of ethnic profiling, and has not altered those programs at all. (See “Staying Tough in Crackdown on Immigrants,” New York Times, August 4, 2009, attached hereto as Exhibit 27.)
The Named Plaintiffs’ Injuries 439. As a direct and proximate result of the above conduct by Defendants, and each of them, the named Plaintiffs have been harmed, which harm includes, but is not limited to:
a. violations of their constitutional rights to be free from unreasonable searches and seizures;
b. violations of their constitutional rights to equal protection, including to be free from discriminatory application of the law;
c. having their homes and personal privacy invaded; d. being intimidated, harassed, humiliated, and threatened with force; e. experiencing severe emotional and mental distress; f. being illegally and unreasonably detained;
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g. being subjected to an illegal and unreasonable interrogation;

h. having their personal property damaged; and

i.

other harm according to proof.

440. The acts described above by each Defendant were done intentionally, maliciously,

and recklessly, and showed a callous disregard for, or indifference to, the named Plaintiffs’

personal safety, security, freedom, and civil and constitutional rights, and/or with intent to injure,

harass, and oppress Plaintiffs and other members of the Latino community in New York.

441. Each of the named Plaintiffs is Latino and intends to continue living in residences

with other Latinos. By engaging in such routine, law-abiding activities as living in their homes,

Plaintiffs face the potential threat of future violations to their personal safety, security, freedom,

and civil and constitutional rights.

CLASS ACTION ALLEGATIONS

442. All claims set forth in the First and Second Claims below are brought by the

named Plaintiffs individually and on behalf of all other similarly situated persons pursuant to Rule

23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.

443. The named Plaintiffs provisionally propose the First and Second Claims be

certified on behalf of the following class:

Persons who, because they (1) are Latino, and (2) reside in the jurisdiction of the New York City regional office (or field office) of ICE, have been subjected to and/or are at imminent risk of home raids by the New York City regional office (or field office) of ICE.

444. The claims of the proposed class representatives and those of the proposed class

members in the First and Second Claims raise common questions of law and fact concerning,

inter alia, whether Defendants have implemented, enforced, encouraged and/or sanctioned a

policy, practice and/or custom of:

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(a) targeting locations with known concentrations of Latino residences and/or individual homes occupied by persons of Latino origin in violation of the Fifth Amendment to the United States Constitution;
(b) entering and searching homes without judicial warrants or voluntary consent and in the absence of probable cause and exigent circumstances in violation of the Fourth Amendment to the United States Constitution; and
(c) stopping, detaining, investigating, searching and effecting seizures in the absence of a reasonable, articulable suspicion of unlawful activity or probable cause in violation of the Fourth Amendment to the United States Constitution.
445. These questions are common to the named Plaintiffs and to the members of the proposed class because Defendants have acted and will continue to act on grounds generally applicable to both the named Plaintiffs and proposed class members.
446. The claims of the named Plaintiffs are typical of the claims of the members of the proposed class.
447. Members of the proposed class are so numerous that the joinder of all class members is impractical.
448. The named Plaintiffs will fairly and adequately protect the interests of the members of the proposed class.
449. The named Plaintiffs are represented by counsel who are experienced in federal class action litigation, including those involving civil rights issues.
450. As set forth above, the Defendants have acted on grounds generally applicable to the members of the proposed class, thereby making appropriate final injunctive and corresponding declaratory relief with respect to the class as a whole.
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451. Pursuant to 28 U.S.C. Section 2675(a), all Plaintiffs, with the exception of Raul and Gloria Amaya, have exhausted their administrative remedies regarding their claims herein pursuant to the Federal Tort Claims Act (referenced herein as the “FTCA Plaintiffs”). Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Carson Aguilar and Erika Gabriela Garcia-Leon presented Claims for Damage, Injury or Death on Standard Form 95 (hereinafter “Claim for Damage”) to the United States Department of Homeland Security/ICE and to ICE ##1-59 on or about January 11, 2008. Plaintiffs Mario Patzan DeLeon and Tarcis Sapon-Diaz presented Claims for Damage on or about January 14, 2008. Plaintiffs Sonia Bonilla, Beatriz Velasquez and Dalia Velasquez presented Claims for Damage on or about February 4, 2008. Plaintiffs Nelly Amaya, Elder Bonilla and Diana Rodriguez presented Claims for Damage on or about March 21, 2008. Plaintiffs William Lazaro, David Lazaro-Perez, Pelagia De La Rosa-Delgado, Anthony Jimenez, Bryan Jimenez, and Christopher Jimenez presented Claims for Damage on or about June 9, 2008.
452. FTCA Plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Carson Aguilar, Erika Gabriela Garcia-Leon, Mario Patzan DeLeon, Tarcis Sapon-Diaz, Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez, Nelly Amaya, Elder Bonilla, Diana Rodriguez, William Lazaro, David Lazaro-Perez, Pelagia De La Rosa-Delgado, Anthony Jimenez, Bryan Jimenez, and Christopher Jimenez have exhausted their administrative remedies because none of them have received, in writing, a final disposition of their Claims for Damage and six months or more have elapsed since they filed their Claims for Damage.
453. Plaintiffs Gonzalo Escalante, Victor Pineda Morales, and Yoni Revolrio presented Claims for Damage on or about December 8, 2008. The Department of Homeland Security denied their claims on July 2, 2009.
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CLAIMS FOR RELIEF FIRST CLAIM: CLASS ACTION CLAIM OF FOURTH AMENDMENT VIOLATIONS
(Against All Defendants) 454. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein. 455. Plaintiffs bring this claim for injunctive and declaratory relief against Defendants to redress continuing and likely future violations of the Fourth Amendment to the United States Constitution. 456. Upon information and belief, Defendants have, in violation of the Fourth Amendment to the United States Constitution, officially implemented, enforced, encouraged and/or sanctioned a policy, practice and/or custom of: (a) entering and searching homes without valid judicial warrants or voluntary consent and in the absence of probable cause and exigent circumstances; and (b) stopping, detaining, investigating, searching and effecting seizures in the absence of a reasonable, articulable suspicion of unlawful activity or probable cause. 457. As a result of Defendants’ acts and/or omissions, the Fourth Amendment rights of the Plaintiffs and class to be free from unreasonable searches and seizures and unlawful entries into their homes have been violated. 458. As previously noted, ICE has engaged in a pattern and practice of conducting home raids in New York City and the surrounding area, as well as across the country. The raids described in this matter occurred throughout 2007 and, in one instance, in 2006. Moreover, Nassau County Police Commissioner Mulvey’s September 2007 letter, confirms that future raids are planned by ICE in at least Nassau County. (See Exhibit 3, page 2.) 459. Such raids have consistently targeted Latinos and individuals who live in residences with Latinos, such as the named Plaintiffs.
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460. The named Plaintiffs and class members are at risk of prospective constitutional deprivations at the hands of ICE because (i) ICE intends to conduct future raids in New York City and the surrounding area where Plaintiffs live, and (ii) because they are Latino and intend to continue living in New York City and the surrounding area. Indeed, ICE returned to the De La Rosa-Delgado/Jimenez home, and threatened to return to the homes of other named Plaintiffs. The risk of prospective constitutional deprivations is increased by ICE’s systemic deficiencies, including its failure to keep or update properly databases containing information about aliens, perform adequate investigations prior to conducting home raids, and train its agents adequately. The named Plaintiffs and class members are further placed at greater risk in light of the fact that Latinos are “significantly overrepresented in collateral arrests by ICE agents during home raids.” (See Exhibit 2 at 12.) Accordingly, there is a credible threat that the named Plaintiffs and class members will be subjected to illegal raids in the future.
461. The Plaintiffs and proposed class will suffer irreparable and repeated injury unless this Court orders equitable relief. Such injury includes, inter alia, the deprivation of their constitutionally protected rights under the Fourth Amendment to the United States Constitution.
462. As a result of Defendants’ acts or omissions, at least some of the Plaintiffs and members of the class continue to suffer harm from Defendants’ challenged conduct in the form of continuing judicial and administrative proceedings seeking their removal from this country. In addition, ICE is using evidence seized during the illegal raids against these Plaintiffs and members of the class in the judicial and administrative proceedings, including statements made and documents obtained during the home raids.
463. Upon information and belief, and based upon currently available information, only a small percentage of the individuals arrested pursuant to the Operations were actually targets of the raids. The large majority of those arrested were other individuals swept up in raids
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like those experienced by Plaintiffs. Indeed, not a single named Plaintiff was a target of any of the Operations. Rather some of them, like many other Latinos in the New York area, were arrested as “collaterals.” As described herein, ICE agents routinely raid homes where the purported target is not present and could not reasonably have been believed to have been present. According to the 2007 Inspector General’s Report, agents rely on outdated, inaccurate, and incomplete data in approximately 50% of their cases.
464. Damages cannot adequately address the injuries suffered by the Plaintiffs. 465. Compelling the Defendants, their agents, employees and successors in office, and all persons acting in concert with them to comply with the dictates of the United States Constitution does not impose an improper or undue burden on the Defendants, their agents, employees and successors in office, and others, and, in fact, it serves the public interest by ensuring compliance with well-established Constitutional protections. 466. Plaintiffs and the proposed class are entitled to the issuance of a permanent injunction prohibiting Defendants from engaging in the unlawful and abusive practices alleged herein. 467. For reasons including, but not limited to, those stated herein, an actual dispute exists between Plaintiffs and Defendants, in which the parties have genuine and opposing interests that are direct and substantial, and of which a judicial determination will be final and conclusive. 468. This dispute entitles Plaintiffs to a declaratory judgment that in doing the acts complained of herein the Defendants denied Plaintiffs their Fourth Amendment rights and protections, including, but not limited to, the right to be free from unreasonable searches and seizures and the right to be free from unlawful entries into one’s home, in violation of the United States Constitution.
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469. Plaintiffs are also entitled to such other and further relief as may follow from the entry of such a declaratory judgment.
SECOND CLAIM: CLASS ACTION CLAIM OF FIFTH AMENDMENT EQUAL PROTECTION VIOLATIONS (Against All Defendants)
470. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein.
471. Plaintiffs bring this claim for injunctive and declaratory relief against Defendants to redress continuing and likely future violations of the Equal Protection Clause of the Fifth Amendment to the United States Constitution.
472. Upon information and belief, Defendants have, in violation of the Fifth Amendment to the United States Constitution, officially implemented, enforced, encouraged and/or sanctioned a policy, practice and/or custom of identifying and targeting locations with known concentrations of Latino residents, conducting unconstitutional entries into and searches and seizures of residences in which Latinos reside or are believed to reside, and conducting unconstitutional detentions, interrogations, and seizures of Latinos within these residences. Upon information and belief, the residences and individuals targeted in these home raids were selected for such purported immigration enforcement actions because Latinos were believed to reside at the homes.
473. As a result of Defendants’ acts and/or omissions, the rights of the Plaintiffs and class to be free from discriminatory treatment as provided by the Equal Protection Clause of the Fifth Amendment have been violated. Defendants’ acts and/or omissions were based upon impermissible considerations, such as race, ethnicity, or national origin, in violation of the Equal Protection Clause of the Fifth Amendment.
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474. Upon information and belief, and based upon currently available information, only a small percentage of the individuals arrested under the Operations were actually targets of the raids. The large majority of those arrested were other individuals swept up in raids like those experienced by Plaintiffs. Indeed, not a single named Plaintiff was a target of any of the Operations. Rather some of them, like many other Latinos in the New York area, were arrested as “collaterals.” As described herein, ICE agents routinely raid homes where the purported target is not present and could not reasonably have been believed to have been present. According to the 2007 Inspector General’s Report, agents rely on outdated, inaccurate, and incomplete data in approximately 50% of their cases.
475. The named Plaintiffs and class members are at risk of prospective constitutional deprivations at the hands of ICE because (i) ICE intends to conduct future raids in New York City and the surrounding area where Plaintiffs live, and (ii) because they are Latino and intend to continue living in New York City and the surrounding area. Indeed, ICE returned to the De La Rosa-Delgado/Jimenez home, and threatened to return to the homes of other named Plaintiffs. The risk of prospective constitutional deprivations is increased by ICE’s systemic deficiencies, including its failure to keep or update properly databases containing information about aliens, perform adequate investigations prior to conducting home raids, and train its agents adequately. The named Plaintiffs and class members are further placed at greater risk in light of the fact that Latinos are “significantly overrepresented in collateral arrests by ICE agents during home raids.” (See Exhibit 2 at 12.) Accordingly, there is a credible threat that the named Plaintiffs and class members will be subjected to illegal raids in the future.
476. The Plaintiffs and proposed class will suffer irreparable and repeated injury unless this Court orders equitable relief. Such injury includes, inter alia, the deprivation of their constitutionally protected rights under the Fifth Amendment to the United States Constitution.
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477. As a result of Defendants’ acts or omissions, at least some of the Plaintiffs and members of the class continue to suffer harm from Defendants’ challenged conduct in the form of continuing judicial and administrative proceedings seeking their removal from this country. In addition, ICE is using evidence seized during the illegal raids against these Plaintiffs and members of the class in the judicial and administrative proceedings, including statements made and documents obtained during the home raids.
478. Damages cannot adequately address the injuries suffered by the Plaintiffs. 479. Compelling the Defendants, their agents, employees and successors in office, and all persons acting in concert with them to comply with the dictates of the United States Constitution does not impose an improper or undue burden on the Defendants, their agents, employees and successors in office, and others, and, in fact, it serves the public interest by ensuring compliance with well-established Constitutional protections. 480. Plaintiffs and the proposed class are entitled to the issuance of a permanent injunction prohibiting Defendants from engaging in the unlawful and abusive practices alleged herein. 481. For reasons including, but not limited to, those stated herein, an actual dispute exists between Plaintiffs and Defendants, in which the parties have genuine and opposing interests that are direct and substantial, and of which a judicial determination will be final and conclusive. 482. This dispute entitles Plaintiffs to a declaratory judgment that in doing the acts complained of herein the Defendants denied Plaintiffs their Fifth Amendment rights to equal protection under the law and their right to be free from discriminatory application of the laws. 483. Plaintiffs are also entitled to such other and further relief as may follow from the entry of such a declaratory judgment.
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THIRD CLAIM: BIVENS CLAIM OF NAMED PLAINTIFFS (Against Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and
Jane Roe ICE Supervisors) 484. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations. 485. In doing the acts complained of, Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors failed to intervene to protect Plaintiffs’ constitutional rights from infringement, were grossly negligent in supervising subordinates who committed the wrongful acts, and/or aided and abetted and/or conspired to deprive, participated in depriving, and/or did deprive Plaintiffs of certain constitutionally protected rights, including, but not limited to:
a. the right not to be subject to unlawful home raids; b. the right to be free from unlawful entries into and searches and seizures of
Plaintiffs’ homes without a judicial warrant or voluntary consent and in the absence of probable cause and exigent circumstances;
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c. the right to be free from detentions without a lawful, reasonable and articulable suspicion of unlawful activity or probable cause, including, but not limited to, the right not to have defendants surround their homes or detain their persons in connection with an otherwise unlawful home raid; and
d. the right to be free from discriminatory application of the law and the right to equal protection under the law.
486. Because these Defendants acted in clear violation of well-settled law, of which a reasonable person should have been aware, with regard to standards for home entry, search, seizure, questioning, and detention, they are not entitled to a good faith defense or official immunity defense.
487. The actions of these Defendants were intentional, malicious, and reckless and showed a callous disregard for, or indifference to, the civil rights of the Plaintiffs.
488. The actions of these Defendants give rise to a claim for damages against them in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
489. As a direct and proximate result of the unlawful actions of these Defendants, Plaintiffs have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. Plaintiffs are entitled to compensatory and punitive damages in an amount to be determined at trial.
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FOURTH CLAIM: FALSE IMPRISONMENT CLAIM OF THE FTCA PLAINTIFFS (Against Defendant United States of America)
490. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations.
491. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE and, therefore, under the authority of the United States of America.
492. In surrounding homes, entering homes without consent, warrants, or exigent circumstances, and detaining named Plaintiffs inside their homes, Defendant United States of America, by its employees Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 36, ICE 37, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors falsely imprisoned the FTCA Plaintiffs and deprived them of their personal liberty. Defendant intended to detain the FTCA Plaintiffs and accomplished that detention through intimidation and the threat of force. The FTCA Plaintiffs and/or their minor children were aware of their detention inside their homes, did not consent to the detentions, and the detentions were not otherwise lawful.
493. Defendant’s acts, through its employees, give rise to a claim for damages for the tort of false imprisonment pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
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494. Defendant United States of America is not entitled to any defense, statutory or otherwise.
495. As a direct and proximate result of the unlawful actions of Defendant, the FTCA Plaintiffs have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. The FTCA Plaintiffs are entitled to damages in an amount to be determined at trial.
FIFTH CLAIM: RECKLESS OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM OF THE FTCA PLAINTIFFS (Against Defendant United States of America)
496. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations.
497. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America.
498. Defendant United States of America had a duty to the FTCA Plaintiffs to act with due care. Defendant United States of America, by its employees Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 36, ICE 37, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors engaged in extreme and outrageous conduct that proximately caused the FTCA Plaintiffs severe emotional distress. As a result of the warrantless and non-consensual surrounding of, entry into and search of the FTCA Plaintiffs’ homes, and the other unreasonable,
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unlawful, callous and intrusive conduct alleged herein, Defendant United States of America, through its employees, acted with the intent of causing, or with reckless disregard of a substantial probability of causing, severe emotional distress to named Plaintiffs.
499. Defendant’s acts, through its employees, give rise to a claim for damages for the tort of intentional infliction of emotional distress pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
500. Defendant United States of America is not entitled to any defense, statutory or otherwise.
501. As a direct and proximate result of the unlawful actions of Defendant, the FTCA Plaintiffs have suffered harm, in the form of, inter alia, mental anguish, outrage, humiliation, severe emotional distress, physical harm and/or psychological injuries. The FTCA Plaintiffs are entitled to damages in an amount to be determined at trial.
SIXTH CLAIM: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM OF THE FTCA PLAINTIFFS
(Against Defendant United States of America) 502. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations. 503. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America. 504. Defendant United States of America had a duty to the FTCA Plaintiffs to act with due care. As a result of the warrantless, non-consensual and unlawful surrounding of, and entry into search of the FTCA Plaintiffs’ homes, and the other unreasonable, unlawful, callous and intrusive conduct alleged herein, Defendant United States of America, by its employees
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Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 36, ICE 37, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors caused the FTCA Plaintiffs severe emotional distress. Defendant United States of America reasonably should have known that such unlawful conduct would cause the named Plaintiffs severe emotional distress.
505. Defendant’s acts, through its employees, give rise to a claim for damages for the tort of negligent infliction of emotional distress pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
506. Defendant United States of America is not entitled to any defense, statutory or otherwise.
507. As a direct and proximate result of the unlawful actions of Defendant, the FTCA Plaintiffs have suffered harm, in the form of, inter alia, mental anguish, outrage, humiliation, severe emotional distress, physical harm and/or psychological injuries. Plaintiffs are entitled to damages in an amount to be determined at trial.
SEVENTH CLAIM: NEGLIGENCE AND GROSS NEGLIGENCE CLAIM OF THE FTCA PLAINTIFFS
(Against Defendant United States of America) 508. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations.
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509. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America.
510. Defendant United States of America had a duty to the FTCA Plaintiffs to act with due care and in conformance with mandatory ICE regulations and the United States Constitution. By reason of the above-described actions, including (i) failing to train and supervise its employees in proper, constitutionally valid procedures, and (ii) failing to ensure the use of accurate and reasonable information in investigations, Defendant United States of America, by its employees Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 36, ICE 37, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors breached that duty. As a direct and proximate result of Defendant United States of America’s negligence and gross negligence, named Plaintiffs suffered severe emotional distress and other substantial harms.
511. Defendant’s acts, through its employees, give rise to a claim for damages for the torts of negligence and gross negligence pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
512. Defendant United States of America is not entitled to any defense, statutory or otherwise.
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513. As a direct and proximate result of the unlawful actions of Defendant, the FTCA Plaintiffs have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. The FTCA Plaintiffs are entitled to damages in an amount to be determined at trial.
EIGHTH CLAIM: TRESPASS CLAIM OF THE FTCA PLAINTIFFS (Against Defendant United States of America)
514. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations.
515. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America.
516. Defendant United States of America, by its employees Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 36, ICE 37, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE Supervisors interfered with the FTCA Plaintiffs’ rights of possession of their homes through the warrantless, non-consensual and otherwise unlawful surrounding of, entry into and search of the FTCA Plaintiffs’ homes alleged herein.
517. Defendant’s acts give rise to a claim for damages for the tort of trespass pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
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518. Defendant United States of America is not entitled to any defense, statutory or otherwise.
519. As a direct and proximate result of the unlawful actions of Defendant, the FTCA Plaintiffs have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. The FTCA Plaintiffs are entitled to damages in an amount to be determined at trial.
NINTH CLAIM: ASSAULT CLAIM OF THE FTCA PLAINTIFFS (Against Defendant United States of America)
520. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations.
521. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America.
522. By the actions described above, including forcibly entering the FTCA Plaintiffs’ homes, kicking down doors, brandishing their weapons, and behaving in a threatening and aggressive manner, and, in the case of Elder Bonilla, pointing a gun at his chest, Defendant United States of America, by its employees Defendants Chertoff, Myers, Torres, Forman, Shanahan, Smith, Palmese, Williams, Knopf, ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, ICE 7, ICE 8, ICE 9, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 36, ICE 37, ICE 39, ICE 40, ICE 41, ICE 42, ICE 43, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52, ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58, ICE 59, John and Jane Doe ICE Agents, and John and Jane Roe ICE
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Supervisors intentionally and unreasonably caused the FTCA Plaintiffs to apprehend imminent and grievous bodily harm.
523. Defendant’s acts, by its employees, give rise to a claim for damages for the tort of assault pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
524. Defendant United States of America is not entitled to any defense, statutory or otherwise.
525. As a direct and proximate result of the unlawful actions of Defendant, the FTCA Plaintiffs have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. The FTCA Plaintiffs are entitled to damages in an amount to be determined at trial.
TENTH CLAIM: BATTERY CLAIMS OF NELLY AMAYA, WILLIAM LAZARO, DAVID LAZARO PEREZ, TARCIS SAPON-DIAZ, JUAN JOSE MIJANGOS, MARIO PATZAN DELEON, GONZALO ESCALANTE, VICTOR PINEDA MORALES, YONI
REVOLORIO, AND ELDER BONILLA (Against Defendant United States of America) 526. Plaintiffs Nelly Amaya, William Lazaro, David Lazaro Perez, Tarcis Sapon-Diaz, Juan Jose Mijangos, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Elder Bonilla incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations. 527. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America. 528. Defendant United States of America’s employees, including Defendant Williams, and/or ICE ##1-8, in forcibly detaining Plaintiff Nelly Amaya, pushing her against the wall, and twisting her arm, intentionally and unreasonably made bodily contact with Ms. Amaya that was offensive in nature without lawful justification.
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529. Defendant United States of America’s employees, including ICE ##1, 6, 8, and/or 11-17, in forcibly detaining, grabbing, pushing, and/or handcuffing (in at least some cases, prior to asking any questions at all) Plaintiffs William Lazaro, David Lazaro Perez, and Tarcis SaponDiaz, intentionally and unreasonably made bodily contact with these Plaintiffs that was offensive in nature and without lawful justification. ICE ##1, 6, 8, and/or 11-17 also transported Plaintiffs William Lazaro and David Lazaro Perez to a detention center in New Jersey, where they were injected with an unknown substance by federal officials and/or officials acting at the behest of the United States. As late as June 12, 2008, these ICE policies regarding the forced medication of detainees were continuing, and Defendant Chertoff was aware of these practices.
530. Defendant United States of America’s employees, including ICE ##1, 3, 4, and/or 7-11, in forcibly detaining, grabbing, pushing, and/or handcuffing (in at least some cases, prior to asking any questions at all) Plaintiffs Juan Jose Mijangos, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, and Yoni Revolorio, intentionally and unreasonably made bodily contact with these Plaintiffs that was offensive in nature and without lawful justification.
531. Defendant United States of America’s employees, including ICE ## 27-34, 43, 53, 54, and/or 55, burst through the front door of Plaintiff Elder Bonilla’s home, pointed a gun at his chest, handcuffed him, and threw him toward the sofa. In doing so, ICE ## 27-34, 43, 53, 54, and/or 55 intentionally and unreasonably made bodily contact with Mr. Bonilla that was offensive in nature and without lawful justification.
532. Defendant’s acts, by its employees, give rise to a claim for damages for the tort of battery pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
533. Defendant United States of America is not entitled to any defense, statutory or otherwise.
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534. As a direct and proximate result of the unlawful actions of Defendant, Ms. Amaya, Mr. Lazaro, Mr. Perez, Mr. Sapon-Diaz, Mr. Mijangos, Mr. Escalante, Mr. Pineda Morales, Mr. Revolorio, Mr. Patzan DeLeon, and Mr. Bonilla have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. Ms. Amaya, Mr. Lazaro, Mr. Perez, Mr. Sapon-Diaz, Mr. Mijangos, Mr. Patzan DeLeon, Mr. Escalante, Mr. Pineda Morales, Mr. Revolorio, and Mr. Bonilla are entitled to damages in an amount to be determined at trial. ELEVENTH CLAIM: EXCESSIVE FORCE CLAIMS OF NELLY AMAYA, WILLIAM LAZARO, DAVID LAZARO PEREZ, TARCIS SAPON-DIAZ, JUAN JOSE MIJANGOS, MARIO PATZAN DELEON, GONZALO ESCALANTE, VICTOR PINEDA MORALES,
YONI REVOLORIO, AND ELDER BONILLA (Against Defendant United States of America) 535. Plaintiffs Nelly Amaya, William Lazaro, David Lazaro Perez, Tarcis Sapon-Diaz, Juan Jose Mijangos, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Elder Bonilla incorporate by reference each and every allegation contained in the preceding paragraphs as though fully set forth herein, excluding only Plaintiffs’ class action allegations. 536. At all times relevant to this action, agents, officials and other personnel were acting in their official capacity under the authority of DHS and ICE, and, therefore, under the authority of the United States of America. 537. Defendant United States of America’s employees, Defendant Williams, and/or ICE ##1-8, in forcibly detaining Plaintiff Nelly Amaya, pushed her against the wall and twisted her clearly injured arm behind her back. The officers did this despite the fact that Ms. Amaya was not committing a crime, was not a threat to officers or others, and was not attempting to evade or resist arrest. Thus, the officers intentionally and unreasonably used an amount of force against Ms. Amaya that a prudent law enforcement officer would not have used.
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538. Defendant United States of America’s employees, including ICE ##1, 6, 8, and/or 11-17, forcibly detained, grabbed, pushed, and/or handcuffed (in at least some cases, prior to asking any questions at all) Plaintiffs William Lazaro, David Lazaro Perez, and Tarcis SaponDiaz. The officers did this despite the fact that the Plaintiffs were not committing a crime, were not a threat to officers or others, and were not attempting to evade or resist arrest. Thus, the officers intentionally and unreasonably used an amount of force against the Plaintiffs that a prudent law enforcement officer would not have used.
539. Defendant United States of America’s employees, including ICE ##1, 3, 4, and/or 7-11, forcibly detained, grabbed, pushed, and/or handcuffed (in at least some cases, prior to asking any questions at all) Plaintiffs Juan Jose Mijangos, Mario Patzan DeLeon, Gonzalo Escalante, Victor Pineda Morales, and Yoni Revolorio. The officers did this despite the fact that the Plaintiffs were not committing a crime, were not a threat to officers or others, and were not attempting to evade or resist arrest. Thus, the officers intentionally and unreasonably used an amount of force against the Plaintiffs that a prudent law enforcement officer would not have used.
540. Defendant United States of America’s employees, including ICE ## 27-34, 43, 53, 54, and/or 55, burst through the front door of Plaintiff Elder Bonilla’s home, pointed a gun at his chest, handcuffed him, and threw him toward the sofa. The officers did this despite the fact that Mr. Bonilla was not committing a crime, was not a threat to officers or others, and was not attempting to evade or resist arrest. The ICE agents’ actions intentionally and unreasonably used an amount of force against Mr. Bonilla that a prudent law enforcement officer would not have used.
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541. Defendant’s acts, by its employees, give rise to a claim for damages for the tort of excessive force pursuant to New York law and the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq.
542. Defendant United States of America is not entitled to any defense, statutory or otherwise.
543. As a direct and proximate result of the unlawful actions of Defendant, Ms. Amaya, Mr. Lazaro, Mr. Perez, Mr. Sapon-Diaz, Mr. Mijangos, Mr. Patzan DeLeon, Mr. Escalante, Mr. Pineda Morales, Mr. Revolorio, and Mr. Bonilla have incurred harm, including pain and suffering, outrage, humiliation, or emotional distress. Ms. Amaya, Mr. Lazaro, Mr. Perez, Mr. Sapon-Diaz, Mr. Mijangos, Mr. Escalante, Mr. Pineda Morales, Mr. Revolorio, Mr. Patzan DeLeon, and Mr. Bonilla are entitled to damages in an amount to be determined at trial.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court: 1. Issue a Declaratory Judgment on behalf of Plaintiffs with respect to the
claims set forth in the First and Second Claims declaring that the actions of Defendants vis-à-vis the Plaintiffs as complained of herein violated the Fourth and Fifth Amendments to the United States Constitution; 2. With respect to the claims set forth in the First and Second Claims, issue an order permanently enjoining and restraining Defendants, their agents, employees and successors in office and all others acting in concert with them, under the guise of a nationwide program to identify and arrest alleged aliens and undocumented persons within the United States, from:
a. Deploying groups of armed agents to descend upon the homes of Latinos in the pre-dawn hours with the intent to 135

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enter such homes, without judicial warrants or permission from the residents to do so, through the use of force or by manufacturing “consent” from residents who are unable -under law or due to the oppressive conditions of the raids -to give legitimate consent; b. Deploying groups of armed agents to descend upon the homes of Latinos in the pre-dawn hours with the intent to search such homes, without judicial warrants or permission from the residents to do so, through the use of force or by manufacturing “consent” from residents who are unable -under law or due to the oppressive conditions of the raids -to give legitimate consent; c. Deploying groups of armed agents to descend upon the homes of Latinos in the pre-dawn hours with the intent to seize Latino individuals, without judicial warrants or permission from the Latino individuals to do so, through the use of force or by manufacturing “consent” from the residents who are unable -- under law or due to the oppressive conditions of the raids -- to give legitimate consent; d. Deploying groups of armed agents to descend upon the homes of Latinos in the pre-dawn hours with the intent to search Latino individuals, without judicial warrants or permission from the Latino individuals to do so, through
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the use of force or by manufacturing “consent” from the

residents who are unable -- under law or due to the

oppressive conditions of the raids -- to give legitimate

consent;

e. Unlawfully identifying and targeting locations based on the

belief that Latino individuals are known to live in or

frequent such locations;

f. Designing raids with the intent to detain, interrogate and

seize Latinos based on their race, national origin or

ethnicity;

g. Conducting raids without performing adequate pre-raid

investigations of the targets and/or locations of such raids;

h. Conducting raids without providing effective and/or

adequate training for the agents carrying out such raids;

i.

Teaching, training, condoning, or encouraging law

enforcement officers to target, enter or search homes or

detain, seize or interrogate individuals in the manner

described above;

3. With respect to the claims set forth in the First and Second Claims, issue

an order compelling Defendants, their agents, employees and successors in

office and all other acting in concert with them, to:

a. Implement and ensure compliance with policies that require

law enforcement agents to accurately record the consent

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they receive to enter homes that are targeted as part of ICE initiatives; b. Implement, maintain and update internal ICE databases to ensure that ICE agents do not (i) raid locations unnecessarily and unjustifiably, and/or (ii) repeatedly raid locations unnecessarily and unjustifiably; c. Design and maintain adequate training courses for ICE agents involved in ICE initiatives involving home raids; d. Implement corrective measures to prevent any policies, patterns and practices that teach, train, condone or encourage law enforcement officers to act in the constitutionally deficient manner described herein; 4. Award the named Plaintiffs actual, compensatory, and punitive damages for violations of the Fourth and Fifth Amendments to the United States Constitution and their Bivens claim; 5. Award the FTCA Plaintiffs actual and compensatory damages for their claims pursuant to the Federal Tort Claims Act; 6. Award Plaintiffs costs of this action; 7. Award Plaintiffs pre- and post-judgment interest, as permitted by law; 8. Award Plaintiffs reasonable attorneys’ fees; and 9. Grant Plaintiffs such other relief as the Court deems appropriate and just.
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 Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 1 of 46

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
- against -
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

ECF Case 07 Civ. 8224 (JGK) (FM)

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT AGAINST DEFENDANTS MICHAEL CHERTOFF,
JULIE MYERS, JOHN TORRES, AND MARCY FORMAN

DAVID BOBER SHANE CARGO BRANDON COWART ALLISON PENN KRISTIN L. VASSALLO Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants 86 Chambers Street New York, New York 10007 (212) 637-2800

Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 2 of 46
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 THE ALLEGATIONS OF THE COMPLAINT..............................................................................4
A. Complaint Locations ................................................................................................4 B. Allegations Against Former High-Ranking Officials ..............................................6
1. Michael Chertoff ..........................................................................................6 2. Julie Myers...................................................................................................8 3. John Torres...................................................................................................9 4. Marcy Forman............................................................................................10 C. Causes of Action ....................................................................................................11 1. Equitable Relief Arising from Alleged
Fourth Amendment Violations ..................................................................11 2. Equitable Relief Arising from Alleged
Fifth Amendment Violations .....................................................................11 3. Bivens Claims for Alleged Fourth
and Fifth Amendment Violations...............................................................11 PROCEDURAL HISTORY...........................................................................................................12 ARGUMENT
THE COMPLAINT SHOULD BE DISMISSED AS AGAINST THE HIGH-RANKING OFFICIALS .............................................................14 A. Applicable Legal Principles ...................................................................................14
1. Standard of Review....................................................................................14 2. Post-Iqbal Supervisory Liability................................................................15 B. Plaintiffs Fail to State a Plausible Claim of Fourth Amendment Bivens Violations by the High-Ranking Officials ............................18 1. Plaintiffs Offer No Plausible Allegations That
the High-Ranking Officials Created Unconstitutional Policies .................19
i

Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 3 of 46 2. Plaintiffs’ Failure-to-Remedy Claim is Insufficient ..................................23 3. Plaintiffs’ Planning Theory as to Torres and Forman Must Be Dismissed ................................................................26
C. The Complaint Fails to Plead Plausible Equal Protection Violations by the High-Ranking Officials............................................27 1. Legal Standards Pertaining to Equal Protection Claims ............................28 2. Plaintiffs Have Not Plausibly Alleged That ICE Enforces the Immigration Laws With Intentional Discriminatory Animus....................29
D. The Complaint Fails to State a Claim for Injunctive Relief Against the High-Ranking Officials ..........................................35
CONCLUSION ..............................................................................................................................40
ii

Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 4 of 46

TABLE OF AUTHORITIES

Cases:

page

Aguilar v. Immigration & Customs Enforcement, 255 F.R.D. 350 (S.D.N.Y. 2008)………….....1

Ajaj v. MacKechnie, No. 07 Civ. 5959 (PKC) (DCF), 2008 WL 3166659 (S.D.N.Y. Aug. 4, 2008) .....................................................................16

Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2d Cir. 1987)............................................................15

Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) ............................................................15, 29, 36, 40

Argueta v. U.S. Immigration & Customs Enforcement, No. 08-1652 (PGS), 2010 WL 398839 (D.N.J. Jan. 27, 2010) ...........................................................................18

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).............................................................................. passim

Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007)...................................................................14

Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2009 WL 1835939 (S.D.N.Y June 26, 2009) ............................................................ passim

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) ............................................1

Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) .................................................29, 30

Carlson v. Green, 446 U.S. 14 (1980)............................................................................................40

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................37, 38

Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995) .............................................................................16

Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001).......................................................................40

Cuevas v. City of New York, No. 07 Civ. 4169 (LAP), 2009 WL 4773033 (S.D.N.Y Dec. 7, 2009) ................................................................21, 22

Gonzalez v. Wright, No. 07 Civ. 2898 (CM) (MHD), __ F. Supp. 2d __, 2009 WL 3149448 (S.D.N.Y. Sept. 30, 2009)...................................................................17

Harrison v. Goord, No. 07 Civ. 1806 (HB), 2009 WL 1605770 (S.D.N.Y. June 9, 2009) ...........25

Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999) ................................................29, 30

Hayden v. Paterson, __ F.3d __, 2010 WL 308897 (2d Cir. Jan. 28, 2010)............................30, 31

iii

Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 5 of 46
Helios & Matheson North Am., Inc. v. Vegasoft Oy, No. 07 Civ. 3600 (PAC), 2007 WL 1541204 (S.D.N.Y. May 24, 2007) ...................................................................39
Island Lathing & Plastering v. Travelers Indem. Co., 161 F. Supp. 2d 278 (S.D.N.Y. 2001) ......35 Joseph v. Fischer, No. 08 Civ. 2824 (PKC) (AJP),
2009 WL 3321011 (S.D.N.Y. Oct. 8, 2009) ......................................................................16 JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990) .............................................38 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................39 Mateo v. Fischer, No. 08 Civ. 7779 (RJH) (DCF),
2010 WL 431229 (S.D.N.Y. Feb. 8, 2010) .......................................................................25 Missel v. County of Monroe, No. 09-0235-cv, 2009 WL 3617787 (2d Cir. Nov. 4, 2009) ..........21 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) .................................................................36 Moore v. City of New York, No. 08 Civ. 8879,
2010 WL 742981 (S.D.N.Y. Mar. 2, 2010) .......................................................................40 Newton v. City of New York, 640 F. Supp. 2d 426 (S.D.N.Y. Jul. 31, 2009) ........................16, 28 Querry v. Smale, No. 09 CV 0215 (WQH) (POR),
2009 WL 2151896 (S.D. Cal. Jul. 15, 2009) .....................................................................21 Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008)............................................................................37 Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119 (2d Cir. 1991) .....................................................35 Rothman v. Gregor, 220 F.3d 81 (2d Cir. 2000)............................................................................35 Sash v. United States, No. 08 Civ. 8332 (AJP),
2009 WL 4824669 (S.D.N.Y. Dec. 15, 2009) ...................................................................17 Shain v. Ellison, 356 F.3d 211 (2d Cir. 2004) .........................................................................37, 38 Spear v. Hugles, No. 08 Civ. 4026 (SAS), 2009 WL 2176725 (S.D.N.Y. Jul. 20, 2009) .............16 Tavarez v. Reno, 54 F.3d 109 (2d Cir. 1995) ................................................................................36 Thomas v. Coombe, No. 95 Civ. 10342 (HB), 1998 WL 391143 (S.D.N.Y. Jul. 13, 1998).........25 Thompson v. Upshur County, 245 F.3d 447 (5th Cir. 2001).........................................................36
iv

Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 6 of 46 Tom Doherty Assocs., Inc. v. Saban Entm’t, 60 F.3d 27 (2d Cir. 1995).......................................39 Turkmen v. Ashcroft, 589 F.3d 542 (2d Cir. 2009) .......................................................................36 United States v. Montes-Reyes, 547 F. Supp. 2d 281 (S.D.N.Y. 2008) ........................................21 Vera v. New York State Dept. of Correctional Servs., No. 08 Civ. 9636 (DC),
2009 WL 4928054 (S.D.N.Y. Dec. 21, 2009) ...................................................................17 Westbrook v. City University of New York, 591 F. Supp. 2d 207 (E.D.N.Y. 2008) ....................25 Federal Statute and Federal Rules of Civil Procedure: 42 U.S.C. § 1983......................................................................................................................15, 36 Fed. R. Civ. Proc. 8(a)(2)...............................................................................................................14 Fed. R. Civ. Proc. 12(b)(6). ................................................................................................... passim
v

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PRELIMINARY STATEMENT Defendants Michael Chertoff, the former Secretary of the United States Department of Homeland Security (“DHS”); Julie Myers, the former Assistant Secretary of Immigration and Customs Enforcement (“ICE”); John Torres, the former Director of ICE’s Office of Detention and Removal Operations (“DRO”); and Marcy Forman, the former Director of ICE’s Office of Investigations (“OI”) (collectively, the “High-Ranking Officials”), respectfully submit this memorandum of law in support of their motion to dismiss the Fourth Amended Complaint, dated December 21, 2009 (“Cmplt.”), as against them in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure and the Supreme Court’s construction of that rule in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This action arises from the efforts of DHS and ICE to remove illegal aliens from the United States—in particular, gang members and aliens who illegally remained in the country after disregarding removal orders. Plaintiffs, 25 individuals who lived in Suffolk, Nassau, and Westchester counties, contend that ICE officers and agents entered their residences without consent in violation of the Fourth Amendment and that ICE unconstitutionally targets Latinos in violation of the Equal Protection Clause of the Fifth Amendment. Plaintiffs seek equitable relief, damages from the United States under the Federal Tort Claims Act, and damages from 68 individual defendants under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). As this Court has noted, the “fundamental question” posed in this case is “whether [plaintiffs’] constitutional rights were violated because the ICE agents did not seek their consent before entering their homes.” Aguilar v. Immigration & Customs Enforcement, 255 F.R.D. 350, 361 (S.D.N.Y. 2008). And yet, more than two years after filing their initial complaint, plaintiffs filed a fourth amended complaint to assert Bivens claims against the High-Ranking Officials,

Case 1:07-cv-08224-KBF-FM Document 221 Filed 03/29/10 Page 8 of 46
none of whom was present during the actual operations. For several reasons, the complaint should be dismissed as against them.
First, as to the alleged Fourth Amendment violations, a Bivens cause of action against supervisors cannot succeed based merely on the defendant’s position of authority. Rather, the law requires supervisory defendants to have had direct, personal involvement in the alleged constitutional deprivations. Here, plaintiffs do not allege that the High-Ranking Officials were present during the incidents or that they ordered the alleged violations. Instead, they assert three theories of liability against them: (i) that the High-Ranking Officials created and implemented policies under which alleged constitutional violations occurred; (ii) that they failed to adequately respond to complaints of alleged constitutional violations; and (iii) with respect to defendants Torres and Forman, that they implemented certain nationwide programs under which the specific operations took place. Each of these theories must be rejected.
Plaintiffs’ first theory must fail because it was rejected by the Supreme Court in Iqbal, where the plaintiff alleged that John Ashcroft was the “principal architect” of the challenged detention policy and that Robert Mueller was “instrumental in [its] adoption, promulgation, and implementation.” Iqbal, 129 S. Ct. 1944 (quoting complaint). The complaint here is no different, alleging that Chertoff was DHS’s “ultimate decision maker,” and that he “created, approved, and implemented official policies” that were “intended to violate constitutional rights.” Cmplt. ¶ 73. Moreover, even if creating an unconstitutional policy were a basis for post-Iqbal liability, plaintiffs have not identified any policy requiring, or even permitting, ICE agents to enter homes without consent.
Plaintiffs’ second theory—failure to adequately respond—must also be rejected. First, because many of the complaints that plaintiffs allege were ignored post-date the incidents
2

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detailed in the complaint, the High-Ranking Officials could not have responded before the events at issue, even if they had an obligation to do so. Second, even if supervisory liability could be based on a supervisor’s failure to intervene, plaintiffs do not meet that standard here. Being placed “on notice”—through newspaper articles and the like—of alleged misconduct by lowlevel, non-policy-making individuals within a large federal agency does not trigger personal liability on the part of high-level supervisors for all future misconduct. This is especially so absent any allegation that the High-Ranking Officials issued a policy, or implemented a practice, requiring or authorizing employees to violate constitutional rights.
The Court also should reject plaintiffs’ third theory, that defendants Torres and Forman are liable because they implemented programs under which the specific operations took place. Although plaintiffs allege that Torres was an “approving official” and was involved in “operational planning and execution,” Cmplt. ¶ 86, they never identify anything within these plans requiring or permitting ICE officers to enter homes without consent. Similarly, plaintiffs allege that Forman “was in charge of overseeing training,” id. ¶ 90, but they never allege that ICE agents are trained to enter homes without consent; nor do they identify training deficiencies for which Forman would be responsible.
Nor can plaintiffs proceed on their theory that the High-Ranking Officials violated the Equal Protection Clause because they allegedly created a policy or custom of selectively enforcing the immigration laws against Latinos. To prevail on such a claim, plaintiffs must plead non-conclusory factual allegations showing that the defendants “acted with discriminatory purpose,” Iqbal, 129 S. Ct. at 1948, and undertook a course of action “because of, not merely in spite of, the action’s adverse effects upon an identifiable group.” Id. Plaintiffs have not done this; rather, they allege that the High-Ranking Officials must have intentionally discriminated
3

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against Latinos because their agencies’ enforcement operations affected Latino communities. But the Supreme Court rejected precisely this legal theory in Iqbal, when it concluded that claims against high-level supervisors could not proceed when the plaintiffs asked the Court to infer discrimination against Arab Muslims from post-September 11 operations that, unsurprisingly, impacted Arab Muslims. Here, that the operations at issue—targeting members of gangs and other alien absconders—affected Latinos is unsurprising, and cannot plausibly lead to the conclusion that the High-Ranking Officials (or anyone at ICE) intentionally discriminated against Latinos.
Finally, plaintiffs fail to state a claim for injunctive relief against the High-Ranking Officials. First, they cannot meet the irreparable-injury requirement because (i) they have not identified a policy requiring agents to enter homes without consent; (ii) more than three years, in some cases, have passed without incident since the operations occurred; and (iii) a Bivens claim for damages is available to remedy any future violations by ICE agents. Second, because the High-Ranking Officials no longer hold the positions they did in 2007, an injunction against them, as individuals, would not redress the policies about which plaintiffs complain. And because plaintiffs seek an injunction altering ICE’s enforcement activities, to the extent an injunction should issue, ICE (or an official-capacity defendant), rather than any individual-capacity defendant, would be the proper party to implement the terms of such an injunction.
THE ALLEGATIONS OF THE COMPLAINT A. Complaint Locations
Plaintiffs, who live or lived in Suffolk, Nassau, and Westchester counties, are persons of unspecified status, lawful permanent residents, and United States citizens. The complaint alleges that in eight separate incidents—four that were conducted by ICE’s Office of Detention and Removal Operations in February, March, and April of 2007, and four that were conducted by
4

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ICE’s Office of Investigations during the week of September 24, 2007—ICE officers and agents violated the Fourth Amendment by entering plaintiffs’ residences without consent or other legal justification. Plaintiffs also claim that ICE unconstitutionally targets Latinos in violation of the Equal Protection Clause of the Fifth Amendment. According to the complaint, the alleged illegal entries were “part of a broad pattern and practice, if not official policy, of ICE.” Cmplt. ¶ 426.
The complaint alleges the following about the operations: On the morning of February 20, 2007, several ICE officers arrived at the East Hampton home of five plaintiffs. Id. ¶¶ 191-93. Someone answered the door, but ICE officers entered without consent, searched without permission, and detained family members living there. Id. ¶¶ 23, 190-241. On the same morning, ICE officers went to the East Hampton home of another plaintiff, forcibly entered her home, and while arresting her, exacerbated a pre-existing injury to her arm. Id. ¶¶ 25, 242-85. On March 19, 2007, ICE officers “burst into” several rooms within a large boarding house in Mount Kisco, New York, id. ¶¶ 311, 313, then arrested many individuals who were living there, including three plaintiffs, id. ¶¶ 29, 307-23. A similar incident occurred on April 18, 2007, at a rooming house in Riverhead, New York, when ICE officers “burst into” five plaintiffs’ bedrooms and later arrested them. Id. ¶¶ 27, 286-306. On the morning of September 24, 2007, ICE agents arrived at the Westbury home of three plaintiffs and entered when a minor opened the door. Id. ¶¶ 31, 324-42. The agents entered another Westbury home the same morning, and one agent pointed a gun at a plaintiff’s chest. Id. ¶¶ 33, 343-53. On September 27, 2007, ICE agents went to two homes in Huntington Station, New York. At one home, a team of ICE agents and assisting police officers intimidated a plaintiff,
5

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who was outside near his vehicle, then “slipped past” another plaintiff and searched the inside of the house. Id. ¶¶ 35, 354-376. At the other house, ICE agents “pushed past” a plaintiff, detained other plaintiffs and their relatives, and entered another plaintiff’s room without waking her. Id. ¶¶ 412, 418. According to the complaint, ICE agents had been to the same location, looking for the same person, in August 2006. Id. ¶¶ 37-38, 377-418. B. Allegations Against Former High-Ranking Officials
The complaint alleges the following with respect to the High-Ranking Officials: 1. Michael Chertoff Michael Chertoff, the former Secretary of Homeland Security, is sued in his individual capacity. Id. ¶ 72. Chertoff was charged with “implementation of the Immigration and Nationality Act,” and supervising other high-ranking officials. Id. As the “ultimate decision maker,” Chertoff “created, approved, and implemented official policies and strategies.” Id. ¶ 73. As Secretary of Homeland Security, Chertoff had ultimate supervisory responsibility for more than 200,000 employees and a budget of approximately $40 billion.1 In late 2005 and early 2006, Chertoff and Myers “conceived and announced the Secure Border Initiative (‘SBI’), which was a comprehensive and aggressive immigration enforcement strategy for the United States.” Id. According to the complaint, “Operations Cross Check, Return to Sender and Community Shield were conducted under the SBI,” and “Defendant Chertoff intended to violate constitutional rights by, inter alia, implementing these policies.” Id.
1 See, e.g., http://www.dhs.gov/xabout/. The Department of Homeland Security includes, among other agencies, the Transportation Security Administration, United States Customs and Border Protection, United States Citizenship and Immigration Services, ICE, the United States Secret Service, the Federal Emergency Management Agency, and the United States Coast Guard. See http://www.dhs.gov/xlibrary/photos/orgchart-web.png.
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Chertoff, “as a result of being the Secretary of DHS, was involved in the planning and/or investigation of ICE agents’ conduct during raids.” Id.
One of Chertoff’s “overarching goals” was to expand the alien apprehension programs. Id. ¶ 74. Thus, he “approved an 800 percent increase in the goal for arrests per team, which led to ICE customs and policies that regularly ran afoul of constitutional rights.” Id. Plaintiffs allege that “Chertoff encouraged, endorsed, and thus intended the unconstitutional conduct by ICE during home raids.” Id. ¶ 75. This is demonstrated by “Chertoff’s response (or lack thereof)” to newspaper articles and letters. Id. On May 23, 2007, Chertoff received a letter from counsel to a non-party in this action “detailing the ICE Agents’ warrantless, nonconsensual entry into 165 Main Street, Mt. Kisco, New York.” Id. ¶ 75(a). The letter alleged that a man living at that address was restrained until he produced proof of legal status. Id. The complaint does not state whether Chertoff responded.
In June 2007, Senators Dodd and Lieberman sent Chertoff a joint letter requesting that he respond to allegations that ICE agents unlawfully entered homes in New Haven, Connecticut. Id. ¶ 75(b). Chertoff responded—his letter is Exhibit 6 to the complaint—“without adequate investigation or basis.” Id. Chertoff’s response “was made either with actual knowledge of falsity or with reckless disregard as to truth or falsity” because the statements in the letter were, two years later, refuted by an immigration judge. Id.
Citing a newspaper article dated October 3, 2007 (Ex. 11), the complaint recounts how Thomas Suozzi, the former Nassau County Executive, alleged “numerous deficiencies” with ICE operations that occurred during the week of September 24, 2007. Id. ¶ 75(c). Chertoff drafted a response “a mere two days” after receiving Suozzi’s letter, but then asked Myers, then the head of ICE, to respond on his behalf. Id. Because Myers’ response, sent a “full seventeen days”
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after Chertoff received Suozzi’s letter, was “substantially the same” as Chertoff’s initial draft, plaintiffs conclude that Chertoff and Myers “did not plan to conduct an investigation into the matter, and instead planned on blindly defending ICE from all allegations of misconduct.” Id.
The complaint alleges that Chertoff later received various letters concerning allocation of ICE resources (Ex. 12), handling of children who participate in federally assisted programs (Ex. 13), and medication of detainees (Ex. 14), id. ¶ 75(d), but does not state whether Chertoff responded. Id.
The complaint concludes that “[a]s the ultimate decision-maker and final policy-maker for ICE, Defendant Chertoff had a duty to fully investigate the above allegations and immediately take corrective measures.” Id. ¶ 76. Instead, Chertoff “allowed, condoned, and actively defended and encouraged ICE’s custom or practice of violating constitutional rights during home raids.” Id.
2. Julie Myers Julie Myers, who was “during at least part of the relevant time” the Assistant Secretary of ICE, is also sued individually. Id. ¶ 78. Myers was charged with implementing immigration law, she worked “hand-in-hand” with Chertoff, and she “supervised all aspects of ICE.” Id. As Assistant Secretary of ICE, which is the largest investigative branch within DHS, Myers had ultimate supervisory responsibility for more than 15,000 employees and a budget exceeding $3 billion. Id. Ex. 1 at 29 & Ex. 16 at 2. Myers “was closely involved in numerous aspects of the raids at issue.” Id. ¶ 79. She and Chertoff were responsible for “creating and implementing ICE’s overall comprehensive immigration enforcement strategy,” and “conceiv[ing] and promulgat[ing] the SBI.” Id. “Upon information and belief, Defendant Myers approved Defendant Torres’s astounding 800% goal
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increase of target apprehensions for each fugitive operations team, as well as his policy guidance that allowed each team to count ‘collateral’ arrests for purposes of achieving that goal.” Id. ¶ 80.
Second, Myers “coordinated ICE’s response to the Nassau County allegations” and oversaw an “inadequate investigation into internal allegations of racial profiling.” Id. “Upon information and belief, Defendant Myers received regular briefings on newspaper articles concerning ICE’s unconstitutional conduct and was therefore fully aware of the contents of all articles discussed above.” Id. ¶ 81. Myers had a “duty to take corrective measures when faced with this knowledge,” but instead “condoned and endorsed this unconstitutional conduct.” Id.
3. John Torres John Torres, the former Director of DRO, is also sued individually. Id. ¶ 83. As director, Torres “worked closely with his supervisors, Defendants Chertoff and Myers in setting ICE DRO policies and practices.” Id. Torres “was responsible for the apprehension, detention and removal of foreign nationals charged with violation of immigration law and the supervision of sworn law enforcement officers assigned to [DRO] field offices, including the field office” in New York. Id. As the Director of DRO, Torres had supervisory responsibility for more than 4,000 employees working in 23 field offices, and a budget exceeding $1 billion. Id. Ex. 1 at 29 & Ex. 16 at 2. Torres created, and later defended, “a new goal of 1,000 arrests per year for fugitive operations teams.” Id. ¶ 84. Torres stated that collateral arrests would count towards that goal, “knowing and intending that this would lead ICE to design operations to maximize the number of collateral arrests.” Id. In so doing, “Torres intended to violate constitutional rights.” Id. Torres also “issued memoranda” concerning (i) “protocols . . . , case management, procedures for keeping records, and dispute resolution,” and the use of ruses; and (ii) “objectives, target priorities, and reporting requirements for Operation Cross Check.” Id.
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¶¶ 85-86. Torres “was the approving official for the operational plans for Return to Sender and Cross Check.” Id. ¶ 86. Finally, Torres was involved in “coordinating, editing, and ultimately approving” a response to DHS’s report concerning fugitive operations teams. Id. ¶ 87. By “minimiz[ing] the effects” of the report, Torres “actively defended ICE’s custom or policy of unconstitutional conduct.” Id.
4. Marcy Forman Marcy Forman, the director of ICE’s Office of Investigations in 2006 and 2007, is also sued individually. Id. ¶ 89. As the Director of OI, “Defendant Forman worked closely with her supervisors, Defendants Chertoff and Myers, in setting ICE OI policies and customs.” Id. As director of ICE’s Office of Investigations, Forman supervised approximately 8,000 employees and administered a budget of approximately $1.6 billion.2 Forman “played a significant role in the planning of the ICE raids in Nassau County in September 2007.” Cmplt. ¶ 90. “Upon information and belief, Defendant Forman was in charge of overseeing training and setting policy regarding ICE agent conduct during home raids.” Id. By “implementing these policies,” Forman “intended to violate constitutional rights.” Id. Forman issued the same kinds of policy memoranda that Torres did. Id. ¶ 91. “Upon information and belief,” Forman continued to authorize operations “after becoming aware of concerns about the constitutionality of ICE agents’ conduct through press reports and internal investigations.” Id. ¶ 92. Also, “[u]pon information and belief, Defendant Forman did not address lapses in training or otherwise change the instructions that agents under her supervision were expected to obey.” Id.
2 See http://www.ice.gov/about/ leadership/invest_bio/marcy_forman.htm.
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C. Causes of Action The complaint seeks three types of relief from all of the individual defendants, including
the High-Ranking Officials: equitable relief arising from alleged Fourth Amendment violations, id. ¶¶ 454-69 (first claim); equitable relief arising from alleged Fifth Amendment violations, id. ¶¶ 470-83 (second claim); and Bivens damages for alleged violations of the Fourth and Fifth Amendments, id. ¶¶ 484-89 (third claim).
1. Equitable Relief Arising from Alleged Fourth Amendment Violations Plaintiffs’ first claim seeks injunctive and declaratory relief against all defendants “to redress continuing and likely future violations of the Fourth Amendment.” Id. ¶ 455. Plaintiffs allege that defendants have “officially implemented, enforced, encouraged and/or sanctioned a policy, practice and/or custom of” unconstitutionally searching and entering homes and unconstitutionally searching and seizing persons. Id. ¶ 456. The complaint alleges that plaintiffs and the proposed class—Latinos who reside in the New York metropolitan area—“are entitled to the issuance of a permanent injunction prohibiting Defendants from engaging in the unlawful and abusive practices alleged herein.” Id. ¶ 466. 2. Equitable Relief Arising from Alleged Fifth Amendment Violations Plaintiffs’ second claim seeks injunctive and declaratory relief against all defendants “to redress continuing and likely future violations of the Equal Protection Clause of the Fifth Amendment.” Id. ¶ 471. Plaintiffs allege that defendants unconstitutionally enter homes where Latinos are believed to reside. Id. ¶ 474. 3. Bivens Claims for Alleged Fourth and Fifth Amendment Violations Plaintiffs’ third claim seeks money damages against the Bivens defendants. Plaintiffs claim that the High-Ranking Officials “failed to intervene to protect Plaintiffs’ constitutional rights from infringement, were grossly negligent in supervising subordinates who committed the
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wrongful acts, and/or aided and abetted and/or conspired to deprive, participated in depriving, and/or did deprive Plaintiffs of certain constitutionally protected rights.” Id. ¶ 485. The complaint alleges that the individual defendants violated their rights under both the Fourth and Fifth Amendments. Id.
PROCEDURAL HISTORY Plaintiffs filed this action on September 20, 2007. The first complaint concerned only DRO operations, but plaintiffs amended their complaint on October 4, 2007, to incorporate allegations concerning OI operations conducted on Long Island during the week of September 24, 2007. An equal protection claim was added in the third amended complaint, filed on March 6, 2009. On May 18, 2009, the Supreme Court decided Iqbal, and on July 10, 2009, defendants advised plaintiffs that they would be seeking dismissal of (i) all claims against the supervisors on the basis that the Supreme Court had rejected the “knowledge and acquiescence” theory of Bivens liability; and (ii) plaintiffs’ equal protection claim because the complaint contained no plausible factual allegations concerning any defendant’s intentional discrimination on the basis of race or national origin.3 Plaintiffs subsequently sought leave to amend their complaint a fourth time, adding as Bivens defendants four additional ICE agents, two additional supervisors, two high-level former directors (John Torres and Marcy Forman), and two former agency heads (Michael Chertoff and Julie Myers). According to a September 10, 2009, letter to Judge Maas, although plaintiffs
3 Subject to the Court’s permission, and in an attempt to limit motion practice and expenditure of judicial resources, defendants propose to file their motion to dismiss the equal protection claim in conjunction with renewing their motion to dismiss plaintiffs’ injunction claim for lack of standing.
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disagreed with defendants’ position that the third amended complaint failed to meet Iqbal’s pleading standards, plaintiffs “determined that the best way to avoid burdening the Court with unnecessary motion practice was to file a comprehensive complaint that included information learned during discovery or from recently released, publicly available information.” See Sept. 10, 2009, letter from Donna Gordon to Magistrate Judge Maas, at 2. Plaintiffs stated that the proposed fourth amended complaint “names Mr. Chertoff and Ms. Myers in their individual capacities based upon information learned during discovery.” Id.
Following pre-motion letters and a conference, Magistrate Judge Maas permitted full briefing concerning plaintiffs’ motion for leave to amend, and the new agents, directors, and agency heads opposed amendment. See Docket No. 174. On December 14, 2009, the Court granted leave to amend, see Docket No. 199, and plaintiffs filed the fourth amended complaint on December 21, 2009, see Docket No. 202.
Defendants made a first production of documents—nearly 1,000 pages of policy materials—on November 9, 2007, in connection with their motion to dismiss plaintiffs’ injunction claim for lack of standing. Defendants produced additional documents starting in June 2008, and as of December 21, 2009, the date the fourth amended complaint was filed, defendants had produced more than 40,000 pages of documents, including all relevant policies and approximately 12,000 pages of training materials. At the time, plaintiffs had taken 31 defendant depositions and 10 third-party depositions, including the depositions of Nassau and Suffolk police officers who assisted with the September 2007 operations.
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ARGUMENT THE COMPLAINT SHOULD BE DISMISSED AS AGAINST THE HIGH-RANKING OFFICIALS A. Applicable Legal Principles 1. Standard of Review Under Rule 8, a complaint must include a “statement of the claim showing that the pleader is entitled to relief,” see Fed. R. Civ. Proc. 8(a)(2); and under Rule 12, a defendant may assert that the complaint “fail[s] to state a claim upon which relief may be granted,” see Fed. R. Civ. Proc. 12(b)(6). In Iqbal, the Supreme Court articulated and clarified two important principles concerning the construction of Rules 8 and 12. See 129 S. Ct. at 1944. First, the Court held that Twombly’s heightened pleading standard, which incorporates “plausibility” analysis, applies to all federal civil cases, not just those involving conspiracy or other claims requiring “amplification.” Iqbal, 129 S. Ct. at 1949 (relying on Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555-57 (2007)). Conclusory allegations, including the “formulaic recitation of the elements of a cause of action,” are not entitled to a presumption of truth. Iqbal, 129 S. Ct. at 1949-50 (internal quotations omitted). Thus, when considering a motion to dismiss, the court must first disregard “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. at 1949 (quoting Twombly, 550 U.S. at 557). Then, when considering the factual (i.e., nonconclusory) allegations that remain, the court must assess whether they “plausibly give rise to an entitlement to relief” by presenting “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’ in that ‘the court [can] draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id. at 1949-50 (quoting Twombly, 550 U.S. at 570). Merely pleading facts “consistent with a defendant’s liability . . . stops short of the line between possibility and plausibility.” Id. at 1949. Thus, instead of accepting Iqbal’s claim that
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Ashcroft and Mueller implemented a discriminatory policy, the Supreme Court found it more plausible that the arrest of Arab Muslim men was justified by a nondiscriminatory purpose— namely, detaining illegal aliens with potential ties to Islamic terrorists. Id. at 1951.
Second, the Supreme Court rejected the notion that a plaintiff may file a conclusory complaint, then use civil discovery to augment the allegations to withstand a motion to dismiss. Id. at 1950 (Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). Thus, the Supreme Court explicitly rejected the Second Circuit’s “careful-case-management approach,” namely, that a court may postpone deciding a motion to dismiss pending tightly controlled discovery. Id. at 1954 (“Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”).
2. Post-Iqbal Supervisory Liability The Bivens cause of action “is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Iqbal, 129 S. Ct. at 1948 (internal quotation omitted). To be liable, a Bivens defendant must have been “personally involved in the claimed constitutional violation.” Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009). Because the doctrine of respondeat superior does not apply, see Iqbal, 129 S. Ct. at 1948, “[a] supervisory official cannot be liable solely on account of the acts or omissions of his or her subordinates,” Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009) (citation omitted). Thus, as the Second Circuit has long recognized, a Bivens complaint that does not allege the personal involvement of each defendant is “fatally defective on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal quotations and citations omitted). In 1995, the Second Circuit held that personal involvement of supervisory defendants may be shown by evidence that they: (i) directly participated in the infraction; (ii) failed to
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remedy the wrong even after learning of a violation through a report or appeal; (iii) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (iv) acted in a grossly negligent manner in managing subordinates who caused the unlawful condition or event; or (v) demonstrated deliberate indifference to the constitutional rights of the plaintiff by failing to act on information demonstrating that unconstitutional practices were taking place. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Thereafter, courts in this Circuit applied these categories to determine if complaints adequately alleged Bivens defendants’ personal involvement. See, e.g., Ajaj v. MacKechnie, No. 07 Civ. 5959 (PKC) (DCF), 2008 WL 3166659, at *5 (S.D.N.Y. Aug. 4, 2008).
But in 2009, the Supreme Court decided Iqbal, and courts in this district have found that Iqbal “abrogate[d] several of the categories of supervisory liability enumerated in Colon.” Bellamy, 2009 WL 1835939, at *6; see also Joseph v. Fischer, No. 08 Civ. 2824 (PKC) (AJP), 2009 WL 3321011, at *14 n.6 (S.D.N.Y. Oct. 8, 2009) (“[U]nder Iqbal, a defendant can be liable under section 1983 only if that defendant took an action that deprived the plaintiff of his or her constitutional rights. A defendant is not liable under section 1983 if the defendant’s failure to act deprived the plaintiff of his or her constitutional right.”) (citing Bellamy, 2009 WL 1835939, at *6); Newton v. City of New York, 640 F. Supp. 2d 426, 448 (S.D.N.Y. Jul. 31, 2009) (citing Bellamy and holding that “passive failure to train claims . . . have not survived” Iqbal); Spear v. Hugles, No. 08 Civ. 4026 (SAS), 2009 WL 2176725, at *2 (S.D.N.Y. Jul. 20, 2009) (“[O]nly the first and third Colon factors have survived the Supreme Court’s decision in Iqbal.”).
Under Iqbal’s “active conduct” standard, a Bivens claim exists against a supervisor only “if that supervisor actively had a hand in the alleged constitutional violation.” Bellamy, 2009 WL 1835939, at *6. Thus, only the first and third Colon categories have survived because the
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other categories “impose the exact types of supervisory liability that Iqbal eliminated—situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate.” Bellamy, 2009 WL 1835939, at *6; but see Sash v. United States, No. 08 Civ. 8332 (AJP), 2009 WL 4824669, at *11 (S.D.N.Y. Dec. 15, 2009) (stating in dicta that the Bellamy line of cases “may overstate Iqbal’s impact on supervisory liability.”).
This Court should follow the Bellamy line of cases. Iqbal did not, as the Sash decision suggests, limit its holding to constitutional claims brought under the Equal Protection Clause.4 Rather, it explained that the term “supervisory liability” is a misnomer in Bivens actions, and that in “the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability [on] . . . an official charged with violations arising from his or her superintendent responsibilities.” Iqbal, 129 S. Ct. at 1949. Indeed, even the Iqbal dissent acknowledged this point, explaining that the Iqbal majority was “do[ing] away with supervisory liability under Bivens.” Id. at 1954-55; see also id. at 1957 (“[T]he majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely.”). Given the broad
4 Although some courts—see, e.g., Vera v. New York State Dept. of Correctional Servs., No. 08 Civ. 9636 (DC), 2009 WL 4928054, at *3 (S.D.N.Y. Dec. 21, 2009), and Gonzalez v. Wright, No. 07 Civ. 2898 (CM) (MHD), __ F. Supp. 2d __, 2009 WL 3149448, at *22 (S.D.N.Y. Sept. 30, 2009)—have applied all five Colon categories post-Iqbal, they did so without considering Iqbal’s effect on Colon.
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language of Iqbal, the Court should reject any argument that Iqbal did not change the liability standards set forth in Colon.5
B. Plaintiffs Fail to State a Plausible Claim of Fourth Amendment Bivens Violations by the High-Ranking Officials
Plaintiffs’ Fourth Amendment claims against the High-Ranking Officials should be
dismissed because the complaint fails to assert any non-conclusory, plausible allegations that
they were personally involved in the alleged constitutional violations, which occurred at
plaintiffs’ homes. Plaintiffs do not claim that the High-Ranking Officials entered their homes
without consent or even that they ordered their employees to do so. Rather, the complaint seeks
to impose liability based on (i) the High-Ranking Officials’ creation and implementation of
official policy; (ii) their failure to adequately respond to complaints; and (iii) with respect to
defendants Torres and Forman, their purported role in implementing the nationwide programs
under which the specific operations took place. Each of these theories must be rejected.
5 In a recent, unpublished decision, Argueta v. U.S. Immigration & Customs Enforcement, No. 08-1652 (PGS), 2010 WL 398839 (D.N.J. Jan. 27, 2010), a New Jersey district court denied a motion to dismiss by, among others, Torres and Myers. But the court made several significant errors, and its reasoning should not be followed here. First, the opinion misapprehends the import of Iqbal, claiming that “[t]he Iqbal Court did not change the pleading standards as applied by the lower courts,” id. at *6, and that the defendants’ “assertion that Iqbal now stands for the proposition that ‘knowledge and acquiescence’ are insufficient to allege a Bivens claim is misplaced,” id. at *7. Contrast Iqbal, 129 S. Ct. at 1949 (specifically rejecting plaintiff’s argument that defendants can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees”) (quoting Iqbal’s brief). Second, the court limited Iqbal’s holding to only the highest-level officials, see 2010 WL 398839 at *8 (“Myers and Torres are two or three position levels below the Secretary of Homeland Security”), and cases involving governmental disaster response, see id. at *7 (“[U]nlike in Iqbal, the [defendants] were not urgently reacting in the immediate aftermath of a terrorist attack.”). Finally, the court misapplied Iqbal’s plausibility analysis because it considered whether it was plausible that constitutional violations occurred, not whether it was plausible that Myers and Torres were personally involved in such violations. See id. at *9 (“In short, it is plausible that an allegedly unreasonable search was conducted as set forth in the Complaint.”).
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1. Plaintiffs Offer No Plausible Allegations That the High-Ranking Officials Created Unconstitutional Policies
With respect to official policy, the complaint alleges that Chertoff and Myers “conceived and announced” the “comprehensive and aggressive immigration enforcement strategy” known as the SBI, and that various ICE operations were conducted under that initiative. Cmplt. ¶ 73. According to the complaint, Torres created, and Myers and Chertoff approved, an “800 percent increase in the goal for arrests per [fugitive operations] team.” Id. ¶¶ 74, 80, 84. The complaint further asserts that Torres issued, and Myers approved, guidance allowing “collateral arrests made as a part of a headquarters sponsored operation [to] count” toward the arrest goal. Id. ¶¶ 80, 84. Finally, the complaint states that Torres and Forman directed OI and DRO to “closely collaborate[ ]” on their enforcement efforts and issued memoranda “stressing the importance of using ruses in operations.” Id. ¶¶ 85, 91.
First, Iqbal squarely holds that it is insufficient to allege that a high-level official was the architect (Ashcroft) or implemented facially constitutional policies (Mueller) under which constitutional violations allegedly occurred.6 Yet plaintiffs make the same claim here, alleging that Chertoff was “the ultimate decision maker,” and that he “created, approved, and implemented official policies and strategies.” Cmplt. ¶ 73; see also id. ¶¶ 78-79 (Myers “supervised all aspects of ICE” and “was responsible for creating and implementing ICE’s overall comprehensive immigration enforcement strategy”). But swapping “architect” for “decision maker” is not sufficient to plead around Iqbal. Either way, plaintiffs ultimately
6 The complaint in Iqbal challenged the policy of arresting “thousands of Arab Muslim men” following the events of September 11, then detaining them in highly restrictive conditions of confinement until they were “cleared” by the FBI. Iqbal, 129 S. Ct. 1944 (quoting complaint). Plaintiff Iqbal alleged that the policy “was approved by” Ashcroft and Mueller, who allegedly “knew of, condoned, and willfully and maliciously agreed to subject” him to harsh conditions of confinement. Id. (quoting complaint).
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advance a respondeat superior theory of liability; that is, because the High-Ranking Officials occupied positions of authority at the time ICE agents allegedly violated the constitution, they must have been involved in those violations. But the Supreme Court squarely rejected that theory in Iqbal, and permitting it here would be inconsistent with the Supreme Court’s holding.
Second, although in some situations creating an unconstitutional policy may serve as a basis for post-Iqbal Bivens liability, see Bellamy, 2009 WL 1835939, at *6, Iqbal still requires a plaintiff to state non-conclusory facts showing that the officials at issue actually created an unconstitutional policy. See Iqbal, 129 S. Ct. at 1949 (“[t]hreadbare recitals . . . supported by mere conclusory statements” are insufficient). Plaintiffs do not meet this requirement.
The complaint identifies four policies as potential bases for liability: (i) the SBI, “a comprehensive and aggressive immigration enforcement strategy”; (ii) DRO’s increase in the arrest goals for fugitive operations teams; (iii) DRO’s decision to allow “collateral” arrests (i.e., of aliens other than the specific target of an operation) to count toward the increased goal; and (iv) ICE’s alleged use of ruses in enforcement operations. Cmplt. ¶¶ 73-74, 79-80, 84-85, 91. But plaintiffs do not allege any facts connecting these policies to what allegedly happened at their homes, and they do not claim that the policies require, or even authorize, ICE agents to violate the Fourth Amendment rights of persons they encounter. Nor do they assert that the policies themselves are unconstitutional.7
7 This is hardly surprising, for there is nothing inappropriate, let alone unconstitutional, about enforcing immigration law, increasing arrest goals, or tabulating “collateral” arrests. Likewise, although use of a ruse is a factor in determining whether valid consent was obtained, it “does not itself . . . preclude a finding that an authorized person voluntarily consented” to entry. United States v. Montes-Reyes, 547 F. Supp. 2d 281, 290 (S.D.N.Y. 2008). Thus, just as the intimidating use of a firearm might cause the factfinder to conclude that consent was involuntary, the fact that such conduct occurred, without more, would not be sufficient to impose personal liability on the official who generally authorized agents to carry firearms.
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Similarly, although the complaint asserts that the High-Ranking Officials “intended to violate constitutional rights” by “implementing [these] policies,” Cmplt. ¶¶ 73, 80, 84, 90, it contains no facts supporting this conclusory allegation. This is fatal, because under Iqbal, plaintiffs must do more than merely raise the possibility that defendants acted unlawfully; they must instead show plausible entitlement to relief. See Iqbal, 129 S. Ct. at 1949; see also Missel v. County of Monroe, No. 09-0235-cv, 2009 WL 3617787 (2d Cir. Nov. 4, 2009) (affirming dismissal of § 1983 claims; no factual allegations supported a plausible inference that municipality’s policies or customs caused violation of plaintiff’s rights, that municipality failed to train employee, or that plaintiff’s injuries resulted from deliberate indifference); Cuevas v. City of New York, No. 07 Civ. 4169 (LAP), 2009 WL 4773033, at *3, 4 (S.D.N.Y. Dec. 7, 2009) (dismissing cause of action based on city’s policy of “supervisory indifference”; allegations did not show “what the policy [was] or how that policy subjected Plaintiff to suffer the denial of a constitutional right”); Querry v. Smale, No. 09 CV 0215 (WQH) (POR), 2009 WL 2151896, at *4 (S.D. Cal. Jul. 15, 2009) (dismissing, under Iqbal, claims of inadequate screening and hiring because complaint did not describe how practices were deficient or caused injury).8
Not only have plaintiffs failed to allege that the policies were designed to violate constitutional rights, the attachments to the complaint show that these policies were part of the government’s efforts, especially after the attacks of September 11, 2001, to secure the borders and reduce illegal immigration. As explained in Exhibit 1, in 1995, Attorney General Janet Reno called for the creation of “abscondee removal teams” to reduce the number of aliens subject to
8 Likewise, to the extent plaintiffs seek to hold Forman liable for “setting policy regarding ICE agent conduct” during the September 2007 operations in Long Island, see Cmplt. ¶ 90, they may not proceed on such a claim, because they do not identify the “policy” at issue, much less assert non-conclusory allegations explaining how that policy led to unconstitutional conduct by ICE agents. See Cuevas, 2009 WL 4773033, at *4.
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outstanding removal orders. See Cmplt. Ex. 1 at 4. After September 11, the INS created the National Fugitive Operations Program (“NFOP”), id., and “no immigration enforcement program has experienced a more dramatic increase in funding,” id. at 1. NFOP’s funding increased from $9 million in 2003 to more than $218 million in 2008. Id.
In 2005, then-Secretary Chertoff instituted the SBI, a “comprehensive multi-year plan to secure America’s borders and reduce illegal migration.” Id. at 6 n.16. Under the SBI, DHS planned to use congressional appropriations to, among other things, increase border security, expedite detention and removal of illegal immigrants, improve technology and infrastructure, and step up workplace enforcement. Id.
The complaint never explains or alleges facts showing how or why it is plausible that Chertoff, Myers, Torres, and Forman intended to violate constitutional rights by implementing the SBI. In fact, with respect to the NFOP’s apprehension goals, it is not surprising that given the program’s dramatic, 23-fold increase in funding from 2003 to 2008, ICE policymakers would, as a matter of accountability to Congress and the taxpayers, raise apprehension benchmarks. Similarly, although the complaint repeatedly references “home raids,” it does not explain why the goals would require agents to conduct operations at homes as opposed to other locations, like large processing plants or day laborer sites, where agents would presumably find higher concentrations of illegal aliens. Iqbal, 129 S. Ct at 1950 (“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”). Under Iqbal, alleging that the SBI is a “comprehensive and aggressive immigration enforcement strategy,” see Cmplt. ¶¶ 73, 79, and that ICE set accountability goals for itself, is insufficient to state a claim as to the High-Ranking Officials because merely pleading facts “consistent with a defendant’s liability . . .
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stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 129 S. Ct. at 1949 (internal quotations and citations omitted).
Finally, these pleading deficiencies are glaring given the opportunity plaintiffs have already had to conduct discovery. Before plaintiffs filed the fourth amended complaint, defendants had produced more than 40,000 pages of documents, including all relevant policies and approximately 12,000 pages of training materials, and 31 agents had testified about ICE’s policies, including its arrest goals. Had discovery revealed any documents or testimony supporting plaintiffs’ claim that the High-Ranking Officials promulgated unconstitutional policies (or that they intended to violate plaintiffs’ Fourth Amendment rights by implementing such policies), allegations to that effect surely would have appeared in the fourth amended complaint, especially given plaintiffs’ assertion that the complaint is “comprehensive” and based on “information learned during discovery.” See Sept. 9, 2009, letter, at 2. Because they do not make such allegations, plaintiffs have not “show[n] . . . entitle[ment] to relief,” see Fed. R. Civ. Proc. 8(a)(2), that the High-Ranking Officials were personally involved in the Fourth Amendment violations that allegedly occurred at plaintiffs’ homes.
2. Plaintiffs’ Failure-to-Remedy Claim Is Insufficient The complaint also alleges that the High-Ranking Officials failed to adequately respond to allegations concerning ICE’s conduct. See, e.g., Cmplt. ¶¶ 75 (alleging that “Chertoff’s response (or lack thereof) to numerous high profile newspapers articles and letters” demonstrates that he “encouraged, endorsed, and thus intended the unconstitutional conduct by ICE during home raids”); 81 (alleging that Myers “received regular briefings on newspaper articles concerning ICE’s unconstitutional conduct” and therefore had a “duty to take corrective measures when faced this knowledge” but instead “actively condoned and endorsed this unconstitutional conduct”); 87 (alleging that Torres was involved in “coordinating, editing, and
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ultimately approving” a response to DHS’s report concerning fugitive operations teams, and by “minimiz[ing] the effects” of the report Torres “actively defended ICE’s custom or policy of unconstitutional conduct”); 92 (alleging that Forman continued to authorize operations “after becoming aware of concerns about the constitutionality of ICE agents’ conduct through press reports and internal investigations.”). This theory must also be rejected.
First, following Iqbal, high-level officials may not be held liable based on the purported failure to remedy constitutional conduct. As one district court has explained, this theory of liability “impose[s] the exact type[ ] of supervisory liability that Iqbal eliminated—situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate.” Bellamy, 2009 WL 1835939, at *6.
But even if this theory has survived Iqbal, plaintiffs’ claims must still be dismissed because mere receipt of post-conduct complaints cannot confer liability under Bivens. Liability must be based on the defendant’s own misconduct, see Iqbal, 129 S. Ct. at 1949, and the plaintiffs have not plausibly alleged that Michael Chertoff, the former head of a 200,000-person agency with a budget of over $40 billion, committed a Fourth Amendment violation by not responding (if he did not) to an attorney’s letter, see Cmplt. ¶ 75(a), by sending a four-page response to Senator Dodd (Ex. 6) “without adequate investigation or basis,” id. ¶ 75(b), by too quickly drafting a response—“a mere two days after receipt”—to Thomas Suozzi, id. ¶ 75(c), or for any other responses, or non-responses, to alleged complaints that Chertoff received. See, e.g., Mateo v. Fischer, No. 08 Civ. 7779 (RJH) (DCF), 2010 WL 431229, at *4 (S.D.N.Y. Feb. 8, 2010) (“Courts . . . have said that the receipt of letters or grievances, by itself, does not amount to personal involvement.” (collecting cases)); Harrison v. Goord, No. 07 Civ. 1806 (HB), 2009 WL 1605770, at *9 (S.D.N.Y. June 9, 2009) (receipt of letters alleging constitutional violations
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“do[es] not necessarily indicate that those defendants satisfy the personal involvement requirement,” even if letters are ignored); Westbrook v. City University of New York, 591 F. Supp. 2d 207, 225 (E.D.N.Y. 2008) (same); see also Thomas v. Coombe, No. 95 Civ. 10342 (HB), 1998 WL 391143, at *6 (S.D.N.Y. Jul. 13, 1998) (“that an official ignored a letter alleging unconstitutional conduct is not enough to establish personal involvement”).
Nor can plaintiffs succeed on the theory that because the High-Ranking Officials were allegedly put on notice of Fourth Amendment violations, they somehow personally participated in such violations. First, courts in this district to consider the issue have concluded that the second and fifth Colon categories—failure to remedy and deliberate indifference—have not survived Iqbal. See Bellamy, 2009 WL 4824669, at *6 (stating that only the first and third Colon categories “pass Iqbal’s muster,” because “[t]he other Colon categories impose the exact types of supervisory liability that Iqbal eliminated—situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate”). Thus, while plaintiffs may argue that the High-Ranking Officials “had a hand” in creating the policies under which the alleged violations occurred, it cannot be that the High-Ranking Officials’ leadership positions within an agency that launched an immense enforcement initiative means that they are personally liable for every constitutional violation that allegedly occurred in connection with the initiative.
Second, even if a “deliberate indifference” theory were available to plaintiffs, they could not meet the standard here due to the nature and timing of the alleged complaints. According to the complaint, Chertoff did not receive the attorney’s letter regarding 165 Main Street, see Cmplt. ¶ 75(a), until after four of the home operations had occurred, so there is nothing he could have done with respect to those operations. Nor is it clear why Chertoff somehow had an obligation to change official policy after receiving the letter, given that the letter alleged a
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“warrantless, nonconsensual entry,” id. ¶ 75(a), and the complaint nowhere alleges that such entries were required by official policy such that the High-Ranking Officials could have been expected to respond by revising that policy. Similarly, Chertoff’s response to Senator Dodd also does not establish a Fourth Amendment violation, notwithstanding the complaint’s allegations that he responded “without adequate investigation” and “with reckless disregard as to truth or falsity.” Id. ¶ 75(b). Even if true, the facts that Secretary Chertoff sent an inadequately researched letter and that an immigration judge ruled, two years later and apparently without hearing testimony from the agents who were present, that constitutional violations occurred in New Haven, Connecticut, certainly do not establish that the High-Ranking Officials were personally involved with what happened at the eight homes at issue here.
3. Plaintiffs’ Planning Theory as to Torres and Forman Must Be Dismissed As their final theory of liability, plaintiffs allege that defendants Torres and Forman— who each were responsible for supervising thousands of employees and administering budgets in excess of $1 billion—are subject to liability because they helped implement the nationwide programs under which the plaintiffs’ injuries purportedly occurred. In particular, plaintiffs assert that Torres “was the approving official” for Return to Sender and Cross Check operation plans, and that Forman oversaw training for agents who took part in the September 2007 operations. Cmplt. ¶¶ 86, 90. These allegations are insufficient to confer liability. First, although plaintiffs claim that the plans Torres allegedly approved “detailed targets, operational planning and execution, tasks for each group or office involved, coordinating instructions, and logistics,” id. ¶ 86, they never identify anything within these plans requiring or authorizing agents to enter homes without consent. Thus, although plaintiffs have certainly alleged that Torres played some role in implementing agency policy, they have not shown how he was personally involved in the alleged Fourth Amendment violations. Indeed, if approval of a
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large-scale operational plan were sufficient to confer personal liability with respect to any misconduct occurring during the operation, it is difficult to understand why anyone would accept a high-level agency position. See Iqbal, 129 S. Ct. at 1953 (litigation “exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government”). And because liability would be based solely on the employee’s managerial position, rather than personal involvement, it is difficult to imagine under what circumstances an approving official would not be personally liable for misconduct occurring during the operation.
Similarly, although plaintiffs allege that Forman “was in charge of overseeing training and setting policy regarding ICE agent conduct during home raids,” Cmplt. ¶ 90, they never identify which aspect of ICE’s training permits nonconsensual entries of homes, an omission that is glaring given that at the time plaintiffs filed the fourth amended complaint, defendants had produced approximately 12,000 pages of training materials and 31 ICE employees had testified about the training they received. Finally, although plaintiffs claim that Forman “did not address lapses in training,” such “passive failure to train claims . . . have not survived [Iqbal].” Newton v. City of New York, 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009). C. The Complaint Fails to Plead Plausible Equal
Protection Violations by the High-Ranking Officials Plaintiffs’ second and third causes of action, which they purport to bring on behalf of Latinos living in the New York area, seek “injunctive and declaratory relief against Defendants to redress continuing and likely future violations of the Equal Protection Clause of the Fifth Amendment,” Cmplt. ¶ 471, and “the right to be free from discriminatory application of the law and the right to equal protection under the law.” Id. ¶ 485(d). Plaintiffs purport to bring these claims against all defendants—i.e., not only against the United States, DHS, and ICE, but also
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against all the individual-capacity defendants, including the High-Ranking Officials. But any claims against the High-Ranking Officials for purported violations of the Equal Protection Clause should be dismissed.
As an initial matter, although this action is cast as an action for money damages against agency officials in their individual capacities, the equal protection claim is essentially a constitutional challenge to executive policy. For example, plaintiffs allege that the defendants “have . . . officially implemented, enforced, encouraged and/or sanctioned a policy, practice and/or custom of identifying and targeting locations with known concentrations of Latino residents.” Id. ¶ 472.9 Accordingly, to the extent that plaintiffs adequately state an equal protection violation at all, their claims are properly directed at DHS and ICE, not former government officials sued in their individual capacities. See, e.g., Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009) (en banc) (ostensible Bivens claim “operates as a constitutional challenge to policies promulgated by the executive.”).
1. Legal Standards Pertaining to Equal Protection Claims A plaintiff can plead a claim for discrimination in violation of the Equal Protection Clause in one of three ways. First, a plaintiff may allege that a law or policy is discriminatory because it “expressly classifies persons on the basis of race.” Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). Second, a plaintiff can identify a “facially neutral law or policy that has been applied in an intentionally discriminatory manner.” Brown v. City of Oneonta, 221
9 Allegations throughout the complaint make it clear that plaintiffs’ equal protection claim against the High-Ranking Officials is directed at ICE policy. See, e.g., Cmplt. ¶¶ 19 (Chertoff and Myers are “senior policymakers” who “support a policy of unconstitutional entries into homes”); 20 (referring to ICE’s “custom or policy”); 82 (“there is no evidence of material changes since 2007 in ICE policy”); 90 (Forman “was in charge of overseeing training and setting policy regarding ICE agent conduct”); and p. 107 (heading) (referring to “ICE’s pattern and practice, if not policy,” of conducting home searches).
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F.3d 329, 337 (2d Cir. 2000). Finally, a plaintiff may allege that a “facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.” Id. (citations omitted); see also Hayden, 180 F.3d at 48.
The Supreme Court has instructed that “[w]here the claim is invidious discrimination . . . the plaintiff must plead and prove that the defendant acted with discriminatory purpose.” Iqbal, 129 S. Ct. at 1948. Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences. It instead involves a decisionmaker’s undertaking a course of action because of, not merely in spite of, the action’s adverse effects upon an identifiable group.” Id.
Plaintiffs do not allege that any policy at issue here “expressly classifies persons on the basis of race,” Hayden, 180 F.3d at 48; indeed, plaintiffs allege the opposite—that the challenged policies, on their face, were “comprehensive and aggressive immigration enforcement strateg[ies],” Cmplt. ¶ 73, 79, the purpose of which was “to arrest and remove specifically identified targets.” Id. ¶ 3. Because plaintiffs concede that the policies here are facially neutral, they must show either (i) that ICE applied a facially neutral immigration enforcement strategy “in an intentionally discriminatory manner,” or (ii) that ICE’s method of enforcing the immigration laws “has an adverse effect” on Latinos and “was motivated by discriminatory animus.” Brown, 221 F.3d at 337. And to do either, Iqbal instructs that plaintiffs must “plead sufficient factual matter to show that [the defendants] adopted and implemented” the policies at issue “not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or natural origin.” Iqbal, 129 S. Ct. at 1948-49.
2. Plaintiffs Have Not Plausibly Alleged That ICE Enforces the Immigration Laws With Intentional Discriminatory Animus
As discussed above, under Iqbal, the motion court should first disregard all “bare assertions.” Id. at 1951. In Hayden v. Paterson, __ F.3d __, 2010 WL 308897 (2d Cir. Jan. 28,
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2010), the Second Circuit recently considered what assertions qualify as “bare” in the equal protection context. The plaintiffs in Hayden alleged that felon disenfranchisement violated equal protection because it was intended to “deprive minorities of the right to vote,” and that certain New York election laws were enacted “with the intent to disenfranchise Blacks.” Hayden, 2010 WL 308897, at*4, 8. The Circuit disregarded these allegations, explaining that plaintiffs’ claims that defendants intended to violate constitutional rights, without factual support, amounted “to nothing more than a formulaic recitation of the elements of a constitutional claim.” Hayden, 2010 WL 308897, at 8 (citing Iqbal).
Here, plaintiffs make the same types of allegations that the Second Circuit rejected in Hayden. Plaintiffs allege, for example, that when defendants Chertoff and Myers “conceived and announced the Secure Border Initiative,” they “intended to violate constitutional rights by, inter alia, implementing these policies.” Cmplt. ¶¶ 73, 79. They further allege, “upon information and belief,” that the High-Ranking Officials “condoned . . . unconstitutional conduct by dismissing the internal accusations without conducting proper investigations.” Id. ¶ 12. Similarly, plaintiffs allege that Torres “intended to violate constitutional rights” when he increased the arrest goal for fugitive-operation teams, id. ¶ 84, and that Forman “intended to violate constitutional rights” while “overseeing training and setting policy regarding ICE agent conduct.” Id. ¶ 90. Allegations such as these are exactly the types of “bare assertions,” Iqbal, 129 S. Ct at 1951, that the Supreme Court and Second Circuit have disregarded as conclusory.
After disregarding these bare assertions, the Court must then consider whether the remaining factual allegations plausibly demonstrate the defendants’ intentional discrimination. See Hayden, 2010 WL 308897, at *7 (“At the second step, a court should determine whether the well-pleaded factual allegations, assumed to be true, plausibly give rise to an entitlement to
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relief.”) (citing Iqbal). But the fourth amended complaint, for all its length and exhibits, is remarkably devoid of non-conclusory factual allegations with respect to plaintiffs’ equal protection claim. A few factual allegations do stand out, however, as non-conclusory. Plaintiffs allege, for example, that in 2006 ICE enacted a policy under which each fugitive operations team was expected to arrest 1,000 aliens per year, which represented an 800% increase over previous years, in which the same teams were expected to make 125 arrests per year. Cmplt. ¶¶ 8, 182. Plaintiffs further allege that the 800% increase “clearly demonstrated an intent and purpose to target Latino individuals.” Id. ¶ 8. But putting aside any conclusory assertion that intentional racial discrimination can be inferred merely from increased enforcement of a facially neutral policy, this allegation is not plausible under Iqbal.
As the exhibits to the complaint demonstrate, while ICE increased its fugitive-operations goals by 800%, funding for its fugitive-operations programs increased 2300% (from $9 million in 2003 to $218 million in 2008), and the personnel for the program increased 1300%. See Cmplt. Ex. 1 at 1; see also Cmplt. Ex. 16 at 6. While it may be theoretically possible that the 800% increase in teams’ apprehension goals was driven by discriminatory animus towards Latinos, it is far more plausible, as evidenced by contemporaneous increased funding by Congress, that the goals arose from the agency’s renewed emphasis on immigration enforcement in the years following September 11. Moreover, during the time that Torres was the Director of DRO, the apprehension goal was raised from 500 (not 125) to 1000, representing only a two-fold increase,10 and given that teams of seven agents worked approximately 240 days per year, an annual goal of 1000 only required each member to make approximately one apprehension every other day.
10 See http://www.dhs.gov/xlibrary/assets/Budget_PBOAppB_FY2007.pdf.
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Plaintiffs also allege that “deposition testimony from a local law enforcement agency” has indicated that “ICE agents on multiple occasions used derogatory and racist terms such as ‘wetback’ to refer to [Latinos],” Cmplt. ¶ 12, and that “of the four bars or clubs chosen for raids on one night during the same operation, only two were known gang hangouts—the other two were mere establishments frequented by Latinos.” Id. The only possible source for these allegations is the deposition testimony of Andrew Mulrain, a lieutenant with the Nassau County Police Department (“NCPD”), who testified as a 30(b)(6) witness on behalf of the NCPD.
Even assuming these allegations are true, they are insufficient to allow the equal protection claim to proceed against the High-Ranking Officials. First, the allegation that some unspecified ICE field agent used racially derogatory language during a field operation is insufficient, as a matter of law, to sustain a Bivens cause of action against high-ranking supervisors who were not present. As discussed above, there is no respondeat superior liability under Bivens, and therefore, direct, personal involvement of the High-Ranking Officials in enacting an unconstitutional policy is required. Inaction or indifference in response to a field agent’s alleged use of racially abusive language is insufficient. See, e.g., Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (“a single incident alleged in a complaint, especially if it involves only actors below the policy-making level, does not suffice” to show a policy that violates equal protection); Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir.
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2001) (“Proof of more than a single instance of the lack of training or supervision causing a
violation of constitutional rights is normally required.”).11
Second, the allegation that only two of the four bars visited by ICE agents were “known
gang hangouts,” and the other two were “were establishments frequented by Latinos,” Cmplt.
¶ 12, is also legally insufficient. At most, this attempts to state a claim for selective enforcement
of the immigration laws,12 but there is “no authority clearly establishing an equal protection right
to be free of selective enforcement of the immigration laws based on national origin, race, or
religion.” Turkmen v. Ashcroft, 589 F.3d 542, 550 (2d Cir. 2009). Therefore, even if the Court
were to find that selective enforcement of the immigration laws against Latinos violates the
Equal Protection Clause, the High-Ranking Officials would be entitled to qualified immunity.
Id.13
11 Ricciuti and Thompson were decided in the context of claims under 42 U.S.C. § 1983, rather than Bivens, but their logic applies with equal force here. First, “federal courts have typically incorporated § 1983 law into Bivens actions.” Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995). Second, as the Second Circuit has explained, Bivens liability is distinct from Section 1983 liability in that it is limited to individuals. Whereas a municipality may be held liable under Section 1983, there is no Bivens liability for the federal government. See Arar, 585 F.3d at 574 (“A Bivens action is sometimes analogized to an action pursuant to 42 U.S.C. § 1983, but it does not reach so far as to create the federal counterpart to an action under [Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978)].”).
12 See Cmplt. ¶ 12 (“selective enforcement of the federal immigration laws” violates the Equal Protection Clause).
13 The Second Circuit has held that a claim for selective prosecution based on racial animus may “call for some remedy,” because the Supreme Court has “not ruled out the possibility of a rare case in which the alleged basis of discrimination is so outrageous.” Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008). But Rajah concerned claims against government officials in their official capacities, challenging a policy that, on its face, required registration by individuals with Muslim backgrounds. The Circuit rejected that challenge, and its logic applies with even greater force to claims made against High-Ranking Officials in their individual capacities, which are subject to heightened pleading standards to overcome qualified immunity. As the Rajah court put it, no equal protection claim would lie against a program that was a “plainly rational attempt to enhance national security.” Id. at 439.
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Finally, the testimony of Lieutenant Mulrain, who was not present at any of the operations, has been contradicted by every testifying NCPD officer, all of whom were actually present during the operations. And, when assessing the plausibility of plaintiffs’ allegations under Rule 12(b)(6), it may be appropriate for the Court to consider this subsequent deposition testimony because the complaint incorporates by reference the testimony of the NCPD, stating that the “wetback” allegation is based on “deposition testimony from a local law enforcement agency.” Cmplt. ¶ 12.14
Lieutenant Mulrain testified that officers under his supervision told him that “terms like wetback and other derogatory terminology was being utilized” by unspecified ICE Agents, see Deposition of NCPD Lieutenant Mulrain at 90-91, but he learned this information “almost third hand,” after speaking with “sergeants who were there . . . out in the field,” id. at 92. No firsthand witness testimony corroborates this hearsay report, and numerous eyewitnesses specifically contradicted it. See, e.g., Deposition of NCPD Detective Stewart Cabanillas at 143:3-25 (ICE agents did not use “inappropriate language”; Cabanillas did not hear term “wetback” or any “derogatory terminology”); see also Deposition of Port Washington Detective Raymond Ryan (taken November 24, 2009) 139:13-20 (Q: Did you hear the term “wetback” being used on either September 24, 2007 or September 26, 2007? A. No, absolutely not. Q. Did you hear any derogatory terms towards Latinos being used on September 24, 2007 or September 26, 2007? A.
14 When a plaintiff relies on discovery to amend the complaint to add new allegations, district courts are permitted to consider the contents of materials incorporated into the complaint, including deposition testimony. See, e.g., Island Lathing & Plastering v. Travelers Indem. Co., 161 F. Supp. 2d 278, 283 (S.D.N.Y. 2001) (“When a party seeks to introduce affidavits, depositions, or other extraneous documents not set forth in the complaint for a court to consider on a Rule 12(b)(6) motion, the court may do so if there was “undisputed notice” of their contents and they were ‘integral to the plaintiff’s claim.’”) (citation omitted); cf. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (explaining that on 12(b)(6) motion courts may consider “any statements or documents” incorporated by reference in complaint).
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No.); Deposition of NCPD Detective Richard Ierardi (taken November 10, 2009) 252:5-21 (Q. On September 24, 2007 do you remember any of the ICE agents using derogatory language? A. No. Q. Do you remember any ICE agent referring to Latinos as wetbacks? A. No. Q. Is that something you think you’d remember? A. Yes. My partner’s Latino.).15
Given that Mulrain’s admittedly hearsay testimony has been contradicted by a number of NCPD first-hand witnesses who testified after he did (including several who testified before plaintiffs added this allegation on December 21, 2009), it is unclear whether the “wetback” allegation could ever satisfy Rule 12(b)(6), even if it were not legally irrelevant to claims against the High-Ranking Officials. Similarly, although not a necessary predicate of this motion, subsequent NCPD testimony has also undercut plaintiffs’ assertion that only two of the four bars visited during the September operation were known gang establishments; NCPD officers who assisted ICE have testified that all of the establishments were known gang locations, and that violent crime was common at all four locations. D. The Complaint Fails to State a Claim for
Injunctive Relief Against the High-Ranking Officials Plaintiffs seek injunctive relief against the High-Ranking Officials (along with all other defendants), but that claim fails because (1) plaintiffs lack standing to seek their requested injunctive relief at all; and (2) that failure is especially stark as against the High-Ranking Officials, none of whom occupy the positions they did when this litigation was initiated. First, as defendants will argue when they renew their motion to dismiss plaintiffs’ injunction claim for lack of standing, under the Supreme Court’s decision in City of Los Angeles v. Lyons, 461 U.S. 95 (1983), plaintiffs are not entitled to prospective injunctive relief. In
15 Copies of the relevant pages from each deposition are annexed to the Declaration of David Bober, dated March 11, 2010, which is being filed concurrently with this memorandum.
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Lyons, the Supreme Court stated that “[a]bstract injury is not enough” to obtain injunctive relief, and that even where a constitutional violation has occurred in the past, for a plaintiff to have standing, the threat of a recurrence must be “real and immediate,” not “conjectural or hypothetical.” Id. at 101-02 (citations and internal quotations marks omitted). A plaintiff’s fear that unconstitutional conduct will be repeated is on its own insufficient to establish the requisite likelihood of future injury. In applying Lyons, the Second Circuit has recognized that to establish standing to enjoin law enforcement practices, a plaintiff “must demonstrate both a likelihood of future harm and the existence of an official policy or its equivalent.” Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004) (emphasis in original).
Here, plaintiffs make no allegation that ICE agents have returned to any of their homes in the more than three years (in the case of two complaint locations) since the operations detailed in the complaint. Cf. Lyons, 461 U.S. at 108 (because five months had passed, rejecting the notion that the “odds” that Lyons would be subjected to another chokehold “are sufficient to make out a federal case for equitable relief”). Nor have plaintiffs made any factual allegations suggesting that agents are likely to return. Thus, plaintiffs’ alleged fear of a future unconstitutional encounter is no less speculative than the plaintiff’s claim in Lyons, and plaintiffs cannot meet the irreparable-injury requirement. See 461 U.S. at 111 (the irreparable-injury requirement “cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again”); see also JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990) (plaintiff “must show that it is likely to suffer irreparable harm if equitable relief is denied,” not merely that such harm is a “possibility”).
Nor have plaintiffs identified, after expansive discovery, any official policy, or its equivalent, requiring or authorizing agents to violate constitutional rights, see Shain, 356 F.3d at
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216, and the conclusory allegation that the High-Ranking Officials authorized and enforced a “policy, practice and/or custom” of allowing agents to enter homes without consent, see Cmplt. ¶¶ 44, 456, 472, is the kind of “incredible assertion” that the Supreme Court rejected in Lyons. See Lyons, 461 U.S. at 106 (it would be an “incredible assertion” for plaintiff to allege that Los Angeles “ordered or authorized” police officers to apply a chokehold to every person they encounter). Thus, the complaint contains no factual allegations that would render plaintiffs’ claimed fear of future violations plausible, and plaintiffs are no more entitled to an injunction than any other resident of the New York metropolitan area. See id. at 111 (“Lyons is no more entitled to an injunction than any other citizen of Los Angeles”).
Second, plaintiffs are unable to demonstrate that the High-Ranking Officials will irreparably harm them in the future because they no longer hold the positions they did in 2007; thus, plaintiffs’ claim against the High-Ranking Officials is not redressable via a favorable decision with respect to their injunction claim. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (stating that one of three “irreducible constitutional” elements of standing is that it must be likely, not merely speculative, that the injury will be redressed by a favorable decision) (citations and quotations marks omitted).
Chertoff and Myers no longer hold government positions, so it is difficult to understand how any injunction against them, relating to the conduct of DHS and/or ICE, would redress the violations plaintiffs claim to have suffered in 2007. With respect to Torres and Forman, because they no longer hold policymaking positions and they have no supervisory control over ICE operations in the New York metropolitan area,16 it is similarly difficult to see how an injunction
16 Torres is now the Special Agent in Charge of the ICE Washington, D.C., Field Office. Forman is now Director of ICE’s National Intellectual Property Rights Coordination Center.
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issued against them, in their personal capacities, would have any bearing on ICE’s enforcement activities in this area.17 In fact, because of their current positions, it would be impossible for the High-Ranking Officials to implement any of the forms of injunctive relief requested in the complaint. See Cmplt., Prayer for Relief, ¶¶ 2-3.
Finally, as the Second Circuit has recently stated in Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc), courts should be skeptical of claims against individuals that, as a practical matter, are challenges to executive policy. In Arar, the plaintiff alleged that after being detained at Kennedy Airport, he was removed to Syria and then tortured pursuant to an alleged intergovernmental agreement. Id. at 563. In concluding that Bivens relief was not available with respect to Arar’s extraordinary-rendition claim, the Court reiterated that the “purpose of the Bivens remedy ‘is to deter individual federal officers from committing constitutional violations,’” id. at 571 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001)), so that Bivens actions are “brought against individuals, and any damages are payable by the offending officers,” id. (citing Carlson v. Green, 446 U.S. 14, 21 (1980)).
But when high-level officials are sued under Bivens, the action, though cast in terms of money damages, actually “operates as a constitutional challenge to policies promulgated by the executive.” Id. at 574. Arar’s complaint explicitly targeted the alleged “policy” of extraordinary rendition, and the Court concluded that the claim could not proceed without “inquiry into the perceived need for the policy, the threats to which it responds, the substance and sources of the
17 See Cmplt. ¶¶ 72 (Chertoff “was” the Secretary of the Department of Homeland Security); 78 (Myers “was” the Assistant Secretary of ICE), 83 (Torres “was” the director of DRO); 89 (Forman “was” the director of OI). The Court is permitted to take judicial notice that Chertoff, Myers, Torres, and Forman no longer hold the positions that they held at the time of the events described in the complaint. See, e.g., Moore v. City of New York, No. 08 Civ. 8879, 2010 WL 742981, at *3 (S.D.N.Y. Mar. 2, 2010) (explaining that Court is permitted, “for Rule 12(b)(6) purposes,” to consider “matters of which judicial notice may be taken”).
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intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.” Id. at 575. The claim, therefore, “would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns.” Id. Thus, although “[o]ur federal system of checks and balances provides means to consider allegedly unconstitutional executive policy, . . . a private action for money damages against individual policymakers is not one of them.” Id. at 574.
So too here. Although plaintiffs have named Chertoff, Myers, Torres, and Forman as Bivens defendants (against whom they also seek injunctive relief), they repeatedly emphasize that they are challenging ICE’s current policies as implemented and enforced by ICE, the federal agency. Thus, while acknowledging that John Morton, an official-capacity defendant, was not the Assistant Secretary of ICE during the time of the incidents, plaintiffs state that “operations such as Return to Sender are ongoing.” Cmplt. ¶ 82; see also id. ¶¶ 88, 93 (same allegations with respect to other new high-level officials). Similarly, the complaint concedes that Janet Napolitano replaced Chertoff as Secretary of DHS on January 21, 2009, but alleges that “[s]ince Defendant Napolitano became Secretary of DHS, arrests and deportations have doubled when compared with the same period two years ago.” Id. ¶ 77. “Thus, Defendant Napolitano is not only continuing the policies that fostered the unconstitutional practices that are the subject of this complaint, but is multiplying their negative effects.” Id.
As Arar recognized in a pure Bivens context, plaintiffs’ allegations against the HighRanking Officials amount to challenges to ICE’s priorities, the allocation of its resources, and other policy matters that should be pursued through the political branches, not via injunctive
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relief in federal court. And to the extent injunctive relief is available to plaintiffs, it is only ICE

or official-capacity defendants—not former employees sued in their individual capacities—that

could implement the requirements of a federal court injunction.

CONCLUSION

For the foregoing reasons, the Court should dismiss all claims against the High-Ranking

Officials, resulting in their dismissal from this action.

Dated: New York, New York March 11, 2010

PREET BHARARA United States Attorney for the Southern District of New York, Attorney for Defendants

By:

/s/

DAVID BOBER

SHANE CARGO

BRANDON COWART

ALLISON PENN

KRISTIN L. VASSALLO

Assistant United States Attorneys

86 Chambers Street

New York, New York 10007

Tel. (212) 637-2711

Fax (212) 637-2786

40

 
 Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 1 of 58

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
-against-
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

x : : : ECF Case : Civil Action No. : 07 CIV 8224 (JGK) : (FM) : : x

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS CHERTOFF, MYERS, TORRES AND FORMAN’S
MOTION TO DISMISS

DEWEY & LEBOEUF LLP Aldo A. Badini Donna L. Gordon Jennifer Opheim Whitener 1301 Avenue of the Americas New York, New York 10019 (212) 259-8000

LATINOJUSTICE PRLDEF Foster Maer Ghita Schwarz Christina Iturralde 99 Hudson Street, 14th Floor New York, New York 10013 (212) 739-7504

Attorneys for Plaintiffs

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 2 of 58
TABLE OF CONTENTS Page
PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................4 I. The Parties and Claims ........................................................................................................4
A. Plaintiffs...................................................................................................................4 B. Defendants ...............................................................................................................8 II. The Raids in Context ...........................................................................................................9 A. The ICE Officials Make 2005 and 2006 Policy Changes ........................................9 B. Nationwide Patterns and Practices Emerge ...........................................................12
1. Widespread Home Raids Violate the Fourth Amendment ........................12 2. Racial Profiling Violates the Equal Protection Clause of the Fifth
Amendment................................................................................................15 III. The ICE Officials Failed to Investigate and Remedy Numerous Highly-Publicized
Reports of Constitutional Violations .................................................................................18 ARGUMENT .................................................................................................................................24 I. A Complaint, Taken as a Whole, Must Allege Only Sufficient Factual Matter to Support
an Inference That Plaintiff Is Entitled To Relief ...............................................................24 II. Under Iqbal, Supervisors, Like the ICE Officials, Are Liable For Their
Own Misconduct................................................................................................................26 A. Iqbal Did Not Alter the Well-Settled Law of Supervisory Liability .....................26 B. Iqbal Did Not Alter the Relevant Standard for Fourth Amendment Claims .........29 C. Defendants Admit That Supervisors Can Be Found Liable For Creating or
Permitting a Policy or Custom Under Which Unconstitutional Practices Occurred .................................................................................................31 III. Plaintiffs’ Allegations Demonstrate the ICE Officials Violated the Fourth Amendment .32 A. The ICE Officials Created and Perpetuated Policies Under Which Unconstitutional Practices Occurred and Harmed Plaintiffs .................................32
i

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 3 of 58 B. ICE Officials Are Also Liable Under the Other Colon Factors.............................38 C. The District of New Jersey Upheld Similar Claims Against
Similar Defendants.................................................................................................40 IV. Plaintiffs’ Allegations are Sufficient to State Violations of the Fifth Amendment by the
ICE Officials ......................................................................................................................42 A. ICE Officials Implemented Operations and Policies that Created a Pattern and
Practice of Racial Profiling....................................................................................43 B. ICE Officials Intended to Discriminate Against Latinos.......................................45 CONCLUSION..............................................................................................................................48
ii

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TABLE OF AUTHORITIES

Case

Page(s)

5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268 (S.D.N.Y. 2009)..........................................................................27

Abdella v. O’Toole, 343 F. Supp. 2d 129 (D. Conn. 2004)....................................................................34, 35

al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) ...........................................................................25, 30, 37

Amnesty Am. v. Town of W. Hartford, 361 F.3d 113 (2d Cir. 2004)...................................................................................32, 38

Argueta v. U.S. Immigration & Customs Enforcement, No. 2:08cv01652, 2010 WL 398839 (D.N.J. Jan. 27, 2010) ............................... passim

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)......................................................................................... passim

Barrett v. Maricopa County Sheriff's Office, No. CV 08-2094, 2010 WL 46786 (D. Ariz. Jan. 4, 2010)..........................................30

Beatty v. Davidson, No. 06-CV-571, 2010 WL 1407311 (W.D.N.Y. March 31, 2010)..............................40

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................................. passim

Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939 (S.D.N.Y. June 26, 2009)................................28

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S 388 (1971)........................................................................................................1

Bovarie v. Tilton, No. 06CV687, 2010 WL 743741 (S.D. Cal. March 1, 2010) ......................................30

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009) .................................................................................25, 26

Braxton v. Nichols, No. 08 Civ. 08568, 2010 WL 1010001 (S.D.N.Y. Mar. 18, 2010) .............................28

Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009) .......................................................................................24

Bumper v. North Carolina, 391 U.S. 543 (1968).....................................................................................................34

Burton v. Lynch, 664 F. Supp. 2d 349 (S.D.N.Y. 2009)..........................................................................27

Cole v. Fischer, No. 07 Cv. 11096, 2009 WL 1514699 (S.D.N.Y. May 29, 2009)...............................27

iii

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 5 of 58
Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995)................................................................................... passim
Cortes v. City of New York, No. 08 Civ. 4805, 2010 WL 1253946 (S.D.N.Y. Mar. 30, 2010) ...............................28
Coward v. Town & Vill. of Harrison, 665 F. Supp. 2d 281 (S.D.N.Y. 2009)..........................................................................28
Cunningham v. Dep’t of Corr. Servs., No. 04-CV-5566, 2009 WL 1404107 (S.D.N.Y. May 20, 2009) ................................27
Dawkins v. Gonyea, 646 F. Supp. 2d 594 (S.D.N.Y. 2009)..........................................................................27
Diaz-Martinez v. Miami-Dade County, No. 07-20914-CIV, 2009 WL 2970468 (S.D. Fla. Sept. 10, 2009).............................28
Djonbalic v. City of New York, No. 99 Civ. 11398, 2000 WL 1146631 (S.D.N.Y. Aug. 14, 2000) .............................34
Doe v. Cuomo, No. 08 Civ. 8055, 2009 WL 3123045 (S.D.N.Y. Sept. 29, 2009) ...............................27
Doe v. Mamaroneck, 462 F. Supp. 2d 520 (S.D.N.Y. 2006)..........................................................................47
Donahue v. Hillman, No. 98-5522, 2004 WL 5049451 (Mass. Super. Sep 03, 2004)...................................43
Dunlop v. Munroe, 11 U.S. (7 Cranch) 242 (1812).....................................................................................26
Erickson v. Pardus, 551 U.S. 89 (2007).......................................................................................................24
Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 95 F.Supp.2d 723 (N.D. Ohio 2000)............................................................................47
Felix-Torres v. Graham, No. 9:06-CV-1090, 2009 WL 3526644 (N.D.N.Y. Oct. 23, 2009) .......................28, 37
Fritz v. Charter Tp. of Comstock, 592 F.3d 718 (6th Cir. 2010) .......................................................................................25
Harrison v. Goord, No. 07 Civ. 1806, 2009 WL 1605770 (S.D.N.Y. Jun. 9, 2009)...................................27
Hayden v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999).........................................................................................43
Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010)...................................................................................45, 47
Hernandez v. Foster, No. 09-cv-2461, 2009 WL 1952777 (N.D. Ill. July 6, 2009) ......................................30
iv

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 6 of 58
Hoffa v. U.S., 385 U.S. 293 (1966).....................................................................................................35
Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501 (S.D.N.Y. 2008)..........................................................................40
JG & PG ex rel. JGIII v. Card, No. 08 Civ. 5668, 2009 WL 2986640 (S.D.N.Y. Sept. 17, 2009) ...............................27
Joseph v. Fischer, No. 08 Civ. 2824, 2009 WL 3321011 (S.D.N.Y. Oct. 8, 2009) ............................28, 38
Kaupp v. Texas, 538 U.S. 626 (2003).....................................................................................................34
Kellogg v. New York State Dep’t of Corr. Serv., No. 07 Civ. 2804, 2009 WL 2058560 (S.D.N.Y. July 15, 2009) ..........................28, 38
Kregler v. City of New York, No. 09-3840-cv, 2010 WL 1740806 (2nd Cir. May 3, 2010)......................................48
LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) .....................................................................................34
Martinez v. Village of Mt. Prospect, 92 F. Supp. 2d 780 (N.D. Ill. 2000) .............................................................................43
Maryland v. Buie, 494 U.S. 325 (1990).....................................................................................................34
Massenburg v. Adams, No. 3:08CV106, 2010 WL 1279087 (E.D. Va. Mar. 31 2010) ...................................46
Masters v. Gilmore, 663 F. Supp. 2d 1027 (D. Colo. 2009).........................................................................29
Mateo v. Fischer, No. 08 Civ. 7779, 2010 WL 431229 (S.D.N.Y. Feb. 8, 2010) ....................................28
Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.2005) ......................................................................................27
Missel v. County of Monroe, 351 Fed. Appx. 543 (2d Cir. 2009)..............................................................................31
Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997) ..............................................................................47
Nat'l Cong. for Puerto Rican Rights by Perez v. City of New York, 191 F.R.D. 52 (S.D.N.Y. 1999) ...................................................................................43
Newton v. City of New York, 640 F. Supp. 2d 426 (S.D.N.Y. 2009)..........................................................................28
Padilla v. Yoo, 633 F. Supp. 2d 1005 (N.D. Cal. 2009) .................................................................32, 37
v

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 7 of 58
Peter F. Gaito Architecture, LLC v. Simone Development Corp., No. 09-2613-cv, 2010 WL 1337225 (2d Cir. Apr. 7, 2010) ........................................25
Player v. Gomez, 243 F.3d 549 (9th Cir. 2000) .......................................................................................32
Rolon v. Ward, 345 Fed. Appx. 608 (2d Cir. Sept. 4, 2009).................................................................28
Rouse v. Berry, No. 06-2088, 2010 WL 325569 (D.D.C. Jan. 29, 2010)........................................25, 48
Sadler v. Lantz, No. 3:07-cv-1316, 2009 WL 3013716 (D. Conn. Sept. 16, 2009).........................28, 37
Saleh v. City of Buffalo, No. 97-CV-0872, 2000 WL 1773472 (W.D.N.Y. Nov. 27, 2000) ..............................33
Shaw v. Reno, 509 U.S. 630 (1993).....................................................................................................43
Solar v. Annetts, No. 08 Civ. 5747, 2010 WL 1253473 (S.D.N.Y. Mar. 16, 2010) ...............................28
Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725 (S.D.N.Y. Jul. 20, 2009) .................................28
Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984).............................................................................38
St. Mary’s Honor Ctr. v Hicks, 509 U.S. 502 (1993).....................................................................................................47
Stevens v. New York, No. 09 Civ. 5237, 2009 WL 4277234 (S.D.N.Y. Nov. 23, 2009) .........................37, 39
T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010) .................................................................................39, 46
Thompkins v. Belt, 828 F.2d 298 (5th Cir. 1987) .......................................................................................32
United States v. Ali, No. 05-CR-785, 2006 WL 929368 (E.D.N.Y. April 7, 2006) ...............................20, 34
United States v. Andrews, No. 05-CR-139, 2005 WL 475403 (D. Neb. Nov. 1, 2005) ........................................47
United States v. Avery, 137 F.3d 343 (6th Cir. 1997) .......................................................................................43
United States v. Gandia, 424 F.3d 255 (2d Cir.2005)..........................................................................................34
United States v. Hardin, 539 F.3d 404 (6th Cir. 2008) .......................................................................................35
vi

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 8 of 58
United States v. Isiofia, 370 F.3d 226 (2d Cir. 2004).........................................................................................35
United States v. Klump, 536 F.3d 113 (2d Cir. 2008).........................................................................................29
United States v. Mapp, 476 F.2d 67 (2d Cir. 1973)...........................................................................................34
United States v. Mendenhall, 446 U.S. 544 (1980).....................................................................................................34
United States v. Montes-Reyes, 547 F. Supp. 2d 281 (S.D.N.Y. 2008)..........................................................................35
United States v. Restrepo-Cruz, 547 F.Supp.1048 (S.D.N.Y. 1982)...............................................................................34
United States v. Wilson, 11 F.3d 346 (2d Cir. 1993).....................................................................................34, 35
Valenti v. Massapequa Union Free School Dist., No. 09-CV-977, 2010 WL 475203 (E.D.N.Y. Feb. 5, 2010) ......................................46
Vance v. Rumsfeld, No. 06 Civ. 6964, 2010 WL 850173 (N.D. Ill. March 5, 2010) ..................................30
Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995).........................................................................................39
Vera v. New York State Dep’t of Corr. Servs., No. 08 Civ. 9636, 2009 WL 4928054 (S.D.N.Y. Dec. 21, 2009)................................28
Vila v. Inter-American Inv. Corp., 570 F.3d 274 (D.C. Cir. 2009) .....................................................................................25
Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977).....................................................................................................45
Walker v. Pataro, No. 99 Civ. 4607, 2002 WL 664040 (S.D.N.Y. Apr. 23, 2002)..................................39
White v. Dep’t of Corr. Servs., No. 08 Civ. 0993, 2009 WL 860354 (S.D.N.Y. March 30, 2009).................................4
Williams v. Fort Wayne Police Dep’t, No. 1:08-cv- 152, 2009 WL 1616749 (N.D. Ind. June 9, 2009)..................................31
Williams v. Smith, No. 02 Civ. 4558, 2009 WL 2431948 (S.D.N.Y. Aug. 10, 2009) ...............................27
Wiseman v. Hernandez, No. 08cv1272-LAB, 2009 WL 5943242 (S.D. Cal. Nov. 24, 2009) ...........................30
Womack v. Smith, No. 1:06-CV-2348, 2009 WL 5214966 (M.D. Pa. Dec. 29, 2009)..............................30
vii

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 9 of 58 Young v. Speziale,
No. 07-03129, 2009 WL 3806296 (D.N.J. Nov. 10, 2009) .........................................29 RULES Fed. R. Civ. P. 8.................................................................................................................24
viii

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 10 of 58
PRELIMINARY STATEMENT Plaintiffs bring this putative class action in the w ake of hundreds of warrantless raids of Latino homes conducted by the Im migration and Customs Enforcement (“ICE”) division of the Department of Homeland Security (“DHS”). As set forth in Plaintiffs’ Fourth Amended Class Action Complaint (“FAC”),1 beginning in 2006, the Detention and Removal Office (“DRO”) and the Office of Investigations (“OI”) of ICE bega n conducting raids in which they racially profiled Latino homes and violently entered and searched Plaintiffs’ and other Latino hom es without judicial warrants, exigent circumstances or voluntary consent, all in violation of the Fourth and Fifth Amendments to the United States Constituti on. Far from being i solated incidents, these unconstitutional home raids were, and continue to be, part of a widespread pattern and practice of unlawful conduct that was created, a pproved, implemented and endorsed by, inter alia, Defendants Michael Chertoff, Julie Myers, John Torres and Marcy Forman (“ICE Officials ”). It is for this active involvement that Plaintiffs seek to hold these four defendants individually liable pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S 388 (1971). The ICE Officials en acted an aggressiv e nationwide enforcement strategy which emphasized the us e of h ome raids. Additiona lly, they ordered or approved im possible quotas, which due to f aulty intelligence, all but require d the agents to cut Fou rth Amendment corners and to racially profile Latinos to m eet their numbers. Moreover, Torres and For man, under the supervision of Chertoff and Myers, issued cons titutionally infirm memoranda instructing teams to utilize ruses, even in consent-based ope rations. The ICE Offic ials implemented these

1

The FAC is attached as Exhibit A to the Declaration of Donna L. Gordon dated May 6, 2010 (“Gordon

Decl.”).

1

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 11 of 58
aggressive policies without m andating appropriate training a nd with the knowledge that the teams were not sufficiently well-trained.
As a result of these policie s, ICE’s widespread pattern and practice was to have la rge teams of heavily arm ed ICE agents surround Latino hom es in the early morning hours, dem and entry and use ruses to o btain consent. As r ecognized by the courts, und er such circumstances, the validity of any consent would be highly ques tionable, if not presum ptively invalid. Indeed, shortly after the raids comm enced, congressional complaints, lawsuits, and countless m edia reports showed that on a regular basis, throughout the country, ICE agents were entering hom es without requesting consent and were racially profiling Latin os. In fact, ICE agents involved in the raids made internal com plaints regarding racial p rofiling and nonconsensual entries. Testimony from local law enforcement corroborates the allegations, noting in addition that the ICE agents used racial slurs like “wetbacks” to refer to the Latinos who were encountered in the raids.
The responses of the ICE Officials are nothing less than shocking. In the face of credible and serious allegations, they did nothing more than offer reckless and false denials of wrongdoing which impeded any further inquiry into these rampant violations, thus perpetuating this pattern and practice of denying people, particularly Latinos, basic constitutional rights.
That these ICE Officials’ res ponses were reckless at best is beyond reproach. Indeed, at least four judges in at least seven different proceed ings have already held that the very Operations that the ICE Offici als whitewashed violated the Fourth Amendment. Significantly, two courts have already found that two of the very raids of Plaintiff ho mes that are at issue in this case were conducted without consent, thereby undermining the h eart of the defendants’
2

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 12 of 58
defense. In fact, those judge s held that the operations did not merely violate the Fourth Amendment, but egregiously violated the Fourth Amendment.
In a separate case again st many of t he same defendants with almost identical facts, the United States District Court f or the District of New Jersey m ade clear that the lead ers of these operations could be held accountable. In deny ing Myers and Torres’s motion to dism iss, the court discussed those defendants’ involvement in the operation, c oncluding that “there is no doubt that Myers and Torres had sufficient knowle dge of the searches being conducted. Myers and Torres worked on these issues everyday.” Chertoff and Forman had similar knowledge and were equally aware of t he critical flaws in the operations. In fact, Cong ressional representatives as well as local elected officials complained directly to Chertoff regarding ICE’s unconstitutional conduct. His response: blanket and false denial s. Thus, all Plaintiffs seek is that those responsible for the structure, scope and im pact of these operations be held accountable and not be permitted to hide behind their subordinates.
Ascroft v. Iqbal, 129 S. Ct. 1937 (2009), the centerpi ece of the ICE O fficials’ motion, offers no protection for the ICE O fficials’ conduct. Rath er, it reiterates the principle that a government official remains “liable for his or her own m isconduct.” Iqbal, 129 S. Ct. at 1949. Defendants’ clearest error is their misapplication of Iqbal to Plaintiffs’ Fourth Am endment claims. Iqbal itself distinguished between constitutional violations; as noted by numerous courts, Iqbal has no direct relevance to claim s that requi re no ele ment of intent, as is th e case with Fourth Amendment violations. And as for Plaintiffs’ Fifth Amendment claims, Iqbal did not alter settled law on supervisory liability or eliminate the longstanding methods by which Equal Protection claims can be established.
3

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 13 of 58

In sum, this was a nationwide program and these were nationwide policies. It was these

ICE Officials who implemented the policies that resulted in these aggressive raids, these ICE

Officials who imposed the pernicious quotas, and these ICE Officials who made unsubstantiated

and hasty denials of wrongdoing. In these circumstances, no interpretation of Iqbal permits the

ICE Officials to avoid liability. STATEMENT OF FACTS2

I. The Parties and Claims

A. Plaintiffs

Plaintiffs are twenty-five Latino individuals living in eight separate residences in the New

York area who endured unconstitutional home raids conducted by two different divisions of ICE,

pursuant to three different nationwide operations, over the span of more than a year. None of the

Plaintiffs was the target of any ICE enforcement activities. The raids are discussed in Plaintiffs’

FAC as follows:



On February 20, 2007, at 4:30 or 5:00 a.m., Plaintiffs Adriana Aguilar,

Andres Leon, Elena Leon, Erika G abriela Garcia-Leon, and Carson Aguilar

(“Aguilars”), all of whom are United States citizens, were subjected to a raid

at their home located at 30 Copeces Lane, East Hampton, New York. ICE’s

DRO conducted this raid pursuant to Operation Return to Sender, during

which eight arm ed agents pounded on th e front door of the home, entered

and searched the home without requesting consent to do either, stormed into

a bedroom with a sleeping m other and four-year-old child, rousting them

from bed, and detained and interroga ted family members while blocking

exits. The agents threatened to return. FAC ¶¶ 190-241.



On that same date, also between 4:00 and 5:00 a.m., the same team of eight

agents stormed through the East Ha mpton home of Plaintiff Nelly Am aya

without requesting or receiving consent from the Spanish-speaking ten ants,

detained and interrogated residents, and twisted Ms. Amaya’s already-

injured arm. FAC ¶¶ 242-85.

2

On a motion to dismiss, the court must accept the facts alleged in the FA C as true. In so doi ng, the court

may also consider “documents that are referenced in the complaint, documents that the plaintiff relied on in bringing

suit and that are eith er in the plaintiff’s possession or that the plaintiff knew of when bringing suit, or matters of

which judicial notice may be taken.” White v. Dep’t of Corr. Servs., No. 08 Civ. 0993(JGK), 2009 WL 860354, at

*1 (S.D.N.Y. March 30, 2009) (Koeltl, J.).

4

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 14 of 58



On March 19, 2007, at or about 4:00 a. m., Plaintiffs David Lazaro Perez,

William Lazaro, and T arcis Sapon-Diaz were subjec ted to a raid a t their

home located at 165 Main Street, Mount Kisco, New York. DRO conducted

this raid pu rsuant to Operation Retu rn to Sender, during w hich ten arm ed

agents invaded the apartm ent building, burst into apartm ents and bedrooms

by force, caused widespread physical damage throughout the building, and

detained and arrested S panish-speaking residents in a state of undress prior

to questioning them. FAC ¶¶ 307-23. Judge George Chew concluded that

this raid constituted an egregious viola tion of W illiam Lazaro’s Fourth

Amendment rights.



On April 18, 2007, at about 4:30 a.m ., Plaintiffs Mario Patzan DeLeon,

Gonzalo Escalante, Victor Pineda Mora les, Yoni Revolorio, and Juan Jose

Mijangos were subjected to a raid by DR O agents at their hom e located at

417 East Avenue, Riverhead, New York. DRO conducted this raid pursuant

to Operation Cross Check during which eig ht armed agents forcefully

entered their hom e, caused physical dam age to the doors and walls of the

home during entry, and burst into bedr ooms without requesting or receiving

consent while residents were in a state of undress. FAC ¶¶ 286-306. Judge

Noel Brennan concluded that this raid constituted an egregious violation of

Victor Pineda Morales’s Fourth Amendment rights.



On September 24, 2007, between 5:30 and 6:00 a.m ., Plaintiffs Sonia

Bonilla, a legal perm anent resident, and her m inor daughters Beatriz

Velasquez (age 12) and Dalia Velasquez (age 9), both United States citizens,

were subjected to a raid at their home located at 710 Jefferson Street,

Westbury, New York. ICE’s OI conducte d this raid pursuant to Operation

Community Shield, during which ten armed agents approached and

surrounded the home. While Ms. Bonilla was driving her husband to work,

agents pounded on the front door shouti ng “Police!” and told twelve-year-

old Beatriz that “someone was dying upstairs” in order to gain entry. W hen

Beatriz opened the front door, agents st ormed into the house, detained the

girls in their bedroom , searched the en tire residence without requesting or

receiving consent, and refused to expl ain themselves to th e girls’ mother

when she returned hom e while the raid was still in progress. FAC ¶¶ 324-

42.



On that same date, at approximately the same time, Plaintiffs Elder Bonilla,

a lawful p ermanent resident, and Diana R odriguez, an asylee, were

subjected to a raid at their hom e located at 22 Dogwood Lane, W estbury,

New York. OI conducted this raid as part of Operation Community Shield,

during which another team of twelve heavily armed agents surrounded the

home, shouting “Police!” and pointed a gun at Mr. Bonilla’s chest when he

opened the front door. Agents ente red and searched through the house

without requesting or receiving c onsent, entered bedroom s without

requesting or receiving consent, handcuffed residents prior to any

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Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 15 of 58

questioning, and caused physical dam age to doors and walls. FAC ¶¶ 34353.



On September 27, 2007, at approximately 7:30 a.m., Plaintiffs Raul Amaya,

a United S tates citizen, and his wife Gloria Vanessa Am aya, a lawful

conditional resident, were subjected to a raid at their home located at 58 East 6th Street in Huntington Station, New York. OI conducted this raid as

part of Operation Community Shie ld, during which ten arm ed agents

invaded the hom e, searched throu gh the house without requesting or

receiving consent from Spanish-speaking residents, and shouted profanities.

As the agents departed, they threatened to return. FAC ¶¶ 354-76.



Armed ICE agents twice invaded the Huntington hom e of Plaintiffs Pelagia

De La Rosa-Delgado, A nthony Jimenez, Christopher Jim enez, and Bryan

Jimenez, all of whom are United States citizens. The firs t raid occurred in

August 2006, and the second occurred on Septem ber 27, 2007, as part of

Operation Community Shield. Both times, agents pounded loudly on the

door, burst into the hom e without requesting or receiving consent f rom

residents in their nightclothes, detain ed the family in the living room and

basement, and stated that they were searching for someone named “Miguel,”

a man the family informed the agents they did not know. During the second

raid, agents looking for the sam e man surrounded the hom e, entered by

pushing past a seventeen-year-old who opened the door, detained teenagers

and adults in a state of undress, drew a gun on a tenant, and entered the

bedroom of a sleeping wom an without requesting or receiving consent.

FAC ¶¶ 377-418.

In short, Plaintiffs allege that ICE agents seized their homes and detained them without consent, judicial warrants, or exigent circumstances. FAC ¶¶ 23, 25, 27, 29, 31, 33, 35, 37-38. 3

In all of these raids, large team s of armed agents pounded on their doors in the early m orning,

often before dawn, shouting that they were “Pol ice!” and ordering reside nts to open the door.

FAC ¶¶ 5, 23, 25, 27, 31, 33, 37-38, 192, 245, 289, 309, 326. Using ruses, the agents

misrepresented the purpose of their searches to gain entry into the homes, and in at least one case

deceived residents by falsely stat ing that “someone is dying upstairs.” FAC ¶¶ 85, 91, 328. If a

minor child opened the door, the agents simply entered without bothering to speak with an adul t

3

In fact, ICE admits that it did not have probable cause, judicial warrants or exigent circumstances. Answer

of Immigration and Customs Enforcement and Official Capacity Defendants (“Answer”) ¶¶ 204, 205, 233, 262, 263,

321, 339, 350, 360, 394, 399, 400.

6

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 16 of 58
or request consent and then detained terrifi ed children inside. FAC ¶¶ 329-30, 396-98. Agents entered the homes when residents, including wo men, young children and adolescents, were in a state of undress, some still asleep when agents burst into their bedrooms to roust them from their beds. FAC ¶¶ 5, 207, 209-10, 245, 252-53, 282, 293, 312, 344-45, 381, 404-05, 412. At several homes, agents drew or clutched their holstered weapons in an excessive show of force during encounters they claim were consensual. FAC ¶¶ 218, 345.
In all the h omes, agents stood guard at exit s, corralled residents into central locations, refused to permit free movement and, without ba sis, interrogated Latino persons whom the ICE agents knew were not the targets of the operation. FAC ¶¶ 23, 31, 33, 214-15, 257, 336, 346, 362, 388, 392, 406, 409. During the course of the raid s, ICE agents sometimes caused extensive physical damage to the doors and walls of the homes, FAC ¶¶ 302, 319, 346, and/or handled residents with excessive force. FAC ¶¶ 267, 293, 345. Upon exitin g, several ICE agents threatened to return. FAC ¶¶ 238, 371. In fact, at one home, agents did return a second time and conducted themselves in the same unconstitutional manner. FAC ¶¶ 37-38.
Plaintiffs further allege that ICE raided Latino homes even when faced with evidence that ICE’s purported targets did not reside there. FAC ¶ 10. Inside these homes, agents detained and seized Latinos prior to eliciting or reviewing any eviden ce of unlawful status and without articulable suspicion, even when the individuals could not reasonably have been mistaken for the purported target of the raid. FAC ¶ 10. In c ontrast, when non-Latino i ndividuals represented that the purported target did not reside within the home, ICE promptly departed without entering. FAC ¶ 10; see also FAC ¶ 434 & Exh. 23 (recounting tw o separate instances of such discriminatory treatment in Greenport, New York ). In fact, depositi on testimony has revealed that ICE targeted certain bars and restaurants during Operation Community Shield solely on the
7

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 17 of 58

basis that Latinos were likely to be found at such bars and restaurants, n ot because of any other legitimate law enforcem ent objective. FA C ¶ 12. Sim ilarly, the Nassau County Police Department 30(b)(6) witness testif ied that during the course of that same operation, ICE agents on multiple occasions used derogatory and racist terms such as “wetback” to refer to the Latinos whose homes were being raided. FAC ¶ 12.4
B. Defendants As a result of the afor ementioned conduct, Plaintiffs brought suit against the United States of Am erica, ICE, DRO, OI, and the ICE agents who par ticipated in th e planning and execution of the hom e raids. Plaintiffs asse rt both injunctive relief and m onetary damages claims against some of these defendants and only injunctive relief claims against others. In addition, Plaintiffs brought Bivens claims against Mich ael Chertoff, for mer United States Secretary of DHS; Julie Myers, former Assistant Secretary of Homeland Security for ICE; John Torres, ICE’s form er Director of the Office of Detention and Rem oval Operations;5 and Marcy Forman, ICE’s former Director of the Office of Investigations.6 As s et forth in greater detail below, each of these four former offici als (a) created th e policies governing how the ICE

4

Defendants attempt to minimize the importance and accuracy of this testimony by introducing purportedly

conflicting testimony. First, reliance on such extraneous sources is fund amentally misguided; as t he allegations

must be credited for purposes of a motion to dismiss. Second, there is no conflict. The fact that some witnesses

testify that they individually did not hear any such slurs does not in any way prove that they were not spoken. And

the testimony relied upon by Plaintiffs in the FAC is not the testimony of a n individual deponent but rather the

testimony of t he Nassau County Police Department pursuant to a R ule 30(b)(6) subpoena. The d epartment has

taken the position, as an entity, that it receiv ed complaints that these slurs were m ade by ICE agents during the

operation. Fu rther, not all relev ant Nassau County law enforcement employees have yet been deposed, and on a

motion to dismiss, all inferences are resolved in favor of Plaintiffs.

5

As Director of DRO, Torres was responsible for apprehension, detention and removal of foreign nationals

charged with immigration law violations. FAC ¶ 83. Torres was directly involved in the raids, issuing protocols

regarding the coordination of raids, case m anagement, procedures for keeping records, and dispute resolution

between DRO and OI employees. FAC ¶ 85.

6

As the Director of OI, Forman was res ponsible for overseeing the investigative arm of ICE a nd the

supervision of sworn law enforcement officers assigned to OI. She played an active and extensive role in

formulating, planning and implementing ICE’s strategy for alien apprehension, FAC ¶ 89, including the planning,

implementation and supervision of training and the conduct of the Operation Community Shield raids in Nassau and

Suffolk Counties, New York in September 2007. FAC ¶ 90.

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agents operated during the raids at Plaintiffs’ homes, and (b) actively endorsed the conduct about which Plaintiffs complain, thereby fostering and perpetuating it.7 II. The Raids in Context
ICE’s conduct was neither happe nstance nor isolated. To the contrary, the conduct was pervasive and the direct, intende d result of policies and procedures prom ulgated by the ICE Officials. FAC ¶¶ 426-38, 456, 458, 472.
A. The ICE Officials Make 2005 and 2006 Policy Changes Chertoff identified expansion of alien appreh ension programs as one of his “overarching goals” at DHS shortly after he assum ed his role as Homeland Security Secretary. FAC ¶ 74. Consistent with that goal, in late 2005 and early 2006, he – along with Myers – conceived and promulgated the Secur e Border In itiative (“SBI”), a m ulti-stage comprehensive and aggressive immigration enforcement strategy for the United States. Th e ICE Officials ’ aspiration for the SBI, the second phase of which was focused on interior enforcement of the imm igration laws, was to “ move beyond the curren t level of activity to a h igher level in each m onth and year to come.” See Gordon Decl. ¶ 3, Exh. B . Chertoff placed heavy em phasis on his des ire to report “real results” following implementation of the initiative. Id. In connection with im plementing the second ph ase of the S BI, Chertoff, Myers, Torres and Forman implemented a series of policy changes that authorized and led inevitably both to an increased use of home raids as an enforcement tool and to constitutionally infirm behavior on the part of ICE agents during those home raids.

7

Plaintiffs do not assert injunctive relief claims against Chertoff, Myers, Torres or Forman. To the contrary,

the paragraphs of the FAC describing each of the defendants set forth whether that individual was being sued in their

individual or official capacities. Th e paragraphs asserting claims against the ICE Officials d eal with individual

capacity claims, that is, Bivens claims. See FAC ¶¶ 72, 78, 83, 89.

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First, in conjunction with im plementing the SBI, Chertoff and Myers quickly and significantly increased the num ber of DRO f ugitive operations teams (“FOTs”) authorized to conduct enforcement operations. G ordon Decl. ¶ 3, Exh. B . These FO Ts, which are team s of approximately seven m embers charged with appr ehending fugitive aliens typ ically without judicial warrants, prim arily conduct their work through enforcement operations at residences. FAC Exh. 1 at 3-6, 22. This change, then, affirmatively signaled the use of large teams of armed agents to enter hom es purportedly in search of one i mmigration law vi olator as a favored enforcement tool.
Second, Chertoff and Myers approved and laud ed a dramatic 800% arrest quota increase for ICE agents, a quota ICE agents have charac terized as “not doable.” FAC ¶¶ 74, 80, 84. Pre SBI, each FOT was expected to app rehend 125 fugitive aliens per year, 75% of whom had to be fugitive aliens with crim inal convictions. FAC Exh. 1 at 10. Following the implementation of the SBI, each FOT was required to apprehend 1 ,000 fugitive aliens per year. That quota chang e occurred in 2006 when Torres, with the approval of Chertoff and Myers, issued a series of policy memoranda that not only dram atically increased the quota, but also elim inated the requirement that 75% of the individuals apprehended be fugitive aliens, thereby explicitly permitting agents to meet the new quota through the a rrest of non-target im migrants, or “collaterals.” FAC ¶ 8. Thus, these defendants dissem inated policies that essentially overnight increased by 800% the number of fugitive aliens each FOT was expected to apprehend, and si multaneously eliminated the incentive for ICE agents to focus apprehensio n efforts on purported targets of the operations. See FAC Exh. 1 at 10-11; Gordon Decl. ¶ 3, Exh. B.
Third, with the assistan ce of Torres and Fo rman, Chertoff and Myers implem ented the SBI by increasing th e use of enforcem ent operations such as Operation Return to Sender,
10

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Operation Cross Chec k and Oper ation Community Shie ld, the operations pursuant to whic h

Plaintiffs’ homes were raided (the “Operations”). See Gordon Decl. ¶ 3, Exh. B; FAC ¶¶ 2, 73,

75(a), 75(c), 79, 86, 90. Chertoff, Myers, Torres and Form an similarly increased the use of

multi-week “initiatives,” or bursts of enforcement activity, designed to result in the arres t of as

many people as possib le pursuant to these an d other national operations and policies. See

Gordon Decl. ¶ 3, Exh. B.

Fourth, in March and August 2006, under the s upervision and with the approval of

Chertoff and Myers, Torres and Form an issued policy memoranda specifically authorizing and

encouraging the use of ruses during enforcem ent operations. FAC ¶¶ 85, 91. These m emoranda

failed to distinguish between ope rations conducted pursuant to judi cial warrants and consensual

operations, and did no t alert agents that the use of deception could vitiate consent. See Gordon Decl. ¶ 6, E xh. E; id. ¶ 7, Exh. F; id. ¶ 8, Exh. G. 8 Thus, through these m emoranda the ICE

Officials promulgated policies that not only allowed, but actively encouraged the use of

deception even in consent-based operations. FAC ¶¶ 85, 91.

In sum, working in conjunction with one another, the ICE Officials implemented policies

that (a) solidified the use of home raids a rou tine enforcement tool, (b) created unrealistic quotas

that incentivized agents to arrest individuals regardless of whether they were “targets” of the

operation and to take extraordinar y measures to meet those quotas, and (c) actively encouraged

the use of deception in enforcement operatio ns, including operations purportedly based o n

“consent.”

Despite the inherent dangers presented by th ese aggressive tactics, the ICE Officials

failed to provide the requisite training and supervision to ICE agents to ensure that the operations

were implemented in a manner consistent with the United States Constitution. FAC ¶¶ 13- 16.

8

These documents are incorporated by reference into the FAC. See, e.g., FAC ¶¶ 85, 91.

11

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The necessity of such training is no t only s elf-evident, but also, in fact, recomm ended by th e Office of the Inspector General (“O IG”). In late 2006 and again in early 2007, an OIG report recommended that the ICE Officials take steps to improve deficient FOT training. FAC ¶¶ 15, 189; FAC Exh. 16 at 29-31. That repo rt, which was d rafted in late 2006 and s ubmitted for comment to Myers and Torres before becoming final in March 2007, observed that, “not all team members [of operations had] attended” the requir ed Fugitive Operations Training P rogram, and that “there is no national refres her course for the Fugitive Oper ations Teams.” FAC Exh. 16 at 29-30. In the final report, di stributed to Chertoff and Myer s in March 2007, OIG therefore recommended that the ICE Off icials take steps to ensure that “all Fu gitive Operations Team members complete their training requirements,” and “consider establishing a fugitive operations refresher course.” Id. at 31. The ICE Offi cials ignored those reco mmendations. In fact, although Myers acknowledged the benefits of a nationwide refresher course in her December 22, 2006 response to the draft OIG report, see FAC Exh. 16 at 52-53, to date – more than three years later – ICE has failed to implement nationwide refresher training, see FAC ¶¶ 13-15.
B. Nationwide Patterns and Practices Emerge As a result of i mplementing SBI’s interi or enforcement phase and the corresponding policy changes discussed above, and in the abse nce of necessary training and supervision, a number of disturbing and inevitable unlawful patterns and practices emerged.
1. Widespread Home Raids Violate the Fourth Amendment Because of the policy changes made by th e ICE Officials, the modus operandi of the Operations was to have team s of s ix or m ore armed ICE agents raid Latino homes without probable cause or cou rt-issued warrants. ICE ag ents obtained entry to targeted homes withou t providing occupants any m eaningful opportunity to consent or refuse entry and without exigent circumstances, all in violation of the Fourth Amendment. FAC ¶¶ 4-6; Answer ¶¶ 233, 262, 321,
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339, 350, 360, 394, 399, 400 (averring that ICE agen ts did not need warrants or exigent circumstances for any o f the raids d iscussed in the FAC). Or, as th e Migration Policy Institute put it, ICE began widespread home raids “structured as a national security program: officers are armed, appear at residences late at night and early in the morning … lead[ing] to excessive force, overuse of high-powered weapons, and other escalations.” FAC Exh. 1 at 25. This modus operandi was implemented in operation plans endorsed by at least Torres and For man. FAC ¶¶ 86, 90.
ICE’s new modus operandi is evident not only from the consistency among Plaintiffs’ descriptions of their home raids, see supra Statement of Facts § I.A., but also from the extensive catalogue of similar incidents set forth in the independent report entitled Constitution on ICE: A Report on Immigration Home Rai d Operations (“Constitution on ICE”) prepared by the Benjamin N. Cardozo S chool of Law (attached as Exhibit 2 to the FAC) , and the widespread reports of similar conduct chronicled in newspaper articles around the country, see FAC ¶¶ 426437, and letters to Chertoff from, a mong others, Senators Dodd and Lieberm an, U.S. Representatives Serrano and DeLauro, and Former Nassau County Executive Suozzi. See FAC ¶¶ 17-19, 75(b)-(d); FAC Exhs. 4, 5, 12, 13.
Lest there be any doubt that viola ting the F ourth Amendment became ICE’s modus operandi as a result of the ICE Officials’ polic y changes, since 2006 when the policies were enacted, “there has been a twenty-two fold increa se in [the filing of] s uppression motions related to home raids” in immigration p roceedings, and “a five-fold increas e in the grant rate of suppression motions.” FAC Exh. 2 at 14. This is all the m ore telling considering that such motions are generally rarely broug ht and are extrem ely difficult to win: to p revail on such a
13

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motion, a party bringing a suppression m otion must demonstrate not only that his or her constitutional rights were violated, but that they were egregiously violated. Id. at 13-14.
Significantly, two judges found that ICE egre giously violated the Fourth Am endment rights of two Plaintiffs in two different hom es in the very raids at issue in this case. These two Plaintiffs, who were subjected to the ICE Offi cials’ new policies, pres ented their suppression motions to the immigration court and resoundingly prevailed, see supra Statement of Facts § I.A. (discussing William Lazaro and Victor Pineda M orales). Both courts found a lack of consent in the home raids, undermining the ICE Officials’ position in this case. S imilar judicial findings have been m ade with respect to at least five non-plaintiffs in the northeast region who were victimized in 2006 and 2007 by ICE conduct similar to that endured by Plaintiffs. See, e.g., FAC ¶ 75(b) & Exhs. 7–10 (findings of Connecticut immigration judge in New Haven raids and news report discussing such findings), FAC Exh. 2 at 18-20 (discussing findings of immigration judges in New York cases).
This modus operandi was not m erely an incidental by- product of the ICE Officials ’ new policies, but in fact was intended by the ICE Officials. Indeed, the operation plans governing the Operations affirmatively mandated much of this conduct. See FAC ¶ 86. For e xample, the Operational Order/Plan for the Fe bruary 2007 Operation Return to Sender in New York, the implementation of which cause v iolations of Plaintiffs’ constitutional rights, ordered teams executing home operations to (a) c onsist of fifteen agents (twelve deportation officers and three supporting agents) (Gordon Decl. ¶ 4, Exh. C at USE00968) , (b) commence operations at 5:30 a.m. (id. at USE00970), (c) assign agents “along the perim eter” of targeted locations ( id. at USE00970), and (d) don body ar mor and fully equipped tactical duty belts ( id. at USE00971). Torres approved this plan, whic h was conducted pursuant to the National Fugitives Operation
14

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Program (“NFOP”).9 Gordon Decl. ¶ 4, Exh. C. All of these requirements were for operations that the Defendants have repeatedly argued were, and were intended to be, “consensual.”
Moreover, in July 2007, Chertoff i ndicated his awareness of the pract ice of ICE a gents questioning minors in the absence of their gu ardians, notwithstanding the fact that obtainin g “consent” from minors is constitutionally infirm . In particular, in response to a Congressional inquiry about ICE operations in New Haven, Cher toff noted with approval that “ICE agents stayed with an 11-year-old child who had been left home alone by her parents and awaited the father’s arrival from work,” FAC Exh. 6 at 2-3, begging the question of who granted the ICE agents consent to enter the hom e. The inferen ce from this statement is that Chertoff approved the practice of seeking consent from minors, thereby authorizing IC E agents in the f ield to continue that practice during home raids.
2. Racial Profiling Violates the Equal Protection Clause of the Fifth Amendment
As a foreseeable, intended result of th e ICE Officials’ 2005 and 2006 policy changes, a second pattern and practice em erged: racial profiling in violation of the Equal Protection Clause of the Fifth Am endment. FAC ¶¶ 9-10. Several f acts establish that racial profiling becam e an entrenched pattern and practice of ICE following implementation of the SBI initia tives and that the ICE Off icials were aware of these uncons titutional de facto policies and did nothing to change them.
First, in de termining the non-res idential locations for Operation Community Shield, ICE’s selections were based not on the presence of targets, but rath er on the presence of non-

9

Torres similarly approved the Operational Plan for the April 2007 Operation Cross Check initiative in New

York, which likewise resulted in violations of Plaintiffs’ constitutional rights and ordered teams of agents to (a)

arrest, detain, and place i nto removal proceedings all re movable aliens (Gordon Decl. ¶ 5, Exh. D at USE01016,

FAC Exh. 16 at 8), (b) look for aliens in locations such as homes (Gordon Decl. ¶ 5, Exh. D at USE001017), (c)

commence arrest operations no later than 5:30 a.m. (id. at USE00126), and (d) don body armor and fully equipped

tactical duty belts (id. at USE01019).

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target Latino individuals. FAC ¶¶ 9-10. Speci fically, according to deposition testimony of local law enforcement, two bars or clubs chosen for the September 2007 Operation Community Shield raids were not known as hangouts of targeted gang members – rather, they w ere merely establishments frequented by Latino individuals. FAC ¶ 12; see also FAC ¶ 9.
Second, a statistical review of the races of targets and collaterals reveals that the raids were marked by racial profiling. The Constitution on ICE study analyzing ICE arrest data between January 1, 2006 and April 18, 2008, found that in the Long Island, New York area, while 66% of the targets of ICE raids arrested were Lati no, Latinos m ade up 94% of the collateral arrests.FAC Exh. 2 at 12. In the vast m ajority of those collater al arrests, ICE agents noted no basis for seizing and questioning individuals who were Latino. FAC Exh. 2 at 12.
Third, and most critical, authorized offici al comments by ICE spokespersons evidence that the raids were m arked by racial profiling. In particular, ICE spokespersons asserted that at targeted homes, agents could automatic ally “reasonably suspect” that residents of target hom es had illegal status. FA C ¶¶ 432-33; FAC Ex hs. 21, 22. However, given the well-known investigatory deficiencies and flawed intellig ence that pervaded these raids, ICE had no good reason to believe that any identified address was actually the target’s home. Thus, the sole fact that an address appeared on an agent’s list of pl aces to raid, without more, could not be the basis for reasonable suspicion justifying detentive interrogations. In fact , in an article dated April 27, 2007, Blake Chisam , legal coun sel to the H ouse Judiciary Comm ittee’s subcommittee on immigration, reflected that some of ICE’s rationales for reasonable suspicion might not stand up in court. FAC Exh. 21. An analysis of the info rmation available to ICE at the tim e of the raids strongly suggests that, as the Constitution on IC E put it, “during hom e raids ICE agents seize
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Latino residents based sim ply on their ethnic appearance or limited English proficiency.” FAC Exh. 2 at 12.
Fourth, the contrasting conduct of ICE agents when they approached hom es occupied by non-Latinos demonstrates racial profiling. As set forth above, when ICE agents approached homes of Latinos, they routinely entered and searched the entire home regardless of whether they had reason to believe their purpor ted target resided there. See supra Statement of Facts § I.A. At homes where non-Latinos opene d the front door, however, agents routinely walked away without entering or conducting any fu rther search for the target a nd, in fact, in one instance affirmatively stated, “I think we have the wr ong address,” and departed. FAC ¶ 434 & Exh. 23. In other words, ICE not only treated Latinos differently than non-Latinos during the course of the home raids, but in fact appeared su rprised when they encountered non-Latinos and change thei r conduct accordingly.
Although the purported purpose of the operations was to apprehend the targeted fugitives, FAC ¶ 3, FAC Exh. 1 at 18, the facts show that this stated purpose was pretextual; the true intent of the operations was to target Latinos. IC E knowingly initiated ra ids without adequate investigation or su rveillance confirming the location of the purpor ted target. Indeed, one ICE supervisor estimated that only about 50% of the information in one of the primary databases ICE relied on to identify targ et locations was accu rate. FAC Exh. 16 at 15. Tellingly, ICE in some cases refused assistan ce from local law enforc ement that could hav e provided more accurate intelligence as to a target’s whereabouts, FAC ¶ 7, and in at least one instance, used a photograph that was twenty-one years out of date for the pur pose of identifying a target during a raid, FAC ¶ 16. Law enforcem ent officials reported that fewe r than 10% of adm inistrative warrants issued for the Operation Community Shield raids of September 2007 in Long Island contained accurate
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addresses. FAC Exh. 11. Sim ilarly, the ICE Officials have ne ver promulgated policies that

require agents to document or input inform ation into their records or databases noting incidents

of failed attempts to find a target or incorrect address information; such conduct is inconsistent with any professed goal of locating actual targets. FAC ¶ 11.10

III. The ICE Officials Failed to Investigate and Remedy Numerous Highly-Publicized Reports of Constitutional Violations
As demonstrated above, the ICE Official s designed and im plemented policies that

inevitably led to constitutional violations. Moreover, when faced with actual complaints of such

violations, they turned a blind eye and thro ugh their m isleading or uninformed responses

impeded full and fair investigations of such violations.

First, the ICE Officials either commented upon or received a highl y critical OIG Report that predated the plaintiff raids at issue in th is case.11 Among other things, the OIG report

relayed that: (1) only about 50% of the inform ation in the database ICE used to locate targets

was accurate (FAC Exh. 16 at 15); (2) ICE histo rically failed to obtain and reconcile information

about targets from other agencies (FAC Exh. 16 at 26); and (3) not all agen ts received th e

relevant training program and ICE should implement a national refresher course (FAC Exh. 16 at

30). ICE still has not taken adequate steps to address these issues. See FAC ¶ 7 (ICE has

refused offers of assistance from local law enforcement agencies that could have provided more

accurate information about the whereabouts of targets); FAC ¶ 13 (ICE has con tinued to provide

inadequate training); FAC ¶ 16 (raids af ter the OIG report la cked current intelligence and

possessed incorrect addresses for many of the targeted homes).

10

As a result, ICE agents raided 15 West 18th Street twice in little more than a year, both times looking for the

same individual who did not reside there and had not resided there for at least three years. FAC ¶ 379.

11

Specifically, Myers provided two responses to a draft of the OIG report, first on December 22, 2006, and

then again on February 13, 2007. Torres also provided a response to the OIG draft on December 1, 2006. All such

responses were included in the final OIG report. The distribution list for the OIG report indicates that Chertoff and

Myers received it. See FAC Ex. 16.

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Likewise, on May 23, 2007, Chertoff receiv ed a letter from counsel for Reinald o

Gonzales detailing the ICE Agen ts’ warrantless, nonconsensual en try into 165 Main Street, Mt.

Kisco, New York. This letter expressly told Chertoff that Mr. Gonzales was restrained and

“herded into a van” without ICE agents identi fying themselves, questioning Mr. Gonzales about

his status or asking him for identification. Only after m uch pleading was Mr. Gonzales allowed

to produce his Alien Registration Card, proving his lawful status. FAC ¶ 75(a).

Additionally, numerous articles in the na tional media as well as judicia l opinions

chronicle the widespread, consistent violations. For example:



On April 10, 2007 , the New York Tim es reported that in East Ham pton,

New York, ICE agents entered a hom e at 5 a.m., purportedly looking for a

target who had not lived in the house since 2003. After failing to find the

target, the agents threatened to return. See FAC ¶ 75(a).



An April 27, 2007 a San Francisco Chronicle arti cle described arrests at a

target’s former residence and the ICE practice of allowing agents to id entify

themselves as “Police” to gain entry into hom es and ques tion individuals

solely because of an ass ociation with the target of a wa rrant. The article

also noted the charg e that the agen ts violated the Fourth and Fifth

Amendments in their conduct of the raids. See FAC ¶ 432 & Exh. 21.



An April 28, 2007 article in The Daily Revi ew described early-m orning

raids in the San Francisco, Californi a area and reported that ICE conducted

home raids with only arrest warrants. ICE failed to address the charge that a

search warrant was required for the hom e entry at issue, and an official ICE

spokesperson merely responded that warra nts are obtained for all arrests.

See FAC ¶ 431 & Exh. 20.



On July 23, 2007, the New York Times described ICE practices of pushing

past New Haven, Connecticut resident s who opened the door to agents and

of arbitrarily knocking at homes near to the residence listed in a deportation

order after finding the target residence empty. See FAC ¶ 428 & Exh. 17.

See also Exh. 2 at 16-22 (chronicling inst ance after instance of complaints). Further, in April of

2006, Judge Gershon in the Eastern District of New York suppressed evidence obtained pursuant

to a purportedly consensual search conducted and/ or supervised by several DRO agents in April

of 2006, including three of the individual defendant age nts present at home raids detailed in the

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FAC. See United States v. Ali, No. 05-CR-785 (NG) (SMG) , 2006 WL 929368 (E.D.N.Y. April 7, 2006).
Contrary to Defendants’ contention that thes e numerous complaints, articles and court decisions post-date the operations, the majority of events underlying these complaints took place well before the bulk of the raids at issue in th e FAC and put the ICE Officials on n otice of the unconstitutional conduct occurring within their department by their workforce.
The ICE Officials perpetuated such conduct by insisting, or having ot hers insist on their behalf, that ICE was comporting with constitutional m andates. The IC E Officials m ade these representations either with know ledge of their falsity or w ithout performing any adequate investigation of the fac ts and, in so doing, i mpeded investigations that could and should have taken place. Thus, despite being infor med of a widespread pattern and practice of m isconduct during ICE operations, the ICE Offi cials conducted a “grossly inadequate investigation,” failed to discipline agents for their im proper conduct, failed to remedy the conduct, and in m any cases actively and misleadingly defended unlawful practices. FAC ¶¶ 20, 75(a)-(d), 80, 81, 87, 92.
The ICE Officials were also sent d irect letters relaying the pattern of unconstitutional conduct of agents in the field. On June 11, 2007, Senators Dodd and Lieberm an and U.S. Representative DeLauro sent Chertoff a letter st ating that they were “troubled” by reports concerning the manner in which ICE conducted the raids in New Have n, Connecticut five days earlier. Specifically, they remarked that only 4 of the 31 individuals who were detained were the subject of deportation orders, de spite the fact that the o peration was part of a nationwide initiative to target and apprehend individuals with final orders of removal. Further, they reported that “ICE agents pushed their way into hom es,” that they “treated both adults an d children inappropriately,” and that the opera tion appeared to be in retaliati on for a new initiative to issue
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identification cards to the undocum ented community. They then posed a num ber of inquiries to Chertoff, including, but not limited to, whether c onsent was obtained at each hom e, how agents identify people who are targets, and what type of warrants ICE used. See FAC Exh. 5.
Chertoff sent a reply letter a m ere three days later, which speaks volumes as to the depth of the investigation he conducted or initiated in response to thes e serious allegations. The m ore serious problem with Chertoff' s letter, however, was not its hast e, but its v eracity. Chertof f uniformly denied all allegations and delivered bald conclusions such as, “[a]t no tim e did any ICE FOTs enter a dwelli ng without consent.” See FAC Exh. 6. Cherto ff’s response has proven to be untrue. Judge Michael Straus found in four separate proceedings th at ICE FOTs egregiously violated the Fourth Amendm ent rights of individuals during pre-dawn raids where ICE failed to obtain consent. FAC E xh. 8 at 27, Exh. 9 at 26, Exh. 10 a t 23.12 Similarly, while Chertoff asserted that “each team had a Spanish speaking officer,” this statement was misleading at best given the judge’s finding th at agents spoke English to Spanish speakers and had to call in an interpreter. Compare FAC Exh. 6 at 2 with FAC Exh. 10 at 25. Sim ilarly, while Chertoff asserted that an “individual being interviewed mu st voluntarily agree to re main,” this too was at odds with the court’s findings that in the raids at issue, agents ignore d requests of the Latino victims that they not be subjected to questioning. Compare FAC Exh. 6 at 2 with FAC Exh. 10 at 25.
In short, courts have now found t hat ICE’s conduct during various Connecticut hom e raids that were the subject of Chertoff’s denial s “worked an egregious violation” of Fourth Amendment rights. FAC Exhs. 8, 9. These judi cial findings strongly s uggest that Chertoff’s dismissive reply to the June 11, 2007 Congressi onal inquiry was made either with actual

12

“Without saying a word, agents immediately and forcibly pushed the door wide open.” FAC Exh. 8 at 27;

see also Exh. 9 at 26, Exh. 10 at 23.

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knowledge of falsity or with reck less disregard as to the truth or falsity of the allegations. 13 Either way, the den ials served to im pede an inves tigation of legitimate complaints of constitutional violations.
Chertoff and Myers continued to receive high- profile complaints of ICE misconduct. On September 27, 2007, Lawrence W . Mulvey, Commissioner of Police for Na ssau County, sent a letter to Joseph A. Palmese, Resident Agent in Charge of ICE investigations in Bohem ia, New York, criticizing ICE’s conduct during raids th at week and imm ediately withdrawing his department’s assistance from the operations. FAC Exh. 3. This letter was forwarded to Chertoff. FAC ¶ 19. Comm issioner Mulvey asserted that the Septem ber 24 operations lacked current intelligence, that m ost addresses were wrong, and that, in one case, ICE agents were looking for a 28-year-old suspect using a photograph of the susp ect from when he was seven years old. FAC Exh. 3. He added that the op eration was “structured poorly,” that the team s consisted of border patrol personnel from different parts of the country w ho clearly did not train together, that agents were armed with a mix of tactical weapons including shotguns and MP-5’s, and that his own officers com plained of the “undisciplined conduct of the federal agents.” FAC Exh. 3; see also FAC Exh. 11. He asserted, in short, that the ICE agents displayed a “cowboy mentality.” Incredibly, in the confusion of a purportedly a “c onsensual” operation, ICE agents even drew their guns on Nassau County police offi cers. FAC Exh. 3 at 2; FAC Exh. 4 at 1-2; FAC Exh. 11 at 1 C onfirming the trend stated in Senator Dodd’s letter, of the 40 people apprehended, only 3 were “affiliated activel y with gangs” in Nassau County, the rem ainder consisting of people ICE determined to be undocumented. See FAC Exh. 3.

13

The court sta ted, “Notably, ther e are scant facts that might furnish a pl ausible basis upon which

communicated consent might reasonably have been interpreted by the agents during their initial entry into the

apartment.” FAC E xh. 8 at 27. And, “[t]he facts at bar reflect that . . . t he evidence gathered here was not in

connection with ‘peaceful arrests’ made by immigration officers.” Id. at 28.

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Nassau County Executive Thom as R. Suozzi also complained to Chertoff about the actions and behavior of ICE agents conducting raids in Nassau County in September 2007. FAC Exh. 4. In a letter to Chertoff dated Octobe r 2, 2007, Suozzi attached Mulvey’s letter and reiterated its scat hing observations. Id. He requested th at Chertoff investigate the “serious allegations of m isconduct and malfeasance committed by I mmigration and Customs Enforcement personnel in executing arrest wa rrants in various Nassau County communities on September 24 and 26, 2007.” See id. Myers w as copied on the letter. Id. Consistent with his practice of responding in haste, Chertoff drafted a reply letter to Suozzi on October 4, 2007, just two days later. FAC ¶ 75(c). Instead of sendi ng this draft letter, however, Chertoff elected to have Myers reply on his behalf. Id. On October 19, 2007, Myers replied to Suozzi. Id. Her letter was substantially the sam e as Chertoff’s initial draft, and like the response to Senator Dodd, contained a blanket denial of all allegations.
Similarly, following the Operation Community Shield raids in Long Island, an ICE agent made internal allegations of racial prof iling. FAC ¶ 12. Although Myers was knowledgeable about the allegations, she did not ensure an adequate investiga tion and imposed no discipline or corrective measures in response to the claims of racial profiling. FAC ¶¶ 12, 80. Had Defendant Myers – or any of the other ICE Officials – properly investigated the charge, they w ould have discovered that local law enforcement corroborated the allegations. FAC ¶ 12.
In blindly defending ICE from these alle gations of m isconduct, Chertoff and Myers authorized and endorsed a de facto policy of unconstitutional entries into and searches of homes. FAC ¶¶ 19, 75(c). This attitude is further reflected by the fact that ICE spokespersons, under the supervision of the ICE Official s, have repeatedly and aggre ssively defended ICE’s conduct and offered ill-informed support of th e agents’ behavior. T he Special Agent in Charge of th e
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Operation Community Shield ra ids told the New York Times that even in the context of ho me entries, “We don’t need warrants to m ake arrests. These are illegal immigran ts.” FAC ¶ 427, FAC Exh. 11. This, of course, is a misstatement of the applicable legal standards, which provide the home with special constituti onal protection. Thes e active, public, untruthful defenses of unlawful conduct sent the clear and erroneous m essage to ICE agents that they did not have to comply with the constitutional mandates applicable to other law enforcement agencies.
ARGUMENT The factual allegations in the FAC clearly implicate the ICE Officials in routine and repeated constitutional violations. Contrary to the ICE’s Of ficials’ intimations, Iqbal does not absolve them from liability for their own failures to supervise their subordinates. In fact, even the broadest reading of Iqbal holds supervisors liable for im plementing and perpetuating policies, practices and procedures that all b ut required, and in fact induced, a pattern of unconstitutional conduct. Defendants’ reliance on Iqbal, the centerpiece of their motion, is thus misplaced and their motion should be denied. I. A Complaint, Taken as a Whole, Must Allege Only Sufficient Factual Matter to Support an Inference That Plaintiff is Entitled to Relief All that must be stated in a complaint is “a short and plain statement of the claim.” Fed. R. Civ. P. 8. Neither Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), nor Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), alter the basic tenet of Rule 8 that notice pl eading is sufficient. The Supreme Court itself ha s reiterated that Twombly did not change this ba sic element of federal practice. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (under Twombly “[s]pecific facts a re not necessary; the statement need only give the de fendant fair notice of what the ... claim is and the grounds upon which it rests. ”) (internal citation a nd quotation omitted); s ee also Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (notice pleading “continues to be the case after Iqbal”).
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Thus, even after Iqbal, this Court must accept all of the allegations in the FAC as true and must then draw all inf erences in Plaintiffs’ favor. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., No. 09-2613-cv, 2010 WL 1337225, at *3 (2d Cir. Apr. 7, 2010). This is true “even if it strikes a savvy judge that actu al proof of those facts is im probable, and that a recovery is very remote and unlikely.” Iqbal, 129 S.Ct. at 1955 (quoting Twombly).
In light of the lim ited purpose of notice plead ing, to survive a m otion to dism iss all a complaint must allege are facts that raise more than a “sheer poss ibility” that the plain tiff is entitled to relief. Iqbal, 129 S. Ct. at 1950; see also Fritz v. Charter Tp. of Comstock, 592 F.3d 718, 729 (6th Cir. 2010) (reversing grant of judgm ent because “factual allegations are sufficient to raise more than a m ere possibility” of unlawful conduct) (citing Iqbal). All Iqbal requires is that plaintiffs present the factual basis for the allegations. Braden v. Wal-Mart Stores, Inc ., 588 F.3d 585, 595 (8th Cir. 2009) (“[I]t is sufficient for a plaintiff to plead facts indirectly showing unlawful behavior, so long as the facts pled give the defendant fa ir notice of what the claim is and the g rounds upon which it res ts.”) (internal quotations omitted) (citing Iqbal); Rouse v. Berry, No. 06-2088 (RWR), 2010 WL 325569, at *4 (D.D .C. Jan. 29, 2010) (denying m otion to dismiss where plaintiff “made a factual allegation that provides independent corroboration of his belief” of discrim ination based on disability); see also al-Kidd v. Ashcroft , 580 F.3d 949, 975 (9th Cir. 2009) (denying m otion to dismiss on the grounds that “unlike in Twombly and Iqbal, where the plaintiffs alleged a conspiracy or discriminatory practice in the most conclusory terms, [plaintiff] does not rely solely on his assertion that Ashcroft ordered, encouraged, or permitted ‘policies and practices’”) (emphasis added).
Critically, this evaluation must be done taking the complaint as a whole, i.e., considering all the allegations contained in the c omplaint. Vila v. Inter-American Inv. Corp., 570 F.3d 274,
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285 (D.C. Cir. 2009) (citing Iqbal) (“Viewed in their totalit y, and according [plaintiff] all favorable inferences, [plaintiff’s] allegations plau sibly give rise to an entitlem ent to relief.”) (internal citation and quotation omitted); Braden, 588 F.3d at 594 (citing Iqbal) (“The complaint should be read as a whole, not parsed piece by piece to determ ine whether each allegation, in isolation, is plausible.”).
Thus, if the sum of the allegations in the FAC – assumed true and granted all reasonable inferences – offer more than the sheer possibility that the Plaintiffs are entitled to relief, Plaintiffs have met their burden. As explained below, the f acts alleged here support an inference that the ICE Officials are directly responsible for Plaintiffs’ injuries. II. Under Iqbal, Supervisors, Like the ICE Officials, Are Liable For Their Own
Misconduct A. Iqbal Did Not Alter the Well-Settled Law of Supervisory Liability Defendants are simply wrong when they assert that Iqbal has done away with supervisory liability. Quite the op posite: Iqbal itself emphasizes that a fede ral official’s liability may “‘result from his own negl ect in not properly superintending th e discharge’ of his subordinates’ duties.” Iqbal, 129 S.Ct. at 1948 (citing Dunlop v. Munroe, 11 U.S. (7 Cranch) 242, 269 (1812). Thus, far from eliminating supervisory liability, Iqbal reaffirmed that a federal official m ay be held liable for his own f ailure to supervise subordi nates, as that is “his own neglect,” not m ere respondeat superior. T his standard is p recisely the one that has long been applied by federal courts. Dunlop, 11 U.S. (7 Cranch) at 269. The Second Circuit expounded on the principle that a supervisor is liable solely for his or her own wrongs in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). As set forth in Colon, such “personal involvement of a supervisory defendant m ay be shown” by the fact that “(1) the defendant participated directly in the alleged c onstitutional violation, (2) the def endant, after
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being informed of the violati on through a report or appeal, fa iled to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of su ch a po licy or cu stom, (4) the defendant w as grossly negligent in supervising subordinates who co mmitted the wrongful acts, o r (5) the d efendant exhibited deliberate indifference to the rights of inmates by failing to act on info rmation indicating that unconstitutional acts were occurring.” Id. (emphasis added).
Nothing in Iqbal is to the contrary. As noted above, the very authority relied upon by the Supreme Court states that a supervisor can be liable for a failure to supervise. Rather, Iqbal’s central holding, that “each Government official, his or her title notwithstanding, is only liable for his or her own m isconduct,” Iqbal, 129 S.Ct. at 1949, is entir ely consistent with all of the Colon tests. This is because a failure to supervise or remedy is the supervisors’ own failure. See, e.g., Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005) (“S upervisory liability is imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional deprivations of which the com plaint is m ade, or for conduct that showed a reckless or callous indifference to the rights of others.”) (emphasis added). Nothing in Iqbal undermines the Second Circuit’s long-standing rule that supervisory liability may be founded on any one of five bases.
Indeed, even post-Iqbal both the Second Circuit and numerous courts in this District have reiterated the Colon factors as th e test f or supervisory liability.14 “A supervisory official

14

The majority of judges in this District that have addressed the issue have cited the Colon factors post-Iqbal.

See Cunningham v. Dep’t of Corr. Servs., No. 04-CV-5566 (CS), 2009 WL 1404107 (S.D.N.Y. May 20, 2009)

(Seibel, J.) (citing Colon factors post-Iqbal); Cole v. Fischer, No. 07 Cv. 11096 (BSJ), 2009 WL 1514699 (S.D.N.Y.

May 29, 2009) (Jones, J.) (same); Harrison v. Goord, No. 07 Civ. 1806 (HB), 2009 WL 1605770 (S.D.N.Y. Jun. 9,

2009) (Baer, J.) (same); 5 Borough Pawn, LLC v. City of New York, 640 F. Supp . 2d 268 (S.D.N.Y. 2009)

(McMahon, J.) (same); Williams v. Smith, No. 02 Civ. 4558 (DLC), 2009 WL 2431948 (S.D.N.Y. Aug. 10, 2009)

(Cote, J.) (same); Dawkins v. Gonyea, 646 F. Supp. 2d 594 (S.D.N.Y. 2009) (Marrero, J.) (same); JG & PG ex rel.

JGIII v. Card, No. 08 Civ. 5668 (KMW), 2009 WL 2986640 (S.D.N.Y. Sept. 17, 2009) (Wood, J.) (same); Doe v.

Cuomo, No. 08 Civ. 8055 (LAP), 2009 WL 3123045 (S.D.N.Y. Sept. 29, 2009) (Preska, C.J.) (same); Burton v.

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personally participates in challenged conduct not only by direct participa tion, but by (1) failing to take corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent supervision, or de liberate indifference to the rights of others.” Rolon v. Ward , 345 Fed.Appx. 608, 611 ( 2d Cir. Sept. 4, 2009) (summ ary order). Importantly, courts have repeatedly denied motions to dism iss in reliance on the various allegedly “overruled” Colon prongs. In Kellogg v. New York State Dep’t of Corr. Serv., No. 07 Ci v. 2804 (BSJ) (GWG), 2009 WL 2058560, at *7 (S.D.N.Y. July 15, 2009), for exam ple, the court denied a supervisor defendant’s motion to dism iss where a prison g uard compelled Plaintiff to subm it to m ultiple, inappropriate strip-searches. In so holding, the court reasoned that dismissal would be improper because the supervisor “was notified of sexual harassment, abuse and retaliation against Plaintiff and failed to stop or remedy these violations.” See also, e.g., Felix-Torres v. Graham, No. 9:06CV-1090, 2009 WL 3526644, at *12 (N.D.N.Y. Oct. 23, 2009); Sadler v. Lantz, No. 3:07-cv1316, 2009 WL 3013716, at *7 (D. Conn. Sept. 16, 2009).15

Lynch, 664 F. Supp. 2d 349 (S.D.N.Y. 2009) (Sand, J.); Vera v. New York State Dep’t of Corr. Servs., No. 08 Civ. 9636 (DC), 2009 WL 4928054 (S.D.N.Y. Dec. 21, 2009) (Chin, J.) (same); Mateo v. Fischer , No. 08 Civ. 77 79 (RJH) (DCF), 2010 WL 431229 (S.D.N.Y. Feb. 8, 2010) (Holwell, J.) (same); Solar v. Annetts, No. 08 Civ. 5747 (WHP), 2010 WL 1253473 (S.D.N.Y. Mar. 16, 2010) (Pauley, J.); Braxton v. Nichols, No. 08 Civ. 08568 (PGG), 2010 WL 1010001 (S.D.N.Y. Mar. 18, 2010) (Gardephe, J.) (same); Cortes v. City of New York, No. 08 Civ. 4805 (LTS) (RLE), 2010 WL 1253946 (S.D.N.Y. Mar. 30, 2010) (Swain, J.) (same); Coward v. Town & Vill. of Harrison, 665 F. Supp . 2d 281, 305 (S.D.N.Y. 2009 ) (applying Colon-derived factors post- Iqbal) (Karas, J.). As of this briefing, Defendants have identified only a handful a cases where Colon is supposedly overruled. See Memorandum of Law in Support of Motion to Dismiss the Complaint Against Defendants Michael Chertoff, Julie Myers, John Torres, and Marcy Forman (Mar. 11, 2010) at 16-17; Joseph v. Fischer, No. 08 Civ. 2824 (PKC )(AJP), 2009 WL 3321011 (S.D.N.Y. Oct. 8, 2009) (Castel, J.) (no t citing Colon factors); Spear v. Hugles, No. 08 Civ. 4026 (SAS), 2009 WL 2176725 (S.D.N.Y. Jul. 20, 2009) (Scheindlin, J.) (“only the first and third Colon factors have survived the Supreme Court’s decision in Iqbal”); Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2009 WL 1835939 (S.D.N.Y. June 26, 2009) (Scheindlin, J.) (same); Newton v. City of New Yo rk, 640 F. Supp. 2d 426 (S.D.N.Y. 2009) (Scheindlin, J.) (passive failure to train claims . . . have not survived Iqbal).

15

Defendants have acknowledged that courts continue to apply Colon, arguing only that those courts ar e

mistaken, and urging this court to follow the contrary argument in Bellamy, 2009 WL 1835939, at *4. However,

Bellamy offers little support for its assertion that Iqbal has eliminated categories of supervisory liability. It contains

no analysis and little ex planation, citing only Iqbal’s rejection of the argument that “mere knowledge of his

subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution.” That one line entirely

fails to support the proposition that Iqbal rewrote the standards for supervisory liability. See Diaz-Martinez v.

Miami-Dade County, No. 07-20914-CIV, 2009 WL 2970468, at *15 (S.D. Fla. Sept. 10, 2009) (rejecting defendants

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B. Iqbal Did Not Alter the Relevant Standard for Fourth Amendment Claims Even if Iqbal were taken to have alte red the law of supervisory liability as to F ifth Amendment Equal Protection claims, it has no bearing on Plaintiffs’ Fourth Amendment claims. Thus, even if the Court were to hold Plaintiffs’ Fifth Amendment allegations a higher standard of personal involvement, Plaintiffs’ Fourth Amendment claims are not subject to that standard. As recognized in m any post-Iqbal decisions, the Court’s holding in Iqbal was direc tly and fundamentally linked to the nature of the claims asserted. The Court both “beg[a]n by taking note of the elements” of the asserted claim , and thereafter distinguished the claims presented by Iqbal from other causes of action, highlighting that “[t]he factors necessary to establish a Bivens violation will vary w ith the constitutional provision at issue.” Iqbal, 129 S.Ct. at 1948. In the words of the Court, the Iqbal plaintiffs’ claims failed because the “complaint d[id] not contain any factual allegation sufficient to plausibly sugg est [defendant’s] discriminatory state of mind.” Id. at 1952. Because a law enforcem ent agent’s state of mind is irrelevant in Fourth Am endment claims, see, e.g., United States v. Klump , 536 F.3d 113, 118 (2d Cir. 2008), Iqbal is, by its own terms, inapposite. This funda mental limitation on Iqbal's reach has been stated by num erous courts, which have recognized that the Supreme Court so limited its discussion. As one court put it, “[t]he Supreme Court, in Iqbal, even prefaced its analysis of this issue by recognizing that ‘[t]he factors necessary to establis h a Bivens . . . violation will var y with the constitution al provision at issue. . . . Iqbal thus does not support the propos ition that general allegations are never sufficient to support a . . . claim.’” Young v. Speziale, No. 07-03129 (SDW -MCA), 2009 WL 3806296, at *7 (D. N.J. Nov. 10, 2009) (citation omitted); Masters v. Gilmore, 663 F. Supp.
“reading of Iqbal as overbroad. . . . Iqbal stands for the proposition that a sup ervisor cannot be vicariously liable solely for the acts of a subordinate. However, there is no indication that the Supreme Court intended to wipe out the well-developed body of law surrounding supervisory liability”).
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2d 1027, 1051 (D. Colo. 2009) (sam e); Wiseman v. Hernandez , Civ. 08cv1272-LAB (NLS) ,

2009 WL 5943242, at *9 n.8 (S.D. Cal. Nov. 24, 2009) (sam e); Womack v. Smith, No. 1:06-CV-

2348, 2009 WL 5214966, at *5 (M.D. Pa. Dec . 29, 2009) (sam e, distinguishing Iqbal on the

basis that “the Supreme Court m a[de] clear in Iqbal, [that] the f actors necessary to establish a

Bivens violation will va ry with the cons titutional provisions at issue ”); Bovarie v. Tilton , No.

06CV687 JLS (NLS), 2010 WL 743741, at *4 (S.D . Cal. March 1, 2 010) (noting that Iqbal

addressed purposeful discri mination and holding that “ Iqbal did not change th[e] standard, nor

what must be pled under th[e] standard” for Eighth Amendment claims).

Thus, courts have continued to find high-leve l supervisors liable for Fourth Amendment

violations for their “mere” knowledge and toleran ce of violations as well as for failure to

supervise. See al-Kidd, 580 F.3d at 976 (holding th at plaintiff stated a claim for supervisory

liability in the wake of Iqbal where “‘abuses occurring under the material witness statute after

September 11, 2001 were highly publicized in

the media, congressional testim ony and

correspondence, and in various reports by governmental and non-governmental entities,’ which

could have given Ashcroft suffici ent notice to require affirm ative acts to supervise and correct

the actions of his subordinates”); Vance v. Ru msfeld, No. 06 C 6964, 2010 W L 850173, at *7

(N.D. Ill. March 5, 2010) (denying motion to di smiss where allegations, taken as true, “would

substantiate plaintiffs’ claim that Rum sfeld was aware of the direct im pact that his newly

approved treatment methods were ha ving on detainees held in Iraq”); Barrett v. Maricopa

County Sheriff's Office, No. CV 08-2094-PHX-GMS (MHB), 2010 WL 46786, at *7-8 (D. Ariz.

Jan. 4, 2010) (holding that plaintiff stated a claim for supervisory liability where plaintiff alleged

that supervisor’s failure to im plement necessary policies amounted to customs and practices that

resulted in deprivation to plaintiff); Hernandez v. Foster, No. 09-cv-2461, 2009 WL 1952777, at

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*9 (N.D. Ill. July 6, 2009) (holding that supervisor s could be held liable for Fourth Am endment violations where plain tiffs alleged “that the conduct cau sing the co nstitutional deprivation occurred at their direction or with their knowledge and consent”); Williams v. Fort Wayne Police Dep’t, No. 1:08-cv-152, 2009 WL 1616749, at *4 (N.D. Ind. June 9, 2009) (holding tha t supervisors can be held liable for Fourth Am endment violations when they “know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they m ight see”) (internal citation o mitted). Indeed, as de scribed below, in the most factually analogous case to the instant matter, a suit based on the sa me operation against similar ICE defendants, the District of New Jersey so held. See infra Argument § III.C.
C. Defendants Admit That Supervisors Can Be Found Liable For Creating or Permitting a Policy or Custom Under Which Unconstitutional Practices Occurred
As Defendants concede, supervisors are liable for creating or perm itting a polic y or custom under which unconstitutional practices occurred. Defendant’s Me morandum of Law in Support of Motion to Dismiss the Complaint Against Defendants Michael Chertoff, Julie Myers, John Torres, and Marcy Forman (“Def. Br.”) at 15-17. However, Defendants mistakenly assume that such liability can be f ounded only on policies that expressl y “require” or “authorize” the unconstitutional conduct. Def. Br. at 20. This ar gument is facially absurd and would virtually eliminate any governmental liability or accountability, as it would be th e rare policy indeed that would say, in effect, “Thou shall violate the Constitution.”
Not surprisingly, Defendants are unable to cite a singl e case that supports their interpretation of the standards for supervisory liability.16 Rather, for a supervisor to be liable for

16

In fact, the ca ses cited by Defendants affirm the opposite: that a policy need not require or authorize

violations. “[A] co mplaint must allege that the need for m ore or better supervision was o bvious, but that the

defendant made no meaningful attempt to prevent the constitutional violation.” Missel v. County of Monroe, 351

Fed. Appx. 543, 546 (2d Cir. 2009) (internal citations and quotations omitted) (municipal liability).

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creating or permitting a policy, all that courts have required is the creation or m aintenance of “a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Thompkins v. Belt , 828 F.2d 298, 304 (5th Cir. 1987) (internal quotations omitted); Player v. Gomez , 243 F.3d 549 (9th Cir. 2000) (same); see also, e.g., Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d Cir. 2 004) (Sotomayor, J.) (for municipal liability, “plaintiffs’ ev idence must establish only that a policym aking official had notice of a potentially serious pr oblem of unconstitutional condu ct, such that the need for corrective action or supervision was ‘obvious,’ and the policym aker’s failure to investigate or rectify the situation evidences deliberate indifference, rather than m ere negligence or bureaucratic inaction”) (internal citation omitted); Padilla v. Yoo , 633 F. Supp. 2d 1005, 1034 (N.D. Cal. 2009) (senior governm ent attorney liable for “set[ ting] in motion a series of events” that resulted in constitutional violations). III. Plaintiffs’ Allegations Demonstrate the ICE Officials Violated the Fourth
Amendment Here, Plaintiffs’ allegations dem onstrate that the ICE Officials w ere “personally involved” in the violations bot h by creating and perpetuating polic ies that would inevitably lead to constitutional violations, as we ll as by failing to stop the violations after the relevant facts came to their attention. A. The ICE Officials Created and Perpetuated Policies Under Which
Unconstitutional Practices Occurred and Harmed Plaintiffs Creating or perpetuating a policy that caus es constitutional violations is sufficient for supervisory liability under any in terpretation of Iqbal. The FAC contain s clear, plausib le allegations that the policies and practices adopted and endorsed by the ICE Officials produced an inevitable pattern of constitutional violations. Th e resultant violations that Plain tiffs suffered were not isolated incidents of uncon stitutional conduct but rather the d irect consequences of the
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very structure and nature of th e Operations that im plemented the ICE Officials’ policie s. Moreover, given the widespread nature of these violations and the ICE Officials’ refusal to modify ICE’s persistent illegal practices, these violations can be traced directly to their door.
The FAC c ontains plausible allegations th at the ICE Officials adopted and endorsed policies that foreseeably led to a pattern of constitu tional violations. Plaintiffs’ specific allegations – that large team s of heavily arm ed agents forcibly entere d and swept through the homes, caused extensive physical dam age to walls and doors, rousted re sidents in a state of undress from their beds, blocked exits, detained family members for interrogation, and terrorized children – docum ent not isolated incidents of unconstitution al conduct but rather direct consequences of the very structure, nature and modus operandi of the enforcem ent programs. FAC ¶ 4. T hese characteristics were neither specific to the Plaintiffs’ homes, nor, as num erous reports across the country dem onstrate, particular to the New York area. To the contrary, the unlawful conduct that harmed Plaintiffs was part of a widespread pattern or practice. Cf. Saleh v. City of Buffalo , No. 97-CV-0872E(M), 2000 WL 177347 2, at *5 (W.D.N.Y. Nov. 27, 2000) (holding that allegations were “sufficiently diffuse to constitute a custom or usage with the force of law”) (internal quo tation marks omitted). These patterns and practices that were nationa l in scope – they received coast- to-coast media coverage a nd Congressional attention and correspondence – thus directly implicated IC E’s national hierarchy and required the ICE Officials to take af firmative acts to supervise and correct the actions of their agents. See infra Argument § III.B.
The conduct constituting the patterns and pract ices described in th e FAC were inherent in, and/or a natural consequence of, the policies promulgated by the ICE Officials. It is clear that this conduct violates the Fourth Amendment. Courts have long held that the circum stances
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constituting the pattern and practice of which Plaintiffs comp lain violate the Fourth Amendment

and undermine and vitiate consent, which “ must be a product of [an] individuals’ free and

unconstrained choice, rather than mere acquiescence in a show of authority.” United States v.

Wilson, 11 F.3d 346, 351 (2d Cir. 1993); Bumper v. North Carolina, 391 U.S. 543, 549 (1968).

Courts have routinely held that the following circumstances, all of which are hallmarks of ICE’s

nationwide pattern and practi ce, and all of which are at iss ue in this c ase, result in viola tions of

constitutional rights and undermine voluntary, duress-free consent:



The presence of multiple offi cers when consent is soug ht. See United

States v. Mendenhall , 446 U.S. 544, 552 (1980) (holding that the

“threatening presence of several offi cers, the display of a weapon by an

officer, the physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance w ith the officer’s

request might be compelled” ar e all hallm arks of nonconsensual

encounters); see also Abdella v. O’Toole, 343 F. Supp. 2d 129, 142-43 (D.

Conn. 2004); Djonbalic v. City of New York , No. 99 Civ. 11398, 2000 WL

1146631, at *10 (S.D.N.Y. Aug. 14, 2000).



The request for and purported grant of “consent” occurs at late night

or early morning hours. See LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th

Cir. 1985) (finding a pattern of unl awful seizures where ICE agents

conducted warrantless searches “during early morning or late evening hours,

surrounded the residences in emergency vehicles with flashing lights . . . and

stationed officers at all doors and windows”); see also Kaupp v. Texas, 538

U.S. 626, 631-32 (2003) (rousting resident dressed in underwear out of bed

in the “middle of the night” vitiated consent); Djonbalic, 2000 WL 1146631

at *10.



The visible presence of heavy arms at the time consent is sought. See

United States v. Mapp , 476 F.2d 67, 78 (2d Cir. 1973); United States v.

Restrepo-Cruz, 547 F. Supp.1048, 1057 (S.D.N.Y. 1982).



Agents conduct protective sw eeps where officers have no reason to

perceive any threat. See Maryland v. Buie , 494 U.S. 325, 327 (1990);

United States v. Gandia, 424 F.3d 255, 262 (2d Cir.2005) (cautioning that

“when police have gain ed access to a suspect' s home through his or her

consent, there is a concern that generously construing Buie will enable and

encourage officers to obtain that c onsent as a pretext for conducting a

warrantless search of the home.”); Ali, 2006 WL 929368, at *7 (invalidating

protective sweep by DRO agents).

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

Agents seek consent from minors. See Abdella, 343 F. Supp. 2d at 135

(invalidating “consent” by a twelve-year-old invalid).



The individual purportedly granti ng consent does not spea k or

understand the language of the govern ment official seeking cons ent.

See Wilson, 11 F.3d at 351 (holding that “ limited education and knowledge

of the English language” casts doubt on consent, particularly in light of the

intrusive nature of agents’ entry ”); United States v. Isiofia , 370 F.3d 226,

233 (2d Cir. 2004).



The use of ruses, including false emergency ruses, w

hen seeking

consent. See Def. Br. at 20 n.7; United States v. Montes-Reyes , 547 F. Supp. 2d 281, 288 n.10 (S.D.N.Y. 2008); 17 see also Hoffa v. United Sta tes,

385 U.S. 293, 301 (1966); United States v. Har din, 539 F.3d 404, 424-25

(6th Cir. 2008).

Indeed, many of these factors have for med the basis of court determ inations that these

Operations egregiously violated the Fourth Amendment. A court in Connecticut, for exam ple,

noted that the “early morning” nature of the raid s and the ICE agents’ failure to lim it their entry

into the immediate area of the ap artment were factors in determining a flagrant violation of the

Fourth Amendment. See FAC Exh. 8 at 27. In another in stance, the judge rem arked on the

“aggressive nature of the forced entry” wher e the agents pushed open the door, requiring the

resident to move back out of f ear of being struck by the door. See FAC Exh. 9 at 27.

Additionally, the judge found it “tr oubling” that agents continued to ask questions in English

after it w as clear that the respondent did

not understand what they were asking

and communicated through his son, in Spanish, that he did not want to answer any questions.

See FAC Exh. 10 at 25.

17

Defendants erroneously rely on Montes-Reyes, 547 F. Su pp. 2d 281 to justify the ICE O fficials’ ruse

memoranda. Defs. Br. at 20 n. 7. In fact, Montes-Reyes holds that the u se of ruses in warrantless entries and

searches can invalidate consent, particularly when agents give “the impression that …consent cannot be l awfully

withheld” or make “false claims of exigent circumstances.” Id. at 288 n.10. Indeed, Judge Cote pointed out that

several courts have articulated a per se rule invalidating consent where agents use deception to misrepresent their

purpose. Id. at 288 n.7 (c ollecting cases). T he ICE Officials’ failure to m ake these principles clear to a gents

endorsed a policy of routine use of unlawful ruses during raids on Plaintiffs’ homes, the most dramatic example of

which is an agent’s false claim that “so meone is dying upstairs” to convince twelve-year-old Beatriz Velasquez t o

open the front door. FAC ¶ 328.

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It is precisely this type of conduct that Plaintiffs experienced and caused them harm. See supra Statement of Facts § I.A. Specif ically, consistent with the unco nstitutional patterns and practices set forth above, Plaintiffs say: la rge teams of a rmed agents pounded on Plaintiffs’ doors, in the early morning, often before dawn, shouting “Police!” and ordered them to open the door (FAC ¶¶ 5, 23, 25, 27, 31, 33, 37-38, 192, 245, 289, 309, 326); agents entered Plaintiffs’ homes and bedrooms when Plaintiffs, including women, young children and adolescents, were in a state of undress, some still asleep (FAC ¶¶ 5, 207, 209-10, 245, 252-53, 282, 293, 312, 344-45, 381, 404-05, 412); and agents carried subm achine guns and shotguns and drew or clutched their holstered weapons (FAC ¶¶ 4, 218, 345), caused extensive physical dam age to the doors and walls of the homes (FAC ¶¶ 302, 319, 346), and/or handled residents with excessive force (FAC ¶¶ 267, 293, 345). Despite th e fact that some of the individuals spoke only Spanish, ICE did not ensure that Spanish-speaking agents were present and, in many cases, agents spoke only English to Spanish-speaking persons. FAC ¶¶ 5, 408. Sim ilarly, at two of the hom es, ICE purportedly sought and obtained consent from minors. FAC ¶¶ 326-339, 395-401, 410. Cr itically, pursuant to the express policy perm itting ruses in consensual encounters authored by Torres and For man and approved by Chertoff and Myers, the agents m isrepresented the pu rpose of their searches, and in one case deceived reside nts by falsely stating “som eone is dying upstairs.” FAC ¶¶ 85, 91, 328.
In sum, the FAC alleg es, in s ignificant factual detail, that the modus operandi of the raids, as encouraged and m andated by the ICE Of ficials’ policies and di rectives, made regular constitutional violations inevitable. See, e.g., FAC ¶¶ 2-9. ICE’s habitual practice of conducting raids under the circum stances described in the FAC resulted in violat ions of Plaintiffs’ constitutional rights. Even post- Iqbal, such involvement is sufficient to hold the ICE Officials
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liable. See, e.g., Stevens v. New York , No. 09 Civ. 5237 (CM), 2009 W L 4277234, at *7 (S.D.N.Y. Nov. 23, 2009) (post- Iqbal decision holding that “[s]upervisors can be sued individually … if they prom ulgated unconstitutional policies or plans under which action occurred, or otherwise authorized or approved challenged misconduct”); Felix-Torres, 2009 WL 3526644, at *12 (denying supervisor summ ary judgment where “the record contain[ed] ... evidence from which a rational fact finder could conclude that a reasonable supervisor would have been put on notice that there was a high risk tha t Plaintiff's constitutional rights would be violated”); Sadler, 2009 WL 3013716, at *7 (denying m otion to dismiss where “[p]laintiff asserts facts and attaches exhibits to his amended complaint demonstrating that [supervisor] was aware of plaintiff' s [condition] through grievances and letters”); see also al-Kidd, 580 F.3d at 969 (“alleg[ations] that . . . arrest[] [was m ade] . . . pursuant to a ge neral policy, designed and implemented by Ashcroft” was sufficient under Iqbal); Padilla, 633 F. Supp. 2d at 1033 (“Like any other governm ent official, governm ent lawyers are responsible for the foreseeable consequences of their conduct.”).
In addition to their implicit endorsem ent of patterns and practi ces of known Fourth Amendment violations, Chertoff, Meyers and T orres can and should be held liable for their personal involvement in creating and approving the impossible goal of 1000 a rrests, particularly given the fact th at they were put on notice of the unconstitutiona l effects of that policy. Tha t policy compelled, or at leas t encouraged, agents to behave in an unconstitutional m anner, particularly in the abs ence of corrective training. FAC ¶¶ 8, 9. Cf. Argueta v. United States Immigration and Customs Enforcement , No. 2:08cv01652, 2010 WL 398839 at *4, *10 (D.N.J. Jan. 27, 2010) (“Plaintiffs allege that [defendants] . . . ‘approve d a remarkable 800% increase in the arrest quota of each team in the corresponding period of time without providing the necessary
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training to prevent ICE agents ... from acting abusively and unlawfully.’ . . . Accepting as tru e the allegations set forth in the Second Am ended Complaint, the Court finds the allegations sufficient at this stage ‘to state a claim to relief that is p lausible on its face.’ Plaintiffs have alleged sufficient facts dem onstrating that the Individual Federal Defendants ‘set in m otion a series of events’ that resulted in the depr ivation of Plaintiffs’ Four th Amendment rights.”) (internal citations om itted); Spell v. McDaniel , 591 F. Supp. 1090, 1109 (E.D.N.C. 1984) (“Plaintiff also alleges the City encouraged misconduct by rewarding and comm ending abusive and assaultive behavior, by use of a n arrest quota system. . . . On the basis of these allegations, this court finds that the City of Fayetteville is not being sued on the basis of respondeat superior.”).
B. ICE Officials Are Also Liable Under the Other Colon Factors Apart from their liabi lity under the third Colon factor for their implem entation and perpetuation of the policies that led to the cons titutional violations, the ICE Off icials are also liable under the other Colon factors for their knowledge and acquiescence to the illegal activities, gross negligence in supervision, and deliberate indifference to Plaintiffs’ rights. The ICE Officials can and should be held li able for their inadeq uate responses to countless complaints. See Amnesty Am., 361 F.3d at 128 (“[P]laintiffs ’ evidence must establish only that a policymaking official had notice of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was “obvious,” and the policymaker’s failure to investigate or r ectify the situation evidences deliberate indifference, rather than m ere negligence or bureaucratic in action.”); Kellogg, 2009 WL 2058560, at *6 (a supervisor can be liable when “notified of sexual harassment, abuse and retaliation against Plaintiff and failed to stop or rem edy these violations.”); cf. Joseph, 2009 WL 3321011, at * 16 (even under a broad reading of Iqbal, “response [to plaintiff’s lett er] … is action on [supervisor
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defendant’s] part”); Walker v. Pataro, No. 99 Civ. 4607 (GBD) (AJP), 2002 WL 664040, at *14 (S.D.N.Y. Apr. 23, 2002) (denying summ ary judgment on the issue of a superintendent’s personal involvement because responses to g rievances “which attempt to defend or explain constitutional violations” are sufficient to sustain a claim of personal involvement).
The ICE Officials had num erous warnings of the ongoing pattern of unconstitutional practices from credible sources, including United States Senators and Representatives, local law enforcement agencies and officials who had firs t hand knowledge of the operations, and factual accounts contained in widely circulated high-profile newspapers such as the New York Times , The Washington Post and U.S. News and World Reports . FAC ¶¶ 10-12, 15-21, 75(a)-(d), 81, 426-38. In response, the IC E Officials did nothing to m odify the habitual ICE violations. They instead offered uniform, unqualified and recklessl y unsupported defenses of such conduct. Similar behavior has been held to s upport liability, even in the wake of Iqbal. See T.E. v. Grindle, 599 F.3d 583, 589 (7th Cir. 2010) (summary judgment properly denied where plaintiffs “offered evidence … that [the s upervisor] knew about [the] abuse of the girls an d deliberately helped cover it up by m isleading the girls’ parents, the superintendent, and other administrators.”); Stevens, 2009 WL 4277234, at *8 (denying m otion to dismiss where plaintiff alleged that the defendant failed to act; reasoning in part that it was “reasonable to infer that [the defendant] had some sor t of authority to correct or alter the actions taken against [Plaintiff]”)18; see also Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (“[D]eliberate indifference may be inf erred if the com plaints are f ollowed by no m eaningful attempt on the part of the municipality to investigate”).

18

The court reached this conclusion despite the fact that the p laintiff “d[id] not outline in his Complaint

exactly what it is th e Inspector General does at OSC – that is, [he] d[id] not state what action he believes the

Inspector General should have taken in accordance with his role.” Id.

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Indeed, this is particularly true where, as here, supervisors knew or should have known that by virtue of their position and the num ber of complaints, continued violations would occur absent their supervision. See Jean-Laurent v. Wilkinson , 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (denying summ ary judgment on a failure to supervise claim where supervisor “knew or should have known there was a probability that [c ircumstances] would result in a violation of [plaintiff’s] constitutional rights”); Beatty v. Davidson, No. 06-CV-571S, 2010 W L 1407311, at *10 (W.D.N.Y. March 31, 2010).
In sum, the ICE Officials en acted policies and procedures that inherently led to the deprivation of Plaintiffs’ const itutional rights and failed to respond adequately to num erous credible, high profile complaints, Plaintiffs have stated a claim for supervisory liability against them under the balance of the Colon factors.
C. The District of New Jersey Upheld Similar Claims Against Similar Defendants
Just over three months ago, the United States District Court for the District of New Jersey declined to dismiss a rem arkably similar Fourth Am endment complaint against Myers and Torres. Argueta, 2010 WL 398839, at *6-7. 19 In Argueta, as here, plaintiffs alleged that Myers and Torres, among others, could and should be held liable for plaintiffs’ injuries on account of their (1) role in planning and implem enting Operation Return to Sender, the nationwide operation pursuant to which plaintiffs’ hom es were raided, (2) im plementation and oversight of the 800% arrest quota incr ease, and (3) defense of and failure to respond adequately to repeated and widespread allegations of unconstitutional conduct by ICE agents in the field. Id. at *7.

19

In Argueta, the court dismissed one plaintiff’s Equal Protection claim based on the plaintiff’s concession

that Iqbal precluded it. Plaintiffs here disagree with that position. See infra Argument § IV.

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In response to Myers’s and Torres’s argum ents that Iqbal foreclosed the imposition of liability on them, the court handily distinguished Iqbal, noting the numerous manifest differences in both the context and substance of the allegations:
[U]nlike in Iqbal, the [defendants] were not urgently reacting in the immediate aftermath of a terro rist attack. T he alleged acts being challenged occurred pursuant to m ore aggressive imm igration policies undertaken over a two year period. The [defendants] in this suit are alleged to have dire ctly initiated the unconstitutional home raid practices at issue. The complaint sets forth numerous allegations about the searches, and there is no doubt that Myers and Torres had sufficient knowledge of how the searches we re being conducted . M yers and Torres worked on these issues everyday. A noted above, this is far different than what was alleged against Ashcroft and Mu eller, where there were few, if any, concrete facts alleged…. In this case, Torres and Myers wrote the policy, implemented it, and monitored its progress. Id. at *8 (emphasis added). The ab ove reasoning applies equally to Chertoff and Form an in this case. Chertoff was the direct recip ient of high-level complaints about the Operations, including concerns expressed by U.S. Senators and House Re presentatives, and his response was simply to whitewash the ICE Operations without directing any remedial action. FAC ¶¶ 75-76. Similarly, Forman was directly involved in the planning for Operation Community Shield, and had notice of many of the public com plaints regarding ICE’s pattern and practice of unconstitu tional conduct and “worked on these issues everyday.” FAC ¶¶ 89-92. Given the parallels between this case and Argueta, which involves a sim ilar nationwide ICE operation, nearly identical f act patterns, and subs tantively analogous complaint allegations, denial of Plaintiffs’ motion would mark a noticeable divergence from a sister court’s holding and application of Iqbal. Defendants concede as m uch. See Defs’ Br. at 18 n.5. Indeed, rather than attempting to distingu ish the cases, Defendants argue that the holding in Argueta was sim ply wrong.
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Defendants’ arguments that Argueta is not a well-supported or well-reasoned opinion should be rejected. Fi rst, it is not the Argueta court but Defendants who misunderstand the import and effect of Iqbal. Becau se Fourth A mendment claims, unlike the specific claim s at issue in Iqbal, do not require a showing of intent, courts have repeatedly held that a supervisor’s knowledge and acquiescence of unconstitutional c onduct remains a sufficient basis on which to hold that supervisor liable for Fourth Amendment violations post-Iqbal. See supra Argument § III.B.
Second, contrary to Defe ndants’ suggestion, the Argueta court did not im properly limit the applicability of Iqbal to apply only to claims against the highest-level officials and to cases involving governmental disaster response. While the Argueta court did note that these two facts distinguished Iqbal from the case before it, th e court imm ediately proceeded to analyze th e plaintiffs’ complaint precisely as p rescribed by Iqbal. N amely, the court properly analyzed plaintiffs’ particularized a llegations of involvem ent by th e Defendants. Indeed, the Argueta court carefully exam ined the extent and nature of Myers’s and Torres’s involvem ent in the constitutional violations alleged in Plaintiffs’ complaint. Id. at *7-8. Just as the court should do here, the Argueta court properly concluded af ter that examination that plaintiffs had adequately alleged that the defendants could be held personally responsible for plaintiffs’ injuries. In sum , the ICE Officials have offered no reason to depart from the findings and reasoning of Argueta, and the result in this case should be the same as the result in that one. IV. Plaintiffs’ Allegations Are Sufficient to State Violations of the Fifth Amendment by
the ICE Officials As explained above, neither th e language nor the spirit of Iqbal undermines settled law that a supervisor is liable both for instituting a discriminatory policy and for failing to discharge
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his or her duties. Here, the facts alleged support an inference that ICE Officials intentionally instituted and maintained policies that targeted individuals based on racial classifications.
A. ICE Officials Implemented Operations and Policies that Created a Pattern and Practice of Racial Profiling
The Equal Protec tion Clause of the Unit ed States Constitution prohibits r acial discrimination by governm ent officials. Indeed, th e touchstone of equal protection is that the government may not subject p ersons to unequal treatm ent based on race. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999).20 Thus, the express classification of individuals by race, “regardless of purported m otivation, is presumptively invalid” and plaintiffs need no t demonstrate a discrim inatory intent. Shaw v. Reno, 509 U.S. 630, 642-644 (1993) (em phasis added and citation omitted).
This principle of presumptive invalidity “applies as well to a classif ication that is ostensibly neutral but is an obvious pretext for racial discrim ination.” Id.; Donahue v. Hillman , No. 98-5522, 2004 W L 5049451 (Mass. Super. Sep 03, 20 04) (“[A] classification that appears neutral on its face but is an obvio us pretext for racial discrimination will also require strict scrutiny.”) (citations o mitted). Broad allegations of racial profiling sufficiently allege th e existence of an express racial classification. See Nat’l Cong. for Puerto Rican Rights by Perez v. City of New York , 191 F.R.D. 52, 54 (S.D.N.Y. 1999); see also M artinez v. V illage of M t. Prospect, 92 F. Supp. 2d 780, 784 (N.D. Ill. 2 000) (citing racial profiling ca ses). Considering the braid and pervasive racial profiling, Plaintiffs theref ore need not show an intent to discriminate.

20

That this case involves allegedly consensual interactions is immaterial. United States v. Avery, 137 F.3d

343, 352-53 (6th Cir. 1997) (holding that “a g eneral practice o r pattern that primarily targeted minorities for

consensual interviews,” is sufficient to demonstrate a vi olation of t he Equal Protection clause ) (internal citations

omitted).

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Plaintiffs allege that ICE – us ing the pretext o f searching for targets – in fact ra cially

profiled Latino homes and other locations in search of non-targets. A plethora of allegations in

the FAC support the conclusion that ICE engaged in a pattern and practic e of racial profiling

during the Operations at issue here:

 The Operations disparately impacted Latinos: even controlling for the percentage of Latino targets, ICE arrested a disproportionate number of Latinos. See FAC ¶¶ 9, 10; FAC Exh. 2 at 12.



As stated by local law enforcement officers, ICE selected the target locations for

Operation Community Shield non-residential raids based on the presence of

Latinos, not the presence of purported targets of the raid (namely, alleged gang

members). FAC ¶¶ 10, 12, 459.



The Operations were marred by allegations of racial profiling, internally by ICE

agents themselves, by police officers involved with the raids, and externally in

media reports. FAC ¶¶ 12, 75, 426, 434, 437, 438. Local law enforcement

testified that the ICE agents called the Latinos they encountered “wetbacks.”

FAC ¶ 12.



When ICE encountered homes where Latinos opened the door, agents routinely

and across jurisdictions used force or trickery to enter the home, searched the

home, corralled everyone present into a central location, and interrogated each

individual present at the home, even where the residents clearly were not the

targets of the operation, simply because they were there. Conversely, when ICE

encountered homes where non-Latinos opened the doors, agents expressed

surprise at finding a non-Latino person, explained that they had the wrong house

and walked away without further inquiry or interaction with the individuals at the

home. See FAC ¶¶ 10, 434; FAC Exh. 23.



Once ICE was in the homes, ICE immediately subjected Latinos to identity

checks based simply on occupants’ accents, “ethnic appearance or limited English

proficiency.” See FAC Exh. 2 at 12.

That such racial profilin g occurred here is unsurprising and is directly attributable to the

ICE Officials. Due to manifes tly bad intelligence and preparation, ICE Officials knew a “target

home” was not in fact very likely to actually have a target. See FAC Exh. 16. Moreover, the

FAC includes detailed allegations that the ICE Offici als adopted quotas that could be m et only

through the use of racial prof iling. FAC ¶¶ 8-10, 74, 80, 84. Si mply put, absent an underlyin g

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assumption of racial profiling, the S BI initiatives and corresponding Operations would not m ake sense. As a lleged in the FAC, often only a s mall percentage of the actual “targets” o f the raids were actually apprehended. FAC ¶¶ 3, 8, FAC Exh. 2 at 11, 15. Rather, the vast m ajority of individuals arrested were, like the P laintiffs here, Latino and non-targets. See also FAC Exh. 5 (4 of 31 arrestees were targets ). According to the Constitution on ICE, a study of raids in Long Island (including raids which are part of the subject of this litigation) revealed that ICE arrested only 6 of 96 targets. FAC Exh. 2 at 15. Likewi se, in the New Haven raids, only 4 of 16 targets were arrested. FAC Exh. 2 at 15. But for the use of racial profiling, which generated numerous collateral arrests, the op erations instituted, continued, and lauded by the ICE Offic ials, would have made almost no arrests at all. Indeed, ICE failed utterly in achieving its stated goal of apprehending specified targets.
Considering the alleged facts as a whole, Plaintiffs have plausibly alleged that ICE agents discriminated against Latinos based on their race and that ICE Officials established and endorsed such conduct.
B. ICE Officials Intended to Discriminate Against Latinos Lest there be any doubt that the ICE Officials acted with discrim inatory intent, the FAC contains specific allegations in that regard. A s “discriminatory intent is ra rely susceptible to direct proof, litigants m ay make a sensitive inquiry into such circumstantial and direct evidenc e of intent as m ay be available.” Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (internal quotation omitted). A plaintiff ma y show discrim inatory intent indirectly in several ways, including by showing dispar ate impact on a racial group, id., or by showing that factors usually considered important by the decision m aker strongly favor a decision contrary to the one reached, see Village of Arlington H eights v. Metro. Housing Dev. Corp ., 429 U.S. 252, 267
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(1977). As just illustrated, these operations clearly had a disparate impact on Latinos, and would not have made sense but for an assumption of racial profiling.
Additionally, the FAC alleg es that the ICE O fficials affirmatively participated in the decisions not to investigate the complaints of widespread abuse. See supra Statement of Facts § III. Such allegations have just been held by the Seventh Circuit to be sufficient to overcom e a supervisor’s motion for summary judgment, and a fortiori are sufficient to state a claim. In Grindle, 2010 W L 938047, at *4, the court held th at a motion for summary judgm ent was properly denied as plaintiffs “offered evidence … that [the supervisor] knew about [the] abuse of the girls and deliberately helped cover it up by misleading the girls’ parents, the superintendent, and other adm inistrators.” Th e court explained that “[ f]rom this evidence, a jury could reasonably infer – though it would not be required to infer – t hat [the supervisor] also had a purpose of discriminating against the girls based on their gender.” Id. See also Massenburg v. Adams, No. 3:08CV106, 2010 W L 1279087, at *3 (E.D. Va. Mar. 31 2010) (denying motion to dismiss where officials “had the authority and re sponsibility to intervene and remedy the alleged violation … yet they stood indifferent”); Valenti v. Massapequa Union Free School Dist ., No. 09-CV-977 (JFB)(MLO), 2010 W L 475203, at *8 (E.D .N.Y. Feb. 5, 2010) (m otion to dismiss gender discrimination suit denied where plaintiff alleged that s upervisor was “directly involved in the … d ecision not to ins titute investigative and/or disciplin ary proceedings … procedures regularly enforced when a fem ale instructor was the subject of such accusations-and that [supervisor] participated in this decision out of gender-based animus”).
Furthermore, the blatant inconsistency betw een ICE’s purported goa l– the apprehension of specific targets – and ICE’s strikingly consis tent actual practices on the ground show that the ICE Officials, who personally touted that the purpose of the operations was to seek targets, were
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using pretexts. Use of pretexts further supports an inference of discriminatory intent. See Doe v. Mamaroneck, 462 F. Supp. 2d 520, 553 (S.D.N.Y. 2006) ( “evidence of pretext” can support claim of discriminatory intent by law enforcement officials ); United States v. Andrews , 05-CR139, 2005 WL 475403, at *7 (D. Neb. Nov. 1, 2005); St. Mary’s Honor Ctr. v Hicks , 509 U.S. 502, 511 (1993) ( “rejection of the de fendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination”) (emphasis in original).
Finally, a supervisor’s failure to train agents in non-discriminatory methods of identifying individuals amenable to further questioni ng can support an allegation of intentional discrimination. Farm Labor Organizing Comm. v. The Ohio State Highway Patrol , 95 F. Supp. 2d 723, 740-41 (N.D. Ohio 2000) (holding that clai ms should go to the jury where supervisor “did practically nothing to train [officers] in how to identify illegal immigrants in a race-neutral manner” while “direct[ing] [s ubordinates] to enforce fede ral immigration laws m ore aggressively”).21 Here, even in th e face of internal al legations of racial profiling, the ICE Officials failed to provide adequate training to its agents with re spect to how an d when to question individuals regarding alienage. FAC ¶¶ 12-13.
In sum, this com plaint offers far more than the threadba re recitals at issue in Iqbal. Plaintiffs allege that these Operations – purportedly designed to apprehend the targets – were in fact a means of corralling Latinos and investigating their status. It is the alternate ex planation – that the Operations were appropriate and consensual – that is im plausible, particularly given the decisions of several courts to the contrary. The FAC’s alle gations that the ICE Officials

21

Additionally, courts consider “[t]he historical background of the decision... particularly if it reveals a series

of official actions taken for invidious purposes.” Hayden v. P aterson, 594 F.3d at 163 (citation omitted). The

immigration authorities have a history of discrimination against Latinos, including “Operation Wetback”: “It is well

known that prejudice against … t he Mexicans … em erged as t hese groups emigrated in substantial numbers; it

persisted long after their arrival. See, e.g., … J.R. Garcia, Op eration Wetback: The Mass Deportation of Mexican

Undocumented Workers in 1954 (1980).” Mojica v. Reno, 970 F. Supp. 130, 145 (E.D.N.Y. 1997).

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endorsed the use of patently out–of -date and unreliable intelligence, imposed impossible quotas that the supervisors them selves understood could not be attained without including collaterals, and whitewashed governm ental inquiries supply more than enough factual context to m ake Plaintiffs’ allegations of intentional discrimination plausible. Thus, the FAC m eets Plaintiffs’ burden of offering independent fa ctual support for their asserti ons of discrim inatory bias. Kregler v. City of New York , No. 09-3840-cv, 2010 W L 1740806, at *1 (2nd Cir. May 3, 2010) (summary order) (reversing district court’s dismissal because allegation that defendants “induced contacts … to prevent his appoint ment as a City Marshal … [wa]s neither a legal conclusion nor assert[ed] a claim that [wa]s implausible on its face” and thus pled sufficient facts u nder Iqbal). Rouse, 2010 WL 325569, at *4 (“Unlike wh at the plaintiff pled in Iqbal, Rouse has not m erely parroted the legal elements of the claim in his com plaint. He has m ade a factual allegation that provides independent corroboration of his belief that LTC Partners denied his coverage on the basis of his disability, and that allegation is entitled to a presumption of truth.”).
CONCLUSION The allegations in the F AC show that ICE Officials approved, by their own affir mative actions and refusals to act, a pattern of behavior that led to violations of Plaintiffs’ Fourth and Fifth Amendment rights. This Court should therefore deny the ICE Officials’ motion.

Dated: New York, New York May 6, 2010

DEWEY & LEBOEUF LLP
By: ___/s_____________ Donna L. Gordon Aldo A. Badini Jennifer Opheim Whitener 1301 Avenue of the Americas New York, New York 10019 (212) 259-8000

48

Case 1:07-cv-08224-KBF Document 239 Filed 05/19/10 Page 58 of 58 LATINOJUSTICE PRLDEF By__/s______________ Foster Maer Ghita Schwarz Christina Iturralde 99 Hudson Street, 14th Floor New York, New York 10013 (212) 739-7504 Attorneys for Plaintiffs
49

 
 Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 1 of 51

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
-against-
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

x : : : ECF Case : Civil Action No. : 07 CIV 8224 (JGK) (FM) : : : x

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ CLAIM FOR
INJUNCTIVE RELIEF

DEWEY & LEBOEUF LLP Aldo A. Badini Donna L. Gordon Kelly A. Librera 1301 Avenue of the Americas New York, New York 10019 (212) 259-8000

LATINOJUSTICE PRLDEF Foster Maer Ghita Schwarz Christina Iturralde 99 Hudson Street, 14th Floor New York, NY 10013 (212) 739-7504

Attorneys for Plaintiffs

Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 2 of 51
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES ............................................................................................. iii
PRELIMINARY STATEMENT .........................................................................................1
ARGUMENT .......................................................................................................................3 I. PLAINTIFFS HAVE STANDING TO SEEK INJUNCTIVE RELIEF AND DEFENDANTS’ MOTION UNDER FED. R. CIV. P. 12(B)(1) SHOULD BE DENIED .........................................................................................3 A. Prior Injury, Threats of Recurrence, and Repeat Violations Show Standing .......................................................................................................5 B. Plaintiffs Face Harm While Engaging in Everyday, Law-Abiding Behavior ........................................................................................................8 C. Plaintiffs Are Members of an Identifiable Class Targeted by ICE and Therefore Are Likely To Be Injured Again............................................9 D. Harm is Likely to Recur Because of ICE’s Unlawful Pattern, Practice and De Facto Policies ...................................................................11 1. ICE Agents Engaged in a Widespread Pattern and Practice of Misconduct...........................................................................................11 (a) ICE Pervasively Violated the Fourth Amendment During Warrantless Home Operations and Failed to Obtain Voluntary Consent to Enter and Search the Homes.....................12 (b) ICE Engages in a Pattern, Practice, and De Facto Policy of Racial Profiling During Warrantless Home Operations ..........17 (c) ICE’s So-Called “Mandatory” Policies Are, in Fact, Not Mandatory .............................................................................21 2. ICE’s Misconduct Rises to the Level of De Facto Policy Because ICE’s Unconstitutional Practices are Persistent and Widespread, and Because ICE Does Not Address Constitutional Misconduct by ICE Agents through Discipline or Re-training .......................................................................................22 3. ICE Policies Actively Condone and Authorize Constitutional Violations .............................................................................................26 (a) Policies Authorizing Use of Unlawful Ruses and Pretexts..........27 (b) ICE Training and Policy Regarding Protective Sweeps Is Contrary To Settled Case Law.....................................................29
-i-

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(c) ICE Policy Permitted and Encouraged Unlawful Warrantless “Stops” and Seizures of Residents...........................31
II. PLAINTIFFS HAVE STATED A CLAIM FOR A PERMANENT INJUNCTION .....................................................................................................33 A. Standard ......................................................................................................33 B. Plaintiffs Have Alleged Irreparable Harm ..................................................34 1. Constitutional Harm Is Presumed to be Irreparable.............................35 2. Plaintiffs Have Sufficiently Pled Factual Matter Demonstrating Irreparable Harm..................................................................................35 3. Plaintiffs Have Suffered Irreparable Harm Because Their Injury Cannot Be Remedied By Mere Money Damages .....................36
III. IF THIS COURT DOES NOT DENY DEFENDANTS’ MOTION IT SHOULD DEFER RULING UNTIL AFTER TRIAL AS THIS MOTION IS INTERTWINED WITH THE MERITS OF THE UNDERLYING CASE AND PLAINTIFFS ARE IN NEED OF FURTHER DISCOVERY ..................38 A. The Evidence Concerning Standing Overlaps with Issues Reserved for the Jury Under the Seventh Amendment...............................................40 B. Plaintiffs Are in Need of Further Discovery ...............................................40
CONCLUSION..................................................................................................................41
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Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 4 of 51

TABLE OF AUTHORITIES

CASES

Page(s)

31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) .................................................................................. 5

Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82 (2d Cir. 2006)........................................................................................ 39

Alliance of Am. Ins. V. Cuomo, 854 F.2d 591 (2d Cir. 1988)........................................................................................ 5

Anobile v. Pelligrino, 303 F. 3d 107 (2d Cir. 2002)..................................................................................... 13

Antares Aircraft L.P. v. Fed. Repub. Of Nigeria, 948 F.2d 90 (2d Cir. 1991).......................................................................................... 6

Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ...................................................................................... 8

Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003)...................................................................................... 11

Bennett v. City of Eastpoint, 410 F.3d 810 (6th Cir 2005) ..................................................................................... 20

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)........................................................................................... passim

Bray v. City of New York, 346 F. Supp. 2d 480 (S.D.N.Y. 2004)............................................................... 3, 5, 11

Bumper v. North Carolina, 391 U.S. 543 (1968).................................................................................................. 12

Caraveo v. United States EEOC, 96 Fed. Appx. 738 (2d Cir. 2004)............................................................................. 38

Choi v. Gaston, 220 F.3d 1010 (9th Cir. 2000) .................................................................................. 21

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)............................................................................................. passim

Conn. Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226 (2d Cir. 2004)...................................................................................... 35

Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009)........................................................................................ 6

CSX Corp. v. Children’s Inv. Fund Mgmt. (UK) LLP, 562 F. Supp. 2d 511 (S.D.N.Y. 2008)....................................................................... 34

Delphi-Delco Elecs. Sys. v. M/V Nedlloyd Europa, 324 F. Supp. 2d 403 (S.D.N.Y. 2004)....................................................................... 40

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Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 5 of 51
DeShawn E. by Charlotte E. v. Safir, 156 F.3d 340 (2d. Cir. 1998)..................................................................................... 26
Diaz v. New York City Bd. of Elections, 335 F. Supp. 2d 364 (E.D.N.Y. 2004) ...................................................................... 35
Doe v. Bridgeport Police Dep’t., 198 F.R.D. 325 (D. Conn. 2001)............................................................................... 37
Doe v. Hagee, 473 F. Supp. 2d 989 (N.D.Cal. 2007) ....................................................................... 22
Doe v. Mamaroneck, 462 F. Supp. 2d 520 (S.D.N.Y. 2006)....................................................................... 19
Farez-Espinoza v. Napolitano, No. 08 Civ. 11060(HB), 2009 U.S. Dist. LEXIS 35392 (S.D.N.Y. Apr. 27, 2009)... 8
FDIC v. Meyer, 510 U.S. 471 (1994).................................................................................................. 38
Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986)...................................................................................... 23
Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (2d Cir. 1988)........................................................................................ 6
Ford v. Reynolds, 316 F.3d 351 (2d Cir. 2003)...................................................................................... 36
Friends of the Earth Inc. v. Laidlaw Envtl Svcs. Inc., 528 U.S. 167 (2000)................................................................................................ 6, 8
Gordon v. City of Moreno Valley, 687 F. Supp. 2d 930 (C.D.Cal. 2009) ......................................................................... 7
Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010)...................................................................................... 33
Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990) ...................................................................................... 9
Ill. Migrant Council v. Pilliod, 398 F. Supp. 882 (N.D. Ill. 1975) ............................................................................. 38
Ill. Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976) .................................................................................... 9
Johnson v. Miles, 355 Fed. Appx. 444 (2d Cir. 2009)........................................................................... 34
JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990)........................................................................................ 35
Kaupp v. Texas, 538 U.S. 626 (2003)............................................................................................ 16, 32
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Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 6 of 51
Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Excelsior Trading Corp., No. 07-CV-3224(CPS)(SMG), 2007 U.S. Dist. LEXIS 69025 (E.D.N.Y. Sept. 18 2007).......................................................................................... 38
LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985) ...................................................................... 4, 6, 9, 16
LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2000) ............................................................................. 31, 32
Leighton Techs. LLC v. Oberthur Card Sys., 531 F. Supp. 2d 591 (S.D.N.Y. 2008)....................................................................... 40
Leinster Inter S.A. v. Botley Ltd., No. 09 Civ. 3874(SHS), 2009 U.S. Dist. LEXIS 122628 (S.D.N.Y. Dec. 30, 2009) ......................................................................................... 36
Local 32B-32J, SEIU v. Port Auth., 3 F. Supp. 2d 413 (S.D.N.Y. 1998)........................................................................... 34
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) .................................................................................. 31
LSO, Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 2000) .................................................................................... 5
Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009)........................................................................................ 35
Maryland v. Buie, 494 U.S. 325 (1990)............................................................................................ 29, 30
Md. State Conference of NAACP Branches v. Md. Dep’t of State Police, 72 F. Supp. 2d 560 (D. Md. 1999) ............................................................................ 10
Mendoza v. Immigration and Naturalization Serv., 559 F. Supp. 842 (D. Tex. 1982) .............................................................................. 37
Nat’l Cong. for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154 (S.D.N.Y. 1999).................................................................. passim
Nat’l Federation of Federal Employees v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987) .................................................................................. 38
Nicacio v. United States INS, 797 F.2d 700 (9th Cir. 1985) ...................................................................................... 5
O’Shea v. Littleton, 414 U.S. 488 (1974).................................................................................................... 5
Ortiz v. Pearson, No. 97 Civ. 0885 (KMW)(THK), 1999 U.S. Dist. LEXIS 22450 (S.D.N.Y. Nov. 5, 1999) ........................................................................................... 39
Payton v. New York, 445 U.S. 573 (1980).................................................................................................. 31
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Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 7 of 51
Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010)........................................................................................ 33
Ramirez v. Webb, 787 F.2d 592 (6th Cir. 1986) .................................................................................... 37
Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119 (2d Cir. 1991)...................................................................................... 23
Rizzo v. Goode, 423 U.S. 362 (1976).................................................................................................. 26
Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1998)...................................................................................... 34
Roe v. City of New York, 151 F. Supp. 2d 495 (S.D.N.Y. 2001)................................................................ passim
Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 53 (2006)...................................................................................................... 6
Sango v. City of New York, No. 83 CV 5177(JMM)(ARR) 1989 U.S. Dist. LEXIS 18212 (E.D.N.Y. June 16, 1989) ........................................................................................ 23
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)........................................................................................ 4, 12, 27
Spinale v. USDA, 621 F. Supp. 2d 112 (S.D.N.Y. 2009)....................................................................... 23
State v. Maldonado-Arreaga, 772 N.W.2d 74 (Minn. Ct. App. 2009)..................................................................... 12
Stauber v. City of New York, No. 03 Civ. 9162 (RWS), 2004 U.S. Dist. LEXIS 13350 (S.D.N.Y. Jul. 19, 2004) ....................................................................................... 8, 37
Tarvarez v. Reno, 54 F.3d 109 (2d Cir. 1995)........................................................................................ 23
Terry v. Ohio, 392 U.S. 1 (1968)...................................................................................................... 32
Thomas v. County of Los Angeles, 978 F.2d 504 (9th Cir. 1992) ................................................................................ 8, 10
Tom Doherty Assocs., Inc. v. Saban Entertainment, 60 F.3d 27 (2d Cir. 1995) ......................................................................................... 34
Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980)...................................................................................... 23
UBS Secs. LLC v. Voegeli, 684 F. Supp. 2d 351 (S.D.N.Y. 2010)....................................................................... 33
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Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 8 of 51
United States v. Ali, No. 05-CR-785(NG), 2006 U.S. Dist. LEXIS 21543 (E.D.N.Y March 7, 2006) aff’d and adopted by, 2006 U.S. Dist. LEXIS 21544 (E.D.N.Y. Apr. 7, 2006)...................................................................................... 24, 30
United States v. Barrera-Martinez, No. 03 CR 21, 2003 U.S. Dist. LEXIS 13125 (N.D.Ill. 2003) ................................. 15
United States v. Brignoni-Ponce, 422 U.S. 873 (1975).................................................................................................. 17
United States v. Brown, 961 F.2d 1039 (2d Cir. 1992).................................................................................... 15
United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008) .................................................................................... 15
United States v. Corral, No. Ep-04-CR-543-PRM, 339 F.Supp.2d 781 (W.D.Texas Oct. 1, 2004) ............... 15
United States v. Dunn, 480 U.S. 294 (1987).................................................................................................. 16
United States v. Gandia, 424 F.3d 255 (2d Cir. 2005)................................................................................ 16, 29
United States v. Hernandez-Juarez, No. SA-09-CR-19-XR, 2009 U.S. Dist. LEXIS 22031 (W.D. Tex. Mar. 16, 2009) ................................................................................. 27, 28
United States v. Hope, No. 2:06CR571DAK, 2008 U.S. Dist. LEXIS 6353 (C.D.Utah Jan. 29, 2008) ....... 15
United States v. Isiofia, 370 F.3d 226 (2d Cir. 2004)...................................................................................... 16
United States v. Mapp, 476 F.2d 67 (2d Cir. 1973)........................................................................................ 16
United States v. Mendenhall, 446 U.S. 544 (1980)............................................................................................ 16, 32
United States v. Montes-Reyes, 547 F. Supp.2d 281 (S.D.N.Y. 2008).................................................................. 27, 28
United States v. Waller, 426 F.3d 838 (6th Cir. 2005) .................................................................................... 15
United States v. Wilson, 11 F.3d 346 (2d Cir. 1993)........................................................................................ 12
Villante v. Dept. of Corrections, 786 F.2d 516 (2d Cir. 1986)...................................................................................... 23
Zepeda v. U.S. Immigration & Naturalization Service, 753 F.2d 719 (9th .Cir. 1983) ............................................................................... 4, 37
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Case 1:07-cv-08224-KBF Document 257 Filed 07/30/10 Page 9 of 51 RULES 8 C.F.R. § 287.8 .................................................................................................................. 7 Fed. R. Civ. P. 12(b)(1)....................................................................................................... 3 Fed. R. Civ. P. 12(c) ......................................................................................................... 33
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PRELIMINARY STATEMENT Plaintiffs in this action are two-dozen Latino men, women, and children – including U.S. citizens and lawful permanent resi dents – whose homes were subject to unconstitutional raids at the hands of Immigration and Custom Enforce ment (“ICE”). These individuals were not gang members or f ugitive aliens, nor were they targets of the raid s. Volum inous evidence demonstrates that ICE agents surrounded, seized, entered and searched plaintiffs’ homes without judicial warrants, valid consent or exigent ci rcumstances and detained residents within, in violation of the Fourth and Fifth Amendm ents. ICE agents continue to engage in such conduct as part of ICE’s ongoing pattern, practice and de facto policy of unlawful conduct during warrantless home operations. Defendants in this action are ICE, various ICE and Departm ent of Hom eland Security (“DHS”) supervisory officials in their offici al capacity, and the individual ICE agents and officers (“ICE agents”) present at, or directly involved in the planning of raids at, nam ed plaintiffs’ homes. Defendants claim that ICE agents entered and searched plaintiffs’ homes only after obtaining consent to do so. The reco rd categorically refutes this defense. Strikingly, defendants themselves fail to cite testim ony of any plaintiff, de fendant or third-party witness showing that ICE agents obtained valid consent to enter o r search plaintiffs’ homes. The reason for this is simple – none ex ists. By contrast, every pl aintiff and many witnesses, including law enforcement witnesses and even ICE agents themselves , have tes tified to ICE’s coercive an d sometimes violent conduct during home operations. In addition to their da mages claims, plaintiffs in this matte r seek injunctive re lief to remedy ICE’s violation of the Fourth and Fifth Amendments. The injunctive relief sought would

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ensure than any warrantless home operations are conducted pursuant to constitutional procedures and standards that should govern the conduct of ICE agents.
Contrary to defendants’ position, plaintiffs have standing to seek injunctive relief because they are likely to suf fer future injury at the h ands of ICE for four independent reasons. First, plaintiffs have suffered repeated harm s in the past, and have been threatened by ICE with future harm. ICE agents pushed, coerced, and, in so me cases, physically forced their way into plaintiffs’ homes; rounded up re sidents within the hom es, regardless of their status; dem anded identification documents without reasonable su spicion of alienag e; and, on several occasions, caused extensive property damage. ICE agents raided the home of four plaintiffs twice, looking in vain for the same target both times, and expressly threatened to return to two other homes.
Second, the risk of repeated c onstitutional injury is significant where, as here, the past injury is not linked with any unlawful behavior by plaintiffs. None of the plaintiffs here were doing anything unlawful to bring about the injuries they endured. They were simply sleeping or living quietly in their homes, disturbing no one. Thus, the circumstances of this case are nothing like those in City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (a case defendants em phasize heavily in their brief), w here the lone plaintiff was subjected to a chokehold after being stopped for breaking the law.
Third, plaintiffs are m embers of an identifiable class targeted by ICE. ICE’s un lawful conduct overwhelmingly impacts Latinos, while it excludes similarly situated non-Latinos from the same unlawful treatment. ICE agents ra id the homes of num erous Latinos, like plaintiffs, using the p retext that th ey are loo king for a sp ecific target; however, in most cases the agen ts have no reasonable basis to believe that the purported target is present at the homes.
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Fourth, ICE’s m isconduct is part of a wide spread pattern and practice across the New York area and around the country that is the result of official policy. ICE fails to train its agents appropriately to conduct these raids and fails to adequately investig ate serious, credible allegations of unconstitutional conduct. What is more, ICE does not discipline agen ts even after courts find constitutional violations by such agents.
For all these independent reasons, plaintiffs have standing to seek injunctive relief.
ARGUMENT I. PLAINTIFFS HAVE STANDING TO SEEK INJUNCTIVE RELIEF AND
DEFENDANTS’ MOTION UNDER FED. R. CIV. P. 12(B)(1) SHOULD BE DENIED Defendants’ argument that plaintiffs’ claim for injunctive relief should be dism issed for lack of standing pursuant to Federal Rule of Ci vil Procedure 12(b)(1) focuses on the fact that ICE has a “ written policy” requiring agents to “obtain consent” and no o fficial policy requiring unconstitutional conduct. Even if we assume, arguendo, that ICE’s official policies comply with the U.S. Constitu tion (which many do not, se e Section D.3), this argum ent ignores case law finding standing to seek injunctive relief wher e plaintiffs successfully demonstrate that law enforcement agencies engaged in a p attern and practice of constitutional misconduct in spite of “official” policies or constitutional strictures to the con trary. See, e. g., Bray v. City of New York, 346 F. Supp. 2d 480, 487 (S.D.N.Y. 2004) (fin ding standing where NYPD engaged in an unconstitutional pattern of seizing plaintiffs’ bicycles without citing them for violations “as a matter of departmental routine”); Roe v. City of New York , 151 F. Supp. 2d 495, 499 (S.D.N.Y. 2001) (finding standing where NYPD engaged in pattern of stops and searches “without individualized reasonable suspicion” in allegedly known “drug areas” and in doing so “ignore[d] the Public Health Law and its own ‘official policy’”).
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Despite defendants’ contentions otherwise, the existence of written p olicies requiring agents to “obtain consent” does not demonstrate that in practice, agents follow such policies or even that they understand the factors that de termine whether valid consent was granted. “Consent” is a f act-sensitive inquiry that de pends on “ the totality of the cir cumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Evidence shows that in practice ICE’s warrantless home operations rout inely exhibit multiple ind icia of coercive condu ct as well as racial profiling. Defendants fail to address pl aintiffs’ claims and extensive evidence of discriminatory conduct toward Latinos.
Courts not only have f ound standing, but also have issued injunctions against the Immigration and Natu ralization Service (“INS”), the predecessor to ICE, for constitutional violations during strikingly si milar warrantless operations. In Zepeda v. U.S. Imm igration & Naturalization Service, 753 F.2d 719 (9th Cir. 1983), the Ni nth Circuit upheld a finding of standing where plaintiffs showed that INS agen ts forcibly entered and searched residences without consent and detained and questioned Lati nos on the basis of the plaintiffs’ appearance, use of Spanish or presence in a Latino area. Sim ilarly, in LaDuke v. Nelson , 762 F.2d 1318, 1324, 1326 (9th Cir. 1985), the Ninth Circuit affi rmed an injunction prohibiting a “standard pattern” of unlawful checks of the hom es of migrant housing residents without warrants, probable cause or articulable su spicion during which INS “station[ ed] officers at all doors and windows’ of the dwellings to pr event egress” thus effecting se izures that “preceded alleged consent.” Defendants here have engaged in a similar pattern and practice of misconduct.
Further, ICE admits that the operations at issue in this case are ongoing. ICE RFA Nos. 37-39 (attached hereto as Exhibit 1 to the De claration of Donna L. Gordon in Opposition to Defendant’s Motion to Dism iss Plaintiffs’ Claim for Injunctiv e Relief (July 9, 2010) (“DG
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Decl.”)); J. Knopf Tr. 330:11-15;1 see also DG Decl. Exh. 2. ICE spokespersons have confirmed that these warrantless hom e operations will conti nue in the f uture and will be “unrelenting .” Fourth Amended Class Action Complaint (“Compl.”) Exh. 24 at 2. Given that, as well as ICE’s failures to m ake any significant changes to the way these raids are conducted, future constitutional violations are likely to occur.
A. Prior Injury, Threats of Recurrence, and Repeat Violations Show Standing Plaintiffs have par ticularly strong arguments that th ey are likely to suffer future harm where they have: (1) suffered prior injury, Bray, 346 F. Supp. 2d at 487; (2) were threatened with future injury, 31 Foster Children v. Bush , 329 F.3d 1255, 1266 (11th Cir. 2003); or (3) were injured “more than once,” Nat’l Cong. for Puerto Rican Rights v. City of New York , 75 F. Supp. 2d 154, 161-62 (S.D.N.Y. 1999) (Scheindlin, J. ). Because ICE has repeated ly violated the U.S . Constitution causing injury to plaintiffs,2 threatened to return to two homes, and raided the home of four plaintiffs twice, plaintiffs face a credible and likely threat of future injury. “It is well settled that evidence of past instances of enforcement is important in a standing inquiry.” LSO, Ltd. v. Stroh , 205 F.3d 1146, 1155 (9th Cir. 2000). Although “a plaintiff need not wait for an injury to occur,” in order to demonstrate standing, 31 Foster Children , 329 F.3d at 1265, accord, Alliance of Am. Ins. v. Cuomo, 854 F.2d 591, 596 (2d Cir. 1988), every plaintiff in this case has been subject to unconstitutional raids. That a defendant has engaged in wrongful acts is indicative of a likelihood that the defe ndant will do so again. O ’Shea v. Littleton , 414
1 All deposition transcripts cited herein are attached as exhibits to the Declaration of Donna L. Gordon in Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Claims for Injunctive Relief. The transcripts of ICE agent defendants who are known publicly by their anonymous ICE # are attached the reto in numerical order. All other transcripts, including the transcripts of ICE supervisors who are named in the Complaint and plaintiffs, are attach ed in alphabetical order. 2 In cases of mu ltiple raids, courts presume the likelihood of recurrence. While “there is no per se rule req uiring more than one past act, or any p rior act, for that matter, as a b asis for finding a likelihood of future injury,” Roe, 151 F. Supp. 2d at 503, the “possibility of recurring i njury ceases to be speculative when actual repeated incidents are documented.” Nicacio v. United States INS, 797 F.2d 700, 702 (9th Cir. 1985).
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U.S. 488, 496 (1974) (“[P]ast wrongs are eviden ce bearing on whether there is a real and immediate threat of rep eated injury.”); Nat’l Cong., 75 F. S upp. 2d at 161-62 (finding standing where some plaintiffs were harmed “more than once”) (internal citation omitted). Moreover, a reasonable fear of future injury is sufficient for standing purposes. See Friends of the Earth Inc. v. Laidlaw Envtl Servs. Inc., 528 U.S. 167, 184-85 (2000).
Here, ICE agents exp ressly threatened to return to two hom es in th e future.3 These explicit threats are more than sufficient to establish standing for injunctive relief. See LaDuke, 762 F.2d at 1330 (distinguishing Lyons and noting that “[t]he likelihood that class members will suffer prospective injury is bu ttressed not only by the defendant’s past conduct but also by the defendant’s avowed future intent”).4
Further, ICE admits both that it has no polic y preventing repeat raid s of the sam e home and that ICE agents have perpetrated repeat op erations at an unknown num ber of homes. ICE RFA Nos. 43, 44 (DG Decl. Exh. 1). As ICE itself testified, “[W]e have no policies that would discourage [a repeat operation at the same address] or instruct [an] agent not to go back a second time.” 30(b)(6) OI Deponent Tr. 198:7-9. 5 Lik ewise, that ICE does not requir e its agents to record instances where no arrests were made or the target was not found increases the likelihood that ICE agents will return to these sa me homes to conduct additional unco nstitutional warrantless home operations. See RFA No. 26-27 (DG Decl. Exh. 1); 30(b)(6) OI Deponent Tr. 269:5-7; 30(b)(6) DRO Deponent Tr. 261:2; 30(b)(6) ICE TECS & DACS Deponent Tr. 207:20-
3 DG Decl. Exh. 10 ¶ 20; DG Decl. Exh. 9 ¶ 21, A. Aguilar Tr. 81:7-82:5. 4 Moreover, standing on behalf of any one of the plaintiffs is sufficient to establish standing for all. See Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 53 n.2 (2006); Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 339 n.17 (2d Cir. 2009). 5 “Where subject matter jurisdiction is c hallenged, the Court need not acce pt as t rue contested jurisdictional allegations and may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings.” Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1988) (quoting Antares Aircraft L.P. v. Fed. Repub. of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991).
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208:2.6 Not only does ICE not have a policy prohibiti ng return visits, the record in this case
demonstrates that ICE does in fact return to homes more than once, looking for the sam e target.
For instance, ICE 4 testified that he m ight visit a house more than once looking for the sam e
target, even if he obtained no new infor mation that the target lived in the designated home. ICE
4 Tr. 139:18-140:9.
Moreover, four plaintiffs – Pelagia de la Rosa and her three sons – suffered two
unconstitutional warrantless home operations conducted by ICE in a thirteen-month period. ICE agents engaged in alm ost identical unlawful conduct both tim es.7 Where plaintiffs “have been
victim[iz]ed by these unconstituti onal practices repeatedly . . . this alone esta blishes that
plaintiffs face a realistic threat of future harm.” Nat’l Congress, 75 F. S upp. 2d at 161; see also
Gordon v. City of Moreno Valley , 687 F. Supp. 2d 930 (C.D. Cal. 2009) (finding standing for
injunctive relief to stop law enforcement raids of businesses where Af rican-American business
owners claimed racial discrim ination, documented that raids had occurred in the past and had occurred at some businesses twice).8
6 This is yet a nother instance where ICE’s de facto policy contradicts official, written policy. 8 C.F.R. § 287.8 (specifically requiring that all activities must be documented, even if to report negative results). 7 In August 2006 and September 2007, ICE agents surrounded the home in the early morning, banged so loudly on the front door that residents thought they would knock it down and yelled “open the door!” P. De La. Rosa Tr. 107:15-18; 112:19-115:4; 123:17-22) (describing 2006 raid); C. Jimenez 117:11 (describing the 2006 raid); B. Jimenez Tr. 118:10-12; 215:22-25; 217:24 (describing the 2007 raid); (A. Jimenez Tr. 126:23; 133:20-22 (describing the 2006 raid); A. Jimenez Tr. 249:7-257:9; 256:21-22 (describing 2007 raid); C. Jimenez Tr. 170:20-23; 171:16-172 (describing the 2007 raid). The agents then barged into the home, looking for the same target bot h times, searched bedrooms without seeking permission from undressed or sleeping residents, and physically pulled boys from their beds. P. De La Rosa Tr. 123:18-22; 124:12-13 (describing the 2006 raid); B. Jimenez Tr. 125:19-20; 126:7; 177:7-10 (describing the 2006 raid); B. Jimenez Tr. 2 19:18; 232:19-21; 291:21 (describing 2007 raid); A. Jimenez Tr. 125:17; 142:11-20; 149:3-10 (describing 2006 raid); A. Jimenez Tr. 250:22-251:4; 257:19-21; 288:5-9 (describing 2007 raid). Th e agents then corralled residents in common areas for questioning. B. Jimenez Tr. 145:24-25 (describing the 2006 raid); B. Jimenez Tr. 238:3-4 (describing 2007 raid); A. Jimenez Tr. 196:2-9; 202:22 (describing the 2006 raid); A. Jimenez Tr. 270:19 (describing 2007 raid). Agents ignored residents’ inquiries as to ICE’s purpose. P. De La Rosa Tr. 135:3-16; 146:12-17; 158:5-159:4 (describing the 2006 raid); C. Jim enez Tr. 185:7-16; 237:14-23 (describing the 2007 raid). 8 Gordon v. City of Moreno Valley, No. EDCV-09-688-SGL (SSx) (C.D. Cal. March 31, 2010) (DG Decl. Exh. 13).
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Contrary to defendants’ argument, the fact that ICE has not returned to plaintiffs’ homes since 2007 does not negate standing for injunctive relief. “[A] defenda nt’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Farez-Espinoza v. N apolitano, No. 08 Civ. 11060 (HB), 2009 U.S. Dist. LEXIS 35392, at *13 (S.D.N.Y. Apr. 27, 2009), citing Friends of the Earth, Inc., 528 U.S. at 189. Here, defendants decided to not subject pl aintiffs to further raids after plaintiffs initiated this action in October 2007, assuring this Court that they would not retaliate against the named plaintiffs. See Hearing Tr. (Oct. 5, 2007) 28:14-29:19; Hearing Tr. (Oct. 9, 2007) 29:4-11. 9 Courts have routinely rejected arguments wh ere defendants have sought to m oot plaintiffs’ claim s through voluntary cessation of a challenged pract ice. Stauber v. City of New York , No. 03 Civ. 9162 (RWS), 2004 U.S. Dist. LEXIS 13350, at *52-53 (S.D.N.Y. Jul. 19, 2004). Thus, defendants cannot moot plaintiffs’ claim s by intentionally avoiding their hom es for the duration of this litigation.
B. Plaintiffs Face Harm While Engaging in Everyday, Law-Abiding Behavior Where plaintiffs need only engage in law-abiding, rou tine activities to be subjec t to the future government action they seek to enjo in, it is more likely that th ey will face future in jury. Courts have distinguished Lyons where plaintif fs suffered harm when engaging in routine and law-abiding behavior. See, e.g., Roe, 151 F. Supp. 2d at 502-3 (distinguishing Lyons where complaint alleged law enforcem ent action ag ainst lawful behavior); Arm strong v. Davis , 275 F.3d 849, 866 (9th Cir. 2001) (standing granted wh ere “plaintiffs need not engage in unlawful conduct to become subject to the unlawful practices they seek to enjoin”); Thomas v. County of
9 Indeed, a number of the defendants have ad mitted that they were given specific instructions to avoid named plaintiffs’ addresses during future operations. ICE 4 testified that after this litigation commenced, ICE distributed an e-mail providing the names and addresses of the named plaintiffs, as well as instructions not to attempt to remove them. ICE 4 Tr. 25:17-26:7. Similarly, Group Supervisor Knopf confirmed that ICE agents knew not to raid named plaintiffs’ homes. J. Knopf Tr. 105:22-106:23.
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Los Angeles, 978 F.2d 504, 508 (9th Cir. 1992) (“In contrast [to Lyons ] . . . m any victims purportedly did nothing to warra nt detention or apprehension prior to the m istreatment”); Hernandez v. Cremer, 913 F.2d 230, 234-35 (5th Cir. 1990) (the injury “did not result from an individual’s disobedience of official instructions and [the plaintiff] was not engaged in any for m of misconduct”); LaDuke, 762 F.2d at 1326 (“the m embers of plaintiff class do not have to induce a police encounter before the possibility of injury can occur . . . . [and] are subject to constitutional injury based on . . . completely innocent behavior”).
Unlike the plaintiff in Lyons , the plaintiffs here were en gaging in a host of innocuous activities — sleeping, doing la undry, and watching television10 — when ICE agents raided th eir homes. None of the plaintiffs was a gang member, fugitive or other target of any ICE operation. ICE seized plaintiffs while they w ere engaging in lawful activities. The str ing of speculative contingencies that doomed Lyons’s claim for inj unctive relief si mply do not exist here, where there is nothing that p laintiffs can affir matively do to avo id ICE’s home raids in the f uture. These circumstances strongly militate in favor of standing. See Nat’l Cong., 75 F. Supp. 2d at 161 (“The fact that plaintiffs were stopped while engaging in everyday tasks further illus trates a realistic risk of future harm.”).
C. Plaintiffs Are Memb ers of an Identi fiable Class Targeted by ICE and Therefore Are Likely To Be Injured Again
Courts have repeatedly found th at plaintiffs who are members of an “identifiable class of targeted individuals,” such as a race -based class, have standing for injunctive relief where they are subject to a persistent unlawful practice. Roe, 151 F. Supp. 2d at 504; accord Nat’l Congress, 75 F. Supp. 2d at 162 (finding standing to enjoin r acially discriminatory stop and frisk policy) ; Ill. Migrant Council v. Pilliod , 540 F.2d 1062, 1067 (7th Cir. 1976) (af firming standing of si x
10 See, e.g., A. Aguilar Tr. 46:16-23; C. Jimenez Tr. 80:21-24; D. Velasquez Tr. 91:13-18.
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individuals and civil rights groups seeking to prohibit INS officers from stopping individuals due to their eth nicity; this practice was evidenced by only three individual stops and two far m dormitory raids). Where defendants’ practices are “purposely aimed at minorities,” the case for standing is stronger.11
The evidence shows that the vast m ajority of the official targets of these operations were Latino. See, e.g. , DG Decl. Exh. 44 (of the 131 target s for Operation Community Shield (“OCS”) in September 2007 only 20 were not Latino).12 In fact, the Case Agent for OCS readily admitted that the m ajority of the targets were Latino. ICE 27 Tr. 120:13-16. Moreover, evidence demonstrates that ICE targ eted these Latinos in order to effectuate collateral arrests on other Latinos who were undocumented. See Section I.D.2.b., infra.
All of the named plaintiffs in this case, including citizens, lawful permanent residents, and children, are Latino. The m embers of the putative class are all Latino.13 Because none o f the named plaintiffs was an offi cial target of any ICE operation, a fugitive or an alleged gang member, and because ICE pattern, practice and de facto policy injured Latinos not because they were targets, fugitives or gang members but because of their race or national origin, the named plaintiffs and the putative plaintiff class are likely to be subject to future injury.
11 See, e.g. , Thomas, 978 F.2d at 508 (finding standing where police “misconduct is purposefully aimed at minorities”); Md. State Conference of NAACP Branches v. Md. Dep’t of State Police, 72 F. Supp. 2d 560, 565 (D. Md. 1999) (“[T]he plaintiff’s likelihood of injury depends only on their status as a member of a minority group and their need to travel on I-95.”). 12 Defendants have not produced a t arget list for t he DRO operations at issue here, precluding plaintiffs from conducting the same analysis for those operations. This is but one example of the additional discovery needed by plaintiffs. The 56(f) affidavit sets forth in more detail the scope of discovery plaintiffs seek. 13 Plaintiffs here bring this case not only in their individual capacities but also as a putative class action on behalf of “Persons who, because they (1) are Latino, and (2) reside in the jurisdiction of the New York City regional office (or field office) of ICE have been subjected to and/or are at imminent risk of home raids by the New York City regional office (or field office) of ICE.” Compl. ¶ 443. Plaintiffs intend to file a motion for class certification before trial.
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D. Harm is Likely to Recur Because of ICE’s Unlawful Pattern, Practice, and De Facto Policies
Courts have routinely found that plaintiffs have standing to obtain injunctive relief where a defendant previously engaged in a pattern, practice or de facto policy of unlawful c onduct. In such cases, courts have found a sufficient likelihood that a defendant will engage in such conduct again and thus the harm plaintiffs suffered will recur. See, e.g., Bray, 346 F. Supp. 2d at 487 (“Where a defendant has previously engaged in a pattern of sim ilar acts, th ere is a sufficient likelihood that it will d o so again in the n ear future”) (in ternal citation omitted); Roe, 151 F. Supp. at 503 (where plaintiffs alleged an ongoing “specific, systematic, city-wide NYPD practice. . . .” such practice is “likely to lead to arrests of [plaintiffs] in the future”).
The threatened harm need only be “credibl e” and not “certainly im pending.” Baur v. Veneman, 352 F.3d 625, 641 (2d Cir. 2003). Here, gi ven the constitutional im portance of safeguarding the hom e against arbitrary government invasion and of outlawing governm ent action based on suspect classifications, plaintiffs have alleged and sustained severe constitutional injury. Plaintiffs easily show that they have standing to bring a claim for injunctive relief.
1. ICE Agents Engaged in a Widespread Pattern and Practice of Misconduct In raids of the hom es of plaintiffs and num erous other Latinos, ICE agents consistently violated the Fourth and Fifth Amendments. P laintiffs’ allegations are remarkably similar to allegations made in other lawsuits all over the country: large teams of heavily-armed ICE agents surrounded and seized the hom es; entered without re questing or obtaining valid consent and in some cases forced doors open; proceeded to s earch the homes by, among other things, barging into private bedrooms without obtaining consent; interrogated all Latinos present and handcuffed individuals prior to any ques tioning; failed to speak in a language understandable by the individuals with whom the ICE age nts were communicating; and made clear, through force and
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intimidation, that o ccupants were not free to move in th eir own hom es.14 Further, testim ony
from both local law enforcem ent personnel and ICE agents dem onstrates that ICE agents
engaged in a pattern, practice, and de facto policy of racial profiling and discriminatory conduct.
(a) ICE Pervasively Violated the Fourth Amendment During Warrantless Home Operations and Failed to Obtain Voluntary Consent to Enter and Search the Homes
Defendants’ brief fails to cite to any testimony describing the actual conduct of the raids
at plaintiffs’ and others’ hom es. This is not surprising, given that num erous plaintiffs, third-
party witnesses, and, in som e cases, even IC E agents them selves have described conduct
demonstrating that ICE agents routinely viol ated the Fourth Am endment by failing to obtain
valid consent before entering and searching hom es during warrantless home operations. Indeed,
as discussed infra at 23, several courts have already f ound egregious violations of the Fourth
Amendment by ICE agents in the context of home raids, including some of the very raids at issue
in this case.
“Consent must be a product of [an] individu al’s free and u nconstrained choice, rather
than a mere acquiescence in a show of authority.” United States v. Wilson, 11 F.3d 346, 351 (2d
Cir. 1993); see also Bumper v. North Carolina, 391 U.S. 543, 549 (1968). Further, valid consent
must be determined through an examination of the “totality of the circumstances.” Schneckloth,
412 U.S. at 227. And although it is defendants’ burden to prove that they obtained valid
14 See Compl. Exh. 2 at 16-22, Exhs. 18-23, 26 (detailing accounts of IC E’s Fourth Amendment violations fro m California to Idaho to New York). I n Connecticut, an i mmigration judge found that ICE committed egregious Fourth Amendment violations on at least three different occasions during raids in June 2007. See Compl. Exhs. 8, 9, 10. The Minnesota Court of Appeals detailed an instance of “flagrant and egregious” – and apparently undisputed – Fourth Amendment violations. State v. Maldonado-Arreaga, 772 N.W.2d 74, 76 (Minn. Ct. App. 2009). In Arizona, Department of Ho meland Security employee Jimmy Slaughter is suing ICE for violating his Fourth Amendment rights during a war rantless home operation. Affidavit of J immy Slaughter (DG Decl. Exh. 3). In addition to docu menting allegations of unlawful home raids across the country, a stud y released by the Cardozo School of Law’s Immigration Justice Clinic, Constitution on ICE, analyzed documentation of consent in I-213 forms, which ICE creates for each respondent in a removal proceeding in immigration court. This report concluded that ICE failed to obtain consent of 86% of the time during warrantless home operations in Long Island. Compl. Ex. 2 at 9-10.
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consent, Anobile v. Pelligrino , 303 F. 3d 107, 124 (2d C ir. 2002), no defendant ICE agent deposed thus far has been able to testify about the specific circumstances of how valid consent to enter or search was obtained from any plaintiff. In fact, as set fo rth below, ICE seized plaintiffs in their homes prior to seeking consent (vitiating any purported consent), and then proceeded to conduct nonconsensual searches.
First, the operations at plaintiffs’ hom es occurred in the pre-dawn early morning hours, usually between 4:30 a.m . and 5:45 a.m .,15 in k eeping with ICE’s c ontention that tim e of day does not matter in determining whether consent is valid. 30(b)(6) OI Deponent Tr. 90:4-12.
Second, virtually every defendant deposed testified that IC E agents typically secure a “perimeter” at the exits and windows of hom es prior to seeki ng consent to enter.16 Thus, ICE’s undisputed practice is to enter private property, including backya rds, before any consent is requested. ICE operation plans and training documents endorse this procedure.17 Unfortunately for defendants, however, these practices fly in the face of case law that warrantless entry onto the curtilage of a home without valid consent is unlawful.
Third, after securing the perim eter ICE agen ts “banged on doors” so hard that m any residents thought the doors would “break”; 18 shone flashlights into windows; 19 and at tim es forced open front doors and bedroom doors. 20 In som e instances, ICE agents drew weapons at the front door,21 or lied about the purpose of their visit.22
15 D. Lazaro Perez Tr. 23:17-20; M. Patzan del Leon Tr. 42:25; P. De La Rosa Tr. 107 :18 ; C. Jimenez Tr. 84:10; A. Jimenez Tr. 127 :14-16 ; R. Rodriguez de Flores Tr. 129 :10 ; B. Jimenez Tr. 129 :7-8. 16 Indeed, several ICE agents have admitted to knocking on windows when residents did not come to the door. See, e.g., ICE 45 Tr. 157:11-18; ICE 16 Tr. 137:17-24; ICE 41 Tr. 115:15-18. 17 DG Decl. Exh. 30; DG Decl. Exh. 33. 18 J. B erry Tr. 17:23-18:6; N. Velasquez Tr. 54:10-22; M. Patzan DeLeon 137:8-10 ; P. De La R osa Tr. 112:19113:4; C. Jimenez Tr. 171:16-19 ; B. Jimenez Tr. 217 :20; A. Jimenez Tr. 250 :5-251 :7. 19 D. Velasquez Tr. 132 :3-20; V. Morales Tr. 63:5-7; Y. Revolorio Tr. 73:24-74:3. 20 ICE 20 Tr. 338:9-17 (admitting he forced open a bedroom door at 20 Chase St.), C. Bedi Tr. 87:23-88:11; V. Bedi Tr. 105:22-23; C. Licona Tr. 35:5-6. 21 DG Decl. Exh. 36.
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Fourth, once doors were opened, either by ICE agents forcing them open, or by stunned, suddenly awakened residents opening the door to see large teams of visibly armed people,23 ICE agents stormed in without permission,24 even pushing past occupants who were minor children.25 ICE permits its agents to enter homes during warrantless operations outfitted with heavy firearms such as the Remington 870 police shotgun and the M4 sem i-automatic rifle.26 Indeed, numerous plaintiffs and witnesses observed agents with machine guns and other long arm s,27 hands on holsters,28 or guns drawn.29 ICE 34 himself concedes that he entered 22 Dogwood Lane with his weapon drawn, as he does for “all enforcemen t actions,” even those purportedly based on “consent.”30 ICE 47 testified that his practice is to ask for consent after entering a home, and did not appear to be aware that he needed valid consent to enter at all.31
Fifth, once inside, ICE agents swept through the homes, searching the prem ises, even after admittedly locating the target at the front door and even though the ICE agents were unable to testify to any articulable suspicion of danger.32 See infra D.3(b).
Sixth, ICE agents entered the bedrooms of sleeping resident s, rousted them from their beds,33 ordered them out of their bedroom s,34 searched closets, drawers, and under beds, 35 and
22 B. Velasquez Tr. 82:24-83:2; DG Decl. Exh. 35. 23 P. De La Rosa Tr. 114 :18-115 :4; C. Licona Tr. 28 :22-31 :11. 24 P. De La Rosa Tr. 114 :16-115:4; 123:17-22; C. Jimenez Tr. 171:16-172:8; B. Jimenez Tr. 118:10-12 ; 217:24; A. Jimenez Tr. 139:14-15. 25 Id. 26 30(b)(6) DRO Deponent Tr.250:21-23. 27 G. Escalante Tr. 51:20-22; C. Licona Tr. 52:19-22; R. Rodriguez De Flores Tr. 73:19-74:8. 28 A. Aguilar Tr. 54:9-10; D. Velasquez Tr. 184:21-23; D. Lazaro Perez Tr. 39:7-9. 29 DG Decl. Exh. 36; R. Rodriguez De Flores Tr. 175:23-176:2. 30 ICE 34 Tr. 86:18-21. 31 ICE 47 Tr. 25:23-27:6, 123:20-124:24, 126:18-128:2. 32 ICE 34 Tr. 86 :22-87:5; ICE 42 Tr. 235:21-236:6; ICE 41 Tr. 212:17-19; 249:8; ICE 52 Tr. 180:25-181:3; ICE 37 Tr. 175:24-176:3; ICE 9 Tr. 181:13-20; ICE 43 Tr. 201:3-6. 33 B. Jimenez Tr. 232 :25-233 :3; A. Jimenez Tr. 141:20-142:6. 34 B. Jimenez Tr. 232 :25-233 :3 ; A. Jimenez Tr. 149:6-10. 35 C. Licona Tr. 63:9-17; P. De La Rosa Tr. 220:20-221:11; S. Bonilla Tr. 141:5-8; R. Rodriguez de Flores 127:4-5; B. Velasquez Tr. 156 :20. ICE p olicy dictates that agents must obtain consen t to enter first and then separately obtain consent to search. DG Decl. Exh. 33 (Field Operations Student Handout, discussing the “8 Critical Mission Steps.” Under “Consent,” it is note d that “Consent to Enter the dwelling is not the same as Consent to Search the
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proceeded to interrogate the individuals present in a brutally coercive manner, frequently without communicating effectively in the lan guage of the residents of the hom e.36 ICE 6, for exam ple, testified that when he opened the d oor to a sleeping woman’s bedroom at 30 Copeces Lane – apparently that of pl aintiff Adriana Aguilar37 – she “leapt out of bed . . . and she m ay have screamed” – he obviously did not have her consent to enter or search her bedroom .38 While it is the ICE agents’ burden to establish that they had a belief that a third party had authority to grant valid consent, United States v. W aller, 426 F.3d 838, 845 (6th Cir. 2005), 39 this sam e agent testified that he “had no idea” whether that was the case at 30 Copeces Lane.40 Indeed, this agent admitted that he never requested consent to enter private bedrooms from the occupants of those bedrooms because “on e consent wo uld be good for one house or one residence.” 41 Sim ilarly, ICE 41 testified that she entered the bedroom of another sleeping woman in a different plaintiff home without requesting consent and did not believe this was unlawful. 42 ICE agents also purportedly obtained consent to en ter a tenant’s dwelling f rom a landlady at 20 B oatsteerers Court.43
premises.”). The case law also makes this distinction. Un ited States v. Castellanos, 518 F.3d 965, 970 (8th Cir. 2008) (distinguishing consent for agents merely to enter from consent to search). 36 V. Morales Tr. 159:15-18; D. Lazaro Perez Tr. 44:18-20. 37 A. Aguilar Tr. 46:16-23 38 ICE 6 Tr. 223:12-224:20. 39 The law is clear that third parties cannot consent to searches of areas over which they have no “common authority, mutual use, and substantial interest.” See United States v. Brown, 961 F.2d 1039, 1041-42 (2d Cir. 1992) (landlady cannot consent to entry of tenant’s dwelling); United States v. Barrera-Martinez, No. 03-CR-21, 2003 U.S. Dist. LEXIS 13125, at *29 (N.D.Ill. 2003); United States v. Corral, No. Ep-04-CR-543-PRM, 339 F.Supp.2d 781, 793 (W.D.Texas Oct. 1, 2004); United States v. Hope, No. 2:06CR571DAK, 2008 U.S. Dist. LEXIS 6353, at *16 (C.D.Utah Jan. 29, 2008). 40 ICE 6 Tr. 253:7-254:19. 41 ICE 6 Tr. 151:10-152:16. 42 ICE 41 Tr. 177:23-178:10; 184:8-15. 43 DG Decl. Exh. 8 ¶¶ 8,9,14.
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Finally, in som e cases ICE agents handcu ffed residents without even bothering to question them and refused to explain their justification for being present.44 ICE agents prohibited occupants f rom making phone calls – a practice in keeping with ICE’s official procedures45 – and did not permit them to use bathrooms in private.46
This pattern, practice, and de facto policy of coercive conduc t amounted to a seizure of residents within their homes and vitiated any pur ported consent. See Kaupp v. Texas , 538 U.S. 626, 631-32 (2003) ( “a group of poli ce officers rousting an adolesce nt out of bed in the m iddle of the night with the words ‘we need to go and talk’ presents no option but ‘to go’”); United States v. Mendenhall , 446 U.S. 544, 554 (1980) (stating that threatening presence of officers, display of weapon, and physical touching vitiates consent); LaDuke v. Nelson , 762 F.2d 1318, 1321 (9th Cir. 1985) (no consent where imm igration agents conducted searches “during early morning or late evening hours, surrounded the resi dences in em ergency vehicles with flashing lights, approached the homes with flashlights, and stationed officers at all doors and windows”); see also United States v. Mapp , 476 F.2d 67, 78 (2d Cir. 1973) (“gun in hand” a factor in invalidating consent); United States v. Gandia , 424 F.3d 255, 264 (2d Cir. 2005) (protective sweeps permissible only when “jus tified by a reasonable, articulabl e suspicion that the house is harboring a person posing a danger to those on th e arrest scene”); United States v. Isiofia , 370 F.3d 226, 233 (2d Cir. 2004) (language barrier and “a busive” manner of agents indicate lack of consent); United States v. Dunn, 480 U.S. 294, 301 (1987) (curtilage of home “should be placed under the home’s ‘umbrella’ of Fourth Amendment protection”).
44 J. Mijangos Tr. 132:2-14; D. Rodriguez Tr. 80:7-13, 95:17-97:25; R. Gonzales Tr. 89:22-91:5, 95:16-99:24; W. Lazaro Melchor Tr 63:14-65:13. 45 See DG Decl. Exh. 5. 46 DG Decl. Exh. 7 ¶ 25; Y. Revolorio Tr. 193:8-15.
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(b) ICE Engages in a Pattern, Practice, and De Facto Policy of Racial Profiling During Warrantless Home Operations
Decades of Suprem e Court precedent es tablishes that g overnment agents m ay not engage in conduct that violates the Constitu tion, and even immigration agents may not s eize individuals based on race or natio nal origin alone. See, e.g. , United States v. Brignoni-Ponce , 422 U.S. 873, 887 (1975) (invalidating agents’ disc riminatory use of 8 USC § 1357 and holding that agents violated the Fourth Amendm ent by “stopping all Mexican-Americans to ask if they are aliens”).47 Defendants’ brief does not address plaintiffs’ claims of a pattern and practice of equal protection violations. Bu t as th e allegations and eviden ce demonstrate, ICE agents engaged in a pattern, practice, and de facto policy of racial discrim ination by im properly targeting Latino homes and neighborhoods and tr eating Latinos encountered during warrantless home operations differently from non-Latinos.
When ICE agents encountered a Latino at the front door of a home, they routinely entered and searched the entire hom e regardless of whet her they had reason to believe their purported target resided there. ICE agen ts seized residents based on their Latino appearance, handcuffing some without bothering to question them . At 165 Main Street, f or example, two lawful permanent residents were handcuffed and one was shoved into a vehicle and detained before ICE agents questioned him about his status. 48 ICE 6 justified interrogati ons of non-targets by stating that ICE agents have reasonabl e suspicion of illegal alienage when they encounter som eone sharing a r esidence with a f ugitive target. Bu t at 20 Boa tsteerers Court, where ICE agents
47 Courts take a broad view of the definition of nat ional origin. Furth er, courts in th e Second Circuit have consistently declined to addr ess whether Latinos constitute a “race or nati onal origin.” The important issue here is whether immigration agents are p ermitted to question, detain or seize individuals based on suspect classifications alone; United States v. Brignoni Ponce, 422 U.S. 873, resoundingly answers that question in the negative. 48 R. Gonzales Tr. 110:24; 127:14-15; 136:6-9 (describing 25-year-old lawful permanent resident being handcuffed without being questioned); D. Lazaro Perez Tr. 72:8-24 (describing interrogation of Gilberto Soto); Complaint in Soto v. United States filed 10/16/08 (DG Decl. Exh. 117) ¶¶ 4-9 (describing 79-year-old lawful permanent resident being handcuffed).
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encountered a plaintiff’s white la ndlady, they m ade no effort to question her or to search her dwelling space, and proceeded to enter and search only the dwellings of her Latino tenants.49
In contrast, at hom es where non-Latinos opene d the front door, agents routinely w alked away without entering or making any further inquiries. This disparity was graphically illustrated by the behavior of ICE agents during an OCS operation at 318 Second St reet in Greenport. When James Berry, a white m ale, opened the door, the ICE agent at the door immediately apologized, stating “I think we have the wrong address,” and de parted, without questioning Mr. Berry or attem pting to seek entry into his hom e.50 Sim ilarly, a different OCS team at 34 Elk Street in Hempstead encountered an African-American man at the door and then declined to seek entry or to search the hom e.51 At yet another hom e targeted by OCS, ICE agents who encountered a white wom an at entry were offer ed milk and cookies and declined to conduct a search.52
A statistical review of the targ ets and collaterals also reveals that the raids were marked by racial profiling. In its analysis of ICE a rrest data betw een January 1, 2006 and April 18, 2008, Constitution on ICE found that in Long Island, New York, while 66% of the targets ICE arrested were Latino, Latinos m ade up 94% of the collateral arrests. 53 As the Constitution on ICE put it, “during hom e raids IC E agents seize Latino residents based simply on their ethnic appearance or limited English proficiency.”54 In the vast majority of those collateral arrests, ICE agents noted no basis for seizing and questioning individuals who were Latino.55
49 DG Decl. Exh. 8 ¶ 6-7. 50 J. Berry Tr. 13:23-14:21. 51 E. Egan Tr. 328:11-329:10. 52 ICE 50 Tr. 186:17-188:16. 53 Compl. Exh. 2 at 12. 54 Compl. Exh. 2 at 12. 55 Compl. Exh. 2 at 12.
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Lastly, although the purported pu rpose of the operations w as to apprehend the targeted fugitives,56 the evidence shows this stated purpose to be pretextual; their true intent was to target
Latinos and boost collateral arrests. Indeed, ICE knowingly initiated raids without adequate investigation or surveillance confirming the location of the purported target.57 Such “evidence of
pretext” strongly supports a claim of discriminatory intent. Doe v. Mam aroneck, 462 F. Supp.
2d 520, 553-54 (S.D.N.Y. 2006) (unprecedented law enforcement activity in locations where day
laborers were known to congregate was pretextual).
Law enforcement officials have, in fact, repor ted that administrative warrants issued for the September 2007 Operation Community Shie ld raids contained inaccu rate addresses.58
Tellingly, ICE did not seek additio nal assistance from local law enf orcement that could have provided more accurate intelligence of a target’s whereabouts59 and, in at least one instance, ICE used a photograph that was twenty-one years out of date to identify a target during a raid.60 And,
NCPD Commissioner Mulvey stated he “was led to believe [ICE] would be effecting arrest
warrants on gang members,” only to discover that “most of those picked up were not the targets of warrants.”61
56 Compl. Exh. 1 at 18, 57 Compl. Exh. 16 at 15. 58 DG Decl. Exh. 15. In fact, in 2006, the OIG documented that only about 50% of the information in ICE’s database used to locate targets was accurate (Compl. Exh. 16 at 15). Raids that occurred long after the publication of the OIG report lacked current intelligence and possessed incorrect addresses for many of the targeted homes. DG Decl. Exh. 14. 59 A. Mulrain Tr. 314:17-20, L. Mulvey Tr. 26:15-25 60 M. Bolitho Tr. 151:21-22. 61 DG Decl. E xh. 14. The im pact of this lack of concern for the apprehe nsion of actual targets wa s all too clear in plaintiffs’ homes. For example, at 165 Main Street, where three plaintiffs lived in two different apartments, agents purportedly searching for one 48-year-old target handcuffed numerous residents throughout the building ranging in age from 18 to 79. DG Decl. Exh. 20. An immigration judge who found that ICE’s conduct at this home constituted egregious violations of the Fourth Amendment “observed that ICE ‘could not have had reason to believe that the target was in multiple apartments at once.’” DG Decl. Exh. 11 at 10. At 710 Jefferson Street, ICE knew that its 25year-old target had been deported two years before the raid, DG Decl. Exh. 29 (TECS II record showing Mata was deported), and had no evidence that he had returned to the United States, much less to the home they raided. Yet agents stormed through the home and a rrested numerous residents, including a m an twenty years older than the purported target and a nother man recently recovering from surgery. S. Bonilla Tr. 39:13-18; 41:18-25; DG Decl. Exh. 41. At 30 Copeces Lane, DHS ignored the evidence in its own files showing that plaintiff Adriana Aguilar was
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ICE’s selection of non-residential locations for OCS were also based not on the presence

of targets, but rather on the anticipated presence of non-targ et Latino individuals. During OCS, ICE agents conducted operations at bars and restaurants frequented by Latinos, 62 despite the fact that ICE had not pre-identified any specific target. 63 Similarly, Case Agent ICE 27 affirmed that

he took his team to laundrom ats, bodegas, bus and train stations and other places in Latino

neighborhoods frequented by purported gang mem bers to try to locate targets, despite the fact that these locations were not listed in th e operation plan.64 W hen those efforts were not

successful, his team arrested collaterals at these locations instead. Id.

Further evidence of discrim inatory animus is the f act that ICE agents used deroga tory

terms for Latinos during the operations. Both ICE agents and third-party witnesses have testified that agents of both DRO and OI referred to Latinos as “wetbacks.”65

ICE admits that it did not have probable cause or exigent circumstances to enter or search plaintiffs’ homes,66 and som e defendants have admitted that they did not ev en have any reasonable suspicion to detain resident s for the purpose of questioning them .67 Such lack of

suspicion and ICE agents’ consiste nt practice of routinely arre sting Latinos they encountered

during the operations are s trongly suggestive of racial profiling. See Bennett v. City of

Eastpointe, 410 F.3d 810, 822 n.1 (6th Cir 2005) (in

a racial profiling claim alleging a

discriminatory stop, “the lack of suspicion ad mitted by [law enforcem ent officer] may properly

divorced from the target and was in fact remarried to another man, and that she resided with him and their four-yearold son. DG Decl. Exh. 32 (Adriana Aguilar’s A-file). 62 M. Bolitho Tr. 165:12-17; G. Hoeler Tr. 259:16-20. 63 ICE 51 Tr. 236:7-14; ICE 59 Tr. 112:3-13; ICE 48 Tr. 111:16-18; ICE 35 Tr. 216:6-218 :16; ICE 15 Tr. 299:2-24. 64 ICE 27 Tr. 202:7-212:2; DG Decl. Exh. 116; Id. Exh. 117. 65 ICE 4 Tr. 332:13-25; A. Mulrain Tr. 95:25-96:16; L. Mulvey Tr. 70:3-16. 66 Answer of Immigration and Customs Enforcement and Official Capacity Defendants (“Answer”) ¶¶ 20 4, 205, 233, 262, 263, 321, 339, 350, 360, 394, 399, 400. 67 See ICE 15 Tr. 243:4-245:9.
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be considered”); Choi v. Gaston, 220 F.3d 1010, 1012 (9th C ir. 2000) (lack of reasonableness in detention or arrest may support allegation of racial profiling).
(c) ICE’s So-Called “Mandatory” Policies Are, in Fact, Not Mandatory Defendants contend that ICE’s written polic ies are m andatory and govern ICE agents’ conduct during warrantless hom e operations. ICE’s declarant, Assistant Field Office Director (“AFOD”) Darren W illiams, submitted two sw orn statements to this Court reg arding these policies.68 But during his June 3, 2010 deposition, he conceded that many of the policies which his sworn statements referenced as “mandatory” or standard operating procedure were in fact not mandatory or standard at all. By way of exam ple, declarations of AFOD Williams attest that “Chapter 19 o f the Detention and Deportation Office r’s Field Manual sets forth policies and standard operating procedures governing DRO’s Fugitive Operations Program”69 and that “[t]he policies in Chapter 19 impose mandatory obligations on DRO off icers. . . [ and officers] were not perm itted to deviate from those policies. . . .” 70 But in his deposition, AFOD William s conceded that “only some policies . . . im pose mandatory obligations, but the m ajority of Chapter 19 are guides for the officers to go by, not mandatory policy.”71 For exam ple, Chapter 19 instructs th at “actual arrest of a f ugitive in a residence will be conducted as a last resor t when all other possible apprehension locations have been exhausted.” Chapter 19 at 16 (emphasis added). But when asked whether this ins truction was mandatory, Williams answered, “No. It’s a guide.” 72 According to Williams, it is not the policy of DRO to conduct resi dence checks as a last resort
68 D. Williams Decl. 12/07/07; 5/19/10 (noting that his previous declaration was still accurate). 69 D. Williams Decl. 12/07/07 at ¶ 17. 70 D. Williams Decl. 12/07/07 at ¶ 18. These policies were in effect in 2006 and 2007 during the time periods that ICE agents conducted raids at plaintiffs’ homes. 30(b)(6) DRO Deponent Tr. 117:4-6. 71 D. Williams Tr. (June 3, 2010) 315:11-15. 72 D. Williams Tr. 319:22.
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but rather only a “suggestion.” 73 Sim ilarly, while Chapter 19 di rects ICE agents that “if the fugitive is on probation you should be present at the probation office the next time the fugitive is required to report in order to effect the arrest,” DG Decl. Exh. 37, AFOD Williams admitted that this instruction is merely a guide.74 Indeed, ICE agents did not even follow this guidance. For example, the Case Agent for OCS him self testified that despite knowing that his target was on probation, the idea of apprehending him at the probation office never occurred to him.75
Even where certain of ICE’s policies are “t ruly” mandatory, ICE ag ents violated them with impunity. For example, according to written ICE policy, ICE agents are required to conduct warrantless home operations between the hours of 6 a.m . and 10 p.m. 76 At DR O, if agents desired to initiate an operation outside those hour s, then they had to provide “justification for after hours operation” on the Field Operations Worksheet (“FOW”). Although ICE conducted DRO warrantless hom e operations in this case before 6 a.m.,77 ICE f ailed to provide such justification on any of the corresponding FOWs.78
2. ICE’s Misconduct Rises to the Level of De Facto Policy Becaus e ICE’s Unconstitutional Practices are Persis tent and Widespread, and Because ICE Does Not Address Constitutiona l Misconduct Through Discipline or ReTraining
The fact that ICE actively condoned the ICE agents’ constitutional violations is sufficient to confer standing. In D oe v. Hagee, 473 F. Supp. 2d 989 (N.D. Cal. 2007), plaintiffs, potentia l Marine Corps recruits, sued the Marine Corps for injunctive relief after being sexually assaulted by recruiters. Though the Marine Co rps had no official, written pol icy authorizing its recruiters
73 D. Williams Tr. 314:17-18. 74 D. Williams Tr. 338:23. 75 ICE 27 Tr. 289:7-11. 76 DRO 30(b)(6) Tr. 196:24-197:7; see also DG Decl. Exh. 24 (Fourth Amendment Training Refresher Powerpoint outlining that knock-and-talks are to be conducted during “daytime hours” between 6 a.m. and 10 p.m.). 77 See, e.g., A. Aguilar Tr. 45:10-13; DG Decl. Exh. 8 ¶ 4, Id. Exh. 17, Id. Exh. 23; Id. Exh. 34; ICE 19 Tr. 102:1523; ICE 21 Tr. 167:11-25; ICE 31 Tr. 52:13-14; ICE 43 Tr. 78:10-13. 78 See DG Decl. Exhs. 19; Id. Exh. 21, Id. Exh. 18; Id. Exh. 20; Id. Exh. 28.
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to sexually assault recruits, the court denied the Marine Corps’ 12(b)(1) m otion to dism iss

plaintiffs’ injunctive relief claims because plaintiffs had shown that the Marine Corps condoned

the practice and that a “cognizable threat” to plaintiffs thus remained. Id. at 996-97.

Courts infer a de facto policy in c ircumstances similar to those presented by this ca se.

“[W]here supervisory officials have or should have knowledge of such widespread violations and

yet fail to take corrective action despite the power and ability to do so, it may be proper to infer a

de facto policy, by im plied or tacit authorization or approval or encouragement of the offensive

conduct.” Sango v. City of New York , No. 83 CV-5177 (JMM) (ARR), 1989 U.S. Dist. LEXIS 18212, at *19 (E.D.N.Y. June 16, 1989). 79 Here, ICE’s pattern and practice of misconduct was

so widespread, so persistent, and so rewarded, that it constituted a de facto policy of violating the

Fourth and Fifth Amendments.

Moreover, the Second Circuit has found that a policy can be “inferred from the informal

acts or omissions” of supervisors. Turpin v. Mailet , 619 F.2d 196, 200 (2d Cir. 1980); see also

Ricciuti v. N.Y.C. Transit Authority , 941 F.2d 119, 123 (2d Cir. 1991) (plaintiff did not have to

show that the “municipality had an explicitly stated rule or regulation”) (citing Villante v. Dep’t.

of Corrections, 786 F.2d 516 (2d Cir. 1986)); F iacco v. City of Rensselaer , 783 F.2d 319, 332

(2d Cir. 1986) (noting the possibility of a policy of deliberate indifference to the use of excessive

force where a police department failed to take disciplinary or proper investigatory action).

Here, despite numerous judicial findings of unconstitutional conduct by ICE agents, not

one ICE agent has been disciplined as a

result of m isconduct during warrantless hom e

operations. ICE RFA Nos. 32, 33 ( DG Decl. Exh. 1). In fact, defendant Christopher Shanahan,

the New York Field Office Director for DRO, te stified that in 2006 all Fugitive Operations

79 “Courts apply the sam e substantive standards to Bivens and Section 1983 claims.” Spinale v. USDA, 621 F. Supp. 2d 112, 119-20 (S.D.N.Y. 2009), citing Tarvarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
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agents were rated “Outstanding” and all receiv ed cash awards, DG Decl. Exh. 46 at 7, including three individual defendants in this case – ICE 1, 3 and 4 – whose pr otective sweep during a warrantless home operation was found unlawful by a fede ral district court judge that sam e year. See generally United States v. A li, No. 05-CR-785 (NG), 2006 U.S. Dist. LEXIS 21543 (E.D.N.Y. Mar. 7, 2006) aff’d and adopted by , 2006 U.S. Dist. LEXIS 21544 (E.D.N.Y. Apr. 7, 2006). This is so despite the fact that imm igration judges have f ound that the ICE agents committed “egregious violations” of the Four th Amendment during the war rantless home operations at 417 East Avenue and 165 Main Street (which are two homes at issue in this case).80 Shockingly, the Assistant Field Office Director who participated in these operations testified that he has not been informed of the judges’ findings. ICE 1 Tr. 340:4-341:4; 341:23-342:8. Nor has the Eastern District Court’s finding regarding an unlawful pr otective sweep conducted by the above three defendants in this case been communicated to them, see, e.g., ICE 4 Tr. 328:5-14, or their supervisor, ICE 1 Tr. 339:23-340:16. Indeed, these three agents, in addition to ICE 6, ICE 2, and ICE 9, have even received promotions.81 Similarly, OI Group Supervisor Knopf testified he had never heard of any com plaint against an ICE agent being substantiated by IC E or of any agent ever being reprimanded as a result of a complaint of misconduct during a warrantless home operation. J. Knopf Tr. 291:15-21; 69:15-18.
Even when ICE received m ultiple reports of constitutional misconduct from other law enforcement personnel, including ICE agents and Nassa u County police officers who had participated in the operations, ICE failed to take adequate steps to investigate, much less remedy, the misconduct. One “investigation” was so cursory, for exam ple, that even though the
80 DG Decl. Exh. 11 at 8-9 (“Respondent has. . . presented evidence which shows that the conduct of the Department was particularly egregious”); DG Decl. Exh. 12 at 10 (“I find that all the evidence the Government seized about the individual before me. . . was improperly seized as an egregious violation of the Fourth Amendment”). 81 DG Decl. Exh. 31.
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complaints came from Nassau County police offi cers, ICE responded to the complaints by denying any wrongdoing without having interviewed a singl e Nassau County police officer who had been involved. DG Decl. Exh. 16. Further, Nassau County Po lice Commissioner Mulvey testified that he reported the “wetback” comments up the chain of command at ICE, yet there is no evidence that any investiga tion was ever conducted by ICE with respect to the use of ethnic slurs by ICE agents. L. Mulvey Tr. 70:3-16.
Similarly, in response to an anonymous racial profiling complaint by an ICE agent, the ICE Office of Professional Res ponsibility (“OPR”) concluded th at the m atter did not warrant prosecutorial action, even though it failed to conduc t any field investigation and only chose to interview team leaders and their su pervisors involved in the operatio n.82 Significantly, OPR never asked agents whether individuals were arre sted during the operation in a m anner that was unconstitutional or illegal – which was the heart of the complaint. See, e.g., DG Decl. Exh. 40.
Additionally, a second ICE agent who particip ated in the OCS operations on September 24, 2007, in Glen Cove, Long Island, filed a complaint of constitutional misconduct by members of his team. DG Decl. Exh. 36. Fi rst and foremost, the complaint asserted that entry had been made to at least one residence by that ICE team on that day without obtaining consent to do so. In addition, the com plaint set forth a long list of other operationa l deficiencies, including that: agents were instructed to tell home occupants that they were searching for an individual with an Arabic name even though ICE agents were looking for members of a Central American gang; the team leader did not assign Spanish-speaking agen ts to entry team s; weapons were drawn at various locations, including one location where an agent pointed the muzzle of his MP5 shotgun at other law enforcement officers “as well as occupants of the house.” Id. Notwithstanding these
82 Notably, even before beginning any investigation, John P. C lark, then Deputy Assistant Secretary of IC E, dismissed the complaint as “spurious” in an email to then-Assistant Secretary for ICE Julie Myers and then-Director of the Office of Public Affairs Nicholas J. Smith. DG Decl. Exh. 45.
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serious allegations of m isconduct, ICE again inves tigated this complaint with leading question s (see, e.g., DG Decl. Exh. 47) and ultim ately summarily concluded that the com plaint was unfounded. DG Decl. Exh. 39.
In short, ICE’s and OPR’s i nvestigations were cursory, incomplete and s eemingly designed not to uncover any m alfeasance. In deed, even senior ICE officials who received complaints from members of Congress seemingly reacted to the com plaints with indifference.83 Moreover, the majority of the individuals who committed and condoned these violations are still employed by ICE.84
3. ICE Policies Actively Condone and Authorize Constitutional Violations While plaintiffs need not show the existence of official policies authorizing constitutional misconduct in order to establish standing (see discussion at Sections A, B, C, and D, supra), they can in fact dem onstrate that in m any instances ICE’s training programs, practice manuals, and official policies encouraged and authorized v iolations of the Fourth and Fifth A mendments. Where plaintiffs establish the exis tence of such unlawful policies, they have standing to seek injunctive relief. DeShawn E. v. Saf ir, 156 F.3d 340, 345 (2d Cir. 1998) (“In contrast [to Lyons], the challenged interrogation methods in this case are officially endorsed policies; there is a likelihood of recurrin g injury because the [police’s] ac tivities are authorized”); see also Rizzo v. Goode, 423 U.S. 362, 371 (1976) (standi ng requirements are satisfied if plaintiff can allege
83 For example, on June 11, 2007, Senators Christopher Dodd and Joe Lieberman and U.S. Representative Rosa DeLauro sent Michael Chertoff a letter stating that they were “troubled” by reports concerning the manner in which ICE conducted the raids in Connecticut five days earlier. They remarked that only four of the thirty-one individuals who were detained were the subject of deportation orders, that “ICE agents pushed their way into homes,” and that they “treated both adults and children inappropriately.” See Compl. Exh. 5. Chertoff sent a reply letter a mere three days later – wh ich speaks volumes to the depth of any investigation he conducted or initiated in response to these serious allegations – summarily denying all the allegations of inappropriate conduct and asserting that “[a]t no time did any ICE FOTs enter a dwelling without consent.” See Compl. Exh. 6. 84 For ex ample, Marcy Forman, Christopher Shanahan, Peter Smith, Joseph Palmese, and John Torres are all still ICE employees.
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“any plan or policy by petitione rs – express or otherwise – s howing their authorization or approval of such misconduct”).
(a) Policies Authorizing Use of Unlawful Ruses and Pretexts ICE official policies endorse the use of ru ses when apprehending targets, including in the case of allegedly “consent-based” home operations such as the ones at issue here. But while use of deception in ord er to “facilitate the exer cise of authority alread y obtained from another source” is permissible in order to ensure office r safety, it may not be permissible where officers use deception in order to obtain con sent. See United States v. Montes-R eyes, 547 F. Supp. 2d 281, 288 n.6 (S.D.N.Y. 2008) (Cote, J. ), (distinguishing between cases where “deception is used in order to execute an arrest warrant” and cases where deception is used “to g enerate the authority to search (i.e. consent)).” Indeed, th e Fifth, Eighth and Ninth Ci rcuits have articulated a rule th at “‘misrepresentation may even inva lidate the co nsent if the consent was given in reliance on the officer’s deceit.’” Id. at 288 n.7 (internal citations omitted). As the court in Montes-Reyes makes clear, where “the person whose consent is sought is left with the impression that his consent cannot be unlawfully wit hheld . . . [i]t is unive rsally agreed that in such circumstances, the resu lting consent is not ‘the product of an essen tially free and unconstrained choice.’” Id. at 287, citing Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). Nor may ICE agents m isrepresent the purpose of the home visit in order to obtain consent. In United States v. Hernandez-Juarez , No. SA-09-CR-19-XR, 2009 U.S. Dist. LEXIS 22031 (W.D. Tex. Mar. 16, 2009), the court described op erations that were strikingly similar to those at issue here: ICE agents, shouting “police,” gained entry to an apartm ent at 6:00 a.m . by falsely stating that they were looking for a fug itive they had no reason to believe was presen t, and proceeded to in terrogate and then arrest o thers whom they knew could not h ave been th e
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purported target. Under those ci rcumstances, which are virtually identical to th is case, the
district court found that the deception invalidated the purported consent:
The ICE agents entered the m ost private of spaces, a home, without a warrant and with only a hunch that the person they were looking for would be inside. The ICE agents used a ruse upon a non-English speaking alien to obtain entry. The typical reasonable person would have understood that the exchange between the agent and Mrs. Hernandez would have amounted at most to allowing a search of the prem ises for the m an in the ruse photograph. The questioning of a female American citizen with a nursing infant indicates that the ag ents used their fraudu lent entry for the purposes of a general roundup once they realized that [the target] was not in the premises.
2009 U.S. Dist. LEXIS 22031, at *10.
Despite this case law, official ICE policy permits and encourages the use of ruses during
warrantless home operations. In m emoranda distributed to all DRO and OI officers and agents,
high-level ICE officials authoriz ed the very ruses found to vitiate consent in Montes-Reyes and
Hernandez-Juarez. During his tenure as Director of DR O, John Torres issued three m emoranda to his staff authorizing the us e of a wide range of ruses. 85 One m emo states that “[t]he use o f
ruses in law enforcem ent operations is an effective law enforcem ent tool that enh ances officer
safety.” DG Decl. Exh. 38. The most recent memorandum is co-signed by Marcy Forman, thenDirector of OI.86 None of these m emoranda state that the use of ruses during warrantless hom e
operations could vitiate consent or otherwise make any distinction between warrantless hom e operations and operations involving judicial warrants.87 ICE has admitted that these memoranda
85 DG Decl. Exh. 26; Id. Exh. 27; Id. Exh. 38. 86 Id. Exh. 38. 87 Additionally, both ICE 30(b)(6) deponents testified that ICE policy dictates that agen ts can use ruses to gain consent to enter, but not to search. 30(b)(6) OI Deponent Tr. 163:17-164:19; 30(b)(6) DRO Deponent Tr. 183:7-16. ICE’s ruse memoranda make no such distinction. In fact, the 30(b)(6) deponents could not identify any written policy or training document articulating this distinction. 30(b)(6) DRO Deponent Tr. 183:13-20. To the contrary, ICE training documents actively instruct agents not to distinguish between entries and searches, and indeed not to use the word “search” at all when seeking consent, instead suggesting that ICE agents state “[do] y ou mind if we take a quick look around for this person.” DG Decl. Exh. 42 at 6; Id. Exh. 43 at USE09387 (stating that the term, “search, by most pe ople is considere d a very intrusiv e act”). Whi le ICE’s 30(b)(6) deponents appeared to
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and the policies contained within them remain in effect. RFAs 12-14 (DG Decl. Exh. 1).
Pursuant to these policies, ICE agents routinely make use of a wide range of deceptive tactics in order to enter and search homes.88
(b) ICE Training and Policy Regarding Protective Sweeps Is Contrary to Settled Case Law
Since at least 1990, the Suprem e Court has warned against using protective sweeps as a
pretext for conducting a warrantless s earch of a hom e. M aryland v. Buie , 494 U.S. 325, 327
(1990). As this Circuit has m ade clear, without an articulable su spicion of a specific danger to
themselves or others, law enforcem ent officers may not conduct protective sweeps. Unite d
States v. Gandia, 424 F.3d at 263-64; see also Ali, 2006 U.S. Dist. LEXIS 21543, at **13-14 (to
justify a protective sweep, “there must be articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent officer in believing that the area
to be swept harbors an individual posing a danger to those on the . . . scene.”) (citing Maryland v.
Buie, 494 U.S. 325, 334 (1990)).
In the face of this clear legal precedent, ICE training and policy permits agents to conduct
protective sweeps without any arti culable suspicion of a specific danger. 30(b)(6) OI Deponent
understand that such instructions could result in conduct that violates the law, th ey could not point to any written policy or training document that made this principle clear to ICE agents conducting warrantless home operations. 30(b)(6) OI Deponent Tr. 168:16-169:6; 213:16-21. 88 In fact, it appears that it was always ICE’s plan to use ruses during these ope rations. DG Decl . Exh. 6 at 2. During the course of the raids, ICE Agents routinely failed to identify themselves or their purpose, instead shouting “Police!” and “Open the Door!” to create the impression that residents had no choice but to permit entry. B . Velasquez Tr. 83:11-15; D. Rodriguez Tr. 74:18-22. In the most egregious instance, ICE agents shouted that “someone is dying upstairs” to a 12-year-old girl in order to convince her to open the door at 710 Jefferson Street, then told her they were looking for a man, “Will,” who was not their target. B. Velasquez Tr. 82:24-83:2, 97:18-20; DG Decl. Exh. 35 (showing that the target was a m an named Luis Mata). When the landlady at 20 Boatsteerers Court, a retired East Ham pton police officer herself, as ked whether the ICE agents had warrants, they answe red “yes,” without explaining that they needed consent to enter because their warrants were administrative, not judicial. DG Decl. Exh. 8. Indeed, ne ither Nassau County Police Commissioner Mulvey nor his officers who assisted with Operation Community Shield were informed that administrative warrants lack judicial support and that consent must be obtained from the residents of homes in order to effect arrests. L. Mulvey Tr 13:16-14:2; 18:13-20. Given that the Commissioner of Police of Nassau County was not aware of this distinction, it strains credulity to believe that the residents of the homes in this case were.
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Tr. 239:13-18. Nothing in ICE’s po licies informs ICE agents of the con stitutional requirements that the scope of a protective sweep must (a) be limited to a cursory visual inspection, Buie, 494 U.S. at 327, and (b) be lim ited by the nature of the crime for which agents are conducting their investigation, Ali, 2006 U.S. Dist. LEXIS 21543, at *19. 89 ICE policy thus authorizes conduc t that is contrary to the law, wh ich is precisely the conduct that o ccurred in this case. In the warrantless home operations at issue here, in cluding those that pur portedly sought “gang members,” ICE had no evidence that the targ ets were en gaged in co mmitting any ongoing crimes, much less violent ones. See, e.g., ICE 27 Tr. 71:14-72:11; 341:13-343:17 (stating that he was unaware that any of these operations were hi gh-risk and that he noted in the TECS databas e that the operation involved no nati onal security issues nor aliens suspected of having terrorist connections, and no violence was expected). No IC E agent has testified to finding any indicia of gang activity – weapons, drugs, or hoards of cash – during the home operations at issu e.90 Indeed, agents have unifor mly testified that they did not have any particular reasons to fear for their safety at any of the hom es they visited.91 Significantly, an Eastern District Court analyzing the conduct of an ICE team – in cluding three individual defendant s named in the instant case – found no “logical basis for concluding that an ille gal alien who is attempting to evade capture is, as a result, likely to ‘lau nch an attack’ on la w enforcement officers from a hiding place.” Ali , 2006 U.S. Dist. LEXIS 21543, at * 20.
89 This is not surprising given that Chapter 42 of t he Special Agent’s Handbook, the operative OI policy manual according to the affidavit attached to Defendants’ Motion, which was issued in 1979, has never been amended to reflect any subsequent developments in constitutional law. 30(b)(6) OI Deponent Tr. 77:7-12. 90 See, e.g., ICE 52 Tr. 181:4-9; ICE 21 Tr. 333:7-18; ICE 45 Tr. 182:8-13; ICE 25 Tr. 175:9-12; ICE 47 Tr. 97:310; ICE 18 Tr. 247:21-23; ICE 31 Tr. 114:12-23; ICE 24 Tr. 112:22-113:6; ICE 30 Tr. 201:8-22; ICE 17 Tr. 161:23162:18; ICE 23 Tr. 164:7-11; ICE 59 Tr. 111:17-112:2; ICE 27 Tr. 197:6-25; ICE 26 Tr. 85:11-86:11; ICE 28 Tr. 145:11-22; ICE 35 Tr. 196:3-12. 91 See, e.g., ICE 30 Tr. 296:6-10; ICE 26 Tr. 136:20-23; ICE 34 Tr. 109:11-14; ICE 24 Tr. 109:12-16. And yet, ICE agents admitted to breaking into a locked bedroom upon observing an occupant retreat into the room. ICE 22 Tr. 168:12-169:9; ICE 20 Tr. 235:21-236:12; ICE 18 Tr. 234:14-236:11.
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Notwithstanding the lack of any le gitimate basis to condu ct protective sweeps in this case, ICE agents routinely sw ept through hom es while purporte dly looking for individuals suspected of nothing m ore than avoiding a deportation order, in compliance with ICE’s policy and training. Thus, although such conduct clearly violates accepted prin ciples of protective sweeps, ICE policy ex plicitly authorizes it, an d agents who engaged in such swe eps believed themselves to be complying with agency directives.
(c) ICE Policy Permitted and Encour aged Unlawful Warrantless “Stops” and Seizures of Residents Absent exigent circumstances, law enforcement may not seize or detain residents inside a home without a warrant, because “searches and seizures inside a hom e without a warrant are presumptively unreasonable,” Payton v. New York , 445 U.S. 573, 586 (1980), and the “warrantless entry to seize a person within a home” violates the Fourth Amendment. LaLonde v. County of Riverside, 204 F. 3d 947, 955 (9th Cir. 2000); see also Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1017-1019 (9th Cir. 2008) (finding ICE agents’ investigative stop and detention of home occupant during warrantless entry an “egregious” violation of the Fourth Amendment). Yet ICE training and policy explicitly encour aged ICE agents to conduct unlawful stops and seizures inside hom es during warrantless ho me operations, in violation of these Fourth Amendment principles. ICE’s 30(b)(6) witnesses testified that ICE po licy permits agents to conduct investigative stops, incl uding questioning about imm igration status, during warrantless home encounters. 30(b)(6) OI Deponent Tr. 138:10-13, 141:22-142:2; 30(b)(6) DRO Deponent Tr. 222:18-223:13, 215:3-5; see also DG Decl. Exh. 25 (training materials instructing ICE agents that they may “briefly detain” individuals for questioning based on “reasonable suspicion”). ICE
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specifically trains agents to conduct these stops in hom es.92 For exam ple, a m anual on Basic Tactics instructs ICE agents to “[establish] a Control Point” in homes and “Centralize Subjects.” DG Decl. Exh. 22 at US22104. AFOD Darren W illiams has subm itted sworn d eclarations asserting that when D RO agents are instruct ed to s ecure locations during war rantless home operations, “it is standard procedure that . . . o ccupants are not perm itted to make calls.” DG Decl. Exh. 5 ¶ 23. Sim ilarly, OI agents are permitted during warrantless hom e operations to order individuals not to “m ove around” when seeking to questi on them. 30(b)(6) OI Deponent Tr. 147:20-148:15. Individual defendants confirm th at they routinely order occupants out of bedrooms, see, e.g., ICE 21 Tr. 332:2-333:6, and prevent occ upants from closing the door to use a bathroom, see, e.g. , ICE 6 Tr. 164:17-165:9. ICE age nts themselves have testified tha t interrogations of non-target residents during these encounters are part of normal practice.93
Thus, even if defendants could show that th ey lawfully obtained entry to pla intiffs’ homes – which they cannot – the o fficially authorized ICE policy of investigative stops inside homes renders these warrantless encounters nonconsensual. “Eve n an initially consensual encounter . . . can be transform ed into a seizure or detention within the m eaning of the Fourth Amendment.” Kaupp v. Texas, 538 U.S. 626, 631-32 (20 03) (internal citations o mitted). An encounter becomes non-consensual when “a reasona ble person would have believed that he or she was not free to leave” or that his or her “f reedom of movement is restrained.” Mendenhall , 446 U.S. at 553-54.
92 In effect, ICE imported the precepts of Terry v. Ohio, 392 U.S. 1 (1968) into the framework of warrantless home operations. But the law is clear th at “[t]he reasons that gave rise to the rule in Terry are simply not applicable” to home entries and searches. LaLonde, 204 F. 3d at 955. 93 See, e.g., ICE 18 Tr. 275:3-15, 276:2-19 (OI agents instructed by Resident Agent-in-Charge Joseph Palmese to select individuals for questioning about immigration status based on whether they resided or were present at a target location); G. Bartley Dep. 321:3-18 (OI agent asked a group of males found during a protective sweep about their immigration status); ICE 16 Tr. 173:12-176:8 (during warrantless home operations DRO agents “often” ask nontargets about their immigration status); ICE 6 Tr. 1 88:25-190:14 (even after locating target, a D RO agent can question non-target home occupants about their identity, and, even if they refuse to identify themselves, to question them about their status).
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II. PLAINTIFFS HAVE STATED A CLAIM FOR A PERMANENT INJUNCTION Defendants also move pursuant to F ederal Rule of Civil Procedure 12(c) for a judgment
on the pleadings dism issing plaintiffs’ claim for in junctive relief. Pla intiffs have m ore than sufficiently stated a claim for a permanent injunction.
A. Standard The standards governing Rule 12(c) m otions for a judgment on the pleadings are the same as those for a m otion to d ismiss under R ule 12(b)(6). “Thus, [a court] will accept all factual allegations in th e complaint as true an d draw all re asonable inferences in [ plaintiffs’] favor. To survive a Rule 12(c) m otion, [the plaintiffs’] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is p lausible on its face.” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). When c onsidering a Rule 12(c) m otion, courts review “the facts as asserted within the four corners of the com plaint together with the documents attached to the complaint as exh ibits, and any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v. Si mone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010). Thus, this Court m ay grant defendants’ m otion for a judgm ent on the pleadings only if – accepting as true a ll the allegations in the complaint, and drawing all reasonable inferences in plaintiffs’ favor – plaintiffs have not stated a pl ausible claim that would entitle them to injunctive relief . As plain tiffs have stated a plausible claim that their constitutional rights are likely to be violated in the future, defendants’ motion for a judgment on the pleadings should be denied. In order to “obtain a perm anent injunction, a plaintiff must succeed on the m erits and show the absence of an adequate remedy at law and irreparable harm if the relief is not granted.” UBS Secs. LLC v. Voegeli, 684 F. Supp. 2d 351, 354 (S.D.N.Y. 2010) . Indeed, “[i]f a party can demonstrate that it is lik ely to be de prived of its constitutional rights in the f uture by the acts it
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seeks to have enjoined, both these requirem ents are satisfied.” Local 32B-32J, SEIU v. Port Auth., 3 F. Supp. 2d 413, 419 (S.D.N.Y. 1998).
Defendants spend the bulk of their moving argument discussing how the Suprem e Court in Lyons rejected a request for an injunction. See Defendants’ Memorandum in Law In Support of Defendants’ Motion to Dism iss Plaintiffs’ Claim for Injunctive Relief (“Defs.’ Brief”) at 3134. Defendants’ reliance on Lyons is misguided. In Lyons , the Supreme Court was reviewing the grant of a preliminary injunction, not a m otion to dismiss a claim for a permanent one. The Supreme Court dismissed Lyons’s claim because he could not show a “real or imm ediate threat” of future injury. Lyons , 461 U.S. at 111. But, because a p ermanent injunction is at issue here, imminent harm is not a require d showing. Rodriguez v. DeBuono , 175 F.3d 227, 235 n.9 (2d Cir. 1998); CSX Corp. v. Childre n’s Inv. Fund Mgm t. (UK) LLP , 562 F. Supp. 2d 511, 573 (S.D.N.Y. 2008).94 Plaintiffs’ allegations demonstrate the absence of an adequate remedy at law, Compl. ¶¶ 464, 478, and that plaintiffs will suffer irreparable harm. Compl. ¶¶ 461, 4 76. Thus, defendants’ motion should be denied.
B. Plaintiffs Have Alleged Irreparable Harm Courts presume irreparable harm where plai ntiffs seek injunctive r elief to p revent violations of their Fourth and Fifth Am endment rights. Moreover, even without such a presumption, plaintiffs have sufficiently pled facts to dem onstrate irreparable harm that is likely to be repeated if an injunction is not granted.
94 The othe r cases cited by defenda nts are also inapposite , as t hey address irreparable harm in the context of a preliminary injunction, not a permanent one. See Defs.’ Brief at 30; Tom Doherty Assocs., Inc. v. Sab an Entertainment, 60 F.3d 27, 37 (2d Cir. 1995) (articulating the factors used in determining irreparable harm for preliminary injunctions); JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990).
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1. Constitutional Harm Is Presumed to be Irreparable Allegations of constitutional vi olations are presumed to be irreparable. Conn. Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226, 231 (2d Cir. 2004) (“the alleged violation of a constitutional right triggers a finding of irrepara ble injury . . . [b]ecause violations of constitutional rights are presumed irreparable”); Johnson v. Miles, 355 Fed. Appx. 444, 446 (2d Cir. 2009) (“Because an alleged violation of a constitutional right triggers a f inding of irreparable harm, [the plaintiff] necessarily satisfied the requirement that a party applying for [an] . . . injunction show irreparable harm.”). This doctrine has been specifically applied to allegations of Fourth Amendment and Equal Protection violations, whic h are likewise presum ed irreparable. See Lynch v. City of New York , 589 F.3d 94, 99 (2d Cir. 2009) (s tating that Fourth Am endment violations constitute irreparable harm); Diaz v. New York City Bd. of Elections, 335 F. Supp. 2d 364, 367 (E.D.N.Y. 2004) (stating that the allegation of an equal protection violation is sufficient to show irreparable harm ). Thus, as plaintiffs have sufficiently alleged plausible allegations of constitutional violations, irreparable harm is presumed. See Compl. ¶¶ 22-41, 190-425. 2. Plaintiffs Have Sufficie ntly Pled F actual Matter Demonstrating I rreparable
Harm Even if there were no presum ption of irrepa rable harm, plaintiffs have pled sufficient factual matter demonstrating that plaintiffs will suffer irreparable harm if injunctive relief is not granted. D efendants baldly asse rt that plaintiffs’ allegations that ICE engaged in a pattern, practice and policy of unlawfu l conduct are “unsupported” and “incredible” and that “the complaint contains no factual allegations to support the conclusory claim ” that ICE policy authorizes unconstitutional conduct. Defs.’ Br. at 33-34. An exa mination of the com plaint demonstrates that this is not the case. Plain tiffs’ complaint sets out detailed alle gations of constitutional violations not onl y at plaintiffs’ hom es, but throughout the New Yor k area. See
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Compl. ¶¶ 22-41, 190-425. Further, plaintiffs allege that ICE agents, in fact, returned to one plaintiff home twice in thirteen m onths, see Compl. ¶ 379, and expressly threatened to return to other homes, see Compl. ¶ 35. Moreover, plaintiffs se t forth extensive allegations regarding ICE’s pattern, practice and de facto policy of violating the rights of plaintiffs and the putative class. See, e.g. , Compl. ¶¶ 8-10, 41, 434, 459, 472, Exh. 2 (a lleging a pattern and practice of discriminatory and coercive conduct and pointing to both m emoranda authored by ICE policymakers and acad emic studies of ICE conduct); Co mpl. ¶ 12 (alleging discriminatory conduct toward Latinos and noting that IC E agents and local law enforce ment personnel complained that agents engaged in racial prof iling and used derogatory term s for Latinos); Compl. ¶¶ 11-19, 75, 189, 427, 453, 463 (detailing com plaints by the OIG, Na ssau County Police Department and various Congressional repr esentatives that ICE’s training, databases, and conduct in the field were severely deficient) ; Compl. ¶¶ 20-21, 76, 80 (des cribing in detail the failures by ICE officials to respond effectively to allegations of misconduct).
As Point I, supra, demonstrates, these allegations have been am ply supported by testimony and evidence not only from plaintiffs, but also from independent witnesses, law enforcement officers, and ICE agents them selves. Taken as true, these allegations easily demonstrate that p laintiffs face a credib le and likely threat of future, irreparable harm. The allegations are, therefore, far from “unsupported” or “incredible,” and are more than sufficient to withstand a Rule 12(c) motion.
3. Plaintiffs Have Suffered Irrepara ble Harm Because Their Injury Ca nnot Be Remedied By Mere Money Damages
Irreparable harm has been defined by courts in this Circu it as an in jury “requiring a remedy of more than m ere money damages.” Leinster In ter S.A. v. Botley Ltd. , No. 09 Civ. 3874 (SHS), 2009 U.S. Dist. LEXIS 122628, at *2 (S.D.N.Y. Dec. 30, 2009), citing Ford v.
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Reynolds, 316 F.3d 351, 355 (2d Cir. 2003). Here, plain tiffs are entitled to equitable relief because they do not have an adequate remedy at law.
Defendants make the untenable assertion that plaintiffs do, in fact , have an adequate remedy because they can seek damages under Bi vens v. Six Unknown Na med Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defs.’ Brief at 34 -35. The fact that parties aggrieved by past Fourth Amendment violations can seek damages under Bivens does not mean that Bivens offers an adequate rem edy against future constitutional violations, and def endants offer no support for their assertion that Bivens offers an adequate remedy at law which would prevent the issuance of an injunction. Indeed, under defendants’ reasoning, no injunction could ever issue to prevent Fourth Amendment violations as the aggrieved party would onl y be entitled to postinjury monetary damages. That is not the law. See, e.g., Zepeda, 753 F.2d at 727; Stauber, 2004 U.S. Dist. LEXIS 13350, at *69; Ramirez v. Webb, 787 F.2d 592 (6th Cir. 1986).
Courts across the country have directly held that “[w]here constitutional rights have been violated and are threatened to be violated again, money da mages are not an adequate rem edy.” Mendoza v. INS , 559 F. Supp. 842, 850 (W .D. Tex. 1982) (enjoining INS from conducting warrantless dragnet searches and seiz ures). This is particularly true where, as here, the plaintiffs allege that there is a pattern of unconstitutional conduct that is likely to recur. See Compl. ¶¶ 2241, 190-425, 441; see also Nat’l Congress , 75 F. Supp. 2d at 161 (plaintiffs have suffered and will continue to suf fer irreparable harm if def endants are p ermitted to persis t in th eir pattern, practice and policy of targeting Latinos and raiding hom es in violation of the Fourth Amendment); Doe v. Bridgeport Police Dep’t., 198 F.R.D. 325, 335 (D. Conn. 2001) (“plaintiffs have alleged system ic or ongoing constitutional violations that can not be rem edied with a monetary award.”).
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Additionally, Bivens actions “do not lie against fede ral agencies or agains t federal employees sued in their official cap acities.” Caraveo v. United States EEOC , 96 Fed. App’x. 738, 740 (2d Cir. 2004), citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994). And in any event, the availability of Bivens relief to compensate for past constitutional violations does not render harm from future constitutional violations an y less “irreparable.” Plaintiffs commonly and successfully bring both Bivens claims and claims for injunctiv e relief in the sam e action. See Illinois Migrant Council v. Pilliod , 398 F. Supp. 882 (N.D. Ill. 1975) . As explained in Nat’l Federation of Fed. Employees v. Wei nberger, 818 F.2d 935, 941 (D.C. Cir. 1987) , “[t]he availability of a Bivens remedy for a particular wrong simply cannot – and was never intended to – protect an individual who is threatened with future deprivation of a constitutional right. . . . In contrast, that is the precise function of prospective injunctive relief.” This is principally because courts have found that the m onetary value of futu re harm is difficult to quantify and have held that where damages are hard to quan tify, harm may be irreparable. See Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Excelsior Trading Corp., No. 07-CV-3224 (CPS)(SMG), 2007 U.S. Dist. LEXIS 69025, at *10 (E.D.N.Y. Sept. 18, 2007) (“damages . . . [that] are not readily quantifiable . . . constitute irreparable harm.”).
III. IF THIS COURT DOES NOT DENY DEFENDANTS’ MOTION IT SHOULD DEFER RULING UNTIL AFTER TRIAL AS THIS MOTION IS INTERTWINED WITH THE MERITS OF THE UNDERLYING CASE AND PLAINTIFFS ARE IN NEED OF FURTHER DISCOVERY Plaintiffs have provided ample evidence to support their claim for injunctive relief and to
establish their standing to bring a claim for injunctive relief. Thus, defendants’ motion should be denied. However, to the extent the Court ha rbors any doubts in that regard, it should at a minimum defer its ruling until after the close of trial.
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The factual issues that must be res olved to decide this motion ove rlap with issue s that must be resolved by the jury in this case; as such, granting defendants’ motion to dismiss at this stage would in f act violate plaintiffs’ Seventh Amendment right to a jury trial. Addition ally, discovery in this case is not yet com plete, and as a result, expert discovery has not yet commenced. This discovery is vital to plaintiffs’ injunctive relief claims.
A. The Evidence Concerning Standing Over laps with Issues Reserv ed for the Jury Under the Seventh Amendment
If the Court has any inclination to grant defendants’ m otion to dismiss, it should defer its decision until af ter a jury has is sued a verd ict in this c ase, as is re quired by the Seventh Amendment. Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 (2d Cir. 2006) (“If . . . the overlap in the evidence is such that fact-finding on the jurisdictional issue will adjudicate factual issues required by the Seventh Amendment to be resolved by a jury, then the Court must leave the jurisdictional issue for the trial.”) (internal citations omitted) (emphasis added).
Whether defendants engaged in unlawful c onduct in connection with the raids at plaintiffs’ homes is relevant to both plaintiffs’ equitable relief claims as well as their Bivens claims, for which they have a r ight to a ju ry trial. See Ortiz v. Pears on, No. 97 Civ. 0885 (KMW)(THK), 1999 U.S. Dist. LEXIS 22450, at *36 (S.D.N.Y. Nov. 5, 1999) (a “Bivens claim entails the right to a jur y trial”). For instan ce, one of the ways in which plaintif fs will seek to hold certain ICE supervisors indi vidually liable under Bivens is by dem onstrating that these defendants created unconstitu tional policies an d/or condoned unconstitutional con duct. This same conduct would also support a finding of a likelihood of futu re harm which, as discussed above, plaintiffs must show in order to dem onstrate that they have stan ding to bring a claim for injunctive relief. Given the overlap in these claims, the Court should defer a ruling on these
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issues until after trial. Leight on Techs. LLC v. Oberthur Card Sys. , 531 F. Supp. 2d 591, 595 (S.D.N.Y. 2008) (“[W]here the re levant facts are dispositive of both the 12(b)(1) motion and portions of the m erits, the trial court should gr ant the m otion to dism iss only if the m aterial jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. If the plaintiff presents suf ficient evidence to create a genuine dispute of m aterial (jurisdictional) facts, then the case proceeds to trial, so that the factfinder can determine the facts, and the jurisdictional dispute will be reevaluated at that point.”).
B. Plaintiffs Are in Need of Further Discovery The Court should not deny standing without gr anting plaintiffs leav e to obtain further discovery. Delphi-Delco Elecs . Sys. v. M/V Nedlloyd Europa , 324 F. Supp. 2d 403, 417 (S.D.N.Y. 2004) (denying defendants’ m otion to dismiss because it was “prem ature under Rule 56(f)” and allowing additional discovery). As the attached Rule 56(f) declaration dem onstrates, plaintiffs are in need of additional discovery regarding a num ber of issues. See Plaintiffs’ Rule 56(f) Declaration dated July 9, 2010. This te stimony and docum entary evidence will prov ide further support for plaintiffs’ standing to seek injunctive relief.
CONCLUSION For all of the foregoing reasons, plain tiffs respectfully request the Court deny Defendants’ Motion to Dismiss Plaintiffs’ Claim for Injunctive Relief.
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 Case 1:07-cv-08224-KBF Document 274 Filed 01/11/11 Page 1 of 7

UNITED STATES DISTRICT COURT S__O__U__T__H__E__R__N___D__I_S__T__R__I_C__T___O__F__N__E__W____Y__O__R__K____----x
ADRIANA AGUILAR, et aI., Plaintiffs,

USDCSDNY DOCUMENT ELECTRONICALLY FILED
DOC#: DATE FILED: 1111/11

-against-
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et aI.,

DISCOVERY ORDER 07 Civ. 8224 (JGK) (FM)

Defendants.
----------------------------------------------------------x
FRANK MAAS, United States Magistrate Judge.

This is a putative class action brought by more than twenty plaintiffs

("Plaintiffs") who allege that officials of the Immigration and Customs Enforcement

Division of the United States Department of Homeland Security ("ICE"), together with

others, violated their constitutional rights by unlawfully searching their homes and

targeting Latinos for arrest. In their Fourth Amended Complaint ("FAC"), Plaintiffs have

added as defendants in their individual capacities four high-ranking officials within ICE

or the Department of Homeland Security (DHS) at the time of the searches: Michael

Chertoff, the former Secretary of DHS; Julie Myers, the former Assistant Secretary of

ICE; John Torres, the former Director of ICE's Office of Detention and Removal

Operations; and Marcy Forman, the former director ofICE's Office ofInvestigations

(collectively, the "Officials").

Case 1:07-cv-08224-KBF Document 274 Filed 01/11/11 Page 2 of 7
I have been overseeing discovery in this case since July 2008, during which time there have been scores of discovery disputes. To date, the parties have conducted 127 depositions and also have cxchanged morc than 50,000 pages of documents. (See Defs.' Mem. at 8; Tr. of Dec. 17,2010 Conf. at 5).
This Discovery Order addresses the Officials' motion to stay certain additional discovery involving them pending thc rcsolution of their motion to dismiss the FAC. (ECF No. 217). Specifically, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Officials seek a stay of "(i) all document discovery and written discovery directed against them; [and] (ii) their initial disclosures and interrogatory responses."l (See ECF No. 218 ("Defs.' Stay Mem.") at 5). The Officials contend that such a stay is appropriate because of the "substantial possibility" that they will prevail on their motion to dismiss (which relies heavily on the Supreme Court's decision in Ashcroft v. Iqbal, 556 u.S. _ , 129 S. Ct. 1937 (2009)), the remote likelihood that discovery from the Officials will result in the production of any new documents, and the alleged lack of prejudice to Plaintiffs resulting from a stay. (Defs.' Stay Mem. at 8-9).
Plaintiffs oppose the motion on the grounds that (a) even if the motion to dismiss is granted, the Officials possess "highly relevant" information which Plaintiffs will be entitled to obtain through third-party subpoenas; (b) the Officials have not demonstrated "good cause" for a stay in light of the weakness of their motion to dismiss
Although the Officials initially sought to stay their depositions as well, (see Defs' Stay Mem. at 5), Plaintiffs have agreed to "hold off' on taking their depositions until the motion to dismiss is decided. (See Tr. ofJuly 30, 2010 Conf. at 4-5, 20).
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and the reasonableness of Plaintiffs' discovery demands; and (c) a delay in discovery would adversely affect the quality of the testimony in this case, in which the witnesses' memories have already faded, thus prejudicing Plaintiffs. (See ECF No. 238 (PIs.' Stay Mem.")).
For the reasons set forth below, the Officials' motion for a stay is granted in part and denied in part. I. Applicable Law
Rule 26(c) of the Federa1 Rules of Civil Procedure permits a court to stay discovery for "good cause." See Fed. R. Civ. P. 26(c); Johnson v. New York Univ. Sch. of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002) (Ellis, Mag. J.); Thrower v. Pozzi, No. 99 Civ. 5871 (GBD), 2002 WL 91612, at *7 (S.D.N.Y. Jan. 24, 2002); Siemens Credit Corp. v. Am. Transit Ins. Co., No. 00 Civ. 0880 (BSJ), 2000 WL 534497, at *1 (S.D.N.Y. May 3, 2000). In determining whether there is good cause to stay an action while a dispositive motion is pending, courts consider (a) the strength of the dispositive motion, (b) the breadth of the discovery sought and the burden of responding to it, and (c) the prejudice to the non-moving party should a stay be granted. Niv v. Hilton Hotels Corp., No. 06 Civ. 7839 (PKL), 2007 WL 510113, at *1 (S.D.N.Y. Feb. 15,2007); Johnson, 205 F.R.D. at 434; Integrated Sys. & Power, Inc. v. Honeywell Int'l., Inc., No. 09 Civ. 5874 (RPP), 2009 WL 2777076, at *1 (S.D.N.Y. Sept. 1,2009); Anti-Monopoly, Inc. v. Hasbro, Inc., 94 Civ. 2120 (LMM) (AJP), 1996 WL 101277, at *3 (S.D.N.Y. Mar. 7,1996).
3

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The burden of establishing good cause falls on the moving party. See Am. Booksellers Ass'n v. Houghton Mifflin Co., No. 94 Civ. 8566 (JFK), 1995 WL 72376, at *1 (S.D.N.Y. Feb. 22, 1995). Courts in this Circuit consequently have denied stay applications when motions to dismiss are pending if the moving defendants would be subject to non-party discovery even if they were to be dismissed from the case. See Freund v. Weinstein, No. 08 Civ. 1469 (FB) (MDG), 2009 WL 2045530, at *3 (E.D.N.Y. July 8, 2009); Hollins v. U.S. Tennis Ass'n, 469 F. Supp. 2d 67, 79 (E.D.N.Y. 2006); Hachette Distrib., Inc. v. Hudson Cnty News Co. Inc., 136 F.R.D. 356, 358 (E.D.N.Y. 1991). Indeed, at least three judges in this District have held that a stay is appropriate only when the underlying motion to dismiss disposes of the entire action. See Williston v. Eggleston, 410 F. Supp. 2d 274,278 (S.D.N.Y. 2006) (Sweet, J.); Association Fe Y Allegria v. Republic of Ecuador, Nos. 98 Civ. 8650,98 Civ. 8693,1999 WL 147716, at *1 (S.D.N.Y. Mar. 16, 1999) (Jones, 1.); In re Akropan Shipping Corp., No. 86 Civ. 4873, 1990 WL 16097, at *2 (S.D.N.Y. Feb. 14, 1990) (Keenan, J.). II. Discussion
In his dissent in Iqbal, Justice Souter suggests that the majority's decision "does away with supervisory liability under Bivens [v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)]." Iqbal, 129 S. Ct. at 1955 (Souter, J., dissenting). Plaintiffs disagree, contending that, "far from eliminating supervisory liability, Iqbal reaffirmed that a federal official may be held liable for his own failure to supervise subordinates, as that is 'his own neglect,' not mere respondeat superior." (ECF
4

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No. 239 at 26) (citing id. at 1948; Dunlop v. Munroe, 11 U.S. (7 Cranch) 242, 269

(1812)).

Thc effect of Iqbal on Plaintiffs' ability to proceed against the Officials in

their individual capacities is a matter that Judge Koeltl prcsumably will address in ruling

on the Officials' motion to dismiss. The narrow issue before me relates to discovery. In

that regard, however, I must consider the strength of the Officials' motion. Two judges in

other districts recently have denied motions to dismiss made by defendants Myers and

Torres in cases involving Fourth Amendment allegations substantially similar to those

asserted in this action. See Diaz-Bernal v. Myers, No. 09 Civ. 1734 (SRU), 2010 WL

5211494, at *18-20 (D. Conn. Dec. 16,2010); Argueta v. Immigration & Customs

Enforcement, No. 08 Civ. 1652 (PGS), 2010 WL 398839, at *4-10 (D. N.J. Jan. 27,

2010). Accordingly, it appears that the Officials' motion may face an uphill battle insofar

as the Fourth Amendment claims against these officials are concerned. Whether the FAC

states a claim against defendants Chertoff and Myers two higher officials - obviously

presents a closer question. Nonetheless, the Court cannot say, as Plaintiffs suggest, that

the likelihood of their success on the motion to dismiss is "speculative at best." (PIs.'

Stay Mem. at 21).

Turning to the breadth of Plaintiffs' discovery requests and the burden of

responding to them, Plaintiffs previously have propounded five sets of document requests

and two sets of interrogatories to which the Officials might need to respond. (See id. at 9,

16 n.8). The Officials, however, already have conducted a search for documents

5

Case 1:07-cv-08224-KBF Document 274 Filed 01/11/11 Page 6 of 7
responsive to Plaintiffs' first and second discovery requests, thus mitigating the amount of additional work they would need to do now to respond to Plaintiffs' document requests in the absence of a stay. (See Tr. of Oct. 15,2009 Conf. at 47). Additionally, as Plaintiffs correctly point out, the Officials' reliance on Iqbal's admonition against exposing "high-level officials" to the burdens of discovery is misplaced, because defendants Chertoff and Myers no longer work for the Government and defendants Torres and Forman no longer hold policy-making positions at the highest levels of government, as did the Attorney General and the Director of the Federal Bureau of Investigation in Iqbal. See Iqbal, 129 S. Ct. at 1953-54. Moreover, even if Judge Koeltl dismisses all of Plaintiffs' claims against the Officials, the case against the other defendants will proceed. The Officials therefore may be required to produce their documents to Plaintiffs in response to subpoenas issued pursuant to Rule 45 of the Federal Rules of Civil Procedure.
In these circumstances, it simply does not make sense to stay document discovery pending Judge Koeltl' s ruling. The Officials therefore will be required to produce any additional documents responsive to Plaintiffs' requests that are in their possession, custody, or control.
The interrogatories are a different matter. If the Officials are required to respond to detailed interrogatories at this preliminary stage of the case against them, they might be engaging in an exercise that could not be required of them if the claims against them in their individual capacities are dismissed. Furthermore, given the scope of the discovery to date in this case, it is hard to fathom how the lack of interrogatory
6

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answers from four of more than sixty defendants could in any way prejudice Plaintiffs.

The same reasoning applies to the Officials' Rule 26(a) disclosures. For this reason, the

motion to stay is granted with respect to Plaintiffs' interrogatories and the Officials' Rule

26(a) disclosures.

III. Conclusion

Accordingly, for the reasons set forth above, the Officials' motion for a stay

of discovery, (ECF No. 217), is granted with respect to Plaintiffs' intcrrogatories and the

Officials' Rule 26(a) disclosures, but denied with respect to Plaintiffs' document requests.

SO ORDERED.

Dated:

New York, New York January 11,2011

Uni d States Magistrate Judge

Copies to:
Honorable John G. Koeltl United States District Judge
AIdo Badini, Esq. Dewey & LeBoeuf, LLP Fax: (212) 649-0919
Ghita Schwarz, Esq. Latino Justice PRLDEF Fax: (212) 431-4276
Shane Cargo United States Attorney's Office Fax: (212) 637-2786
7

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ──────────────────────────────────── ADRIANA AGUILAR, ET AL.,
Plaintiffs,
- against -
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES OF AMERICA DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Defendants. ────────────────────────────────────
JOHN G. KOELTL, District Judge:

07 Civ. 8224 (JGK) OPINION AND ORDER

The plaintiffs, twenty-five individuals whose homes were

searched by agents of the Immigration and Customs Enforcement

Division of the Department of Homeland Security (“ICE”) during

eight operations between February and September of 2007, bring

this putative class action against ICE; Michael Chertoff, the

former Secretary of the Department of Homeland Security (“DHS”);

Julie Myers, the former Assistant Secretary of ICE; John Torres,

the former Director of ICE’s Office of Detention and Removal

Operations (the “DRO”); and Marcy Forman, the former Director of

ICE’s Office of Investigations (the “OI”) (Chertoff, Myers,

Torres, and Forman, together, the “Supervisory Defendants”); a

number of additional individual defendants, primarily ICE

agents, officers, and supervisors; and the United States. The

plaintiffs contend, among other things, that the operations at

issue were conducted in a manner that violated their rights under the Fourth and Fifth Amendments to the United States Constitution. The plaintiffs seek injunctive relief, damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., and damages from the individual defendants under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
The Supervisory Defendants have moved to dismiss the claims against them, and all defendants have moved to dismiss the claims for injunctive relief.
I.
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs’ favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007). The Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Velez v. Levy, 401 F.3d 75, 80 (2d Cir. 2005) (internal quotation marks and citation omitted). The Court should not dismiss the complaint if the plaintiff has alleged
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“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While detailed factual allegations are not required, the pleading must include more than an “unadorned, the-defendantunlawfully-harmed-me accusation,” “‘labels and conclusions,’” “‘a formulaic recitation of the elements of a cause of action,’” or “‘naked assertion[s].’” Iqbal, 129 S. Ct. at 1949 (alteration in original) (quoting Twombly, 550 U.S. at 555, 557). Accordingly, the basic principle that a court must accept all allegations as true is inapplicable to either legal conclusions or “mere conclusory statements.” Id. A court can thus begin its analysis of the sufficiency of pleadings by “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
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A.
The plaintiffs’ fourth amended complaint (the “Complaint”) makes the following allegations with respect to the ICE operations at issue in this case. The first four searches were conducted by agents of the DRO.
On February 20, 2007, at 4:30 or 5:00 a.m., the East Hampton residence of plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, and Carson Aguilar, all of whom are United States citizens, was raided by agents of the DRO pursuant to “Operation Return to Sender.” According to the Complaint, eight armed agents pounded on the front door of the home, entered and searched the home without a warrant and without consent, stormed into a bedroom containing a sleeping mother and her child, and detained and interrogated family members while blocking exits. The agents were looking for Adriana Aguilar’s ex-husband, whom she had divorced five years earlier, and who no longer resided in the house. As they were leaving, one of the agents said that they would return. Fourth Amended Class Action Complaint ¶¶ 23, 190-241 (“Compl.”).
Between 4:00 and 5:00 a.m., on the same date and as a part of the same operation, the same team of armed agents raided the East Hampton home of plaintiff Nelly Amaya without requesting or receiving consent to enter and without showing any warrant,
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detained and interrogated residents, and twisted Ms. Amaya’s arm, exacerbating a preexisting injury. Compl. ¶¶ 24-25, 24285.
On March 19, 2007, at about 4:00 a.m., the Mount Kisco home of plaintiffs David Lazaro Perez, William Lazaro, and Tarcis Sapon-Diaz was raided by armed agents of the DRO pursuant to Operation Return to Sender. According to the Complaint, ten armed agents invaded the apartment building, burst into apartments and bedrooms by force, without exigent circumstances, consent or a warrant; caused physical damage throughout the building; and detained and arrested Spanish-speaking residents in a state of undress prior to questioning them. Compl. ¶¶ 29, 307-23.
On April 18, 2007, between 3:00 and 4:30 a.m., the Riverhead house where plaintiffs Mario Pazan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Juan Jose Mijangos lived was raided by agents of the DRO pursuant to “Operation Cross Check.” Eight armed agents forcibly entered the house, without showing any warrant, caused physical damage to the doors and walls during entry, and burst into bedrooms without requesting or receiving consent while residents were in a state of undress. Compl. ¶¶ 27, 286-306.
The following four searches were conducted by agents of the OI. On September 24, 2007, at about 5:45 a.m., the Westbury
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home of plaintiffs Sonia Bonilla, a lawful permanent resident, and Beatriz and Dalia Velasquez, her United States citizen daughters, was raided by agents of the OI pursuant to “Operation Community Shield.” Ten armed agents approached and surrounded the home while Ms. Bonilla was driving her husband to work. They pounded on the front door shouting “Police!” and told Beatriz Velasquez, who was twelve years old, that “someone was dying upstairs” in order to gain entry. When Beatriz opened the door, agents stormed into the house; detained Beatriz and Dalia, her nine-year-old sister, in their bedroom; searched the entire house without requesting or receiving consent, and without showing any warrant; and refused to explain their presence to Ms. Bonilla when she returned home while the raid was still in progress. Compl. ¶¶ 31, 324-42.
On the same date, the Westbury home of plaintiffs Elder Bonilla, a lawful permanent resident, and Diana Rodriguez was raided by agents of the OI pursuant to Operation Community Shield. According to the Complaint, a team of twelve armed agents surrounded the home, pounded on the door, and shouted, “Open the door!” When Mr. Bonilla opened the front door, an agent pointed a gun at his chest. Agents entered and searched the house without requesting or receiving consent, without exigent circumstances and without showing a warrant; entered bedrooms without requesting or receiving consent; handcuffed
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residents prior to any questioning; and caused physical damage to doors and walls. Compl. ¶¶ 33, 343-53.
On September 27, 2007, at approximately 7:30 a.m., the Huntington Station home of plaintiffs Raul Amaya, a United States citizen, and Gloria Vanessa Amaya, a lawful conditional resident, was raided by agents of the OI as a part of Operation Community Shield. According to the Complaint, ten agents invaded the home, searched through the house without requesting or receiving consent from the Spanish-speaking residents, and without a judicial warrant or exigent circumstances. The agents allegedly made allegations and used profanities to intimidate the Amayas, attempted to kick open a basement unit, and conducted a full search of the house. The agents threatened to return. Compl. ¶¶ 35, 354-76.
According to the Complaint, armed agents also invaded the Huntington home of plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez, all of whom are United States citizens, on two occasions, in August 2006 and on September 27, 2007, as part of Operation Community Shield, each time without a judicial warrant or valid consent. Each raid occurred early in the morning. During the first raid, agents pounded loudly on the door, burst into the home without requesting or receiving consent from the residents, who were in their nightclothes, detained the family in the living room and
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basement, and stated that they were searching for someone named “Miguel,” a man unknown to the family. During the second raid, agents looking for the same man surrounded the home, entered by pushing past a seventeen-year-old who opened the door, detained teenagers and adults in a state of undress, and entered the bedroom of a sleeping woman without requesting or receiving consent. Compl. ¶¶ 37-38, 377-418.
The Complaint alleges that none of the plaintiffs in this case was an intended target of a raid, Compl. ¶¶ 238, 284, 305, 322, 341, 352, 375, 417, and indeed that only a small percentage of the individuals arrested pursuant to the operations were targets, Compl. ¶ 463. It alleges that the plaintiffs nonetheless remain extremely fearful that ICE agents will return to their homes, Compl. ¶¶ 23, 25, 27, 29, 31, 38, 39, 351, and that “[b]y engaging in such routine, law-abiding activities as living in their homes, Plaintiffs face the potential threat of future violations to their personal safety, security, freedom, and civil and constitutional rights.” Compl. ¶ 441.
In support of these allegations, the Complaint also alleges that, to determine what residences to target during operations, Fugitive Operation Teams (“FOTs”) “rely on a database that purports to contain relevant information concerning, among other things, the location of fugitive aliens,” but that “[m]uch of the information in this database . . . is outdated, inaccurate
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and incomplete.” Compl. ¶¶ 184-85. The Complaint alleges that a 2007 report by the Inspector General of DHS noted that “the DRO immigration database contained inaccurate and incomplete information on fugitive aliens” and “data exchanged between the DRO and its federal partners have not been reconciled on a regular basis to ensure the identity and background information on the fugitive alien is valid.” Compl. ¶ 189. It also alleges that an investigation by the Inspector General into the intelligence supporting raids in Nassau County in October 2007 found that less than 10 percent of administrative warrants contained accurate intelligence. Compl. ¶ 11.
The Complaint further alleges that “[d]espite accounts that ICE has erroneously targeted numerous Latino homes, including complaints that they have raided the same home more than once without making any arrests and reports that clearly show ICE has used stale intelligence, ICE has never required agents to document or input information into their records or databases noting incidents of failed attempts to find targets.” Compl. ¶ 11. It alleges that, “[a]s a foreseeable result of these lapses . . . Latinos face the risk of being wrongly and repeatedly targeted for raids.” Compl. ¶ 11; see also Compl. ¶¶ 460, 475.
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B.
The plaintiffs do not allege that any of the Supervisory Defendants directly participated in the challenged operations. Rather, they argue that the Supervisory Defendants created the policies governing how ICE agents operated during the raids at the plaintiffs’ homes, and actively endorsed the unconstitutional conduct about which the plaintiffs complain. More specifically, the Complaint makes the following allegations:
Defendant Chertoff, as the Secretary of DHS, was the “ultimate decision maker” for the department and its divisions, including ICE. Compl. ¶¶ 72-73. He “created, approved, and implemented official policies and strategies,” and, in concert with defendant Myers, conceived the Secure Border Initiative (“SBI”), a comprehensive and aggressive immigration enforcement strategy for the United States pursuant to which operations Cross Check, Return to Sender, and Community Shield were conducted. According to the Complaint, “Defendant Chertoff intended to violate constitutional rights by . . . implementing these policies.” Defendant Chertoff was also involved in the planning and investigation of ICE agents’ conduct during raids. Compl. ¶ 73. During his tenure, he also approved an eight-fold increase in the goal for arrests for FOTs.
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According to the Complaint, defendant Chertoff “encouraged, endorsed, and thus intended the unconstitutional conduct by ICE during home raids.” Compl. ¶ 75. This tacit endorsement is allegedly evidenced by his response or lack of response to articles and letters bringing to his attention the unconstitutional nature of the raids. In particular, the plaintiffs point to the following documents as providing such notice: an April 10, 2007 New York Times article detailing a raid on a home in East Hampton; a May 23, 2007 letter from an attorney alleging that his client’s Mt. Kisco home had been entered by ICE agents without a warrant and without consent; an April 27, 2007 San Francisco Chronicle article describing an ICE raid and discussing ICE’s practice of permitting agents to use ruses; an April 28, 2007 article in The Daily Review describing raids in the San Francisco area; a July 23, 2007 New York Times article discussing raids in New Haven, Connecticut; a June 11, 2007 letter from Senators Dodd and Lieberman requesting an explanation of the “illegal” New Haven raids; a September 27, 2007 letter from the Commissioner of Police for Nassau County to the resident agent-in-charge of ICE investigations in Bohemia, New York; an October 2, 2007 letter from Nassau County Executive Thomas Suozzi; and letters from various congressmen during 2008. Compl. ¶¶ 16, 75, 428, 431-32. The June 2007 letter from Senators Dodd and Lieberman noted that eyewitnesses had seen
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agents push their way into homes without consent, and alleged that the operations were carried out in retaliation for a new initiative to issue identification cards to the undocumented community. Compl. Ex. 5. Three days after receiving the letter, defendant Chertoff responded to the senators by means of a letter in which he wrote that “[a]t no time did any ICE FOTs enter a dwelling without consent.” Compl. ¶ 75(b).
Of the materials claimed to have given defendant Chertoff notice of the unconstitutional nature of the operations, only the newspaper articles, attorney letter, and letter from Sen. Dodd and Lieberman are alleged to have been available to defendant Chertoff – or even in existence – prior to any of the operations at issue in this case. See Compl. ¶ 75.
Defendant Myers, as the Assistant Secretary of Homeland Security for ICE, was directly supervised by defendant Chertoff, and directly supervised defendants Torres and Forman. Compl. ¶ 78. She also approved the eight-fold increase in FOT apprehension targets, as well as defendant Torres’s decision that “collateral” (non-fugitive) arrests would count toward achieving that goal. Compl. ¶ 80. According to the Complaint, defendant Myers “condoned and endorsed . . . unconstitutional conduct,” Compl. ¶ 81, and “intended to violate constitutional rights by . . . implementing [ICE] policies,” Compl. ¶ 80. In addition, she “vigorously defended ICE in spite of mounting
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evidence of repeated and systematic unconstitutional conduct,” in violation of a duty to take corrective measures. Compl. ¶ 80. This evidence came in the form of “regular briefings on newspaper articles concerning ICE’s unconstitutional conduct,” Compl. ¶ 81, and access to the September 27 and October 2, 2007 letters that are alleged to have put defendant Chertoff on notice of ICE agents’ unconstitutional conduct, Compl. ¶ 16-19. The Complaint also alleges that defendant Myers “coordinated ICE’s response to the [allegations discussed in the October 2, 2007 letter from Nassau County Executive Thomas Suozzi], and also oversaw a grossly inadequate investigation into internal allegations of racial profiling.” Compl. ¶ 80.
Defendant Torres, as Director of the DRO,1 reported to defendants Chertoff and Myers and was responsible for the apprehension, detention and removal of foreign nationals charged with violations of the immigration law and the supervision of ICE agents assigned to the Detention and Removal field offices, including the New York field office. Compl. ¶ 83. In 2006, defendant Torres created a new goal of 1,000 arrests per year for FOTs, an eight-fold increase from what the benchmark had been two years earlier. Compl. ¶ 84. He also indicated that
1 The DRO is the arm of ICE tasked with apprehending and removing illegal aliens from the United States, especially those who have violated removal orders. Declaration of Darren Williams ¶¶ 4, 6.
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collateral arrests made as part of a headquarters-sponsored operation would count toward that goal, according to the plaintiffs, “knowing and intending that this would lead ICE to design operations to maximize the number of collateral arrests.” Compl. ¶ 84. According to the Complaint, defendant Torres “intended to violate constitutional rights by . . . implementing these policies.” Compl. ¶ 84.
Defendant Torres was the approving official for the operational plans for Return to Sender and Cross Check. Compl. ¶ 86. According to the Complaint, the plans “detailed targets, operational planning and execution, tasks for each group or office involved, coordinating instructions, and logistics.” Compl. ¶ 86. The plans called for operations to be conducted by teams of a dozen agents. Declaration of Donna L. Gordon in Supp. of Pls.’ Opp. to Defs.’ Mot. to Dismiss the Compl. Against Defs. Michael Chertoff, Julie Myers, John Torres, & Marcy Forman (“Gordon Decl.”), Ex. C at 1. They also indicated that operations should commence in the early morning hours and that agents should wear body armor and fully equipped tactical belts. Gordon Decl. Ex. C at 2-4; Gordon Decl. Ex. D at 3-5, 12-13.
Defendant Torres also contributed to ICE’s response to a report by the Inspector General, “An Assessment of [ICE] Fugitive Operations Teams,” which the Complaint alleges was highly critical. Compl. ¶ 87.
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Defendant Forman, as Director of the OI,2 reported to defendants Chertoff and Myers and was responsible for overseeing the investigative arm of ICE and the supervision of agents and officers in New York, Suffolk, Nassau, and Westchester counties. Compl. ¶ 89. She “played a significant role in the planning of the ICE raids in Nassau County in September 2007,” and “was in charge of overseeing training and setting policy regarding ICE agent conduct during home raids.” Compl. ¶ 90. According to the Complaint, defendant Forman “intended to violate constitutional rights . . . by implementing these policies,” Compl. ¶ 90, and failed to take appropriate corrective measures after she was informed of concerns about the constitutionality of ICE agents’ conduct, Compl. ¶ 92.
According to the Complaint, working together, defendants Torres and Forman coordinated the efforts of the DRO and OI, and “issued memoranda creating numerous protocols regarding the coordination of raids, case management, [and] procedures for keeping records.” Compl. ¶¶ 85, 91. They also issued memoranda “stressing the importance of using ruses in operations” and “advocated the use of deception by ICE agents” to gain entry into homes. Compl. ¶¶ 85, 91; Gordon Decl. Ex. E, F, G.
2 The OI is ICE’s division of criminal investigations; it investigates national security threats, financial crimes, human trafficking, narcotics smuggling, child pornography and exploitation, immigration fraud, and other immigration violations. Declaration of Jeffrey Knopf ¶ 3.
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Finally, according to the Complaint, all of the Supervisory Defendants knew of complaints of racial profiling by ICE officers before the operations at issue in this case took place, and “condoned such unconstitutional conduct by dismissing the internal accusations without conducting proper investigations.” Compl. ¶ 12.
C.
A complaint commencing the present action was filed by several of the plaintiffs involved in the early 2007 operations on September 20, 2007. On October 4, 2007, an amended complaint was filed, adding the plaintiffs whose homes were searched in September 2007. An equal protection claim was added in a third amended complaint filed on March 6, 2009. The plaintiffs were granted leave to file the fourth amended complaint, which is the subject of the present motions, in December 2009. On December 21, 2009, they filed the Complaint, which added ten additional defendants, including defendants Chertoff, Myers, Torres, and Forman.
By request of the plaintiffs, the time for discovery in the case was enlarged on at least four occasions. Fifth Am. Scheduling Order, Aguilar v. ICE, No. 07 Civ. 8224 (S.D.N.Y. Dec. 3, 2010). The defendants represent that, as of the time
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the fourth amended complaint was filed, the defendants had produced more than 40,000 pages of documents, including all relevant policies and approximately 12,000 pages of training materials; and that the plaintiffs had taken 31 defendant depositions and 10 third-party depositions. Mem. of L. in Supp. of Mot. to Dismiss the Compl. Against Defs. Michael Chertoff, Julie Myers, John Torrest, & Marcy Forman at 13. Discovery is now closed.
II.
The Complaint alleges that the searches described above were conducted in a manner that violated the Fourth and Fifth Amendments to the United States Constitution.
The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Administrative searches such as the ones at issue in this case are subject to the warrant requirement of the Fourth Amendment. Michigan v. Clifford, 464 U.S. 287, 291 (1984). All parties agree that the operations did
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not occur pursuant to a warrant, and that they were only valid if they were conducted with the consent of the residents. See, e.g., Clifford, 464 U.S. 291, 295; Camara v. Mun. Ct. of S.F., 387 U.S. 523, 540 (1967).
For a warrantless search justified upon consent to be valid, the consent must be “‘freely and voluntarily given.’” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)); United States v. Snype, 441 F.3d 119, 130-31 (2d Cir. 2006). Whether a consent to a search “was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227. A consent coerced by threats or force, or granted only in submission to a claim of lawful authority, is not valid. Id. at 233. The plaintiffs contend that their homes were searched without their consent, and moreover that the operations were conducted under coercive circumstances that would have rendered any purported consent involuntary.
The plaintiffs also assert claims under the Due Process Clause of the Fifth Amendment, which “contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.” Washington v. Davis, 426 U.S. 229, 239 (1976); Bolling v.
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Sharpe, 347 U.S. 497, 499 (1954). The plaintiffs claim, among other things, that they were subjected to discriminatory treatment because their residences were identified and targeted for ICE operations because Latinos were believed to reside in them.
The plaintiffs’ claims against the Supervisory Defendants arise under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Iqbal, 129 S. Ct. at 1947-48 (internal quotation marks omitted). The plaintiffs argue that the Supervisory Defendants are liable for creating or permitting a policy or custom under which unconstitutional practices flourished, and for failing to intervene to prevent violations of the Constitution, even after they were put on notice that such violations were occurring.3
The Supervisory Defendants have moved to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. They argue that (1) after Iqbal, “knowledge and acquiescence,” “failure to train,” and similar theories of supervisory liability are not available
3 The plaintiffs do not assert injunctive relief claims against the Supervisory Defendants. Pls.’ Mem. of L. in Opp. to Defs. Chertoff, Myers, Torres & Forman’s Mot. to Dismiss (“Mem. Opp.”) at 9 n.7.
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in the Bivens context, and (2) even under such theories of liability, the plaintiffs have failed to allege a facially plausible claim against the Supervisory Defendants.
A.
Iqbal arose out of the federal government’s response to the Septebmer 11, 2001 terrorist attacks. Iqbal, a Pakastani Muslim, was arrested on criminal charges and detained under restrictive conditions. He brought suit under Bivens against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation. Iqbal alleged that the defendants had designated him a person of “high interest” based on his race, religion, or national origin, in violation of the First and Fifth Amendments; that the defendants knew of, condoned, and willfully and maliciously agreed to subject him to harsh conditions of confinement as a matter of policy, solely on account of discriminatory factors and for no legitimate penological purpose; and that defendant Ashcroft was the policy’s “principal architect” and defendant Mueller was “instrumental” in its adoption and execution.
The Supreme Court found that Iqbal had failed to plead sufficient facts to state a claim for purposeful and unlawful
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discrimination. Iqbal, 129 S. Ct. at 1947-1954. It began by
noting that suits under Bivens are the federal analog of section
1983 suits against state officials, and that as such, government
officials sued under Bivens “may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Id. at 1948. Instead, a plaintiff must
plead that each government-official defendant, through his or
her own actions, has violated the Constitution. Id.
The Court continued:
The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, . . . the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Under extant precedent purposeful discrimination requires more than “intent as volition or intent as awareness of consequences.” It instead involves a decisionmaker’s undertaking a course of action “because of,” not merely “in spite of,” the actions’ adverse effects upon an indentifiable group. It follows that . . . respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.
Respondent disagrees. He arg ues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held
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accountable for the misdeeds of their agents. In a section 1983 suit or a Bivens action – where masters do not answer for the torts of their servants – the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is liable only for his or her own misconduct. . . . [P]urpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.
Id. at 1948-49 (citations and alterations omitted).
It is thus clear that, in order to assert a claim under the
equal protection component of the Fifth Amendment, a plaintiff
must assert that the defendant intended to discriminate against
the plaintiff because of a prohibited classification. What is
less clear is what a plaintiff must assert in order to plead a
claim against a supervisory defendant for the violation of a
different constitutional provision.
Long prior to Iqbal, in Colon v. Coughlin, 58 F.3d 865 (2d
Cir. 1995), the Second Circuit Court of Appeals held that:
[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.
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Id. at 873. The Court of Appeals has not yet definitively decided which
of the Colon factors remains a basis for establishing supervisory liability in the wake of Iqbal, and no clear consensus has emerged among the district courts within the circuit. But see Rolon v. Ward, 345 Fed. Appx. 608, 611 (2d Cir. 2009) (“A supervisory official personally participates in challenged conduct not only by direct participation, but by (1) failing to take corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent supervision, or deliberate indifference to the rights of others.”). Several district court decisions have concluded that by rejecting the argument that “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution,” Iqbal, 129 S. Ct. 1949, Iqbal nullified several of the Colon factors. See, e.g., Bellamy v. Mount Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939 at *4 (S.D.N.Y. June 26, 2009) (“Only the first and part of the third Colon categories pass Iqbal’s muster – a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred.”). Other courts, however, have questioned whether Iqbal changed the
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standard of supervisory liability outside of the equal
protection context. As described by the court in Sash v. United
States, 674 F. Supp. 2d 531 (S.D.N.Y. 2009), the line of
decisions that concludes little of Colon survived Iqbal:
may overstate Iqbal ’s impact on supervisory liability. Iqbal involved alleged intentional discrimination. The Supreme Court specifically held that “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Where the alleged constitutional violation involved “invidious discrimination in contravention of the First and Fifth Amendments, Iqbal held that “plaintiff must plead and prove that the defendant acted with discriminatory purpose,” whether the defendant is a subordinate or a supervisor. . . . Where the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth and Eighth Amendments, the personal involvement analysis set forth in Colon v. Coughlin may still apply.
Id. at 544 (citations omitted). See also Diaz-Bernal v. Myers,
758 F. Supp. 2d 106, 129, 130 (D. Conn. 2010) (applying all
Colon factors to claims against defendants Torres and Myers,
while noting disagreement among courts as to whether they have
survived Iqbal). This uncertainty is echoed in the decisions of
the courts of appeals for other circuits. See, e.g., Argueta v.
U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70 (3d Cir.
2011); Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir.
2010); Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010).
For the purpose of deciding this motion, however, it is not
necessary for the Court to determine the standard for
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supervisory liability for violations of the Fourth Amendment after Iqbal. That is because there is no controversy that allegations that do not satisfy any of the Colon prongs are insufficient to state a claim against a defendant-supervisor. That is the case with respect to defendants Chertoff and Myers. On the other hand, as the district courts that have considered the issue agree, and the Second Circuit Court of Appeals has confirmed in dicta, regardless of the precise contours of supervisors’ liability, the plaintiffs have met the applicable standard if they adequately allege that a supervisory defendant created a policy or custom pursuant to which unconstitutional practices occurred. See, e.g., Bellamy, 2009 WL 1835939 at *4; Scott v. Fischer, 616 F.3d 100, 108-09 (2d Cir. 2010) (noting, in dicta, that “[a] supervisory official may be liable [under section 1983 not only] because he or she created a policy or custom under which unconstitutional practices occurred, [but also because he or she] allowed such a policy or custom to continue” (internal quotation marks and citation omitted)). The plaintiffs have met this burden with respect to defendants Torres and Forman.4
B.
4 The defendants conceded that they could be held liable for a violation of the Fourth Amendment under Bivens if they created a custom or policy that caused the unconstitutional practices. Hr’g Tr. 5:1-9, 9:2-7, Mar. 8, 2011.
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The Court begins by “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” Iqbal, 129 S. Ct. at 1950, and disregarding pleadings that constitute no more than “unadorned, the-defendant-unlawfully-harmed-me accusation[s],” “‘labels and conclusions,’” “‘formulaic recitation[s] of the elements of a cause of action,’” or “‘naked assertion[s].’” Id. at 1949 (final alteration in original) (quoting Twombly, 550 U.S. at 555, 557).
In support of their Fourth Amendment claims against defendants Chertoff and Myers, the plaintiffs make a number of allegations that are either conclusory or unsupportably vague. They allege that defendant Chertoff was the “ultimate decision maker” for the Department of Homeland Security (“DHS”), including ICE; that he “created, approved, and implemented official policies and strategies,” including the Secure Border Initiative, the comprehensive immigration policy for the United States; and that as the Secretary of DHS, he was “involved in the planning and/or investigation of ICE agents’ conduct during raids.” Compl. ¶ 73. They allege, moreover, that both defendants Chertoff and Myers “intended to violate constitutional rights by . . . implementing [ICE] policies,” Compl. ¶¶ 73, 80, and “encouraged, endorsed, and thus intended
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the unconstitutional conduct by ICE during home raids,” Compl. ¶¶ 75, 80, 81. These allegations are similar to the conclusory allegations found insufficient in Iqbal, and under Iqbal, they are not entitled to any weight.
The plaintiffs do allege, with greater specificity, that defendants Chertoff and Myers were notified of unconstitutional conduct by ICE agents and failed to intervene to prevent further unconstitutional acts, in derogation of a duty to do so. Specifically, the plaintiffs allege that defendant Chertoff was put on notice of unconstitutional practices by several articles in national publications in the spring and summer of 2007; the May 23, 2007 letter from the attorney of a man whose home had been raided by ICE agents; the June 11, 2007 letter from Senators Dodd and Lieberman; the September 27, 2007 letter from the Nassau County police commissioner; the October 2, 2007 letter from Nassau County Executive Thomas Suozzi; and letters from various congressmen during 2008. Compl. ¶¶ 16, 75, 428, 431-32. As noted above, however, many of these materials were not in existence at the time the events at issue in this case occurred, and thus could not have placed defendant Chertoff on notice of agents’ allegedly unconstitutional conduct. Indeed, the only materials to which defendant Chertoff could have had access are the newspaper articles, the May 23 letter, and the
27

June 11 letter. Moreover, both letters post-date the raids on four of the eight residences at issue in this case.
The plaintiffs’ allegations with respect to defendant Myers are even more scant: They allege merely that she received “regular briefings on newspaper articles concerning ICE’s unconstitutional conduct,” Compl. ¶ 81, and that she had access to certain materials that post-dated the raids at issue, Compl. ¶¶ 19, 80, 181.
Under the circumstances, such allegations are not sufficient to “nudge[]” plaintiffs’ claims against defendants Chertoff and Myers “‘across the line from conceivable to plausible.’” Iqbal, 129 S. Ct. 1951 (citing Twombly, 550 U.S. at 570). At best, they suggest that the defendants, officials at the highest level of government in charge of overseeing a bureaucracy of tens of thousands of people, had access to information indicating that a handful of field agents in disparate locations around the country had engaged in constitutionally infirm practices. Accepted as true, this allegation is insufficient to establish that defendants Chertoff and Myers knew of and failed to intervene to prevent a widespread pattern of constitutional violations. The plaintiffs’ claims against defendants Chertoff and Myers thus fall into the category, discussed in Iqbal, “where the wellpleaded facts do not permit the court to infer more than the
28

mere possibility of misconduct,” and thus must be dismissed.
Iqbal, 129 S. Ct. at 1950.
This conclusion with respect to defendants Chertoff and
Myers is in accordance with the recent decision of the Third
Circuit Court of Appeals in Argueta v. U.S. Immigration &
Customs Enforcement, 643 F.3d 60 (3d Cir. 2011). The court in
that case dismissed nearly identical allegations, levied against
defendants Myers and Torres,5 partly on the ground that the
plaintiffs had failed to allege sufficiently that the defendants
had notice of the allegedly unconstitutional acts of their
charges. The court wrote:
Plaintiffs did reference an impressive amount of documentation that allegedly provided notice to Appellants of their subordinates’ unconstitutional conduct. However, these alleged sources of notice were fatally flawed in one way or another. Broadly
5 Argueta reached a different conclusion as to the potential liability of defendant Torres than does this Court. It found that the plaintiffs had pleaded insufficient facts to state a claim for supervisory liability under the Fourth Amendment against defendant Torres, and accordingly dismissed the claim against him. Argueta, 643 F.3d at 74-75. The facts alleged in that case, however, differ in critical respects from the facts alleged in this one. Most notably, the complaint in Argueta did not allege that defendant Torres was directly involved in the alleged Fourth Amendment violations by virtue of having authored detailed operational plans. Rather, the plaintiffs in Argueta alleged principally that defendant Torres knew of and acquiesced in constitutional violations, because he was on notice that they were occurring, and that he had “direct responsibility for the execution of fugitive operations.” Id. at 66. The allegations against defendant Torres that the Argueta court considered were thus similar in kind to those alleged against defendants Chertoff and Myers, and dissimilar from those alleged against defendant Torres, in this case.
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speaking, we must point out the typical “notice” case seems to involve a prior incident or incidents of misconduct by a specific employee or group of employees, specific notice of such misconduct to their superiors, and then continued instances of misconduct by the same employee or employees. The typical case accordingly does not involve a “knowledge and acquiescence” claim premised, for instance, on reports of subordinate misconduct in one state followed by misconduct by totally different subordinates in a completely different state. Alt hough there were some New Jersey-specific allegations in the Second Amended Complaint, we are generally confronted here with an attack on the alleged misconduct of numerous ICE agents at different raids execut ed across the country over a period of years. As Appellants further point out, the court cases specifically cited in Plaintiffs’ pleading either did not involve individual capacity claims against Myers and Torres, were filed after at least some of the New Jersey raids specifically alleged in the Second Amended Complaint took place, or did not even involve Operation Return to Sender. All of these cases were also filed outside of New Jersey, and certain other alleged sources of notice implicated raids that took place in other states, especially in New Haven, Connecticut. Likewise, some alleged sources . . . post-dated most of the specific New Jersey raids that allegedly harmed Plaintiffs themselves. In the end, we conclude that Plaintiffs did not plausibly allege that the Appellants had legally sufficient notice of the underlying unconstitutional conduct of their subordinates.
Id. at 74-75.6
6 The Court notes also that this decision conflicts to some extent with the recent decision of the United States District Court for the District of Connecticut in Diaz-Bernal, 758 F. Supp. 2d 106. In denying the motion to dismiss the complaint against defendant Myers in that case, the court relied in part on allegations not present in the Complaint, such as that the defendant had been placed on notice of ongoing constitutional violations by the filing of related lawsuits. Id. at 130. However, the court also relied in part on Myers’ involvement in the creation of the plan increasing FOT arrest targets. Id. To the extent the court’s opinion implied that the creation of such
30

Because the plaintiffs have failed to plead adequately that defendants Chertoff and Myers knew of and acquiesced in the unconstitutional conduct of their subordinates, or any other possible basis for liability, the motion to dismiss the Fourth Amendment claims as to those defendants is granted. Because the plaintiffs have been given four opportunities to craft a complaint and have nonetheless failed adequately to allege such claims, this dismissal is with prejudice.
C.
The plaintiffs’ allegations with respect to defendants Torres and Forman, however, are of a different character. With respect to defendant Torres, the plaintiffs allege, among other things: that he increased the apprehension target for FOTs to 1,000 per year, an eight-fold increase over prior targets, and eliminated a restriction that only 25 percent of arrests toward this goal could be “collateral” (non-fugitive) arrests, “knowing and intending that this would lead ICE to design operations to
a neutral plan with a valid law enforcement purpose was sufficient to establish the defendant’s personal involvement in subsequent constitutional violations, the Court respectfully disagrees. Accord Argueta, 643 F.3d at 75 (“[A] federal official specifically charged with enforcing federal immigration law appears to be acting lawfully when he or she increases arrest goals, [or] praises a particular enforcement program as a success.”).
31

maximize the number of collateral arrests,” Compl. ¶ 84, and that he approved the operational plans for operations Return to Sender and Cross Check, which “detailed targets, operational planning and execution, tasks for each group or office involved, coordinating instructions, and logistics,” and personally “authored and disseminated a specific memorandum that provided objectives, target priorities, and reporting requirements for Operation Cross Check,” Compl. ¶ 86. Similarly, the plaintiffs allege that defendant Forman “played a significant role in the planning of the ICE raids in Nassau County in September 2007.” Compl. ¶ 90. The Complaint charges that, working together, defendants Torres and Forman issued memoranda “creating numerous protocols regarding the coordination of raids, case management, [and] procedures for keeping records,” and “stressing the importance of using ruses in operations,” including “advocat[ing] the use of deception by ICE agents” to gain entry into homes. Compl. ¶¶ 85, 91.
In deciding the motion to dismiss, “the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs’ possession or the plaintiffs knew of when bringing suit, or matters of which judicial notice may be taken.” In re Loral Space & Commc’ns Ltd. Sec. Litig., No. 01 Civ. 4388, 2004 WL 376442, at *2 (S.D.N.Y. Feb. 27, 2004)
32

(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). These documents include the operational plans for operations Return to Sender and Cross Check and memoranda from defendants Torres and Forman to all field office directors regarding ICE agents’ use of ruses. See Gordon Decl. Ex. C-G.
These documents indicate that, pursuant to guidance created or approved by Torres and Forman, agents conducted raids at residences in teams of a dozen agents, with body armor and tactical equipment, in the early morning hours. Gordon Decl. Ex. C at 1, 3-4; Gordon Decl. Ex. D at 3-5, 12-13. They were instructed on using ruses to gain entry into a home, without being contemporaneously advised that the use of such ruses might undermine a claim of valid consent. See Gordon Decl. Ex. E, F, G. Indeed, Courts have noted that each of these practices tends to undermine voluntary, duress-free consent, rendering it more likely that a search purportedly based on consent, like the ones at issue here, has been conducted in an unconstitutional manner. See, e.g., United States v. Mendenhall, 446 U.S. 544, 554 (1980) (noting that the “threatening presence of several officers” is a hallmark of a non-consensual encounter); Kaupp v. Texas, 538 U.S. 626, 631-32 (2003) (finding that search in the “middle of the night” was non-consensual); Hoffa v. United States, 385 U.S. 293, 301 (1966) (“The Fourth Amendment can certainly be violated by guileful as well as by forcible intrusions into a
33

constitutionally protected area.”); United States v. MontesReyes, 547 F. Supp. 2d 281, 288-290 & n.7, n.10 (S.D.N.Y. 2008) (use of a ruse to gain entry can render consent involuntary under the totality of the circumstances); Djonbalic v. City of New York, No. 99 Civ. 11398, 2000 WL 1146631, at *10 (S.D.N.Y. Aug. 14, 2000). Under all of the circumstances, the conditions under which the raids were conducted, in accordance with the operational plans and memos, could plausibly be found to have undermined the voluntariness and validity of any consent given.
These allegations are sufficient to state a claim against defendants Torres and Forman under the Fourth Amendment and Bivens, because they constitute an allegation that the defendants personally created a policy pursuant to which unconstitutional practices occurred. See Colon, 58 F.3d at 873; Bellamy, 2009 WL 1835939 at *4. The motion to dismiss the plaintiffs’ Fourth Amendment claim against defendants Torres and Forman is therefore denied.
D.
The Supervisory Defendants have also moved to dismiss the Bivens claims against them that arise under the Fifth Amendment.
In order to plead a Fifth Amendment claim for discrimination, a plaintiff must allege facts showing one of
34

three things: (1) that a law or policy is discriminatory on its face, Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); (2) that a facially neutral law or policy has been applied in an intentionally discriminatory manner, Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000); or (3) that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus,” id. The plaintiffs do not allege that any of the policies at issue “expressly classifies persons on the basis of race.” See Hayden, 180 F.3d at 48. Accordingly, they are required to plead either that the defendants applied a facially neutral immigration enforcement strategy “in an intentionally discriminatory manner” or that their method of enforcing the immigration laws “has an adverse effect” on Latinos and “was motivated by discriminatory animus.” Brown, 221 F.3d at 337.
In either case, under Iqbal, the plaintiffs are required to plead that an individual defendant against whom relief is sought “acted with discriminatory purpose.” Iqbal, 129 S. Ct. at 1948. That requires the plaintiffs to plead “sufficient factual matter to show that [the defendants] adopted and implemented” the challenged policies “not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.” Id. at 1948-49. The plaintiffs have
35

wholly failed to do so with respect to any of the four Supervisory Defendants.
In considering the sufficiency of the Complaint, the Court must first disregard all “bare assertions.” Iqbal, 129 S. Ct. at 1951. In Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010), the Court of Appeals considered what assertions qualify as “bare” in the equal protection context. The plaintiffs alleged that felon disenfranchisement violated the Fifth Amendment because it was designed to “deprive minorities of the right to vote” and that New York election laws were enacted “with the intent to disenfranchise Blacks.” Id. at 161-62. The court disregarded these allegations, explaining that the plaintiffs’ claims that the defendants intended to discriminate against them, without factual support, amounted to “nothing more than a formulaic recitation of the elements of a constitutional discrimination claim.” Id. at 162 (quoting Iqbal, 129 S. Ct. at 1951).
The plaintiffs in this case make similar allegations. They allege that defendants Chertoff and Myers “intended to violate constitutional rights” by creating and announcing the SBI, Compl. ¶¶ 73, 79; that defendant Torres “intended to violate constitutional rights” when he increased the arrest goal for FOTs, Compl. ¶ 84; and that defendant Forman “intended to violate constitutional rights” while “overseeing training and
36

setting policy regarding ICE agent conduct,” Compl. ¶ 90. They also allege, “upon information and belief,” that the Supervisory Defendants “condoned . . . unconstitutional conduct by dismissing . . . internal accusations without conducting proper investigations.” Compl. ¶ 12. These bare assertions are entitled to no weight.
The Court must next consider whether the remaining factual allegations plausibly plead intentional discrimination by the Supervisory Defendants. See Iqbal, 129 S. Ct. at 1950. The plaintiffs allege that the eight-fold increase in FOT arrest goals “clearly demonstrated an intent and purpose to target Latino individuals.” Compl. ¶ 8. However, at the same time that apprehension goals were increased by 800 percent, funding for the program increased by 2300 percent, and personnel increased by 1300 percent. See Compl. Ex. 1 at 1; Compl. Ex. 16 at 6. While it might theoretically be possible that the increase in apprehension goals was driven by the defendants’ discriminatory animus toward Latinos, the far more plausible inference is that the goals arose from the agency’s renewed emphasis on immigration enforcement in the wake of the September 11, 2001 terrorist attacks.
The plaintiffs also allege that the Supervisory Defendants knew of complaints of racial profiling by ICE officers before the operations at issue took place, and “condoned such
37

unconstitutional conduct by dismissing the internal accusations without conducting proper investigations.” Compl. ¶ 12. Specifically, they allege that “deposition testimony from a local law enforcement agency” reveals that ICE agents used terms such as “wetback” to refer to Latinos on multiple occasions, and that, during a particular operation that predated the raids at issue, only two of four businesses targeted for raids “were known gang hangouts – the other two were merely establishments frequented by Latinos.” Compl. ¶ 12. These allegations are insufficient because, even if taken as true, they do not raise a plausible inference that the Supervisory Defendants intentionally discriminated against Latinos. Inaction or indifference in response to isolated reports of misbehavior by field agents is not sufficient to show that a supervisor knew of and tacitly condoned that conduct for a discriminatory purpose. See, e.g., Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (noting that a “single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice” to show a policy that violates equal protection).7
7 In Argueta, the District Court also found that Iqbal required the dismissal of the equal protection claim against the defendants because the plaintiffs conceded that there was no direct evidence of any purposeful discrimination. Argueta, 643 F.3d at 69. This dismissal was not appealed. Id. at 71-72.
38

The plaintiffs have failed to plead facts that plausibly suggest that the Supervisory Defendants intended to discriminate against Latinos. Accordingly, the motion to dismiss the Fifth Amendment claims against those defendants is granted. As with the Fourth Amendment claims against defendants Chertoff and Myers, the dismissal is with prejudice.
III.
The plaintiffs seek equitable relief in the form of an order permanently enjoining ICE and the other defendants from: (1) “[d]eploying groups of armed agents to descend upon the homes of Latinos in the pre-dawn hours with the intent to” enter or search such homes, or seize or search Latino individuals, without warrants or valid consent; (2) “[u]nlawfully identifying and targeting locations based on the belief that Latino individuals are known to live in or frequent such locations”; (3) “[d]esigning raids with the intent to detain, interrogate and seize Latinos based on their race, national origin or ethnicity”; (4) “[c]onducting raids without performing adequate pre-raid investigations of the targets and/or locations of such raids”; (5) “[c]onducting raids without providing effective and/or adequate training for the agents carrying out such raids”; or (6) “[t]eaching, training, condoning, or encouraging
39

law enforcement officers to target, enter or search homes or detain, seize or interrogate individuals in the manner described above.” Compl. at 135-37 (prayer for relief).
They also seek an order compelling ICE and the other defendants to: (1) “[i]mplement and ensure compliance with policies that require law enforcement agents to accurately record the consent they receive to enter homes that are targeted as part of ICE initiatives”; (2) “[i]mplement, maintain and update internal ICE databases to ensure that ICE agents do not (i) raid locations unnecessarily and unjustifiably, and/or (ii) repeatedly raid locations unnecessarily and unjustifiably”; (3) “[d]esign and maintain adequate training courses for ICE agents involved in ICE initiatives involving home raids”; and (4) “[i]mplement corrective measures to prevent any policies, patterns and practices that teach, train, condone or encourage law enforcement officers to act in the constitutionally deficient manner” described in the Complaint. Compl. 137-38 (prayer for relief).
The defendants have moved to dismiss the plaintiffs’ claims for injunctive relief under Federal Rule of Civil Procedure 12(b)(1), for lack of standing, and in the alternative for judgment on the pleadings, under Federal Rule of Civil Procedure 12(c).
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A.
In defending against a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of proving the Court’s jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff’s favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek (Persero), 600 F.3d 171, 175 (2d Cir. 2010); APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In so doing, the Court is guided by the body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011;
41

see also Leyse v. Bank of Am., N.A., No. 09 Civ. 7654, 2010 WL 2382400, at *1 (S.D.N.Y. June 14, 2010).
Once a defendant’s Rule 12(b)(1) motion puts a plaintiff’s Article III standing in issue, the Court has leeway as to the procedure it wishes to follow to determine the issue of standing. Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates, Co., 436 F.3d 82, 87-88 (2d Cir. 2006) (citing Gibbs v. Buck, 307 U.S. 66, 71-72 (1939) (“As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court.”)). “After limited discovery on the jurisdictional issue, the matter might be appropriate for resolution on motion supported by affidavits, or, if a genuine dispute of material fact exists, the Court may conduct a hearing limited to Article III standing.” Id. at 88 (internal citations omitted). Where, however, the evidence concerning standing overlaps with evidence on the merits, the Court has the discretion to proceed to trial and make its jurisdictional ruling at the close of evidence. Id. (citing Land v. Dollar, 330 U.S. 731, 739 (1947) (“[T]he District Court has jurisdiction to determine its jurisdiction by proceeding to a decision on the merits.”)). Moreover, if “the overlap in the evidence is such that fact-finding on the jurisdictional issue will adjudicate factual issues required by the Seventh Amendment
42

to be resolved by a jury, then the Court must leave the jurisdictional issue for the trial.” Id.
In this case, as discussed further below, the issues relevant to the question of the plaintiffs’ standing to seek an injunction overlap substantially with those relevant to their entitlement to an injunction on the merits. Moreover, certain factual determinations bearing on the plaintiffs’ standing to seek an injunction – such as the existence of a widespread practice of conducting raids in a manner violative of the plaintiffs’ Fourth and Fifth Amendment rights – would appear to overlap substantially with questions for the jury that are raised by the plaintiffs’ Bivens claims for damages against the individual defendants.
Accordingly, a decision as to whether the plaintiffs have established their standing to seek injunctive relief by a preponderance of the evidence would be premature. The Court will, however, look to the pleadings to determine whether the plaintiffs have alleged sufficient facts that would suffice to establish their standing to seek injunctive relief.
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B.
The defendants have moved to dismiss the claims for injunctive relief on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.8 For the plaintiffs to allege sufficient claims for injunctive relief, they must allege both that they have standing to bring those claims and that they have asserted the necessary elements for a claim of injunctive relief, particularly irreparable harm.
The standards to be applied to a motion pursuant to Federal Rule of Civil Procedure 12(c) are the same as those applied to a motion to dismiss pursuant to Rule 12(b)(6). See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). “Thus, [a court] will accept all factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiffs’] favor. To survive a Rule 12(c) motion, [the] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). In deciding such a motion, the Court may consider documents that
8 The defendants other than the Supervisory Defendants have answered the Complaint, and there are no claims for injunctive relief asserted against the Supervisory Defendants. Accordingly, the motion is properly classified as one under Federal Rule of Civil Procedure 12(c), for judgment on the pleadings, and not under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim.
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are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that either are in the plaintiffs’ possession or were known to the plaintiffs when they brought suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Woodhams v.Allstate Fire & Cas. Co., 748 F. Supp. 2d 211, 215 (S.D.N.Y. 2010).
1.
“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Plaintiffs must demonstrate that they have a “personal stake in the outcome”; abstract injury is not enough. Id. (citing Baker v. Carr, 369 U.S. 186 (1962)). “[A] plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted).
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The seminal case concerning standing to seek injunctive relief is the Supreme Court’s decision in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). See Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004). In Lyons, the plaintiff alleged that he had been stopped for a traffic violation, and that without justification or provocation, Los Angeles police officers applied a “chokehold,” injuring him and rendering him unconscious. See Lyons, 461 U.S. at 97-98. In addition to damages, Lyons sought an injunction barring the police department’s use of control chokeholds, which had killed 16 people in Los Angeles between 1975 and 1980. See id. at 115-16 (Marshall, J., dissenting). The district court entered a preliminary injunction consistent with the permanent injunction sought, and the court of appeals affirmed. Id. at 99.
The Supreme Court analogized Lyons’ case to those of the plaintiffs in two of its prior decisions, O’Shea v. Littleton, 414 U.S. 488 (1974), and Ashcroft v. Mattis, 431 U.S. 171 (1977) (per curiam). In O’Shea, the Court had addressed a suit by plaintiffs who claimed that they had been subjected to judicial discriminatory enforcement, by a county magistrate and judge, of criminal laws that the plaintiffs did not contend were invalid. The Court held that the likelihood of future harm was too remote to establish standing because “[t]he most that could be said for plaintiffs’ standing was ‘that if [plaintiffs] proceed to
46

violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before [the magistrate or judge], they will be subjected to the discriminatory practices that petitioners are alleged to have followed.’” Lyons, 461 U.S. at 102-03 (quoting O’Shea, 414 U.S. at 497) (emphasis in original).
In Mattis, the father of a boy who had been killed by the police sought a declaration that a Missouri statute authorizing police officers to use deadly force in apprehending felons was unconstitutional. The Court found it insufficient, for standing purposes, that the plaintiff had “alleged that he had another son, who ‘if ever arrested or brought under an attempt at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants or other police officers.’” Lyons, 461 U.S. at 104-05 (quoting Mattis, 431 U.S. at 172-73, n.2) (emphasis in original).
The Court found Lyons’ injury similarly speculative. It reasoned that the fact that Lyons might have been illegally choked in the past, “while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would
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illegally choke him into unconsciousness without any provocation or resistance on his part.” Id. at 105. In order to establish the requisite likelihood of future harm, the Court thus found that under the circumstances, “Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such a manner.” Id. at 105-06 (emphasis in original). Because Lyons had failed to do so, the Court reasoned, he had not shown that he was “realistically threatened by a repetition of his experience.” Id. at 109.
The Second Circuit Court of Appeals has applied Lyons in several cases involving requests for injunctive relief. In Curtis v. City of New Haven, 726 F.2d 65 (2d Cir. 1984), the plaintiffs sued the City of New Haven and named police officers for damages and injunctive relief arising from the officers’ negligent use of mace. Curtis, 726 F.2d at 65-66. Following separate trials on the damages claims, and a combined trial on the claim for an injunction, the district court issued an injunction prohibiting the use of mace except under
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circumstances set forth in international guidelines. See id. at 66.
The court of appeals reversed, holding that, under Lyons, the plaintiffs had failed to establish standing to seek injunctive relief. Id. at 69. The court reasoned that “[p]laintiffs do not make, in the words of the [Supreme] Court, the ‘incredible assertion’ that all City police officers always assault people they encounter with mace, or that the City authorizes its police officers to act in such a manner.” Id. at 68 (quoting Lyons, 461 U.S. at 106) (emphasis in original). The court noted that, in fact, because the police department’s policy did not authorize officers to use mace offensively, the officers “appear to have violated” the policy. Id. The court further noted that the plaintiffs “have not alleged that it is likely that they will be stopped by City police in the future and, for no reason and without provocation, assaulted with mace and not given treatment afterward.” Id. Accordingly, as in Lyons, the court concluded that the plaintiffs had failed to show that they were “realistically threatened by a repetition of [their] experience.” Id. at 67.
Conversely, in DeShawn E. v. Safir, 156 F.3d 340 (2d Cir. 1998), the Court of Appeals concluded that Lyons did not preclude the plaintiffs from seeking equitable relief against the New York City Police Department (“NYPD”). Under New York
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law, after a juvenile was arrested, he could be released and issued an “appearance ticket” that directed him to return to family court for a preliminary conference with probation services to determine whether delinquency proceedings should be initiated. Id. at 342-43. In 1995, the NYPD’s Family Court Detective Squad began interrogating juveniles, often in the absence of counsel, when they returned for these conferences. Id. at 343. The two named plaintiffs claimed that the Squad had unconstitutionally coerced involuntary statements, elicited involuntary waivers of Miranda rights, and questioned juveniles without counsel present. Id. at 342-44. A class of juveniles who had been interrogated by the Squad was certified, and sought declaratory and injunctive relief. Id. The district court denied a motion by the plaintiffs for a preliminary injunction, and granted the defendants’ motion for summary judgment. Id. at 344.
The Court of Appeals found that the plaintiffs and their parents had standing to seek injunctive relief. The Court of Appeals distinguished Lyons (and Curtis):
[I]n Lyons, there was no proof of a pattern of illegality as the police had discretion to decide if they were going to apply a choke hold and there was no formal policy which sanctioned the application of the choke hold. In contrast, the challenged interrogation methods in this case are officially endorsed policies; there is a likelihood of recurring injury because the Squad’s activities are authorized by a written memorandum of understanding between the Corporation
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Counsel and the Police Commissioner. In addition, plaintiffs’ complaint alleges that the New York Police Department “has plans to and is in the process of instituting Detective Squads in the Family Court buildings in the Bronx, Brooklyn, and Queens.” Thus, unlike Lyons, “the City ordered or authorized [the Squad] to act in such a manner,” and plaintiffs have standing to seek injunctive relief. Id. at 344-45 (citations omitted) (second alteration in original). The court also emphasized that “[u]nlike Lyons, the plaintiffs in this case allege that they, as a certified class, are likely to suffer future interrogations by the Squad.” Id. at 344. The Court of Appeals cited with approval a case from the Court of Appeals for the Ninth Circuit that had found that “[t]he possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.” Nicacio v. INS, 768 F.2d 1133, 1136 (9th Cir. 1985), amended, 797 F.2d 700, 702 (9th Cir. 1985) (cited in DeShawn, 156 F.3d at 344). Finally, the Court of Appeals applied Lyons to deny a claim for injunctive relief in Shain, 356 F.3d 211. There, the plaintiff was arrested by Nassau County police after his thenwife reported that he had threatened violence during a domestic dispute. He was arraigned in court on misdemeanor charges and remanded to the Nassau County Correctional Center (“NCCC”). Upon his arrival, and again prior to an appearance the next day, the plaintiff was subjected to a strip/visual cavity search pursuant to an NCCC policy that “required all admittees to be
51

stripped and searched regardless of the severity of the charge or whether the admittee was suspected of concealing a weapon or contraband.” Id. at 213. The plaintiff sued the county, alleging that the policy violated the Fourth Amendment, and sought, among other relief, a permanent injunction prohibiting blanket strip searches and body cavity inspections of an individual “absent a reasonable suspicion that such individual is concealing weapons or other contraband.” Id. at 214. Without addressing standing, the district court granted the injunction. Id.
On appeal, the Court of Appeals found that, although he had standing to seek monetary and declarative relief, the plaintiff lacked standing to seek injunctive relief because he “failed to demonstrate a likelihood of future harm.” Id. at 216. The court found that the plaintiff had failed to establish – or even allege prior to his appeal – “the likelihood of a future encounter with the Nassau County police likely to result in a subsequent unconstitutional strip search,” because he “was an attorney admitted to the bar,” “had no criminal record” and “had never been arrested outside the context of his contentious divorce proceedings,” which had since ended. Id. at 215. The court thus found that the plaintiff was “no more likely to be subject to misdemeanor arrest and detainment than any other citizen of Nassau County.” Id. It further noted that, even if
52

the plaintiff were arrested again, “it is entirely conjectural

that he would be detained overnight and remanded to the NCCC, as

almost all misdemeanor arrestees are released on their own

recognizance or on bail.” Id.

The court concluded that:

Under Lyons, to establish a sufficient likelihood of a

future unconstitutional strip search, Shain would have

to show that if he is arrested in Nassau County and if

the arrest is for a misdemeanor and if

he is not

released on bail and if he is remanded to NCCC and if

there is no particularized reasonable suspicion that

he is concealing contraband, he will again be strip

searched. Such an accumulation of inferences is

simply too speculative and conjectural to supply a

predicate for prospective injunctive relief.

Id. at 216 (citing O’Shea, 414 U.S. at 497) (emphasis in

original). The court then rejected the plaintiff’s reliance on

DeShawn on the ground that DeShawn did not hold that “the

existence of an official policy, on its own, is sufficient to

confer standing to sue on any individual who had previously been

subjected to that policy.” Id. Rather, “DeShawn . . . suggests

– and Lyons confirms – that a plaintiff seeking injunctive

relief must demonstrate both a likelihood of future harm and the

existence of an official policy or its equivalent.” Id. (citing

Lyons, 461 U.S. at 105-06) (emphasis in original). The court

concluded: “Here, Shain has failed to demonstrate a likelihood

of future harm and therefore, even if he was subject to an

53

official policy, he lacks standing to seek injunctive relief.” Id.
2.
The Court thus turns to the critical inquiries: First, whether the plaintiffs have alleged that they are “realistically threatened by a repetition of [their] experience,” Lyons, 461 U.S. at 109, or whether, rather, their fear of future harm is grounded on an “accumulation of inferences” that is “speculative and conjectural,” Shain, 356 F.3d at 216 (citing O’Shea, 414 U.S. at 497); and second, whether the plaintiffs have adequately alleged the existence of an official policy or its equivalent, Id. (citation omitted).
It is clear that the plaintiffs have pleaded facts that, if proven, would support their standing to seek injunctive relief. First, the plaintiffs’ alleged fear that ICE agents will return to their homes and conduct searches and seizures in an unconstitutional manner, Compl. ¶¶ 23, 25, 27, 29, 31, 38, 39, 351, is not unreasonable or unrealistic.
The Complaint alleges that ICE agents explicitly threatened to return to two of the eight homes in which they conducted operations. Compl. ¶ 238, 371. It also alleges that, in another case, agents actually did return to the home, visiting
54

twice in thirteen months. Compl. 377-418. Those allegations alone are enough to remove the plaintiffs’ claims that they are likely to be subject to repeat visits from the category of the purely speculative. See Nicacio, 768 F.2d at 1136 (“The possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.”); National Congress for Puerto Rican Rights by Perez v. City of New York, 75 F. Supp. 2d 154, 161 (S.D.N.Y. 1999). They distinguish the plaintiffs’ case from those in which a plaintiff bringing a claim for injunctive relief is “no more likely to be subject to [a challenged governmental practice] than any other citizen.” Shain, 356 F.3d at 215.
The plaintiffs’ standing to seek injunctive relief finds further support in other allegations in the Complaint. In particular, the plaintiffs allege that, to determine what residences to target during operations, FOTs “rely on a database that purports to contain relevant information concerning, among other things, the location of fugitive aliens,” but “[m]uch of the information in this database . . . is outdated, inaccurate and incomplete.” Compl. ¶¶ 184-85. According to the Complaint, the DRO has been criticized by the Inspector General of DHS on the ground that the database contains inaccurate and incomplete information and is not regularly updated by DRO and its federal partners. Compl. ¶ 189. The Complaint further alleges that,
55

“[d]espite accounts that ICE has erroneously targeted numerous Latino homes, including complaints that they have raided the same home more than once without making any arrests and reports that clearly show ICE has used stale intelligence, ICE has never required agents to document or input information into their records or databases noting incidents of failed attempts to find targets.” Compl. ¶ 11.
The plaintiffs allege that, “[a]s a foreseeable result of these lapses . . . Latinos face the risk of being wrongly and repeatedly targeted for raids.” Compl. ¶ 11; see also Compl. ¶¶ 460, 475. This claim is buttressed by the specific allegations with respect to the plaintiffs’ homes. In one case, ICE agents allegedly threatened to return to a home after they were unsuccessful in locating a man who had not resided in the house for several years. Compl. ¶¶ 220-24. In another case, agents allegedly did return to a home, both times searching for the same man, who did not reside in the house and was unknown to the family. Compl. ¶¶ 377-418.
Under the facts alleged in the Complaint, therefore, the fact that a home has been the target of an operation in the past makes it more likely that it will be the target of an operation in the future, because the inaccurate information that leads agents to a home in the first place is likely to remain in the agency’s database, and to be relied upon by agents again.
56

The plaintiffs have also adequately alleged the existence of an “official policy or its equivalent” authorizing unconstitutional searches. See Shain, 356 F.3d at 216. A policy can be inferred from the informal acts or omissions of supervisors. Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir. 1980).
As discussed above at length, the plaintiffs have alleged that the operational plans for the raids at issue in these cases called for operations to be conducted by teams of a dozen agents. Gordon Decl. Ex. C at 1. The plans also indicated that operations should commence in the early morning hours and that agents should wear body armor and fully equipped tactical belts. Gordon Decl. Ex. C at 2-4; Gordon Decl. Ex. D at 3-5, 12-13. Policy memos also endorsed the use of ruses without explaining how those ruses could undermine voluntary consent. Compl. ¶¶ 85, 91; Gordon Decl. Ex. E, F, G.
Additionally, the Complaint alleges that the searches of the eight residences in this case were in fact systematically conducted without consent, and in a manner that would have undermined the validity of any consent given. It alleges, for instance, that the operations at the plaintiffs’ homes occurred almost uniformly in the pre-dawn hours, often between 3:00 and 5:00 a.m. Compl. ¶¶ 192, 245, 289, 309, 326, 355, 395. It also alleges that, after securing a perimeter around the plaintiffs’
57

property, visibly armed ICE agents “pounded” on doors or pushed through them, and used ruses to undermine voluntary consent. Compl. ¶¶ 194, 197, 199, 245, 250, 289, 291, 309, 313, 327, 331, 344, 345-46, 380-81, 382, 395-96.
Moreover, the plaintiffs have alleged that searches under the conditions described in the Complaint are condoned, widespread, and ongoing. Accordingly, the plaintiffs have sustained their burden of alleging both a likelihood of future harm and an official policy or its equivalent.
3.
The defendants also argue that the plaintiffs have failed to allege the necessary elements for a claim for injunctive relief. To obtain a permanent injunction, “a plaintiff must succeed on the merits and show the absence of an adequate remedy at law and irreparable harm if the relief is not granted.” Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006) (internal quotation marks omitted). “Irreparable harm is an injury that is not remote or speculative but actual and imminent, and for which a monetary award cannot be adequate compensation.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 37 (2d Cir. 1995) (internal quotation marks omitted).
58

Under the circumstances of this case, the plaintiffs have adequately alleged that they will be irreparably harmed if an injunction does not issue, because they have plausibly alleged a violation of their Fourth and Fifth Amendment rights, and allegations of constitutional rights are presumed to be irreparable. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“[T]he alleged violation of a constitutional right . . . triggers a finding of irreparable harm.”); Elrod v. Burns, 427 U.S. 347, 373 (1976); Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (noting that possible violation of Fourth Amendment would satisfy requirement of pleading “irreparable harm”); Diaz v. N.Y.C. Bd. of Elections, 335 F. Supp. 2d 364, 367 (E.D.N.Y. 2004) (noting that allegation of violation of Equal Protection Clause of Fourteenth Amendment satisfies “irreparable harm” standard).
The defendants appear to argue that the plaintiffs are not entitled to this presumption of irreparable harm because the “plaintiffs’ alleged injuries, if proven, can be adequately remedied by monetary relief; the Bivens remedy exists precisely to compensate individuals for Fourth Amendment violations by federal agents.” Mem. of L. in Supp. of the Gov’t’s Mot. to Dismiss Pls.’ Claim for Inj. Relief at 34. However, the fact that a party may seek damages under Bivens for a prior constitutional violation does not mean that Bivens constitutes
59

an adequate remedy against future constitutional violations. By the defendants’ logic, no injunction could ever issue where a damages remedy was available to compensate past harm. This suggestion is contrary to the entire structure of the injunctive relief inquiry, which requires a court to determine whether “remedies available at law, such as monetary damages, are inadequate to compensate for [an] injury,” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (emphasis added) – and not simply whether a remedy at law is available.
Finally, the defendants argue in their reply brief that the injunction the plaintiffs seek would require the defendants simply to “obey the law,” and that such an injunction is impermissible. The defendants cite no controlling authority for this proposition. In any event, the plaintiffs seek wideranging injunctive relief that goes beyond an injunction that simply requires the defendants to obey the law. Whether the plaintiffs will eventually be able to obtain any injunctive relief, and what the scope of that relief would be, are issues that must await the development of the evidence. Critically, it is not necessary for the Court to decide at this time the elements of the injunction sought that would be necessary to redress the constitutional violations alleged. The scope of any injunction is not at issue on this motion to dismiss; what is at issue is the plaintiffs’ right to seek one at all.
60

The plaintiffs have adequately pleaded facts that would support the grant of an injunction, and the defendants' motion for judgment on the pleadings is therefore denied.

CONCLUSION

The Court has carefully considered all of the arguments

raised by the parties. To the extent not specifically

addressed, the arguments are either moot or without merit. For

the reasons explained above, the defendants' motion to dismiss

under Federal Rule of Civil Procedure 12(b) (6) is granted with

prejudice with respect to the Fourth Amendment claims against

defendants Chertoff and Myers and the Fifth Amendment claims

against all of the Supervisory Defendants. The motion to

dismiss is denied with respect to the Fourth Amendment claims

against defendants Torres and Forman. The defendants' motion to

dismiss the claims for injunctive relief for lack of standing

under Federal Rule of Civil Procedure 12(b) (1) is denied without

prejudice. Finally, the defendants' motion for judgment on the

pleadings dismissing the claims for injunctive relief is denied.

The Clerk is directed to close Docket Nos. 220 and 240.

SO ORDERED.

Dated:

New York, New York July 29, 2011

States District Judge

61

 
 Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 1 of 31

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
-against-
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

x : : ECF Case : Civil Action No. : 07 CIV 8224 (JGK) (FM) : : : : : : x

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION

DEWEY & LEBOEUF LLP Aldo A. Badini Donna L. Gordon Kelly A. Librera 1301 Avenue of the Americas New York, New York 10019 Tel.: (212) 259-8000 Fax: (212) 259-6333

LATINOJUSTICE PRLDEF Foster Maer Ghita Schwarz Christina Iturralde 99 Hudson Street, 14th Floor New York, NY 10013 Tel.: (212) 739-7504 Fax: (212) 431-4276

Attorneys for Plaintiffs

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 2 of 31

TABLE OF CONTENTS

Page

I. PRELIMINARY STATEMENT .........................................................................................1
II. STATEMENT OF FACTS ..................................................................................................3
III. CLASS CERTIFICATION SHOULD BE GRANTED BECAUSE THE PROPOSED CLASS SATISFIES THE REQUIREMENTS OF FED. R. CIV. P. 23..............................6
A. The Proposed Class Satisfies the Requirements of Rule 23(a)......................................6
1. The Class Is So Numerous That Joinder of All Class Members is Impracticable......................................................................................................7
2. Questions of Law and Fact are Common to the Class .......................................8
3. The Claims of the Named Plaintiffs are Typical of the Claims of the Members of the Proposed Class.......................................................................19
4. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Members of the Proposed Class ............................................................22
B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2)...............................23
IV. CONCLUSION..................................................................................................................25

i

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 3 of 31

CASES

TABLE OF AUTHORITIES

Page

Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27 (E.D.N.Y. 2002)................................................................................................ 24
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).......................................................................................................... 7, 8, 23
Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994) ..................................................................................................... 9, 25
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52 (2d Cir. 2000) ....................................................................................................... 22
Biediger v. Quinnipiac Univ., No. 3:09cv621, 2010 U.S. Dist. LEXIS 50044 (D. Conn. May 20, 2010) ............................... 25
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).................................................................................................................... 2
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) ......................................................................................................... 7
Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194 (E.D.N.Y. 2005).............................................................................................. 20
Cutler v. Perales, 128 F.R.D. 39 (S.D.N.Y. 1989) ................................................................................................ 20
D.S. ex rel. S.S. v. N.Y.C. Dep’t of Educ., 255 F.R.D. 59 (E.D.N.Y. 2008)........................................................................................ 6, 8, 24
Dajour B. ex rel. L.S. v. City of New York, No. 00 Civ. 2044 (JGK), 2001 U.S. Dist. LEXIS 15661 (S.D.N.Y. Oct. 3, 2001) .................. 22
Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001) .......................................................................................... 9, 20
Gen. Tel. Co. of the S.W v. Falcon, 457 U.S. 147 (1982).................................................................................................................. 20
German v. Fed. Home Loan Mort. Corp., 885 F. Supp. 537 (S.D.N.Y. 1995) ............................................................................................. 7

ii

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 4 of 31
Gulino v. Bd. of Educ. of City Sch. Dist. of N.Y., 201 F.R.D. 326 (S.D.N.Y. 2001) .............................................................................................. 20
In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992) ..................................................................................................... 22
In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 229 (2d Cir. 2006) ............................................................................................. 22
In re Oxford Health Plans, Inc. Sec. Litig., 191 F.R.D. 369 (S.D.N.Y. 2000) .............................................................................................. 20
Ingles v. City of New York, No. 01 Civ. 8279, 2003 U.S. Dist. LEXIS 2453 (S.D.N.Y. Feb. 18, 2003) ............................. 25
Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418 (S.D.N.Y. 2009) ......................................................................................... 9, 24
Marisol A. ex rel. Forbes v. Giuliani, 126 F.3d 372 (2d Cir. 1997) ..................................................................................... 9, 20, 22, 24
Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) ............................................................................................. 9
McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233 (S.D.N.Y. 1989) ............................................................................................. 7
Nat’l Law Ctr. on Homelessness & Poverty v. New York, 224 F.R.D. 314 (E.D.N.Y. 2004).................................................................................... 7, 22, 25
Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001), 126 F.3d 372 (2d Cir. 1997)............................................. 9, 21
Reynolds v. Giuliani, 118 F. Supp. 2d 352 (S.D.N.Y. 2000) ........................................................................................ 8
Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) ..................................................................................... 7, 8, 20
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) ............................................................................................... 20, 24
Sirota v. Solitron Devices, Inc., 673 F.2d 566 (2d Cir. 1982) ....................................................................................................... 7
Ventura v. N.Y.C. Health and Hosps. Corp., 125 F.R.D. 595 (S.D.N.Y. 1989) ................................................................................................ 9
iii

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 5 of 31 Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011).......................................................................................................... 8, 23 Zepeda v. U.S. Immigration & Naturalization Serv.,
753 F.2d 719 (9th Cir. 1983) .................................................................................................... 22 RULES Fed. R. Civ. P. 23............................................................................................................................ 6 Fed. R. Civ. P. 23(a) ............................................................................................................... 2, 6, 7 Fed. R. Civ. P. 23(a)(1)................................................................................................................... 7 Fed. R. Civ. P. 23(a)(2)....................................................................................................... 8, 13, 20 Fed. R. Civ. P. 23(a)(3)..................................................................................................... 20, 21, 22 Fed. R. Civ. P. 23(a)(4)................................................................................................................. 22 Fed. R. Civ. P. 23(b)(2).......................................................................................................... passim
iv

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 6 of 31
I. PRELIMINARY STATEMENT Plaintiffs, on behalf of themselves and all similarly situated individuals, submit this
Memorandum of Law in support of their Motion for Class Certification. The 21 putative class representatives are Latino men, women, and children, each of whom was subjected to unconstitutional searches and seizures by Immigration and Customs Enforcement (ICE) agents in home-raid operations carried out under the direction of the New York Field Office of the ICE Detention and Removal Office and/or the New York Regional Office of ICE Office of Investigation (collectively “ICE New York”).1 Two Immigration Judges found that the actions of ICE New York constituted “egregious violations” of the Fourth Amendment in raids of named plaintiffs’ homes; in fact, several immigration judges found violations during similar home-raid operations. The actions of ICE New York at issue in this case have broad impact on putative class members, and were recognized even by other law enforcement authorities as raising serious constitutional problems. For example, after accompanying ICE New York agents at home operations, the Nassau County Police Department pulled out of the operation, noting that the operations “lacked current intel,” were “structured poorly,” and that “most of those picked up were not the targets of warrants.”2 Similarly, members of the United States Congress questioned ICE tactics, expressing concern that ICE practices “invariably swept a number of law-abiding citizens and non-citizens into its net,” and that “ICE officers are routinely using excessive force and intimidation tactics in their raids.”3
1 As of June 2010, the Detention and Removal Office (DRO) is called Enforcement and Removal Operations (ERO); the Office of Investigation (OI) is now Homeland Security Investigations.
2 9/27/2007 Mulvey Letter (Decl. of Aldo A. Badini in Supp. of Pls.’ Mot. for Class Certification (“AB Decl.”), Ex. 1). Cited exhibits are attached to the AB Decl. unless otherwise indicated.
3 2/11/2008 Serrano Letter (Ex. 2); see also 4th Am. Compl., Exs. 5-6, 13-14.
1

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 7 of 31
Plaintiffs’ constitutional rights, and those of unnamed class members, were violated during the course of home-entry operations when ICE agents surrounded, entered, and searched their homes without judicial warrants, voluntary consent, or exigent circumstances. The practices of ICE and its employees in preparing for and implementing Operation Return to Sender, Operation Cross Check, Operation Community Shield (OCS), and other daily enforcement operations are strikingly consistent. Moreover, these operations are ongoing, as are the policies and their equivalents, which incentivize, and in some cases explicitly authorize, conduct which is unconstitutional. Because these operations affect millions of New York’s Latino residents, the Court should certify a class for the purpose of securing class-wide injunctive relief.4
Plaintiffs move for certification of a class of persons affected by defendants’ policies and practices defined as:
Persons who, because they (1) are Latino; and (2) reside within the jurisdiction of ICE New York, have been subjected to and/or are at imminent risk of home raids by ICE New York. This proposed class satisfies all four of the requirements of Federal Rule 23(a). First, because millions of Latinos reside within the jurisdiction of ICE New York, joinder of all class members is impracticable and class certification will promote judicial economy. Second, ICE’s unconstitutional policy and practice of entering homes without voluntary consent and seizing residents because they are, or appear to be, Latino harms both named plaintiffs and the proposed class, raising questions of law and fact common to the entire proposed class. Third, the claims of
4 The named plaintiffs seek damages under the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), but do not seek class certification for damages claims.
2

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 8 of 31
the named plaintiffs are typical of the claims of members of the proposed class because they arise from the same unconstitutional conduct of defendants, and all members of the class will benefit from this action. Finally, the interests of the named plaintiffs and the class are identical — the prevention of defendants’ unconstitutional conduct — and the adequacy of class counsel is established.
Certification of the proposed class is appropriate under Federal Rule 23(b)(2) because the injunctive and declaratory relief sought by plaintiffs is designed to prevent a common course of unconstitutional conduct, making it appropriate to redress the injuries of the class as a whole. II. STATEMENT OF FACTS
Twenty-one named plaintiffs, all Latino, from six different homes5 within the jurisdiction of ICE New York,6 seek certification as class representatives.
5 A table of proposed class representatives is attached as AB. Decl., Appendix A. They are: Adriana & Carson Aguilar; Erika Garcia-Leon; Andres & Elena Leon; Nelly Amaya; David Lazaro Perez; William Lazaro-Melchor; Tarcis Sapon-Diaz; Mario Patzan DeLeon; Gonzalo Escalante; Yoni Revolorio; Juan Jose Mijangos; Victor Pineda Morales; Sonia Bonilla; Beatriz & Dalia Velasquez; Pelagia De La Rosa-Delgado; and Anthony, Christopher, & Bryan Jimenez.
6 The jurisdiction of the ERO New York Field office covers the Five Boroughs and Dutchess, Nassau, Putnam, Suffolk, Sullivan, Orange, Rockland, Ulster, and Westchester counties. See Office of ERO Offices: Contact, available at http://www.ice.gov/contact/ero/index.htm. The jurisdiction of OI’s New York Regional Office is co-extensive with Southern and Eastern Districts of New York, which encompass the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, Sullivan, Kings, Nassau, Queens, Richmond, and Suffolk. See P. Smith Tr. 30:11-19 (Ex. 3); 28 U.S.C. § 112. All putative class representatives resided within the jurisdiction of ICE New York when their homes were raided, and currently
3

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As this Court observed, documents produced by ICE “indicate that, pursuant to guidance created or approved by [then-Director of DRO John] Torres and [then-director of OI Mona] Forman, agents conducted raids at residences in teams of a dozen agents, with body armor and tactical equipment, in the early morning hours.” 8/1/2011 Opinion (ECF No. 286) at 33. Defendants concede that they did not possess judicial warrants or probable cause to enter and search homes.7 Visibly armed ICE agents and local law enforcement personnel surrounded homes and entered the property’s curtilage and backyards.8 They forcefully pounded on doors and windows, at times denting doors and breaking locks.9 They shouted “police” and commanded the residents to “open the door.”10 After doors were opened, ICE agents barged inside; in some cases, they entered after encountering a minor at the door.11 Likewise, at some homes, they used unlawful ruses to gain entry, such as falsely claiming to have valid warrants or
reside within ICE New York’s jurisdiction. 7 4/20/10 Hr’g Tr. 48:1-2 (Ex. 4) (“We conceded very early on that these operations were not
based on probable cause.”). 8 E.g., ICE 2 Tr. 157:4-18, 214:24-215:8, 216:7-14 (Ex. 5); ICE 12 Tr. 175:10-176:9 (Ex. 6); S.
Bunting Tr. 39:7-40:9 (Ex. 7); J. Berry Tr. 12:19-14:21, 16:9-24 (Ex. 8); B. Velasquez Tr. 89:23-90:11 (Ex. 9); M. Patzan DeLeon Tr. 45:11-23, 47:21-24, 50:24-52:3 (Ex. 10); A. Jimenez Tr. 251:21- 252:17, 261:11-22, 263:2-15, 302:9-303:2 (Ex. 11); B. Jimenez Tr. 141:4142:3, 139:9-15 (Ex. 12). 9 E.g., N. Amaya Tr. 82:13-84:2 (Ex. 13); Y. Revolorio Tr. 86:21-88:18 (Ex. 14). 10 E.g., 10/24/08 D. Williams Decl. (Ex. 15); A. Leon Tr. 35:5-9, 83:14-21 (Ex. 16); M. Patzan DeLeon Tr. 42:19-20, 63:3-5 (Ex. 10); A. Jimenez Tr. 132:15-135:22, 138:19-139:2 (Ex. 11). 11 E.g., P. De La Rosa-Delgado Tr. 114:16-115:4, 123:17-22 (Ex. 17); D. Velasquez Tr. 137:18138:21 (Ex. 18).
4

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telling a minor that “someone was dying” inside the house.12 At many homes, agents forced doors open.13 Thus, the testimony — of plaintiffs, third-parties and ICE agents alike — demonstrates that ICE entered and searched putative class representatives’ homes without obtaining voluntary consent.
ICE agents searched each residence even without any particularized suspicion of danger.14 They barged into private bedrooms of residents, jarring many residents out of sleep.15 ICE agents shoved, pushed, and pulled residents.16 Throughout the operations, agents drew or clutched their holstered weapons, including submachine guns and assorted long arms.17 They
12 E.g., B. Velasquez Tr. 82:6-88:7 (Ex. 9); D. Drohan Tr. 112:12-113:2 (Ex. 19). 13 E.g., ICE 20 Tr. 242:6-17, 336:25-337:17 (Ex. 20); ICE 21 Tr. 340:12-23 (Ex. 21); D.
Velasquez Tr. 187:9-22 (Ex. 18); C. Bedi Tr. 86:19-87:11 (Ex. 22); V. Bedi Tr. 104:10-105:18 (Ex. 23); R. del C. Licona Tr. 33:16-34:9 (Ex. 24). 14 ICE 42 Tr. 234:21-235:6 (Ex. 25); ICE 41 Tr. 209:12-210:3, 211:17-19, 248:5-8 (Ex. 26); ICE 52 Tr. 179:21-180:3 (Ex. 27); ICE 9 Tr. 179:24-180:20 (Ex. 28); ICE 6 Tr. 367:23-368:11 (Ex. 29); ICE 2 Tr. 130:3-10, 206:11-207:18 (Ex. 5); ICE 13 Tr. 199:4-18 (Ex. 30). 15 ICE 4 Tr. 241:21-244:19 (Ex. 31); ICE 6 Tr. 222:12-223:20 (Ex. 29); A. Leon Tr. 85:13-21 (Ex. 16); A. Aguilar Tr. 43:16-44:16 (Ex. 32); ICE 41 Tr. 176:23-177:10, 183:8-15 (Ex. 26); C. Delgado Tr. 61:22-62:23, 108:8-109:12, 113:15-22 (Ex. 33); A. Amaya Tr. 56:25-57:10 (Ex. 34). 16 E.g., B. Jimenez Tr. 126:4-11, 135:23-137:14, 231:24-233:14 (Ex. 12); C. Jimenez Tr. 180:613, 233:24-234:23, 263:21-25 (Ex. 35); B. Velasquez Tr. 194:7-18 (Ex. 9); J. Mijangos Tr. 149:6-151:24 (Ex. 36). 17 E.g., G. Hoeler Tr. 94:5-97:3 (Ex. 37); L. Mulvey Tr. 90:22-91:25 (Ex. 38); ICE 34 Tr. 85:817 (Ex. 39); Y. Revolorio Tr. 106:17-107:14 (Ex. 14); O. Medina Tr. 125:25-126:15 (Ex. 40); D. Videla Tr. 61:18-62:2, 63:11-21 (Ex. 41); C. Delgado Tr. 135:21-137:24 (Ex. 33).
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corralled residents — many of whom were in a state of undress due to the early hour — and prevented them from moving freely in their own homes, from using their phones, and from using the bathroom in private.18 They interrogated residents in a forceful and coercive manner, often failing to communicate effectively in the native language of the home occupants. ICE agents handcuffed residents as a matter of course, even before they were questioned, and without even attempting to explain ICE’s justification for being present.19 III. CLASS CERTIFICATION SHOULD BE GRANTED BECAUSE THE PROPOSED
CLASS SATISFIES THE REQUIREMENTS OF FED. R. CIV. P. 23 Because class certification is essential to the fair and efficient adjudication of this case, and enforcement of any resulting judicial decree, Plaintiffs move for class certification pursuant to Rule 23(b)(2). Class certification is particularly important in a civil rights case such as this, where “[p]rocedural devices permitting disadvantaged persons and groups of persons to seek equalization of status and rights are favored by the courts.” D.S. ex rel. S.S. v. N.Y.C. Dep’t of Educ., 255 F.R.D. 59, 65 (E.D.N.Y. 2008). A. The Proposed Class Satisfies the Requirements of Rule 23(a) The proposed class meets the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure because: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the named plaintiffs are typical of those of the class; and (4) the named plaintiffs and
18 E.g., A. Aguilar Tr. 48:13-50:4, 52:15-53:10 (Ex. 32); ICE 6 Tr. 229:10-230:8 (Ex. 29); A. Leon Tr. 50:9-16, 67:24-68:19 (Ex. 16); O. Medina Tr. 112:17-113:20 (Ex. 40); P. De La Rosa-Delgado Tr. 347:7-13 (Ex. 17); V. Pineda Morales Tr. 88:8-89:20 (Ex. 42); N. Amaya Tr. 107:6-109:7 (Ex. 13).
19 E.g., N. Amaya Tr. 107:16-109:13 (Ex. 13); J. Mijangos Tr. 131:20-132:14 (Ex. 36); W.
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their counsel will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997).
1. The Class is So Numerous That Joinder of All Class Members is Impracticable
Rule 23(a)(1) of the Federal Rules of Civil Procedure requires that the class be “so numerous that joinder of all members is impracticable.” Plaintiffs need not establish the exact size of the class nor the identity of its members in order to meet the requirements for class certification. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement.”). Instead, plaintiffs may “rely on reasonable inferences drawn from the available facts.” McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989); see also German v. Fed. Home Loan Mort. Corp., 885 F. Supp. 537, 552 (S.D.N.Y. 1995) (“Precise quantification of the class members is not necessary because the court may make ‘common sense assumptions’ to support a finding of numerosity.”). The court may consider materials outside the pleadings in deciding whether the class is numerous. See Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir.), cert. denied, 459 U.S. 908 (1982). Although there is no bright-line rule, the Second Circuit held that “numerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); see also Nat’l Law Ctr. on Homelessness & Poverty v. New York, 224 F.R.D. 314, 324 (E.D.N.Y. 2004) (2,300 homeless residents in Suffolk County satisfies numerosity requirement).
Apart from sheer numbers, courts may consider whether additional factors make joinder impractical. For example, potential class members’ lack of financial resources weighs in favor
Lazaro Melchor Tr. 62:24-65:13 (Ex. 43).
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of class certification; in this case, plaintiffs’ counsel appears on a pro bono basis. See, e.g., Reynolds v. Giuliani, 118 F. Supp. 2d 352, 388 (S.D.N.Y. 2000) (“Class members’ lack of financial resources also makes joinder difficult.”). Likewise, class certification promotes judicial economy where the composition of the class may be in flux. Robidoux, 987 F. 2d at 936. Here, the proposed class consists of approximately two million Latinos who, like the putative class representatives, reside within the jurisdiction of ICE New York20 — demonstrating that joinder of all class members is impracticable and that the numerosity requirement is satisfied.
2. Questions of Law and Fact are Common to the Class The commonality requirement examines whether the claims depend on some common contention that is capable of class-wide resolution such that its determination “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Commonality is not defeated by the presence of individual circumstances, so long as the class-wide proceeding is capable of generating “common answers apt to drive the resolution of the litigation.” Id. n.6 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. Rev. 97, 132 (2009)) (emphasis in original). A single common question is sufficient under Rule 23(a)(2). Id. at 2556. The Dukes court emphasized: “Civil rights cases against parties charged with unlawful, classbased discrimination are prime examples of what (b)(2) is meant to capture.” Id. at 2557 (quoting Amchem, 521 U.S. at 614). This is just such a case. The commonality requirement is met when “the injuries complained of by the named plaintiffs allegedly resulted from the same unconstitutional or illegal practice or policy that allegedly injured or will injure the proposed class members . . . .” D.S., at 255 F.R.D. 71
20 U.S. Census, 2006-08 Am. Cmty. Survey 3-Year Estimates, tbl. S0201 (Ex. 44).
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(quoting Daniels v. City of New York, 198 F.R.D. 409, 417-18 (S.D.N.Y. 2001)); see also Marisol A. ex rel. Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (“The commonality requirement is met if plaintiffs’ grievances share a common question of law or of fact.”). Where the proposed class alleges a pattern and practice of unlawful conduct, courts find that the commonality requirement is satisfied, even “where the individual circumstances of class members differ.” Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418, 429 (S.D.N.Y. 2009); see also Daniels v. City of New York, 198 F.R.D. 409, 418 (S.D.N.Y. 2001) (finding commonality where named plaintiffs complained of a practice or policy of suspicionless stops); Ventura v. N.Y.C. Health & Hosps. Corp., 125 F.R.D. 595, 600 (S.D.N.Y. 1989) (“[T]he existence of individualized factors or variations does not preclude finding of existence of common questions where pattern, practice or policy exists.”).
Here, defendants’ pattern and practice of nonconsensual home entries and searches, as well as seizures of the occupants within because they are, or appear to be Latino, represents a “unitary course of conduct by a single system” that demonstrates commonality. Jermyn, 256 F.R.D. at 429 (citing Marisol A., 126 F.3d at 377). Moreover, “[t]here is an assumption of commonality where,” as here, “plaintiffs seek certification of an injunctive class under Rule 23(b)(2) to right alleged constitutional wrongs.” Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (citing Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662, 690 (S.D.N.Y. 1996)); Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (“(b)(2) classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant’s conduct is central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct.”). Plaintiffs’ allegations
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of widespread violations of the Fourth and Fifth Amendments arise from a common “course of conduct” by ICE New York toward a class of Latinos living within its jurisdiction.
Latinos throughout ICE New York’s jurisdiction are at risk of being subjected to a home raid. The evidence demonstrates that ICE routinely raids Latino homes in which targets do not live, instead arresting “collaterals” or non-targets at homes where targets are not found.21 Further, ICE New York does not limit its operations to specific addresses or verified target locations. For example, during Operation Community Shield in September 2007, when agents failed to find their purported target at 15 West 18th Street in Huntington, New York, they proceeded to 15 East 18th Street in the same town, looking for the same target; at another location they searched homes adjacent to their initial target address which did not exist at all.22 This type of conduct was not uncommon.23 Over and over, agents and officers failed to properly vet their intelligence or target addresses — a serious deficiency noted by fellow law enforcement personnel.24
21 During the week of September 24, 2007, while 39 targets were arrested, the vast majority of the OI arrests — 148 people — were non-targets. See Expert Report of Andrew A. Beveridge ¶¶ 9, 14 (Ex. 45) (“Beveridge Report”); Expert Report of Peter L. Markowitz ¶¶ 39-40, 46-58 (Ex. 46) (“Markowitz Report”); see also L. Mulvey Tr. 36:10-22 (Ex. 38); 10/25/07 Bartley Memo (Ex. 47).
22 R. Coffman (SCPD 30(b)(6)) Tr. 91:24-92:9, 160:23-161:13 (Ex. 48); 9/27/2007 Coffman (SCPD) Notes (Ex. 49); ICE 39 Tr. 224:2-18, 248:9-249:5 (Ex. 50); ICE 40 Tr. 110:16-112:17 (Ex. 51).
23 E.g., ICE 32 Tr. 168:13-173:17 (Ex. 52); ICE 13 Tr. 66:3-25 (Ex. 30). 24 E.g., L. Mulvey Tr. 54:19-55:22 (Ex. 38) (Nassau County Police Commissioner testified that
ICE agents failed to properly vet addresses); A. Mulrain Tr. 118:4-120:22 (Ex. 53); 11/1/07
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Disturbingly, as the experiences of putative class representatives demonstrate, ICE agents surround and raid homes of Latinos even when they possess specific and clear evidence that a purported target will not be found at a home they intend to raid. In some cases, faced with information that a target does not reside at a particular home — or was previously deported — ICE agents ignore such evidence and proceed with raids anyway. For example, agents raided the home of Sonia Bonilla and her two daughters even though ICE had deported the purported target at 710 Jefferson Street in November 2005, almost two years prior to the September 2007 raid, and had no evidence that he had re-entered the country, much less lived with the BonillaVelasquez family.25 In fact, in the OI raids alone, 11.1% of the targets identified on ICE’s list had “notations in their Work Folders to the effect that they had already been deported, had departed the country, were already in jail, or were not otherwise amenable for deportation.”26 And only 15% percent of the OI targets were actually located and arrested.27
This conduct was not limited to OI. DRO officers raided the home of Adriana Aguilar and her family, searching for her ex-husband, even though DHS possessed evidence in its own files that Ms. Aguilar was divorced from the target and in fact remarried to another man with
Bartley Aff. (Ex. 54). 25 See, e.g., Exs. 55 & 56 (database printout from the A-file of the target showing that he was
deported on 10/21/2005); W. Smith Tr. 161:16-24, 165:22-166:19 (Ex. 57) (testifying that “there doesn’t appear to be anything in the file indicating that [the target had] returned”); see also 10/25/07 Bartley Memo at 4 (Ex. 47). 26 Beveridge Report ¶ 38 (Ex. 45); W. Smith Tr. 159:24-166:19, 285:5-287:5 (Ex. 57). 27 During the OI operation, only 39 of the 255 targets were arrested; an additional 148 nontargets accounted for the majority of OI’s arrests. Beveridge Report ¶ 14 (Ex. 45).
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whom she had a child.28 As with OI, the vast majority of DRO arrests — nearly two-thirds — were collaterals.29 Thus it is not merely named plaintiffs, nor identified targets, nor Latinos who are living with identified targets, who are potential victims of ICE’s home raid operations; all Latinos in affected counties face the threat of unconstitutional conduct.
Under ICE New York policies and their equivalent, even if a proposed class member already experienced a home raid, there is a significant likelihood of reoccurrence.30 Indeed, “the fact that a home has been the target of an operation in the past makes it more likely that it will be the target of an operation in the future, because the inaccurate information that leads agents to a home in the first place is likely to remain in the agency’s database.” 8/1/2011 Opinion (ECF No. 286) at 56. ICE’s 30(b)(6) designee admitted: “[W]e have no policies that would discourage [a repeat operation at the same address] or instruct agents not to go back a second time.”31 Moreover, ICE does not require its agents to record home entries, searches, or seizures where no arrest was made, or where no target is found,32 thus increasing the likelihood that ICE agents will return to these same homes to conduct additional unconstitutional warrantless home operations.33 The record in this case demonstrates that ICE New York does in fact return to
28 See, e.g., A. Aguilar Tr. 7:20-10:9 (Ex. 32); US21275(A) at US21302-07 (Ex. 58). 29 Markowitz Report ¶¶ 32, 39-40 (Ex. 46); see also 10/25/07 Bartley Memo at 2 (If a target
wasn’t located during the home raid, agents were told to arrest at least one other individual “to show we had done something.”) (Ex. 47). 30 See P. De La Rosa-Delgado Tr. 33:25-34:12 (Ex. 17); C. Jimenez Tr. 184:17-22 (Ex. 35). 31 OI 30(b)(6) Tr. 197:23-198:9 (Ex. 59). 32 ICE TECS & DACS 30(b)(6) Tr. 181:11-182:24 (Ex. 60). 33 See 6/16/2010 ICE’s Resps. to Pls.’ Req. for Admis. (hereinafter “RFA”) Nos. 26-27 (Ex. 61); OI 30(b)(6) Tr. 268:2-269:20 (Ex. 59); DRO 30(b)(6) Tr. 260:19-261:10 (Ex. 62); ICE TECS
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homes more than once, looking for the same target,34 and ICE agents have perpetrated repeat operations at an unknown number of homes.35
Given ICE’s unsystematic method of confirming the location of purported targets, any Latino home is the potential target of an unconstitutional entry and search. Thus, although ICE operations purport to focus on specified targets, they instead injure the general class of Latinos living within the jurisdiction of ICE New York.36
Class certification is appropriate because named plaintiffs and members of the proposed class share multiple common questions of law and fact and thus meet the commonality requirement of Rule 23(a)(2). Legal questions common to the class include, among others, whether, having admitted the absence of a judicial warrant or probable cause, defendants have implemented, enforced, encouraged, or sanctioned a policy, pattern, practice or custom of:
(a) surrounding, entering and searching homes without voluntary consent and in the absence of exigent circumstances in violation of the Fourth Amendment to the United States Constitution; (b) stopping, detaining, investigating, searching, and effecting seizures in the absence of reasonable, articulable suspicion of unlawful activity or probable cause in violation of the Fourth Amendment to the United States Constitution, and (c) surrounding, entering and searching homes of Latinos, and stopping, detaining, investigating, searching, and effecting seizures of Latinos in violation of the Equal Protection clause of the Fifth Amendment of the United States Constitution.
& DACS 30(b)(6) Tr. 206:20-207:2 (Ex. 60). 34 See, e.g., ICE 4 Tr. 138:18-139:9 (Ex. 31). 35 6/16/10 ICE Objections & Resps. to Pls.’ RFA Nos. 43-44 (Ex. 61) (admitting that ICE “has
conducted more than one operation at certain locations, including residences” and has no policy prohibiting repeat home operations). 36 See Beveridge Report ¶¶ 10, 14, 27 (Ex. 45) (showing that targets were a small subset of those arrested by ICE during home raid operations).
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During warrantless operations whose purported goal was to arrest specified targets via home entries, ICE surrounded named plaintiffs’ homes in the early morning hours and entered and searched without probable cause, consent, or exigent circumstances, seizing occupants, including children, regardless of whether they were the target or whether the target even lived at the home, in violation of the Fourth Amendment. As defendants concede, not one of the 21 putative class representatives was a target of any ICE operation.37 Further, defendants admit that they were without judicial warrants or probable cause authorizing entry of plaintiffs’ homes.38 Incredibly, defendants argue that agents obtained informed consent to enter and search each and every home at issue throughout their warrantless operations. But plaintiffs’ testimony makes clear that ICE did not obtain consent to enter or search — testimony corroborated by numerous reports and studies, by defendants’ own admissions, and documentary evidence of ICE New York’s policies and practices.39 On the other hand, when placed under oath at deposition,
37 11/15/10 ICE’s Revised Objections & Resps. to Pls.’ RFA No. 14 (Ex. 63). 38 See, e.g., 4/20/10 Hr’g Tr. 48:1-2 (Ex. 4) (“We conceded very early on that these operations
were not based on probable cause.”); ICE & Official Capacity Defs. Answer ¶¶ 204, 205, 233, 262-63, 321, 339, 350, 360, 394, 399, 400. 39 E.g., 11/1/07 Bartley Aff. at US6353 (Ex. 54); 10/17/07 Bartley Email (Ex. 64); 4/6/10 Report of Investigation at US48663-69 (Ex. 65); 9/27/07 Report of Investigation at US6393-95 (Ex. 66); 10/25/07 Bartley Memo (Ex. 47); L. Mulvey Tr. 14:18-16:21, 32:22-33:25 (Ex. 38); ICE 6 Tr. 150:21-152:2 (Ex. 29); Expert Report of Dan Montgomery ¶¶ 22-33 (“Montgomery Report”) (Ex. 67); Immigration Judge Decisions (Exs. 68 & 69); 4th Am. Complaint Exs. 1-2.
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defendants professed a lack of recollection concerning the specifics of receiving any consent, and consent was not noted on a single one of the 180 OI Form I-213 Reports produced in this case.40
Such conduct was hardly surprising, given that ICE policies or their equivalent instruct agents to: establish a perimeter around a home prior to a warrantless entry, thus effecting seizure of the occupants within before even attempting to solicit entry; approach homes with teams of agents totaling 6 to 12 agents; wear tactical gear, including raid jackets and firearms; and utilize ruses to effectuate entry.41 Once inside, ICE policies and their equivalent instruct agents to: effect “investigative stops” of residents inside homes that amount to detentions prior to questioning; tell home occupants, “Let me see your hands”; establish “control points” in order to
40 E.g., ICE 1 Tr. 279:23-280:2, 120:12-121:13 (Ex. 70); ICE 2 Tr. 213:25-214:6 (Ex. 5); ICE 3 Tr. 163:5-14, 177:15-178:18, 180:10-25, 242:14-243:7 (Ex. 71); ICE 4 Tr. 200:16-201:17, 284:11-19 (Ex. 31); ICE 5 Tr. 144:8-146:10; 115:13-24 (Ex. 72); ICE 6 Tr. 140:8-18, 144:9-11 (Ex. 29); ICE 7 Tr. 70:3-5, 115:11-116:13, 123:15-17 (Ex. 73); ICE 8 Tr. 162:6-10, 161:14-17, 346:3-7 (Ex. 74); ICE 9 Tr. 107:12-14, 212:8-14, 258:18-21 (Ex. 28); ICE 10 Tr. 190:9-191:1, 193:24-194:4, 205:22-206:4 (Ex. 75); ICE 11 Tr. 192:8-10 (Ex. 76); ICE 13 Tr. 168:3-6, 202:11-203:11 (Ex. 30); ICE 18 Tr. 196:8-25 (Ex. 77); ICE 21 Tr. 299:5-300:5; 337:25-338:12 (Ex. 21); ICE 22 Tr. 95:16-96:7; 97:18-20 (Ex. 78); ICE 23 Tr. 160:11-13; 179:12-17 (Ex. 79); ICE 25 Tr. 108:16-20; 141:25-142:9 (Ex. 80); ICE 26 Tr. 105:6-10 (Ex. 81); ICE 42 Tr. 131:1922 (Ex. 25); ICE 39 Tr. 263:23-264:16, 268:20-23 (Ex. 50); ICE 41 Tr. 141:14-20 (Ex. 26); ICE 46 Tr. 196:19-197:8 (Ex. 82); ICE 48 Tr. 216:2-4; 222:25-223:6 (Ex. 83); ICE 49 Tr. 174:24175:2 (Ex. 84); ICE 51 172:9-12, 218:6-11 (Ex. 85); Beveridge Report ¶¶ 32-33 (Ex. 45).
41 E.g., Operational Plans (Exs. 86 & 87); Ruse Memos (Exs. 88, 89, & 90); 10/25/07 Bartley Memo (Ex. 47).
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“centralize subjects” inside homes; and prevent residents from using the phone. 42 ICE policies that substantially increased agent arrest quotas and endorsed large-scale collateral arrests of nontargets, encouraged and promoted New York ICE agents to disproportionately target neighborhoods and homes of Latinos.43 Named plaintiffs’ experiences are thus markedly similar to those of countless others whose homes are invaded by ICE, and ICE subjects the occupants of such homes to a strikingly consistent and common course of conduct.
ICE New York agents noted internally that raids have been characterized by racial profiling and by nonconsensual entries and searches. These internal allegations of racial profiling are corroborated by testimony, including from local law enforcement personnel, indicating that during jointly conducted raids, ICE agents on multiple occasions used derogatory and racist terms such as “wetback” to refer to the Latinos whose homes were being raided and who were being detained for questioning or arrested. 44 ICE agents exhibited no real interest in apprehending the purported targets but instead seized and questioned all Latinos they encountered.45
42 E.g., ICE Detention and Removal Operations Division Glynco GA at US22064-174 (Ex. 91); 10/24/08 D. Williams Decl. (Ex. 15).
43 E.g., Markowitz Report ¶¶ 61-63 (Ex. 46); Montgomery Report ¶¶ 107-110 (Ex. 67); A Tangeman Memos. (Exs. 92 & 93); J. Torres Memos. (Exs. 94 & 95); OCS Bulletpoint Memo at USE02006-07 (Ex. 96); DRO 30(b)(6) Tr. at 318:2-322:10 (Ex. 62); G. Bartley Tr. 125:24129:7 (Ex. 97); US47141-52 (Ex. 98).
44 See, e.g., W. Smith Tr. 353:3-355:7 (Ex. 57); L. Mulvey Tr. 69:22-70:16, 72:6-18 (Ex. 38); A. Mulrain Tr. 94:14-99:20 (Ex. 53); see also ICE 4 Tr. 331:13-15 (Ex. 31).
45 Markowitz Report ¶ 12 (Ex. 46); Beveridge Report ¶¶ 23, 28 (Ex. 45).
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It is clear that ICE’s determination of whether to enter and search a home and seize individuals inside depends on whether agents encounter a Latino at the front door, and that ICE agents treat Latinos differently than non-Latinos. When ICE agents encounter a Latino person at the front door of a home, they routinely enter and search the entire home without obtaining voluntary consent regardless of whether they have any reason to believe their purported target resides within.46 Once inside homes, ICE agents improperly seize residents based on their Latino appearance, immediately handcuffing some without bothering to question them first. For example, at 165 Main Street, where an Immigration Judge found an “egregious violation” of the Fourth Amendment, agents seized putative class representative William Lazaro Melchor from his bed and frisked him before confirming his identity or inquiring into his status.47 In the same building, officers handcuffed two Latino lawful permanent residents and placed one of them inside an ICE vehicle before any agent questioned him about his right to be in the United States.48 Similarly, at 417 East Avenue, where another Immigration Judge found an “egregious violation” of the Fourth Amendment, agents ordered putative class representative Juan Jose Mijangos out of his bedroom and handcuffed him prior to questioning.49 During the OCS
46 See supra notes 11-19. 47 W. Lazaro Melchor Tr. 62:24-64:23 (Ex. 43). 48 R. Gonzales Tr. 89:21-91:5, 110:5-24, 137:5-13 (Ex. 101); D. Lazaro Perez Tr. 72:6-24 (Ex.
102) (describing interrogation of Gilberto Soto); 10/16/08 Complaint, Soto v. United States, No. 09 Civ. 8884 (S.D.N.Y. ECF No. 1) ¶¶ I.1, II.4-9 (describing 79-year-old lawful permanent resident being handcuffed) (Ex. 103). 49 J. Mijangos Tr. 132:2-14 (Ex. 36).
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operations, ICE agents handcuffed plaintiffs Elder Bonilla and Diana Rodriguez, both of whom had valid immigration documents, prior to any questioning.50
In contrast, when encountering non-Latinos at the door of a target residence, ICE agents decline to even interrogate them. ICE agents, for example, did not even attempt to search the dwelling space of the white landlady who initially answered the door at the 20 Boatsteerers Court location, instead entering and searching the apartment of her Latino tenants without seeking their consent.51 At other homes where non-Latinos opened the front door, agents walked away without entering or making any further inquiries. This disparity is graphically illustrated by the conduct of ICE agents during a September 27, 2007 OCS operation at 318 Second Street in Greenport. When James Berry, a white male, opened the door, the ICE agent at the door immediately apologized, stating “I think we have the wrong address,” and departed without questioning Mr. Berry or attempting to seek entry into his home.52 Similarly, a different OCS ICE team at 34 Elk Street in Hempstead encountered an African-American man at the door and declined to seek entry or to search the home.53 At yet another home targeted during OCS, ICE agents who encountered a white woman at entry declined to conduct a search.54
In addition, statistical evidence demonstrates that ICE New York disproportionately targeted and arrested Latinos relative to the non-citizen and undocumented immigrant populations in areas where home operations were conducted. For example, an analysis of OI raids in Nassau and Suffolk counties demonstrated that 97.1% of ICE targets were Latino, but
50 E. Bonilla Tr. 102:17-24 (Ex. 99); D. Rodriguez Tr. 94:17-98:4 (Ex. 100). 51 D. Drohan Tr. 104:10-16, 112:12-113:2, 114:19-115:13 (Ex. 19). 52 J. Berry Tr. 13:23-14:21 (Ex. 8). 53 E. Egan Tr. 327:11-328:10 (Ex. 104).
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accounted for a mere 53.1% of non-citizens according to census data (an 82.8% overrepresentation of Latinos).55 But ICE arrested non-target Latinos on an even more disproportionate basis: 99.3% of non-target arrestees in Nassau and Suffolk counties were Latino (147 of 148 arrests) — a 115.1% overrepresentation considering that Latinos accounted for only 53.1% of non-citizens in that area according to census data.56 Statistical data demonstrates that ICE New York policies and practices disproportionately targeted Latinos at each stage in the home operation procedure — from the selection of work folders, to the generation of target lists, to the neighborhoods and homes selected for raids, to the selection of non-target arrestees.57
The ICE New York agents’ conduct demonstrates a common course of conduct, pursuant to policies and their equivalent, of racially profiling and otherwise discriminating against Latinos. The proposed class thus satisfies the commonality requirement for class certification.
3. The Claims of the Named Plaintiffs are Typical of the Claims of the Members of the Proposed Class
The claims of the putative class representatives are typical of the claims of the class because they arise from the same unreasonable and unlawful conduct, and because all class members will benefit from this action. Putative class representatives are Latinos who reside in the jurisdiction of ICE New York, and all claim violations of the Fourth and Fifth Amendments.
54 ICE 50 Tr. 185:17-186:23 (Ex. 105). 55 Beveridge Report Corrected Ex. 3 (Ex. 106). 56 Beveridge Report Corrected Ex. 6 (Ex. 107). 57 See generally Beveridge Report (Ex. 45); Rebuttal Report of Andrew Beveridge ¶¶ 7, 9, 28-
33, 37, 51-52 (Ex. 108).
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Rule 23(a)(3) requires that “the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001), cert. denied, 535 U.S. 951 (2002) (quoting Marisol A., 126 F.3d at 376). “The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).” Marisol A., 126 F.3d at 376 (citing, inter alia, Gen. Tel. Co. of the S.W v. Falcon, 457 U.S. 147, 157 n.13 (1982)). Similar to commonality, “[t]ypicality does not require that the situations of the named representatives and the class members be identical.” In re Oxford Health Plans, Inc. Sec. Litig., 191 F.R.D. 369, 375 (S.D.N.Y. 2000). Typicality “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A., 126 F.3d at 376 (quotation omitted)). Further, “the [typicality] rule is satisfied . . . if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.” Daniels, 198 F.R.D. at 418 (quoting Marisol A., 929 F. Supp. at 691); see also Robidoux, 987 F.2d at 936-37 (when named plaintiffs allege the same unlawful conduct was directed at the proposed class, “the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”).
In addition, “named plaintiffs satisfy the typicality requirement when all members of the class would benefit from the named plaintiffs’ action.” Gulino v. Bd. of Educ. of City Sch. Dist. of N.Y., 201 F.R.D. 326, 332 (S.D.N.Y. 2001); see also Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 206 (E.D.N.Y. 2005); Cutler v. Perales, 128 F.R.D. 39, 45 (S.D.N.Y. 1989). Typicality may be presumed where plaintiffs seek injunctive relief on behalf of the class.
20

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 26 of 31
See Nicholson, 205 F.R.D. at 100 (“[T]he very nature of the relief sought, namely, an injunction and a declaration, is ample basis for finding that the claims of the named plaintiffs are typical of those of the proposed class in satisfaction of Rule 23 (a)(3).”)
The putative class representatives and all the members of the proposed class have claims arising from the same illegal policy, pattern, practice or custom by defendants of targeting Latino homes, entering and searching homes of Latino residents without warrants, consent, exigent circumstances or probable cause, and detaining Latino residents within, in violation of the Fourth and Fifth Amendments of the Constitution. The legal and remedial theories applicable to the named plaintiffs — equitable and injunctive relief — are equally applicable to members of the proposed class. The legal theories advanced by the named plaintiffs are representative of and consistent with the legal theories applicable to the claims of putative class members in light of ICE New York’s widespread pattern and practice of nonconsensual conduct during warrantless operations at the homes of Latinos.
Due to the current policies, patterns, practices or customs of ICE New York, all proposed class members are in danger of being subjected to ICE raids.58 Therefore, all proposed class members will benefit from the success of the named plaintiffs in obtaining injunctive relief to ensure that ICE’s enforcement operations do not violate the constitutional rights of Latinos
58 ICE confirms that the operations at issue in this case are ongoing. 6/16/10 ICE Objections & Resps. to Pls.’ RFA Nos. 37-39 (Ex. 61); J. Knopf Tr. 329:11-15 (Ex. 109); Collected ICE press releases (Ex. 110); 4th Am. Compl. Ex. 24 at 2 (ICE spokespersons have confirmed that these home raids will continue in the future and will be “unrelenting.”). 21

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 27 of 31
within the jurisdiction of ICE New York — and class certification will ensure that an Order of this Court is enforceable by class members.59
Accordingly, plaintiffs satisfy Rule 23(a)(3)’s typicality requirement. 4. The Named Plaintiffs Will Fairly and Adequately Protect the Interests of the Members of the Proposed Class
Plaintiffs and their counsel “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In order to satisfy the adequacy requirement, plaintiffs must show that (1) the interests of the named plaintiffs coincide with the interests of the class, and (2) class counsel is qualified, experienced, and generally able to conduct the litigation. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60-61 (2d Cir. 2000); In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992). Both elements are satisfied.
Where, as here, plaintiffs “seek broad based relief. . . . [and] the interests of the class members are identical despite the individualized problems of each plaintiff” courts have found the adequacy requirement satisfied. Nat’l Law Ctr., 224 F.R.D. at 325; see also Marisol A., 126 F.3d at 378; Dajour B. ex rel. L.S. v. City of New York, No. 00 Civ. 2044 (JGK), 2001 U.S. Dist. LEXIS 15661, at *28-31 (S.D.N.Y. Oct. 3, 2001) (Koeltl, J.). The interests of the named plaintiffs and the members of the proposed class are identical, and seek to end the defendants’ unconstitutional conduct.60
Second, the adequacy of class counsel is not subject to reasonable dispute. Plaintiffs are represented by LatinoJustice PRLDEF, a non-profit civil rights organization that has represented
59 See Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719, 727-28 (9th Cir. 1983) (government argued for limited scope of injunction absent prior class certification); In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 229 (2d Cir. 2006).
60 See, e.g., B. Jimenez Tr. 324:6-326:6 (Ex. 12); B. Velasquez Tr. 11:23-12:4 (Ex. 9).
22

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 28 of 31
Latinos in civil rights and class action litigation since l972, and Dewey & LeBoeuf LLP, a leading global private law firm that has handled countless class actions. Both LatinoJustice PRLDEF and Dewey & LeBoeuf LLP have extensive experience in constitutional law and classaction litigation and have the resources and commitment necessary to protect and advance the interests of all members of the proposed class throughout this litigation, and proceed on a pro bono basis.
B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2) Requests for class-wide injunctive relief are well-suited for certification under Rule 23(b)(2), which authorizes a class action when: “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . . .” Fed. R. Civ. P. 32(b)(2); see also Amchem Prods. Inc., 521 U.S. at 614. “When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.” Dukes, 131 S. Ct. at 2558. Certification is warranted here. The proposed class should be certified pursuant to Rule 23(b)(2) because plaintiffs seek an indivisible injunction benefiting all members of the proposed class at once — injunctive and declaratory relief from defendants’ policy, pattern, practice, or custom of conducting ICE enforcement operations in violation of the Fourth and Fifth Amendments. Specifically, plaintiffs request that the Court issue a declaratory judgment on behalf of plaintiffs declaring that the actions of defendants violated the Fourth and Fifth Amendments to the United States Constitution. Plaintiffs also seek an order permanently barring defendants from: surrounding, entering, and searching homes of Latinos without first obtaining informed consent; taking
23

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 29 of 31
actions to manufacture consent at such homes; and unlawfully identifying and targeting raid locations based upon the belief that Latino individuals inhabit such areas with the intent to detain and interrogate Latinos based on their race, national origin, or ethnicity. Further, plaintiffs seek a mandatory injunction compelling defendants to implement policies and training that will prevent ICE agents and officers from taking actions in violation of the United States Constitution, and to ensure that ICE agents and officers accurately record all home raid events, including but not limited to: demonstrating the necessity of a home operation; recording how and from whom informed consent to enter a home was obtained; and keeping accurate records of all home raids in an ICE database in order to avoid raiding a location unnecessarily or repeatedly, and to enable oversight and intervention if necessary.
Plaintiffs’ civil rights challenge to ICE New York’s policy and practice of warrantless seizures, home entries and searches is precisely the kind of injury that Rule 23(b)(2) was created to remedy. “Class certification under Rule 23(b)(2) is appropriate where ‘broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury.’” Jermyn, 256 F.R.D. at 433 (quoting Robinson, 267 F.3d at 162); D.S., 255 F.R.D. at 66 (“There has been no erosion of the class action as an appropriate means of vindicating constitutional rights. The law continues to recognize the Section 23(b)(2) class action as effective in such matters.”); see also Marisol A., 126 F.3d at 378 (finding “civil rights cases seeking broad declaratory or injunctive relief for a large and amorphous class . . . fall squarely into the category of 23(b)(2) actions”) (internal quotation marks and citation omitted); Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27, 34 (E.D.N.Y. 2002) (noting tradition of 23(b)(2) actions used to enjoin government conduct); see also Fed. R. Civ. P. 23(b)(2), Advisory Committee Notes to 1966 Amendment (civil-rights actions are “illustrative” of those well-suited for (b)(2) certification).
24

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 30 of 31 In fact, courts have found that Rule 23(b)(2) “is almost automatically satisfied in actions primarily seeking injunctive relief.” Nat’l Law Ctr., 224 F.R.D. at 325 (quoting Baby Neal, 43 F.3d at 58)). The fact that named plaintiffs seek damages individually does not impact the Rule 23(b)(2) analysis. See, e.g., Biediger v. Quinnipiac Univ., No. 3:09cv621, 2010 U.S. Dist. LEXIS 50044, at *26-27 (D. Conn. May 20, 2010) (applying Rule 23(b)(2) to certify a class seeking injunctive relief where named plaintiffs sought damages but the proposed class did not); Ingles v. City of New York, No. 01 Civ. 8279, 2003 U.S. Dist. LEXIS 2453, at *24-27 (S.D.N.Y. Feb. 18, 2003) (certifying a class seeking injunctive relief pursuant to Rule 23(b)(2) where only the named plaintiffs sought damages). Accordingly, class certification is appropriate under Rule 23(b)(2). IV. CONCLUSION For all of the foregoing reasons, plaintiffs respectfully request that the Court grant their Motion for Class Certification.
25

Case 1:07-cv-08224-KBF Document 297 Filed 10/14/11 Page 31 of 31

 
 Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 1 of 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
-against-
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

x : : ECF Case : Civil Action No. : 07 CIV 8224 (JGK) (FM) : : : : : : x

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

DEWEY & LEBOEUF LLP Aldo A. Badini Kelly A. Librera Lawrence S. Hirsh Jennifer Opheim Whitener 1301 Avenue of the Americas New York, New York 10019 Tel.: (212) 259-8000 Fax: (212) 259-6333

LATINOJUSTICE PRLDEF Foster Maer Ghita Schwarz Christina Iturralde
99 Hudson Street, 14th Floor New York, NY 10013 Tel.: (212) 739-7504 Fax: (212) 431-4276

Attorneys for Plaintiffs

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 2 of 30

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................3

A. Background Facts Regarding Operation at 710 Jefferson Street ...................................3 B. Background Facts Regarding Operation at 15 W. 18th Street........................................9

ARGUMENT .................................................................................................................................13

I. Summary Judgment Standard ......................................................................................13

II. The Defendants, Acting in Their Capacity as Federal Agents, Violated Plaintiffs’ Fourth Amendment Rights..........................................................................15

A. The Moving Plaintiffs Had An Expectation Of Privacy In Their Homes And Curtilage ............................................................................................16

B. Defendants Did Not Obtain Consent To Enter or Search ......................................17

C. Any Purported Consent Would Have Been Invalid...............................................19

1. Defendants Were Not Even in a Position to Obtain Consent From People With Authority or Capacity To Grant It...............................................19

2. Any Purported Consent Was Not Free And Voluntary ...................................20

CONCLUSION..............................................................................................................................25

i

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 3 of 30
TABLE OF AUTHORITIES
Page(s) CASES Abdella v. O’Toole,
343 F. Supp. 2d 129 (D. Conn. 2004)..........................................................................19, 20, 23 Aguilar v. ICE,
Civ. No. 07-8224, 2011 WL 3273160 (S.D.N.Y. Aug. 1, 2011).............................................24 Anobile v. Pelligrino,
303 F.3d 107 (2d Cir. 2002) ..............................................................................................14, 17 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971).......................................................................................................1, 15, 16 Bumper v. North Carolina,
391 U.S. 543 (1968).................................................................................................................19 Celotex Corp. v. Catrett,
477 U.S. 317 (1986)...........................................................................................................14, 15 Djonbalic v. City of New York,
No. 99 CIV. 11398, 2000 WL 1146631 (S.D.N.Y. Aug. 14, 2000) ..................................21, 23 Dolphin Direct Equity Partners, LP v. Interactive Motorsports & Entm’t Corp.,
No. 08 Civ. 1558, 2009 WL 577916 (S.D.N.Y. Mar. 2, 2009) ...............................................15 Florida v. Bostick,
501 U.S. 429 (1991).................................................................................................................22 Gagnon v. Ball,
696 F.2d 17 (2d Cir. 1982) ......................................................................................................16 Groh v. Ramirez,
540 U.S. 551 (2004).................................................................................................................16 Hoffa v. United States,
385 U.S. 293 (1966).................................................................................................................24 JSC Foreign Econ. Assoc. Technostroyexport v. Int’l Dev. & Trade Svcs., Inc.,
386 F. Supp. 2d 461 (S.D.N.Y. 2005)................................................................................14, 15 Kaupp v. Texas,
538 U.S. 626 (2003).................................................................................................................22 Kyllo v. United States,
533 U.S. 27 (2001)...................................................................................................................16 LaDuke v. Nelson,
762 F.2d 1318 (9th Cir. 1985) ...........................................................................................21, 22
ii

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 4 of 30
Nextec Applications v. Brookwood Cos., Inc., 703 F. Supp. 2d 390 (S.D.N.Y. 2010)................................................................................14, 15
Payton v. New York, 445 U.S. 573 (1980).................................................................................................................16
People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275 (S.D.N.Y. 2000)......................................................................................16
Roybal v. City of Albuquerque, Civ. No. 08-0181, 2009 WL 1329834 (D.N.M. Apr. 28, 2009) ..............................................16
Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir 1991)......................................................................................................17
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).................................................................................................................21
Silverman v. United States, 365 U.S. 505 (1961).................................................................................................................16
Steagald v. United States, 451 U.S. 204 (1981).................................................................................................................16
U.S. v. Mendenhall, 446 U.S. 544 (1980)...........................................................................................................22, 23
United States v. Brown, 961 F.2d 1039 (2d Cir. 1992)...................................................................................................19
United States v. Dunn, 480 U.S. 294 (1987).................................................................................................................16
United States v. Gamez, 389 F. Supp. 2d 975 (S.D. Ohio 2005) ....................................................................................20
United States v. Hardin, 539 F.3d 404 (6th Cir. 2008) ...................................................................................................24
United States v. Hassock, 631 F.3d 79 (2d Cir. 2011).......................................................................................................19
United States v. Heisman, 503 F.2d 1284 (8th Cir. 1974) .................................................................................................19
United States v. Hernandez-Juarez, No. SA-09-CR-19-XR, 2009 WL 693172 (W.D. Tex. Mar. 16, 2009)...................................24
United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) ...................................................................................................22
United States v. Mapp, 476 F.2d 67 (2d Cir. 1973).................................................................................................19, 24
United States v. Montes-Reyes, 547 F. Supp.2d 281 (S.D.N.Y. 2008).......................................................................................24
iii

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 5 of 30 United States v. Restrepo-Cruz,
547 F. Supp. 1048 (S.D.N.Y. 1982).........................................................................................24 United States. v. Wilson,
11 F.3d 346 (2d Cir. 1993).......................................................................................................19 RULES Fed. R. Civ. P. 56...........................................................................................................................14 CONSTITUTIONAL PROVISIONS U.S. Const. Amendment IV ...........................................................................................................16
iv

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 6 of 30
PRELIMINARY STATEMENT Plaintiffs Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez, Pelagia De La RosaDelgado, Christopher Jimenez, Bryan Jimenez, and Anthony Jimenez (the “Moving Plaintiffs”) submit this Memorandum of Law in support of their Motion for Partial Summary Judgment against ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 39, ICE 40, ICE 41, ICE 42, ICE 45, ICE 46, ICE 47, ICE 48, ICE 50, ICE 51, and ICE 52
1
(“Defendants”). These women and children were subjected to unconstitutional home entries, searches and seizures by Immigration and Customs Enforcement (“ICE”) agents in home-raid operations carried out under the direction of the New York Regional Office of ICE Office of
2
Investigation (“ICE New York”). The Moving Plaintiffs seek partial summary judgment on the Third Claim of their Fourth Amended Complaint. Specifically, the Moving Plaintiffs respectfully submit that the Court should conclude, based on the undisputed facts, that the Defendants set forth above are liable for unconstitutional entry into and search of their homes.
The undisputed evidence with respect to these two homes shows that the Defendants did not possess either judicial warrants or exigent circumstance to enter or search the homes, and did
1
While plaintiffs residing at seven different addresses are currently pursuing Bivens Fourth Amendment claims, this motion is limited to the unconstitutional entry at and search of two of these homes, and to the Moving Plaintiffs and the agent defendants who participated in the raids of those homes, because the undisputed facts demonstrate unequivocally that summary judgment in favor of the Moving Plaintiffs is appropriate. The remaining plaintiffs intend to prove their claims at trial against the remaining defendants, just as the Moving Plaintiffs intend to prove their remaining claims at trial.
2
As of June 2010, the Office of Investigation (OI) is now Homeland Security Investigations.
1

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 7 of 30
not obtain consent to enter or search the homes. The Moving Plaintiffs have testified plainly that they did not grant the Defendants consent to enter or search their homes or curtilage. And not one of the agents involved has been able to provide any evidence demonstrating that they (or anyone else) obtained such consent to enter or search the Plaintiffs’ private spaces, much less from whom. Thus, based on undisputed facts, this Court should find that the Defendants participated in an unconstitutional home entry and search in the absence of consent.
Further, even if the agents had sought and obtained consent to enter and/or search (which they indisputably did not), the undisputed evidence demonstrates that any “consent” they would have obtained would have been coerced and invalid. Consistent with their operations plan and ICE policy guidance, ICE agents conducted raids in large teams of agents, visibly armed and wearing body armor in the early morning hours. They, with local police, surrounded the homes and entered the properties’ curtilage. They pounded on doors and windows and shouted “police” and “open the door!” The ICE agents forced their way into the homes as soon as the doors were opened, in both cases by minor children, without first obtaining lawful consent to do so. At one of the two homes at issue, they announced that “someone was dying upstairs” and entered after encountering only a 12-year-old girl in pajamas.
After gaining entry illegally, ICE agent Defendants swept through and searched each residence without a warrant or any legitimate basis for doing so. They burst into private bedrooms, jarring several residents out of sleep. ICE agents shoved, pushed and pulled residents. Agents drew their weapons or clutched them in their holsters. They corralled residents, many of whom were undressed, and prevented them from moving freely in their own homes, from using their phones, and from obtaining the assistance of their parents.
2

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 8 of 30
Thus, the undisputed testimony — of the Moving Plaintiffs, third parties and Defendants alike — demonstrates that the Defendants entered and searched the Moving Plaintiffs’ homes in violation of the Moving Plaintiffs’ constitutional rights.
BACKGROUND A. Background Facts Regarding Operation at 710 Jefferson Street
On September 24, 2007, between 5:30 and 6:30 a.m., while it was not yet light, plaintiffs Sonia Bonilla, a legal permanent resident, and her minor daughters Beatriz Velasquez (then age 12) and Dalia Velasquez (then age 9), both United States citizens, (collectively, the “710 Jefferson Plaintiffs”) were subjected to an ICE operation at their home located at 710 Jefferson
3
Street, Westbury, New York. Ten ICE agents – ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE
26, and ICE 42 (collectively, the “710 Jefferson Defendants”) – together with at least one Nassau County Police officer, descended on the home pursuant to Operation Community Shield, an ICE
4
initiative purportedly designed to target alleged gang members or gang associates. ICE and the
3
Declaration of Lawrence Hirsh in Support of Pls’ Motion for Partial Summary Judgment, dated October 28, 2011 (“LH Decl.”) Ex. 2 at 79:19-81:12, 90:2-14; LH Decl. Ex. 3 at 33:7-11; LH Decl. Ex. 4 at 90:21-91:9; LH Decl. Ex. 5 at 146:15-23; LH Decl. Ex. 6 at 116:18-25, 143:20-24; LH Decl. Ex. 7 at 152:13-24; LH Decl. Ex. 8 at 216:7-15; LH Decl. Ex. 9 at 91:16-18, 94:22-24, 165:24-166:21; LH Decl. Ex. 10 at 49:11-18; LH Decl. Ex. 11 at 82:25-83:5; LH Decl. Ex. 12 at 100:19-23; LH Decl. Ex. 13 at 91:15-16, 145:4-6; LH Decl. Ex. 14 at 99:4-6, 120:7-11; LH Decl. Ex. 71.
4
See LH Decl. Exs. 61, 62, 63; LH Decl. Ex. 1 at 5; LH Decl. Ex. 8 at 205:23-206:20; LH Decl. Ex. 60 at Nos. 16, 21.
3

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 9 of 30
5
agents concede that no agent had any judicial search or arrest warrants. The agents approached
and/or surrounded the home and entered the curtilage of the home, including a fenced-in
6
backyard. The 710 Jefferson Defendants and officers parked at least seven cars on the street
7
near the front of the house.
While Ms. Bonilla was driving her husband to work, her daughters became aware that
8
agents and officers had surrounded the home. The agents began knocking so loudly on the door
9
that the residents thought they were trying to force it open. They identified themselves as
5
LH Decl. Ex. 60 at No. 25.
6
LH Decl. Ex. 5 at 150:21-151:17; LH Decl. Ex. 6 at 119:13-120:13, 122:9-11; 142:7-
19,143:12-16; LH Decl. Ex. 7 at 122:25-123:13; LH Decl. Ex. 8 at 220:19-221:21; LH Decl. Ex.
9 at 91:22-25, 95:16-96:7, 96:18-20, 129:2-12; LH Decl. Ex. 10 at 157:19-24, 160:11-13; LH
Decl. Ex. 12 at 101:4-12; LH Decl. Ex. 13 at 89:2-18, 90:10-17; LH Decl. Ex. 14 at 93:12-25;
LH Decl. Exs. 65, 66.
7
LH Decl. Ex. 5 at 252:3-19; LH Decl. Ex. 6 at 73:19-20, 117:13-119:19; LH Decl. Ex. 7 at
62:19-22, 115:23-25, 117:22-118:12; LH Decl. Ex. 8 at 164:14-17, 207:20-208:12; LH Decl. Ex.
9 at 87:14-88:19; LH Decl. Ex. 10 at 106:2-4, 108:8-19; LH Decl. Ex. 11 at 76:4-20; LH Decl.
Ex. 12 at 69:19-70:3, 96:22-97:5; LH Decl. Ex. 13 at 41:4-12, 65:15-23, 66:2-10; LH Decl. Ex.
14 at 88:5-6, 99:10-19, 99:20-23; LH Decl. Ex. 4 at 107:5-12; LH Decl. Exs. 64, 67, 68.
8
LH Decl. Ex. 4 at 103:19-104:23, 113:24-115:5, 105:20-106:14; LH Decl. Ex. 3 at 79:6-16,
82:14-22, 87:2-12.
9
LH Decl. Ex. 15 at 45:6-24; LH Decl. Ex. 16 at 71:3-72:10.
4

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 10 of 30

10

11

12

“police, shouted that “someone was dying upstairs,” and shone flashlights into the window.

13
They also ordered the residents to “open the door” and “tie down the dog.”

In response to the banging, the cries that “someone was dying upstairs,” the shouts of

“police!,” and the shining flashlights, then 12-year old Beatriz Velasquez, who admittedly
14
looked “young,” opened the front door and stepped outside, where she saw several agents in the
15
front yard. While in her pajamas, she had a brief discussion with the agents, after having just
16
woken up. None of the agents requested or received consent from her to enter the home.

Instead, several of the 710 Jefferson Defendants stepped around her, “went through” the door
17
and spread throughout the house. There is no evidence that anyone else living in the house

other than Beatriz was speaking to the agents when they entered through the front door. Not one

10
LH Decl. Ex. 3 at 79:6-16, 87:2-12; LH Decl. Ex. 6 at 146:22-147:13; LH Decl. Ex. 15 at
40:8-11, 45:6-24; LH Decl. Ex. 16 at 71:3-72:10; LH Decl. Ex. 17 at 53:10-54:2.
11
LH Decl. Ex. 3 at 82:23-83:13; LH Decl. Ex. 4 at 109:4-10; LH Decl. Ex. 17 at 53:10-54:5.
12
LH Decl. Ex. 3 at 79:6-16; LH Decl. Ex. 4 at 114:3-115:5, 132:2-20.
13
LH Decl. Ex. 16 at 76:14-78:10, 80:19-81:24.
14
LH Decl. Ex. 5 at 167:19-168:4; LH Decl. Ex. 69.
15
LH Decl. Ex. 3 at 94:4-98:22, 101:25-103:15.
16
LH Decl. Ex. 3 at 94:4-99:5.
17
Id.
5

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 11 of 30
of the 710 Jefferson Defendants claims to have obtained consent to enter the residence from
18
Beatriz or anyone else.
19
Once inside, the agents searched the home, some with their guns drawn and others with
20
their hands on their weapons. They looked through closets of the girls’ bedroom and then
21
ordered the two girls to go into their room and stay there with the door closed. The agents then
22
went upstairs, banging and shouting on doors throughout the house and ordering and
23
“securing” residents in a living room. Not one 710 Jefferson Defendant could identify any
24
particular danger at the home which existed during the entry of or search at 710 Jefferson.
18
LH Decl. Ex. 5 at 196:5-197:7; LH Decl. Ex. 6 at143:12-16; LH Decl. Ex. 7 at 221:15-222:19;
LH Decl. Ex. 8 at 299:5-13, 299:24-300:8; LH Decl. Ex. 9 at 95:12-96:20; LH Decl. Ex. 10 at
160:11-13, 170:15-21; LH Decl. Ex. 11 at 104:2-8; LH Decl. Ex. 12 at 141:20-142:9, 144:16-19;
LH Decl. Ex. 13 at 128:11-14; LH Decl. Ex. 14 at 127:2-15, 131:19-22.
19
ICE 18, 21, 23, 25, and 26 admit to entering the home. LH Decl. Ex. 5 at 169:6-171:24; LH
Decl. Ex. 8 at 264:8-265:12; LH Decl. Ex. 10 at 161:5-162:14, 164:11-15, 165:2-166:9; LH
Decl. Ex. 12 at 111:20-23, 118:17-119:3; LH Decl. Ex. 13 at 101:12-21, 110:6-16.
20
LH Decl. Ex. 5 at 169:6-171:24; LH Decl. Ex. 10 at 161:5-162:14, 164:11-15, 156:2-166:9;
LH Decl. Ex. 4 at 184:6-185:20; LH Decl. Ex. 15 at 61:16-62:2, 63:19-21; LH Decl. Ex. 16 at
123:12-124:11, 125:25-126:9.
21
LH Decl. Ex. 5 at 169:4-171:24; LH Decl. Ex. 3 at 111:14-113:7, 105:5-11, 106:4-6, 109:9-
11, 133:13-19; LH Decl. Ex. 17 at 53:10-54:10.
22
LH Decl. Ex. 3 at 116:25-117:16; LH Decl. Ex. 16 at 71:3-15, 95:15-19, 109:23-110:12.
23
LH Decl. Ex. 8 at 264:8-9, 267:16-269:5; LH Decl. Ex. 10 at 161:5-162:14; LH Decl. Ex. 13
6

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 12 of 30
25
Sonia Bonilla, the owner of the home, returned home during the course of the operation.
She drove into her driveway and saw multiple agents on her lawn, some carrying weapons, as
26
well as agents on the side of her house. At least two of the 710 Jefferson Defendants ordered
her to leave her van and, despite no specific evidence of any danger, conducted a search of the
27
van. Agents, who by then knew she was the owner of the home and was obviously not a target
28
of the raid, at first prevented her from entering her own home.
Eventually Ms. Bonilla was permitted inside. She found several tenants of her home
handcuffed in her living room and went to her daughters’ bedroom to make sure they were
29
safe. Although she had locked her bedroom door that morning before she left to drive her
husband to work, and neither she nor her husband had been present when the 710 Jefferson
Defendants arrived and thus could not have given consent to search their bedroom, two of the
at 117:3-23.
24
LH Decl. Ex. 5 at 174:2-175:20; LH Decl. Ex. 6 at 131:25-132:11; LH Decl. Ex. 7 at 213:15-
16; LH Decl. Ex. 8 at 227:18-22; LH Decl. Ex. 9 at 66:2-19; LH Decl. Ex. 10 at 162:15-163:11,
179:20-180:4; LH Decl. Ex. 11 at 89:25-90:18; LH Decl. Ex. 12 at 108:23-109:2; LH Decl. Ex.
13 at 236:14-20 ; LH Decl. Ex. 14 at 200:13-201:4.
25
LH Decl. Ex. 2 at 90:2-9.
26
LH Decl. Ex. 2 at 100:22-101:7, 101:25-102:5.
27
LH Decl. Ex. 2 at 90:2-9, 113:22-114:8, 116:7-117:2; LH Decl. Ex. 8 at 256:16-22, 262:8-20.
28
LH Decl. Ex. 8 at 256:19-22; LH Decl. Ex. 60 at Nos. 14 and 68, 69.
29
LH Decl. Ex. 2 at 144:11-17, 146:6-23.
7

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 13 of 30
710 Jefferson Defendants were in the process of searching it, attempting to break open a locked
30
closet door and demanding she provide a key. Two other 710 Jefferson Defendants joined
31
them thereafter. No 710 Jefferson Defendant disputes that this entry and search occurred, and
there is no evidence that they obtained consent to enter or search Ms. Bonilla’s private bedroom.
The government admits that the 710 Jefferson Defendants did not have a judicial warrant
32
to enter the Bonilla residence or search it. The 710 Jefferson Defendants do not purport to have
33
had exigent circumstances or even probable cause to enter or search the residence. Not one of
the 710 Jefferson Defendants who entered the home could recall obtaining consent to enter or
34
search the home from plaintiffs or any of the other residents of the home.
30
LH Decl. Ex. 2 at 134:13-136:10.
31
Id.
32
LH Decl. Ex. 60 at No. 25.
33
LH Decl. Ex. 5 at 174:2-175:20; LH Decl. Ex. 6 at 131:25-132:11; LH Decl. Ex. 7 at 213:15-
16; LH Decl. Ex. 8 at 227:18-22; LH Decl. Ex. 9 at 66:2-19; LH Decl. Ex. 10 at 162:15-163:11,
179:20-180:4; LH Decl. Ex. 11 at 89:25-90:18; LH Decl. Ex. 12 at 108:23-109:2; LH Decl. Ex.
13 at 236:14-20; LH Decl. Ex. 14 at 200:13-201:4; LH Decl. Ex. 38 at 48:1-2.
34
LH Decl. Ex. 5 at 196:5-197:7; LH Decl. Ex. 6 at 143:12-16; LH Decl. Ex. 7 at 221:15-
222:19; LH Decl. Ex. 8 at 299:5-300:8; LH Decl. Ex. 9 at 95:12-96:20; LH Decl. Ex. 10 at
160:11-13, 170:15-21; LH Decl. Ex. 11 at 104:2-8; LH Decl. Ex. 12 at 141:20-142:9, 144:16-19;
LH Decl. Ex. 13 at 105:6-10, 128:11-14; LH Decl. Ex. 14 at 127:2-15, 131:19-22. In fact, many
of the agents had no idea who, if anyone, obtained consent. LH Decl. Ex. 5 at 180:22-181:3,
196:5-197:18; LH Decl. Ex. 8 at 299:24-300:8; LH Decl. Ex. 13 at 128:11-14; LH Decl. Ex. 14
8

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 14 of 30

The 710 Jefferson Defendants did not find their purported primary target, Luis Mata, or

their purported secondary target, Rojar Cruz, at this home. LH Decl. Ex. 77. B. Background Facts Regarding Operation at 15 W. 18th Street

On September 27, 2007, between 5:00 and 6:30 a.m., plaintiffs Pelagia De La Rosa-

Delgado and her minor sons, Christopher Jimenez, Anthony Jimenez, and Bryan Jimenez, all

United States citizens, (collectively, “15 W. 18th Street Plaintiffs”) were subjected to an ICE

operation

at

their

home

at

15

W.

18th

Street,

Huntington

Station,

New

35
York.

Eleven ICE agents – ICE 39, ICE 40, ICE 41, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, and ICE 52 (collectively, “15 W. 18th Street Defendants”) – together with at

least one Suffolk County Police officer, descended on the home pursuant to Operation

36
Community Shield, without any judicial search or arrest warrants. At least six of the 15 W.

18th

Street Defendants

approached

and/or

surrounded

the

home

37
and entered its curtilage.

The

remaining agents were also present on the scene, near the home, or cannot dispute their presence

at 127:2-15, 131:19-22.
35
LH Decl. Ex. 19 at 170:20-171:10; LH Decl. Ex. 20 at 251:2-4; LH Decl. Ex. 21 at 214:18-19;
LH Decl. Ex. 22 at 244:18-245:5; LH Decl. Ex. 23 at 195:3-4; LH Decl. Ex. 24 at 188:2-7; LH
Decl. Ex. 31 at 185:16-186:13; LH Decl. Ex. 25 at 136:14-17; LH Decl. Ex. 27 at 136:17-19.
36
LH Decl. Exs. 61, 62, 63; LH Decl. Ex. 1 at 6 (identifying ICE 39 team members for
September 27, 2007); LH Decl. Ex. 60 at Nos.16, 21; LH Decl. Ex. 60 at Nos. 22, 25.
37
LH Decl. Ex. 22 at 258:4-6, 262:5-13; LH Decl. Ex. 23 at 174:18-175:5; LH Decl. Ex. 24 at
151:4-16; LH Decl. Ex. 27 at 171:22-172:7; LH Decl. Ex. 30 at 174:2-6, 181:25-182:5.
9

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 15 of 30

38
at the operation.

The 15 W. 18th Street Defendants and officers parked their cars, which

39
numbered five or six, on the street near the front of the house.

Consistent with the conduct of the agents at 710 Jefferson, the 15 W. 18th Street

40
Defendants carried with them the raid gear called for by the applicable operations plan. The

agents and local police surrounded the perimeter of the home, shone flashlights outside and into

bedroom windows, and banged on the front door of the home and on other doors inside the

41

42

home. The agents at the front door insisted that someone “[o]pen the door.”

In response to the repeated banging and the command to “open the door,” Christopher

Jimenez, then 17 years old, who had been unable to sleep that night on account of recovering

from leg surgery and being ill, cracked the door open slightly after insisting unsuccessfully that
43
the agents identify themselves. One of the agents then pushed the door open, put his hand on

38
LH Decl. Exs. 61, 62, 63; LH Decl. Ex. 1 at 6; LH Decl. Ex. 25 at 135:25-136:13, 139:18-24,
149:6-20; LH Decl. Ex. 26 at 154:20-22; LH Decl. Ex. 28 at 213:9-19; LH Decl. Ex. 31 at 171:9-
18; LH Decl. Ex. 32 at 128:22-130:8, 156:5-23, 156:21-23.
39
LH Decl. Ex. 25 at 138:18-139:5; LH Decl. Ex. 27 at 83:2-7.
40
LH Decl. Ex. 1 at 15; LH Decl. Ex. 25 at 154:15-19; LH Decl. Ex. 27 at 149:23-150:9; LH
Decl. Ex. 32 at 141:16-20.
41
LH Decl. Ex. 19 at 171:16-21, 175:23-24, 176:11-13; LH Decl. Ex. 21 at 216:19-20, 217:22-
218:6; LH Decl. Ex. 20 at 249:5-252:4; LH Decl. Ex. 33 at 36:5-37:13; LH Decl. Ex. 34 at
33:19-25, 34:23-35:7; LH Decl. Ex. 36 at 153:8-154:2; LH Decl. Ex. 36 at 108:8-11.
42
LH Decl. Ex. 19 at 213:18-214:10; LH Decl. Ex. 20 at 256:18-22.
43
LH Decl. Ex. 19 at 165:16-166:8, 172:4-6; LH Decl. Ex. 20 at 256:20-257:9; LH Decl. Ex. 18

10

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 16 of 30
Christopher’s chest and pushed passed him, following which other Defendants barged into the
44
home and someone ordered Christopher to open the back door of the home. Additional agents entered through the back, sliding door, one of whom ordered Christopher to stop using his cell
45
phone. There is no evidence that any occupant of the house other than Christopher was at the front door at the time of entry. Not one of the 15 W. 18th Street Defendants, nor the Suffolk County police officer who accompanied them, claims to have obtained consent to enter the
46
residence from anyone.
at 269:11-272:14, 298:10-299:8.
44
LH Decl. Ex. 19 at 171:18-172:16, 197:6-16, 200:21-201:7; LH Decl. Ex. 20 at 257:4-9, 264:9-265:23.
45
LH Decl. Ex. 19 at 172:9-23.
46
LH Decl. Ex. 22 at 264:9-16, 267:22-268:2, 270:19-22, 279:2-8, 325:12-21; LH Decl. Ex. 23 at 129:25-130:3, 182:17-24; LH Decl. Ex. 24 at 141:18-142:4, 175:4-21; LH Decl. Ex. 25 at 168:19-169:2; LH Decl. Ex. 26 at 154:20-22, 170:9-12; LH Decl. Ex. 27 at 145:3-7, 184:22-24; LH Decl. Ex. 28 at 215:16-216:16; LH Decl. Ex. 29 at 146:9-22, 164:7-14, 174:24-175:2; LH Decl. Ex. 30 at 171:22-24, 180:15-19; LH Decl. Ex. 31 at 171:19-22, 172:9-12, 217:21-25, 218:6-11; LH Decl. Ex. 32 at 153:21-154:8, 162:11-20; LH Decl. Ex. 36 at 127:7-13; LH Decl. Ex. 19 at 262:16-21.
11

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 17 of 30

47
Once inside, agents grabbed and pulled Plaintiffs Anthony Jimenez and then 14-year-
48
old Bryan Jimenez and refused to let Anthony get appropriate clothing. Agents swept through

all floors of the home, including closets, banged on and shouted through doors throughout the

house and ordered and secured residents, at least some of whom were still in their pajamas, in the

49
living room.

The 15 W. 18th Street Plaintiffs (and other residents of the home) were instructed

not to move, and agents stood guard to ensure that they did not. Indeed, Anthony, Christopher
50
and Bryan were not even permitted to retrieve their mother. The agents banged on the doors

and entered the rooms of sleeping residents, including that of Plaintiff Peggy De La Rosa-
51
Delgado, the owner of the home, without consent.

47
At a minimum, ICE 39, 40, 41, 47, 49, and 50 entered the home. LH Decl. Ex. 22 at 262:5-
263:15; LH Decl. Ex. 23 at 174:18-175:12; LH Decl. Ex. 24 at 144:3-4, 162:2-15; LH Decl. Ex.
27 at 133:13-25, 145:3-7. ICE 40 testified, moreover, that when he entered the home, there were
at least six agents inside. LH Decl. Ex. 23 at 175:8-176:9.
48
LH Decl. Ex. 20 at 257:10-21, 266:11-269:9; LH Decl. Ex. 21 at 227:6-20, 231:24-233:14.
49
LH Decl. Ex. 19 at 185:18-186:7; LH Decl. Ex. 20 at 268:4-269:9, 270:16-271:4, 273:5-10,
287:23-294:7; LH Decl. Ex. 21 at 233:11-14, 236:17-237:11, 255:8-17, 266:15-267:9.
50
LH Decl. Ex. 19 at 173:13-174:2; LH Decl. Ex. 20 at 277:10-17, 279:17-25, 294:21-297:6; LH
Decl. Ex. 21 at 236:12-16, 240:3-13, 262:9-263:19.
51
LH Decl. Ex. 19 at 174:23-175:10; LH Decl. Ex. 20 at 287:23-294:7; LH Decl. Ex. 21 at
240:14-24; LH Decl. Ex. 24 at 176:23-179:9, 183:8-11, 270:24-271:7.
12

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 18 of 30

The government admits that the 15 W. 18th Street Defendants did not have a judicial

warrant

to

enter

or

search

the

52
home.

The

15

W.

18th

Street

Defendants

do

not

purport

to

have

perceived a particularized fear of danger, an emergency, or even probable cause to enter or

search

the

53
residence.

Not

one

of

the

15

W.

18th

Street

Defendants

who

entered

the

home

could

54
recall obtaining consent to enter or search the home from anyone.

The 15 W. 18th Street Defendants did not find their purported target, Miguel Quintanilla,

at this home. Not one person in the home was taken into custody.

ARGUMENT

I. Summary Judgment Standard

The Court should grant the Moving Plaintiffs’ motion for partial summary judgment

finding the Defendants liable on their Third Claim for the violation of their Fourth Amendment

rights on the basis that the Defendants participated in an operation involving the entry into and

52
LH Decl. Ex. 60 at Nos. 22, 25.
53
LH Decl. Ex. 38 at 48:1-2; LH Decl. Ex. 36 at 171:14-22; LH Decl. Ex. 30 at 198:6-10; LH Decl. Ex. 24 at 192:23-193:15; LH Decl. Ex. 25 at 167:19-24; LH Decl. Ex. 27 at 174:16-22; LH Decl. Ex. 32 at 179:21-180:3; LH Decl. Ex. 31 at 262:12-16; LH Decl. Ex. 29 at 190:18-191:6; LH Decl. Ex. 28 at 88:23-89:7.
54
Although one agent testified that, once inside the house, she asked Christopher whether the agents could go to the basement, she expressly stated at other points of her testimony that she did not ask for consent to search at any point during the week of September 24, 2007. Compare LH Decl. Ex. 22 at 291:11-20 with LH Decl. Ex. 22 at 270:19-22.
13

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 19 of 30
search of the Moving Plaintiffs’ homes without judicial warrants, exigent circumstances, or valid
55
consent. The Moving Plaintiffs bear the initial burden of informing the district court of the basis
for their motion and identifying the matters on which they contend the evidence demonstrates the absence of a genuine issue of material fact. JSC Foreign Econ. Assoc. Technostroyexport v. Int’l Dev. & Trade Svcs., Inc., 386 F. Supp. 2d 461, 463-64 (S.D.N.Y. 2005) (Koeltl, J.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once “the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). Specifically, the “nonmoving party must produce evidence in the record and may not rely simply on conclusory statements . . . .” Id. (internal quotations and citations omitted); see also Nextec Applications v. Brookwood Cos., Inc., 703 F. Supp. 2d 390, 400 (S.D.N.Y. 2010).
The Moving Plaintiffs have shown the absence of a genuine dispute as to any material
56
fact concerning the unconstitutional entry into their homes. There is an utter absence of
55
While Moving Plaintiffs believe that the undisputed facts establish liability for each of the Defendants, at a minimum, the Court should hold that consent to enter or search was not obtained at either home. See Fed. R. Civ. P. 56(a) (a party “may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought”) (emphasis supplied).
56
Defendants must show they obtained valid consent to enter and search the homes. See, e.g., Anobile v. Pelligrino, 303 F.3d 107, 124 (2d Cir. 2002) (in section 1983 action officials seeking to rely on consent to justify a warrantless entry and search of a home bear the burden of proving
14

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 20 of 30
evidence to show that any of the Defendants obtained any consent whatsoever, much less valid consent, to enter or search the Moving Plaintiffs’ homes. See Nextec, 703 F. Supp. 2d at 400 (quoting Celotex, 477 U.S. at 325) (holding that a moving party who does not bear the burden of proof discharges his or her burden on summary judgment “by ‘showing’—that is, point out to the
57
district court—that there is an absence of evidence to support the nonmoving party’s case.”). Courts in this district have not hesitated to grant plaintiffs summary judgment where
defendants counter sworn testimony with unsubstantiated denials, conjecture, or otherwise fail to rebut plaintiff’s sworn testimony. See, e.g., Dolphin Direct Equity Partners, LP v. Interactive Motorsports & Entm’t Corp., No. 08 Civ. 1558 (RMB) (THK), 2009 WL 577916, at *6 (S.D.N.Y. Mar. 2, 2009) (“Plaintiffs [were] unequivocally entitled to summary judgment” where defendants “fail[ed] to rebut [plaintiff]'s sworn statement . . . beyond offering . . . ‘unsubstantiated conjecture’ . . . .”); JSC Foreign Econ. Assoc., 386 F. Supp. 2d at 463-64. II. The Defendants, Acting in Their Capacity as Federal Agents, Violated Plaintiffs’
Fourth Amendment Rights Under Bivens and its progeny, federal courts can hear suits against federal government officials accused of violating constitutional rights and/or failing to intervene in the face of such violations. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
valid consent). Irrespective of who has the ultimate burden of proof, once Movants have, as here, shown the lack of consent by undisputed evidence, the burden shifts to the Defendants to rebut that showing with admissible evidence.
57
Although the Moving Plaintiffs believe they have done so, they need not “produce evidence affirmatively establishing the absence of a genuine issue of material fact with respect to an issue on which the nonmoving party bears the burden of proof.” Nextec, 703 F. Supp. 2d at 400.
15

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 21 of 30
388, 396-97 (1971); Gagnon v. Ball, 696 F.2d 17, 21 (2d Cir. 1982) (holding officer liable under § 1983 for false arrest where the officer “not only declined to intercede on [plaintiff’s] behalf but also assisted [the other defendant] in detaining her.”). The Moving Plaintiffs respectfully submit that there is no genuine dispute of material fact that Defendants are liable to them under Bivens. Defendants’ warrantless entries into and searches of the Moving Plaintiffs’ homes violated the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV.
A. The Moving Plaintiffs Had An Expectation Of Privacy In Their Homes And Curtilage
The “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585-86 (1980) (internal citations and quotation marks omitted); People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 299 (S.D.N.Y. 2000). “Because the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion stands at the very core of the Fourth Amendment, [the Supreme Court has] firmly established the basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Kyllo v. United States, 533 U.S. 27, 31 (2001); Silverman v. United States, 365 U.S. 505, 511 (1961); Payton, 445 U.S. at 586). This principle extends equally to the curtilage of a home. See United States v. Dunn, 480 U.S. 294, 307-08 (1987); Roybal v. City of Albuquerque, Civ. No. 08-0181, 2009 WL 1329834, at *15-18 (D.N.M. Apr. 28, 2009). A law enforcement agent can overcome the presumption that a warrantless entry was unreasonable only by showing (i) the presence of exigent circumstances, or (ii) that he or she obtained valid consent to enter or search. See, e.g., Steagald v. United
16

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 22 of 30
States, 451 U.S. 204, 216 (1981); Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir 1991) (defendant in § 1983 action may have duty of “producing evidence of consent . . . or other exceptions to the warrant requirement.”). It is the agents’ burden to demonstrate that “consent was given freely and voluntarily.” See Anobile, 303 F.3d at 124.
Here, it is undisputed that Defendants who participated in these two operations entered and searched the Moving Plaintiffs’ homes, private bedrooms, and private yards. But Defendants do not purport to have had warrants authorizing them to do so. Nor do Defendants claim the existence of exigent circumstances. Rather, counsel for Defendants in this case has made the conclusory assertion that the Defendants obtained consent from the residents of the homes and bedrooms that they entered and searched.
Any reliance on purported consent to avoid liability, however, fails, for two independent reasons. First, after dozens of depositions and thousands of pages of documents produced in this case, Defendants have not come forward with any evidence whatsoever that they obtained consent to enter or search the Moving Plaintiffs’ homes, private rooms, and/or curtilage. In fact, they admit that they did not have consent to enter the private yards of the Moving Plaintiffs, even where, as at 710 Jefferson Street, those yards were surrounded by a closed backyard fence, further demonstrating the expectation of privacy. Second, even if the Defendants could point to words or actions that purportedly signified “consent” (which they do not), any such consent would be invalid as a matter of law given the undisputed circumstances in which the operations were conducted.
B. Defendants Did Not Obtain Consent To Enter or Search None of the Defendant agents testified that he or she personally obtained consent to enter either 710 Jefferson Street, 15 W. 18th Street, or the curtilage surrounding those homes.
17

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 23 of 30
Likewise, not one of the Defendant agents has testified that he or she personally obtained consent to search Sonia Bonilla’s bedroom at 710 Jefferson Street or Peggy De La Rosa’s bedroom at 15 W. 18th Street. Indeed, none of the Defendants was even able to testify that they heard or observed anyone else obtain consent to enter or search at either home. See supra at pp. 6, 8, 11, 13. This complete inability to identify any facts supporting the bald assertion that consent was obtained is fatal to Defendants’ “consent” defense.
The Moving Plaintiffs have, conversely, testified that they did not grant the Defendants consent to enter, much less search their homes. See supra at pp. 5, 7-8, 11, 12. At 710 Jefferson Street, then-12 year old Beatriz Velasquez, who answered the door after hearing someone shout “someone is dying upstairs,” testified that she did not grant consent to enter or search the home, and that the agents simply stepped around her to enter the home. Moreover, when Sonia Bonilla – the owner of the home – arrived home, she found agents already searching her home and bedroom and attempting to open her locked bedroom closet, and therefore could not have granted them consent to do so. Likewise, at 15 W. 18th Street, as soon as then 17-year-old Christopher Jimenez opened the door, one of the Defendants put his hand on Christopher’s chest and pushed past him. Other Defendants then entered. See supra at pp. 10-11. After following the Defendants into his own home, Christopher was instructed by a police officer to open the back door of the home, at which point more agents entered the home. None of the agents asked Christopher for permission to enter or search the home. See supra at pp. 10-12.
In short, the resolution of this motion does not require the Court to reach whether a specific individual voluntarily granted consent and possessed the requisite authority or capacity to do so because Defendants have produced zero evidence of consent – voluntary or not – to enter or search the Moving Plaintiffs’ homes and curtilage.
18

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 24 of 30
C. Any Purported Consent Would Have Been Invalid It is well settled that “[c]onsent must be a product of that individual’s free and unconstrained choice, rather than a mere acquiescence in a show of authority.” United States. v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993) (internal citations omitted); see also Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); United States v. Mapp, 476 F.2d 67, 77 (2d Cir. 1973) (“[W]here there is coercion there cannot be consent.”) (internal citations and quotation marks omitted). It is likewise well-settled that consent must also be obtained from someone with authority to grant it. See United States v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992). Here, even if Defendants could offer admissible evidence tending to show that consent was obtained, based on the undisputed facts adduced in discovery, any such consent would not have been valid as a matter of law. 1. Defendants Were Not Even in a Position to Obtain Consent From People With
Authority or Capacity To Grant It The Defendants who entered and searched the Moving Plaintiffs’ private dwellings did not even confront any individual at the front door of the two homes who had the authority or capacity to grant consent to enter or search, had it been obtained (which it indisputably was not). See United States v. Hassock, 631 F.3d 79, 88 (2d Cir. 2011) (search invalid where agents failed to ascertain that resident had authority to grant consent); see also Brown, 961 F.2d at 1041 (landlady cannot consent to entry of tenant’s dwelling); United States v. Heisman, 503 F.2d 1284, 1288-89 (8th Cir. 1974) (holding that co-tenant did not have authority to consent to search of other co-tenant’s private office to which he “normally” did not have permission to enter); Abdella v. O’Toole, 343 F. Supp. 2d 129, 135 (D. Conn. 2004) (stating that child may not have authority to grant access to parent’s room).
19

Case 1:07-cv-08224-KBF-FM Document 326 Filed 01/23/12 Page 25 of 30
It is undisputed that Defendants’ only contact at the front door of 710 Jefferson was with a 12-year-old, Beatriz Velasquez. Thus, even if Defendants were to manufacture a claim at this late date that they received “consent” from Beatriz (and there is no evidence that they did), such a claim would be misplaced. No court has ever found that a child aged twelve can grant consent to enter and search in the absence of exigent circumstances, an emergency, or a parent immediately nearby, where, as here, the 12-year-old was falsely told that the agents needed to come in because “someone is dying inside.” See Abdella 343 F. Supp. 2d at 135 (summary judgment denied to Government on issue of “consent” by preadolescent); see also United States v. Gamez, 389 F. Supp. 2d 975, 979 (S.D. Ohio 2005) (factors to determine validity of duressfree consent include “the age, intelligence, and education of the individual”).
Likewise, at 15 W. 18th Street, 17-year old Christopher Jimenez answered the door. He, like Beatriz, however, was not of the age of majority and could not grant valid consent under the coercive circumstances of the raids at issue. Id; see also LH Decl. Ex. 82 at 9-10.
With respect to search, there was no one present with authority to consent to the search of Sonia Bonilla’s or Peggy De La Rosa-Delgado’s bedrooms. When Ms. Bonilla was allowed into her home, she found her bedroom filled with agents. Likewise, Ms. De La Rosa-Delgado was asleep when her bedroom was entered and searched. See supra at p. 12. Under the undisputed facts, the Defendants simply could not have obtained consent to enter the bedroom from anyone with authority to grant it, because no one with such authority was present.
2. Any Purported Consent Was Not Free And Voluntary Assuming for the sake of argument that agents had taken steps to ascertain that Beatriz and Christopher did have the authority and capacity to grant the Defendants consent to enter and search the entirety of their homes, including private bedrooms, which they did not, any purported
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consent obtained from them cannot, as a matter of law, have been free and voluntary, as required by the Fourth Amendment. See LaDuke v. Nelson, 762 F.2d 1318, 1329 (9th Cir. 1985) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)).
Duress-free consent must be determined through an examination of the “totality of the circumstances.” Schneckloth, 412 U.S. at 226; Djonbalic v. City of New York, No. 99 CIV. 11398 SHS/AJP, 2000 WL 1146631, at *9-11 (S.D.N.Y. Aug. 14, 2000) (report and recommendation by Magistrate Judge Peck denying government’s motion for summary judgment on grounds that officers obtained consent where plaintiffs provided evidence that the entry was made and the police knocked on their doors late at night, encountered people with poor command of the English language, the police were in riot gear carrying weapons, the officers threatened to use force and began breaking down the door). An examination of the undisputed facts in this case leads inexorably to the conclusion that any consent that would have been obtained would be “a mere acquiescence in a show of authority” and therefore not valid. This is so for at least five reasons.
First, the Defendants admitted to preventing the free movement of residents within their homes. Agents surrounded the homes with the purpose of preventing residents from leaving, ordered residents into common areas, supra at pp. 4, 6-7, 9, 12, ordered a mother not to enter her own home, supra at p. 7, ordered two little girls to their bedroom, supra at p. 6, demanded that a resident of the home hang up his telephone, supra at p. 11, and refused to permit minors to retrieve their mother and the owner of the home, supra at p. 12. It is clear that there is no genuine dispute that no plaintiff in either home was free to move, leave, or refuse the agents’ demands. Such conduct rendered these operations nonconsensual, and therefore unlawful. Encounters become non-consensual “when, in view of all the circumstances, a reasonable person
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would believe that he or she was not free to leave” or that his or her “freedom of movement is restrained.” U.S. v. Mendenhall, 446 U.S. 544, 554 (1980); see also Florida v. Bostick, 501 U.S. 429, 434, 437 (1991) (seizure occurs when a law enforcement officer “by means of physical force or show of authority” restrains liberty and where law enforcement “conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’”) (internal citation omitted).
Second, Defendants admit – and ICE documents confirm – that the operations at the Moving Plaintiffs’ homes occurred in the early morning hours, before 6:30 a.m. See supra at pp. 3, 9. It is, moreover, undisputed that, at 710 Jefferson, Beatriz Velasquez was wakened from sleep and answered the door in her pajamas. See supra at p. 5. And, at 15 W. 18th Street, the Defendants entered the rooms of individuals who were still in bed, in some cases, pulling them out of bed. See supra at p. 12. These factors are of great import when deciding whether consent is voluntary. See, e.g., LaDuke, 762 F.2d at 1329 (searches “during early morning or late evening hours” a factor in invalidating consent); Kaupp v. Texas, 538 U.S. 626, 631-32 (2003) (“a group of police officers rousing an adolescent out of bed in the middle of the night with the words ‘we need to go and talk’ presents no option but ‘to go’”); see also United States v. Jerez, 108 F.3d 684, 690-92 (7th Cir. 1997) (“when a knock at the door comes in the dead of night, the nature and effect of the intrusion into the privacy of the dwelling place must be examined with the greatest of caution”; where police continuously knocked on door late at night, until occupants finally opened door, they were “submitting to the deputies show of authority” since a “[r]easonable person in their situation could conclude only that the deputies would not leave unless the door was opened”). In fact, Janice Nadler, the Moving Plaintiffs’ expert in social psychology, has opined in this case that peer-reviewed studies demonstrate that individuals who
22

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are called upon to make important decisions shortly after being awoken from sleep suffer cognitive impairment. (See LH Decl. Ex. 82 at 3-4.) Accordingly, it is her expert opinion that “most if not all of the Plaintiffs . . . who were awoken suddenly by the presence of the ICE agents and who were requested shortly after awakening to grant permission to enter or search their residence, were likely experiencing a reduced ability to process information fully, which would call into question the extent to which a grant of permission was made voluntarily.” Id. at 4.
Third, at both 710 Jefferson and 15 W. 18th Street, there is no dispute that ten and eleven agents, respectively, plus local law enforcement, participated in the operations. The Defendants admit to having secured a “perimeter” around the homes, and to having parked their cars in a manner that was visible to and from the front door of the homes. The Moving Plaintiffs have, moreover, testified that they were aware of the fact that multiple agents surrounded the house, that they opened the door in response to demands by the Defendants to do so, and in response to banging by individuals announcing themselves as “Police!” See supra at pp. 4-5, 10. Such a display of force vitiates valid consent. See Mendenhall, 446 U.S. at 554 (holding that the “threatening presence of several officers, the display of a weapon by an officer, the physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled” are all hallmarks of nonconsensual encounters); see also Abdella, 343 F. Supp. 2d at 143; Djonbalic, 2000 WL 1146631, at *10; LH Decl. Ex. 82 at 5-7.
Fourth, according to the Operations Plan for OCS, each of the Defendants was required to wear “Raid jackets, Bulletproof Vest, Service Issued Firearm, Baton/O/C, Flashlight, Handcuffs.” (See LH Decl. Ex. 1 at 15.) The Defendants do not dispute that they complied with
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this requirement, and it is undisputed that the Defendants shone flashlights at the Moving Plaintiffs and/or through doors and windows, and visibly bore firearms, in some cases brandishing them. See supra at pp. 5, 6, 10. These factors all undermine voluntariness. See United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973); United States v. Restrepo-Cruz, 547 F. Supp. 1048, 1057 (S.D.N.Y. 1982).
Fifth, at 710 Jefferson Street, consistent with ICE’s unconstitutional ruse policies, the Defendants used a ruse which would vitiate the voluntariness of any alleged consent. At that home, the Defendants falsely yelled that “someone is dying upstairs” in the process of gaining entry. See supra at pp. 4-5. It is well-established that these types of ruses vitiate valid consent. See United States v. Montes-Reyes, 547 F. Supp.2d 281, 288 (S.D.N.Y. 2008) (consent invalid if gained by falsely claiming lawful authority or falsely claiming exigent circumstances); Hoffa v. United States, 385 U.S. 293, 301 (1966); United States v. Hardin, 539 F.3d 404, 424-25 (6th Cir. 2008) (consent invalid if obtained by trick or deception); see also United States v. HernandezJuarez, No. SA-09-CR-19-XR, 2009 WL 693172, at *4 (W.D. Tex. Mar. 16, 2009).
58
In sum, as this Court recently noted, courts have held that each of the practices in which the Defendants engaged at 710 Jefferson Street and 15 W. 18th Street “tends to undermine voluntary, duress-free consent, rendering it more likely that a search purportedly based on consent, like the ones at issue here, has been conducted in an unconstitutional manner.” These two homes involved not just one of those practices, but all of them. Because the Defendants have failed to come forward with any evidence indicating that they obtained consent to enter or search and have failed to show that any expression of consent under these circumstances, even if it had been given (which it was not) was voluntary, and because they have no other basis for the
58
See Aguilar v. ICE, Civ. No. 07-8224, 2011 WL 3273160, at *13 (S.D.N.Y. Aug. 1, 2011).
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constitutionality of their conduct, the Court should respectfully grant the Moving Plaintiffs’
motion for partial summary judgment finding that these Defendants violated the Moving
Plaintiffs’ Fourth Amendment rights.
CONCLUSION
For all of the foregoing reasons, the Moving Plaintiffs respectfully request that the Court
grant their Motion for Partial Summary Judgment on the Third Claim of their Fourth Amended
Complaint.
Dated: New York, New York October 28, 2011
DEWEY & LEBOEUF LLP
____s/Aldo A. Badini________ By: Aldo A. Badini
abadini@dl.com Kelly A. Librera
klibrera@dl.com Lawrence S. Hirsh
lhirsh@dl.com Jennifer Opheim Whitener
jwhitener@dl.com 1301 Avenue of the Americas New York, NY 10019 Tel.: (212) 259-8000/8191 Fax: (212) 649-0919
_____s/Ghita Schwarz_______ LATINOJUSTICE PRLDF Ghita Schwarz
gschwarz@latinojustice.org Foster Maer
fmaer@latinojustice.org 99 Hudson Street, 14th Floor New York, New York 10013 (212) 739-7504
Attorneys for Plaintiffs
25

 
 Case 1:07-cv-08224-KBF Document 344 Filed 03/20/12 Page 1 of 27

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
- against -
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

ECF Case 07 Civ. 8224 (KBF) (FM)

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

DAVID BOBER SHANE CARGO BRANDON COWART LOUIS A. PELLEGRINO Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants 86 Chambers Street New York, New York 10007 Tel: (212) 637-2800

Case 1:07-cv-08224-KBF Document 344 Filed 03/20/12 Page 2 of 27
TABLE OF CONTENTS PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................3
A. Background Concerning the Enforcement Operations at Issue ...............................3 B. 710 Jefferson Street..................................................................................................4 C. 15 West 18th Street ..................................................................................................5 ARGUMENT ...................................................................................................................................6 A. Summary Judgment .................................................................................................6
1. Legal Standards Applicable to Motions for Summary Judgment ................6 2. Summary Judgment Is Generally Unavailable as to
the Existence or Validity of Consent to Enter or Search, and Critical Factual Disputes Exist Here .....................................................8 B. Consent Is Governed by an Objective Standard, and in Civil Cases Plaintiffs Carry the Ultimate Burden of Persuasion ...........................10 C. The Extent of Each Defendant’s Personal Involvement Is a Factual Issue Precluding Summary Judgment ................................................11 D. Evidence of Defendants’ Habits and Routine Practices, Which Is Admissible Under Fed. R. Evid. 406, Precludes Summary Judgment ..................14 E. Whether Consent Was Valid Is a Factual Issue Precluding Summary Judgment .............................................................................17 CONCLUSION ..............................................................................................................................22
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TABLE OF AUTHORITIES Cases: Abdella v. O’Toole, 343 F. Supp. 2d 129 (D. Conn. 2004).....................................................17, 18 Accolla v. Ladestri, No. 87 Civ. 2272 (LMM),
1991 WL 274330 (S.D.N.Y. Dec. 6, 1991) .........................................................................9 Aguilar v. ICE, No. 07-8224, 2011 WL 3273160 (S.D.N.Y. Aug. 1, 2011) ...........................19, 20 America Casualty Co. v. Nordic Leasing, Inc., 42 F.3d 725 (2d Cir. 1994) ...................................6 Ammirato v. Duraclean Intern., Inc., No. CV 07-5204 (ARL),
2010 WL 1186325 (E.D.N.Y. Mar. 24, 2010) .....................................................................7 Anobile v. Pelligrino, 303 F.3d 107 (2d Cir. 2001) .................................................................10, 21 Beckcom v. United States, 584 F. Supp. 1471 (N.D.N.Y. 1984) ..................................................15 Berg v. United States, No. 03-4642 (MJD/JSM),
2007 WL 425448 (D. Minn. Feb. 2, 2007) ..........................................................................8 Carrion v. Smith, 549 F.3d 583 (2d Cir. 2008)..............................................................................15 Castellar v. Caporale, No. CV-04-3402 (DGT),
2010 WL 3522814 (E.D.N.Y. Sept. 2, 2010) ....................................................................12 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................6 Charles v. Odum, 664 F. Supp. 747 (S.D.N.Y. 1987) ...................................................................18 Chuman v. Wright, 76 F.3d 292 (9th Cir. 1996)......................................................................12, 13 Crooker v. Van Higgins, 682 F. Supp. 1274 (D. Mass. 1988).........................................................8 Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000) ..........................................................................12 Djonbalic v. City of New York, No. 99 Civ. 11398 (SHS) (AJP),
2000 WL 1146631 (S.D.N.Y. Aug. 14, 2000) ...............................................................9, 19 Dolphin Direct Equity Partners, LP v. Interactive Motorsports & Entertainment Corp.,
No. 08 Civ. 1558 (RMB)(THK), 2009 WL 577916 (S.D.N.Y. Mar. 2, 2009) ..................21 Evans v. Lopez, No. 98 C 2077, 2000 WL 631357 (N.D. Ill. May 12, 2000)...........................8, 10 Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006) ...............................................................................12
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Fischl v. Armitage, 128 F.3d 50 (2d Cir. 1997)...............................................................................7 Florida v. Jimeno, 500 U.S. 248 (1991).........................................................................................20 Fuller v. Summit Treestands, LLC, No. 07-CV-00330(A)(M),
2009 WL 1874058 (W.D.N.Y. May 11, 2009) ..................................................................15 Gallo v. Prudential Residential Services Ltd. Partnership,
22 F.3d 1219 (2d Cir. 1994).................................................................................................6 JSC Foreign Economic Association v. International Development & Trade Services, Inc.,
386 F. Supp. 2d 461 (S.D.N.Y. 2005)............................................................................7, 21 Jones v. Williams, 297 F.3d 930 (9th Cir. 2002) ...........................................................................12 Maker v. City of Tillamook, Or., No. 06-CV-731-PK, 2007 WL 2688230
(D. Or. Sept. 10, 2007)...................................................................................................8, 11 McCadd v. Murphy, 763 F. Supp. 2d 1018 (N.D. Ill. 2010) ...........................................................8 McClellan v. Smith, 439 F.3d 137 (2d Cir. 2006) ...........................................................................7 McElmurry v. U.S. Bank National Association, No. CV-04-642-HU,
2007 WL 1276958 (D. Or. Mar. 23, 2007) ........................................................................16 McGann v. Northeast Ill. Regional Commuter R.R. Corp.,
8 F.3d 1174 (7th Cir. 1993) .................................................................................................9 Mickle v. Morin, 297 F.3d 114 (2d Cir. 2002) ................................................................................7 Minter v. County of Westchester, No. 08 Civ. 7726 (WHP),
2011 WL 856269 (S.D.N.Y. Jan. 20, 2011) ........................................................................7 Nigro v. Phillips, No. 92-CV-399, 1997 WL 86323 (N.D.N.Y. Feb. 28, 1997) .............................9 Ostroski v. Town of Southold, 443 F. Supp. 2d 325 (E.D.N.Y. 2006)............................................7 Reed v. Schneider, 612 F. Supp. 216 (E.D.N.Y. 1985) ...................................................................9 Rich v. United States, 158 F. Supp. 2d 619 (D. Md. 2001) .............................................................8 Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991) ..................................................................10 Schneckloth v. Bustamante, 412 U.S. 218 (1973) ...................................................................19, 20
iii

Case 1:07-cv-08224-KBF Document 344 Filed 03/20/12 Page 5 of 27 Tavarez v. Reno, 54 F.3d 109 (2d Cir. 1995) ................................................................................12 United States v. Bifulco, No. 06-CV-684A,
2007 WL 1288214 (W.D.N.Y. May 1, 2007) ....................................................................15 United States v. Garcia, 56 F.3d 418 (2d Cir. 1995) ...............................................................20, 21 United States v. Matlock, 415 U.S. 164 (1974) .............................................................................18 United States v. Peterson, 100 F.3d 7 (2d Cir. 1996) ....................................................................21 Wallace v. Conroy, 945 F. Supp. 628 (S.D.N.Y. 1996) ................................................................12 Federal Statutes and Rules: 42 U.S.C. § 1983............................................................................................................................12 Fed. R. Evid. 406 ...............................................................................................................14, 15, 17 Fed. R. Civ. P. 56(a) ........................................................................................................................6
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Preliminary Statement Despite numerous issues of fact, and plaintiffs’ own inability to identify which agents allegedly did what, plaintiffs seek summary judgment against nearly two dozen ICE agents who were in the vicinity of two of the seven complaint locations at issue in this case. The motion is based on plaintiffs’ own self-serving allegations that the ICE agents entered their homes without consent, and on plaintiffs’ contention that the ICE agents cannot controvert these allegations because they do not specifically recall the details of what occurred at these two sites. But plaintiffs’ argument must fail: defendants do dispute plaintiffs’ allegations through specific recollections, recollections of the operations in general, and evidence of their normal practices in conducting consent-based investigations, all of which must be accepted as true for the purpose of this motion. Accordingly, summary judgment cannot be granted. First, plaintiffs seek to improperly shift the burden to defendants to prove that they obtained lawful consent to enter the two homes at issue. But this confuses the government’s burden in criminal cases—where the government must show that a warrantless search was reasonable—with a plaintiff’s burden in a civil case, where the plaintiffs bear the burden of proof, especially where a defendant has come forward with a justification, such as consent. Second, plaintiffs are seeking summary judgment against all 21 Bivens defendants who were in the vicinity of the complaint locations regardless of their role in the operations—even though plaintiffs concede that not all of the defendants entered their homes, and that some defendants remained with their cars. But the law does not permit plaintiffs to simply lump all of the defendants together and have judgment entered vicariously against some agents based on the actions of others; rather, plaintiffs must prove that each of the defendants was personally involved in the alleged constitutional violations. Thus, even if plaintiffs’ factual allegations were

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assumed to be uncontroverted, their motion would still fail because group pleading is impermissible in the Bivens context.
Third, defendants, whose testimony must be accepted as true for purposes of this motion, have given testimony that contradicts plaintiffs’ versions of events. At the very least, this creates credibility issues that cannot be decided on summary judgment. Although plaintiffs claim that defendants cannot remember what happened at 710 Jefferson Street and 15 West 18th Street, many agents have in fact testified to facts that contradict plaintiff’s allegations, and the credibility of their testimony must be weighed by a jury. For example, ICE 18 recalls that a local officer, not an ICE agent, was the person who made contact with the residents of 710 Jefferson Street. At 15 West 18th Street, the plaintiffs allege that ICE agents entered through the back door, but ICE 52 testified that ICE agents only entered homes through the front door during the operations at issue. And still other defendants are certain that consent was obtained at plaintiffs’ homes because it was their custom and practice to always obtain consent when conducting warrantless operations, and they would have remembered if they had been unable to obtain consent at plaintiffs’ homes; indeed, many agents have clear recollections of visiting other homes during the same week where the residents declined to give consent, and the agents therefore left. Factual discrepancies like these—and many others—create genuine disputes of material fact that preclude summary judgment.
Finally, genuine issues of material fact are created by defendants’ evidence of practice, routine, and habit, which is admissible under Rule 406 of the Federal Rules of Evidence. The 21 defendants are experienced federal agents who have had extensive Fourth Amendment training, and many of them have conducted dozens or hundreds of consent-based operations and investigations following well-established and proper protocols. Even if they do not have clear
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recollections of 710 Jefferson Street and 15 West 18th Street, they are entitled to testify about their customary practice of obtaining consent and their belief that they followed that practice at the two locations at issue. Further, defendants are entitled to have a jury weigh the credibility of that testimony in determining whether plaintiffs have met their burden of proving Fourth Amendment violations.
FACTUAL BACKGROUND A. Background Concerning the Enforcement Operations at Issue
Plaintiffs live or lived in Suffolk, Nassau, and Westchester counties, and include persons of unspecified status, lawful permanent residents, and United States citizens. The complaint alleges that in seven separate incidents—four that were conducted by ICE’s Office of Detention and Removal Operations (“DRO”) in February, March, and April of 2007, and three that were conducted by ICE’s Office of Investigations (“OI”) during the week of September 24, 2007— ICE officers and agents entered plaintiffs’ residences without consent.
Plaintiffs’ motion for partial summary judgment concerns two of the complaint locations—710 Jefferson Street, Westbury, New York, and 15 West 18th Street, Huntington Station, New York—that were visited as part of a week-long operation in September 2007 targeting 255 persons who were suspected of having gang affiliations. See Declaration (“Decl”) of Shane Cargo, dated December 23, 2011 (“Cargo Decl.”), Exhibit (“Ex.”) A. Local police departments had provided ICE with lists of known gang members, and ICE focused on those people on the lists who were subject to removal. See id. Approximately 160 ICE agents participated, and due to the size of the operation, ICE had agents travel to New York from around the country to participate. See id. Detectives and police officers from Nassau and Suffolk counties also participated, and the team members differed from location to location. See id.
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B. 710 Jefferson Street The 10 Bivens defendants who were present at 710 Jefferson Street dispute most, if not
all, of plaintiffs’ allegations concerning what occurred there. For example, before the operation, the team leader (ICE 18) discussed with his team the difference between administrative and judicial warrants and stressed the importance of obtaining consent. See ICE 18 Decl. ¶ 10. Once at the location, ICE 18 reminded his team that, because the building appeared to have been subdivided, separate consent to enter certain interior rooms might be required. Id. ¶ 12. An assisting local police officer, not an ICE agent, approached the door to conduct the knock and talk. Id. at ¶ 13. Although ICE 18 could not recall the specific conversation at the door, the local police officer and other agents entered the home, which they would not have done unless consent had been granted. Neither the police officer nor the agents pounded on the door, and no one forced his way in once the door was opened. See ICE 21 Decl. ¶ 10. At no point did anyone say that someone was dying upstairs, or use any other prohibited ruse technique to obtain consent to enter. Id. ¶ 11; see also ICE 18 Decl. ¶ 13; ICE 19 Decl. ¶ 11; ICE 20 Decl. ¶ 9; ICE 22 Decl. ¶ 11; ICE 23 Decl. ¶ 7; ICE 24 Decl. ¶ 8; ICE 25 Decl. ¶ 12; ICE 26 Decl. ¶ 12.
After the ICE agents had entered the residence, a woman arrived in a white van, and after being asked to remain outside for a brief time, she was allowed to enter. The woman was calm, and at no point did she express an opinion that her rights were being violated or that the agents should not have entered her home. See ICE 21 Decl. ¶ 12; see also ICE 19 Decl. ¶ 11; ICE 20 Decl. ¶ 7. At no point during the operation did any agent draw a weapon. See ICE 19 Decl. ¶ 13; see also ICE 21 Decl. ¶ 13; ICE 22 Decl. ¶ 12; ICE 23 Decl. ¶ 8; ICE 26 Decl. ¶ 12.
Later in the day, two agents went back to the home to retrieve medication for one of the several residents who had been arrested there. The woman who answered the door gave them
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permission to enter. The woman was calm and did not make any complaint about the earlier encounter. See ICE 18 Decl. ¶ 16. C. 15 West 18th Street
Similarly, the ICE agents who were present at 15 West 18th Street dispute plaintiffs’ allegations concerning what occurred there. Before the operation, the team leader discussed the operation plan and showed pictures and addresses of the targets for that day. See ICE 45 Decl. ¶¶ 16-17. She also discussed with her team the difference between administrative and judicial warrants, instructing her team members that if consent to enter was refused, the agents were not permitted to enter. Id.
A local police officer approached the door to conduct the knock and talk, which was standard practice because the intent of the operation was to have local uniformed police present at the front door of the target locations. Id. at ¶¶ 18-19. During the operation, no ICE agent or uniformed police officer pushed through an open door without obtaining consent, see id. at ¶ 20; ICE 41 Decl. ¶ 15; ICE 51 ¶ 16, and no one barged into the front door of 15 West 18th Street without obtaining consent to enter or search, see ICE 41 Decl. ¶ 17; ICE 45 Decl. ¶ 23; ICE 51 ¶ 13.
Indeed, the defendants specifically recall other homes they visited during the same operation, where they did not enter because they were unable to obtain consent to enter. See, e.g., ICE 41 Decl. ¶ 17 (“On one occasion, I spoke to two women in Spanish, and the older of the two women refused to give me consent. I specifically recall asking her through a window if we could come in, and she said ‘no.’ As a result, we left the premises without attempting to enter.”); ICE 51 Decl. ¶ 14 (“a woman spoke through a window to the officers and agents on our team, and she denied us consent to enter. Therefore, we did not enter the target home.”); ICE 45 Decl. ¶¶ 24-25 (“I recall being turned away by a woman who claimed that the target was not home.
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She spoke to us through a window, but she would not open the door. We did not enter”); ICE 40 Decl. ¶ 10 (describing an incident where the team attempted to gain consent by speaking to residents through an intercom, but consent was denied and they left). Several defendants have testified that if team members had entered 15 West 18th Street without obtaining consent, they would remember, because it would have been inconsistent with ICE practice and policy. See ICE 40 Decl. ¶¶ 9-10; ICE 41 Decl. ¶ 19; ICE 45 Decl. ¶ 23; ICE 50 Decl. ¶¶ 8-9; ICE 51 ¶ 13; ICE 52 Decl. ¶ 8.
ARGUMENT Because of numerous issues of material fact, plaintiffs’ motion for summary judgment should be denied. A. Summary Judgment 1. Legal Standards Applicable to Motions for Summary Judgment To obtain summary judgment, the moving party must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). “[T]he trial court’s task at the summary[-]judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs. Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). In its issue-finding role, the district court must assess the evidence in “the light most favorable to the non-moving party,” and resolve all ambiguities and “draw all reasonable inferences” in the non-moving party’s favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994) (citations omitted). Thus, once the non-moving party points to conflicting, non-conclusory evidence concerning “any material fact,” Fed. R. Civ. P. 56(a), summary
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judgment cannot be granted. See, e.g., JSC Foreign Econ. Ass’n v. Int’l Dev. & Trade Servs., Inc., 386 F. Supp. 2d 461, 463 (S.D.N.Y. 2005) (“Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party.”) (emphasis added).
Thus, “[i]t is a settled rule that ‘[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (credibility assessments are not “within the province of the court on a motion for summary judgment”)). For this reason, conflicting testimony precludes summary judgment. See, e.g., Minter v. County of Westchester, No. 08 Civ. 7726 (WHP), 2011 WL 856269, at *7 (S.D.N.Y. Jan. 20, 2011) (“Given this conflicting testimony and the inherently fact-intensive inquiry of determining when a person is placed under ‘arrest,’ the precise moment of [plaintiff’s] arrest and the identity of the arresting officer(s) are disputed issues of material fact that preclude summary judgment . . . .”); Ammirato v. Duraclean Intern., Inc., No. CV 07-5204 (ARL), 2010 WL 1186325, at *1 (E.D.N.Y. Mar. 24, 2010) (“the issue of apparent authority requires a credibility determination that is not for the court to make on summary judgment”); see also Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 342 (E.D.N.Y. 2006) (denying motion for summary judgment given conflicting testimony about proportionality of force used during arrest); see also Mickle v. Morin, 297 F.3d 114, 122-23 (2d Cir. 2002) (reversing judgment as matter of law in favor of defendant officers given conflicting testimony about force used on plaintiff’s wrists and shoulder).
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2. Summary Judgment Is Generally Unavailable as to the Existence or Validity of Consent to Enter or Search, and Critical Factual Disputes Exist Here
Plaintiffs cite no case—and we are aware of none—where a plaintiff has been granted summary judgment on the issue of consent to enter or search. Conversely, dozens of cases hold that the fact-intensive nature of consent precludes summary judgment. See, e.g., Crooker v. Van Higgins, 682 F. Supp. 1274, 1284 (D. Mass. 1988) (denying plaintiff’s summary judgment motion because “[b]ased on the testimony during the suppression hearing, as well as statements made in affidavits, there is ample evidence creating a jury question regarding whether [plaintiff] consented to the search at issue and, if so, whether such consent was voluntary.”); Evans v. Lopez, No. 98 C 2077, 2000 WL 631357, at *10 (N.D. Ill. May 12, 2000) (denying defendant’s motion for summary judgment because “taking [plaintiff’s roommate’s] affidavit as true, as the court must in ruling on defendant’s summary[-]judgment motion, there is a question of material fact as to whether the consent was voluntary and valid.”); Rich v. United States, 158 F. Supp. 2d 619, 642, 628 (D. Md. 2001) (where agents barged into home without a warrant, pointed guns at plaintiffs while searching home, “Plaintiffs’ Fourth Amendment claim presents genuine issues of material fact which preclude entry of summary judgment”); Berg v. United States, No. 03-4642 (MJD/JSM), 2007 WL 425448, at *6 (D. Minn. Feb. 2, 2007) (“A fact question remains as to whether [plaintiff] voluntarily consented to [defendant’s] search of her luggage, and therefore summary judgment is denied on this basis.”); Maker v. City of Tillamook, Or., No. 06-CV-731PK, 2007 WL 2688230, at *4 (D. Or. Sept. 10, 2007) (denying cross motions for summary judgment because “[t]he scope of any consent, like the existence of consent to search in the first instance, raises questions of fact that preclude summary judgment.”); McCadd v. Murphy, 763 F. Supp. 2d 1018, 1024 (N.D. Ill. 2010) (defendants’ summary-judgment motion denied because plaintiffs “have identified evidence that would support a factfinder’s determination that [elderly
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mother’s] consent was the product of coercion or duress”); McGann v. Ne. Ill. Reg’l Commuter R.R. Corp., 8 F.3d 1174, 1176 (7th Cir. 1993) (reversing district court’s grant of defendant’s summary-judgment motion because circumstances of search and seizure create “genuine issues of fact precluding summary judgment”); Accolla v. Ladestri, No. 87 Civ. 2272 (LMM), 1991 WL 274330, at *5 (S.D.N.Y. Dec. 6, 1991) (“factual issue raised by Plaintiff’s and Defendants’ conflicting accounts of the circumstances of that search renders summary judgment on this claim inappropriate as a matter of law”); Reed v. Schneider, 612 F. Supp. 216, 221 (E.D.N.Y. 1985) (“The question of the voluntary nature of [plaintiff’s] consent [to search his home] constitutes a material fact in issue that can only be decided by the finder of fact.”); id. at 223 (co-defendant’s role also “must be resolved by the finder of fact”); Nigro v. Phillips, No. 92-CV-399, 1997 WL 86323 (N.D.N.Y. Feb. 28, 1997) (in home-entry case, denying defendants’ summary-judgment motion because of conflicting testimony; “the court is unable to find valid consent as a matter of law”); Djonbalic v. City of New York, No. 99 Civ. 11398 (SHS) (AJP), 2000 WL 1146631 (S.D.N.Y. Aug. 14, 2000) (in case involving entry and search of apartments, “because the facts are in dispute, summary judgment is not warranted and the jury should be allowed to determine whether valid consent was given for each search”).
Here, as in all the cases cited above, summary judgment on the issue of consent is inappropriate because there is conflicting testimony as to the facts and circumstances surrounding the ICE agents’ entry into plaintiffs’ homes. To take one example, the 710 Jefferson plaintiffs contend that ICE agents employed a ruse and gained entry into the house by stating that someone in the house was dying. See Mov. Mem. at 5. But the defendants at that location have uniformly testified that no such ruse was used. See ICE 18 Decl. ¶ 13; ICE 19 Decl. ¶ 11; ICE 20 Decl. ¶ 9; ICE 21 Decl. ¶ 11; ICE 22 Decl. ¶ 11; ICE 23 Decl. ¶ 7; ICE 24 Decl. ¶ 8; ICE
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25 Decl. ¶ 12; ICE 26 Decl. ¶ 12. Likewise, at 15 West 18th Street, the plaintiffs allege that officers “barged into the home” without obtaining consent. See Mov. Mem. at 11. But the defendants at that house have declared under oath that entry did not occur as plaintiffs allege it occurred, that it was their custom and practice to always obtain consent before entering, and that they would remember if anyone had deviated from that custom and practice at that location. See ICE 40 Decl. ¶¶ 9-10; ICE 41 Decl. ¶ 19; ICE 45 Decl. ¶ 23; ICE 50 Decl. ¶¶ 8-9; ICE 51 ¶ 13; ICE 52 Decl. ¶ 8. It is for the jury to weigh this conflicting testimony and assess the credibility of the witnesses. Summary judgment is inappropriate. B. Consent Is Governed by an Objective Standard, and in
Civil Cases Plaintiffs Carry the Ultimate Burden of Persuasion Plaintiffs argue that “[i]t is the agents’ burden to demonstrate that ‘consent was given freely and voluntarily.’” Mov. Mem. at 17 (quoting Anobile v. Pelligrino, 303 F.3d 107, 124 (2d Cir. 2001)). This argument confuses the government’s burden in criminal cases with a plaintiff’s burden in a civil case. As the Second Circuit has explained in the context of a civil action seeking damages for an allegedly nonconsensual and warrantless search, while “searches and seizures conducted without warrants are presumptively unreasonable . . . . [t]he operation of this presumption . . . cannot serve to place on the defendant the burden of proving that the official action was reasonable.” Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991). Thus, while the presumption may require the defendant to “produc[e] evidence of consent or search incident to an arrest or other exceptions to the warrant requirement,” the “ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials.” Id.; see also Evans, 2000 WL 631357 at *14 (“While in the criminal context a warrantless search is presumed unreasonable, requiring the government to show that it was reasonable under the circumstances, in a civil action, the defendant only has the burden of
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coming forward with a justification (such as consent), while the burden of proof remains with the plaintiff.”) (citation omitted); Maker, 2007 WL 2688230, at *3 (“In a criminal case, the prosecutor bears the burden of proving that consent was freely and voluntarily given. In a civil § 1983 action, however, although the burden of producing evidence of consent may be on the defendant, the risk of nonpersuasion remains with the plaintiff.”) (citations omitted). Thus, to the extent plaintiffs’ motion rests on an asserted failure of defendants to meet the criminal-case burden articulated in Anobile—i.e. they defendants cannot prove that they obtained consent— their motion should be denied based on an incorrect statement of applicable law. C. The Extent of Each Defendant’s Personal Involvement
Is a Factual Issue Precluding Summary Judgment Even though plaintiffs acknowledge that each of the ICE agents they have sued had different roles during the operations, plaintiffs have moved for summary judgment against all ten defendants who were present at 710 Jefferson Street and all eleven defendants who were present at 15 West 18th Street, in effect lumping them together as if their varied roles and conduct were immaterial to the question of individual liability. But plaintiffs’ inability to identify the specific alleged personal involvement of each individual defendant fails to satisfy the elements of their cause of action and creates numerous issues of fact for trial. Plaintiffs note that ICE 42 (who, along with ICE 19, has moved for summary judgment with respect to 710 Jefferson Street) was “stationed outside of the home, near her car,” Rule 56.1 Statement at ¶ 43,” and that “[a]t a minimum, ICE 18, 21, 23, 25 and 26 entered the home,” id. at ¶ 59. Plaintiffs further state that “[a]t least one agent searched the girls’ bedroom,” id. 66, but the agent is not identified. As for 15 West 18th Street, plaintiffs state that “at least six” of the 11 defendants “approached and/or surrounded the home,” id. ¶ 96, and that “[a]t a minimum, ICE 39, 40, 41, 47, 49, and 50 entered the home,” id. ¶ 105. Plaintiffs provide no further
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explanation as to who did what, including which agent allegedly insisted that Christopher Jimenez “[o]pen the door.” Id. ¶ 101.
Plaintiffs nonetheless ask the Court to enter summary judgment against all 21 defendants, including the ones who stayed near their cars and played no role in the entries or searches. But to establish Bivens liability, plaintiffs must show that each defendant was personally involved in the alleged violations. See Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000); Castellar v. Caporale, No. CV-04-3402 (DGT), 2010 WL 3522814, at *4 (E.D.N.Y. Sept. 2, 2010); see also Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006).1 Thus, a plaintiff must satisfy this requirement by proving that each defendant directly participated in the alleged violations. See, e.g., Wallace v. Conroy, 945 F. Supp. 628, 637 (S.D.N.Y. 1996).
For this reason, at least one Circuit has found reversible error when a trial court instructed the jury that individual liability could be based on “team effort.” See Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 2002) (“We decline to require an instruction that would invite a jury to find all of the officers liable for an alleged constitutional violation merely for being present at the scene of an alleged unlawful act.”); Chuman v. Wright, 76 F.3d 292, 295 (9th Cir. 1996) (“team effort” standard impermissible).
Chuman arose from a SWAT-style search of a plaintiff’s home. See Chuman, 76 F.3d at 293. The jury found against only two of the defendants, id., and on appeal, one of them challenged the district court’s jury instruction, which provided:
1 Although the constitutional claims asserted in Farrell and other cases cited in this brief were brought under 42 U.S.C. § 1983, “federal courts have typically incorporated § 1983 law into Bivens actions.” Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
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Concerning the search of the residence, if you find the searches were conducted in an unreasonable manner, then no matter whose actions ultimately inflicted the plaintiff’s injury, when the deprivation of the rights is the result of a “team effort,” all members of the “team” may be held liable. Id. at 294. The defendant argued that the instruction suggested liability even if he was not an individual tortfeasor, and the Ninth Circuit agreed. Id. at 294-95. The instruction erroneously “removes individual liability as the issue and allows a jury to find a defendant liable on the ground that even if the defendant had no role in the unlawful conduct, he would nonetheless be guilty if the conduct was the result of a ‘team effort.’” Id. at 295. According to the court, the “team effort” standard impermissibly allows the jury to “lump all the defendants together.” Id. Here, in seeking judgment against all 21 defendants, irrespective of their differing roles and varying responsibilities, plaintiffs’ motion is predicated on an impermissible “team effort” theory that seeks to avoid complicated factual questions by lumping all of the defendants together. But Chuman and the Second Circuit’s personal-involvement cases preclude this approach. Indeed, plaintiffs themselves have acknowledged this law in this case, seeking discovery of photographs to assist them in making individualized showings by defendant. See Cargo Decl. Ex. B, Apr. 20, 2010, Hrg. Tr., at 58-59 (stating that counsel wished to show the photographs to local law enforcement and the plaintiffs); see also id. at 62 (government counsel stating that “[p]art of the purpose of seeing the photographs as they have articulated it is being able to identify [whether] a particular agent was at their home on a particular day. We are not going to do that for them; that’s an issue in the case.”), 63 (identification is “going to be an issue for trial, your Honor, does this plaintiff remember this specific agent who is our client entering their home without consent”).
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Plaintiffs were attempting 18 months ago to develop evidence of each defendant’s personal involvement, as they must. But despite being provided with photographs of every individual defendant who participated in the home operations (in addition to more than 140 depositions), plaintiffs are unable to come forward with specific evidence as to who allegedly did what. Now, rather than ask a jury to sort out the complicated factual issues, plaintiffs ask the Court to bypass the function of the jury entirely and enter judgment against all 21 defendants, regardless of their differing roles and varying involvement in two operations. The Court should not do so, but should instead find that whether plaintiffs can meet their burden of proof with respect to each defendant is an issue of fact for trial. D. Evidence of Defendants’ Habits and Routine Practices, Which Is
Admissible Under Fed. R. Evid. 406, Precludes Summary Judgment Plaintiffs argue that defendants “have produced zero evidence of consent—voluntary or not—to enter or search the Moving Plaintiffs’ homes and curtilage.” Mov. Mem. at 18 (emphasis in original). But that assertion ignores that evidence of defendants’ customs and practices—including the custom and practice of always obtaining consent when conducting a warrantless operation, see, e.g., ICE 50 Decl. ¶ 8; ICE 52 Decl. ¶ 8—is admissible and creates a genuine dispute to be resolved by the jury. Federal Rule of Evidence 406, titled “Habit; Routine Practice” and revised effective December 1, 2011, provides: Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. The advisory committee’s note explains that character evidence, which is generally inadmissible, is “a generalized description of one’s disposition, or of one’s disposition in respect
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of a general trait, such as honesty, temperance or peacefulness.” Habit or practice, on the other hand, is “more specific” in that “it describes one’s regular response to a repeated specific situation . . . the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars as they are moving. The doing of habitual acts may become semi-automatic.” See Fed. R. Evid. 406, Advisory Committee Note (quoting McCormick on Evidence, § 162, at 340).
Thus, habit evidence is often used where a witness has no specific recollection about the event at issue, but can describe his regular practice in similar situations. See, e.g., Carrion v. Smith, 549 F.3d 583, 590 (2d Cir. 2008) (where attorney had no specific recollection of representing client 12 years prior to his testimony, evidence regarding his usual practice was admissible to establish he provided effective assistance in habeas petition); Fuller v. Summit Treestands, LLC, No. 07-CV-00330(A)(M), 2009 WL 1874058, at *4 (W.D.N.Y. May 11, 2009) (“Although [plaintiff’s] inability to recall the events of the day in question might otherwise preclude his testimony that he did not open the hatch cover or detach the cable on that day, Fed. R. Evid. 406 allows ‘evidence of the habit of a person . . . whether corroborated or not . . . to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit.’”); United States v. Bifulco, No. 06-CV-684A, 2007 WL 1288214, at *1 (W.D.N.Y. May 1, 2007) (attorney’s declaration concerning “his routine habit and practice” in advising clients, although he did not recall the specific discussion, was sufficient to defeat habeas claim of ineffective assistance); Beckcom v. United States, 584 F. Supp. 1471 (N.D.N.Y. 1984) (doctor permitted to testify about his usual practice in conducting a breast exam where he had no independent recollection of the exam at issue). And where habit evidence is offered in response
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to a summary-judgment motion, it creates an issue of fact (typically involving a credibility determination) and defeats the motion. See, e.g., McElmurry v. U.S. Bank Nat’l Ass’n, No. CV04-642-HU, 2007 WL 1276958, at *11 (D. Or. Mar. 23, 2007) (“evidence regarding [plaintiff’s timekeeping] practice[s] . . . creates a genuine issue of material fact precluding an award of summary judgment”).
Here, even assuming that defendants have no specific recollections of 710 Jefferson Street and 15 West 18th Street (which is not the case), they have testified that consent-based operations are entirely routine, that they have conducted them hundreds of times, and that they follow (and have been trained to follow) a specific, systematic process when seeking consent to enter. See, e.g., ICE 41 Decl. ¶¶ 10, 15; ICE 45 Decl. ¶¶ 11, 14; ICE 50 Decl. ¶ 8; ICE 51 Decl. ¶¶ 7, 8, 13; ICE 52 Decl. ¶ 8. And their testimony has been corroborated by the assisting Nassau and Suffolk detectives—neutral third-party witnesses who consistently testified that they did not witness or hear about any nonconsensual entries. See, e.g., Egan Tr. (Cargo Decl. Ex. C), at 251:21-25 (“A. [A]s a group we obtained permission to come in to a house. Q. So you observed consent being obtained during the course of the operation? A. Yes.”); Hoeler Tr. (Cargo Decl. Ex. D), at 355:21-23 (“Q. Are you aware of anyone entering a home without consent? A. No.”); Coffman Tr. (Cargo Decl. Ex. E), at 239:1-7 (“Q. Did you see anyone, or did you witness any situations in which ICE agents entered homes without – in which you knew they were doing so without consent? A. I did not.”), 232:5-8 (“Q. Did you witness anything that you would have considered a constitutional violation? A. No, not from what I witnessed.”); Ierardi Tr. (Cargo Decl. Ex. F), at 198:21-25 – 199:1-10 (“Q. Did you encounter any uncomfortable situations during the course of your day? A. Not my team, no. Q. And in every house that you entered, it was a cordial atmosphere? A. Yes . . . . Q. And you didn’t observe any situation
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where access to enter the house was denied by the individual who opened the door? A. No.”), 262:22-25 – 263:1-4 (“Q. Did you see – on September 24, 2007, did you see anyone force their way into a residence – A. No. Q. – like if a resident opened the door, an ICE agent pushed through the door? A. No.”); accord Mulvey Tr. (Cargo Decl. Ex. G), at 126:16-18 (“Q. Do you have any first-hand knowledge of agents entering homes without consent? A. No.”).
But even if defendants’ habit evidence could not be corroborated, it is still admissible under the plain language of Rule 406 to prove that at 710 Jefferson Street and 15 West 18th Street, the ICE agents “acted in accordance with [their] habit or routine practice.” Fed. R. Evid. 406. Because the credibility of this testimony—and how persuasive it is relative to plaintiffs’ own testimony—is an issue for the jury, defendants’ custom and habit evidence precludes summary judgment. E. Whether Consent Was Valid Is a Factual Issue Precluding Summary Judgment
Plaintiffs further assert that “even if Defendants could offer admissible evidence tending to show that consent was obtained . . . any such consent would not have been valid as a matter of law.” Mov. Mem. at 19. Plaintiffs argue that because of the age of some of the persons at the locations—a 12-year-old at 710 Jefferson Street and a 17-year-old at 15 West 18th Street— defendants “did not even confront any individual . . . who had the authority or capacity to grant consent to enter or search.” Id.
But whether a minor’s consent is legally valid is a factual issue based on the totality of the circumstances, a principle recognized by plaintiffs’ primary authority, Abdella v. O’Toole, 343 F. Supp. 2d 129, 135 (D. Conn. 2004). In that case, the court stated that “[i]t is clear that there is no per se rule that all minors lack the authority to consent to a search.” Id. Instead, “the minority of the consenting party will be merely one of many factors considered when a factfinder decides the voluntariness of consent.” Id.
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Further, the Abdella court stated that whether the 11-year-old in question there gave valid consent depended not on whether a child of that age was legally able to consent to a search at all, but on whether she had apparent authority to permit the police to enter her parents’ home and search the bedrooms. Id. at 137. And according to the Supreme Court, that issue turns on whether the homeowners “have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, 415 U.S. 164, 171 (1974); see also Charles v. Odum, 664 F. Supp. 747, 752 (S.D.N.Y. 1987) (Leisure, J.) (“Matlock’s third[-]party consent analysis looks not to the presence or absence of a party but to whether the party assumed the risk that another might consent to the search.”) (citations omitted). Thus, neither Abdella nor other law supports plaintiffs’ contention that consent obtained from a minor is invalid as a matter of law.
For these reasons, as in Abdella, there are at least two distinct sets of factual issues regarding the minors at 710 Jefferson Street and 15 West 18th Street: first, whether, based on the totality of the circumstances, the minors gave consent to enter, see Abdella, 343 F. Supp. 2d at 138 (“There are genuine issues of material fact regarding [the 11-year-old girl’s] consent for defendants to enter the Abdella home and so summary judgment is denied.”); and second, whether the minors had actual or apparent authority to consent, see id. (“Summary judgment for the second floor is denied as there are genuine issues of fact regarding [the eleven-year-old girl’s] actual authority to consent.”). As noted, the defendants’ consistent testimony is that they obtained consent to enter, see supra at 4-5, and the age of the residents is at most an issue of fact for the jury to consider, thereby precluding summary judgment.
Plaintiffs next argue that “any purported consent . . . cannot, as a matter of law, have been free and voluntary, as required by the Fourth Amendment.” Mov. Mem. at 21. But there are a
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number of problems with that position, the first of which is that it requires the Court to assume both the truth of all of plaintiffs’ allegations and the falsity of defendants’ denials. For example, defendants dispute, among other things, the time of the operations at 710 Jefferson Street, that they “brandished” their weapons, and that they yelled that “someone is dying upstairs.” See, e.g., ICE 18 Decl. ¶ 13; ICE 19 Decl. ¶ 13; ICE 23 Decl. ¶¶ 7-8; ICE 24 Decl. ¶ 8. For the purposes of plaintiffs’ motion, the Court is required to accept defendants’ statements as true, which precludes finding that consent was involuntary “as a matter of law.” Mov. Mem. at 21.
Second, given that the jury is required to examine the “totality of all the surrounding circumstances,” see Schneckloth v. Bustamante, 412 U.S. 218, 226 (1973), merely listing a number of factors that could suggest a lack of voluntary consent does not establish the absence of a genuine issue of material fact, a principle recognized by plaintiffs’ own cases. In Djonbalic v. City of New York, No. 99 Civ. 11398 (SHS) (AJP), 2000 WL 1146631, at *10 (S.D.N.Y. Aug. 14, 2000), for example, the plaintiffs alleged that the police, in riot gear and carrying weapons, knocked on their door late at night, threatened them, and then began breaking down the doors. The Court nonetheless found that “because the facts are in dispute, summary judgment is not warranted and the jury should be allowed to determine whether valid consent was given for each search.” Id. And the fact that certain factors “are of great import,” Mov. Mem. at 22, does not require a legal finding that consent was per se invalid, which is consistent with this Court’s statement (in the very different context of assessing the legal sufficiency of the complaint) that plaintiffs’ allegations “tend[ ] to undermine voluntary, duress-free consent.” See Aguilar v. ICE, No. 07-8224, 2011 WL 3273160, at *13 (S.D.N.Y. Aug. 1, 2011). That decision concerned four high-level officials’ motion to dismiss under Rule 12(b)(6), where the Court acknowledged that “the allegations in the complaint are accepted as true, and all reasonable inferences must be
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drawn in the plaintiffs’ favor.” Id. at *1. In contrast, here is it defendants’ statements that must be accepted as true, so plaintiffs get no mileage from the Court’s statement that certain factors sufficiently allege a lack of valid consent. For similar reasons, plaintiffs are not assisted by their purported sleep expert, who argues that being awoken suddenly would “‘call into question the extent to which a grant of permission was made voluntarily.’” Mov. Mem. at 23 (quoting report, citation omitted). Whatever evidence plaintiffs advance to argue that there was no voluntary consent, other evidence supports the opposite conclusion, see Egan Tr. (Ex. C), at 251:21-25; Hoeler Tr. (Ex. D), at 355:21-23; Coffman Tr. (Ex. E), at 239:1-7, and precludes summary judgment.
This is especially true given that consent is not required to be knowing and intelligent, and the issue of consent is governed by an objective standard. See United States v. Garcia, 56 F.3d 418, 422-23 (2d Cir. 1995). Thus, the jury must determine whether each agent acted reasonably—that is, “whether the officer had a reasonable basis for believing that there had been consent to the search.” Id. at 423 (quotation omitted); see also Florida v. Jimeno, 500 U.S. 248, 251 (1991) (“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?”). Thus, “[t]he Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to [conduct the search that was undertaken].” Garcia, 56 F.3d at 423 (quoting Jimeno, 500 U.S. at 249) (brackets in original). Therefore, whether it was objectively reasonable for ICE 18, for example, to believe that a local officer had obtained consent to enter 710 Jefferson Street is a question of fact that must be determined based on the totality of the circumstances. See Schneckloth, 412 U.S. at
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227; Anobile, 303 F.3d at 124; United States v. Peterson, 100 F.3d 7, 11 (2d Cir. 1996); Garcia, 56 F.3d at 423.
Finally, although plaintiffs observe that “[c]ourts in this district have not hesitated to grant summary judgment where defendants counter sworn testimony with unsubstantiated denials, conjecture, or otherwise fail to rebut plaintiff’s sworn testimony,” Mov. Mem. at 15, defendants here have presented more than enough facts to controvert plaintiffs’ claims, and the two cases plaintiffs cite are readily distinguishable. In Dolphin Direct Equity Partners, LP v. Interactive Motorsports & Entertainment Corp., No. 08 Civ. 1558 (RMB)(THK), 2009 WL 577916, at *6 (S.D.N.Y. Mar. 2, 2009), the defendant stated that he did not know one way or the other whether the plaintiff had received the disputed payment, which the court deemed insufficient to defeat plaintiff’s summary-judgment motion. Similarly, in JSC Foreign Economic Association v. International Development & Trade Services, Inc., 386 F. Supp. 2d 461, 475 (S.D.N.Y. 2005), the non-moving party provided no contradictory evidence and instead merely disputed whether plaintiff’s evidence actually supported the allegations in the accompanying Rule 56.1 statement—which it did. Neither case supports plaintiffs’ motion here, given their failure to make even a prima facie case as to any individual defendant, the fact issues created by some defendants’ specific recollections of the relevant events, and the overwhelming evidence based on habit and custom, all of which will need to be resolved through trial.
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CONCLUSION

For the foregoing reasons, the Court should deny plaintiffs’ motion for partial summary

judgment.

Dated: New York, New York December 23, 2011

PREET BHARARA United States Attorney for the Southern District of New York, Attorney for Defendants

By:

/s/

DAVID BOBER

SHANE CARGO

BRANDON COWART

LOUIS A. PELLEGRINO

Assistant United States Attorneys

86 Chambers Street

New York, New York 10007

Tel. (212) 637-2711

Fax (212) 637-2786

22

 
 Case 1:07-cv-08224-KBF Document 348 Filed 04/30/12 Page 1 of 23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------- X
ADRIANA AGUILAR, et al.,
Plaintiffs,
-v-
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants. ---------------------------------- X

USDCSDNY DOCUMENT ELECTRONICALLY FILED
DDAOTCE#:F'-IL-E-D:..,...q~11:r-O-=-.I....I.~2...-.-11
07 Civ. 8224 (KBF) MEMORANDUM & ORDER

KATHERINE B. FORREST, District Judge: This putative class action, brought by individuals whose
homes were searched by agents of the Immigrations and Customs Enforcement Division of the United States Department of Homeland Security ("ICE") during eight operations between February and September 2007, seeks to vindicate certain constitutional rights--namely those under the Fourth and Fifth Amendments of the United States Constitution--allegedly violated during those operations. In addition to injunctive relief and damages from the United States under the Federal Tort Claims Act, plaintiffs seek damages from certain individual defendants named in this action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See Fourth Am. Compl. (Dkt. No. 202) ~~ 484­ 89 (Third Claim) . )

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The Bivens claim is the subject to two motions for summary judgment pending before the Court (both of which are resolved by this opinion). First, plaintiffs Sonia Bonilla, Beatriz Velasquez, Dalia Velasquez, Pelagia De La Rosa-Delgado, Christopher Jimenez I Bryan Jimenez, and Anthony Jimenez (the "moving plaintiffsll) filed a motion for partial summary judgment on the Bivens claim against twenty ICE agentsl who allegedly carried out two of the illegal operations of which plaintiffs complain. (Dkt. No. 304.) Second, defendants ICE 19, ICE 30, ICE 32, ICE 42, and ICE 43 (the "moving defendants")2 move for summary judgment on the Bivens claim on the grounds that "there is no evidence that any of them ever approached or entered plaintiffs' homes, much less took part in the searches, arrests, or purported discriminatory conduct that allegedly occurred." {Mem. of Law in Support of Five Bivens Defs.' Mot. for Summ. J. ("Defs. Mem.") at 1.)
For the reasons discussed below, both motions for summary judgment are DENIED.
1 The motion for partial summary judgment is directed at the following ICE agents: ICE 18, ICE 19, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 39, ICE 40, ICE 41, ICE 42, ICE 45, ICE 46, ICE 47, ICE 48, ICE 50, ICE 51, and ICE 52. (See Notice of Mot. (Dkt. No. 304).) The ICE agents' identities have remained confidential throughout the pendency of this litigation. This Court therefore adopts the numerical designations that have been used with respect to each agent. 2 Neither set of moving parties encompasses all plaintiffs or all defendants respectively.
2 


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BACKGROUND

The following facts, relevant to both motions, are undisputed unless otherwise noted. 3

During the week of September 24, 2007, ICE agents conducted

home operations in which they would execute "administrative

arrest warrants via consensual door knocks at pre-targeted

locations" (the "September 2007 operations"). (PIs.' Rule 56.1

Stmt. ("PIs. 56.1") ~~ 1, 2.) ICE previously had issued

memoranda for those types of home operations, instructing agents on the use of "ruse techniques." Id. ~ 3.) Three of the eight

home operations at issue in this litigation are the subject of

the two motions: 710 Jefferson Street (both plaintiffs' and

defendants'), 15 West 18th Street (plaintiffs' only), and 22

Dogwood Lane (defendants' only).

Ten ICE agents--ICE 18, 19, 20, 21, 22, 24, 25, 26, and

42along with members of the Nassau County Police Department,

conducted the operation on September 24, 2007, at 710 Jefferson Street in Westbury, New York. (PIs. 56.1 ~~ 16, 19.) At the

time of the operation, plaintiff Sonia Bonilla resided there

with her husband and two minor daughters, Beatriz, age 12, and

3 Defendants deny certain of plaintiffs' facts on the grounds that they are

"immaterial" to plaintiffs' motion for partial summary judgment.

Defs.1 Resp. to PIs.' Rule 56.1 Stmt. ("Defs. 56.1 Resp.lI) ~~ 1-7, 35, 75-81,

115.) Such conclusory denials, unsupported by contrary facts creating a

"material dispute," are insufficient to rebut statements of facts supported

by admissible evidence.

Fed. R. Civ. P. 56(c) (1) (A), 56(e) (2)i Schultz

v. Stoner, No. 00 Civ. 439, 2009 WL 455163 1 at *2 nn.3 4. Thus, for purposes of resolving plaintiffs' motion, the Court deems facts that defendants

dispute as "immaterial" admitted.

:;

Case 1:07-cv-08224-KBF Document 348 Filed 04/30/12 Page 4 of 23
Dalia, age 9. (Id. ~~ 13-14.) Neither the ICE agents nor the police officers had judicial warrants to enter or search 710 Jefferson Street, and no "specific particularized danger," "exigent circumstances," or "threat to safety" existed (or was apparent) at the time of the operation. (PIs. 56.1 ~~ 20, 22, 23.) The government has conceded that this operation (as well as the other seven at issue) was not based on probable cause. (Id. ~ 21.)
The 710 Jefferson Street operation had both a primary target--Luis Mata--and a secondary target--Rojar Cruz. (PIs. 56.1 ~~ 24, 26.) Although defendants dispute its relevance, ICE did not have evidence (and may have had contrary evidence prior to the operation) that either Mata or Cruz resided at 710 Jefferson Street at the time of the operation. Id. ~~ 24, 26.) The members of the 710 Jefferson Street team visited a separate residence prior to conducting the one at issue. (Id. ~ 18.)
Neither plaintiff Bonilla nor her husband were present at the time the ICE agents arrived at 710 Jefferson Street, as they left sometime between 5:30 a.m. and 6:30 a.m., when Bonilla drove her husband to work. (PIs. 56.1 ~~ 29, 30.) Upon arrival, the agents and officers--who were carrying guns, and wearing bulletproof or tactical vests (or in some cases, raid jackets)--parked their cars (approximately seven) in front of the subject premises. (Id. ~~ 31, 32.) At the commencement of
4

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the operation, ICE lS--the leader of the 710 Jefferson operation--was at the front of the house; ICE 19 and 20, on the perimeter (performing "perimeter security"--i.e., monitoring persons exiting the premises) i ICE 21, on the outside of the home to establish "perimeter security"; ICE 22, approached the residence (although precisely where she was stationed cannot be recalled) i ICE 23, at or near the front door; ICE 24 and ICE 25, on the outside of the house conducting "perimeter security"; ICE 26, in the backyard and at the back of the house; and ICE 42, outside the home, near her car. Id. " 33-39, 41-43.)
The agents approached the residence at 710 Jefferson Street and began knocking on the door. (PIs. 56.1 , 45.) The manner of the knocking is in dispute--plaintiffs assert that the knocking was "loud," that the agents were shouting "police" and "open the door," and insisted upon entering. (Id. " 45, 49.) Defendants dispute all of that conduct, except that the agents identified themselves as police. (Defs. Resp. to PIs.' Rule 56.1 Stmt. ("Defs. 56.1 Resp.") " 45, 49.) Plaintiffs further assert that the agents ordered those inside the house (allegedly only Bonilla's two minor daughters--Beatriz and Dalia) to open the door, and tie down the dog, and informed those inside that they had to enter. (PIs. 56.1 " 45, 49, 50.) Twelve-year old Beatriz testified that she, having been awakened by her sister who had heard the agents knocking, opened the door to talk to
5 


Case 1:07-cv-08224-KBF Document 348 Filed 04/30/12 Page 6 of 23
the agents when they stepped around her and went through the door and fanned out in the house--i.e./ they entered without consent. Id. ~~ 46 1 47, 51, 52.) Plaintiffs assert--although defendants dispute--that one of the officers shouted that someone in the house was dying in order to obtain consent. (Id. ~ 50; Defs. 56.1 Resp. ~ 50.) At their depositions, none of the officers or agents could recall whether--and if so, from whom-­ consent was obtained to enter 710 Jefferson Street. (PIs. 56.1 ~ 54.)
ICE 18, 21, 23, 25, and 26 all entered 710 Jefferson Street. (PIs. 56.1 ~ 59.) Upon entry, ICE 18 directed Beatriz and Dalia to go to their room and take their dog. Id. ~ 56; cf. id. ~ 60.) Although there are no facts proffered for what precisely happened between entry and the time that four or five persons who were inside the home "had been secured," it is undisputed that those persons were indeed so "secured" in the living room, where ICE 21 was present. (Id. ~ 61.) ICE 25 went to the hallway and kitchen areal in which he encountered another individual (a male) who had been handcuffed on the stairwell. (Id. ~ 62.) ICE 26 entered the bedrooms of some of the other residents and, accompanied by other agents, corralled those individuals into the living room. (Id. ~ 64.) Other ICE agents similarly corralled individuals in the living room. (Id. ~65.)
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During the course of the operation, plaintiff Bonilla returned home. (PIs. 56.1 ~ 67.) Upon being informed that the homeowner had returned, ICE 18 exited the premises and spoke with Bonilla. Id. ~ 68.) He did not seek Bonilla's consent to continue the search. Id.
It is disputed whether the agents allowed Bonilla inside immediately upon her return, but it is undisputed that she was eventually allowed inside. (PIs. 56.1 ~~ 69, 70; Defs. 56.1 Resp. ~~ 69, 70.) What Bonilla witnessed upon entering her home is highly disputed: Bonilla states that her daughters were crying in their room, that she saw ICE agents trying to force open a closet in her bedroom, and that certain tenants were handcuffed. Id. ~~ 70-73.) Defendants dispute all of that. (Defs. 56.1 Resp. ~~ 70-73.)
Eleven ICE agents--ICE 39, 40, 411 45, 46, 47, 48, 49, 50, 51, and 52--along with officers from the Suffolk County Police Department conducted the operation at 15 W. 18th Street in Huntington, New York on September 27, 2007. (PIs. 56.1 ~~ 82, 85.)4 Plaintiffs Peggy de la Rosa-Delgado , Christopher Jimenez, Anthony Jimenez, and Bryan Jimenez lived at 15 West 18th Street at the time of the alleged incident--and had lived there since 2003. Id. ~ 77.) Christopher, Anthony, and Bryan were 17, 19,
4 The ICE agents and officers who participated in the operation at 15 West 18th Street had visited a separate home that morning prior to conducting the 18th Street operation. (PIs. 56.1 ~ 84.)
7 


Case 1:07-cv-08224-KBF Document 348 Filed 04/30/12 Page 8 of 23
and 14 years old, respectively, at the time of the search. Id. ~~ 79, 80, 81.) Neither the ICE agents nor the police officers had judicial warrants to enter or search 710 Jefferson Street, and no "specific particularized danger," "exigent circumstances," or "threat to safety" existed (or was apparent) at the time of the operation. Id. ~~ 86-88.) The West 18th Street operation was specifically targeted at Miguel Quintanilla. (Id. ~ 89.) There is no dispute that the officers and agents did not find Quintanilla at 15 West 18th Street.
Id. ~ 115.) As with the operation at 710 Jefferson Street, the agents
and officers arrived at 15 West 18th Street sometime between 5:00 a.m. and 6:30 a.m. Id. ~ 93.} And upon arrival, the agents and officers--who were carrying guns, and wearing bulletproof or tactical vests (or in some cases, raid jackets)-­ parked their cars (approximately five or six) in front of the subject premises. (Id. ~~ 94, 95.)
At least six agents or officers approached the 18th Street location and surrounded the premises. Certain agents began knocking on the front door of the house, insisting that someone open the door. Id. ~~ 96, 97.)5 There is a dispute over whether the agents "pounded loudly" on the front door and
5 Defendants dispute plaintiffs' use of the word "surrounded," but concede that agents patrolled the perimeter of 15 West 18th Street. (Defs. 56.1
Resp. 1 96.)
s 


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whether they insisted upon entry. Id. ~~ 96, 97i Defs. 56.1 Resp. ~~ 96, 97.) According to plaintiffs, Christopher Jimenez cracked the door open after requesting that the agents identify themselves. Id. ~ 102.) Plaintiffs further assert that agents pushed the door open further and pushed past Christopher into the house. Id. ~ 103.) Defendants dispute all of that. (Defs. 56.1 Resp. ~ 103.) What is not disputed, however, is that additional agents entered the house through the back door. (PIs. 56.1 ~ 104.) There is no dispute that, at a minimum, ICE 39, 40, 41, 47, 49, and 50 entered the house. Id. ~ 105.)
Plaintiffs claim that none of the agents or officers who were part of the 15 W. 18th Street operation obtained consent, but defendants dispute that the agents entered the home unlawfully. Id. ~ 106i Defs. 56.1 Resp. ~ 106i see also PIs. 56.1 ~~ 107-08i Defs. 56.1 Resp. ~~ 107-08.) The same can be send for the agents'/officers' entry into the yard at 15 West 18th Street. (PIs. 56.1 ~ 110i Defs. 56.1 Resp. ~ 110.) The events that transpired once the agents were inside the house at 15 West 18th Street are highly disputed. (See PIs. 56.1 ~~ 111­ 14j Defs. 56.1 Resp. ~~ 111-14.)
As discussed above, ICE 19, 30, 32, 42, and 43 all participated in the September 2007 operations--ICE 19 and 42 at 710 Jefferson Street, and ICE 3D, 32, and 43 at 22 Dogwood Lane (one of the subject residences of defendants' motion only) .
9 


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(Defs. Local R. 56.1 Stmt. of Undisputed Facts ("Defs. 56.1") ~~ 1t 3, 9, lOt 15, 17 t 23, 25, 29.) None of the ICE agents played any role in selecting the targets or planning the operations at the locations in which the searches were carried out. (Id. ~~ 2, 9 t 16, 24 t 30.)
The precise roles that each of ICE 19, 30 t 32, and 42 played in the operations at the two locations that are the subject of defendants' motion are in dispute. What is not disputed regarding their roles is as follows.
At the 710 Jefferson Street location, neither ICE 19 nor ICE 42 entered the house. (Defs. 56.1 ~~ 8, 14; see also PIs. 56.1 ~~ 34, 43, 59.)6 From his position approximately 20-25 yards from the front door of 710 Jefferson Street, ICE 19 could see officers approach the location, heard the word "police" uttered by the officers at the front door, and did not see any officers draw their weapons. (Defs. 56.1 ~~ 5-6.) ICE 42, from her location outside of the house, likewise did not witness any

6 Plaintiffs dispute that ICE 19 and 42 did not enter 710 Jefferson Street on

the basis that they have not been given an opportunity to identify the

specific ICE officers who participated in the operations at each location.

(See PIs.' Resp. to Defs.' 56.1 ("PIs. 56.1 Resp.") ~, 8, 14.) As noted by

defendants, plaintiffs were given photos of each of the ICE officers who

participated in the seven operations approximately a year and a half before

filing their summary judgment motion, and conducted depositions subsequent to

the production of those pictures. Plaintiffs complain, without citation to

an affidavit or otherwise, that the pictures are "woefully" outdated.

Despite having the pictures for such a lengthy period of time, plaintiffs

never made the pictures the subject of any motion to compel--or any other

discovery motion.

Di Benedetto v. Pan Am World Serv., Inc., 359 F.3d

627, 630 (2d Cir. 2004. Thus assertions regarding what the photographs can

or cannot show do not raise--or dispel--triable issues of fact.

10 


Case 1:07-cv-08224-KBF Document 348 Filed 04/30/12 Page 11 of 23
officers draw weapons. (Id. ~ 14.) However I there is conflicting testimony regarding whether ICE 42 may have entered the yard of 710 Jefferson Street: one resident recalled that there was a woman present and there were only two women who were part of the operation that day (including ICE 42). (Defs. 56.1 ~~ 10-12; Pls.1 Resp. to Defs.' 56.1 ("Pls. 56.1 Resp.") ~~ 10­ 12. )
During the 22 Dogwood Lane operation, ICE 30 and 43 did not enter the premises. (Defs. 56.1 ~~ 221 34.) It is disputed whether ICE 32 did so. (See Pls. 56.1 Resp. ~ 28.) ICE 30 entered the front yard of the premises and took--and maintained­ -a position at the perimeter on the side of the housei from this position he heard agents at the door say "police." (Defs. 56.1 ~~ 18 1 21.) ICE 43 also assumed entered a fenced area of the home and took a perimeter position, approximately 30 feet from the front doori she remained in his position for the entirety of the operation. (Id. ~~ 32 1 33.) Although ICE 32 testified that he did not enter or approach the Dogwood Lane residence (Defs. 56.1 ~ 28), ICE 31 testified that ICE 32 did enter at one point and also assisted in transporting prisoners from the house to the waiting vehicles (Pls. 56.1 Resp. ~ 28) .
As to ICE 19, 30, 32, 421 and 43 1 there are significant factual disputes as to whether the officers who undisputedly heard other officers say "police" at the front door of the two
11

Case 1:07-cv-08224-KBF Document 348 Filed 04/30/12 Page 12 of 23
subject locations could also hear other conversations, whether they were all a part of a show of authority that assisted in the overall search effort, whether they could see if any officers removed their guns from their holsters and if so, when, and generally, whether they had a reasonable opportunity to intervene. (See generally Pls. 56.1 Resp. ~~ 1-34.)
DISCUSSION I. LEGAL STANDARD
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R Civ. P. 56(c). The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In making that determination, the court must "construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor." Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial," and cannot "rely merely on allegations or denials" contained in the pleadings. Fed. R. Civ. P.
12

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56{e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," as "[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 539 F.3d 159, 166 (2d Cir. 2010) (citations omitted). In addition, self-serving affidavits, sitting alone, are insufficient to create a triable issue of fact and defeat a motion for summary judgment. See
BellSouth Telecommc'ns, Inc. v. W.R. Grace & Co.-Conn., 77
F.3d 603, 615 (2d Cir. 1996). Only disputes over material facts--i.e., "facts that might affect the outcome of the suit under the governing law"--will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) i see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). II. APPLICABLE LAW
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . " U.S. Const. amend
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IV. Encompassed in that protection is the right to be free from warrantless searches within one's home. See Bringham City, Utah v. Stuart, 547 U.S. 398, 403 (2006).7 A warrantless search may be constitutional, however, if consent was given for the search of the person's home. See U.S. v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993). "Home"--or the area which is protected by the Fourth Amendment--has been construed, however, to include the "curtilage." U.S. v. Dunn, 480 U.S. 294, 300-01 (1987). "Curtilage" is defined by examining "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Id. at 301. An individual's "reasonable expectation of privacy" is the hallmark of determining "curtilage" protected by the Fourth Amendment. U.S. v. Titemore, 437 F.3d 251, 256-59 (2d Cir. 2006). Questions of "curtilage" thus are highly fact specific. Id. at 259-260.
Consent to enter one's home (which includes the curtilage) must be freely given and independent, rather than mere "acquiescence [to] a show of authority." Wilson, 11 F. 3d at
7Such a "presumptively unreasonable search" is rebutted in the "narrow" circumstance where law enforcement officials acting under color of state law conduct a "protective sweep"--Le., "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990).
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351. The burden of establishing free and independent consent rests with the government. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). Whether an individual has consented to a search is a question of fact to be determined by the 'totality of all of the circumstances.'" Wilson, 11 F.3d at 351 (quoting Schneckloth, 412 U.S. at 227) (emphasis added) .
To prevail on a claim seeking money damages for a violation of the Fourth Amendment, see Bivens, 403 U.S. 388, a plaintiff must establish a defendant's personal involvement in the alleged constitutional violation. Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) ("[I]n Bivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation."); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.") . "Personal involvement" stems from either an officer's "direct participation" or from an officer's failure "to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). The requirement to "intercede" arises where an officer knows, inter alia, that any constitutional violation is being committed by another law
15 


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enforcement official. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). However, "[i]n order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring." Id. Determining " [w]hether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possible conclude otherwise." Id. Further, if an officer is determined to be part of a show of force, that is sufficient for Bivens liability to attach under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 n.l0 (1989).
As discussed in Parts III and IV infra, in laying the factual record before the Court against the legal framework set forth above, it is clear that there are significant areas of factual dispute--~, whether valid consent was obtained at the Jefferson Street and west 18th Street locations, whether certain ICE agents were in what could be understood to be the curtilage of any of the three residences at issue, whether certain ICE agents could reasonably have interceded to protect plaintiffs-­ precluding summary judgment for either the moving plaintiffs or the moving defendants.
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III. MOVING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs' version of the facts regarding the entry and
search issues relating to 710 Jefferson Street and 15 West 18th Street {and the similarities of the operations as between the two locations)--although highly disputed by defendants--are troubling. However, there are sufficient factual disputes regarding the nature and manner of consent and entry that preclude summary judgment. Since this Court determines that fact issues regarding consent and entry to preclude summary judgment, it need not reach the additional issues regarding conduct that occurred within the home. Those issues will be tried together.
A. 710 Jefferson Street It is undisputed that twelve-year old Beatriz Valasquez (plaintiff Bonilla's daughter) responded to the officers' knocks at 710 Jefferson Street. That alone, however, does not mean that consent was not obtained for entry into the premises. See Abdella v. O'Toole, 343 F. Supp. 2d 129, 135 (D. Conn. 2004) (finding that the totality of the circumstances need to be analyzed to determine whether a minor's consent is valid). There are disputes regarding what words were spoken, and whether anyone actually mentioned that someone "was dying upstairs" in order to obtain entry. It is not the case, as plaintiffs state, that there is a clear concession by defendants that Beatriz
17 


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never gave consent. Although some agents apparently stated their view that a minor could not give consent (see PIs. 56.1 ~ 55), that is contested by other agents--and in any event, consent is a matter of law to be evaluated in light of the circumstances. See Abdella, 343 F. Supp. 2d at 135. In fact, ICE 18 testified that they would not have entered the premises if consent had not been given.
There are plainly a number of factual disputes as to whether Beatriz did give consent, if so, whether such consent was voluntary or coerced, and then a legal question as to the validity of any consent given based upon the totality of the circumstances. Those factual disputes cannot be determined on this motion and preclude summary judgment as to plaintiffs' Bivens claim with respect to the operation at 710 Jefferson Street.
B. 15 West 18th Street Similarly, there are issues of fact regarding whether there was consent to enter 15 West 18th Street. Plaintiffs have put forward significant evidence that consent was not given, and defendants have responded to that evidence with evidence of their own suggesting that consent was requested--and provided-­ in an appropriate manner. For instance, various ICE agents testified that no agent or officer pushed through an open door without consent. Several members of the team who participated
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in the 15 West 18th Street operation said that they would remember if they had entered without obtaining consent because that would have been inconsistent with ICE policy.
On a motion for summary judgment, this Court can neither weigh the conflicting testimony on consent nor make credibility determinations. Thus, resolution of what occurred at this location must await trial.
Accordingly, the moving plaintiffs' motion for partial summary judgment as to the operations at 710 Jefferson Street and 15 West 18th Street is denied. IV. MOVING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants' motion for summary judgment is brought only as to ICE Agents 19, 30, 32, 42 and 43. In order for anyone of the moving defendants to prevail on this motion, they must demonstrate that there is no material issue of fact as to whether they were directly involved in--or reasonably had an opportunity to intercede to prevent--the constitutional violations alleged. As to each of those five agents, there are disputed issues of fact regarding each agent's involvement that preclude summary judgment--as well as whether the overall operation at each location constituted an unconstitutional show of force which forced consent.
Further, there are insufficient facts on the record before the Court to determine as a matter of law what part of which of
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the locations at issue is the curtilage. Questions of reasonable expectations of privacy as well as ability to view the residents, etc. raise material issues of fact unable to be resolved on summary judgment.
A. ICE 19 As set forth above, it is undisputed that ICE 19 had a car parked in front of 710 Jefferson Street and that there was a prisoner inside the car at the time. There is testimony in the record that at one point during the 710 Jefferson Street search, ICE 19 exited the vehicle and stood in front of it. Those actions are sufficient in and of themselves to raise a triable issue of fact as to whether ICE 19 was part of a show of authority that assisted directly in an illegal search at 710 Jefferson Street. In addition, however, there is testimony that ICE 19 was able to hear the word "police" uttered while the agents were on the front porch prior to entry; there is a triable issue of fact as to whether ICE 19 heard the comment regarding someone dying upstairs, would have understood this to be an unlawful ruse, and reasonably could have and should have intervened. That is a separate reason to deny summary judgment as to ICE 19. B. ICE 30 There is testimony in the record that ICE 30 entered the fenced area of 22 Dogwood Lane and took a perimeter position.
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There is an issue of fact as to whether the protected curtilage of Dogwood Lane encompasses the fenced yard within which ICE 30 was positioned. It is likely that it does. If that is so, liability might attach. At the very least, therefore, there is a material issue of fact as to whether ICE 30 was in fact part of an illegal entry into protected premises. In addition, however, there is a question of fact as to whether ICE 30 was reasonably able to intercede to prevent the alleged constitutional search of 22 Dogwood. In addition, what ICE 30 could and could not hear from his position at the perimeter is highly disputed, meaning that there is a dispute of material fact as to whether ICE 30 knew that plaintiffs' constitutional rights were being violated by the other officers at the door of the residence. For that reason, summary judgment is not appropriate as to ICE 30.
C. ICE 32 There is a material issue of fact as to whether ICE 32 entered the premises at 22 Dogwood Lane. ICE 31 has testified that ICE 32 did enter the premises. That disputed fact alone precludes summary judgment as to ICE 31. D. ICE 42 ICE 42 claims to have only been in her police vehicle during the operation at 710 Jefferson Street. However, there is a material issue of fact as to whether at some point ICE 42
21 


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assumed a position in the yard of 710 Jefferson Street, within a protected curtilage. If ICE 42 did, that could lead to her direct participation in an illegal search. There is testimony from one of the residents that a female agent did enter the yard, and there were only two female agents who participated in the 710 Jefferson Street operation. Thus, this question of fact is appropriate for the jury to decide.
E. ICE 43 There is testimony in the record that ICE 43 entered the yard of 22 Dogwood Lane and assumed a position on the perimeter during the operation. As with ICE 3D, this position raises material questions of fact precluding summary judgment regarding whether the yard was protected curtilage to which an expectation of privacy attached (thus making ICE 43 part of the illegal search), and/or whether the presence of ICE 43 added to the show of authority that enable an illegal search without voluntary consent. Further, even if ICE 43 remainder on the perimeter, there are material issues of fact as to whether ICE 43 could reasonably have interceded in the alleged constitutional violations perpetrated by the ICE agents who were at the front door of the residence--or inside the residence--as well as whether ICE 43 understood that plaintiffs' rights were being violated by those other agents.
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As to each of the five moving defendants, there are therefore material questions of fact regarding the circumstances of their participation in alleged illegal searches. Those factual disputes preclude summary judgment.
CONCLUSION For the aforementioned reasons, plaintiffs' motion for partial summary judgment is DENIED and defendants' motion for summary judgment as to the five moving defendant ICE agents is also DENIED. The Clerk of the Court is directed to terminate the motions at Docket Nos. 304 and 305.

SO ORDERED:

Dated:

New York, New York April 30, 2012

KATHERINE B. FORREST United States District Judge

23 


 
 Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 1 of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
- against -
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

ECF Case 07 Civ. 8224 (JGK) (FM)

MEMORANDUM OF LAW IN SUPPORT OF FIVE BIVENS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

SHANE CARGO KRISTIN VASSALLO Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York Attorney for defendants 86 Chambers Street New York, New York 10007 Tel: (212) 637-2800

Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 2 of 16 TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 BACKGROUND .............................................................................................................................1
A. The Complaint’s Allegations Concerning the Moving Defendants.........................1 B. The Moving Defendants’ Participation in the Operations
at 710 Jefferson Street and 22 Dogwood Lane ........................................................3 ARGUMENT
THE COURT SHOULD GRANT THE MOVING DEFENDANTS’ SUMMARY-JUDGMENT MOTION BECAUSE THERE IS NO GENUINE ISSUE WITH RESPECT TO THEIR PARTICIPATON IN ANY ALLEGED CONSTITUTIONAL VIOLATIONS ...............................................7 CONCLUSION ..............................................................................................................................12
i

Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 3 of 16

TABLE OF AUTHORITIES

Cases:

page

Aguilar v. Immigration and Customs Enforcement, No. 07 Civ. 8224 (JGK), _ F. Supp. 2d _, 2011 WL 3273160 (S.D.N.Y. Aug. 1, 2011) .......................................................................8

Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994).............................................................................9

Ashcroft v. Iqbal, 556 U.S. 662, 1947-48 (2009).............................................................................7

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).............................................................................................................7

Bonilla v. United States, 357 Fed. Appx. 334, 335 (2d Cir. 2009) ................................................10

Castellar v. Caporale, No. CV-04-3402 (DGT), 2010 WL 3522814 (E.D.N.Y. Sept. 2, 2010) ............................................................8, 9, 11

Collier v. Locicero, 820 F. Supp. 673 (D. Conn. 1993)...................................................................9

Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000).............................................................................7

Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003) ................................................................11

Davis v. New York, 316 F.3d 93 (2d Cir. 2002)...............................................................................7

Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006).................................................................................8

Graham v. City of New York, No. 08-CV-3518 (KAM)(RML), 2011 WL 3625074 (E.D.N.Y. Aug. 17, 2011)...................................................................12

Harvey v. New York City Police Department, No. 93 Civ.7563 (JSR), 1997 WL 292112 (S.D.N.Y. June 3, 1997) .......................................................................11

Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501 (S.D.N.Y. 2008) .................................................9

Loria v. Gorman, 306 F.3d 1271 (2d Cir. 2002) ...........................................................................11

Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985) ..................................................................................7

O’Neill v. Krzeminski, 839 F.2d 9 (2d Cir. 1988)............................................................................9

Rasanen v. Brown, 603 F. Supp. 2d 550 (E.D.N.Y. 2009) ......................................................10, 11

Scott v. Harris, 550 U.S. 372 (2007) ...............................................................................................7

ii

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Sease v. Doe, No. 04 Civ. 5569 (LTS) (MH), 2006 WL 3210032 (S.D.N.Y. Nov. 6, 2006) .................................................................2
Serby v. Town of Hempstead, No. 04 Civ. 901 (DRH)(MLO), 2006 WL 2853869 (E.D.N.Y. 2006)..................................................................................12
Tavarez v. Reno, 54 F.3d 109 (2d Cir. 1995)...................................................................................8 Waananen v. Barry, 343 F. Supp. 2d 161 (D. Conn. 2004)
aff'd, 160 Fed. Appx. 102 (2d Cir. 2005)...........................................................................11 Wallace v. Conroy, 945 F. Supp. 628 (S.D.N.Y. 1996)...................................................................8 Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996) ................................................................................11 Federal Statutes: 42 U.S.C. § 1983..............................................................................................................................8 Federal Rules of Civil Procedure: Fed. R. Civ. P. 41(b) ........................................................................................................................2 Fed. R. Civ. P. 56 .............................................................................................................................7 Fed. R. Civ. P. 56(a) ........................................................................................................................7
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Preliminary Statement Defendants ICE 19, ICE 30, ICE 32, ICE 42, and ICE 43 (the “Moving Defendants,” law enforcement officers who are pseudonymously referred to in this litigation to avoid compromising their safety), through their attorney, Preet Bharara, United States Attorney for the Southern District of New York, move for summary judgment dismissing the Bivens claims asserted against them in plaintiffs’ fourth amended complaint, dated December 21, 2009 (the “complaint”). The Moving Defendants should be dismissed from this case because, despite voluminous discovery, there is no evidence that any of them ever approached or entered plaintiffs’ homes, much less took part in the searches, arrests, or purportedly discriminatory conduct that allegedly occurred. Nor is there any evidence that the Moving Defendants participated in planning Operation Community Shield or selecting the targets. Because there is no genuine issue of material fact with respect to the Moving Defendants’ personal participation in any of the alleged constitutional violations, summary judgment should be granted, and all claims against the Moving Defendants should be dismissed.
BACKGROUND A. The Complaint’s Allegations Concerning the Moving Defendants
The Complaint alleges that ICE 19 and ICE 42 “unlawfully entered, searched, and seized [710 Jefferson Street] and unlawfully seized and detained [the residents of 710 Jefferson Street] within their home[] based upon nothing more than their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations.” Compl.

Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 6 of 16
¶¶ 122, 147; see also id. ¶¶ 31, 342.1 The complaint further alleges that ICE 19 and ICE 42
“selected the residences and individuals targeted in these home raids for immigration
enforcement actions because Latinos were believed to reside at the homes.” Id. ¶¶ 122, 147.
The complaint contains no allegations tying ICE 19 or ICE 42 to any other site or event at issue
in this action.
With respect to ICE 30, ICE 32, and ICE 43, the complaint alleges that these agents
“unlawfully entered, searched, and seized [22 Dogwood Lane] and unlawfully seized and
detained [the residents of 22 Dogwood Lane] within their home[] based upon nothing more than
their Latino appearance, inability to speak, or limited proficiency in, English, accent, and/or other impermissible considerations.”2 Id. ¶¶ 135, 137, 148; see also id. ¶¶ 33, 353. The
complaint further alleges that ICE 30, ICE 32, and ICE 43 “selected the residences and
individuals targeted in these home raids for immigration enforcement actions because Latinos
1 Although the complaint states that ICE 19 was also involved in an operation at the home of Yanet Martinez, Ms. Martinez was omitted from the fourth amended complaint and is no longer a plaintiff in this case.
2 Although the complaint also alleges that ICE 32 took part in the operation that occurred at the home of Raul and Gloria Amaya, 58 East 6th Street, Huntington Station, New York, see Compl. ¶ 137, these allegations are not properly a part of this case. Plaintiffs’ counsel has informed the Court that the Amayas are no longer interested in proceeding as plaintiffs, which is confirmed by the fact that they are not listed as proposed class representatives in plaintiffs’ motion for class certification. See Plaintiffs’ Memorandum of Law in Support of Their Motion for Class Certification, dated September 22, 2011, at 3 n.5 (citing Appendix A to the supporting declaration of Aldo A. Badini). In addition, although the government noticed the Amayas’ depositions, they did not appear or make any alternative arrangements. Accordingly, as this Court has already stated, the Amayas’ claims, including those against ICE 32, are subject to dismissal for failure to prosecute. See Transcript of June 11, 2010, Hearing, at 46-47; see also Sease v. Doe, No. 04 Civ. 5569 (LTS) (MH), 2006 WL 3210032, at *4-5 (S.D.N.Y. Nov. 6, 2006). To avoid burdening the Court with further motion practice, the government hopes to reach an agreement concerning voluntary dismissal. Failing that, the government reserves its right to move to dismiss the their claims under Fed. R. Civ. P. 41(b).
2

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were believed to reside at the homes. Id. ¶¶ 135, 137, 148. The complaint contains no
allegations tying ICE 30, ICE 32, or ICE 43 to any other site or event at issue in this action.
Based on these allegations, plaintiffs assert a single Bivens claim against each of the
defendants, including the Moving Defendants. See id. ¶¶ 484-89. Set forth in count three of the
complaint, this cause of action alleges that the Moving Defendants:
failed to intervene to protect Plaintiffs' constitutional rights from infringement, were grossly negligent in supervising subordinates who committed the wrongful acts, and/or aided and abetted and/or conspired to deprive, participated in depriving, and/or did deprive Plaintiffs of certain constitutionally protected rights, including . . . a. the right not to be subject to unlawful home raids; b. the right to be free from unlawful entries into and searches and
seizures of Plaintiffs' homes without a judicial warrant or voluntary consent and in the absence of probable cause and exigent circumstances; c. the right to be free from detentions without a lawful, reasonable and articulable suspicion of unlawful activity or probable cause, including, but not limited to, the right not to have defendants surround their homes or detain their persons in connection with an otherwise unlawful home raid; and d. the right to be free from discriminatory application of the law and the right to equal protection under the law. Id. ¶ 485.
B. The Moving Defendants’ Participation in the Operations at 710 Jefferson Street and 22 Dogwood Lane ICE 19, an ICE agent assigned to the Joint Terrorism Task Force, was asked to join the
Resident Agent-in-Charge (“RAC”) Long Island’s September 2007 operation. See Ex. A to the Declaration of Shane Cargo, dated October 27, 2011 (ICE 19 Dep. Tr.), at 37, 63-64, 69-70.3 He
3 Hereinafter, all exhibit cites refer to exhibits to the Cargo declaration.
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first learned of the operation about a week before it took place, and he played no role in selecting the targets or planning the operation. Id. at 63, 75-76.
On September 24, 2007, ICE 19 went to 710 Jefferson Street with several other officers. Id. at 117, 134. He remained in the street next to one of the vehicles, monitoring someone who had been arrested at an earlier location. Id. at 119-20, 136-38. From his position 20-25 yards from the front door, ICE 19 could see officers approach the location but not who opened the door. Id. at 121-23. Other than the word “police,” he did not hear any conversation that took place at the front door. Id. at 147. He did not see any officers draw their weapons at the location. Id. at 131. Although he saw a van pull into the driveway and a woman get out of the van, ICE 19 did not speak with her or hear her conversation with other officers. Id. at 148-51. ICE 19 did not enter 710 Jefferson Street and did not participate in any conversation at the front door of that location. Id. at 121-23, 142-47, 161.
ICE 42, an ICE agent assigned to the Asset Identification Recovery Group, was also asked to support the September 2007 operation. See ICE 42 Dep. Tr. (Ex. B), at 43-47. She played no role in selecting or evaluating the targets of the operation. Id. at 147, 203.
On September 24, 2007, ICE 42 went to 710 Jefferson Street with several other officers. Id. at 75, 119-20. She remained near one of the vehicles, monitoring one or two people who had been arrested at an earlier location. Id. at 75, 93, 124, 126-27, 130; ICE 19 Dep. Tr. (Ex. A), at 139. Because she was occupied watching the arrestee, ICE 42 did not see anything that took place at 710 Jefferson, including what occurred at the front door. See ICE 42 Dep. Tr. (Ex. B), at 124, 127, 134-35. She did not approach the front door of any home she visited on September 24, 2007, including 710 Jefferson. Id. at 102. She did not see any officers draw their
4

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weapons at the location. Id. at 240. ICE 42 did not enter 710 Jefferson Street and did not participate in any conversation at the front door of that location. Id. at 75-76, 121, 127.
ICE 30, an ICE agent assigned to the New York City field office, was also asked to join the September 2007 operation. See ICE 30 Dep. Tr. (Ex. C), at 156. He first learned of the operation about a week before it took place, and he played no role in selecting targets or planning the operation. Id. at 153-54, 165, 167-68, 334-36.
On September 24, 2007, ICE 30 went to 22 Dogwood Lane with several other officers. Id. at 231. Once there, he took a perimeter position on the side of the house. Id. at 241-44, 254, 261-63; ICE 43 Dep. Tr. (Ex. D), at 127-28. While he was standing there, ICE 30 never unholstered or placed his hands on his weapon. See ICE 30 Dep. Tr. (Ex. C), at 260. Although he saw officers approach the front door, he did not observe what happened there or who, if anyone, entered the house. Id. at 245-46, 255-56, 260-61. Other than hearing a knock and the word “Police,” he did not hear what took place. Id. at 255-59. ICE 30 did not enter 22 Dogwood Lane or participate in any conversation at the front door of that location. Id. at 255-63, 273-74, 280.
ICE 32, an ICE agent assigned to the New York City field office, was also asked to support the September 2007 operation. See ICE 32 Dep. Tr. (Ex. E), at 12, 55-56, 108-09. He played no role in planning the operation or selecting targets. Id. at 109.
On September 24, 2007, ICE 32 went to 22 Dogwood Lane with several other law enforcement officers. Id. at 135. Upon arrival, ICE 32 remained on the street next to one of the cars, never venturing more than ten feet away from the vehicle. Id. at 136-38, 150-51. He did not see any officer unholster a weapon at 22 Dogwood Lane, and did not see or hear anything that happened at the front door. Id. at 160-65, 182. ICE 32 did not enter or approach
5

Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 10 of 16
22 Dogwood Lane and did not participate in any conversation at the front door. Id. at 138, 150, 162-65.
ICE 43, an ICE agent assigned to the New York City field office, was also asked to join the September 2007 operation. See ICE 30 Dep. Tr. (Ex. C), at 160, 175-76; ICE 43 Dep. Tr. (Ex. D), at 41-42, 64-65. She first learned of the operation a few days before it took place, and she played no role in planning it or selecting the targets. See ICE 43 Dep. Tr. (Ex. D), at 60-66.
On September 24, 2007, ICE 43 went to 22 Dogwood Lane with several other officers. See ICE 30 Dep. Tr. (Ex. C), at 235; ICE 43 Dep. Tr. (Ex. D), at 84-85, 113-14. Once there, she took a perimeter position in the right corner of the front yard, about 30 feet from the front door. See ICE 43 Dep. Tr. (Ex. D), at 127. ICE 43 remained in that spot for the duration of the operation, only pacing back and forth in the front yard and never venturing into the backyard. Id. at 128, 142, 150-55, 165. She never took her weapon out of her holster. Id. at 121. She did not see who answered the front door or hear any conversations that took place, and she never entered the house. Id. at 137-41, 145-49, 152, 159-60.
Despite extraordinary amounts of discovery, including 141 depositions, the government knows of no evidence showing that any of the Moving Defendants had any more active role as to any site or event at issue in this action.
6

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ARGUMENT THE COURT SHOULD GRANT THE MOVING DEFENDANTS’ SUMMARYJUDGMENT MOTION BECAUSE THERE IS NO GENUINE ISSUE WITH RESPECT TO THEIR PARTICIPATON IN ANY ALLEGED CONSTITUTIONAL VIOLATIONS
The Moving Defendants are entitled to summary judgment dismissing plaintiffs’ claims against them because no evidence even suggests that they were personally involved in any alleged constitutional violations.
Summary judgment should be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).4 To defeat a motion for summary judgment, it is not enough that the non-moving party show the existence of any factual dispute; the non-moving party must show the existence of a genuine issue of material fact. See Scott v. Harris, 550 U.S. 372, 380 (2007). Conclusory allegations or denials are insufficient to rebut a properly supported motion for summary judgment. See Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
Plaintiffs’ claims against the Moving Defendants arise under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 1947-48 (2009) (citation omitted). To establish Bivens liability, a plaintiff must show that the defendant was personally involved in the alleged violations. See Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000);
4 Although Rule 56 was extensively rewritten effective December 1, 2010, the advisory committee stated that despite the new language, the “standard for granting summary judgment remains unchanged,” and “[s]ubdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c).” Fed. R. Civ. P. 56 adv. comm. note 2010.
7

Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 12 of 16
Castellar v. Caporale, No. CV-04-3402 (DGT), 2010 WL 3522814, at *4 (E.D.N.Y. Sept. 2, 2010); see also Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006).5 Thus, a plaintiff must satisfy this requirement by proving that the defendants directly participated in the alleged violations. See, e.g., Wallace v. Conroy, 945 F. Supp. 628, 637 (S.D.N.Y. 1996).6
In this case, there is no genuine issue as to whether the Moving Defendants directly participated in any alleged constitutional violations. As their deposition testimony makes clear, none of the Moving Defendants took part in the conduct at the heart of this case: the encounters with plaintiffs at the front doors of 710 Jefferson Street and 22 Dogwood Lane during which, plaintiffs allege, their consent to search was not properly obtained. To the contrary, the Moving Defendants each remained outside the houses, either watching arrestees in parked vehicles (ICE 19 and ICE 42) or guarding the perimeter (ICE 30, ICE 32, and ICE 43). The Moving Defendants never approached, entered, searched, or arrested anyone at plaintiffs’ homes.7 Furthermore, there is no evidence that any of the Moving Defendants, who all worked outside the RAC Long Island and learned of the operation shortly before it took place, played any role in the planning of the operation or the selection of its targets, and the Moving Defendants’
5 Although the constitutional claims asserted in Farrell and other cases cited in this brief were brought under 42 U.S.C. § 1983, “federal courts have typically incorporated § 1983 law into Bivens actions.” Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
6 As this Court has noted, see Aguilar v. Immigration and Customs Enforcement, No. 07 Civ. 8224 (JGK), _ F. Supp. 2d _, 2011 WL 3273160, at *10 (S.D.N.Y. Aug. 1, 2011), courts in this Circuit have reached differing conclusions as to the type of conduct required, post-Iqbal, to assert Bivens claims against supervisory officials. It is unnecessary, however, to resolve the issue here because there is no allegation that the Moving Defendants were acting as supervisors in connection with Operation Community Shield.
7 See ICE 19 Dep. Tr. (Ex. A), at 119-23, 136-39, 142-47, 161; ICE 42 Dep. Tr. (Ex. B), at 75-76, 93, 102, 121, 124, 126-27, 130, 134-35; ICE 30 Dep. Tr. (Ex. C), at 241-44, 254-63, 273, 280; ICE 43 Dep. Tr. (Ex. D), at 127-28, 137-40, 142, 145-55, 159-60, 165; ICE 32 Dep. Tr. (Ex. E), at 136-38, 150-51, 162-65.
8

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unrebutted testimony establishes that they had no such role.8 Because plaintiffs have adduced no evidence creating a genuine factual dispute with respect to the Moving Defendants’ direct participation in any constitutional violations, the Moving Defendants should be dismissed from the case.
Nor can plaintiffs succeed on a theory of bystander liability. Although courts have allowed plaintiffs in § 1983 and Bivens actions to sue law enforcement officers for failing to intervene in violations committed by other officers, they have done so only in narrowly limited circumstances, where there is sufficient evidence “to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator.” See O’Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988); Castellar, 2010 WL 3522814, at *4; Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008); Collier v. Locicero, 820 F. Supp. 673, 682 (D. Conn. 1993). Accordingly, a plaintiff seeking to establish Bivens liability based on failure to intervene must show that (i) the alleged violation took place in the officer’s presence; (ii) the officer had a realistic opportunity to intercede and prevent the harm; (iii) a reasonable person in the officer’s position would know that the plaintiff’s rights were being violated; and (iv) the officer did not take reasonable steps to intervene. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994); O’Neill, 839 F.2d at 11-12; Jean-Laurent, 438 F. Supp. 2d at 327. When an officer is standing at a distance from an alleged violation, or the violation occurs quickly, the officer does not have a realistic opportunity to intervene and is therefore insulated from liability.
8 See ICE 19 Dep. Tr. (Ex. A), at 63, 75-76; ICE 42 Dep. Tr. (Ex. B), at 147, 203; ICE 30 Dep. Tr. (Ex. C), at 153-54, 165, 167-68, 334-36; ICE 43 Dep. Tr. (Ex. D), at 60-66; ICE 32 Dep. Tr. (Ex. E), at 109.
9

Case 1:07-cv-08224-KBF Document 345 Filed 03/20/12 Page 14 of 16
See O’Neill, 839 F.2d at 11-12; Castellar, 2010 WL 3522814, at *4-5; Rasanen v. Brown, 603 F. Supp. 2d 550, 553-554 (E.D.N.Y. 2009); Jean-Laurent, 540 F. Supp. 2d at 327.
Applying these principles here, summary judgment should be granted to the Moving Defendants because there is no genuine issue of fact with respect to any alleged failure to intervene. First, plaintiffs cannot establish that a reasonable person in the Moving Defendants’ position would have known that plaintiffs’ rights were being violated. Because these defendants never set foot in 710 Jefferson Street or 22 Dogwood Lane, they were in no position to observe any searches or detentions occurring inside. In fact, the Moving Defendants were not even able to observe what happened at the front door, before other officers entered the houses. Stationed near the street or on the side of the houses up to 20-25 yards from the entrances, the Moving Defendants were not in a position to witness the interactions with the residents. ICE 19 and ICE 30 heard only the word “Police,” and ICE 32, ICE 42, and ICE 43 heard no part of the conversations.9 Despite pursuing extraordinarily thorough evidence, including by taking 94 depositions, plaintiffs have uncovered no evidence to the contrary.
Given this unrebutted testimony, no reasonable person in the Moving Defendants’ position would have had reason to believe that plaintiffs’ rights were allegedly being violated. And there is no evidence from which a reasonable fact-finder could infer that the Moving Defendants had a realistic opportunity to intercede and prevent such alleged violations. Therefore, summary judgment should be entered dismissing any failure-to-intervene claims. See Bonilla v. United States, 357 Fed. Appx. 334, 335 (2d Cir. 2009) (affirming summary-judgment
9 See ICE 19 Dep. Tr. (Ex. A), at 121-23, 142-51; ICE 42 Dep. Tr. (Ex. B), at 127; ICE 30 Dep. Tr. (Ex. C), at 255-63; ICE 43 Dep. Tr. (Ex. D), at 137-41, 145-49, 152, 159-60; ICE 32 Dep. Tr. (Ex. E), at 160-65.
10

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dismissal where officer undisputedly did not enter or search plaintiff’s apartment); Loria v. Gorman, 306 F.3d 1271, 1288 (2d Cir. 2002) (no claim for unlawful entry where officer did not enter the house but instead witnessed plaintiff attempting to close door on fellow officer); Castellar, 2010 WL 3522814 at *5 (where alleged violation took place in bedroom, no personal involvement as to officers on ground floor and outside); Rasanen, 603 F. Supp. 2d at 554 (dismissing claims against defendants who were not in bedroom where another officer shot plaintiff because they “could not possibly have had a reasonable opportunity to intervene”); Waananen v. Barry, 343 F. Supp. 2d 161, 169 (D. Conn. 2004), aff’d, 160 Fed. Appx. 102 (2d Cir. 2005) (no personal involvement because lack of evidence that officers ever searched or entered plaintiff’s home); Harvey v. New York City Police Dep’t, No. 93 Civ.7563 (JSR), 1997 WL 292112, at *1 (S.D.N.Y. June 3, 1997) (where arrest and excessive force took place in bedroom, no personal involvement by officer standing in entryway).
Finally, to the extent plaintiffs seek to premise liability on the theory that the Moving Defendants helped to “surround[]” their homes, see Compl. ¶ 492, the Moving Defendants are entitled to summary judgment on these claims as well. Plaintiffs’ theory that the defendants unlawfully seized their homes is essentially a claim for false imprisonment or arrest. To succeed on such a claim, a plaintiff must show that “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003) (quoting Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996)). In this case, plaintiffs have adduced no evidence that the Moving Defendants confined plaintiffs, or intended to confine plaintiffs, when they stood by their cars monitoring previous arrestees or watched the corner of the yard while other officers approached the front door. Likewise, even if
11

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some of the plaintiffs observed law enforcement officers outside their homes, they have

presented no testimony they were aware these specific agents were “confining” them. In light of

these circumstances, there is no genuine issue with respect to any claim of false imprisonment or

arrest by the Moving Defendants. See Graham v. City of New York, No. 08-CV-3518

(KAM)(RML), 2011 WL 3625074, at *9-11 (E.D.N.Y. Aug. 17, 2011) (no evidence that

defendant intended to confine child plaintiff or that child plaintiff was aware of confinement);

Serby v. Town of Hempstead, No. 04 Civ. 901 (DRH)(MLO), 2006 WL 2853869 (E.D.N.Y.

2006) (dismissing § 1983 false-imprisonment claim because plaintiff’s mere suspicion that

police officers might be waiting for him did not establish consciousness of confinement, and no

evidence that defendants intended to confine plaintiff).

CONCLUSION

For the foregoing reasons, the Court should grant the Moving Defendants’ motion for

summary judgment.

Dated: New York, New York October 28, 2011

PREET BHARARA United States Attorney for the Southern District of New York, Attorney for Defendants

By:

/s/

DAVID BOBER

SHANE CARGO

BRANDON COWART

LOUIS A. PELLEGRINO

Assistant United States Attorneys

86 Chambers Street

New York, New York 10007

Tel. (212) 637-2711

Fax (212) 637-2786

12

 
 Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 1 of 31

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
ADRIANA AGUILAR, et al.,
Plaintiffs,
- against -
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

ECF Case 07 Civ. 8224 (JGK) (FM)

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

DAVID BOBER SHANE CARGO BRANDON COWART LOUIS A. PELLEGRINO Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Defendants 86 Chambers Street New York, New York 10007 Tel: (212) 637-2800

Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 2 of 31
TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND AND RELIEF SOUGHT IN THE COMPLAINT ..........................3
A. Background Concerning the Enforcement Operations at Issue ...............................3 B. Relief Sought in the Complaint................................................................................4 ARGUMENT ...................................................................................................................................5 A. Plaintiffs Cannot Establish Commonality Under Rule 23(a)(2) ..............................5
1. Plaintiffs Cannot Show That Class-Wide Litigation Would Generate Answers Common to the Named Plaintiffs and the Proposed Class ....................................................7
2. Plaintiffs’ Anecdotal and Statistical Evidence Cannot Establish Commonality ...................................................................9 (a) Anecdotal Evidence .......................................................................10 (b) Statistical Evidence ........................................................................15
B. The Proposed Class Is Neither Typical Nor Ascertainable, and It Is Defined to Include Persons With No Claims Against ICE.............................17 1. Putative Class Members Who Have Never Encountered ICE Lack Standing to Seek Injunctive Relief ............................................17 2. Class Membership Is Neither Typical Nor Ascertainable .........................19
C. Plaintiffs Have Not Shown That the Named Plaintiffs Will Adequately Protect the Interests of the Class ................................................21
D. Plaintiffs’ Proposed Class Should Not be Certified Under Rule 23(b)(2).............23 CONCLUSION ..............................................................................................................................25
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TABLE OF CASES Aguilar v. Immigration & Customs Enforcement,
255 F.R.D. 350 (S.D.N.Y. 2008) .........................................................................................7
Am. Pipe & Const. Co. v. Utah, 414 U.S. 538 (1974)...........................................................................................................24
Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994) ............................................................................................16, 22
Bakalar v. Vavra, 237 F.R.D. 59 (S.D.N.Y. 2006) .........................................................................................19
Biediger v. Quinnipiac Univ., No. 3:09cv621 (SRU), 2010 WL 2017773 (D. Conn. May 20, 2010)....................................................................25
Burdick v. Union Sec. Ins. Co., No. CV 07-4028 ABC (JCx), 2009 WL 4798873 (C.D. Cal. Dec. 9, 2009) .....................................................................18
Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229 (2d Cir. 2007).............................20
Dajour B. ex rel. L.S. v. City of New York, No. 00 Civ. 2044 (JGK), 2001 WL 1173504 (S.D.N.Y. Oct. 3, 2001) ......................................................................22
Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001) .......................................................................................16
Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006)...............................................................................................18
Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006) .............................................................................................20
Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595 (S.D.N.Y. 1982).....................................................................................22
In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389 (S.D.N.Y. 2008) .......................................................................................19
Ingles v. City of New York, No. 01 Civ. 8279 (DC), 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003)......................................................................25
Friedman-Katz v. Lindt & Sprungli (USA), Inc., 270 F.R.D. 150 (S.D.N.Y. 2010) .......................................................................................19
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Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 4 of 31
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)................................................................................................... passim
In re Initial Public Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006).................................................................................................14
Jermyn v. Best Buy Stores, 256 F.R.D. 418 (S.D.N.Y. 2009) .......................................................................................16
Lewis Tree Serv., Inc. v. Lucent Tech. Inc., 211 F.R.D. 228 (S.D.N.Y. 2002) .......................................................................................19
Lightfoot v. District of Columbia, 273 F.R.D. 314 (D.D.C. 2011)...........................................................................................24
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...........................................................................................................17
In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y. 2002) .......................................................................................19
Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001) .........................................................................................16
In re NYSE Specialists Secs. Litig., 260 F.R.D. 55 (S.D.N.Y. 2009) .........................................................................................16
Rappaport v. Katz, 62 F.R.D. 512 (S.D.N.Y. 1974) .........................................................................................20
Reno v. Catholic Servs., Inc., 509 U.S. 43 (1993).............................................................................................................18
In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61 (S.D.N.Y. 2002) .........................................................................................25
Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir.2004), cert. denied, 544 U.S. 978 (2005) .....................................24
Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) .............................................................................................20
Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196 (2d Cir. 2008)...............................................................................................14
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Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 5 of 31 Texas v. United States,
523 U.S. 296 (1998)...........................................................................................................18 Ventura v. New York City Health & Hospital Corp.,
125 F.R.D. 595 (S.D.N.Y. 1989) .......................................................................................16 Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011) ............................................................................................... passim Walsh v. Ford Motor Co.,
807 F.2d 1000 (D.C.Cir.1986) ...........................................................................................24 Weiner v. Snapple Bev. Corp., No. 07 Civ. 8742 (DLC),
2010 WL 3119452 (S.D.N.Y. Aug. 5, 2010) .....................................................................20 Zapka v. Coca-Cola Co., No. 99-cv-8238 (JWD),
2000 WL 1644539 (N.D. Ill. Oct. 27, 2000)......................................................................20
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Preliminary Statement In a litigation that already involves 21 plaintiffs, 64 defendants, and seven distinct residential locations, plaintiffs now seek certification of a class containing persons “who, because they (1) are Latino; and (2) reside within the jurisdiction of ICE New York, have been subjected to and/or are at imminent risk of home raids by ICE New York.” See Plaintiffs’ Memorandum of Law in Support of Their Motion for Class Certification, dated September 22, 2011 (“Mov. Mem.”), at 2. According to plaintiffs, the proposed class “consists of approximately two million Latinos.” Id. at 8. Such a diffuse, varied, and indefinite class would be impossible to administer, and plaintiffs have utterly failed to meet their burden of demonstrating, by a preponderance of the evidence, that their proposed class should be certified. First, plaintiffs cannot establish commonality under Rule 23(a)(2) because they cannot show that all class members—Latinos in the New York area—have suffered the same injury, or even that all New York Latinos have been (or will be) subjected to a common discriminatory practice. In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court recently emphasized that class certification depends not on the raising of common questions, but rather on whether conducting class-wide litigation will provide common answers. Although plaintiffs raise several allegedly common questions, see Mov. Mem. at 13, reciting such questions “is not sufficient to obtain class certification.” Wal-Mart, 131 S. Ct. at 2551. Instead, plaintiffs must explain how answers to the named plaintiffs’ questions—Did Defendant X enter my home without valid consent? Did Defendant X have a lawful basis to conduct brief, detentive questioning? Did Defendant X have a lawful basis for arresting me? Did Defendant X discriminate against me on account of my ethnicity?— will definitively answer such questions with respect to “millions of Latinos.” Mov. Mem. at 2. Plaintiffs cannot make this showing because, as the Court recognized in Wal-Mart, where

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conduct is inherently fact-specific, such as deciding to enter a residence or look for a person, there is a huge gap between proving (or even alleging) instances of misconduct and proving (or even alleging) that every member of the class has suffered the same injury.
Second, plaintiffs’ statistical and anecdotal evidence does not establish commonality. Under Wal-Mart, even if such evidence is assumed true, it is insufficient to prove unitary, classwide unconstitutional conduct. Moreover, because plaintiffs rely on disputed facts and hearsay, they cannot show, by a preponderance of the evidence, that certification is appropriate.
Third, class membership is neither typical nor ascertainable, and the proposed class is defined to include persons with no claims against ICE. For example, the class includes Latinos who have never even encountered ICE, and so lack standing to seek an injunction. Also, because a person can only be a class member if he was (or will be) subjected to discrimination on account of his ethnicity, membership is impermissibly determined based on whether a given person was pursued for a discriminatory reason. Similarly, membership depends on being “Latino” (a matter of self-identification) and an alleged fear of encountering ICE (a subjective question), both of which prevent defendants and the Court from being able to concretely identify the class.
Fourth, even if plaintiffs could satisfy the Rule 23(a) requirements, they cannot show that they are entitled to certification under Rule 23(b)(2) because any structural-type injunctive relief they receive would presumably apply to all ethnicities, not just Latinos. In fact, most of the injunctive relief plaintiffs seek—improved training, more thorough investigations, and updated databases—have nothing to do with Latinos or with remedying purported discrimination. And of the remaining, Latino-specific forms of relief, it is inconceivable that the Court would enjoin racial profiling and the “manufacturing of consent,” but only with respect to Latinos.
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For these reasons, class certification would not achieve the goals of fairness and efficiency. The Court should instead apply the general rule that any claims that the putative class members have against defendants should be individually litigated.
FACTUAL BACKGROUND AND RELIEF SOUGHT IN THE COMPLAINT A. Background Concerning the Enforcement Operations at Issue
Plaintiffs live or lived in Suffolk, Nassau, and Westchester counties, and include persons of unspecified status, lawful permanent residents, and United States citizens. The complaint alleges that in seven separate incidents—four that were conducted by ICE’s Office of Detention and Removal Operations (“DRO”) in February, March, and April of 2007, and three that were conducted by ICE’s Office of Investigations (“OI”) during the week of September 24, 2007— ICE officers and agents entered plaintiffs’ residences without consent.
The first two DRO encounters—in East Hampton, New York, on February 20, 2007— occurred during a four-week operation targeting 45 persons. See Ex. A.1 The March 19 DRO encounter occurred during a four-week operation targeting 60 persons, see Ex. B, and the April 18 DRO encounter occurred during a two-week operation targeting 30 persons, see Ex. C.
With respect to OI, the three complaint locations were visited as part of a week-long operation targeting 255 persons.2 See Ex. D. Local police departments had provided large lists of known gang members, a substantial majority of whom were associated with Latin American gangs, and ICE primarily focused on those persons who were subject to removal. See id. Approximately 160 ICE agents participated, many of whom were detailed in from ICE offices
1 All exhibits are attached to the accompanying Declaration of Shane Cargo, dated October 28, 2011.
2 The complaint also alleges that ICE agents visited one of the same complaint locations in 2006. See Compl. ¶¶ 380-93.
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countrywide. See id. Detectives and police officers from Nassau and Suffolk counties also participated, and the team members differed at each of the three complaint locations. See id. B. Relief Sought in the Complaint
Plaintiffs filed this action on September 20, 2007, but the operative pleading is now the fourth amended complaint, dated December 21, 2009. The complaint seeks three types of relief from the individual defendants: equitable relief arising from alleged Fourth Amendment violations, Compl. ¶¶ 454-69 (first claim); equitable relief arising from alleged Fifth Amendment violations, id. ¶¶ 470-83 (second claim); and Bivens damages for alleged violations of the Fourth and Fifth Amendments, id. ¶¶ 484-89 (third claim). The complaint also alleges eight causes of action against the United States under the FTCA. Id. ¶¶ 490-543.
In addition to monetary relief and punitive damages, id. at 138 (¶¶ 4-8), the complaint seeks a declaration that the defendants violated the Fourth and Fifth Amendments, id. at 135 (¶ 1). Plaintiffs seek an injunction preventing defendants from “deploying groups of armed agents to descent upon the homes of Latinos in the pre-dawn hours with the intent to enter such homes, without judicial warrants or permission from the residents to do so, through the use of force or by manufacturing ‘consent’ from residents who are unable—under law or due to the oppressive conditions of the raids—to give legitimate consent.” Id. at 135-36 (¶ 2(a)). The same language is used with respect to searching homes of Latinos, seizing Latinos, and searching Latinos. Id. at 136-37 (¶¶ 2(a)-(d)). Plaintiffs also seek an order preventing defendants from “[u]nlawfully identifying and targeting locations based on the belief that Latino individuals are known to live in or frequent such locations,” and “[d]esigning raids with the intent to detain, interrogate and seize Latinos based on their race, national origin or ethnicity.” Id. at 137 (¶¶ 2(e) & (f)).
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Finally, plaintiffs seek several forms of injunctive relief that do not reference Latinos, including requiring defendants to conduct “adequate pre-raid investigation” and to provide “effective and/or adequate training,” id. at 137 (¶¶ 2(g) & (h)); requiring defendants to implement policies ensuring that agents “accurately record” consent and do not “raid locations unnecessarily,” id. at 137-38 (¶¶ 3(a) & (b)); and requiring defendants to implement corrective measures preventing policies that “encourage law enforcement officers to act in [a] constitutionally deficient manner,” id. 138 (¶ 3(d)).
ARGUMENT Under Rule 23, plaintiffs must establish both the prerequisites under Rule 23(a)— numerosity, commonality, typicality, and adequacy of representation—and also that the action falls within a category listed in Rule 23(b). Here, plaintiffs’ motion fails for lack of commonality, inadequacy of representation, inability to ascertain class membership (a courtcreated requirement), typicality, and noncompliance with Rule 23(b)(2). A. Plaintiffs Cannot Establish Commonality Under Rule 23(a)(2) Rule 23(a)(2) requires plaintiffs to show that “there are questions of law or fact common to the class.” In Wal-Mart, the Supreme Court observed that commonality was the “crux of [the] case.” Wal-Mart, 131 S. Ct. at 2550. The three named plaintiffs claimed that Wal-Mart discriminated against them based on their gender. They did not allege that Wal-Mart “has any express corporate policy against the advancement of women,” but instead claimed that the local managers’ broad discretion over employment decisions “is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees.” Id. at 2548. In support of their theory that every woman was “the victim of one common discriminatory practice,” plaintiffs used a statistician, who analyzed Wal-Mart’s promotional decisions and determined that gender disparities could
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only be explained by discrimination, and a labor economist, who concluded that Wal-Mart
promoted fewer women than its competitors. Id. at 2555. Plaintiffs also submitted
120 employee affidavits reporting experiences of discrimination. Id. at 2556.
Interpreting Rule 23(a)(2), the Court stated that its commonality language is “easy to
misread, since ‘[a]ny competently crafted class complaint literally raises common questions.’”
Id. at 2551 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.
Rev. 97, 131-132 (2009)).
For example: Do all of us plaintiffs indeed work for Wal–Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” [Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)]. This does not mean merely that they have all suffered a violation of the same provision of law. . . . Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. at 2551.
According to the Court, what matters to class certification “is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.” Id. (citation omitted). In Falcon,
457 U.S. at 157-58, the Court stated that there is a “wide gap” between an individual’s claim of
discrimination and “the existence of a class of persons who have suffered the same injury as that
individual, such that the individual’s claim and the class claim will share common questions of
law or fact and that the individual’s claim will be typical of the class claim.”
Applying Falcon, the Court held that the plaintiffs’ anecdotal and statistical evidence did
not provide “significant proof” that Wal-Mart “operated under a general policy of
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discrimination.” Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n.15). The Court concluded that statistical gender disparities would not establish discrimination on a classwide basis because the disparities could be explained by regional differences, whereas the plaintiffs would have to show a “uniform, store-by-store disparity upon which [their] theory of commonality depends.” Id. at 2555. In addition, where instances of discrimination depended on managerial decisions in 3,400 different stores, plaintiffs could not identify a specific employment practice uniting the claims of all 1.5 million class members. Id. at 2555-56.
As to the plaintiffs’ anecdotal evidence, the Court observed that plaintiffs’ 120 affidavits amounted to only one affidavit for every 12,500 class members. Id. at 2556. “Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ which is what [plaintiffs] must show to certify a companywide class.” Id. (quoting Falcon, 457 U.S. at 159 n.15).
1. Plaintiffs Cannot Show That Class-Wide Litigation Would Generate Answers Common to the Named Plaintiffs and the Proposed Class
Under Wal-Mart, commonality can be established only if a trial with respect to plaintiffs’ homes would generate common answers with respect to the class members’ alleged Fourth and Fifth Amendment claims. See Wal-Mart, 131 S. Ct. at 2551. That cannot be the case here because, as this Court has recognized, the “fundamental question” posed in this case is “whether [plaintiffs’] constitutional rights were violated because the ICE agents did not seek their consent before entering their homes.” Aguilar v. Immigration & Customs Enforcement, 255 F.R.D. 350, 361 (S.D.N.Y. 2008). To decide the issue, the fact-finder will have to make house-by-house findings, based on the testimony of those present at each location, as to whether the entries were consensual. Just as a finding of liability at one location will not preordain liability for the rest, such findings, whatever they may be, will not establish that ICE entered (or will enter) the homes
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of “millions of Latinos,” Mov. Mem. at 2, without consent, or that these millions have been (or will be) unconstitutionally targeted.
Plaintiffs raise allegedly common questions, Mov. Mem. at 13, but “[r]eciting these questions is not sufficient to obtain class certification.” Wal-Mart, 131 S. Ct. at 2551. Instead, plaintiffs must demonstrate that a “determination of [the] truth or falsity [of the named plaintiffs’ claims] will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. (citation omitted). And the fate of the named plaintiffs’ claims will be determined by answers to questions far more specific than the three general questions raised in plaintiffs’ brief. See Mov. Mem. at 13.
Using plaintiff Nelly Amaya as an example, the jury will have to decide, by officer, whether ICE 1, ICE 2, ICE 3, ICE 4, ICE 5, ICE 6, or ICE 7 entered her home without consent; which of the officers questioned her, see Compl. ¶ 254; whether they had a valid basis for doing so; which officers “searched the Amaya family home without permission or consent from the Amaya family,” id. ¶ 264; whether the officers were entitled to conduct a protective sweep; if so, whether they exceed the legal scope; whether any officer actually injured Amaya’s wrist, id. ¶¶ 267-69; if so, whether any use of force was justified under the circumstances; whether any one of the seven defendants engaged in “discriminatory application of the law,” id. ¶ 485(d); and a myriad of other questions relating to Amaya’s eight FTCA claims against the United States. Because each complaint location is different—including different plaintiffs and defendants, different targets, and different reasons for going there—the jury will have to answer such questions with respect to the remaining six complaint locations. But the jury’s answers will not establish anything definite with respect to each of the hundreds of other operations defendants have conducted since 2007, much less operations that defendants may conduct in the future.
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Thus, just as the Wal-Mart plaintiffs sought to sue about “millions of employment decisions at once,” Wal-Mart, 131 S. Ct. at 2552, the plaintiffs here wish to sue about millions of purported past or possible future decisions to discriminate against Latinos or enter their homes without consent. But plaintiffs cannot tie all of these decisions together as required under Rule 23(a)(2).
2. Plaintiffs’ Anecdotal and Statistical Evidence Cannot Establish Commonality Plaintiffs try to establish commonality through the use of anecdotal and statistical evidence, but these attempts must fail for many of the same reasons that they did in Wal-Mart. First, even if certain ICE officers and agents entered individual homes without consent, or discriminated against Latinos, it does not establish that all ICE employees will act similarly with respect to millions of Latinos, especially where ICE’s policies specifically address consent-based entries3 and explicitly prohibit discrimination.4 In fact, whereas the Wal-Mart plaintiffs provided 120 affidavits for a class of 1.5 million, plaintiffs here provide less than a dozen anecdotes (including the allegations of the complaint) for a proposed class of “approximately two million Latinos.” Mov. Mem. at 8; see also Wal-Mart, 131 S. Ct. at 2556 (“Even if every single one of these accounts is true, that would not demonstrate that the entire company operates under a general policy of discrimination . . . .”) (citation and alteration omitted). This is especially true
3 ICE’s policies concerning consent are discussed at length in the government’s memorandum of law in support of its motion to dismiss plaintiffs’ claim for injunctive relief, dated May 19, 2010 (docket no. 241), at 8-11.
4 ICE has an explicit, DOJ-endorsed policy prohibiting discrimination. See Ex. E at 563. That policy expressly repudiates the assumption “that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity.” Id. And it “imposes more restrictions on the consideration of race and ethnicity in Federal law enforcement than the Constitution requires.” Id. at 564. DHS requires that all law enforcement activities comply with that DOJ policy. See Ex. F at 1.
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given that the operations at issue in the complaint targeted 380 persons, but plaintiffs’ complaints arise from only seven locations.
(a) Anecdotal Evidence Even if anecdotal evidence could ever establish commonality, much of plaintiffs’ anecdotal evidence is unreliable or has been flatly contradicted during discovery. For example, plaintiffs rely heavily on the statements of Mulvey and Suozzi, but they both admitted in their depositions that they did not participate in the operations, and that their knowledge was based solely on information that had been conveyed to them. Compare Suozzi Tr. (Ex. G), at 21:13-18 (“In all these instances I have no personal knowledge of what was conducted during the particular raids. This has all been relayed to me from my Police Commissioner, who had information relayed to him from police officers who were present for all of these actions.”); 38:21-25 – 39:1-6 (“Q. And if I understand your testimony correctly, in your October 2, 2000 [sic] letter, which is Exhibit 1155, you are passing along complaints and information provided to you by your Commissioner Mulvey. Is that correct? A. That’s correct. Q. And you didn’t do anything to verify whether those allegations were correct other than talking to the Commissioner; is that correct? A. That’s correct.”); and Mulvey Tr. (Ex. H), at 101:20-25 – 102:1-4 (“Q. So just to be clear, other than expressing your displeasure to Palmese you don’t have any first-hand knowledge of what’s in this letter? A. No. Q. You are conveying what was conveyed to you? A. Correct.”), 126:16-18 (“Q. Do you have any first-hand knowledge of agents entering homes without consent? A. No.); with Fed. R. Evid. 602 (“A witness may not testify to a matter unless . . . the witness has personal knowledge of the matter.”). Plaintiffs claim that “ICE agents on numerous occasions used derogatory and racist terms such as ‘wetback’ to refer to the Latinos whose homes were being raided,” Mov. Mem. at 16, but that too is a misleading statement based on unreliable testimony, further undermining plaintiffs’
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assertion of commonality. Lieutenant Mulrain did not participate in any of the operations, and he admitted that his hearsay testimony was based on alleged information he had learned “almost third hand.” Mulrain Tr. (Ex. I), at 96. Commissioner Mulvey testified that he heard the allegation from Mulrain, adding yet another level of hearsay. Mulvey Tr. (Ex. H), at 72:6-12. ICE 4 merely testified that he had heard agents use the word “wetback” in the past, not during these operations. ICE 4 Tr. (Ex. J), at 331:13-18. And Agent Warren Smith, the only other person plaintiffs cite, testified similarly. See W. Smith Tr. (Ex. K), at 355:13-19. Moreover, even if the Court chooses to consider the Mulrain and Mulvey hearsay testimony, it is substantially undermined by the Nassau and Suffolk detectives who actually participated. See, e.g., Ryan Tr. (Ex. L), at 139:21-25 – 140:1-4 (“Q: Did you hear the term ‘wetback’ being used on either September 24, 2007 or September 26, 2007? A. No, absolutely not. Q. Did you hear any derogatory terms towards Latinos being used on September 24, 2007 or September 26, 2007? A. No.”); see also Ierardi Tr. (Ex. M), 261:15-21 – 262:1-4 (“Q. On September 24, 2007, do you remember any of the ICE agents using derogatory language? A. No. Q. Do you remember any ICE agent referring to Latinos as wetbacks? A. No. Q. Is that something you think you’d remember? A. Yes. My partner’s Latino.”).
Similarly, even if plaintiffs otherwise could show commonality by claiming that the operations were “characterized by . . . nonconsensual entries and searches,” Mov. Mem. at 16, such claims are refuted by the Nassau and Suffolk detectives, who consistently testified that they did not witness or hear about any nonconsensual entries. See, e.g., Egan Tr. (Ex. N), at 251:2125 (“A. [A]s a group we obtained permission to come in to a house. Q. So you observed consent being obtained during the course of the operation? A. Yes.”); Hoeler Tr. (Ex. O), at 355:21-23 (“Q. Are you aware of anyone entering a home without consent? A. No.”); Coffman Tr. (Ex. P),
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at 239:1-7 (“Q. Did you see anyone, or did you witness any situations in which ICE agents entered homes without – in which you knew they were doing so without consent? A. I did not.”), 232:5-8 (witnessed no constitutional violations); Ierardi Tr. (Ex. M), at 198:21-25 – 199:1-10 (“Q. Did you encounter any uncomfortable situations during the course of your day? A. Not my team, no. Q. And in every house that you entered, it was a cordial atmosphere? A. Yes . . . . Q. And you didn’t observe any situation where access to enter the house was denied by the individual who opened the door? A. No.”), 262:22-25 – 263:1-4 (“Q. Did you see – on September 24, 2007, did you see anyone force their way into a residence – A. No. Q. – like if a resident opened the door, an ICE agent pushed through the door? A. No.”); accord Mulvey Tr. (Ex. H), at 126:16-18 (“Q. Do you have any first-hand knowledge of agents entering homes without consent? A. No.”).
Plaintiffs’ contentions concerning visits to homes not inhabited by Latinos are similarly deficient, both because even if true they would not show commonality, and because, at any rate, the evidence undermines plaintiffs’ characterization of the incidents. First, while plaintiffs claim that the example of James Berry “graphically illustrate[s]” defendants’ discriminatory conduct because agents departed after Mr. Berry, a white male, opened the door,” Mov. Mem. at 18, in fact participating local police officers accompanied OI to that residence, and Mr. Berry, a veteran EMT and volunteer fire rescue worker, testified that he knew nearly every local officer on the force. See Berry Tr. (Ex. Q), at 11:16-25 – 12:1-8 – 29:24-25 – 30:1-2. The local police officers immediately recognized him as someone other than the target, so there was no reason for the officers not to “walk[] away without entering or making any further inquiries.” Mov. Mem. at 18. Similarly insufficient is plaintiffs’ argument concerning an instance when a team encountered an African-American man at the door and declined to seek entry to his home. Mov.
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Mem. at 18. Wal-Mart instructs that the “plaintiff must begin by identifying the specific . . . practice that is challenged.” 131 S. Ct. at 2555. The implication of this anecdote, if it is to be believed, is that defendants purposefully engage in a practice of targeting Latinos to the exclusion of all other races and ethnicities. Just as in Wal-Mart, however, plaintiffs must not only identify a discriminatory practice but also prove its widespread existence. That defendants allegedly declined to enter a black person’s home or a white person’s home can be explained by scores of more rational (and less sinister) reasons, most obviously that the person who opened the door did not fit the target’s physical description. Establishing agency-wide discriminatory conduct requires far more than identifying ambiguous situations where discrimination is only one possible, but implausible, explanation. See Wal-Mart, 131 S. Ct. at 2553-54.
Moreover, many of plaintiffs’ allegations of unconstitutional conduct have nothing to do with the alleged targeting of Latinos. For example, the fact that agents went to a different address “in the same town, looking for the same target,” Mov. Mem. at 10, or searched for a target who had been deported once before, id. at 11, suggest no constitutional violation at all, let alone targeting on the basis of ethnicity. Obviously, the fact that ICE does not have a policy prohibiting its agents from visiting a location more than once—especially given that targets are often not home, or ICE may later learn that a different target resides at the same location—does nothing to establish that ICE has a practice of discriminating against Latinos. Similarly, the fact that DRO officers looked for a target at his ex-wife’s home does not suggest discriminatory
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conduct, especially considering that he was still receiving his mail there. See A. Aguilar Tr. (Ex. X), at 73:13-25 – 74:1-15.5
Thus, plaintiffs have not met and cannot meet their burden of demonstrating, by a preponderance of the evidence, that their proposed class should be certified. The Supreme Court has said that “Rule 23 does not set forth a mere pleading standard,” and that the “party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart, 131 S. Ct. at 2551. Courts are to undertake a “rigorous analysis,” see id., and may certify a class “only after making determinations that each of the Rule 23 requirements has been met.” In re Initial Public Offering Sec. Litig., 471 F.3d 24, 44 (2d Cir. 2006).6 In performing this analysis, the Court has “an ‘obligation’ to resolve factual disputes relevant to the Rule 23 requirements.” Flag Telecom Holdings, 574 F.3d at 38. And failure to establish any Rule 23 element by a preponderance of the evidence precludes class certification. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008).
5 Similarly, plaintiffs cannot establish commonality by cherry-picking unfavorable immigration judge decisions, see Mov. Mem. at 14 n. 39 & 17, especially where defendants are aware of several IJ decisions rejecting similar claims, which can be provided in redacted form upon request.
6 In the last five years, the Second Circuit has dramatically altered the evidentiary standard for certifying a class. Overruling its prior case law, the Circuit first held that district courts must resolve factual disputes and make actual findings bearing on class-certification motions. In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 40-41 (2d Cir. 2006). It later held that the proponent of class certification bears the burden of proof by a preponderance of the evidence. Teamsters, 546 F.3d at 202. The Circuit also made clear that district courts’ obligation to resolve factual disputes is “not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement.” Flag Telecom, 574 F.3d at 38 (quoting IPO, 471 F.3d at 41).
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(b) Statistical Evidence Plaintiffs’ statistical evidence also fails to establish commonality. Even if taken at face value, and without waiving any evidentiary challenges to plaintiffs’ expert reports,7 the fact that the ethnic composition of ICE’s targets does not mirror the ethnic composition of the non-citizen populations of Nassau and Suffolk counties, see Mov. Mem. at 18-19, does not establish classwide discrimination against Latinos. See Wal-Mart, 131 S. Ct. at 2556 (“Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.”). Plaintiffs do not even try to account for all of the non-discriminatory reasons that a person could become a target of ICE operations, even where only a subset of “non-citizens” (the metric plaintiffs use) are subject to removal from the United States. The Wal-Mart Court highlighted a similarly flawed statistical analysis, faulting plaintiffs’ expert for being unable to calculate with any certainly what percentage of Wal-Mart’s decisions “might be determined by stereotyped thinking.” Wal-Mart, 131 S. Ct. at 2553. As in Wal-Mart, even if plaintiffs’ aggregated analysis is taken as true, they have given the Court no basis to conclude that any one of the 135 DRO or 255 OI targets was selected because of ethnicity, which is especially significant given that defendants have produced more than 15,000 pages of work papers associated with generating the final target lists.
7 The Wal-Mart Court stated that statistical reports must be examined for scientific rigor and strongly suggested that such expert evidence is subject to a Daubert inquiry. See 131 S. Ct. at 2553-54 (“The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so, but even if properly considered, [plaintiffs’ expert] testimony does nothing to advance [their] case.”); see also In re NYSE Specialists Secs. Litig., 260 F.R.D. 55, 65-66 (S.D.N.Y. 2009) (applying Daubert in connection with Rule 23 analysis); Weiner v. Snapple Bev. Corp., No. 07 Civ. 8742 (DLC), 2010 WL 3119452, at *7-8 (Aug. 5, 2010) (expert testimony excluded and class certification denied).
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Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 21 of 31
Moreover, plaintiffs’ “statistical evidence” is unreliable because of numerous analytical errors. For example, using plaintiffs’ own data concerning the targets and arrests of the September 2007 operations, defendants’ statistician found no statistically significant overrepresentation of persons from Spanish-speaking countries. See Ex. R at 3-7. In addition, even though the point of the OI operation was to find undocumented gang members living in Nassau and Suffolk counties, plaintiffs’ analysis is based on the unsupported assumption that people from Spanish-speaking countries are equally likely to be in Nassau and Suffolk gangs as are people from other countries. See id. at 7-9. Plaintiffs also ignore the issue of statistical dependence because their analysis assumes that all arrests occur independently. In plaintiffs’ view, arresting one person from a Spanish-speaking country has no statistical bearing on whether another person arrested in the same home is likely to be from the same country. See id. at 13-16.
Finally, the plaintiffs’ cited cases are not to the contrary. Jermyn v. Best Buy Stores, 256 F.R.D. 418, 429-30 (S.D.N.Y. 2009), for example, itself distinguishes the point plaintiffs wish to make by holding that differences in damages, but not liability, do not defeat commonality. A similar point was made in Ventura v. New York City Health & Hosp. Corp., 125 F.R.D. 595, 600 (S.D.N.Y. 1989), where a drug-testing policy affected all class-member employees, and the court found merely that differences in the degree of harm did not destroy commonality. And although plaintiffs cite Nicholson and Baby Neal for the proposition that “there is an assumption of commonality” in a (b)(2) class, see Mov. Mem. at 9, that presumption has limits. In Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56, 59 (3d Cir. 1994), the Third Circuit noted that for commonality to apply, all class members must be subject to the same harm, and warned that when the interests of (b)(2) class members are not alike, the class runs the risk of binding absentee class members through res judicata. Likewise, in Nicholson v. Williams, 205 F.R.D.
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Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 22 of 31
92, 95-98 (E.D.N.Y. 2001), Judge Weinstein stated that the class should be “as narrow and precise as possible” and carefully crafted it to ensure a nexus between class members’ domesticviolence injuries and the injuries of the named plaintiffs. And in Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001), the court was following the now-rejected proposition that for Rule 23 analysis, a “court assumes that the allegations raised in the plaintiff’s complaint are true,” id. at 413, when it found commonality based on plaintiffs’ “alleg[ations] that defendants engaged in an unconstitutional pattern, practice or policy,” id. at 417. Wal-Mart squarely rejected that notion: “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” 131 S. Ct. at 2551. B. The Proposed Class Is Neither Typical Nor Ascertainable,
and It Is Defined to Include Persons With No Claims Against ICE 1. Putative Class Members Who Have Never Encountered
ICE Lack Standing to Seek Injunctive Relief Because plaintiffs’ proposed class contains persons who “have been subjected to and/or are at imminent risk of home raids by ICE New York,” Mov. Mem. at 2, it includes persons who have never encountered ICE. But class members who share only a generalized fear of encountering ICE lack standing to enjoin ICE’s conduct. Standing is “an essential and unchanging part of the case-or-controversy requirement of Article III,” and plaintiffs must establish, rather than merely plead, its three “irreducible” constitutional elements: injury in fact, traceability, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In this case, the Court has found that the named plaintiffs have standing to pursue injunctive relief because “plaintiffs’ alleged fear that ICE agents will return to their homes and conduct searches and seizures in an unconstitutional manner is not unreasonable or unrealistic.” See Opinion and Order, Aug. 1, 2011 (docket no. 286), at 54.
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Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 23 of 31
By its reasoning, however, the Court’s decision implies (as Lujan requires) that persons who have never encountered ICE do not have standing to seek injunctive relief because they do not have a concrete, non-speculative fear of being harmed, or even visited, by ICE. This reality precludes certifying the proposed class here, because a class must be “defined in such a way that anyone within it would have standing,” and “no class may be certified that contains members lacking standing.” Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (standing based on reliance on negligent or fraudulent tax advice). Relatedly, a claim “is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998).
Thus, in Reno v. Catholic Servs., Inc., 509 U.S. 43, 66 (1993), the Supreme Court stated that “only those class members (if any) who were front-desked [i.e., their applications were summarily rejected] have ripe claims over which the District Courts should exercise jurisdiction.” Similarly, in Burdick v. Union Sec. Ins. Co., No. CV 07-4028 ABC (JCx), 2009 WL 4798873, at *4 (C.D. Cal. Dec. 9, 2009), the district court—relying on Reno and Denney— held that “class members lacking justiciable claims under Article III should be excised from the case.” Under these decisions, putative class members who have never encountered ICE, safely the majority of the two million members, lack standing to enjoin defendants’ conduct. And the point is not merely academic, given that many of the named plaintiffs themselves testified that they did not have a fear of ICE before the encounters detailed in the complaint. See, e.g., Lazaro-Perez Tr. (Ex. S), at 123:15-18 (“Q. Before March 19, 2007, were you afraid of ICE or the police or the government? A. Not at all.”), Revolorio Tr. (Ex. T), at 163:9-13 (“Q. Before April 18, 2007 were you afraid of ICE? A. No. Q. Have you ever been afraid of ICE? A. No.), Lazaro-Melchor Tr. (Ex. U), at 128:9-11 (“Q. Before March 19, 2007, were you afraid of the
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Case 1:07-cv-08224-KBF Document 311 Filed 11/23/11 Page 24 of 31
police? A. No.), Patzan de Leon Tr. (Ex. V), at 204:15-17 (same); B. Velasquez Tr. (Ex. W), at 181:17-19 (same).
2. Class Membership Is Neither Typical Nor Ascertainable Although class membership must be able to be concretely defined, that is not possible here because class membership (i) depends on whether a person has been discriminated against; (ii) is based on subjective fears of ICE; and (iii) depends on being “Latino,” which has not been defined. A class must be identifiable before it may be properly certified. Friedman–Katz v. Lindt & Sprungli (USA), Inc., 270 F.R.D. 150, 154 (S.D.N.Y. 2010). This requirement is referred to as “ascertainability.” Id.; see also Bakalar v. Vavra, 237 F.R.D. 59, 64 (S.D.N.Y. 2006) (“Whether a proposed class is ascertainable is fundamental to certification.”). “An identifiable class exists if its members can be ascertained by reference to objective criteria. Where any criterion is subjective, e.g., state of mind, the class is not ascertainable.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y. 2002). A court must be able to determine who is in the class and is bound by its ruling “without engaging in numerous fact-intensive inquiries.” Bakalar, 237 F.R.D. at 64. Class members need not be ascertained prior to certification, but each individual’s class membership must be ascertainable at some stage in the proceedings. In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395–96 (S.D.N.Y. 2008); Bakalar, 237 F.R.D. at 64. Here, plaintiffs’ definition requires the Court to answer a number of fact-intensive questions to determine membership. For example, was the person “subjected to” a “home raid,” that is, a nonconsensual entry? Was the person targeted “because [he or she is] Latino”? Is a person at “imminent risk” of a nonconsensual entry? These questions would have to be answered on a case-by-case basis, and the Court would have to know, at the minimum, the
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essential facts of a given encounter, including why the person or residence was targeted and whether ICE entered without consent. In addition to raising ascertainability problems, these inquiries defeat the typicality requirement because persons’ claims are “highly individualized and differ[] from case to case.” Lewis Tree Serv., Inc. v. Lucent Tech. Inc., 211 F.R.D. 228, 234 (S.D.N.Y. 2002). Even the assertion of “a common legal theory does not establish typicality when proof of a violation requires individualized inquiry.” Elizabeth M. v. Montenez, 458 F.3d 779, 787 (8th Cir. 2006); see generally Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (typicality requires that “each class member’s claim arises from the same course of events”) (internal quotation marks omitted).
Second, for those persons who have not encountered ICE, the Court would have to determine whether they fear an “imminent encounter.” Even though plaintiffs’ definition does not explicitly state that non-injured class members must fear encounters with ICE, it would make no sense to extend class membership to the multitudinous persons who fall within the proposed class yet who have no reason to believe that ICE will ever violate their constitutional rights. Aside from the lack-of-standing problem discussed above, this would require the Court to assess, person by person, whether a putative class member fears ICE, making the class definition far “too amorphous.” See, e.g., 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1760 (3d ed. 2005) (“class defined with reference to the state of mind of its members will not be allowed to proceed under Rule 23”); see also Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) (impossible to determine who was “discouraged” from applying for public assistance); Rappaport v. Katz, 62 F.R.D. 512 (S.D.N.Y. 1974) (impossible to determine who is “imminently seeking to be married”); Zapka v. Coca-Cola Co., No. 99-cv-8238 (JWD),
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2000 WL 1644539, at *3 (N.D. Ill. Oct. 27, 2000) (impossible to determine who was “deceived by” Coca-Cola’s marketing practices).
Moreover, plaintiffs have never defined Latino, and because Latino ethnicity is generally regarded as a matter of self-identification,8 the Court would be unable to ascertain class membership, and ICE would not know which persons fall within the scope of any eventual injunction. Many persons with non-Spanish surnames—for example, Bill Richardson, the former governor of New Mexico—identify themselves as Latino, and still other persons with Spanish surnames—such as persons from the Philippines, Palau, and the Northern Mariana Islands—do not identify themselves as Latino.
For these reasons, although plaintiffs wish to “ensure that an Order of this Court is enforceable by class members,” Mov. Mem. 22, there will be no way for defendants (or the Court) to determine who is in the class. C. Plaintiffs Have Not Shown That the Named Plaintiffs
Will Adequately Protect the Interests of the Class Under Rule 23(a)(4), plaintiffs must show that the named plaintiffs “will fairly and adequately protect the interests of the class.” As plaintiffs correctly note, they must show both that class counsel is capable of conducting the litigation and that the named plaintiffs’ interests coincide with the interests of the class. See Mov. Mem. at 22 (citations omitted). Although defendants do not dispute the competence of class counsel, the interests of the named plaintiffs and the proposed class members are not, as plaintiffs argue, “identical.” Id.
8 “Persons who report themselves as Hispanic can be of any race.” See https://ask.census.gov/app/answers/detail/a_id/216/kw/hispanic/session/L3RpbWUvMTMxOTY 2NTkwNi9zaWQvU05FWjF6SGs%3D.
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To provide the clearest example, two persons from one of the actual complaint locations (165 Main Street) did not join this litigation, but instead filed two separate actions in the Southern District of New York. See Gonzales v. United States, No. 08 Civ. 6845 (LMS) (S.D.N.Y) (filed July 31, 2008); Soto v. United States, No. 08 Civ. 8884 (LMS) (S.D.N.Y.) (filed Oct. 16, 2008 (S.D.N.Y)). Their FTCA actions, which were filed approximately one year after this case, did not name Bivens defendants and did not seek injunctive relief. The parties settled the Gonzales case in November 2010 (Mr. Soto died while his case was pending), but if this Court had certified a class before that time, Gonzales (and every other New York Latino who may have a claim against defendants) arguably would have been precluded by res judicata from seeking monetary relief. See MTBE, 209 F.R.D. at 338 (“Absent class members may bring suit later—for personal injury or property damage—only to be ‘told . . . that they had impermissibly split a single cause of action.’”) (quoting Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 606 (S.D.N.Y. 1982)); Baby Neal, 43 F.3d at 59 (court must prevent absentee class members from “being bound by . . . the subsequent application of principles of res judicata”).
While those plaintiffs may have shared the Aguilar plaintiffs’ desire “to end the defendants’ unconstitutional conduct,” Mov. Mem. at 22, they did not seek injunctive relief and, in effect, opted out of the class that plaintiffs wish to certify, which is not permitted by Rule 23(b)(2). Cf. Rule 23(c)(2)(B)(v) (permitting only (b)(3) class members to opt out).
Finally, plaintiffs cite Dajour B. ex rel. L.S. v. City of New York, No. 00 Civ. 2044 (JGK), 2001 WL 1173504 (S.D.N.Y. Oct. 3, 2001), for the proposition that individualized differences do not overcome the adequate-protection requirement. See Mov. Mem. at 22. But there the class was narrowly defined to include children receiving emergency shelter who were eligible for Medicaid benefits. Dajour B., 2001 WL 1173504, at *2. And a specific question—
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have the plaintiffs (and the homeless, class-member children) been unlawfully deprived of benefits?—was uniquely tailored to provide a class-wide answer, id. at *6, which is consistent with the Supreme Court’s teachings on commonality in Wal-Mart, 131 S. Ct. at 2550-52. D. Plaintiffs’ Proposed Class Should Not be Certified Under Rule 23(b)(2)
Rule 23(b) lists three different types of class actions, and plaintiffs seek certification under subsection (b)(2), which applies where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” In Wal-Mart, the Court stated that “[t]he key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” 131 S. Ct. at 2557 (citation omitted).
There are at least two problems with certifying a (b)(2) class here. First, plaintiffs cannot show that defendants have acted “on grounds that apply generally to the class,” or that injunctive relief “is appropriate respecting the class as a whole.” Here, plaintiffs seek several forms of injunctive relief, some mentioning Latinos and others that do not. See Compl. at 135-38. The latter category includes injunctions that purportedly would ensure more thorough investigations, improve training, update databases, and implement corrective measures to discourage “law enforcement officers to act in [a] constitutionally deficient manner.” Id. at 137-38. Assuming that the Court orders any of those alleged improvements, the relief would be applied generally— not just to Latinos—and therefore would not be “appropriate respecting the class as a whole.” See Rule 23(b)(2).
As to the Latino-specific forms of relief, plaintiffs seek an injunction preventing defendants from “[d]eploying groups of armed agents to descend upon the homes of Latinos in the pre-dawn hours with the intent” to enter or search the home, or to search or seize Latinos,
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“through the use of force or by manufacturing ‘consent’ from residents who are unable—under law or due to the oppressive conditions of the raids—to give legitimate consent.” Compl. 135-37 (¶¶ 2(a)-(d)). Plaintiffs also seek injunctions preventing unlawful racial profiling in identifying targets and executing operations. Id. at 137 (¶¶ 3(e) & (f)). Notwithstanding the way that plaintiffs frame these forms of relief, it is inconceivable that the Court would enjoin racial profiling and the manufacturing of consent, but only with respect to Latinos and not other racial or other ethnic groups.
Second, plaintiffs have not shown that class-wide litigation will promote the interests of efficiency, the very goal of class-action litigation. See Falcon, 457 U.S. at 159 (“[M]aintenance of respondent’s action as a class action did not advance ‘the efficiency and economy of litigation which is a principal purpose of the procedure.’”) (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974)). In deciding whether to certify a (b)(2) class, courts should consider whether the litigation, as reconfigured as a class action, will be manageable and efficient. See, e.g., Lightfoot v. District of Columbia, 273 F.R.D. 314, 337 (D.D.C. 2011). In Lightfoot, the court decertified a proposed (b)(2) class after “look[ing] ahead to determine how certain issues might be addressed at trial,” and finding “that the continued certification of the class will not advance the principal purpose of the class action device—i.e., advancing ‘the efficiency and economy of the litigation.’” Id., 273 F.R.D. at 337 (citing Falcon, 457 U.S. at 159); see also Shook v. El Paso Cnty., 386 F.3d 963, 973 (10th Cir.2004) (“[T]he vehicle of class action litigation must ultimately satisfy practical as well as purely legal considerations.”), cert. denied, 544 U.S. 978 (2005); Walsh v. Ford Motor Co., 807 F.2d 1000, 1019 n. 111 (D.C.Cir.1986) (“manageability problems that might block a class action under Rule 23(b)(3) may be entailed as well in the Rule 23(b)(2) format”), cert. denied, 482 U.S. 915 (1987); see also Agostino, 256
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F.R.D. at 469 (denying certification under Rule 23(b)(2) where proposed class was insufficiently cohesive to “preserve the efficiencies gained through class litigation”).
Here, in an already complex and unwieldy case, plaintiffs have not explained how adding two million more class plaintiffs can possibly advance the “efficiency and economy” of the litigation. Nor have plaintiffs anticipated the practical effects this expansion will have upon introduction of evidence, upon cross examination, upon matters of proof, on the overall length of the trial, and on the proposed jury verdict forms. See In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 71 (S.D.N.Y. 2002) (in case involving complex variations of state law, plaintiffs bore burden of proving that management of the class was possible, by providing an “extensive analysis,” including sample model jury instructions and proposed verdict forms).
Finally, plaintiffs’ Rule 23(b)(2) cases are not to the contrary. In Biediger v. Quinnipiac Univ., No. 3:09cv621 (SRU), 2010 WL 2017773, **4-5 (D. Conn. May 20, 2010), the class was much more concrete—female college students harmed by the university’s non-diverse athletic programs—and the court actually denied (as too amorphous) class certification as to women who had decided against enrolling on account of those programs. And plaintiffs cite Ingles v. City of New York, No. 01 Civ. 8279 (DC), 2003 WL 402565, *6 (S.D.N.Y. Feb. 20, 2003), for the proposition that the named plaintiffs’ damages claims do not impact the Rule 23(b)(2) analysis, Mov. Mem. at 25, but the defendants in Ingles actually made a different argument: that the named plaintiffs would have an incentive to settle their damages claims instead of vigorously seeking an injunction. But aside from Ingles involving a tightly defined class (prison inmates), defendants here have made the opposite argument, i.e., that the class members’ pursuit of only injunctive relief will possibly preclude individuals from seeking damages against defendants.
CONCLUSION For the foregoing reasons, the Court should deny plaintiffs’ motion for class certification.
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Dated: New York, New York October 28, 2011

PREET BHARARA United States Attorney for the Southern District of New York, Attorney for Defendants

By:

/s/

DAVID BOBER

SHANE CARGO

BRANDON COWART

LOUIS A. PELLEGRINO

Assistant United States Attorneys

86 Chambers Street

New York, New York 10007

Tel. (212) 637-2711

Fax (212) 637-2786

26

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------- X
ADRIANA AGUILAR, et al.,

USDCSDNY DOCUMENT ELECTRONICALLY FILED
DOC #:_-.....=:--::---.:-:::-:-::::; DATEFIL

Plaintiffs,

07 Civ. 8224 (KBF)

-v-

OPINION & ORDER

IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants. --------------------- X
KATHERINE B. FORREST, District Judge:

In 2007, twenty-four individuals of Latino background filed

this action for constitutional and other violations relating to alleged warrantless home searches. 1 In addition to claims for

monetary damages, on September 22, 2011, twenty-one of the

original named plaintiffs moved for class certification with

respect to their request for permanent injunctive rel

pursuant to Rules 23(a) and 23(b) (2) of the Federal Rules of

Civil Procedure. Plaintiffs do not seek class certification

relating to their damages claims.

The Court held oral argument on the motion for class

certification on January 4, 2012. (See Dkt. No. 312.)

1 Plaintiffs have amended their complaint three times--i.e., the Fourth Amended Complaint is the operative pleading. Various defendants who were then part of the action moved to dismiss on a variety of grounds. The motion to dismiss was decided on August 1, 2011, dismissing a number of defendants from the action. Aguilar v. Immigration and Customs Enforcement Div. of the U.S., 811 F. Supp. 2d 803 (S.D.N.Y. 2011).
1

Additional submissions in support of and in opposition to

plaintiffs' motion for class certification were allowed

thereafter. See Dkt. Nos. 334, 341, 343.} The motion was

fully briefed in March 2012.

For the reasons set forth below, plaintiffs' motion for

class certification is DENIED.

BACKGROUND

The parties do not dispute that during 2007, Immigration

and Custom Enforcement ("ICE") agents conducted a series of home

raid operations in the New York area. Those operations were

carried out under the direction of ICE's New York Detention and

Removal Office. Each of the named plaintiffs in this action was

subject to a home searched by ICE agents and others acting with

them

, police officers from local police departments}

during raids conducted in February, March, April, or september

2007. (See Fourth Am. Compl. ("Compl.") (Dkt. No. 202) ~~ 23,

27, 29, 31, 35.}

The complaint asserts that none of the raids was conducted

pursuant to a duly authorized warrant, voluntary permission, or

invitation.

35.} Rather, the raids unlawfully targeted Latinos for search

and arrest irrespective of immigration status, but likely based

upon erroneous assumptions and presumptions regarding

immigration status. (Compl. ~ 10.)

2 


The complaint avers that during each raid, armed agents surrounded and/or entered the homes of Latinos, usually pre-dawn, and with a show of force. (Compl. ~ 5i see also,
, id. ~ 35.) Plaintiffs allege that the agents obtained entry illegally, using force, sometimes pushing past minors, using illegal ruses suggesting an emergency was occurring within the house and similar illegal techniques. The complaint recites that these raids resulted in the illegal detention of plaintiffs, psychological and physical abuse, and the destruction of private and personal property in violation of, inter alia, the Fourth and Fifth Amendments to the U.S. Constitution. (Compl. ~ 1.)
The complaint further alleges that defendants have conducted, continue to conduct, and plan to conduct in the immediate future unconstitutional and abusive "raids of homes occupied by Latino persons within the jurisdiction of the New York City field office of ICE, including the homes of the named plaintiffs." Id. ~ 2.)
There are a variety of additional facts relating to each of the raids and each of the named plaintiffs detailed in the lengthy and detailed complaint as well as referred to in the Court's ruling on the motion to dismiss. For purposes of this motion, the Court will set forth only those facts relevant to determination of this motion and assumes familiarity with the
3 


facts set forth in the Complaint, the Court's decision on the motion to dismiss, and other materials filed on the docket for additional factual detail.
This case has been actively and well litigated since it was filed. Dewey & LeBoeuf took this case on as a pro bono matter, working with LatinoJustice PRLDEF, and they and the Government have handled it with great professionalism throughout. There has been voluminous document discovery (see, e.g., Defs. Resp. to PIs.' Supp. Br. in Support of Their Mot. for Class Cert. ("Defs. Supp. Resp.") at 5), over 125 depositions of, inter alia, plaintiffs, ICE agents, and others involved in the raids (see, e.g., id. at 9 (referring to numerous depositions) i PIs.' Mem. of Law in Support of Their Mot. for Class Cert. ("PIs. Mem.") at ns. 8-19). The record provides detailed insight into the operations, the harm plaintiffs allege they have suffered, and general practices and procedures at the agencies which participated in, authorized, or had oversight over the raids.
The issue currently before this Court is whether there is a sufficient basis in this extensive factual record to support certification of a class for prospective injunctive relief. As discussed below, despite the extent of the record and the care with which it was assembled, there is an insufficient basis for this Court to conclude in 2012 that plaintiffs, as to whom events occurred in 2007, necessarily and in fact share
4 


sufficient common issues with other Latinos in the New York area in 2012 to support certification of the injunctive class sought. Plaintiffs seek certification of a class consisting of:
Persons who are (1) Latino; (2) reside within the jurisdiction of ICE New York; and (3) who have been, or in the future will be, subject to a home raid operation. (PIs. Supp. Br. In Support of Their Mot. for Class Cert. ("PIs. Supp. Br.") at 1.) At oral argument, plaintiffs agreed that this class could potentially include approximately two million Latinos residing in the New York area; and that the definition of who is "Latino" is open to subjective interpretation.
DISCUSSION I. LEGAL STANDARD
Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 23. To be certified, a putative class must meet all four prerequisites of Rule 23(a), and at least one of the subsections of Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548-49 (2011).
Rule 23(a) requires that plaintiffs seeking certification first demonstrate that the (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the classi (3) the claims or defenses of the representative parties are typical of the claims or
5 


defenses of the classi and (4) the representative parties will

fairly and adequately protect the interests of the class. Those

requirements are colloquially referred to, respectively, as

numerosity, commonality, typicality, and adequacy.

The party seeking class certification must demonstrate by a

preponderance of the evidence that they have met the elements of

Rule 23(a). Novella v. Westchester Cty., 661 F.3d 128, 149 (2d

Cir. 2011).

Here, plaintiffs have sought certification of a class

seeking imposition of mandatory and prohibitory injunctive

relief pursuant to Rule 23(b) (2). (See Compl. , 442.)

Plaintiffs must therefore also demonstrate that they meet the

requirements set forth in that rule i.e., that the party

opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate

final injunctive relief or corresponding declaratory relief with

respect to the class as a whole. Fed. R. Civ. P. 23(b) (2).

Cases alleging violations of civil rights have typically

been among the kinds of cases for which injunctive classes have

been certified. See Amchem v. Windsor, 521 U.S. 591, 614

(1997) i see Marisol A. v. Guil

, 126 F.3d 372, 378 (2d Cir.

1997) .

In 2011, the Supreme Court decided Wal-Mart Stores, Inc. v.

Dukes, 131 S. Ct. 2541 (2011). There can be little doubt that

6 


the Supreme Court accepted certiorari and decided this case for a reason. It reiterates and reemphasizes the principles which must guide a district courtts determination of class certification t and in particular t with respect to an injunctive class. It is possible that had the plaintiffs here moved for class certification prior to the issuance of Wal-Mart t and long before 2012 t that the outcome here would be different. Nevertheless t Wal-Mart is controlling precedent t and five years have elapsed between when this case was filed and today. Those are important factors in this Courtts decision.
In Wal-Mart t several named plaintiffs brought a purported class action on behalf of all female employees of Wal-Mart nationwide. 131 S. Ct. at 2547. Plaintiffs claimed that there was a pattern and practice whereby managerial employees within Wal-Mart exercised their discretion regarding pay and promotion to the alleged disadvantage of women in violation of Title VIr of the Civil Rights Act. Id. at 2548. Justice Scalia wrote t "We are presented with one of the most expansive class actions ever . . . comprising about one and a half million plaintiffs. It rd. at 2547. Plaintiffs sought declaratory and injunctive relief along with back-pay and punitive damages. rd.
The Supreme Court acknowledged that plaintiffs . . . do not allege that Wal-Mart has any express corporate policy against the advancement of women. Rathert they claim that their local managerst
7 


discretion over pay and promotions is exercised 
 disproportionately in favor of men, leading to 
 unlawful disparate impact on female employees. 
 Id. at 2548. The class that plaintiffs sought to certify in Wal-Mart consisted of "[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices./I Id. at 2549. Plaintiffs attempted to demonstrate common questions of law and fact through a statistical analysis that showed pay disparities between men and women, numerous anecdotal reports of discrimination from 120 women, and a "social framework" analysis submitted by a sociologist. Id. The Supreme Court began its analysis of whether class certification was appropriate with reference to longstanding precedent that the class action "is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties." Id. (citing Califano v. Yamasaki, 442 U.S. 682, 700 702 (1979)). The Court stated that the "crux of this case is commonality" and acknowledged that any competently crafted class complaint can raise common questions. Id. at 2550. Importantly, the Court reiterated that Rule 23 is not a mere pleading standardi a party seeking class certification must demonstrate that there are "in fact sufficiently numerous
8 


parties, common questions of law or fact, etc." Id. at 255l. The Court made it clear that the trial court should and must undertake a rigorous analysis to determine whether the prerequisites of Rule 23(a) have been satisfied and that frequently this analysis overlaps with an analysis of the merits of plaintiffs' underlying claim, which, whatever the outcome, cannot be helped. Id. at 2552 ("proof of commonality necessarily overlaps with respondents' merits contention that Wal-Mart engages in a pattern or practice of discrimination") .
The Court then stated that in established case law in pattern-or-practice cases, the plaintiff tries to prove by a preponderance of the evidence "that discrimination was the company's standard operating procedure[,] the regular rather than the unusual practice." Id. at 2552 n.7 (citations omitted). Successful proof of this pattern or practice would justify injunctive relief against continued discrimination. Id.
The Supreme Court held that whether a class of persons has experienced the same injury must be Uabridged by significant proof that an employer operated under a general policy of discrimination. II Id. at 2553 (citation omitted). The Court found compelling that Wal-Mart's announced policy forbids sex discrimination and imposes penalties for denials of equal employment opportunity. Id.
9 


The Supreme Court in Wal-Mart did acknowledge its own statement in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1999), that civil rights cases alleging class-wide discrimination are prime examples of what (b) (2) was intended to cover. Id. at 2558. However, the Court also referred to the fact that the Advisory Committee notes accompanying the Rule reflected a series of decisions challenging racial segregation (id.)--a practice which under the cases decided decades ago was then still practiced in certain places and was certainly amenable to sweeping injunctive relief to solve a common question. II. RULE 23(a)
A. Numerosity The parties spent little time, as was perfectly appropriate, addressing numerosity. This Court assumes that the class as defined--i.e., one consisting of all Latinos in the New York area -would satisfy that requirement well beyond a preponderance of the evidence. See Novella, 661 F.3d at 144 (finding that "the 'numerosity' requirement is satisfied when the class comprises 40 or more members" (quotation marks and citations omitted)) i see also Fed. R. Civ. P. 23(a) (1). B. Commonality Plaintiffs here allege that New York ICE has a policy, pattern, and practice of conducting warrantless home raids on
10 


Latinos. (See PIs. Supp. Br. at 1.) Specifically! plaintiffs assert that n[c]arried out under the auspices of nationwide operational plans and consistent with established policies! these home raid operations- and the actions of Ice agents who conducted them--shared coercive and unlawful characteristics." (Id.) Plaintiffs also allege that defendants admit that both the operations and the challenged policies driving ICE agents! conduct continue. Id. These are assertions--and at this stage! an important task of this Court is to test these assertions against the current record.
As in Wal-Mart! the critical question before this Court is whether the named plaintiffs have sufficient commonality with the class they propose to represent to support certification. This Court approaches that question! as directed by the Supreme Court! by undertaking a rigorous analysis of the question as to whether plaintiffs have substantial proof of an unconstitutional or illegal policy or practice that in fact gives rise to common questions. 131 S. Ct. at 2551-53 1 2556. A set forth above, as in Wal-Mart, plaintiffs here also challenge an allegedly illegal policy, pattern, or practice. However 1 the proposed class here consists not only of Latinos who were subject to the home raids that occurred in 2007, but extends to the present and includes all those Latinos in the New York area nwho have been, or in the future will be, subject to a home raid operation." (PIs. Mem.
11 


at 2.) Accordingly, whether there is substantial proof of a policy, pattern, or practice in 2012 that could or would subject Latinos in 2012 and in the future to home raids that raise the same common constitutional and legal questions as the named plaintiffs (as to whom home raids occurred in 2007) is directly at issue.
It is certainly the case that the named plaintiffs themselves share common questions regarding the constitutionality and legality of the home raids to which they were subjected. Based on the facts in the record on this motion (and the record on this motion is voluminous), there can be little argument that there are serious common questions regarding whether the 2007 raids were performed in a constitutionally and legally appropriate manner.
The fact that the Latinos who were subject to raids in 2007 share common questions does not, however, automatically confer on Latinos in the New York area in 2012 and beyond the same potential commonality. As directed by the Supreme Court, this Court must undertake its own rigorous analysis of that question. Doing so requires that this Court ask, in a merits-like inquiry, whether plaintif,fshave demonstrated by substantial evidence that the policies, patterns, and practices which were in existence in 2007 continue today, thereby subjecting Latinos today and into the future to the risk of similar constitutional
l2

and illegal misconduct. Had the issue of class certification been determined in 2008, this timing issue perhaps would not figure significantly in the Court's analysis. After the passage of more than five years, however, and in the context of a case that seeks to impose prohibitory and mandatory injunctive relief that would cover a huge class of all Latinos in the New York area into the future, the issue takes on great significance.
Plaintiffs assert that the same policies, patterns, and practices existing in 2007 continue to exist today. As support for their position, they cite a host of evidence including requests for admissions, hearing and deposition transcripts. (See Pls. Supp. Br. at 4-9.) The crux of their argument is that the agents involved in the 2007 home raids and others admit that existing policies, handbooks, operations that utilize ruses, operational plans that call for a significant show of force, and policies which permit systematic sweeps, all remain in force and effect. Id. at 4.) They also cite to two affidavits which refer to allegedly similar conduct by ICE agents during a home raid conducted in 2009. (Id. at 6.)2
There are two points with which this Court must grapple in connection with plaintiffs' proof and arguments in this regard. First, the fact that unlike in other cases in which there are

2 Plaintiffs also urge that similar conduct is ongoing across the nation.

(PIs. Supp. Br. at 7-8.) The inquiry for this Court, however, is whether,

inter

commonality is established for the proposed class, which is a

class geographically limited to the New York area.

13 


policies that facially evidence purposeful, wrongful conduct, here, the proof is closer than that at issue in Wal-Mart. Here, the policies and procedures which the ICE agents and others working with them were--and are--to follow in conducting home raids prohibit the very type of misconduct alleged to have occurred here. See Wal-Mart, 131 S. Ct. at 2553. As a result, while it may well be the case that plaintiffs can cite numerous instances in which agents concede that policies have remained in place (and they have), according to defendants, those policies counsel constitutional and legal behavior. (Defs. Supp. Resp. at 4-10.) Admissions of continued legal policies cannot, then t support common questions regarding illegal and unconstitutional policies.
That question then bleeds into the second point which is whether this Court should consider relevant to commonality the fact that five years have passed between the 2007 home raids and today. Put another way, does the passage of five years render more tenuous the connection between the conduct to which the named plaintiffs were subjected[ and therefore the common questions which they as a group may facet and the questions Latinos in the New York area today might face in connection with home raids? Should this Court assume that the same conduct that was in direct violation of ICE and DOJ policies and procedures
14 


that occurred in 2007 occur today?) This Court finds that answering both those questions is highly relevant to whether commonality exists.
Based on the record before this Court, it appears that in certain instances, ICE agents and those working with them may have acted inappropriately during the 2007 home raids about which plaintiffs complain. There are motions for summary judgment pending which delve further into the specific 2007 record with regard to that conduct. However, while the plaintiffs have proffered that testimony, handbooks, etc. indicate that policies remain unchanged, defendants counter that that is because such policies are in compliance with constitutional and legal requirements; thus, the fact that the policies have not changed is not proof of an ongoing problem. (Defs. Supp. Resp. at 9-10.) With respect to each area in which plaintiffs claim misconduct occurred, defendants have put forth substantial evidence that policies indicate that conduct should remain within legal bounds: legal ruse techniques, legal limits on use of force, and policies on cartilage, protective sweeps, and detentive questioning. (Id. at 9.)
Importantly, the heart of plaintiffs' proposed class relates to conduct directed at Latinos. With the exception of
3 It is worth mentioning that one relevant factor is the change of administrations and numerous changes in leadership at the DOJ since 2007. This raises further questions as to whether assumptions regarding continuity are appropriate.
15 


their statistical analysis, none of the evidence that plaintiffs have submitted in support of their motion on class certification supports the proposition that there is any sort of institutional policy to target Latinos in particular. No doubt there are home raids directed at various groups for various reasons at various times (~, as defendants point out, an effort to target a "Chinese mobil might disproportionately target people of Chinese descent (Defs. Supp. Resp. at 11). Plaintiffs' statistical analysis is based on lists of targets for the 2007 operations. It is, as in Wal-Mart, standing alone, insufficient to provide a foundation for a determination that ICE agents today engage or would engage in intentional targeting of Latinos for unconstitutional home raids. See Wal-Mart, 131 S. Ct. at 2553­ 55 (requiring "significant proof," and admonishing that using statistical analyses must be done carefully and with scientific rigor). But in addition, the analysis of target lists alone does not answer the question of whether the raids conducted pursuant to any target lists (assuming arguendo that there are similar target lists today) are actually carried out in an illegal manner. Put another way, target lists say nothing about conduct during the raid itselfj the core common questions asserted regard conduct during the raids.
Notably, each of the named plaintiffs herein asserts that he or she was not on a target list. Rather, the claim is, in
16 


part, that agents went well beyond the target lists when they conducted the 2007 home raids. Thus, whether the target lists consisted of all Latinos, a majority of Latinos, or no Latinos does not explain whether the raids themselves were planned to consist of illegal actions, whether they were planned to go beyond the target lists to include other individuals, and whether an analysis of target lists that might exist today would in any event yield the same results.
Similarly, the particular anecdotal evidence set forth in detail in the complaint and in the depositions and affidavits of plaintiffs relating to the 2007 home raids, and in the affidavits relating to the 2009 incident, are insufficient to demonstrate the existence of a policy--Iet alone an ongoing one--of intentional targeting and intentional misconduct. In Wal-Mart, the Supreme Court declined to find that 120 affidavits "reporting experiences of discrimination" provided a sufficient basis to find a policy of discrimination existed. 131 S. Ct. at 2556. The 120 affidavits represented 1 in every 12,500 class members. Id. As defendants point out in their papers in opposition to this motion, the proposed class here consists of approximately two million Latinos. This results in one anecdotal incident for every 250,000 potential class members. (Defs. Supp. Resp. at 12.) That falls far short of the standard set by the Supreme Court.
17

Defendants assert (and this fact is not contradicted by plaintiffs/ though they take obvious issue with implementation), that "ICE has an explicit, DOJ-endorsed policy prohibiting discrimination. II (Defs. Supp. Resp. at n.4.) That policy repudiates the assumption that "any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity." (Id. This same DOJ policy requires more "restrictions on the consideration of race and ethnicity in Federal law enforcement than the Constitution requires. 1I Id.
Defendants have pointed to evidence in the record that the policies in fact produced during discovery state in clear terms that in the absence of a warrant or exigent circumstances/ officers and agents must obtain consent to enter anyone's horne. (Defs. Supp. Resp. at 3 (citing Decl. of Darren Williams Ex. Ii Decl. of Jeffrey Knopf Ex. 2).) In addition/ defendants produced 12/000 pages of training materials concerning/ inter alia/ specific training in complying with the law to insure consent based operations and a specific program on how to comply with the Fourth Amendment. (Defs. Supp. Resp. at 5-6.) The Fourth Amendment training materials state that ruse techniques must not be coercive and "may not convince resident[s] that they have no choice but to let [the] officer inside. 1I Id. at 5.) This same material specifically lists the types of ruse
18 


techniques allowed, none of which are among those claimed by plaintiffs to have been the source of the misconduct alleged in the complaint. (Id.) Some of the training materials produced by defendants during discovery date from 2009 or later. (Defs. Supp. Resp. at 8.) Many agents testified that defendants' policies do not condone the complained of techniques alleged to have been used during the 2007 raids. (Id. at 9.)
Because there is substantial evidence that no policy in fact condones the constitutional and other misconduct alleged, common questions of fact or law cannot be based on the existence of the policies themselves. The absence of policies condoning the behavior asserted as wrongful in the complaint necessarily means that plaintiffs must be alleging only that demonstrated pattern or practice create common questions.
Whether or not a particular pattern or practice (or sets thereof) create common questions as between the named plaintiffs and the proposed Latino class depends on a rigorous analysis of what those patterns and practices are, and how and whether they are applicable to the proposed class as a whole. In the absence of application to the proposed class as a whole (~, including Latinos from 2007 to today), such alleged patterns and practices would not be amenable to resolution through single sweeping injunction.
19

Here, all of the evidence of pattern and practice (with the exception of the two affidavits from individuals who were the subject of a single home raid in 2009 (see PIs. Supp. Br. at 6-7)), relates to home raids in 2007. The evidence in the record does support common questions regarding whether the defendants' conduct in 2007 was constitutional or otherwise illegal. That, however, is a separate issue from whether there is substantial evidence of a pattern and practice raising common questions regarding home raid patterns and practices in 2012. The only evidence in the record with respect to the present time is the testimony from the defendant deponents that the policies which set forth constitutionally and legally compliant procedures remain in place.
There is, in fact, no evidence in the record of a single act taken by ICE agents or others working with them on home raids in the past four years that suggests that Latinos in the New York area have been subjected to unconstitutional or illegal home searches. It is possible to imagine that if there were such practices that were targeted against Latinos, that those Latinos would in fact have the type of common questions that Rule 23(a) requires. However, speculation does not comply with the Supreme Court's requirement of substantial evidence.
It is true that discovery in this case closed some time ago. And it is also true that there were decisions made
20

regarding what time period discovery would cover. Those factors necessarily impacted whether a court sitting in 2012 could find that the requirement of commonality under Rule 23 had been satisfied based on conduct occurring five years prior.
It is possible that the fact of this litigation itself has drawn attention to certain practices that assisted in ultimate achievement of plaintiffs' injunctive goals -i.e., to prevent a pattern and practice of recurrence of the allegedly illegal ruses and home raids that are the subject of this action. This Court does note that there is an incident in 2009 that is the subject of supplemental declarations. (Dkt. Nos. 335, 336 (declarations filed under seal) i see also PIs. Supp. Br. at 6-7.) However, evidence that one home raid in five years had similar alleged misconduct as that described in the complaint (and the home raid took place approximately three years ago) both suggests little evidence of a remaining serious issue and is, in any event, itself insufficient to establish common questions for a class that would include almost two million Latinos in the New York area in 2012, particularly under the standard set forth in Wal-Mart.
Having failed to meet the factor of commonality, this Court need not reach the remaining two factors of typicality and adequacy under Rule 23(a). It is worth noting that 23(a) does not require a balancing of the factors it requires that each of
21 


the factors be proven by a preponderance of the evidence. See Wal-Mart l 131 S. Ct. at 2548. Thus 1 whether or not the final two 1 and the first l of the four Rule 23(a) factors would support class certification irrelevant. I I I. RULE 23 (b) (2)
The named plaintiffs herein cannot establish the commonality required to satisfy Rule 23(a). Accordingly 1 the Court never reaches the provisions of Rule 23(b) (2)1 which govern classes seeking injunctive relief. Nevertheless, this Court notes that for the same reasons that plaintiffs are unable to satisfy the commonality requirement of Rule 23(a), they are unable to satisfy the requirement of 23(b) (2) that that the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory reI with respect to the class as a whole. See Fed. R. Civ. P. 23(b} (2). Here, because the proposed class would consist of Latinos in the New York area who might be subject to home raids in 2012 or the future 1 and because there is no evidence that defendants currently engage in ongoing misconduct with respect to such raids, plaintiffs cannot show that defendants' actions are "generally applicable to the class." Fed. R. Civ. P. 23(b) (2).
The type of injunctive relief that plaintiffs seek is both prohibitory: to prevent the repetition of certain misconduct;
22 


and mandatory: they seek training and other affirmative conduct. Without reaching a determination as to the ultimate merits of this matter, it is important that this Court not casually certify an injunctive class that could impose significant cost and burden on governmental entities.
CONCLUSION For the aforementioned reasons, plaintiffs' motion for class certification is DENIED. The Clerk of the Court is directed to terminate the motion at Docket No. 294.

SO ORDERED:

Dated:

New York, New York April ~, 2012

KATHERINE B. FORREST 
 United States District Judge 


23 


 
 Case 1:07-cv-08224-KBF Document 426
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Filed 04/04/13 .P:: age 1 of''1 191M; ) USDCSDNY

DOCUMENT

ELtCTRONICALLY FILED

DOC#:.

-­

DATE FILF.D;APR 0 4 2013

ADRIANA AGUILAR, etal.,
Plaintiffs,
- againstIMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

ECFCase 07 Civ. 8224 (K8F)
STIPULATION AND ORDER OF DISMISSAL AND SETTLEMENT

WHEREAS, the parties to this action (the "Action") are plaintiffs Adriana ,. Aguilar, Andres Leon, Elena Leon, Erika Gabri.ela Garcia-Leon, Carson Aguilar, Nelly Amaya,
Mario Patzan DeLeon, William Lazaro, Tarcis Sapon-Diaz, Sonia Bonilla, Beatriz Velasquez, Dalia Velazquez, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos. Gonza]o Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez (collectively "Plaintiffs"), and defendants United States Immigration and Customs Enforcement ("ICE"), a component of the United States Department
of Homeland Security. Janet Napolitano* 1, John Morton"', John P. Torres, David J. Venturella*,
Marcy Fonnan, Kumar Kibble"', Christopher Shanahan, Peter J. Smith, Joseph A. Palmese, Darren WilJiams, Jeffrey Knopf, Brian Banks, Edward Bowman, Michael Kidd, Russell HoU, Jr., Tracey Johnson, Daniel Samartin, Dennis Carroll, Sean Connelly, Andrew Sadowy, Kenneth Lopez, Brian Deever, Jerome White, Judith Almodovar, David DiConza, Jeffrey Grant, Christian Sabatino, Robert Ryan, Manuel DeCastro, Stephen Ascher, Peter Meyer, Matthew F. Hagerty,

I An asterisk indicates that the defendant waS sued in his or her official capacity only,

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Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 2 of 19

Deana Castoro, Eben Roberts, Peter Egan, Colin Flaherty, Robert Castioni, Dennis Davey, Tommy Aristy, Matthew Murphy, Michael Alfonso, Christopher Lau, Timothy Losito, Thomas Kilbride, John Cianci, Leigh Senzatimore, Kevin M. O'Malley, Jr., Marina Vides, Bonnie Goldblatt, Renee McAteer, Freddy Gomez, Russell Ricalde, Melvin Smith, Peter Persico, Andrew Daniels, John Guerra, WnHam Ryan, James Taman, Dennis Baggia, Alfred Rizzo, and the United States of America (collectively "Defendants"; Plaintiffs and Defendants referred to herein collectively as the "Parties" or individual1y as a "Party");
WHEREAS, pursuant to the fourth amended complaint, dated December 21, 2009, Plaintiffs have asserted claims for, among other things, injunctive relief (the "Injunctive Claims"), and monetary relief (i) against the above-named individual defendants who were sued solely in their individual capacities (together, the "Bivens Defendants") pursuant to Bivens v, Six Unknown Named Agents ofthe Federal Bureau ofNarcotics, 403 U.S. 399 (1971) (the "Bivens Claims"), and (ii) against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671·2680 (the "FTCA Claims"), arising from several ICE operations that occurred in 2007;
WHEREAS, extensive pretrial proceedings, motion' practice, and discovery have occurred in the Action;
WHEREAS, Plaintiffs hereby voluntarily dismiss the Bivens Claims against the Bivens Defendants pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules ofCiviJ Procedure with prejudice, and all parties who have appeared in the Action consent to such dismissal; and
WHEREAS, Plaintiffs and the United States hereby agree to settle an remaining claims, i.e., the Injunctive Claims and the FTCA Claims, pursuant to this Stipulation and Order of Settlement and Dismissal;

- page 2 of 11 -

07 Civ. 8114 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 3 of 19

IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, that the Action shall be resolved as between them as follows:
1. This Action is hereby dismissed as against all defendants with prejudice, subject to the financial terms and immigration provisions set forth in paragraphs 3 through 9 below.
2. This Stipulation and Order of Settlement and Dismissal (the "Stipulation and Order") shall not constitute an admission of liability or fault on the part ofthe United States or any of its present or former departments. agencies, agents, officials or employees. Financial Terms
3. Upon entry by the Court ofthis Stipulation and Order, the United States shall (i) within seven (7) days submit a request to the Judgment Fund of the United States Department of the Treasury; and (ii) as soon as practicable and in no event later than sixty (60) days, if possible, pay Plaintiffs'counsel the total sum of One Million U.S. Dollars ($1,000,000) (the "Payment"). Ex.ecution of this Stipulation and Order may be in counterparts, and wire transfer information will be sent under separate cover. Transmittal ofthe Payment shall constitute full satisfaction of Defendants' tnonetary obligations that arise under this Stipulation and Order.
4. From this Payment, Plaintiffs shall receive $36,000 per Plaintiff, and the remaining amount ofthe Payment shall be paid to Plaintiffs' counsel as attorneys' fees. No other or additional payment shall be required. The Payment is inclusive of all costs and attorneys' fees of any kind, in accordance with 28 U.S.C. § 2678, and any and all liens and fees are to be satisfied by Plaintiffs out of the Payment. ImmieratioD Proceedings
5. Previously pending immigration proceedings of plaintiffs Mario Patzan DeLeon, Juan Jose Mijangos. and Yoni Revolorio (the "Plaintiffs Electing Termination") have been terminated without prejudice, and evidence of such termination, to the satisfaction ofPlaintiffs'

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07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 4 of 19

counsel) has been provided. ICE agrees that 'it will not use any information gathered during discovery or litigation in this Action, or from the operations and subsequent arrests at issue in this case, against Plaintiffs Electing Termination in any future immigration proceeding, except for the purpose of impeachment.
6. Previously pending immigration proceedings of plaintiffs Nelly Amaya, Gonzalo Escalante, William Lazaro, and Tarcis Sapon-Diaz (the "Plaintiffs Electing Deferred Action") have been administratively closed, and evidence ofsuch administrative closure, to the satisfaction of Plaintiffs' counsel, has been provided. Plaintiffs Electing Deferred Action have received deferred action for four (4) years effective February 11, 2013. ICE agrees that at the end of the deferred-action period, any Plaintiff who received deferred action may apply for another grant ofdeferred action. The decision whether to grant the application will be left to the sole discretion of ICE.
7. ICE agrees that the immigration cases of Plaintiffs Electing Deferred Action will remain administratively closed for the duration of time that Plaintiffs have deferred action, including any additional grants of deferred action occurring after the initial four (4) years have expired, subject to the requirements and limitations stated in their administrative grants of deferred action. With respect to any Plaintiff who has received deferred action, ICE reserves the right to revoke continued deferred action for a Plaintiff who is convicted of (i) a felony; (ii) a crime of driving while intoxicated or under the influence of alcohol or ofprohibited substances; or (iii) any other crime for which a sentence of six (6) months or longer may be imposed that involves causing or threatening to cause personal injury to another person, or with extreme indifference to human life, creates a risk ofpersonal injury to another person. Plaintiffs may

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07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 5 of 19

apply for employment authorization documents through submission of a Form 1-765 during the period of deferred action.
8. ICE agrees that it will not use any information gathered during discovery or litigation in this Action, or from the operations and subsequent arrests at issue in this case, against Plaintiffs Electing Deferred Action in any future immigration proceeding. ICE further agrees that it will not use any information from deferred-action requests or 1-765 applications, if any, that may follow a grant of deferred action, against Plaintiffs Electing Deferred Action to establish removability in any future immigration proceeding.
9. The immigration proceedings of Plaintiffs William Lazaro (Melchor) and Victor Pineda Morales have been terminated, and, as with Plaintiffs Electing Termination under Paragraph 5 above, ICE wil1 not use any information gathered during discovery or litigation in this Action, or from the operations and subsequent arrests at issue in this case, against Mr. Lazaro Melchor or Mr. Pineda Morales in any future immigration proceeding, except for the purpose of impeachment. Training and Policy Issues
10. Within sixty (60) days of the Court's approval of this Stipulation and Order, ICE agrees to issue and publish to all appropriate personnel a national policy and training memorandum or memoranda governing the conduct of all ICE field officers and agents with the following language, and/or revise its national policy and training memoranda to include the following language:
a. Language. Consent to enter or search a private residence must besought in language understood by the resident of the residence granting consent whenever feasible, and one or more Spanish-speaking officers must be available

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07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 6 of 19

to seek such consent where the target is thought to be from a Spanish-speaking

country.

b. Curtilage. Agents and officers in consent-based home operations cannot

enter the curtilage or areas around a home where there is a reasonable expectation

of privacy, unless they obtain consent to do so.

c. Protective Sweeps. Pursuant to Supreme Court precedent in Maryland v.

Buie, protective sweeps are permitted only where there is a reasonable, articulable

suspicion of danger and cannot be conducted upon entry to a home without such

reasonable, articulable suspicion.

d. Such poJicy memorandum or memoranda shaH be referred to as "ICE

Training and Policy Statement."

11. Within ten (10) days of issuing, pubiishing. and disseminating the memorandum

or memoranda in accordance with Paragraph 10 above, ICE shall provide a copy to the Court and

to Plaintiffs' counsel together with a sworn affirmation from an ICE employee sufficient to

establish that the memorandum or memoranda have been issued, published, and disseminated.

12. Nothing in this Stipulation and Order shall preclude or limit ICE's ability to

modify the ICE Training and Policy Statement as it deems appropriate in light of future changes

or developments in law.

Releases 13.

In exchange for the Payment set forth in Paragraph 3, ICE's agreements with

regard to immigration proceedings as set forth in Paragraphs 5 through 9, and ICE's issuance of

the ICE Training and Policy Statements, and for other good and valuable consideration, the

receipt of which is hereby acknowledged. Plaintiffs for themselves, their present and former

agents, administrators, heirs, executors, successors, and assigns, effective upon receipt ofthe

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Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 7 of 19

Payment made in accordance with the requirement of this Stipulation and Order, hereby fully release and forever discharge, and covenant not to sue, Defendants, their present and former agents, representatives, attorneys, administrators, officers, directors, employees, affiliates, predecessors, successors, and assigns, of and from any and al1 sums of money, claims, demands, charges, causes of action and judgments of whatever kind or nature, whether known or unknown, that Plaintiffs may have had or have as of the date of execution ofthis Stipulation and Order arising from or relating to the events that gave rise to the Action.
14. Plaintiffs represent and warrant that they have not, prior to the date ofthis Agreement, assigned or transferred or purported to assign or transfer (i) any claim released hereunder; or (ii) any interest in or entitlement to their recovery, if any, in this Action, other than any claim, interest, or entitlement Plaintiffs' counsel might have to the attorneys' fees being paid .under this Agreement.
15. Defendants for themselves, their current and former agents, subsidiaries, affiliates, predecessors or successors, and each of its and their respective current and former officers, directors, employees, agents, representatives, attorneys, and successors agree that once Payment is made, they fully release and forever discharge, and covenant not to sue, Plaintiffs, their present and former agents, representatives, attorneys, ad~inistrators, successors, and assigns, of and from any and ·al1 sums of money, claims, demands, charges, causes of action, and judgments of whatever kind or nature, whether known or unknown, that Defendants may have had or have as of the date of execution of this Stipulation and Order arising out ofthe events giving rise to the Action, provided, however, that nothing herein shall preclude ICE from undertaking enforcement actions against any party hereto for reasons unrelated to the operations giving rise to this Action except as specified in Paragraphs 5 through 9 herein.

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Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 8 of 19

16. The Parties acknowledge and agree that the releases set forth in Paragraphs ] 3 and 15 above include known and unknown claims.
]7. This Stipulation and Order represents a negotiated settlement of any potential or disputed claims, and the Parties expressly deny any liability for any claims or defenses against each other. The execution ofthis Stipulation and Or~er shall not be construed as an admission on the part of any of the Parties in any respect.
18. This Stipulation and Order shall be binding upon and inure to the benefit of the parties and their principals, agents, representatives, heirs, successors, and assigns.
19. This Stipulation and Order and any claim or dispute arising out of, or relating to, this Stipulation and Order shall be governed by and construed in accordance with the laws of the United States, or, to the extent state law applies, the State of New York, without regard to conflict of law principles.
20. Each Party or representative of a Party hereby warrants that itlhe/she has full authority to execute this Stipulation and Order and the releases provided for herein and to bind the persons on whose behalf they are signing to the terms of the Stipulation. Plaintiffs' signatures to this agreement are attached as Exhibit A.
21. . This Stipulation and Order contains the entire agreement among the Parties and cannot be modified except by a writing signed by the Parties. This Stipulation and Order embodies the complete agreement and understanding among the Parties and supersedes and preempts any prior agreements and understandings concerning the subject matter hereof.
22. The Parties have carefully read this Stipulation and Order, know its contents, and freely and voluntarily agree to an of its terms and conditions, and have freely and voluntarily affixed their signatures hereto with full and complete authority to do so. Each Party

-page 8oft 1-

07 elv. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 9 of 19

acknowledges that itlhe/she has been represented by independent legal counsel of its choice throughout all the negotiations that preceded the execution of this Stipulation and Order, and this Stipulation and Order has been executed with the consent and upon the advice of such independent legal counsel. Except as otherwise provided herein, none ofthe Parties nor their employees, agents or attorneys has made any representation to any other Party concerning this Stipulation and Order or the validity or merit of any of their claims, and none of the Parties is relying upon any such representation in executing this Stipulation and Order. The Parties acknowledge that they are acting upon their own best judgment, belief, and knowledge ofthe nature and validity of any and all claims or potential claims and advice of their own counsel in making this Stipulation and Order.
23. Because each Party and counsel for each Party has reviewed this Stipulation and Order and contributed to the drafting and/or approval of this StipUlation and Order, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation ofthis Stipulation and Order.
24. The fai1ure of the non-defaulting Party to declare a default upon a breach of this Stipulation and Order by the defaulting Party shall not constitute a waiver or estoppel with respect to such breaeh or default or any future breach andlor default.
25. This Stipulation and Order may be executed in counterparts and by facsimile or other form of optical transmission, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The effective date of this agreement shall be the date upon which the Court approves and enters the Stipulation and Order on the docket in Case No. 07 Civ. 8224 (KBF) (S.D.N.Y.). Ifthe Stipulation and Order is not approved and entered by the Court, it shall be null and void, without force and effect.

- page 9of 11 -

07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 10 of 19
26. If there is a change in the Jaw that affects any Plaintiff, nothing in this Stipulation and Order prevents him or her from applying for any status for which helshe would otherwise be eligible.
27. Nothing in this Stipulation and Order shaH be construed as a concession of removability or alienage by any Plaintiff. This Stipulation and Order does not affect the ability of any Plaintiffto present himself or herself for entry or admission into the United States. or to adjust or regularize his or her status, subsequent to the date ofthis Stipulation and Order, so long as he or she is authorized to do so under applicable United States law.
28. Each party shaH destroy within thirty (30) days of the Payment date all confidential and highly confidential (attorneys eyes only) documents produced in this Action by the opposing party.

page 10 ofll -

07 Civ. 8224 (KBJi')

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 11 of 19

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Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 12 of 19
EXHIBIT A 

07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 13 of 19

Adriana

P laintif.{.

thi~ .
Executed

~
day of G'\'I:{(,.L ,20] 3

Andres Leon
Plaintiff

Elena Leon

Plaintif!

c1 , J(..
Executed this't.. day of

NcJ...~ 2013

Erika Gabriela Garcia-Leon Plaintif!

Executed this _ day _ _ _,2013

...

Carson Agui • by his Next Friend Adriana Leon Aguilar

Plaintif!

Executed

1r~'"
this·Lb. day

of rA~ . , l

2013

~~.:~
Nelly Amaya . Plaintif!
1" Executed this day of ~. 2013

07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 14 of 19

Adriana Leon Agui lar Pla/ntl/!
Bxecuted this _ day of

.2013

Andres Leon Plalnll.!!
Executed this _ day of

.2013

Elena Leon. Plaintiff

Executed this _ day of

~ 2013

tl& f2~

Erika Gabriela Garcia-Leon

Plaintiff

2D~Y Exeoutod this

of

t1 «"6~2013

Carson Aguilar, by his Next Friend Adriana Leon Aguilar Plaintiff

Executed this _ day of

.2013

Nelly Amaya Plaintiff
Executed this _ day of

,2013

07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 15 of 19

WillctAf L~o, rtJ
William Lazaro (Melchor) Plaintiff.

L Executed this JY day off),.~,.~.\ 2013

.

. t apo ..s ~ 0.):<:'1' A·YQ..lI)d ~

h

Tarcis Sapon-Diaz

Plain/fir

Execut~d thist day Of~, 2013

D\ Cl1..

C9 0 1)2ql(I l'So c Cc Iqtt!t.

GonzaJo Escalante

Plaintiff

t ¥ , Executed this day of

2013

]{~'~r LcoV\GL. eCn4'A Wrous.
Victor Pineda Morales Plain/fIT
Executed this!day of~, 2013

1II fin Jose )\I\,J Q1l8 ~
Juan Jose Mijaligos

Plain/iff

t= ¥, ~

Executed this day of

2013

07 Civ. 8224 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 16 of 19

elagia De la Rosa-Delgaao) Plaintiff
d Executed thisSI~( day of OP- ,2013
4~enez Anthony .
Plaintiff
Executed this ~{ day of ~(vLL, 2013

nt - 0 f - ' 77 t t
Executed this tYday of \'i) o..d.A, 2013

Plaintiff

~ Executed this \sv-day of

2013

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 17 of 19

sonl f± £:2 0 n,~ IItJL
Sonia Bonilla Plaintiff
Executed this ~day of (Yl ~ ,2013
~vWcA-~ J.0
 Beatriz elasquez,FF4@RQ ~9Rla ROlHl
Plaintiff
Executed thiS~ day of ('\~ ,2013

DC V\ rfl f6 0 IV\,' I(}.

Dalia Velasquez, by her Next Friend Sonia Bonilla

Plaintiff

r r'l $(
Executed this day of

oJ... ,2013

o~« .- f3(fIAA~
Elder Bonilla Plaintiff
t M Executed this day of IAJ()v., 2013

Diana Rodriguez Plaintiff
Executed this [day of Mo.."c,L.2013

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 18 of 19 07 Civ. 8124 (KBF)

Case 1:07-cv-08224-KBF Document 426 Filed 04/04/13 Page 19 of 19
"': '

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 Contacts: John Garcia, PRLDEF, 212-739-7513 and Angelo Kakolyris, LLGM, (212) 424- 8187
Latinos Challenge Constitutionality of Home Raids Conducted By ICE
Lawsuit alleges unlawful entry, illegal detainment and abusive treatment of Latinos by the Immigration and Customs Enforcement Division's New York Regional Office
NEW YORK, NY – September 20, 2007 – Several Latino families and individuals filed a class action suit today against the Immigration and Customs Enforcement (ICE) division of the U.S. Department of Homeland Security charging that its agents unlawfully break into and enter the homes of Latinos in the New York area without judicially issued warrants or other legal justification. The complaint describes armed ICE agents breaking down doors or forcing their way into Latino households in the pre-dawn hours and awakening and terrifying children and adults alike, often looking for individuals who do not even reside in the home.
The Plaintiffs, all Latinos whose homes have been raided this year, are represented by the Puerto Rican Legal Defense and Education Fund (PRLDEF) and the international law firm of LeBoeuf, Lamb, Greene & MacRae LLP.
Plaintiffs allege that their homes were raided in the pre-dawn hours by teams of armed ICE agents who stormed their homes, abruptly roused sleeping family members (including young children), and detained and interrogated them without the benefit of legal representation, sometimes forcing them to answer questions without allowing them to get dressed. None of the Plaintiffs were ever shown a warrant though several demanded to see one. The lawsuit claims that the home raids trample on Fourth Amendment rights and leave a trail of harm affecting not only undocumented members of our society, but also U.S. citizens and legal permanent residents.
"The complaint describes how ICE agents entered these homes without judicially ordered warrants or consent, conducted unlawful searches, illegally detained family members and, in some cases, physically abused the victims," said Cesar Perales, PRLDEF President and General Counsel. "No family in this country should be forced to endure such treatment."
The lawsuit seeks damages and an injunction restraining ICE's New York Regional Office from conducting home raids until appropriate procedures are established to assure that the raids will be performed in a manner that protects constitutional and civil rights.
"The Fourth Amendment guarantees to each of us the sanctity and dignity of our homes," said Patrick J. Gennardo, a partner at LeBoeuf Lamb and co-lead counsel for the Plaintiffs. "When we go to bed at night, we should rest assured that our children will not be wrested from their sleep by armed government officials acting without a judicially ordered warrant. Like all government actors, ICE must pursue its mission within the bounds of constitutional protections."

Copies of the complaint are available online at www.prldef.org. ###

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:07-cv-08224-KBF

Aguilar et al v. Immigration and Customs Enforcement Date Filed: 09/20/2007

Division of the United States of America Department of Date Terminated: 11/15/2012

Homeland Security

Jury Demand: Plaintiff

Assigned to: Judge Katherine B. Forrest

Nature of Suit: 440 Civil Rights:

Cause: 28:2201dj Declaratory Judgment

Other

Jurisdiction: U.S. Government

Defendant

Special Master Richard J. Davis

represented by Richard J. Davis Weil, Gotshal & Manges LLP (NYC) 767 Fifth Avenue New York, NY 10153 (212) 310-8000 Fax: (212) 833-3148 Email: Richard.Davis@rjdavislaw.com ATTORNEY TO BE NOTICED

Plaintiff Adriana Aguilar

represented by Colin Gregory Stewart Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (212)-424-8434 Fax: (212)-649-1184 Email: cstewart@post.harvard.edu TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donna Lynn Gordon Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (212)-424-8191 Fax: (212)-649-0919 Email: dlgordon@dl.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer Latino Justice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 (212)-739-7507 Fax: (212)-431-4276 Email: foster_maer@prldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz Latino Justice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 (212) 739-7504 Fax: (212) 431-4276 Email: gschwarz@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin Latino Justice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 (212)-739-7572 Fax: (212)-431-4276 Email: jchin@latinojustice.org TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (212) 259-8000 Fax: 212-649-0938 Email: ktsai@crowell.com TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo Dentons US LLP (NY) 1221 Avenue of the Americas

New York, NY 10020 (212) 308-4411 Fax: (212) 308-4844 Email: patrick.gennardo@alston.com TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand Dewey & LeBoeuf, LLP (CA) 1950 University Avenue Suite 500 East Palo Alto, CA 94303 (650) 845-7041 Fax: (650) 845-7333 Email: ahand@bdiplaw.com TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini Winston & Strawn LLP (NY) 200 Park Avenue New York, NY 10166 (212) 294-4601 Fax: (212) 294-4700 Email: abadini@winston.com ATTORNEY TO BE NOTICED
Christina Iturralde Latinojustice Prldef 99 Hudson Street New York, NY 10013 (212)-739-7510 Fax: (212)-431-4276 Email: citurralde@latinojustice.org TERMINATED: 12/05/2011
Diana Hughes Leiden Winston & Strawn LLP 101 California Street, Suite 3900 San Francisco, CA 94111 (415)-591-1000 Fax: (415)-591-1400 Email: dhughes@winston.com PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth Joynes Jordan Latino Justice Prldef 99 Hudson Street New York, NY 10013 (212)-739-7583 Fax: (212)-431-4276 Email: elizabeth.joynes@maketheroadny.org ATTORNEY TO BE NOTICED
George Eric Mastoris Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (212) 259-6827 Fax: (212) 259-6333 Email: gmastoris@winston.com ATTORNEY TO BE NOTICED
Ilona Beth Coleman Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (202)-276-0983 Fax: (212) 373 7699 Email: ilona.coleman@gmail.com TERMINATED: 09/26/2011
Jennifer Marie Opheim Winston & Strawn LLP (NY) 200 Park Avenue New York, NY 10166 (212)-294-4688 Fax: (212)-294-4700 Email: jennifer.opheim@srz.com ATTORNEY TO BE NOTICED
Kelly Anne Librera Winston & Strawn LLP (NY) 200 Park Avenue New York, NY 10166 (212)-294-4622 Fax: (212)-294-4700 Email: klibrera@winston.com ATTORNEY TO BE NOTICED

Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis Arent Fox LLP (NYC) 1301 Avenue of Americas, Floor 42 New York, NY 10019 (212)-484-3900 Fax: (212)-484-3990 Email: ellis.krista@arentfox.com TERMINATED: 10/19/2011
Lawrence Steven Hirsh Dewey & LeBouef,LLP(AveAmericas) 1301 Avenue of the Americas New York, NY 10019 (212) 259-8000 Fax: (212) 259-8500 Email: lhirsh@robinsonbrog.com ATTORNEY TO BE NOTICED
Rebecca Marie Reilly 200 Vesey street New York, NY 10281 212-336-0051 Email: reillyre@sec.gov TERMINATED: 10/19/2011
Richard J. Cairns Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (212) 424-8000 Fax: (212) 649-9347 Email: rcairns@dl.com TERMINATED: 01/30/2009
Urvashi Sen Dewey & LeBoeuf, L.L.P.(NYC) 1301 Avenue of the Americas New York, NY 10019 (212)-259-7133 Fax: (212)-259-6333 Email: urvashisen@gmail.com

Plaintiff Andres Leon

TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini

(See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly

Plaintiff Elena Leon

(See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009

LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis

Plaintiff
Erika Gabriela Garcia Leon through her Next Friend Adriana Aguilar

(See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Carson Aguilar through his next friend Aguilar

Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman

Plaintiff Nelly Amaya

(See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address)

Plaintiff Mario Patzan DeLeon

ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED

Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009

Plaintiff David Lazaro Perez

Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) TERMINATED: 12/27/2012 LEAD ATTORNEY
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini

(See above for address) TERMINATED: 12/27/2012
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) TERMINATED: 12/27/2012
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly

Plaintiff
John Doe #1 TERMINATED: 12/21/2009

(See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address)

Plaintiff

TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012

John Doe #2 through his next friend Jane Doe #1 TERMINATED: 12/21/2009

represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED

Plaintiff
John Doe #3 through his next friend Jane Doe #1 TERMINATED: 12/21/2009

Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai

Plaintiff
John Doe #5 on behalf of themselves and all others similarly situated TERMINATED: 12/21/2009

(See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY

Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address)

Plaintiff
Jane Doe #1 TERMINATED: 12/21/2009

TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012

Plaintiff William Lazaro

PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011 ATTORNEY TO BE NOTICED
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address)

Plaintiff Tarcis Sapon-Diaz

TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011

ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011 ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly

Plaintiff Elder Bonilla

(See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE

Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011

Plaintiff Diana Rodriguez

Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address)

TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yoni Revolorio

Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY

Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011

Plaintiff Juan Jose Mijangos

Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris

Plaintiff Gonzalo Escalante

(See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster S. Maer

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yanet Martinez

George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Foster S. Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Jennifer Marie Opheim

Plaintiff
Gloria Vanessa Amaya TERMINATED: 12/27/2012

(See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Donna Lynn Gordon (See above for address) LEAD ATTORNEY
Foster S. Maer (See above for address) LEAD ATTORNEY
Ghita Schwarz (See above for address) LEAD ATTORNEY
Jackson Chin (See above for address)

TERMINATED: 05/17/2012 LEAD ATTORNEY
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011 LEAD ATTORNEY
Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address)
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009
Elizabeth Joynes Jordan (See above for address)
George Eric Mastoris (See above for address)
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jennifer Marie Opheim (See above for address)
Kelly Anne Librera (See above for address)
Kelly Hsiao-I Tsai

Plaintiff Sonia Bonilla

(See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address)
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED

Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011

Plaintiff
Dalia Velasquez through her next friend Sonia Bonilla

Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address)

Plaintiff
Beatriz Velasquez through her next friend Sonia Bonilla

TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011

Plaintiff Victor Pineda Morales

Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address)

Plaintiff
Raul Amaya TERMINATED: 12/27/2012

ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address)
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address)
Elizabeth Joynes Jordan (See above for address)
Foster S. Maer (See above for address)

Plaintiff Pelagia De La Rosa-Delgado

George Eric Mastoris (See above for address)
Ghita Schwarz (See above for address)
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address)
Kelly Anne Librera (See above for address)
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address)
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address)

TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Doe #4 TERMINATED: 12/21/2009

Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY

Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) TERMINATED: 05/17/2012 ATTORNEY TO BE NOTICED
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address)

Plaintiff Anthony Jimenez

TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011

Plaintiff
Christopher Jimenez through his Next Friend Pelagia De La Rosa-Delgado

Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donna Lynn Gordon (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address)

Plaintiff
Bryan Jimenez through his next friend Pelagia De La Rosa-Delgado on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Patrick Joseph Gennardo (See above for address) TERMINATED: 01/30/2009 LEAD ATTORNEY
Aaron Richard Hand (See above for address) TERMINATED: 08/09/2012 PRO HAC VICE
Aldo A Badini (See above for address) ATTORNEY TO BE NOTICED
Christina Iturralde (See above for address) TERMINATED: 12/05/2011 ATTORNEY TO BE NOTICED
Colin Gregory Stewart (See above for address) TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Diana Hughes Leiden (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Donna Lynn Gordon (See above for address)

ATTORNEY TO BE NOTICED
Elizabeth Joynes Jordan (See above for address) ATTORNEY TO BE NOTICED
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
George Eric Mastoris (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) ATTORNEY TO BE NOTICED
Ilona Beth Coleman (See above for address) TERMINATED: 09/26/2011
Jackson Chin (See above for address) TERMINATED: 05/17/2012
Jennifer Marie Opheim (See above for address) ATTORNEY TO BE NOTICED
Kelly Anne Librera (See above for address) ATTORNEY TO BE NOTICED
Kelly Hsiao-I Tsai (See above for address) TERMINATED: 11/30/2011
Krista Marie Ellis (See above for address) TERMINATED: 10/19/2011
Lawrence Steven Hirsh (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security

Rebecca Marie Reilly (See above for address) TERMINATED: 10/19/2011
Richard J. Cairns (See above for address) TERMINATED: 01/30/2009
Urvashi Sen (See above for address) TERMINATED: 05/11/2012
represented by Elizabeth Wolstein Schlam Stone & Dolan LLP 26 Broadway New York, NY 10004 (212) 344-5400 Fax: (212) 344-7677 Email: ewolstein@schlamstone.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lara K. Eshkenazi U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212-637-2758 Fax: 212-637-2730 Email: Lara.Eshkenazi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis Anthony Pellegrino U.S. Attorney Office SDNY 86 Chambers Street New York, NY 10007 (212) 637-2689 Fax: (212) 637-2686 Email: louis.pellegrino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Julie L. Myers Assistant Secretary of Homeland Security for Immigration and Customs Enforcement

Brandon Herbert Cowart U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212) 637-2693 Fax: (212) 637-0032 Email: brandon.cowart@usdoj.gov ATTORNEY TO BE NOTICED
David Vincent Bober U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 212 637-2718 Fax: 212 637-2786 Email: david.bober@usdoj.gov ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)-637-2822 Fax: (212)-637-2730 Email: kristin.vassallo@usdoj.gov ATTORNEY TO BE NOTICED
Shane Patrick Cargo U.S. Attorney Office SDNY 86 Chambers Street New York, NY 10007 (212) 637-2711 Fax: (212) 637-2786 Email: shane.cargo@usdoj.gov ATTORNEY TO BE NOTICED
represented by Elizabeth Wolstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lara K. Eshkenazi (See above for address)

Defendant
John P. Torres Director of the office of Detention and Removal Operations, Immigration and Customs Enforcement

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Wolstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED

Defendant Christopher Shanahan New York Feild Office Director for Detention and Removal Operations
Defendant John Doe ICE Agents #1-30 TERMINATED: 12/21/2009
Defendant Jane Doe ICE Agents # 1-30 TERMINATED: 12/21/2009

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

Defendant Michael Chertoff
Defendant Peter J. Smith

represented by Elizabeth Wolstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED

Defendant Joseph A. Palmese
Defendant Jane Roe Ice Supervisors TERMINATED: 03/06/2009

Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo

Defendant John Roe TERMINATED: 03/06/2009
Defendant Darren Williams
Defendant

(See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Knopf
Defendant Jane and John Doe Defendants #1-52 sued in their individual capacities and in their official capacities as agents and/or supervisors of ICE
Defendant John and Jane Doe ICE Agents

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address)

Defendant ICE 12 TERMINATED: 12/21/2009
Defendant ICE 24 TERMINATED: 12/21/2009

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Wolstein (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address)

Defendant ICE 28 TERMINATED: 12/21/2009
Defendant ICE 19 TERMINATED: 12/21/2009
Defendant ICE 48 TERMINATED: 03/06/2009

ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
Kristin Lynn Vassallo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart

Defendant ICE 26 TERMINATED: 12/21/2009
Defendant ICE 21 TERMINATED: 12/21/2009
Defendant ICE 23 TERMINATED: 12/21/2009

(See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED

Defendant ICE 20 TERMINATED: 12/21/2009
Defendant ICE 30 TERMINATED: 12/21/2009
Defendant ICE 25 TERMINATED: 12/21/2009

David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

Defendant ICE 13 TERMINATED: 12/21/2009
Defendant ICE 22 TERMINATED: 12/21/2009
Defendant ICE 17 TERMINATED: 12/21/2009
Defendant

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

ICE 27 TERMINATED: 12/21/2009
Defendant ICE 3 TERMINATED: 12/21/2009
Defendant ICE 11 TERMINATED: 12/21/2009
Defendant ICE 38 TERMINATED: 03/06/2009

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY

Defendant ICE 40 TERMINATED: 03/06/2009
Defendant ICE 50 TERMINATED: 03/06/2009
Defendant ICE 52 TERMINATED: 03/06/2009

ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart

Defendant ICE 2 TERMINATED: 12/21/2009
Defendant ICE 16 TERMINATED: 12/21/2009
Defendant ICE 39 TERMINATED: 03/06/2009

(See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED

Defendant ICE 41 TERMINATED: 03/06/2009
Defendant ICE 1 TERMINATED: 12/21/2009
Defendant ICE 10 TERMINATED: 12/21/2009

David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

Defendant ICE 18 TERMINATED: 12/21/2009
Defendant ICE 31 TERMINATED: 12/21/2009
Defendant ICE 42 TERMINATED: 03/06/2009
Defendant

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

ICE 47 TERMINATED: 03/06/2009
Defendant ICE 7 TERMINATED: 03/06/2009
Defendant ICE 14 TERMINATED: 12/21/2009
Defendant ICE 15 TERMINATED: 12/21/2009

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY

Defendant ICE 33 TERMINATED: 03/06/2009
Defendant John Roe and Jane Roe ICE Supervisors Defendant The United States of America
Defendant

ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Shane Patrick Cargo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

ICE 29 TERMINATED: 12/21/2009
Defendant Janet Napolitano United States Secreteary of the Department of Homeland Security
Defendant John Morton Assistant Secretary of Homeland Security for Immigration and Customs Enforcement
Defendant David J. Venturella Acting Director of the Office of Detention and Removal Operations, Immigration and Customs Enforcement
Defendant Marcy Forman Former Director of the Office of

represented by Shane Patrick Cargo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by David Vincent Bober (See above for address) LEAD ATTORNEY

Investigations, Immigration and Customs Enforcement
Defendant Kumar Kibble Acting Director of the Office of Investigation, Immigration and Customs Enforcement
Defendant ICE 58
Defendant ICE 59
ADR Provider ICE 32 TERMINATED: 03/06/2009

ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
Shane Patrick Cargo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ADR Provider ICE 8 TERMINATED: 03/06/2009
ADR Provider ICE 35 TERMINATED: 03/06/2009
ADR Provider ICE 45 TERMINATED: 03/06/2009

Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED

ADR Provider ICE 9 TERMINATED: 03/06/2009
ADR Provider ICE 34 TERMINATED: 03/06/2009
ADR Provider ICE 37 TERMINATED: 03/06/2009

David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober

ADR Provider ICE 44 TERMINATED: 03/06/2009
ADR Provider ICE 4 TERMINATED: 03/06/2009
ADR Provider ICE 36 TERMINATED: 03/06/2009

(See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

ADR Provider ICE 5 TERMINATED: 03/06/2009
ADR Provider ICE 6 TERMINATED: 03/06/2009
ADR Provider ICE 43 TERMINATED: 03/06/2009
ADR Provider

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

ICE 46 TERMINATED: 03/06/2009
ADR Provider ICE 49 TERMINATED: 03/06/2009
ADR Provider ICE 51 TERMINATED: 03/06/2009

represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED
represented by Lara K. Eshkenazi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Herbert Cowart (See above for address) ATTORNEY TO BE NOTICED
David Vincent Bober (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

09/20/2007
09/20/2007 09/20/2007 09/20/2007 10/01/2007
10/03/2007 10/04/2007

1 COMPLAINT against Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, John P. Torres, Christopher Shanahan, John Doe, Jane Doe. (Filing Fee $ 350.00, Receipt Number 627500)Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1).(jpo) Additional attachment(s) added on 9/24/2007 (Becerra, Maribel). (Entered: 09/21/2007)
SUMMONS ISSUED as to Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, John Doe, Jane Doe, U.S. Attorney and U.S. Attorney General. (jpo) (Entered: 09/21/2007)
Magistrate Judge Frank Maas is so designated. (jpo) (Entered: 09/21/2007)
Case Designated ECF. (jpo) (Entered: 09/21/2007)
2 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Cairns, Richard) (Entered: 10/01/2007)
3 NOTICE OF CHANGE OF ADDRESS by Richard J. Cairns on behalf of all plaintiffs. New Address: Dewey & LeBoeuf LLP, 125 West 55th Street, New York, New York, 10019, 212-424-8000. (Cairns, Richard) (Entered: 10/03/2007)
6 AMENDED COMPLAINT amending 1 Complaint, against Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Jane Roe, John Roe, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, John Doe, Jane Doe. Document filed by William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, John Doe(#5 on behalf of themselves and all others similarly situated), John Doe, Andres Leon, Jane Doe, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez,

10/04/2007 10/05/2007 10/05/2007 10/09/2007

John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). Related document: 1 Complaint,, filed by David Lazaro Perez, Nelly Amaya, Andriana Aguilar, Mario Patzan DeLeon, Carson Aguilar, Andres Leon, John Doe, Erika Gabriela Garcia Leon, Elena Leon. (jco) Additional attachment(s) added on 10/9/2007 (Correa, Julie). (Entered: 10/09/2007)
***NOTE TO ATTORNEY TO E-MAIL PDF. Note to Attorney Donna Gordon for noncompliance with Section (3) of the S.D.N.Y. 3rd Amended Instructions For Filing An Electronic Case or Appeal and Section 1(d) of the S.D.N.Y. Procedures For Electronic Case Filing. EMAIL the PDF for Document 6 Amended Complaint, to: case_openings@nysd.uscourts.gov. (jco) (Entered: 10/09/2007)
4 AFFIDAVIT OF SERVICE of Summons and Amended Class Action Complaint served on Michael Chertoff, United States Secretary of the Dept. of Homeland Security, Peter J. Smith and Joseph A. Palmese on 10/04/2007. Service was made by MAIL. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Cairns, Richard) (Entered: 10/05/2007)
5 AFFIDAVIT OF SERVICE of Amended Class Action Complaint served on Immigration and Customs Enforcement Division of the U.S. Dept. of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan on 10/04/2007. Service was made by MAIL. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Cairns, Richard) (Entered: 10/05/2007)
7 ENDORSED LETTER addressed to Judge John G. Koeltl from Colin G. Stewart dated 10/9/07 re: Counsel for plaintiffs request an expansion on the number of pages imposed by Rule 2(c) of Your Honor's Individual practices for reply briefs. Given the complexities and the number of issues presented by the combined motions (for a TRO and expedited discovery), Plaintiffs request permission to submit a 15-page reply memorandum. ENDORSEMENT: Application GRANTED. So Ordered. (Signed by Judge John G. Koeltl on 10/9/07) (js) (Entered: 10/09/2007)

10/10/2007 10/18/2007 10/22/2007 10/22/2007 10/22/2007

8 ORDER that the applications for a temporary restraining order and expedited discovery are denied without prejudice to renewal. (Signed by Judge John G. Koeltl on 10/9/07) (cd) (Entered: 10/10/2007)
9 ENDORSED LETTER addressed to Judge John G. Koeltl from Elizabeth Wolstein dated 10/17/2007 re: we write respectfully in response to plaintiffs' order to show cause seeking to conduct expedited discovery in connection with above-reference action, which asserts claims for injunctive relief and damages based on the alleged violation of plaintiffs' Fourth Amendment rights. ENDORSEMENT: The Court has scheduled a conference on this order to show cause for Monday, October 22, 2007 at 4:30 p.m. The Government can argue at that time whether the response to the order to show cause should be coordinated with the motion to dismiss. SO ORDERED. Show Cause Hearing set for 10/22/2007 at 04:30 PM before Judge John G. Koeltl (Signed by Judge John G. Koeltl on 10/16/2007) (jmi) (Entered: 10/19/2007)
10 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,. Peter J. Smith served on 10/17/2007, answer due 11/6/2007. Service was accepted by John Gibbs, Authorized Recipient. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); John P. Torres; Andres Leon; Jane Doe; William Lazaro; Tarcis SaponDiaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Cairns, Richard) (Entered: 10/22/2007)
11 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,. Joseph A. Palmese served on 10/17/2007, answer due 11/6/2007. Service was accepted by John Gibbs, Authorized Recipient. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Cairns, Richard) (Entered: 10/22/2007)
12 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,. Christopher Shanahan served on 10/9/2007, answer due 10/29/2007. Service was accepted by Patricia Green, Authorized Recipient.

10/24/2007 11/06/2007 11/06/2007 11/06/2007 11/07/2007
11/09/2007 11/13/2007
11/14/2007

Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Cairns, Richard) (Entered: 10/22/2007)
13 TRANSCRIPT of proceedings held on 10/5/07 before Judge John G. Koeltl. (jbe) (Entered: 10/24/2007)
14 TRANSCRIPT of proceedings held on 10/22/07 before Judge John G. Koeltl. (es) (Entered: 11/06/2007)
15 TRANSCRIPT of proceedings held on 10/9/07n @ 4:30pm before Judge John G. Koeltl. (pr) (Entered: 11/06/2007)
16 TRANSCRIPT of proceedings held on 10/9/07 @ 4:30pm before Judge John G. Koeltl. (pr) (Entered: 11/06/2007)
17 ORDER: Not having heard from the parties, the Court directs that the government may submit its response to the order to show cause for expedited discovery on the same date as the government's motion to dismiss, due on 11/16/07. Show Cause Response due by 11/16/2007. (Signed by Judge John G. Koeltl on 11/6/07) (db) (Entered: 11/08/2007)
18 TRANSCRIPT of proceedings held on 10/22/07 before Judge John G. Koeltl. (kco) (Entered: 11/09/2007)
20 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo dated 11/9/07 re: Accordingly, the parties request that the Court approve the following briefing schedule governing ICE's partial motion to dismiss: Last day that ICE's partial motion to dismiss may be served by 12/7/07. Last day that plaintiffs' opposition to ICE's motion may be served by 1/18/08. Last day that ICE's reply if any, may be served by 2/8/08. ENDORSEMENT: Application GRANTED. So Ordered. (Signed by Judge John G. Koeltl on 11/9/07) (js) (Entered: 11/15/2007)
19 CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material....ENDORSEMENT: This order is not binding on the Court to Court, the Court can modify this order at any time. SO ORDERED (Signed by Judge John G. Koeltl on 11/9/07) (kco) (Entered: 11/14/2007)

12/07/2007 12/07/2007 12/07/2007 12/07/2007 12/07/2007
12/07/2007 12/07/2007

21 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo and Elizabeth Wolstein dated 12/6/07 re: counsel requests permission to file an oversized brief of no more than 48 pages in support of the Govenrment's partial motion to dismiss plaintiffs' amended complaint. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge John G. Koeltl on 12/7/07) (djc) (Entered: 12/07/2007)
22 MOTION to Dismiss First Claim of Amended Complaint. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Michael Chertoff. Responses due by 1/18/2008(Wolstein, Elizabeth) (Entered: 12/07/2007)
23 DECLARATION of Jeffrey Knopf in Support re: 22 MOTION to Dismiss First Claim of Amended Complaint.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Michael Chertoff. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Wolstein, Elizabeth) (Entered: 12/07/2007)
24 DECLARATION of Darren Williams in Support re: 22 MOTION to Dismiss First Claim of Amended Complaint.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Michael Chertoff. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolstein, Elizabeth) (Entered: 12/07/2007)
25 DECLARATION of Elizabeth Wolstein in Support re: 22 MOTION to Dismiss First Claim of Amended Complaint.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Michael Chertoff. (Attachments: # 1 Exhibit A, part 1, # 2 Exhibit A, part 2, # 3 Exhibit B, # 4 Exhibit C, part 1, # 5 Exhibit C, part 2, # 6 Exhibit D, # 7 Exhibit E)(Wolstein, Elizabeth) (Entered: 12/07/2007)
26 MEMORANDUM OF LAW in Support re: 22 MOTION to Dismiss First Claim of Amended Complaint.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Michael Chertoff. (Wolstein, Elizabeth) (Entered: 12/07/2007)
27 ENDORSED LETTER addressed to Judge John G. Koeltl from Donna L. Gordon dated 12/7/07 re: Counsel for plaintiff write with regard to the Government's request to file an over-length brief in support of its partial motion to dismiss and its motion seeking a limited stay of

12/11/2007 01/30/2008 02/08/2008
02/21/2008 03/06/2008 05/30/2008

discovery. While plaintiffs do not oppose the Government's request to file a brief over the Court's page limits in support of its motions, if the Government's request is granted Plaintiff requests the same courtesy with regard to their opposition papers. ENDORSEMENT: The plaintiffs can have an equal number of pages and respond. So Ordered. (Signed by Judge John G. Koeltl on 12/7/07) (js) (Entered: 12/10/2007)
28 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo dated 12/10/2007 re: request that the three individual capacity defendants, C. Shanahan, P. Smith, and J. Palmese have until 1/18/2008 to serve their answers to plaintiffs' amended complaint. ENDORSEMENT: Application granted. (Signed by Judge John G. Koeltl on 12/10/2007) (jar) (Entered: 12/11/2007)
29 DISCOVERY PLAN AND SCHEDULING ORDER: Fact Discovery due by 11/3/08. Expert Discovery due by 1/30/2009. Summary Judgment Motions due by 2/27/2009. Responses due by 3/27/2009, Replies due by 4/10/2009. Ready for Trial by 6/1/2009. (Signed by Judge John G. Koeltl on 1/29/08) (tro) (Entered: 01/30/2008)
30 NOTICE OF CHANGE OF ADDRESS by Patrick Joseph Gennardo on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). New Address: Dewey & LeBoeuf LLP, 1301 Avenue of the Americas, New York, New York, USA 10019, 212 259-8000. (Gennardo, Patrick) (Entered: 02/08/2008)
31 TRANSCRIPT of proceedings held on 1/15/08 before Judge John G. Koeltl. (jbe) (Entered: 02/21/2008)
32 PRIVACY ACT ORDER...regarding procedures to be followed that shall govern the handling of confidential material....Any records pertaining to individuals other than the named plaintiffs in this action shall be protected under the Confidentiality Order, subject to any further ruling by this Court. (Signed by Judge John G. Koeltl on 3/6/08) (tro) (Entered: 03/06/2008)
33 SECOND AMENDED COMPLAINT amending 6 Amended Complaint,,,, against Darren Williams, Jeffrey Knopf, Jane and John Doe Defendants #1-52, John and Jane Doe ICE Agents, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres,

06/10/2008 06/24/2008

Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Jane Roe, John Roe.Document filed by Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). Related document: 6 Amended Complaint,,,, filed by David Lazaro Perez, Andriana Aguilar, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Carson Aguilar, Gonzalo Escalante, Yanet Martinez, Yoni Revolorio.(dle) (Additional attachment(s) added on 6/5/2008: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (dle). (Entered: 06/02/2008)
34 AFFIDAVIT OF SERVICE. Document filed by Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#2 through his next friend Jane Doe #1). (Attachments: # 1 Supplemental Summons)(Gennardo, Patrick) (Entered: 06/10/2008)
35 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,,,. Christopher Shanahan served on 6/20/2008, answer due 7/10/2008; Peter J. Smith served on 6/20/2008, answer due 7/10/2008; Joseph A. Palmese served on 6/20/2008, answer due 7/10/2008. Service was accepted by Elizabeth Wolstein, Esq., Assistant United States Attorney. Document filed by Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La Rosa-Delgado; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya;

07/01/2008 07/01/2008
07/02/2008 07/02/2008

Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1). (Gennardo, Patrick) (Entered: 06/24/2008)
36 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non-Dispositive Motion/Dispute. Referred to Magistrate Judge Frank Maas and Magistrate Judge Frank Maas. (Signed by Judge John G. Koeltl on 6/30/08) (tro) (Entered: 07/01/2008)
37 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,,,. John and Jane Doe ICE Agents served on 6/27/2008, answer due 7/17/2008. Service was accepted by Vince Ramos, U.S. Immigration & Customs Enforcement Agent on behalf of defendants ICE 1, ICE 2, ICE 3, ICE 8, ICE 16, ICE 30, ICE 38, ICE 40, ICE 43, ICE 45, ICE 47, ICE 48, ICE 49, ICE 50, ICE 52. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La Rosa-Delgado; John Doe; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 07/01/2008)
38 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,,,. Jane and John Doe Defendants #1-52 served on 7/1/2008, answer due 7/21/2008. Service was accepted by Vince Ramos, U.S. Immigration & Customs Enforcement Agent on behalf of defendant ICE 18. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La Rosa-Delgado; John Doe; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 07/02/2008)
39 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,,,. Immigration and Customs Enforcement Division of the United States of

07/17/2008
07/17/2008 07/18/2008 07/18/2008

America Department of Homeland Security served on 7/1/2008, answer due 7/21/2008; Julie L. Myers served on 7/1/2008, answer due 7/21/2008; John P. Torres served on 7/1/2008, answer due 7/21/2008; Michael Chertoff served on 7/1/2008, answer due 7/21/2008. Service was accepted by Elizabeth Wolstein, Esq., Assistant United States Attorney on behalf of defendants Immigration and Customs Enforcement Division of the Department of Homeland Security, Michael Chertoff, Julie L. Myers and John P. Torres. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La Rosa-Delgado; John Doe; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 07/02/2008)
40 ORDER by 7/18/08, the US Attorney's Office shall file a notice of appearance on behalf of each defendant it represents; the US Attorney's Office shall answer the second amended complaint on behalf of at least three defendants per week, and as further set forth in this document. A further conference shall be held on 8/14/08, at 2:00 pm. ( Conference set for 8/14/2008 at 02:00 PM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 7/17/08) Copies sent by chambers.(cd) (Entered: 07/18/2008)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 7/17/2008. (pl) (Entered: 07/22/2008)
41 NOTICE OF APPEARANCE by Lara K. Eshkenazi on behalf of Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, John Doe, Jane Doe, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Jane Roe, John Roe, Darren Williams, Jeffrey Knopf, John and Jane Doe ICE Agents (Eshkenazi, Lara) (Entered: 07/18/2008)
42 NOTICE OF APPEARANCE by Shane Patrick Cargo on behalf of Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Jane Roe, John Roe, Darren Williams, Jeffrey Knopf, Jane

07/18/2008 07/23/2008 07/28/2008 07/28/2008 07/28/2008

and John Doe Defendants #1-52, John and Jane Doe ICE Agents (Cargo, Shane) (Entered: 07/18/2008)
43 NOTICE OF APPEARANCE by Elizabeth Wolstein on behalf of Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Darren Williams, Jeffrey Knopf, Jane and John Doe Defendants #1-52, John and Jane Doe ICE Agents (Wolstein, Elizabeth) (Entered: 07/18/2008)
44 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, nondispositive pretrial motions, and settlement). Referred to Magistrate Judge Frank Maas. (Signed by Judge John G. Koeltl on 7/22/2008) (jfe) (Entered: 07/23/2008)
45 ANSWER to Amended Complaint. Document filed by ICE 12. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 07/28/2008)
46 ANSWER to Amended Complaint. Document filed by ICE 24. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 07/28/2008)
47 ANSWER to Amended Complaint. Document filed by ICE 28. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly

07/28/2008 07/31/2008 07/31/2008 08/01/2008
08/01/2008

Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 07/28/2008)
48 NOTICE OF APPEARANCE by Kristin Lynn Vassallo on behalf of Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Darren Williams, Jeffrey Knopf, ICE 12, ICE 24, ICE 28 (Vassallo, Kristin) (Entered: 07/28/2008)
49 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Shane Cargo, Lara K. Eshkenazi, Kristin L. Vassallo and Elizabeth Wolstein dated 7/30/2008 re: Counsel writes on behalf of defendants to in form the Court that if the Court wishes they will produce unredacted copies of the portions of the ICE policy manual for in camera review. ENDORSEMENT: In light of this letter, I see no need for in camera review. (Signed by Magistrate Judge Frank Maas on 7/30/2008) (tve) (Entered: 07/31/2008)
50 ORDER In light of the second amended complaint filed by the plaintiffs on May 30, 2008, the Governments motion to dismiss first claim of amended complaint is denied without prejudice as moot. The clerk of the court is therefore directed to close docket no. 22.. (Signed by Judge John G. Koeltl on 7/30/08) (mme) (Entered: 07/31/2008)
51 ANSWER to Amended Complaint. Document filed by ICE 19. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/01/2008)
52 ANSWER to Amended Complaint. Document filed by ICE 48. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo

08/01/2008 08/04/2008 08/04/2008 08/07/2008

Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/01/2008)
53 ANSWER to Amended Complaint. Document filed by ICE 26. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/01/2008)
54 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Elizabeth Wolstein dated 7/31/08 re: Counsel request a two-week extension, until 8/14/08, of defendants' time to complete their hardcopy production of documents responsive to plaintiffs' document requests. ENDORSEMENT: The deadline is extended to 8/12/08 to permit opposing counsel to have some opportunity to review the additional documents before the 8/14/08 conference. (Signed by Magistrate Judge Frank Maas on 8/4/08) (tro) (Entered: 08/05/2008)
55 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna L. Gordon dated 8/4/08 re: Counsel for Plaintiffs request that ICE be required to re-review all portions of manuals that have been (or will be) withheld or redacted to ensure that Plaintiffs receive complete copies of all chapters that contain any information responsive to their document requests. ENDORSEMENT: I assume that representatives of the United States Attorney's Office have reviewed with representatives of ICE their mutual discovery obligations. Accordingly, at this juncture, I decline to order the defendants to "re-review" anything. All future letters to the Court must comply with Local Civil Rule 11.2. (Signed by Magistrate Judge Frank Maas on 8/4/08) (tro) (Entered: 08/05/2008)
56 AFFIDAVIT OF SERVICE of ECF Rules and Instructions, Supplemental Summons in a Civil Action, Second Amended Complaint, Individual Practices of Judge John G. Koeltl, Individual Practices of Magistrate Judge Maas, Plaintiff's First Requests For Productions To Defendant ICE 31, Plaintiff's First Set of Interrogatories To Defendant ICE 31, and all other discovery documents previously served. served on "JOHN DOE" A/K/A ICE AGENT 31 on 7/16/2008. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa

08/07/2008 08/07/2008

Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 08/07/2008)
57 AFFIDAVIT OF SERVICE of ECF Rules and Instructions, Supplemental Summons in a Civil Action, Second Amended Complaint, Individual Practices of Judge John G. Koeltl, Individual Practices of Magistrate Judge Maas, Plaintiff's First Requests For Productions To Defendant ICE 51, Plaintiff's First Set of Interrogatories To Defendant ICE 51, and all other discovery documents previously served. served on "JOHN DOE" A/K/A ICE AGENT 51 on 7/15/2008. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 08/07/2008)
58 AFFIDAVIT OF SERVICE of ECF Rules and Instructions, Supplemental Summons in a Civil Action, Second Amended Complaint, Individual Practices of Judge John G. Koeltl, Individual Practices of Magistrate Judge Maas, Plaintiff's First Requests For Productions To Defendant ICE 46, Plaintiff's First Set of Interrogatories To Defendant ICE 46, and all other discovery documents previously served. served on "JOHN DOE" A/K/A ICE AGENT 46 on 7/16/2008. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John

08/07/2008 08/07/2008 08/07/2008

Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 08/07/2008)
59 AFFIDAVIT OF SERVICE of ECF Rules and Instructions, Supplemental Summons in a Civil Action, Second Amended Complaint, Individual Practices of Judge John G. Koeltl, Individual Practices of Magistrate Judge Maas, Plaintiff's First Requests For Productions To Defendant ICE 44, Plaintiff's First Set of Interrogatories To Defendant ICE 44, and all other discovery documents previously served. served on "JOHN DOE" A/K/A ICE AGENT 44 on 7/16/2008. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 08/07/2008)
60 AFFIDAVIT OF SERVICE of ECF Rules and Instructions, Supplemental Summons in a Civil Action, Second Amended Complaint, Individual Practices of Judge John G. Koeltl, Individual Practices of Magistrate Judge Maas, Plaintiff's First Requests For Productions To Defendant ICE 42, Plaintiff's First Set of Interrogatories To Defendant ICE 42, and all other discovery documents previously served. served on "JANE DOE" A/K/A ICE AGENT 42 on 7/15/2008. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 08/07/2008)
61 AFFIDAVIT OF SERVICE of ECF Rules and Instructions, Supplemental Summons in a Civil Action, Second Amended Complaint, Individual Practices of Judge John G. Koeltl, Individual

08/08/2008 08/08/2008 08/08/2008

Practices of Magistrate Judge Maas, Plaintiff's First Requests For Productions To Defendant ICE 42, Plaintiff's First Set of Interrogatories To Defendant ICE 42, and all other discovery documents previously served. served on "JANE DOE" A/K/A ICE AGENT 42 on 7/21/2008. Service was made by Mail. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La RosaDelgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gennardo, Patrick) (Entered: 08/07/2008)
62 ANSWER to Amended Complaint. Document filed by ICE 21. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/08/2008)
63 ANSWER to Amended Complaint. Document filed by ICE 23. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/08/2008)
64 ANSWER to Amended Complaint. Document filed by ICE 32. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario

08/14/2008 08/15/2008 08/15/2008 08/15/2008

Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/08/2008)
65 ORDER: A conference shall be held on September 8, 2008, at 10:00 a.m. The parties should call my Chambers prior to the conference to ascertain its location. The parties' information technology experts shall attend the September 8, 2008 conference in person. Prior to the September 8, 2008 conference, the parties shall meet and confer, as set forth herein. (Signed by Magistrate Judge Frank Maas on 8/14/2008) Copies Mailed By Chambers.(jpo) (Entered: 08/15/2008)
66 ANSWER to Amended Complaint. Document filed by ICE 8. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/15/2008)
67 ANSWER to Amended Complaint. Document filed by ICE 20. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/15/2008)
68 ANSWER to Amended Complaint. Document filed by ICE 30. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/15/2008)

08/22/2008 08/22/2008 08/22/2008 08/29/2008 08/29/2008

69 ANSWER to Amended Complaint. Document filed by ICE 25. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/22/2008)
70 ANSWER to Amended Complaint. Document filed by ICE 35. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/22/2008)
71 ANSWER to Amended Complaint. Document filed by ICE 45. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/22/2008)
72 ANSWER to Amended Complaint. Document filed by ICE 9. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/29/2008)
73 ANSWER to Amended Complaint. Document filed by ICE 34. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez,

08/29/2008
09/02/2008 09/04/2008 09/05/2008
09/05/2008

Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/29/2008)
74 ANSWER to Amended Complaint. Document filed by ICE 37. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 08/29/2008)
75 STIPULATION AND AMENDED SCHEDULING ORDER: Summary judgment motions due by 6/27/2009. Responses due by 7/27/2009 Replies due by 8/8/2009. All fact discovery shall be completed by 3/3/2009. All expert discovery due by 6/1/2009. Ready for Trial by 9/29/2009. ENDORSEMENT: The Court will hold a further conference in Courtroom 20A on March 4, 2008, at 2 p.m. If the date and time are not convenient, counsel should place a conference call to Chambers to reschedule. (Signed by Magistrate Judge Frank Maas on 9/2/2008) (jpo) (Entered: 09/03/2008)
76 TRANSCRIPT of proceedings held on 8/14/08 before Magistrate Judge Frank Maas. (ama) (Entered: 09/04/2008)
77 ANSWER to Amended Complaint. Document filed by ICE 13. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/05/2008)
78 ANSWER to Amended Complaint. Document filed by ICE 22. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez,

09/05/2008
09/08/2008 09/12/2008
09/12/2008

Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/05/2008)
79 ANSWER to Amended Complaint. Document filed by ICE 44. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/05/2008)
Minute Entry for proceedings held before Magistrate Judge Frank Maas: Status Conference held on 9/8/2008. (js) (Entered: 09/24/2008)
80 ANSWER to Amended Complaint. Document filed by ICE 4. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/12/2008)
81 ANSWER to Amended Complaint. Document filed by ICE 17. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/12/2008)

09/12/2008 09/12/2008 09/19/2008 09/19/2008

82 ANSWER to Amended Complaint. Document filed by ICE 27. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/12/2008)
83 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna Gordon dated 9/11/08 re: Request for an informal conference to discuss plaintiffs' proposed motion for a protective order etc. ENDORSEMENT: I am being presented with discovery issues seriatum. Moreover, the briefing (ie, the letters) strike me as overly long. Henceforth, any discovery issues are to be presented to me (in the first instance) in the form of a joint letter (no longer than six pages) setting forth the both sides' positions regarding the discovery disputes(s). In the interim, the Government is directed to respond to this letter by 9/19/08. ( Response due by 9/19/2008) (Signed by Magistrate Judge Frank Maas on 9/12/08) (cd) (Entered: 09/15/2008)
84 ANSWER to Amended Complaint. Document filed by ICE 3. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/19/2008)
85 ANSWER to Amended Complaint. Document filed by ICE 11. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/19/2008)

09/19/2008 09/22/2008 09/26/2008 09/26/2008 09/26/2008

86 ANSWER to Amended Complaint. Document filed by ICE 36. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/19/2008)
87 TRANSCRIPT of proceedings held on September 8, 2008 10:15 a.m. before Magistrate Judge Frank Maas. (mro) (Entered: 09/22/2008)
88 ANSWER to Amended Complaint. Document filed by ICE 5. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/26/2008)
89 ANSWER to Amended Complaint. Document filed by ICE 6. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/26/2008)
90 ANSWER to Amended Complaint. Document filed by ICE 43. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 09/26/2008)

10/03/2008 10/03/2008 10/03/2008 10/09/2008 10/09/2008

91 ANSWER to Amended Complaint. Document filed by ICE 46. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/03/2008)
92 ANSWER to Amended Complaint. Document filed by ICE 49. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/03/2008)
93 ANSWER to Amended Complaint. Document filed by ICE 51. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/03/2008)
94 ANSWER to Amended Complaint. Document filed by ICE 38. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/09/2008)
95 ANSWER to Amended Complaint. Document filed by ICE 40. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez,

10/09/2008 10/09/2008 10/17/2008 10/17/2008

Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/09/2008)
96 ANSWER to Amended Complaint. Document filed by ICE 50. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/09/2008)
97 ANSWER to Amended Complaint. Document filed by ICE 52. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/09/2008)
98 ANSWER to Amended Complaint. Document filed by ICE 2. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/17/2008)
99 ANSWER to Amended Complaint. Document filed by ICE 16. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana

Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/17/2008)

10/17/2008

100 ANSWER to Amended Complaint. Document filed by ICE 39. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/17/2008)

10/17/2008

101 ANSWER to Amended Complaint. Document filed by ICE 41. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/17/2008)

10/24/2008

102 ANSWER to Amended Complaint. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Michael Chertoff. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La Rosa-Delgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

103 ANSWER to Amended Complaint. Document filed by ICE 1. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez,

Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

104 ANSWER to Amended Complaint. Document filed by ICE 10. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

105 ANSWER to Amended Complaint. Document filed by ICE 18. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

106 ANSWER to Amended Complaint. Document filed by ICE 31. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

107 ANSWER to Amended Complaint. Document filed by ICE 42. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia

Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

108 ANSWER to Amended Complaint. Document filed by ICE 47. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

109 ANSWER to Amended Complaint. Document filed by Jeffrey Knopf. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

110 ANSWER to Amended Complaint. Document filed by Joseph A. Palmese. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

111 ANSWER to Amended Complaint. Document filed by Peter J. Smith. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario

Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/24/2008

112 ANSWER to Amended Complaint. Document filed by Darren Williams. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La Rosa-Delgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/24/2008)

10/27/2008

113 ANSWER to Amended Complaint. Document filed by ICE 7. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/27/2008)

10/27/2008

114 ANSWER to Amended Complaint. Document filed by ICE 14. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/27/2008)

10/27/2008

115 ANSWER to Amended Complaint. Document filed by ICE 15. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo

Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/27/2008)

10/27/2008

116 ANSWER to Amended Complaint. Document filed by ICE 33. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/27/2008)

10/27/2008

117 ANSWER to Amended Complaint. Document filed by Christopher Shanahan. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La Rosa-Delgado, Yoni Revolorio.(Eshkenazi, Lara) (Entered: 10/27/2008)

10/30/2008

118 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Allison D. Penn dated 10/29/08 re: Defendants request an extension of time to file that answer until 30 days after the agent returns from military service. ENDORSEMENT: APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 10/29/08) (tro) (Entered: 10/30/2008)

10/30/2008

119 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Allison D. Penn dated 10/29/08 re: Counsel requests an extension of time to file the answer until 30 days after the agent returns from military services. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Frank Maas on 10/29/08) (mme) (Entered: 10/30/2008)

11/21/2008

120 DISCOVERY ORDER: This discovery order addresses the sufficiency of the defendants privilege log, which indicates that thirty one documents were withheld on the basis of law enforcement privilege. Within ten days after the parties have met compel the disclosure of any documents that the Defendants have withheld or redacted. If such a motion is filed, the defendants shall respond within ten days. (Signed

by Magistrate Judge Frank Maas on 11/20/2008) Copies Mailed By Chambers.(jpo) Modified on 11/21/2008 (jpo). (Entered: 11/21/2008)

11/21/2008

121 MEMORANDUM DECISION AND ORDER : In this case, for the reasons set forth above, the Plaintiffs application to compel the production of metadata is granted in part and denied in part. More specifically, the Defendants are directed to produce (a) any emails that OPLA received with metadata attached in a form that contains that metadata, and (b) the metadata for their spreadsheets. The Defendants further are directed to produce the metadata for their word processing and PowerPoint files if the Plaintiffs agree to pay the costs associated with producing those files a second time. All such materials shall be produced to the Plaintiffs by December 12, 2008. Additionally, the Plaintiffs are directed to arrange for the TECS system to be demonstrated for their counsel using the training environment by no later than December 12, 2008. While I recognize that it would be useful for an expert to be present to guide counsels inquiry, the failure to retain an appropriate expert (or the experts unavailability) will not warrant any further extension of this deadline. Finally, if the Plaintiffs seek further metadata regarding TECS or SEACATS after that demonstration has been conducted, they are to submit a letter explaining and justifying their request within ten days. Thc Defendants then shall have ten days to respond to that letter. (Signed by Magistrate Judge Frank Maas on 11/20/2008) Copies Mailed By Chambers.(jpo) Modified on 11/26/2008 (jpo). (Entered: 11/21/2008)

11/25/2008

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 11/25/2008. (mro) (Entered: 12/11/2008)

12/30/2008

122 NOTICE of Change of Counsel Name. Document filed by Elder Bonilla, Gloria Vanessa Amaya, Andriana Aguilar, Sonia Bonilla, Raul Amaya, Carson Aguilar, Nelly Amaya. (Schwarz, Ghita) (Entered: 12/30/2008)

01/07/2009

123 DISCOVERY ORDER: Accordingly, the Doe Family's true names must be provided to the defendants. The Doe Family's interests are adequately protected by the "attorneys' eyes only" designation that the plaintiffs may attach this information, and by allowing the Doe Family to continue to be referred to by pseudonyms in public filings. (Signed by Magistrate Judge Frank Maas on 1/7/2009) Copies Mailed By Chambers.(jpo) Modified on 1/8/2009 (jpo). (Entered: 01/08/2009)

01/07/2009

124 DISCOVERY ORDER For the reasons set forth in this order, the Doe Familys true names must be provided to the Defendants. The Doe Familys interests are adequately protected by the attorneys eyes only

designation that the Plaintiffs may attach to this information, and by allowing the Doe Family to continue to be referred to by pseudonyms in public filings. (Signed by Magistrate Judge Frank Maas on 1/7/09) Copies Mailed By Chambers.(mme) (Entered: 01/08/2009)

01/09/2009

125 NOTICE OF APPEARANCE by Jennifer Opheim Whitener on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Whitener, Jennifer) (Entered: 01/09/2009)

01/09/2009

126 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - NOTICE of Withdrawal of Counsel of Richard J. Cairns. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) Modified on 1/12/2009 (jar). (Entered: 01/09/2009)

01/09/2009

127 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - NOTICE of Withdrawal of Counsel for Colin G. Stewart. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John

Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) Modified on 1/12/2009 (jar). (Entered: 01/09/2009)

01/09/2009

128 FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - NOTICE of Withdrawal of Counsel of Patrick Joseph Gennardo. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) Modified on 1/12/2009 (jar). (Entered: 01/09/2009)

01/09/2009

129 NOTICE OF APPEARANCE by Kelly Hsiao-I Tsai on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Tsai, Kelly) (Entered: 01/09/2009)

01/09/2009

130 MOTION to Compel The Production of Documents. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1).(Gordon, Donna) (Entered: 01/09/2009)

01/09/2009 131 DECLARATION of DONNA L. GORDON in Support re: 130 MOTION to Compel The Production of Documents.. Document

filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 01/09/2009)

01/09/2009

132 DECLARATION of Jennifer O. Whitener in Support re: 130 MOTION to Compel The Production of Documents.. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Attachments: # 1 Exhibits A - D, # 2 Exhibits E - H, # 3 Exhibits I - L, # 4 Exhibits M - O)(Gordon, Donna) (Entered: 01/09/2009)

01/09/2009

133 MEMORANDUM OF LAW in Support re: 130 MOTION to Compel The Production of Documents.. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 01/09/2009)

01/09/2009

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Donna Gordon to E-MAIL Document No. 126 Notice of Withdrawal of Counsel to

judgments@nysd.uscourts.gov. This document is not filed via ECF. (jar) (Entered: 01/12/2009)

01/09/2009

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Donna Gordon to E-MAIL Document No. 127 Notice of Withdrawal of Counsel to judgments@nysd.uscourts.gov. This document is not filed via ECF. (jar) (Entered: 01/12/2009)

01/09/2009

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF DOCUMENT ERROR. Note to Attorney Donna Gordon to E-MAIL Document No. 128 Notice of Withdrawal of Counsel to judgments@nysd.uscourts.gov. This document is not filed via ECF. (jar) (Entered: 01/12/2009)

01/15/2009

134 ENDORSED LETTER addressed to Judge John G. Koeltl from Donna L. Gordon dated 1/13/2009 re: Counsel for plaintiffs writes to respectfully request that the 10 day period for filing objections to Magistrate Judge's ruling. ENDORSEMENT: Application for stay of time to file Objections is granted. So ordered. (Signed by Judge John G. Koeltl on 1/14/2009) (tve) (Entered: 01/15/2009)

01/21/2009

135 NOTICE OF APPEARANCE by Kelly Anne Librera on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Librera, Kelly) (Entered: 01/21/2009)

01/21/2009

136 NOTICE OF APPEARANCE by Rebecca Marie Reilly on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John

Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Reilly, Rebecca) (Entered: 01/21/2009)

01/22/2009

137 MOTION for Reconsideration re; 123 Order,. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1).(Gordon, Donna) (Entered: 01/22/2009)

01/22/2009

138 DECLARATION of Mark L. Noferi in Support re: 137 MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,.. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Attachments: # 1 Exhibits 1-9, # 2 Exhibits 10-13, # 3 Exhibits 1416)(Gordon, Donna) (Entered: 01/22/2009)

01/22/2009

139 MEMORANDUM OF LAW in Support re: 137 MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,.. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next

friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 01/22/2009)

01/22/2009

140 AFFIDAVIT OF SERVICE of Notice of Motion, Memorandum of Law, and Declaration of Mark L. Noferi in Support of Motion for Reconsideration. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La RosaDelgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 01/22/2009)

01/23/2009

141 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Lara Eshkenazi dated 1/22/09 re: Request for an extension of time to 1/29/09 for defendants to respond to Plaintiffs' motion to compel the production of documents and plaintiffs' reply brief would be due 2/5/09. ENDORSEMENT: Application Granted. Set Deadlines/Hearing as to 130 MOTION to Compel The Production of Documents( Response due by 1/29/2009. Reply due by 2/5/2009.) (Signed by Magistrate Judge Frank Maas on 1/23/09) (cd) (Entered: 01/26/2009)

01/26/2009 142 SEALED DOCUMENT placed in vault.(rt) (Entered: 01/26/2009)

01/27/2009

143 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Mark L. Noferi dated 1/23/09 re: counsel requests that Your Honor "so order" the filing of these Exhibits under seal. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Frank Maas on 1/23/09) (djc) Modified on 1/28/2009 (djc). (Entered: 01/28/2009)

01/29/2009

144 MEMORANDUM OF LAW in Opposition re: 130 MOTION to Compel The Production of Documents.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Eshkenazi, Lara) (Entered: 01/29/2009)

01/29/2009

145 DECLARATION of John P. Torres in Opposition re: 130 MOTION to Compel The Production of Documents.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A)(Eshkenazi, Lara) (Entered: 01/29/2009)

01/29/2009

146 DECLARATION of Lara K. Eshkenazi in Opposition re: 130 MOTION to Compel The Production of Documents.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A)(Eshkenazi, Lara) (Entered: 01/29/2009)

01/29/2009

150 STIPULATION AND SECOND AMENDED SCHEDULING ORDER: All fact discovery shall be completed no later than: June 30, 2009. The Court will hold a further conference in Courtroom 20A on June 26, 2009, at 10 a.m. The conference previously scheduled for March 4, 2009 is canceled. Expert reports shall be served no later than: July 28, 2009. Rebuttal expert reports shall be served no later than: August l8, 2009. Replies of experts to the rebuttal expert reports shall be served no later than: September 8, 2009. All expert discovery shall be completed no later than: September 29, 2009. Summary judgment motions shall be filed and served no later than: October 27, 2009. Oppositions to summary judgment motions shall be filed and served no later than: December 1, 2009. Replies to summary judgment motions shall be filed and served no later than: December 14, 2009. The parties shall be ready for trial on or after: January 26, 2010. (Signed by Magistrate Judge Frank Maas on 1/29/2009) (jfe) (Entered: 02/04/2009)

01/30/2009

147 ORDER FOR WITHDRAWAL OF COUNSEL: Attorney Richard J. Cairns hereby withdraws as counsel of record for Plaintiffs in this action. (Signed by Judge John G. Koeltl on 1/30/09) (tro) (Entered: 01/30/2009)

01/30/2009

148 ORDER FOR WITHDRAWAL OF COUNSEL: Attorney Patrick Joseph Gennardo hereby withdraws as counsel of record for Plaintiffs in this action. Attorney Patrick Joseph Gennardo terminated. (Signed by Judge John G. Koeltl on 1/30/09) (tro) (Entered: 01/30/2009)

02/03/2009

149 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Jennifer Whitner dated 2/2/09 re: Counsel request that the Court grant (1) Defendants an extension from February 2, 2009, to February 10, 2009, to respond to Plaintiffs' motion for reconsideration; (2) Plaintiffs a corresponding extension from February 6, 2009, to February 19, 2009, to submit their reply in support of their motion for reconsideration; and (3) Plaintiffs an extension from February 5, 2009, to February 10, 2009, to submit their reply in support of their motion to compel. Counsel also requests an additional five pages for their reply memorandum. ENDORSEMENT: All three Applications granted. (Signed by Magistrate Judge Frank Maas on 2/3/09) (mme) Modified on 2/10/2009 (mme). (Entered: 02/03/2009)

02/04/2009

151 ORDER FOR WITHDRAWAL OF COUNSEL Please take notice that Colin G. Stewart, with the consent of Plaintiffs, hereby withdraws as counsel of record for Plaintiffs in this action. (Signed by Judge John G. Koeltl on 2/4/09) (mme) (Entered: 02/04/2009)

02/10/2009

152 MEMORANDUM OF LAW in Opposition re: 137 MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Darren Williams, Jeffrey Knopf, Jane and John Doe Defendants #1-52, John and Jane Doe ICE Agents. (Vassallo, Kristin) (Entered: 02/10/2009)

02/10/2009

153 DECLARATION of Kristin Vassallo in Opposition re: 137 MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Darren Williams, Jeffrey Knopf, Jane and John Doe Defendants #1-52, John and Jane Doe ICE Agents. (Vassallo, Kristin) (Entered: 02/10/2009)

02/10/2009 154 SEALED DOCUMENT placed in vault.(jri) Modified on 2/11/2009 (jri). (Entered: 02/11/2009)

02/18/2009

155 ORDER It is hereby ordered that: By February 20, 2009, the Defendants may submit a letter to the Court regarding their proposed change to their prior responses to the Plaintiffs' document request. By the close of business on February 25, 2009, the Plaintiffs may submit a letter responding to the Defendants' letter. (Signed by Magistrate Judge Frank Maas on 2/18/09) Copies Mailed By Chambers.(mme) (Entered: 02/18/2009)

02/18/2009

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 2/18/2009. (mro) (Entered: 02/23/2009)

02/19/2009

156 REPLY MEMORANDUM OF LAW in Support re: 137 MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,. MOTION for Reconsideration re; 123 Order,.. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon,

Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 02/19/2009)

03/02/2009

157 ORDER: Accordingly, the Plaintiffs' application to file the TAC is granted. I note, however, that the TAC will not be able to incorporate all of the Plaintiffs' FTCA claims because certain of the Plaintiffs have yet to exhaust their administrative remedies. (See Gordon Letter at 1 n.2). The result is that the Defendants could be put to the task of responding to a fourth amended complaint. To avoid the substantial paperwork burden involved in this scenario, the Plaintiffs will be permitted to file their TAC, but the Defendants will not be required to answer it until the Court so directs. In the interim, the material allegations of the equal protection claim will be deemed denied, except to the extent they have been admitted in prior pleadings. (Signed by Magistrate Judge Frank Maas on 3/2/09) Copies Mailed By Chambers.(rw) (Entered: 03/03/2009)

03/06/2009

158 THIRD AMENDED COMPLAINT amending 33 Amended Complaint,,,,,, against John Roe and Jane Roe ICE Supervisors, Jane and John Doe Defendants #1-52, The United States of America, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Darren Williams, Jeffrey Knopf, John and Jane Doe ICE Agents.Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana

Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(dle) (Entered: 03/10/2009)

03/10/2009

159 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,,,,,. The United States of America served on 3/6/2009, answer due 3/26/2009. Service was made by Certified U.S. Mail. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated); Andres Leon; Jane Doe; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La Rosa-Delgado; John Doe; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez; John Doe(#1); John Doe(#2 through his next friend Jane Doe #1); John Doe(#3 through his next friend Jane Doe #1). (Attachments: # 1 Second Supplemental Summons In A Civil Action)(Tsai, Kelly) (Entered: 03/10/2009)

06/02/2009

160 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Kristin Vassallo dated 2/10/09 re: counsel for defendants request that they be permitted to file under seal Exhibits A and B to the Vassallo Declaration. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 6/1/09) (dle) (Entered: 06/02/2009)

06/02/2009

161 ORDER that defendants are directed to immediately submit to my Chambers for in camera review the excerpted documents reviewed by John P. Torres in connection with his declaration dated 1/28/09. (Signed by Magistrate Judge Frank Maas on 6/2/09) Copies sent by chambers.(dle) (Entered: 06/03/2009)

06/08/2009 162 SEALED DOCUMENT placed in vault.(rt) (Entered: 06/09/2009)

06/09/2009

163 STIPULATION AND THIRD AMENDED SCHEDULING ORDER: All fact discovery shall be completed no later than 12/15/09. The Court will hold a further conference in courtroom 20A on 10/21/09 at 2:00 p.m. and the conference previously scheduled for 6/26/09 at 10:00 a.m. will be held as previously scheduled. Expert reports shall be served no later than 1/19/10. Rebuttal expert reports shall be served no later than 2/9/10. Replies of experts to the rebuttal expert reports shall be served no later than 3/2/10. All expert discovery shall be completed no later than 3/23/10. Summary judgment motions shall be filed and served no

later than 4/20/10. Oppositions to summary judgment motions shall be filed and served no later than 5/18/10. Replies to summary judgment motions shall be filed and served no later than 6/1/10. The parties shall be ready for trial on or after 7/13/10. (Signed by Magistrate Judge Frank Maas on 6/9/09) (dle) (Entered: 06/09/2009)

06/17/2009

164 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Lara Eshkenazi dated 6/11/09 re: counsel for defendants request that the Court re-scheduled the conference currently scheduled for 6/26/09 at 10:00 a.m. ENDORSEMENT: The conference is adjourned to 6/30/09 at 11:00 a.m. (Signed by Magistrate Judge Frank Maas on 6/12/09) (dle) Modified on 6/25/2009 (dle). (Entered: 06/18/2009)

06/23/2009

165 MEMORANDUM DECISION AND ORDER denying 137 Motion for Reconsideration. As set forth above, the Plaintiffs' motion for reconsideration (Docket No. 137) is denied. The Court further clarifies that the "attorneys' eyes only" designation is applicable to all immigration Infonnation, including that of witnesses, provided by the Plaintiffs during discovery. Any infonnation so designated may be viewed by ICE in house counsel provided that they are not involved in the prosecution of any related immigration proceedings. SO ORDERED (Signed by Magistrate Judge Frank Maas on 6/23/2009) (jmi) (Entered: 06/24/2009)

06/23/2009

166 DISCOVERY ORDER granting in part and denying in part 130 Motion to Compel. In light of the foregoing, the Plaintiffs' motion to compel the production of documents, (Docket No. 130), is granted in part and denied in part. The Defendants further are directed to make the additional disclosures required by this Discovery Order at the earliest practicable date. SO ORDERED.(Signed by Magistrate Judge Frank Maas on 6/23/2009) (jmi) (Entered: 06/24/2009)

06/23/2009

167 ORDER; that by joint letter dated April 29, 2009, the Defendants seek to compel certain discovery that the Plaintiffs, in whole or in part, oppose. Certain of their disputes are in large measure controlled by my decision bearing today's date concerning the Plaintiffs' motion for reconsideration. My rulings with respect to the remaining issues raised in the joint letter in the manner that is set forth in this Order. (Signed by Magistrate Judge Frank Maas on 6/23/09) Copies Mailed by Chambers.(pl) (Entered: 06/24/2009)

06/30/2009

168 NOTICE OF APPEARANCE by Christina Iturralde on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena

Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Iturralde, Christina) (Entered: 06/30/2009)

06/30/2009

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 6/30/2009. (mro) (Entered: 07/02/2009)

07/16/2009

169 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from DAVID BOBER, SHANE CARGO, BRANDON COWART and ALLISON D. PENN dated 7/10/2009 re: We write respectfully to request that defendants' time to respond to plaintiffs' fourth set of document requests, dated May 18, 2009, be adjourned pending defendants' filing of a motion, based on the Supreme Court's recent decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), seeking dismissal of (i) all claims against the supervisors, and (ii) plaintiffs' equal protection claim. Because plaintiffs' fourth document requests seek new and wide-ranging discovery pertaining to these claims, we will seek a stay of such discovery together with our motion. In the meantime, discovery concerning the heart of plaintiffs' case -what happened at the complaint locations -may proceed. For these reasons, we respectfully request that defendants' time to respond to plaintiffs' fourth document requests be adjourned pending the July 31, 2009, filing of defendants' motion to dismiss and/or for judgment on the pleadings, which motion will include an application for a stay of discovery concerning the supervisors and the discrimination claim. ENDORSEMENT: The application for stay is denied. The deadline for the Government to respond to the fourth set of document requests is extended to 8/7/09. ( Responses due by 8/7/2009) (Signed by Magistrate Judge Frank Maas on 7/16/2009) (jmi) (Entered: 07/17/2009)

07/30/2009

170 CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Magistrate Judge Frank Maas on 7/30/09) (pl) Modified on 7/31/2009 (pl). (Entered: 07/31/2009)

10/15/2009

171 ORDER: It is hereby ORDERED that the production of all A-files and related documents shall be expedited by the Department of Homeland Security in accordance with the priority agreed to by counsel. (Signed by Magistrate Judge Frank Maas on 10/15/2009) Copies Mailed By Chambers.(jfe) (Entered: 10/16/2009)

10/15/2009

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 10/15/2009. (mro) (Entered: 11/02/2009)

10/16/2009

172 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ghita Schwarz dated 10/17/09 re: Plaintiffs write to request that the Court order certain procedural safeguards pursuant to Federal Rule of Civil Procedure 26(c) to be used at the depositions of 11 year old Dalia Velasquez and 14 year old Beatriz Velasquez. ENDORSEMENT: I note that Beatriz Velasquez signed a declaration in connection with this matter when she was 12 years old (see Ex.1) At least for that purpose, it would appear that her counsel no concerns about the competency of twelve year olds. Frankly, as I indicated yesterday, neither do I. The relief requested in this letter is denied, except that each of the depositions will be limited to four hours (unless I conclude that the AUSA's inquiry was being obstructed or the defendants call established other unusual circumstances warranting more time. So Ordered. So Ordered (Signed by Magistrate Judge Frank Maas on 10/16/09) (js) (Entered: 10/19/2009)

10/22/2009

173 DISCOVERY ORDER.....Accordingly, the Court does not intend to undertake an in camera review of any records to be produced pursuant to the authorizations described above, unless the plaintiffs submitted a detailed affidavit from the particular patient explaining precisely what treatment the patient seeks to shield from disclosure and the rationale therefor. Any such affidavits may be submitted under seal and ex parte, but must be received by 11/2/09....I do not intend to conduct any further in camera reviews. Copies sent by chambers (Signed by Magistrate Judge Frank Maas on 10/23/09) (cd) (Entered: 10/23/2009)

10/26/2009

174 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna L. Gordon dated 10/23/2009 re: Counsel writes to inform that Plaintiffs would like to have additional briefing on the matter. ENDORSEMENT: Plaintiffs brief shall be due 11/2; defendants' brief shall be due 11/13. Both briefs shall be no more than 15 double-spaced pages. So Ordered. (Signed by Magistrate Judge Frank Maas on 10/26/2009) (jfe) (Entered: 10/26/2009)

10/28/2009

175 ENDORSED LETTER addressed to Judge John G. Koeltl from Donna L. Gordon dated 10/27/2009 re: We represent Plaintiffs in the aboveentitled action. On October 15, 2009, Judge Maas provided rulings from the bench denying Plaintiffs' motion to compel Defendants to produce documents responsive to several of Plaintiffs' document requests. Pursuant to Fed. R. Civ. P. 6(a) and 72(a), Plaintiffs' objections would be due to Your Honor on Thursday, October 29, 2009. We write to respectfully request an extension of time of two

business days, to November 1, 2009, for filing our objections to Magistrate Judge Maas' nondispositive order from the bench. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. (Signed by Judge John G. Koeltl on 10/27/2009) (jmi) (Entered: 10/28/2009)

10/28/2009

176 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna Gordon dated 10/27/2009 re: The parties respectfully request that they be permitted to exclude from the joint deposition schedule the deposition of non-parties. ENDORSEMENT: The relief requested is granted, except that oral argument on the motion to amend will only be granted if I deem if necessary. Counsel should also understand that I will not intervene in deposition scheduling disputes if they are presented to me for the first time at the eleventh hour. So Ordered. (Signed by Magistrate Judge Frank Maas on 10/27/2009) (jfe) (Entered: 10/28/2009)

11/02/2009 177 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/03/2009)

11/03/2009

178 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna L. Gordon dated 11/3/09 re: counsel for plaintiff writes that the parties have made substantial progress and hereby submit a proposed deposition schedule covering the next few months to February 3, 2010. ENDORSEMENT: Approved. (Signed by Magistrate Judge Frank Maas on 11/3/09) (pl) (Entered: 11/04/2009)

11/04/2009

179 ANSWER to Amended Complaint. Document filed by ICE 29. Related document: 33 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Cargo, Shane) (Entered: 11/04/2009)

11/05/2009

180 ENDORSED LETTER addressed to Judge John G. Koeltl from David Bober dated 11/4/09 re: Counsel for defendants requests ten business days- until 11/17/09- to respond to plaintiffs' objections to certain rulings made by Magistrate Judge Maas on 10/15/09. In addition, plaintiffs request five business days- until 11/24/09- to reply to defendants' 11/17/09 submission. ENDORSEMENT: APPLICATION GRANTED. (Signed by Judge John G. Koeltl on 11/4/09) (tro) (Entered: 11/05/2009)

11/13/2009

181 REPLY MEMORANDUM OF LAW in Opposition to Plaintiffs' Motion for Leave to Amend the Third Amended Complaint. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Cargo, Shane) (Entered: 11/13/2009)

11/13/2009

182 DECLARATION of Shane Cargo re: 181 Reply Memorandum of Law in Oppisition,. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cargo, Shane) (Entered: 11/13/2009)

11/16/2009 183 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/16/2009)

11/16/2009 184 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/16/2009)

11/16/2009

185 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Kelly Librera dated 11/3/09 re: Whether all of Plaintiffs' Motion for Leave to Amend the Third Amended Complaint must be filed. ENDORSEMENT: I have received no objection from the government and therefore will direct that the filings be made --publicly and under seal---in a manner consistent with this letter. The Court, however, is not in a position to take bound documents and rearrange them. The Plaintiffs are therefore directed to file the nonconfidential portions of their motion papers within five days; the Court will file their original unredacted papers under seal. (Signed by Magistrate Judge Frank Maas on 11/16/09) (cd) (Entered: 11/16/2009)

11/16/2009

186 ENDORSED LETTER addressed to Judge John G. Koeltl from Brandon H. Cowart dated 11/13/2009 re: Counsel respectfully request that the defendants be allowed to file their opposition on Monday, 11/23, with the plaintiff's reply due on 12/4. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge John G. Koeltl on 11/13/2009) (jfe) (Entered: 11/16/2009)

11/17/2009

187 NOTICE OF APPEARANCE by David Vincent Bober on behalf of John Roe and Jane Roe ICE Supervisors, The United States of America, ICE 29, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, John Doe, Jane Doe, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Jane Roe, John Roe, Darren Williams, Jeffrey Knopf, Jane and John Doe Defendants #1-52, John and Jane Doe ICE Agents, ICE 12, ICE 24, ICE 28, ICE 19, ICE 48, ICE 26, ICE 21, ICE 23, ICE 32, ICE 8, ICE 20, ICE 30, ICE 25, ICE 35, ICE 45, ICE 9, ICE 34, ICE 37, ICE 13, ICE 22, ICE 44, ICE 4, ICE 17, ICE 27, ICE 3, ICE 11, ICE 36, ICE 5, ICE 6, ICE 43, ICE 46, ICE 49, ICE 51, ICE 38, ICE 40, ICE 50, ICE 52, ICE 2, ICE 16,

ICE 39, ICE 41, ICE 1, ICE 10, ICE 18, ICE 31, ICE 42, ICE 47, ICE 7, ICE 14, ICE 15, ICE 33 (Bober, David) (Entered: 11/17/2009)

11/18/2009

188 REPLY MEMORANDUM OF LAW in Support Plaintiff's' Motion for Leave to Amend The Third Amended Complaint. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 11/18/2009)

11/18/2009 189 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/18/2009)

11/23/2009

190 MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La RosaDelgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Attachments: # 1 Proposed Order)(Gordon, Donna) (Entered: 11/23/2009)

11/23/2009

191 MEMORANDUM OF LAW in Support re: 190 MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). (Redacted Version). Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana

Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 11/23/2009)

11/23/2009

192 DECLARATION of Donna Gordon in Support re: 190 MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint).. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 11/23/2009)

11/23/2009

193 DECLARATION of Donna L. Gordon in Support re: 190 MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint). MOTION to Amend/Correct (Notice of Motion for Leave to Amend the Third Amended Complaint).. Document filed by John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1). (Gordon, Donna) (Entered: 11/23/2009)

11/24/2009

194 OPPOSITION BRIEF Defendants' Memorandum of Law in Opposition to Plaintiffs' Appeal of Certain Discovery Rulings of Judge Maas. Document filed by John Roe and Jane Roe ICE Supervisors, The United States of America, ICE 29, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Jane Roe, John Roe, Jeffrey Knopf, John and Jane Doe ICE Agents, ICE 12, ICE 24, ICE 28, ICE 19, ICE 48, ICE 26, ICE 21, ICE 23, ICE 32, ICE 8, ICE 20, ICE 30, ICE 25, ICE 35, ICE 45, ICE 9, ICE 34, ICE 37, ICE 13, ICE 22, ICE 44, ICE 4, ICE 17, ICE 27, ICE 3, ICE 11, ICE 36, ICE 5, ICE 6, ICE 43, ICE 46, ICE 49, ICE 51, ICE 38, ICE 40, ICE 50, ICE 52, ICE 2, ICE 16, ICE 39, ICE 41, ICE 1, ICE 10, ICE 18, ICE 31, ICE 42, ICE 47, ICE 7, ICE 14, ICE 15, ICE 33.(Bober, David) (Entered: 11/24/2009)

11/24/2009 195 SEALED DOCUMENT placed in vault.(jri) (Entered: 11/24/2009)

12/04/2009 196 SEALED DOCUMENT placed in vault.(nm) (Entered: 12/04/2009)

12/14/2009

197 NOTICE OF APPEARANCE by Krista Marie Chiauzzi on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Chiauzzi, Krista) (Entered: 12/14/2009)

12/14/2009

198 NOTICE OF APPEARANCE by Urvashi Sen on behalf of John Doe(#5 on behalf of themselves and all others similarly situated), Andres Leon, Jane Doe, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, John Doe, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez, John Doe(#1), John Doe(#2 through his next friend Jane Doe #1), John Doe(#3 through his next friend Jane Doe #1) (Sen, Urvashi) (Entered: 12/14/2009)

12/14/2009

199 ORDER For this reason, the plaintiffs' motion for leave to file a fourth amended complaint will be granted. Plaintiffs are directed to file and serve that pleading within one week in the form annexed to their motion papers. Additionally, the Court will hold a further telephone conference to discuss the next steps in this case on December 17, 2009, at 2 p.m. Plaintiffs' counsel should initiate the call. SO ORDERED. ( Telephone Conference set for 12/17/2009 at 02:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 12/14/2009) (jmi) Modified on 12/16/2009 (jmi). (Entered: 12/15/2009)

12/17/2009

200 DISCOVERY ORDER. This case is brought by thirty-two plaintiffs who allege that the defendants violated their rights in 2007 while searching their homes as part of "Operation Return to Sender," a Department of Homeland Security program which sought to identify and arrest persons who had been ordered removed from the country, but who remained present in the United States as fugitive liens......; Similarly, whatever the plaintiffs' obligations may have been in response to questions posed by immigration and other officials conducting the raids, it seems clear that they may have a basis for refusing to answer deposition questions inquiring into their immigration status based upon their Fifth Amendment privilege, provided that they have a good faith basis for fearing criminal prosecution. Indeed, the decision in Rajah in no wayrestricts the availability of the privilege in that context. I therefore adhere to my earlier ruling with respect to assertion of the plaintiffs' Fifth Amendment privilege. (Signed by Magistrate Judge Frank Maas on 12/17/09) (djc) (Entered: 12/17/2009)

12/17/2009

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 12/17/2009. (mro) (Entered: 12/18/2009)

12/21/2009

201 ORDER: that my Order dated December 14, 2009, is modified to provide that plaintiffs shall serve and file their Fourth Amended Complaint (with appropriate redactions) as expeditiously as possible. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 12/21/2009) Copies Mailed By Chambers.(tve) (Entered: 12/21/2009)

12/21/2009

202 FOURTH AMENDED COMPLAINT amending 158 Amended Complaint, against John Roe and Jane Roe ICE Supervisors, The United States of America, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Julie L. Myers, John P. Torres, Christopher Shanahan, Janet Napolitano, John Morton, David J. Venturella, Marcy Forman, Kumar Kibble, Michael Chertoff, Peter J. Smith, Joseph A. Palmese, Darren Williams, Jeffrey Knopf, Jane and John Doe Defendants #1-52, John

and Jane Doe ICE Agents.Document filed by Andres Leon, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez. Related document: 158 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, John Doe, Bryan Jimenez, Andriana Aguilar, Sonia Bonilla, Elder Bonilla, Andres Leon, Diana Rodriguez, John Doe, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Jane Doe, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(rdz) (jfe). (Entered: 12/23/2009)

12/21/2009

Fourth Amended SUMMONS ISSUED as to Janet Napolitano, John Morton, David J. Venturella, Marcy Forman, Kumar Kibble. (rdz) (Entered: 12/23/2009)

01/04/2010

203 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ghita Schwarz dated 1/4/10 re: counsel for plaintiff respectfully request a short extension of time that permits plaintiffs to submit a response on Friday, January 8, 2010. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Frank Maas on 1/4/10) (pl) (Entered: 01/04/2010)

01/08/2010

204 SUMMONS RETURNED EXECUTED. Marcy Forman served on 12/21/2009, answer due 1/11/2010. Document filed by Andres Leon; Janet Napolitano; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La Rosa-Delgado; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez. (Gordon, Donna) (Entered: 01/08/2010)

01/08/2010

205 SUMMONS RETURNED EXECUTED. David J. Venturella served on 12/21/2009, answer due 1/11/2010. Document filed by Andres Leon; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz

Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La RosaDelgado; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez. (Gordon, Donna) (Entered: 01/08/2010)

01/08/2010

206 SUMMONS RETURNED EXECUTED. John Morton served on 12/21/2009, answer due 1/11/2010. Document filed by Andres Leon; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La RosaDelgado; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez. (Gordon, Donna) (Entered: 01/08/2010)

01/08/2010

207 SUMMONS RETURNED EXECUTED. Kumar Kibble served on 12/21/2009, answer due 1/11/2010. Document filed by Andres Leon; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La RosaDelgado; Anthony Jimenez; Christopher Jimenez; Bryan Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez. (Gordon, Donna) (Entered: 01/08/2010)

01/08/2010

208 SUMMONS RETURNED EXECUTED. Janet Napolitano served on 12/21/2009, answer due 1/11/2010. Document filed by Andres Leon; William Lazaro; Tarcis Sapon-Diaz; Elder Bonilla; Diana Rodriguez; Yoni Revolorio; Juan Jose Mijangos; Gonzalo Escalante; Yanet Martinez; Gloria Vanessa Amaya; Elena Leon; Erika Gabriela Garcia Leon; Andriana Aguilar; Sonia Bonilla; Dalia Velasquez; Beatriz Velasquez; Victor Pineda Morales; Raul Amaya; Pelagia De La RosaDelgado; Anthony Jimenez; Christopher Jimenez; Carson Aguilar; Nelly Amaya; Mario Patzan DeLeon; David Lazaro Perez. (Gordon, Donna) (Entered: 01/08/2010)

01/08/2010

209 AFFIDAVIT OF SERVICE of Fourth Amended Class Action Complaint on 12/22/09. Document filed by Andres Leon, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Andriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson

Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez. (Gordon, Donna) (Entered: 01/08/2010)

01/08/2010 210 SEALED DOCUMENT placed in vault.(jri) (Entered: 01/08/2010)

01/08/2010

211 ORDER: The plaintiffs object to discovery rulings of the Magistrate Judge on October 15, 2009. The objections are overruled. The rulings were not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). The objections are overruled. (Signed by Judge John G. Koeltl on 1/8/2010) (jfe) (Entered: 01/09/2010)

01/11/2010 212 SEALED DOCUMENT placed in vault.(nm) (Entered: 01/11/2010)

01/19/2010

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 1/19/2010. (mro) (Entered: 01/25/2010)

01/29/2010

213 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna Gordon and Shane Cargo dated 1/28/2010 re: Pursuant to the telephonic hearing of December 17, 2009, and at Your Honor is request, we write to provide the Court with a summary of the discovery that has occurred to date in the aforementioned matter and to describe what discovery is left to taken. We further write to propose a manner of proceeding with discovery in light of defendants' forthcoming motion to dismiss plaintiffs' Fourth Amended Complaint and motion to stay discovery pending resolution of their motion to dismiss. Finally, we write to set forth an agreed-upon briefing schedule with respect to defendants' motion to dismiss and motion to stay. ENDORSEMENT: The Court will hold a conference to discuss these request in Courtroom 9B on 2/8/10 at 4 pm., ( Status Conference set for 2/8/2010 at 04:00 PM in Courtroom 9B, 500 Pearl Street, New York, NY 10007 before Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 1/29/2010) (jmi) Modified on 2/8/2010 (jmi). (Entered: 02/01/2010)

02/08/2010

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 2/8/2010. (mro) (Entered: 02/09/2010)

02/09/2010

214 ORDER: By February 12,2010, counsel shall submit to the Court a revised briefing schedule for the defendants' motions to dismiss and stay discovery. By February 22,2010, counsel shall meet in person and confer in an effort to narrow the number of depositions proposed to be taken in this case. By March 1, 2010, the plaintiffs shall convey a settlement demand to the defendants. By March 12, 2010, the defendants shall respond in writing to the plaintiffs' settlement demand. By March 16,2010, counsel may provide the Court with ex parte letters, up to five pages in length, setting forth any additional information

relevant to settlement discussions. A settlement conference shall be held on March 18, 2010, at 10:00 a.m. in Courtroom 20A. Only the individuals I identified during the conference today need attend. (Signed by Magistrate Judge Frank Maas on 2/8/2010) Copies Mailed By Chambers.(jpo) (Entered: 02/11/2010)

02/23/2010

215 ENDORSED LETTER addressed to Judge John G. Koeltl from David Bober dated 2/22/10 re: counsel for defendants request permission to submit a 40 page memorandum of law and defendants consent to plaintiffs' filing a 40 page brief. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge John G. Koeltl on 2/23/10) (dle) (Entered: 02/23/2010)

03/01/2010

216 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Donna L. Gordon dated 2/25/2010 re: Counsel write to request that the Court so-order the following agreed-upon briefing schedule: Defendants to file motion to dismiss and motion to stay by 3/11/2010. ENDORSEMENT: APPLICATION GRANTED. (Signed by Magistrate Judge Frank Maas on 2/22/2010) (tro) (Entered: 03/02/2010)

03/11/2010 217 MOTION to Stay. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff.(Bober, David) (Entered: 03/11/2010)

03/11/2010

218 MEMORANDUM OF LAW in Support re: 217 MOTION to Stay.. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff. (Bober, David) (Entered: 03/11/2010)

03/18/2010

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Settlement Conference held on 3/18/2010. (tro) (Entered: 03/22/2010)

03/19/2010

219 ORDER: Pursuant to the conference held earlier today, it is hereby ORDERED that a further conference shall be held on 4/20/2010 at 10:00 AM before Magistrate Judge Frank Maas, in Courtroom 9B. (Signed by Magistrate Judge Frank Maas on 3/18/2010) (tro) (Entered: 03/22/2010)

03/29/2010

220 MOTION to Dismiss. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff.(Bober, David) (Entered: 03/29/2010)

03/29/2010

221 MEMORANDUM OF LAW in Support re: 220 MOTION to Dismiss.. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff. (Bober, David) (Entered: 03/29/2010)

04/02/2010

222 DECLARATION of David Bober in Support re: 220 MOTION to Dismiss.. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bober, David) (Entered: 04/02/2010)

04/07/2010

223 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from David Bober dated 4/7/2010 re: Counsel respectfully request a 2 day extension until 4/15/2010 to provide responses to plaintiffs' letter concerning several discovery issues. ENDORSEMENT: Application granted. Additionally, the Court does not wish to receive any reply letter. So Ordered. (Signed by Magistrate Judge Frank Maas on 4/7/2010) (jfe) (Entered: 04/08/2010)

04/07/2010

224 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Kristin Vassallo dated 4/7/2010 re: Counsel respectfully request a oneweek extension until 4/15/2010 to file answers on behalf of defendants ICE 53, ICE 54, ICE 55, ICE 56, ICE 57, ICE 58 and ICE 59. ENDORSEMENT: Application granted. So Ordered. (Signed by Magistrate Judge Frank Maas on 4/7/2010) (jfe) (Entered: 04/12/2010)

04/14/2010

225 STIPULATION AND ORDER OF DISMISSAL OF DEFENDANTS ICE 35, ICE 38, AND ICE 44: Defendants ICE 35, ICE 38, and ICE 44 are dismissed from the case with prejudice and without costs or attorney's fees to any party. Plaintiffs reserve the right to depose Defendants ICE 38 and ICE 44 as witnesses and/or call ICE 35, ICE 38, and ICE 44 as witnesses at trial, and Defendants, ICE 35, ICE 38, and ICE 44 shall not oppose any such request by plaintiffs should plaintiffs choose to exercise same. To the extent Defendants intend to call ICE 35, ICE 38, or ICE 44 as witnesses at trial, Defendants shall provide plaintiffs reasonable notice of same. Plaintiffs shall be afforded an opportunity to depose ICE 38 and/or ICE 44 at least 30 days in advance of the trial. (Signed by Magistrate Judge Frank Maas on 4/14/2010) (tro) (Entered: 04/15/2010)

04/15/2010

226 ANSWER to Amended Complaint. Document filed by ICE 58. Related document: 202 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Elena Leon, Tarcis Sapon-Diaz, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La Rosa-Delgado, Yoni Revolorio.(Cargo, Shane) (Entered: 04/15/2010)

04/15/2010

227 ANSWER to Amended Complaint. Document filed by ICE 59. Related document: 202 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Elena Leon, Tarcis Sapon-Diaz, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La Rosa-Delgado, Yoni Revolorio.(Cargo, Shane) (Entered: 04/15/2010)

04/20/2010

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 4/20/2010. (tro) (Entered: 04/29/2010)

04/21/2010

228 ORDER: Pursuant to the conference held earlier today, it is hereby ORDERED that: 1. By April 27, 2010, the parties shall submit a joint proposed schedule encompassing the dates from today's conference. 2. A further settlement conference shall be held on June 11, 2010, at 10:00 a.m. in Courtroom 20A. (Signed by Magistrate Judge Frank Maas on 4/20/2010) Copies Mailed By Chambers.(jfe) (Entered: 04/21/2010)

04/28/2010

229 ORDER, that the defendants' motion to dismiss is due on May 19, 2010. The plaintiffs' response is due June 25, 2010. The reply, if any, is due on July 9, 2010. (Signed by Judge John G. Koeltl on 4/27/10) (pl) (Entered: 04/28/2010)

04/30/2010

230 ANSWER to Amended Complaint. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Janet Napolitano, John Morton, David J. Venturella, Kumar Kibble. Related document: 202 Amended Complaint,,,,,, filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Gloria Vanessa Amaya, Erika Gabriela Garcia Leon, Raul Amaya, Elena Leon, Tarcis Sapon-Diaz, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Yanet Martinez, Pelagia De La RosaDelgado, Yoni Revolorio.(Cargo, Shane) (Entered: 04/30/2010)

05/04/2010 231 SEALED DOCUMENT placed in vault.(cb) (Entered: 05/04/2010)

05/05/2010 232 TRANSCRIPT of proceedings held on 4/20/10 before Magistrate Judge Frank Maas. (ama) (Entered: 05/05/2010)

05/06/2010 233 TRANSCRIPT of proceedings held on 4/27/10 before Judge John G. Koeltl. (ama) (Entered: 05/06/2010)

05/06/2010

234 ENDORSED LETTER addressed to Judge John G. Koeltl from Donna L. Gordon dated 5/5/2010 re: Counsel respectfully request leave to file an additional 10 pages for a total of 50 pages for plaintiffs' memorandum of law in opposition to defendants' motion to dismiss. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge John G. Koeltl on 5/6/2010) (jfe) (Entered: 05/07/2010)

05/07/2010 235 SEALED DOCUMENT placed in vault.(nm) (Entered: 05/07/2010)

05/17/2010

236 STIPULATION AND FOURTH AMENDED SCHEDULING ORDER: ICE will answer the Fourth Amended Complaint by 4/30/2010. Defendants will file their motion to dismiss the injunctive relief and equal protection claims on 5/19/2010. Plaintiffs will file their opposition on 6/25/2010. Defendants will file their reply on 7/9/2010. All expert discovery shall be completed no later than 12/3/2010. Summary judgment motions shall be filed and served no later than 12/22/2010. Opposition to summary judgment motion shall be filed and served no later than 1/25/2011. Replies to summary judgment motions shall be filed and served no later than 2/15/2011. The parties shall be ready for trial on or after 3/31/2011. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 5/17/2010) (tve) (Entered: 05/17/2010)

05/18/2010

237 ENDORSED LETTER: addressed to Judge John G. Koeltl from David Bober dated 5/17/2010 re: The Government requests a 15 page extension of the page limit i.e., for a total of 40 pages, for the forthcoming motion to dismiss. Plaintiffs consent to this request provided that they receive a commensurate extension for their opposition brief. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge John G. Koeltl on 5/17/2010) (js) (Entered: 05/18/2010)

05/19/2010

238 MEMORANDUM OF LAW in Opposition re: 217 MOTION to Stay.. Document filed by Andres Leon, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Adriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez. (Gordon, Donna) (Entered: 05/19/2010)

05/19/2010

239 MEMORANDUM OF LAW in Opposition re: 220 MOTION to Dismiss.. Document filed by Andres Leon, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Yanet Martinez, Gloria Vanessa

Amaya, Elena Leon, Erika Gabriela Garcia Leon, Adriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez. (Gordon, Donna) (Entered: 05/19/2010)

05/19/2010

240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. Responses due by 6/25/2010(Cargo, Shane) (Entered: 05/19/2010)

05/19/2010

241 MEMORANDUM OF LAW in Support re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Cargo, Shane) (Entered: 05/19/2010)

05/19/2010

242 DECLARATION of Shane Cargo in Support re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A, Part 1, # 2 Exhibit A, Part 2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Cargo, Shane) (Entered: 05/19/2010)

05/19/2010

243 DECLARATION of Jeffrey Knopf in Support re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Supplemental Declaration, # 2 Exhibit 1, # 3 Exhibit 2)(Cargo, Shane) (Entered: 05/19/2010)

05/19/2010

244 DECLARATION of Darren Williams in Support re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Supplemental Declaration, # 2 Exhibit A, # 3 Exhibit B)(Cargo, Shane) (Entered: 05/19/2010)

05/20/2010

245 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo dated 5/19/2010 re: Requesting leave to file brief of 20 pages in further support of certain defendants' motion to dismiss the complaint. ENDORSEMENT: Application granted. (Signed by Judge John G. Koeltl on 5/19/2010) (jpo) (Entered: 05/20/2010)

05/21/2010

246 REPLY MEMORANDUM OF LAW in Support re: 220 MOTION to Dismiss.. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff. (Bober, David) (Entered: 05/21/2010)

05/21/2010

247 REPLY MEMORANDUM OF LAW in Support re: 217 MOTION to Stay.. Document filed by Julie L. Myers, John P. Torres, Marcy Forman, Michael Chertoff. (Bober, David) (Entered: 05/21/2010)

05/26/2010

248 NOTICE OF APPEARANCE by Ilona Beth Coleman on behalf of Andres Leon, William Lazaro, Tarcis Sapon-Diaz, Elder Bonilla, Diana Rodriguez, Yoni Revolorio, Juan Jose Mijangos, Gonzalo Escalante, Gloria Vanessa Amaya, Elena Leon, Erika Gabriela Garcia Leon, Adriana Aguilar, Sonia Bonilla, Dalia Velasquez, Beatriz Velasquez, Victor Pineda Morales, Raul Amaya, Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, Bryan Jimenez, Carson Aguilar, Nelly Amaya, Mario Patzan DeLeon, David Lazaro Perez (Coleman, Ilona) (Entered: 05/26/2010)

06/14/2010

249 ENDORSED LETTER addressed to Judge John G. Koeltl from Donna Gordon, Shane Cargo, and Ghita Schwarz dated 6/11/2010 re: We write jointly to request two revisions to the Fourth Amended Scheduling Order, attached hereto as Exhibit A. In sum, the parties jointly request that the Court amend the Fourth Amended Scheduling Order as follows: (1) defendants' deadline to produce an affidavit describing their collection efforts shall be June 17, 2010; (2) plaintiffs' deadline to submit an opposition to defendants' motion to dismiss plaintiffs' injunctive relief claims shall be July 9, 2010, and (3) defendants' deadline to submit their reply in support of their motion to dismiss plaintiffs' injunctive relief claims shall be July 23, 2010. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. ( Replies due by 7/23/2010, Responses due by 7/9/2010) (Signed by Judge John G. Koeltl on 6/11/2010) (jmi) (Entered: 06/14/2010)

06/21/2010

250 ORDER that defendants shall produce the Photographs of the defendants who were present at the Operations that occurred at Plaintiffs' Homes (as each of those terms is defined in plaintiffs' sixth set of document requests) under the following conditions: defendants shall produce to counsel for plaintiffs two hard-copy sets of the Photographs and as further set forth in this document. (Signed by Magistrate Judge Frank Maas on 6/18/10) (cd) (Entered: 06/21/2010)

07/06/2010

251 ENDORSED LETTER addressed to Judge John G. Koeltl from Donna L. Gordon dated 7/2/2010 re: Counsel for Plaintiffs request leave to file an additional twenty pages (for a total of sixty pages) for Plaintiffs' Memorandum of Law in opposition to Defendants' Motion to Dismiss Plaintiffs' Claim for Injunctive Relief. ENDORSEMENT: Application

denied. The responsive brief may not exceed the length of the moving brief. (Signed by Judge John G. Koeltl on 7/2/2010) (tro) (tro). (Entered: 07/06/2010)

07/14/2010 252 SEALED DOCUMENT placed in vault.(nm) (Entered: 07/14/2010)

07/21/2010

253 ENDORSED LETTER addressed to Judge John G. Koeltl from David Bober dated 7/20/10 re: counsel for Defendant respectfully requests permission to submit a 20-page reply memorandum of law in support of the Governments motion to dismiss plaintiffs' injunction- related claims for lack of standing. ENDORSEMENT: Application granted. (Signed by Judge John G. Koeltl on 7/20/10) (pl) (Entered: 07/21/2010)

07/23/2010

254 REPLY MEMORANDUM OF LAW in Support re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Bober, David) (Entered: 07/23/2010)

07/27/2010

255 ORDER, Pursuant to the Court's individual rules of practice, the defendants are directed to provide the Court with a courtesy copy of their fully briefed motion to dismiss the claim for injunctive relief. (Signed by Judge John G. Koeltl on 7/27/2010) (ae) (Entered: 07/27/2010)

07/28/2010

256 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Kelly Librera dated 7/26/10 re: Request for a discovery conference. ENDORSEMENT: The conference will be held in Courtroom 20A on 7/30 at 10 am. (Conference set for 7/30/2010 at 10:00 AM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 7/28/10) (cd) (Entered: 07/28/2010)

07/30/2010

257 MEMORANDUM OF LAW in Opposition re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Gordon, Donna) (Entered: 07/30/2010)

07/30/2010

258 DECLARATION of Donna L. Gordon [REDACTED] in Opposition re: 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa

Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis SaponDiaz, Beatriz Velasquez, Dalia Velasquez. (Gordon, Donna) (Entered: 07/30/2010)

07/30/2010

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Discovery Hearing held on 7/30/2010. (mro) (Entered: 08/18/2010)

08/09/2010

259 ORDER, I have considered the parties' letters, dated August 6 and 9, 2010, regarding the remaining depositions to be taken during the fact discovery phase of this case and rulein the manner that is set forth in this Order. ( Depositions due by 8/13/2010.) (Signed by Magistrate Judge Frank Maas on 8/9/10) Copies Mailed By Chambers. (pl) (Entered: 08/09/2010)

08/09/2010

260 ORDER that a further conference shall be held on September 23,2010, at 2:00 p.m. in Courtroom 20A. SO ORDERED. ( Status Conference set for 9/23/2010 at 02:00 PM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 8/9/2010) (jmi) (Entered: 08/10/2010)

08/12/2010 261 TRANSCRIPT of proceedings held on July 30, 2010 at 10:12 am before Magistrate Judge Frank Maas. (eef) (Entered: 08/13/2010)

08/24/2010

262 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Kelly A. Librera dated 8/23/10 re: counsel for defendants write respectfully to request a one-week extension of the dates set by the Court for letter briefing concerning ICE's search affidavit. The oneweek extension would allow Plaintiffs to submit their letter on September 3, 2010 and Defendants to submit their response on September 10, 2010. Counsel for ICE consents to this request. ENDORSEMENT: Application Granted. So Ordered. (Signed by Magistrate Judge Frank Maas on 8/23/10) (pl) (Entered: 08/25/2010)

08/30/2010

263 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Louis A. Pellegrino dated 8/27/10 re: counsel for the Government respectfully request that the Court extend the Government time to submit its papers on this issue by two weeks, to September 10, and allow plaintiffs to respond to the Government's submission by September 20. ENDORSEMENT: Application Granted. (Signed by Magistrate Judge Frank Maas on 8/30/10) (pl) (Entered: 08/31/2010)

09/08/2010

***REJECTION OF ATTEMPTED PAPER FILING IN ECF CASE. The following document(s) Notice Of Appearance Brandon H. Cowart, was rejected by the Clerk's Office and must be FILED ELECTRONICALLY on the Court's ECF System. (jab) (Entered: 09/08/2010)

09/10/2010

264 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Shane Cargo dated 9/10/10 re: We respectfully request that the deadline for the declaration be stayed pending the outcome of the parties' negotiations. Second, we seek a one-week extension of our response to the plaintiffs' September 3, 2010, letter to the Court concerning ICE's collection and preservation efforts. ENDORSEMENT: Application granted. So ordered. (Signed by Magistrate Judge Frank Maas on 9/10/10) (rjm) (Entered: 09/13/2010)

09/17/2010

265 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Ilona B. Coleman dated 9/13/2010 re: Plaintiffs request permission to file their substantive response (to defendants 8/26 request for a protective order) by noon on 9/22/2010. ENDORSEMENT: Application Granted. ( Responses due by 9/22/2010) (Signed by Magistrate Judge Frank Maas on 9/17/2010) (jar) (Entered: 09/17/2010)

10/01/2010

267 ORDER: The parties shall comply with my discovery directives issued during the conference. The expert discovery schedule is amended as follows: Plaintiffs' expert reports shall be served by November 12, 2010. Defendants' expert reports shall be served by December 3, 2010. Any rebuttal reports shall be served by December 12, 2010. Expert discovery shall be concluded by January 14, 2011. A further conference shall be held on December 17,2010, at 10 a.m., in Courtroom 20A. (Signed by Magistrate Judge Frank Maas on 9/30/2010) Copies Mailed By Chambers. (jpo) (Entered: 10/12/2010)

10/04/2010 266 TRANSCRIPT of proceedings held on September 23, 2010 2:21 p.m. before Magistrate Judge Frank Maas. (ajc) (Entered: 10/05/2010)

10/15/2010

268 ENDORSED LETTER addressed to Judge John G. Koeltl from Jennifer Opheim Whitener dated 10/13/10 re: Request for an extension of time until 10/18/10 to file an Objection to the Report and Recommendation. ENDORSEMENT: APPLICATION GRANTED. SO ORDERED. Set Deadline as to (Objections to R&R due by 10/18/2010). (Signed by Judge John G. Koeltl on 10/14/10) (db) (Entered: 10/15/2010)

11/08/2010

269 DISCOVERY ORDER. In sum, for the reasons set forth above, the Court adheres to its prior ruling and declines to allow plaintiffs an additional fact deposition. (Signed by Magistrate Judge Frank Maas on 11/8/10) Copies Sent By Chambers. (djc) (Entered: 11/08/2010)

12/03/2010

270 FIFTH AMENDED SCHEDULING ORDER: By letter dated December 2, 2010, the parties have requested a fifth amendment of the pretrial schedule in this case, which is now more than three years old. Having conferred with Judge Koeltl, I grant the application solely to the following extent: Expert discovery shall be concluded by February 18, 2011. Summary judgment motions shall be served and filed by March 11, 2011. Judge Koeltl requires pre-motion conferences. Accordingly, any party seeking to move for summary judgment shall request a conference early enough for the conference to be held before the motion is due. If summary judgment motions are filed, opposition papers shall be served and filed by April 1, and any reply papers shall be served and filed by April 15, 2011. The joint pretrial order shall be submitted to the Court by April 29, 2011, and the parties shall be ready for trial on 48 hours' notice as of May 13, 2011. Additional relief as set forth in this Order. (Signed by Magistrate Judge Frank Maas on 12/3/10) Copies Sent By Chambers. (pl) (Entered: 12/06/2010)

12/05/2010 275 TRANSCRIPT of proceedings held on November 18, 2010 at 10:45 a.m. before Judge Richard M. Berman. (js) (Entered: 01/14/2011)

12/05/2010 276 TRANSCRIPT of proceedings held on December 17, 2010 at 10:15 a.m. before Magistrate Judge Frank Maas. (js) (Entered: 01/14/2011)

12/17/2010

271 ORDER: Pursuant to the conference held earlier today, it is hereby ORDERED that defendants' expert report regarding the psychological effects of being wakened unexpectedly shall be submitted by January 21, 2011. Plaintiffs' rebuttal report shall be due February 7, 2011. (Signed by Magistrate Judge Frank Maas on 12/17/10) Copies Mailed By Chambers. (mro) (Entered: 12/17/2010)

12/17/2010

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Status Conference held on 12/17/2010. (mbe) (Entered: 12/20/2010)

12/22/2010

272 MOTION to Certify Class. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez.(Gordon, Donna) (Entered: 12/22/2010)

01/03/2011

273 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo dated 12/30/10 re: We respectfully request leave to respond to plaintiffs' letter by January 5, 2011. ENDORSEMENT: Application

granted. So ordered. (Signed by Judge John G. Koeltl on 1/3/11) (rjm) (Entered: 01/03/2011)

01/06/2011

Minute Entry for proceedings held before Magistrate Judge Frank Maas: Telephone Conference held on 1/6/2011. (mro) (Entered: 01/10/2011)

01/11/2011

274 ORDER, the Officials' motion for a stay of discovery, (ECF No. 217 ), is granted with respect to Plaintiffs' interrogatories and the Officials' Rule 26(a) disclosures, but denied with respect to Plaintiffs' document requests. SO ORDERED. (Signed by Magistrate Judge Frank Maas on 1/11/2011) Copies Sent By Chambers. (lnl) (Entered: 01/11/2011)

01/25/2011

277 ORDER: By February 1, 2011, the parties shall submit a joint letter no longer than five pages (i.e., two and one-half pages for each side) addressing plaintiffs' proposed motion to preclude the testimony of Claudio Saa and Bradley Lawrence. Plaintiffs' experts' rebuttal reports shall be served on or before February 1, 2011, with the exception of Plaintiffs' sleep expert's rebuttal report, which shall be served on or before February 7, 2011. Depositions of experts shall be completed by February 25, 2011. Each expert is to be deposed on the earliest feasible date for a maximum ofseven hours. (Deposition due by 2/25/2011.) (Signed by Magistrate Judge Frank Maas on 1/25/2011) Copies Sent By Chambers. (jar) (Entered: 01/25/2011)

02/07/2011

Minute Entry for proceedings held before Judge John G. Koeltl: Conference held on 2/7/2011. (mro) (Entered: 03/03/2011)

02/14/2011 280 TRANSCRIPT of proceedings held on 12/17/2010 before Magistrate Judge Frank Maas. (jpo) (Entered: 02/16/2011)

02/14/2011

Minute Entry for proceedings held before Judge John G. Koeltl: Conference held on 2/14/2011. (mro) (Entered: 03/03/2011)

02/15/2011

278 ORDER. As discussed during today's telephone conference, the parties are directed to appear on March 8, 2011, at 4:00 p.m., for a hearing on the pending motions to dismiss. Set Deadlines/Hearing as to 220 MOTION to Dismiss. 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief. (Motion Hearing set for 3/8/2011 at 04:00 PM before Judge John G. Koeltl.) (Signed by Judge John G. Koeltl on 2/14/2011) (rjm) (Entered: 02/15/2011)

02/15/2011

279 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo dated 2/15/2011 re: We respectfully request that the briefing schedule for summary-judgment motions be held in abeyance until the March 8 hearing, and that at that hearing, the Court address the timing of the parties' pre-motion letters and summary-judgment motions.

ENDORSEMENT: Application granted. So ordered. (Signed by Judge John G. Koeltl on 2/15/2011) (rjm) (Entered: 02/15/2011)

02/22/2011

281 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Krista Ellis dated 2/15/11 re: Plaintiffs request that the Court order ICE to produce any additional documents responsive to Plaintiffs' requests that are in the Officials' possession, custody, or control immediately, but no later than 2/24/11. ENDORSEMENT: All documents from the files of Chertoff, Myers, Torres, and Forman are to be produced by 3/25/11. (Signed by Magistrate Judge Frank Maas on 2/21/11) (cd) (Entered: 02/22/2011)

02/22/2011

282 ENDORSED LETTER addressed to Magistrate Judge Frank Maas from David Bober and Shane Cargo dated 2/17/11 re: Request that the parties be permitted to conduct the depositions of two experts, Brad Lawrence and Claudio Saa during the week of 2/28. ENDORSEMENT: Application granted. (Signed by Magistrate Judge Frank Maas on 2/21/11) (cd) (Entered: 02/22/2011)

03/08/2011

Minute Entry for proceedings held before Judge John G. Koeltl: Oral Argument held on 3/8/2011 re: 220 MOTION to Dismiss. filed by Michael Chertoff, Julie L. Myers, Marcy Forman, John P. Torres, 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief. filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (mbe) (Entered: 04/01/2011)

03/24/2011 284 TRANSCRIPT of proceedings held on 3/08/2011 before Judge John G. Koeltl. (ama) (Entered: 03/28/2011)

03/25/2011 283 TRANSCRIPT of proceedings held on 3/8/2011 before Judge John G. Koeltl. (mbe) (Entered: 03/25/2011)

04/06/2011

285 DISCOVERY ORDER: For the reasons set forth on this Order, Plaintiff's letter application to preclude Lawrence and Saa from testifying at trial and to shift to Defendants the cost of their depositions is denied. (Signed by Magistrate Judge Frank Maas on 4/6/2011) Copies Sent By Chambers. (ab) (Entered: 04/06/2011)

08/01/2011

286 OPINION AND ORDER #100599 re: 220 MOTION to Dismiss filed by Michael Chertoff, Julie L. Myers, Marcy Forman, John P. Torres and 240 MOTION to Dismiss Plaintiffs' Claim for Injunctive Relief filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. The Court has carefully considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the defendants' motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6) is granted with prejudice with respect to the Fourth Amendment claims against defendants Chertoff and Myers and the Fifth Amendment claims against all of the Supervisory Defendants. The motion to dismiss is denied with respect to the Fourth Amendment claims against Torres and Forman. The defendants' motion to dismiss the claims for injunctive relief for lack of standing under Federal Rule of Civil Procedure 12(b)(1) is denied without prejudice. Finally, the defendants' motion for judgment on the pleadings dismissing the claims for injunctive relief is denied. The Clerk is directed to close Docket Nos. 220 and 240. (Signed by Judge John G. Koeltl on 7/29/2011) (mro) Modified on 8/2/2011 (ajc). (Entered: 08/01/2011)

08/02/2011

287 NOTICE OF COURT CONFERENCE: You are directed to appear for a pretrial conference, to be held on Thursday, August 11, 2011 at 2:30 p.m. in Courtroom 12B, in front of the Honorable John G. Koeltl. So Ordered. (js) (Entered: 08/03/2011)

08/11/2011

Set/Reset Deadlines: Motions due by 10/21/2011. Responses due by 12/2/2011 Replies due by 12/16/2011. (mro) (Entered: 08/12/2011)

08/11/2011

Minute Entry for proceedings held before Judge John G. Koeltl: Initial Pretrial Conference held on 8/11/2011. (lmb) (Entered: 08/16/2011)

08/12/2011

288 ORDER: On the record at today's conference, the Court notified the parties of its intention to appoint Richard J. Davis, Esq. of Weil, Gotshal & Manges LLP as the pro bono special master in this case to mediate a possible settlement. The Court now appoints Mr. Davis the pro bono settlement special master pursuant to Federal Rule of Civil Procedure 53. The special master's duties are solely to attempt to mediate a settlement. The parties are directed to contact the special master promptly to provide him with the necessary background information regarding this case. The special master should promptly file an affidavit disclosing whether there are any grounds for disqualification pursuant to Federal Rule of Civil Procedure 53(a) (2) and (b) (3) (A). (Signed by Judge John G. Koeltl on 8/11/2011) (mro) (Entered: 08/12/2011)

08/12/2011

289 ORDER withdrawing 272 Motion to Certify Class. As stated at the conference held today, the plaintiffs shall file their motion for class certification by September 22, 2011. The defendants' response is due October 21, 2011. The plaintiffs' reply is due November 4, 2011. In addition, all motions for summary judgment shall be filed by October 21, 2011. The due date for response, is December 2, 2011. All replies shall be filed by December 16, 2011. The plaintiffs indicated at the conference today that their prior motion for class certification has been

withdrawn. The clerk is directed to close Docket No. 272. (Signed by Judge John G. Koeltl on 8/11/2011) (mro) Modified on 8/15/2011 (mro). (Entered: 08/12/2011)

08/18/2011 290 AFFIDAVIT of Richard J. Davis. Document filed by Richard J. Davis. (Davis, Richard) (Entered: 08/18/2011)

08/22/2011 291 AFFIDAVIT of Richard J. Davis (Supplemental). Document filed by Richard J. Davis. (Davis, Richard) (Entered: 08/22/2011)

09/16/2011 292 ANSWER to 202 Amended Complaint,,,,,,. Document filed by John P. Torres.(Cargo, Shane) (Entered: 09/16/2011)

09/22/2011

293 NOTICE OF APPEARANCE by Aldo A Badini on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez (Badini, Aldo) (Entered: 09/22/2011)

09/22/2011

294 MOTION to Certify Class. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit of Service)(Badini, Aldo) (Entered: 09/22/2011)

09/26/2011

295 NOTICE OF WITHDRAWAL OF APPEARANCE AND ORDER: PLEASE TAKE NOTICE THAT Ilona Beth Coleman, of Dewey & LeBoeuf, LLP, hereby withdraws her notice of appearance on behalf of plaintiffs Adriana Aguilar, et al. (Signed by Magistrate Judge Frank Maas on 9/26/2011) (rdz) (Entered: 09/26/2011)

10/07/2011 296 ANSWER to 202 Amended Complaint,,,,,,. Document filed by Marcy Forman.(Cargo, Shane) (Entered: 10/07/2011)

10/14/2011

297 MEMORANDUM OF LAW in Support re: 294 MOTION to Certify Class.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan

Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 10/14/2011)

10/14/2011 298 SEALED DOCUMENT placed in vault.(nm) (Entered: 10/14/2011)

10/19/2011

299 MEMO ENDORSEMENT on NOTICE OF WITHDRAWAL OF APPEARANCE re Krista M. Ellis of Dewey & LeBoeuf LLP, withdraws her appearance as counsel to Plaintiffs Adriana Aguilar, et al.: SO ORDERED. (Signed by Judge John G. Koeltl on 10/18/2011) (ab) (Entered: 10/19/2011)

10/19/2011

300 MEMO ENDORSEMENT on NOTICE OF WITHDRAWAL OF APPEARANCE re Rebecca Reilly of Dewey & LeBoeuf LLP, withdraws her appearance as counsel to Plaintiffs Adriana Aguilar, et al.: SO ORDERED. (Signed by Judge John G. Koeltl on 10/18/2011) (ab) (Entered: 10/19/2011)

10/19/2011

301 ENDORSED LETTER addressed to Judge John G. Koeltl from Shane Cargo dated 10/18/2011 re: The Government writes to request a oneweek adjournment of the government's time to respond to the classcertification motion and an adjournment of the other deadlines set forth in the Order. ENDORSEMENT: APPLICATION GRANTED. (Set Deadlines/Hearing as to 294 MOTION to Certify Class: Responses due by 10/28/2011. Replies due by 11/14/2011. Motions due by 10/28/2011. Responses due by 12/9/2011. Replies due by 12/23/2011.) (Signed by Judge John G. Koeltl on 10/18/2011) (ab) (Entered: 10/19/2011)

10/25/2011

302 MEMO ENDORSEMENT on NOTICE OF WITHDRAWAL OF APPEARANCE re Krista M. Ellis of Dewey & LeBoeuf LLP, withdraws her appearance as counsel to Plaintiffs Adriana Aguilar, et al. ENDORSEMENT: So Ordered. (Signed by Judge Alvin K. Hellerstein on 10/24/2011) (jfe) (Entered: 10/25/2011)

10/27/2011

303 NOTICE OF APPEARANCE by Lawrence Steven Hirsh on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez (Hirsh, Lawrence) (Entered: 10/27/2011)

10/28/2011

304 MOTION for Partial Summary Judgment. Document filed by Sonia Bonilla, Pelagia De La Rosa-Delgado, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, Beatriz Velasquez, Dalia Velasquez.(Hirsh, Lawrence) (Entered: 10/28/2011)

10/28/2011

305 FIRST MOTION for Summary Judgment of Five Bivens Defendants.. Responses due by 12/9/2011 Return Date set for 12/23/2011 at 12:00 PM.(Cargo, Shane) (Entered: 10/28/2011)

10/31/2011

306 AFFIDAVIT OF SERVICE of Notice of Motion Partial Summary Judgment and Supporting Papers on 10/28/2011. Document filed by Sonia Bonilla, Pelagia De La Rosa-Delgado, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, Beatriz Velasquez, Dalia Velasquez. (Hirsh, Lawrence) (Entered: 10/31/2011)

11/14/2011

307 NOTICE of Affidavit of Service of Plaintiffs Reply Memorandum and Declaration of Aldo A. Badini in Support of Class Certification Motion re: 294 MOTION to Certify Class.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 11/14/2011)

11/15/2011

308 NOTICE OF CASE REASSIGNMENT to Judge Katherine B. Forrest. Judge John G. Koeltl is no longer assigned to the case. (pgu) (Entered: 11/15/2011)

11/23/2011 309 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/23/2011)

11/23/2011

310 REPLY MEMORANDUM OF LAW in Support re: 294 MOTION to Certify Class.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 11/23/2011)

11/23/2011

311 MEMORANDUM OF LAW in Opposition re: 294 MOTION to Certify Class.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, The United States of America. (Cargo, Shane) (Entered: 11/23/2011)

11/30/2011

312 ORDER: IT IS HEREBY ORDERED that the parties shall appear on January 4, 2012, at 2:00 p.m. in Courtroom l5A, United States Courthouse, 500 Pearl Street, New York, NY 10007, for oral argument on Plaintiffs' Motion for Class Certification. (Oral Argument set for 1/4/2012 at 02:00 PM in Courtroom 15A, 500 Pearl Street, New York, NY 10007 before Judge Katherine B. Forrest). (Signed by Judge Katherine B. Forrest on 11/30/2011) (fk) (Entered: 11/30/2011)

11/30/2011

313 NOTICE OF WITHDRAWAL OF APPEARANCE AND ORDER: that Kelly H. Tsai of Dewey & LeBoeuf LLP, hereby withdraws her notice of appearance as counsel to plaintiffs Adriana Aguilar. et al in the above referenced proceeding. (Signed by Judge Katherine B. Forrest on 11/30/2011) (js) (Entered: 11/30/2011)

12/01/2011

314 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Christina Iturralde to Withdraw as Attorney. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit of Christina Iturralde, # 2 Exhibit Certificate of Service by Christina Iturralde)(Iturralde, Christina) Modified on 12/1/2011 (db). (Entered: 12/01/2011)

12/01/2011

***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Christina Iturralde to RE-FILE Document 314 MOTION for Christina Iturralde to Withdraw as Attorney. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 12/01/2011)

12/01/2011

315 MOTION for Christina Iturralde to Withdraw as Attorney. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1),

John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez.(Iturralde, Christina) (Entered: 12/01/2011)

12/01/2011

316 AFFIDAVIT of Christina Iturralde in Support re: 315 MOTION for Christina Iturralde to Withdraw as Attorney.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Iturralde, Christina) (Entered: 12/01/2011)

12/01/2011

317 CERTIFICATE OF SERVICE of Motion to Withdraw served on All Counsel of Record on 12/1/11. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Iturralde, Christina) (Entered: 12/01/2011)

12/05/2011

318 MEMO-ENDORSEMENT re: granting 315 Motion to Withdraw as Attorney. Attorney Christina Iturralde terminated. (Signed by Judge Katherine B. Forrest on 12/2/2011) (pl) (Entered: 12/05/2011)

12/08/2011

319 ENDORSED LETTER: addressed to Judge Katherine B. Forrest from Shane Cargo dated 12/7/2011 re: Counsel for defendant requests an adjournment of the deadline to respond to plaintiffs' motion for summary judgment. the current deadline is December 9, 2011 Plaintiffs request the following schedule which defendants Counsel consents to:

Both parties' summary judgment oppositions due December 23, 2011 and both parties summary judgment replies due by January 20, 2012. ENDORSEMENT: OK So Ordered. (Signed by Judge Katherine B. Forrest on 12/8/2011) (js) (Entered: 12/08/2011)

12/09/2011

320 MOTION for Aaron R. Hand to Appear Pro Hac Vice. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez.(bwa) (Entered: 12/13/2011)

12/15/2011

CASHIERS OFFICE REMARK on 320 Motion to Appear Pro Hac Vice,, in the amount of $200.00, paid on 12/09/2011, Receipt Number 1024050. (jd) (Entered: 12/15/2011)

12/16/2011

321 ORDER FOR ADMISSION PRO HAC VICE FOR ADMISSION PRO HAC VICE: granting 320 Motion for Aaron R. Hand to Appear Pro Hac Vice to practice Pro Hac Vice in the above captioned case in the United States District Court for the Southern District of New York. Additional relief as set forth in this Order. (Signed by Magistrate Judge Frank Maas on 12/16/2011) (pl) Modified on 12/16/2011 (pl). (Entered: 12/16/2011)

12/27/2011

322 AFFIDAVIT OF SERVICE of Plaintiffs' Opposition Papers to the Five Bivens Defendants' Motion for Partial Summary Judgment on 12/23/2011. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 12/27/2011)

01/04/2012

Minute Entry for proceedings held before Judge Katherine B. Forrest: Show Cause Hearing on Class Certification held on 1/4/2012. (jp) (Entered: 01/04/2012)

01/04/2012

323 ORDER: it is hereby ORDERED that if Defendants choose, they may submit a response to Plaintiffs' letter, dated January 4, 2012, and the materials attached thereto. {The length of the submission should not exceed three pages single-spaced (exclusive of letterhead and signature block).) IT IS FURTHER ORDERED that Plaintiffs may submit supplemental briefing on the questions raised by the Court at oral argument no later than January 25, 2012, with Defendants' response thereto filed no later than February 15, 2012. The parties' supplemental briefs should aim to be no longer than fifteen pages and should comply with this Court's Individual Practices Rules in all other respects. If Plaintiffs seek to reply to either Defendants' response to the January 4 letter or to Defendants' supplemental submission, they should email chambers at ForrestNYSDChambers@nysd.uscourts.gov, requesting such an opportunity. (Signed by Judge Katherine B. Forrest on 1/4/2012) (js) (Entered: 01/05/2012)

01/04/2012

Set/Reset Deadlines: Responses due by 2/15/2012 (js) (Entered: 01/05/2012)

01/10/2012

324 ORDER: IT IS HEREBY ORDERED that Plaintiffs shall file their 1/4/2012, letter and supplemental materials on the docket in this matter. (Signed by Judge Katherine B. Forrest on 1/10/2012) (ft) (Entered: 01/10/2012)

01/11/2012

325 NOTICE of Electronic Filing of Plaintiffs' January 4, 2012 Letter Attaching Supplemental Authority Concerning Class Certification. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis SaponDiaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Letter to Honorable Katherine B. Forrest, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Hand, Aaron) (Entered: 01/11/2012)

01/23/2012

326 MEMORANDUM OF LAW in Support re: 304 MOTION for Partial Summary Judgment.. Document filed by Sonia Bonilla, Pelagia De La Rosa-Delgado, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 01/23/2012)

01/23/2012 327 SEALED DOCUMENT placed in vault.(mps) (Entered: 01/24/2012)

01/25/2012

328 AFFIDAVIT OF SERVICE on 1/20/2012. Service was made by Electronic Mail. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Whitener, Jennifer) (Entered: 01/25/2012)

01/26/2012

329 AFFIDAVIT OF SERVICE of Plaintiffs' Supplemental Brief in Support of Their Motion for Class Certification; Declaration of Aaron R. Hand in Support of Plaintiffs' Supplemental Brief in Support Their Motion for Class Certification, and attached Exhibits; and Declaration of Ghita Schwarz in Support of Plaintiffs' Supplemental Brief in Support of Their Motion for Class Certification, and attached Exhibits on 01/25/2012. Service was made by Electronic Mail. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Hand, Aaron) (Entered: 01/26/2012)

01/30/2012

330 NOTICE OF CHANGE OF ADDRESS by Ghita Schwarz on behalf of Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. New Address: Center for Constitutional Rights, 666 Broadway, Seventh Floor, New York, NY, United States 10012, (212) 614-6445. (Schwarz, Ghita) (Entered: 01/30/2012)

02/10/2012

331 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Shane Cargo dated 2/10/2012 re: The Government writes to request a two-day adjournment to 2/17/2012 of the deadline to respond to plaintiffs' 1/25/2012 supplemental brief in support of their motion for class certification. ENDORSEMENT: OK. (Responses due by

2/17/2012) (Signed by Judge Katherine B. Forrest on 2/10/2012) (ab) (Entered: 02/10/2012)

02/21/2012

332 REPLY MEMORANDUM OF LAW in Support re: 304 MOTION for Partial Summary Judgment.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 02/21/2012)

02/21/2012

333 MEMORANDUM OF LAW in Opposition re: 305 FIRST MOTION for Summary Judgment of Five Bivens Defendants.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 02/21/2012)

02/21/2012

334 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 294 MOTION to Certify Class.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 02/21/2012)

02/21/2012 335 SEALED DOCUMENT placed in vault.(mps) (Entered: 02/21/2012)

02/22/2012 336 SEALED DOCUMENT placed in vault.(mps) (Entered: 02/22/2012)

02/23/2012

337 ORDER: IT IS HEREBY ORDERED that plaintiffs are granted leave to file a reply (of not more than ten pages double-spaced) to defendants' supplemental response by March 2, 2012. (Signed by Judge Katherine B. Forrest on 2/23/2012) (lmb) (Entered: 02/23/2012)

02/28/2012 338 SEALED DOCUMENT placed in vault.(nm) (Entered: 02/28/2012)

03/02/2012

339 NOTICE OF APPEARANCE by Elizabeth Joynes on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez (Joynes, Elizabeth) (Entered: 03/02/2012)

03/02/2012

340 AFFIDAVIT OF SERVICE of Plaintiff's Supplemental Reply Brief In Support Of Their Motion For Class Certification and Declaration of Aaron R. Hand In Support of Plaintiffs' Supplemental Reply Brief on Class Certification with Exhibits on 3/2/2012. Service was made by Electronic Mail. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Hand, Aaron) (Entered: 03/02/2012)

03/14/2012

341 SUPPLEMENTAL REPLY MEMORANDUM OF LAW in Support re: 294 MOTION to Certify Class.. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Badini, Aldo) (Entered: 03/14/2012)

03/14/2012 342 SEALED DOCUMENT placed in vault.(mps) (Entered: 03/14/2012)

03/20/2012

343 SUPPLEMENTAL REPLY MEMORANDUM OF LAW in Opposition re: 294 MOTION to Certify Class.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, The United States of America. (Cargo, Shane) (Entered: 03/20/2012)

03/20/2012

344 MEMORANDUM OF LAW in Opposition re: 304 MOTION for Partial Summary Judgment.. Document filed by ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 50, ICE 51, ICE 52. (Cargo, Shane) (Entered: 03/20/2012)

03/20/2012

345 MEMORANDUM OF LAW in Support re: 305 FIRST MOTION for Summary Judgment of Five Bivens Defendants.. (Cargo, Shane) (Entered: 03/20/2012)

03/20/2012

346 REPLY MEMORANDUM OF LAW in Support re: 305 FIRST MOTION for Summary Judgment of Five Bivens Defendants.. (Cargo, Shane) (Entered: 03/20/2012)

04/16/2012

347 OPINION & ORDER: #101719 Plaintiffs' motion for class certification is DENIED. The Clerk of the Court is directed to terminate the motion at Docket No. 294. (Signed by Judge Katherine B. Forrest on 4/16/2012) (ft) Modified on 4/19/2012 (jab). (Entered: 04/16/2012)

04/30/2012

348 MEMORANDUM & ORDER denying 304 Motion for Partial Summary Judgment; denying 305 Motion for Summary Judgment. For the aforementioned reasons, plaintiffs' motion for partial summary judgment is DENIED and defendants' motion for summary judgment as to the five moving defendant ICE agents is also DENIED. The Clerk of the Court is directed to terminate the motions at Docket Nos. 304 and 305. (Signed by Judge Katherine B. Forrest on 4/30/2012) (lmb) (Entered: 04/30/2012)

05/11/2012

349 NOTICE OF WITHDRAWAL OF APPEARANCE: Please take notice that Urvashi Sen of Dewey & LeBoeuf LLP. hereby withdraws her appearance as counsel to Plaintiffs Adriana Aguilar, et al, in the above referenced proceeding (Signed by Judge John G. Koeltl on 5/9/2012) (js) (Entered: 05/11/2012)

05/15/2012

350 ORDER: IT IS HEREBY ORDERED that the parties are to appear for a status conference in the above-captioned matter on May 30, 2012, at 1:30 p.m. The parties should be prepared to discuss their availability for the trial in this matter, which will occur within the calendar year (i.e., within 2012)., ( Status Conference set for 5/30/2012 at 01:30 PM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 5/15/2012) (lmb) (Entered: 05/15/2012)

05/16/2012

351 PROPOSED MOTION for Jackson Chin to Withdraw as Attorney. Document filed by Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Jane Doe, John Doe(#1), John Doe(#3 through his next friend Jane Doe #1), John Doe(#5 on behalf of themselves and all others similarly situated), John

Doe(#2 through his next friend Jane Doe #1), John Doe, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis SaponDiaz, Beatriz Velasquez, Dalia Velasquez.(Chin, Jackson) (Entered: 05/16/2012)

05/17/2012

352 NOTICE OF WITHDRAWAL OF APPEARANCE AND ORDER. PLEASE TAKE NOTICE that Jackson Chin of LatinoJustice PRLDEF hereby withdraws his notice of appearance as counsel to plaintiffs Adriana Aguilar, et al. in the above referenced proceeding. (Signed by Judge Katherine B. Forrest on 5/17/2012) (rjm) (Entered: 05/17/2012)

05/21/2012

353 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Ghita Schwarz dated 5/21/2012 re: request that the scheduling conference be adjourned. ENDORSEMENT: Granted. Adjourned to 6/14/2012 at 11:30 a.m. (Scheduling Conference set for 6/14/2012 at 11:30 AM before Judge Katherine B. Forrest.) (Signed by Judge Katherine B. Forrest on 5/21/2012) (jar) (Entered: 05/21/2012)

05/29/2012

354 NOTICE OF CHANGE OF ADDRESS by Aldo A Badini on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. New Address: Winston & Strawn LLP, 200 Park Avenue, New York, NY, 10166, 212-294-4601. (Badini, Aldo) (Entered: 05/29/2012)

05/29/2012

355 NOTICE OF CHANGE OF ADDRESS by Kelly Anne Librera on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. New Address: Winston & Strawn LLP, 200 Park Avenue, New York, NY, 10166, 212-294-4622. (Librera, Kelly) (Entered: 05/29/2012)

05/29/2012

356 NOTICE OF CHANGE OF ADDRESS by Jennifer Marie Opeim on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Yanet Martinez, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. New Address: Winston & Strawn LLP, 200 Park Avenue, New York, NY, 10166, 212-294-4688. (Opeim, Jennifer) (Entered: 05/29/2012)

06/14/2012

357 SCHEDULING ORDER: The Government's opposition to plaintiff's expert reports on plaintiffs' psychological evaluations is due no later than July 16, 2012, with any rebuttal thereto by plaintiffs' experts due August 16, 2012 (with the exception of Dr. Lowe whose rebuttal report shall be file no later than September 7, 2012; Motions in Limine, voir dire, and requests to charge due by 9/20/2012. Responses due by 10/2/2012; Final Pretrial Conference set for 10/5/2012 at 11:00 AM before Judge Katherine B. Forrest. Joint Pretrial Order due by 9/20/2012. Trial in this matter is set to commence on October 22, 2012(Signed by Judge Katherine B. Forrest on 6/14/2012) (djc) (Entered: 06/14/2012)

06/14/2012

Minute Entry for proceedings held before Judge Katherine B. Forrest: Status Conference held on 6/14/2012. The Final Pretrial Conference is set for 10/5/2012 at 11:00 PM before Judge Katherine B. Forrest. The Jury Trial in this action is set for 10/22/2012 at 09:00 AM. (jp) (Entered: 06/14/2012)

06/15/2012

358 ORDER: Discovery having been completed, the Clerk of the Court is requested to close the reference in this case. (Signed by Magistrate Judge Frank Maas on 6/15/2012) Copies Sent By Chambers. (jfe) (Entered: 06/15/2012)

06/15/2012

CASE NO LONGER REFERRED to Magistrate Judge Frank Maas. (jfe) (Entered: 06/15/2012)

07/16/2012

359 MANDATE of USCA (Certified Copy) USCA Case Number 12-1853. Petitioners, through counsel, moves pursuant to Federal Rule of Civil Procedure 23(f) for leave to appeal the District Court's order denying their motion for class certification. Upon due consideration, it is hereby ORDERED that the petition is DENIED because an immediate appeal is unwarranted. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 07/13/2012. (nd) (Entered: 07/16/2012)

07/31/2012

360 MOTION in Limine. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit Declaration of Service)(Schwarz, Ghita) (Entered: 07/31/2012)

08/03/2012

361 MEMORANDUM OF LAW in Support re: 360 MOTION in Limine. To Exclude Defendants' Proposed Expert. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Schwarz, Ghita) (Entered: 08/03/2012)

08/06/2012

362 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Ghita Schwarz dated 8/6/2012 re: Plaintiffs writes to respond to Defendants' letter of 8/3/2012. ENDORSEMENT: The Clerk of Court is directed to place this letter on the public docket. (Signed by Judge Katherine B. Forrest on 8/6/2012) (jfe) (Entered: 08/06/2012)

08/06/2012

363 ENDORSED LETTER addressed to Judge Katherine B. Forrest from David Bober dated 8/3/2012 re: Counsel writes in response to plaintiffs' letter of 7/17/12. ENDORSEMENT: The Clerk of Court is directed to place this letter on the public docket. (Signed by Judge Katherine B. Forrest on 8/6/2012) (jfe) (Entered: 08/06/2012)

08/06/2012

364 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Ghita Schwarz dated 7/17/2012 re: Plaintiffs respectfully request that 1) the Court remove the designation of "Highly Confidential - Attorneys' Eyes Only" from individual Defendants' identities; and 2) the Court order Defendants to comply with Judge Maas's order of April 20, 2010 by providing Plaintiffs with documentation assigning individual Defendant names to Defendants' photographs. ENDORSEMENT: 1. Defendant's agreement to limited lifting of the confidentiality restrictions regarding identities shall be followed. 2. A new document requiring a matching of photographs with names is not required at this time. (Signed by Judge Katherine B. Forrest on 8/6/2012) (jfe) (Entered: 08/06/2012)

08/09/2012

365 NOTICE OF WITHDRWAL OF APPEARANCE AND ORDER:that Aaron R. Hand of Bunsow, De Mory, Smith & Allison LLP (formerly with Dewey & Le Boeuf LLP), hereby withdraws his appearance as counsel for Plaintiffs Adriana Aguilar, et al., in the above referenced proceedings. (Signed by Judge Katherine B. Forrest on 8/8/2012) (pl) (Entered: 08/09/2012)

08/13/2012

366 ENDORSED LETTER addressed to Judge Katherine B. Forrest from David Bober dated 8/10/2012 re: United States Attorneys Office writes to request a one-week extension of time from 8/14/2012 until 8/21/2012 to respond to plaintiff's motion. Should the Court grant the request, we consent to a corresponding one-week extension for plaintiffs to serve reply papers. ENDORSEMENT: Extensions granted. (Signed by Judge Katherine B. Forrest on 8/13/2012) (ago) Modified on 8/15/2012 (ago). (Entered: 08/13/2012)

08/13/2012

Set/Reset Deadlines: Responses due by 8/28/2012 (ago) (Entered: 08/15/2012)

08/17/2012 367 SEALED DOCUMENT placed in vault.(mps) (Entered: 08/17/2012)

08/17/2012

368 MOTION in Limine to Exclude Defendants' Proposed Expert Claudio Saa. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit)(Schwarz, Ghita) (Entered: 08/17/2012)

08/21/2012

369 MEMORANDUM OF LAW in Opposition re: 360 MOTION in Limine. to Exclude Testimony of Massad Ayoob. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Pellegrino, Louis) (Entered: 08/21/2012)

08/23/2012

370 MOTION in Limine. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit Declaration of service)(Librera, Kelly) (Entered: 08/23/2012)

08/24/2012

371 NOTICE OF APPEARANCE by George Eric Mastoris on behalf of Adriana Aguilar, Carson Aguilar, Gloria Vanessa Amaya, Nelly Amaya, Raul Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez (Mastoris, George) (Entered: 08/24/2012)

08/27/2012

372 MEMORANDUM OF LAW in Support re: 368 MOTION in Limine to Exclude Defendants' Proposed Expert Claudio Saa.. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Schwarz, Ghita) (Entered: 08/27/2012)

08/28/2012

373 MOTION in Limine to Exclude the Testimony of Defendants' Proposed Expert Ruben Salamanca. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Declaration of Service)(Librera, Kelly) (Entered: 08/28/2012)

08/29/2012

374 MEMORANDUM OF LAW in Support re: 370 MOTION in Limine. to Exclude the Testimony of Defendants' Proposed Expert Bryan Vila. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Librera, Kelly) (Entered: 08/29/2012)

08/29/2012 375 SEALED DOCUMENT placed in vault.(mps) (Entered: 08/30/2012)

08/30/2012 376 SEALED DOCUMENT placed in vault.(mps) (Entered: 08/30/2012)

08/30/2012

377 REPLY MEMORANDUM OF LAW in Support re: 360 MOTION in Limine. to Exclude Defendants' Proposed Expert Massad Ayoob. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Schwarz, Ghita) (Entered: 08/30/2012)

08/30/2012

378 ENDORSED LETTER addressed to Judge Katherine B. Forrest from David Bober dated 8/30/2012 re: On behalf of the government, I write respectfully to request a five-day adjournment from September 6 to September 11, 2012-of the deadline to respond to plaintiffs' August 23, 2012, Motion to Exclude the Testimony of Defendants' Proposed Expert Bryan Vila (Dkt.370). ENDORSEMENT: Application Granted. SO ORDERED. (Signed by Judge Katherine B. Forrest on 8/30/2012) (ama) (Entered: 08/30/2012)

08/30/2012

Set/Reset Deadlines: Responses due by 9/11/2012 (ama) (Entered: 09/07/2012)

08/31/2012

379 MEMORANDUM OF LAW in Opposition re: 368 MOTION in Limine to Exclude Defendants' Proposed Expert Claudio Saa.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Pellegrino, Louis) (Entered: 08/31/2012)

09/04/2012

380 MOTION in Limine to Exclude Evidence of Defendants' Purported Habit of Obtaining Consent to Enter and Search Homes. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit)(Schwarz, Ghita) (Entered: 09/04/2012)

09/07/2012

381 NOTICE OF APPEARANCE by Louis Anthony Pellegrino on behalf of Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security (Pellegrino, Louis) (Entered: 09/07/2012)

09/07/2012 382 MEMORANDUM OF LAW in Support re: 380 MOTION in Limine to Exclude Evidence of Defendants' Purported Habit of Obtaining

Consent to Enter and Search Homes.. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Schwarz, Ghita) (Entered: 09/07/2012)

09/07/2012

383 NOTICE OF APPEARANCE by Brandon Herbert Cowart on behalf of Michael Chertoff, Marcy Forman, ICE 1, ICE 10, ICE 11, ICE 12, ICE 13, ICE 14, ICE 15, ICE 16, ICE 17, ICE 18, ICE 19, ICE 2, ICE 20, ICE 21, ICE 22, ICE 23, ICE 24, ICE 25, ICE 26, ICE 27, ICE 28, ICE 29, ICE 3, ICE 30, ICE 31, ICE 32, ICE 33, ICE 34, ICE 35, ICE 36, ICE 37, ICE 38, ICE 39, ICE 4, ICE 40, ICE 41, ICE 42, ICE 43, ICE 44, ICE 45, ICE 46, ICE 47, ICE 48, ICE 49, ICE 5, ICE 50, ICE 51, ICE 52, ICE 58, ICE 59, ICE 6, ICE 7, ICE 8, ICE 9, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, Jane and John Doe Defendants #152, Kumar Kibble, Jeffrey Knopf, John Morton, Julie L. Myers, Janet Napolitano, Joseph A. Palmese, Christopher Shanahan, Peter J. Smith, The United States of America, John P. Torres, David J. Venturella, Darren Williams (Cowart, Brandon) (Entered: 09/07/2012)

09/11/2012 384 SEALED DOCUMENT placed in vault.(nm) (Entered: 09/11/2012)

09/11/2012

385 CROSS MOTION in Limine and opposition to Plaintiffs' motion to exclude. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security.(Pellegrino, Louis) (Entered: 09/11/2012)

09/11/2012

386 MEMORANDUM OF LAW in Opposition re: 385 CROSS MOTION in Limine and opposition to Plaintiffs' motion to exclude., 370 MOTION in Limine.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Pellegrino, Louis) (Entered: 09/11/2012)

09/13/2012

387 MOTION for Diana Lee Hughes to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208-7813858. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio,

Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Hughes, Diana) (Entered: 09/13/2012)

09/13/2012

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 387 MOTION for Diana Lee Hughes to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 02087813858. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (pgu) (Entered: 09/13/2012)

09/14/2012

388 ORDER FOR ADMISSION PRO HAC VICE granting 387 Motion for Diana Hughes to Appear Pro Hac Vice. (Signed by Judge Katherine B. Forrest on 9/14/2012) (djc) (Entered: 09/14/2012)

09/14/2012

389 MOTION to Dismiss for Lack of Jurisdiction or for a Rule 12(i) Jurisdictional Hearing. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, The United States of America. Responses due by 9/28/2012 Return Date set for 10/5/2012 at 11:00 AM.(Cargo, Shane) (Entered: 09/14/2012)

09/14/2012

390 MEMORANDUM OF LAW in Support re: 389 MOTION to Dismiss for Lack of Jurisdiction or for a Rule 12(i) Jurisdictional Hearing. MOTION to Dismiss for Lack of Jurisdiction or for a Rule 12(i) Jurisdictional Hearing.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, The United States of America. (Cargo, Shane) (Entered: 09/14/2012)

09/17/2012

391 FILING ERROR - DEFICIENT DOCKET ENTRY - FILER ERROR - MOTION in Limine to Exclude Evidence of Immigration Status. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla.(Schwarz, Ghita) Modified on 9/18/2012 (ldi). (Entered: 09/17/2012)

09/18/2012

392 MOTION in Limine to Exclude Evidence of Immigration Status. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Attachments: # 1 Affidavit)(Schwarz, Ghita) (Entered: 09/18/2012)

09/18/2012

393 MEMORANDUM OF LAW in Opposition re: 373 MOTION in Limine to Exclude the Testimony of Defendants' Proposed Expert Ruben Salamanca.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, The United States of America. (Vargas, Jeannette) (Entered: 09/18/2012)

09/18/2012

394 REPLY MEMORANDUM OF LAW in Support re: 368 MOTION in Limine to Exclude Defendants' Proposed Expert Claudio Saa.. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Schwarz, Ghita) (Entered: 09/18/2012)

09/18/2012

395 DECLARATION of Jeannette Vargas in Opposition re: 373 MOTION in Limine to Exclude the Testimony of Defendants' Proposed Expert Ruben Salamanca.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bober, David) (Entered: 09/18/2012)

09/18/2012

396 MOTION in Limine to Exclude Plaintiffs' Proposed Expert Peter L. Markowitz. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security.(Bober, David) (Entered: 09/18/2012)

09/18/2012

397 MEMORANDUM OF LAW in Support re: 396 MOTION in Limine to Exclude Plaintiffs' Proposed Expert Peter L. Markowitz.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Bober, David) (Entered: 09/18/2012)

09/18/2012

398 DECLARATION of David Bober in Support re: 396 MOTION in Limine to Exclude Plaintiffs' Proposed Expert Peter L. Markowitz.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bober, David) (Entered: 09/18/2012)

09/19/2012

399 MEMORANDUM OF LAW in Support re: 373 MOTION in Limine to Exclude the Testimony of Defendants' Proposed Expert Ruben Salamanca.. Document filed by Adriana Aguilar, Carson Aguilar, Nelly

Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez. (Librera, Kelly) (Entered: 09/19/2012)

09/19/2012

400 ORDER: IT IS HEREBY ORDERED that the parties shall use the space provided to answer the following questions (to be filed on the docket no later than September 26, 2012) as further set forth in this order. (Signed by Judge Katherine B. Forrest on 9/19/2012) (lmb) (Entered: 09/19/2012)

09/20/2012

401 Letter addressed to Judge Katherine B. Forrest from Kelly A. Librera dated 9/19/2012 re: Plaintiffs submit this letter in opposition to Defendants' "nunc pro tunc" letter seeking a retroactive one-week extension to file their Opposition to Plaintiffs' Motion to Exclude the Testimony of Defendants' Proposed Expert Ruben Salamanca (the "Motion"), which was served on Defendants on August 28, 2012. In the alternative, should this Court choose to grant Defendants' application, Plaintiffs respectfully request that their time to submit a reply on the Motion be extended until October 1 in light of the factors identified above as well as the upcoming Yom Kippur holiday. (djc) (Entered: 09/20/2012)

09/20/2012

402 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Ghita Schwarz dated 9/9/2012 re: Plaintiffs respectfully submit this letter on behalf of both Plaintiffs and Defendants. Our proposed pretrial order, witness and exhibit lists, voir dire and jury instructions are due to the Court tomorrow, September 20, 2012. Both parties respectfully request a short extension of time, until Monday, September 24 at 3 p.m., to submit these materials to the Court. We do not seek an extension of time to file any opening motions in limine. ENDORSEMENT: Extension to 9/24/12 at C.O.B. granted. ( Pretrial Order due by 9/24/2012.) (Signed by Judge Katherine B. Forrest on 9/20/2012) (djc) (Entered: 09/20/2012)

09/20/2012

403 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Shane Cargo dated 9/19/2012 re: On behalf of the Government, I write respectfully to request a nunc pro tunc one week extension of time to file the Government's opposition to the Plaintiffs' Motion to Exclude the Testimony of the Defendants' Proposed Expert Ruben Salamanca. The Government's opposition was due on September 11, 2012. Unfortunately, in the press of preparing for the upcoming trial in this matter, the Government misread the Notice of Motion, which set the

due date for the opposition papers as September 11, 2012, and the due date for the reply brief as September 18, 2012, and erroneously calendared the due date for our opposition papers as September 18, 2012. Accordingly, we filed our opposition papers yesterday. The Government apologizes for the delay, and respectfully requests that the Court grant a nunc pro tunc extension of time, so that the Government's opposition papers will be deemed timely filed. We would consent to any reasonable deadline for Plaintiffs' reply, and propose September 25, 2012, one week after we filed our brief. ENDORSEMENT: Extension for opposition to 9/18/12 granted nunc pro tunc. Reply due 10/1/12. Replies due by 10/1/2012.) (Signed by Judge Katherine B. Forrest on 9/20/2012) (djc) Modified on 9/21/2012 (djc). (Entered: 09/20/2012)

09/20/2012

404 MOTION in Limine to exclude plaintiffs' proposed expert, Dan Montgomery. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security.(Pellegrino, Louis) (Entered: 09/20/2012)

09/20/2012

405 MEMORANDUM OF LAW in Support re: 404 MOTION in Limine to exclude plaintiffs' proposed expert, Dan Montgomery.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Pellegrino, Louis) (Entered: 09/20/2012)

09/20/2012

406 MOTION in Limine to Exclude Certain Evidence. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security.(Cargo, Shane) (Entered: 09/20/2012)

09/20/2012

407 MOTION in Limine to exclude the testimony of Andrew Beveridge. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security.(Bober, David) (Entered: 09/20/2012)

09/20/2012

408 MEMORANDUM OF LAW in Support re: 407 MOTION in Limine to exclude the testimony of Andrew Beveridge.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Bober, David) (Entered: 09/20/2012)

09/20/2012

409 DECLARATION of David Bober in Support re: 407 MOTION in Limine to exclude the testimony of Andrew Beveridge.. Document filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bober, David) (Entered: 09/20/2012)

09/20/2012

410 MOTION in Limine to Exclude Undisclosed Opinions of Defendants' Proposed Expert Alan Salzberg. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Tarcis Sapon-Diaz, Beatriz Velasquez, Dalia Velasquez.(Schwarz, Ghita) (Entered: 09/20/2012)

09/20/2012

411 MEMORANDUM OF LAW in Support re: 410 MOTION in Limine to Exclude Undisclosed Opinions of Defendants' Proposed Expert Alan Salzberg.. Document filed by Adriana Aguilar, Carson Aguilar, Nelly Amaya, Elder Bonilla, Sonia Bonilla, Pelagia De La Rosa-Delgado, Mario Patzan DeLeon, Gonzalo Escalante, Erika Gabriela Garcia Leon, Anthony Jimenez, Bryan Jimenez, Christopher Jimenez, William Lazaro, Andres Leon, Elena Leon, Juan Jose Mijangos, Victor Pineda Morales, David Lazaro Perez, Yoni Revolorio, Diana Rodriguez, Beatriz Velasquez, Dalia Velasquez. (Schwarz, Ghita) (Entered: 09/20/2012)

09/24/2012

412 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Kelly A. Librera dated 9/21/2012 re: Plaintiffs write to request a oneday extension of their September 24. 2012 deadline to respond to Defendants' Cross-Motion to Exclude All Expert Testimony Purporting to Opine on Voluntariness of Consent and in Opposition to Plaintiffs' Motion to Exclude the Testimony of Defendants' Proposed Expert Bryan Vila. ENDORSEMENT: Application granted. (Signed by Judge Katherine B. Forrest on 9/24/2012) (jfe) (Entered: 09/24/2012)

09/27/2012

413 ORDER: that all pre-trial and trial dates are ADJOURNED for thirty (30) days. IT IS FURTHER ORDERED that all pending motions are deemed moot. They will be terminated without prejudice, with leave to renew. The Clerk of the Court is directed to terminate all pending motions in this action. Motions terminated: 380 MOTION in Limine to Exclude Evidence of Defendants' Purported Habit of Obtaining Consent to Enter and Search Homes. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Elena Leon, Tarcis Sapon-Diaz, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Anthony Jimenez, Mario Patzan DeLeon, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 406 MOTION in Limine to Exclude Certain Evidence. filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, 385 CROSS

MOTION in Limine and opposition to Plaintiffs' motion to exclude. filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, 396 MOTION in Limine to Exclude Plaintiffs' Proposed Expert Peter L. Markowitz. filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, 404 MOTION in Limine to exclude plaintiffs' proposed expert, Dan Montgomery. filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, 373 MOTION in Limine to Exclude the Testimony of Defendants' Proposed Expert Ruben Salamanca. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Anthony Jimenez, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 407 MOTION in Limine to exclude the testimony of Andrew Beveridge. filed by Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security, 392 MOTION in Limine to Exclude Evidence of Immigration Status. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Anthony Jimenez, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 410 MOTION in Limine to Exclude Undisclosed Opinions of Defendants' Proposed Expert Alan Salzberg. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Tarcis SaponDiaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Anthony Jimenez, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 360 MOTION in Limine. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Anthony Jimenez, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 370 MOTION in Limine. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Tarcis Sapon-Diaz,

Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Anthony Jimenez, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 368 MOTION in Limine to Exclude Defendants' Proposed Expert Claudio Saa. filed by David Lazaro Perez, Beatriz Velasquez, Dalia Velasquez, Bryan Jimenez, Sonia Bonilla, Elder Bonilla, Andres Leon, Adriana Aguilar, Diana Rodriguez, Erika Gabriela Garcia Leon, Tarcis Sapon-Diaz, Elena Leon, Nelly Amaya, Juan Jose Mijangos, William Lazaro, Mario Patzan DeLeon, Anthony Jimenez, Christopher Jimenez, Carson Aguilar, Gonzalo Escalante, Victor Pineda Morales, Pelagia De La Rosa-Delgado, Yoni Revolorio, 389 MOTION to Dismiss for Lack of Jurisdiction or for a Rule 12(i) Jurisdictional Hearing. MOTION to Dismiss for Lack of Jurisdiction or for a Rule 12(i) Jurisdictional Hearing. filed by The United States of America, Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security. (Signed by Judge Katherine B. Forrest on 9/27/2012) (pl) (Entered: 09/27/2012)

11/15/2012

414 ORDER: IT IS HEREBY ORDERED that the above captioned action is discontinued without costs to any party and without prejudice to restoring the action to this Court's calendar if the application to restore the action is made by December 12,2012. The Clerk of the Court is directed to terminate this action. (Signed by Judge Katherine B. Forrest on 11/14/2012) (ago) (Entered: 11/16/2012)

11/15/2012

Set/Reset Deadlines: (ago) (Entered: 11/21/2012)

12/13/2012

415 ENDORSED LETTER: addressed to Judge Katherine B. Forrest from Ghita Schwarz dated 12/12/2012 re: Plaintiffs respectfully submit this letter on behalf of both Plaintiffs and Defendants. Pursuant to the Court's order of November 16,2012, the case has been discontinued without prejudice to the parties' ability to apply to restore the action to the calendar by December 12, 2012. Following our discussion with Rebecca Rettig on December 11, 2012, we seek a thirty-day extension of this deadline for the purpose of completing the settlement process. ENDORSEMENT: Action may be restored on or before January 13, 2013. (Signed by Judge Katherine B. Forrest on 12/13/2012) (js) (Entered: 12/13/2012)

12/26/2012

416 DOCUMENT REFERRED TO JUDGE FOR APPROVAL - STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is voluntarily dismissed, against the defendant(s) All Defendants pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed

by Raul Amaya, Gloria Vanessa Amaya.(Schwarz, Ghita) Modified on 12/27/2012 (ml). (Entered: 12/26/2012)

12/26/2012

417 MOTION for Ghita Schwarz and all counsel from Center for Constitutional Rights, LatinoJustice PRLDEF, and Winston & Strawn to Withdraw as Attorney for Plaintiff David Lazaro Perez. Document filed by David Lazaro Perez. (Attachments: # 1 Affidavit Declaration of Service)(Schwarz, Ghita) (Entered: 12/26/2012)

12/27/2012

***NOTE TO ATTORNEY - DOCUMENT REFERRED TO JUDGE FOR APPROVAL. Note to Attorney Ghita Schwarz Document 416 Stipulation of Voluntary Dismissal, was referred to Judge Katherine B. Forrest for approval. (ml) (Entered: 12/27/2012)

12/27/2012 418 SEALED DOCUMENT placed in vault.(nm) (Entered: 12/27/2012)

12/27/2012

419 STIPULATION OF VOLUNTARY DISMISSAL OF CLAIMS OF PLAINTIFFS GLORIA VANESSA AMAYA AND RAUL AMAYA: IT IS HEREBY STIPULATED AND AGREED by and between Plaintiffs Gloria Amaya and Raul Amaya, and Defendants, through their respective undersigned counsel, that the claims of Plaintiffs Gloria Amaya and Raul Amaya in the above-captioned action are voluntarily dismissed with prejudice, and without costs or attorneys' fees to either party, against all Defendants pursuant to Federal Rule of Civil Procedure 41 (a)(1)(ii). This stipulation shall apply only to the abovereferenced plaintiffs and shall have no effect on the claims of any other Plaintiff in this action. (Signed by Judge Katherine B. Forrest on 12/27/2012) (djc) (Entered: 12/27/2012)

12/27/2012

420 MEMO ENDORSEMENT ON NOTICE OF MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF DAVID LAZARO PEREZ: granting 417 Motion to Withdraw as Attorney. Attorney Jennifer Marie Opheim; Aldo A Badini and Foster S. Maer terminated. ENDORSEMENT: Motion Granted. The Clerk of Court is directed to close the motion at ECF No. 417. (Signed by Judge Katherine B. Forrest on 12/27/2012) (djc) (Entered: 12/27/2012)

01/14/2013

421 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Shane Cargo dated 1/14/2013 re: The parties seek a 30-day extension of the deadline to apply to restore the case to the Court's active docket. ENDORSEMENT: 30-day extension granted. (Signed by Judge Katherine B. Forrest on 1/15/2013) (cd) (Entered: 01/15/2013)

01/15/2013

422 STIPULATION AND ORDER OF DISMISSAL OF DEFENDANTS ICE 36 AND ICE 37: Defendants ICE 36 and ICE 37 are dismissed from the case with prejudice andwithout costs or attorney's fees to any

party. (Signed by Judge Katherine B. Forrest on 1/15/2013) (cd) (Entered: 01/15/2013)

02/14/2013 423 SEALED DOCUMENT placed in vault.(nm) (Entered: 02/14/2013)

02/20/2013

424 ORDER: The Court is in receipt of the government's letter dated February 13, 2013. Having reviewed that letter, it is herebyORDERED that the requested thirty day extension is granted. The parties have until March 18, 2013, to submit an application to have this action restored to the docket. (Signed by Judge Katherine B. Forrest on 2/20/2013) (ago) (Entered: 02/20/2013)

03/19/2013

425 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Shane Cargo dated 3/18/2013 re: The government respectfully submits this letter of behalf of both parties. In accordance with the Court's February 14,2013 order endorsing the government's letter of February 13, 20l3, which was submitted on behalf of both parties, this case has been discontinued without prejudice to the parties' ability to apply to restore it to the calendar by March 18,2013. In light of the foregoing, we request a 30-day adjournment of the deadline to apply to restore the case to the Court's active docket. As in the past, we further request that in view of the public interest in this case, discussions of settlement remain confidential until a final settlement agreement has been submitted to the Court for approval. ENDORSEMENT: The deadline to restore this action to the Courts active docket is extended to April 18, 2013. This will the final extension, and any dismissal will be with prejudice and will be effective at midnight between April 18 and 19, 2013. If there has been no finalization of the settlement by this time, the parties will have to negotiate an arrangement around that issue. Otherwise, this action will be dismissed with prejudice, or the parties may restore it to the Court's active docket and the Court will resolve it through a litigated proceeding. So ordered. (Signed by Judge Katherine B. Forrest on 3/19/2013) (ago) Modified on 3/20/2013 (ago). (Entered: 03/19/2013)

04/04/2013

426 STIPULATION AND ORDER OF DISMISSAL: IT IS HEREBY STIPULATED AND AGREED, by and between the Parties, that the Action shall be resolved as between them as follows: This Action is hereby dismissed as against all defendants with prejudice, subject to the financial terms and immigration provisions set forth in paragraphs 3 through 9 below.This Stipulation and Order of Settlement and Dismissal (the "Stipulation and Order") shall not constitute an admission of liability or fault on the part of the United States or any of its present or former departments. agencies, agents, officials or employees. Upon entry by the Court of this Stipulation and Order, the United States shall (i) within seven (7) days submit a request to the

Judgment Fund of the United States Department of the Treasury; and (ii) as soon as practicable and in no event later than sixty (60) days, if possible, pay Plaintiffs' counsel the total sum of One Million U.S. Dollars ($1,000,000) (the "Payment"). Execution of this Stipulation and Order may be in counterparts, and wire transfer information will be sent under separate cover. Transmittal of the Payment shall constitute full satisfaction of Defendants' monetary obligations that arise under this Stipulation and Order. The immigration proceedings of Plaintiffs William Lazaro (Melchor) and Victor Pineda Morales have been terminated, and, as with Plaintiffs Electing Termination under Paragraph 5 above, ICE will not use any information gathered during discovery or litigation in this Action, or from the operations and subsequent arrests at issue in this case, against Mr. Lazaro Melchor or Mr. Pineda Morales in any future immigration proceeding, except for the purpose of impeachment as further set forth herein. (Signed by Judge Katherine B. Forrest on 4/4/2013) (ago) (Entered: 04/04/2013)

04/24/2013

427 ENDORSED LETTER addressed to Judge Katherine B. Forrest from Shane Cargo dated 4/23/13 re: Counsel encloses declarations from ICE's two law enforcement components and the documents that were issued to the field. ENDORSEMENT: Ordered: Post on docket. (Signed by Judge Katherine B. Forrest on 4/24/2013) (mro) Modified on 4/25/2013 (mro). (Entered: 04/24/2013)

04/07/2015

428 NOTICE TO ATTORNEY TO RETRIEVE SEALED MATERIAL: Notice to the attorney of record for the filing party to retrieve sealed document number 376 within thirty (30) days, or the Court will dispose of them. Sealed Records Retrieval due by 5/7/2015. (mps) (Entered: 04/07/2015)

04/07/2015

429 NOTICE TO ATTORNEY TO RETRIEVE SEALED MATERIAL: Notice to the attorney of record for the filing party to retrieve sealed document number 367, 375, 384 and418 within thirty (30) days, or the Court will dispose of them. Sealed Records Retrieval due by 5/7/2015. (mps) (Entered: 04/07/2015)

04/07/2015

430 NOTICE TO ATTORNEY TO RETRIEVE SEALED MATERIAL: Notice to the attorney of record for the filing party to retrieve sealed document number 162 and 195 within thirty (30) days, or the Court will dispose of them. Sealed Records Retrieval due by 5/7/2015. (mps) (Entered: 04/07/2015)

04/07/2015

431 NOTICE TO ATTORNEY TO RETRIEVE SEALED MATERIAL: Notice to the attorney of record for the filing party to retrieve sealed document number 142, 154, 177, 189, 196, 210, 212, 231, 235, 252, 298, 309, 327, 335, 336, 338 and 342 within thirty (30) days, or the

Court will dispose of them. Sealed Records Retrieval due by 5/7/2015. (mps) (Entered: 04/07/2015)

04/07/2015

432 SEALED MATERIALS RETRIEVED: Document(s) 142,154,177,189,196,210,212,231,235,252,298,309,327,335,336,338 and 342 were retrieved on 04/07/2015.(mps) (Entered: 04/07/2015)

05/07/2015

433 SEALED MATERIALS DISPOSED: Document(s) 376 were destroyed since the filing party did not retrieve the material(s) within 30 days of the date indicated. The sealed record(s) were destroyed on 05/07/2015.(mps) (Entered: 05/07/2015)

05/07/2015

434 SEALED MATERIALS DISPOSED: Document(s) 162 and 195 were destroyed since the filing party did not retrieve the material(s) within 30 days of the date indicated. The sealed record(s) were destroyed on 05/07/2015.(mps) (Entered: 05/07/2015)

05/07/2015

435 SEALED MATERIALS DISPOSED: Document(s) 367, 375, 384 and 418 were destroyed since the filing party did not retrieve the material(s) within 30 days of the date indicated. The sealed record(s) were destroyed on 05/07/2015.(mps) (Entered: 05/07/2015)

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