IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Rinaldo Yarrito, Detainee United Food & Commercial Workers Union, Local No. 7 As Next Friend of Rinaldo Yarrito,
Carlos Perez Detainee, United Food & Commercial Workers Union, Local No. 7 As Next Friend of Carlos Perez,
Maria E. Fragu Detainee, United Food & Commercial Workers Union, Local No. 7 As Next Friend of Maria E. Fragu,
José Chavez Detainee, United Food & Commercial Workers Union, Local No. 7 As Next Friend of José Chavez,
Adam M. Flores Detainee, United Food & Commercial Workers Union, Local No. 7 As Next Friend of Adam M. Flores,
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Rinald Dirrato, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Rinald Dirrato,
Arrestada Joy Aspose, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Arrestada Joy Aspose,
Kimberly Cordova, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Kimberly Cordova,
Roberto Burgos Roman, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Roberto Burgos Roman,
Rudy Hernadez, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Rudy Hernadez,
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Lionel Vicente Chum Detainee,
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Lionel Vicente Chum,
Juan Vela, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Juan Vela,
Marquerez Barron, Detainee
United Food & Commercial Workers Union, Local No. 7 As Next Friend of Marquerez Barron,
And all other persons similarly situated,
v. Julie L. Meyers, Assistant Secretary for Homeland Security And U.S. Immigration and Customs Enforcement Division of the Department of Homeland Security. ________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS
________________________________________________________
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Petitioners, Rinaldo Yarrito, Carlos Perez, Maria E. Fragu, José Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Lionel Vicente Chum, Juan Vela, and Marquerez Barron, and others similarly situated seek the Great Writ. They act on their own and through their Next Friend, United Food and Commercial Workers Local No. 7. They are being held incommunicado in respondents’ unlawful custody.
I.
JURISDICTION
1. Petitioners bring this action under 28 USC §2241 and §2242.
2. This Court is empowered under 28 USC §2241 and §2242 to grant the Writ of Habeas Corpus and to declare the rights of the parties herein.
II.
VENUE
3. The events leading to this petition have all taken place within the District of Colorado.
III.
PARTIES
4. Petitioners are employed as production employees at Swift & Company located in Greeley, Colorado.
5. United Food & Commercial Workers Local Union No. 7, Petitioners’ Next Friend, represents the production employees at the Swift Plant in Greeley, Colorado in employment matters regarding terms and conditions of employment.
6. Julie L. Meyers is Assistant Secretary for Homeland Security for Immigration and Customs Enforcement.
7. U.S. Immigration and Customs Enforcement (ICE) is believed to have petitioners in custody.
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IV.
Events
8. Petitioners appear to have been taken into custody by the U.S. Citizenship and Immigration Services on December 12, 2006 from their place of employment.
9. The number of Petitioners taken into custody is not specifically known. Based on the observation of persons at the scene it appears that approximately two hundred persons were seized.
10. According to accounts in various media, Petitioners were taken into custody because of investigations relating to identity theft. According to the website of U.S. Citizenship and Immigration Services:
“WASHINGTON, D.C. – This morning, special agents from U.S. Immigration and Customs Enforcement (ICE) executed civil search warrants at six facilities owned by Swift & Company. The operation is part of a worksite enforcement investigation that has identified a large identity theft scheme that has victimized large numbers of U.S. citizens and lawful residents. Swift is a nationwide processor of fresh beef and pork.”
11. Petitioners were not taken to a place of incarceration in Greeley, Colorado. The whereabouts of Petitioners is unknown.
12. It is not known whether Petitioners have been charged with any crime.
13. The Next Friend of Petitioners has not been notified of the place of petitioners’ incarceration. Further, despite inquiries at the place of employment, the Next Friend of Petitioners has not been able to determine the location of Petitioners or the basis for their incarceration. Numerous efforts were made by counsel retained to assist Petitioners to determine where Petitioners are being held by contacting an ICE facility in Aurora, Colorado, the Denver office of the Immigration and Customs Enforcement division, the Denver offices of the U.S. Citizenship and Immigration Services. Counsels were advised that the whereabouts of the petitioners were unknown.
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V.
CLAIM FOR RELIEF
14. Petitioners incorporate by reference paragraphs 1 – 13.
15. Respondents are liable for the conduct of the agencies they administer.
16. By the actions described above, respondents, acting under color of law, have violated and continue to violate the right of the detained petitioners to be free from arbitrary prolonged and indefinite detention, in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution of the United States.
17. To the extent that Petitioners’ detention is without basis in law or fact and violates common law principles of due process and the Due Process Clause of the Fifth Amendment to the Constitution, Petitioners’ detention is unlawful.
18. Respondents have violated Petitioners’ right to consult with counsel by denying them access to counsel or any means to obtain counsel in a prompt and effective manner.
19. Accordingly, Petitioners are entitled to habeas, declaratory and injunctive relief as well as any other relief the court may deem appropriate, including but not limited to immediate release, an opportunity to meet with counsel and have confidential communications and be fully advised of their right to remain silent and have counsel.
20. Petitioners further request that this Court grant such other relief as the Court may deem necessary and appropriate to protect Petitioners’ rights under the common law, the United States Constitution, and federal statutory law.
Respectfully submitted on this 13th day of December, 2006.
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Counsel for Petitioners and Petitioners’ Next Friend s/ John Bowen John P. Bowen 7760 W. 38th Ave., Suite 400 Wheat Ridge, CO, 80033 (303)425-0897 ext. 445 Address of Petitioners’ Next Friend United Food & Commercial Workers Union Local No. 7 7760 W. 38th Ave., Suite 400 Wheat Ridge, Colorado, 80033 303)425-0897 ext. 445
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Certificate of Service I certify that on this 13th day of December 2006, a true and correct copy of the foregoing document was forwarded to the following by certified mail, return receipt requested:
Julie L. Meyers, Assistant Secretary for Homeland Security for Immigration and
Customs Enforcement 425 Eye Street, NW Room 7100
Washington, D.C., 20536
I certify that on this 13th day of December 2006, a true and correct copy of the foregoing document was forwarded to the following by certified mail, return receipt requested and personal service:
U.S. Immigration and Customs Enforcement Division of the Department of Homeland Security Office of the Chief Counsel
Immigration and Customs Enforcement U.S. Department of Homeland Security
4730 Paris Street, Albrook Center Denver, Colorado 80239
/s Carol Glasmann Legal Secretary
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 06-CV-2494-JLK-MJW RINALDO YARRITO, et al.
Applicants,
v.
JULIE L. MEYERS, Assistant Secretary for Homeland Security Respondent.

DEC 1 3 2006

ORDER TO SHOW CAUSE

TO: The above-named respondent, Greetings:
WHEREAS, a certified application for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 has been filed by the applicant, alleging that he is being held illegally,
and:
WHEREAS, upon reading the application, good cause appears:
Now, therefore, IT IS ORDERED that you, the respondent, show cause by return in writing on or before December 18, 2006, why the application for a writ of habeas corpus should not be granted, with said return being filed with the Clerk of this Court at the United States Court House, 901 19th Street, Room A105, Denver, CO 80294.
IT IS FURTHER ORDERED that the applicants shall remain in custody and within the jurisdiction of this court until further order.
IT IS FURTHER ORDERED that the applicants shall file an initial brief in support of their petition not later than December 18, 2006.
Dated: December 13,2006.
BY THE COURT:
s/John L. Kane UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 06-cv-02494-JLK-MJW
John P. Bowen Attorney at Law DELIVERED ELECTRONICALLY
Julie L. Meyers, Assistant Secretary - CERTIFIED Department of Homeland Security 425 Eye Street, NW Room 7100 Washington, DC 20536
Douglas Maurer, Director- CERTIFIED ICE Field Office 4730 Paris Street Denver, CO 80239
United States Attorney General - CERTIFIED Room 5111, Main Justice Bldg. 10th and Constitution, N.W. Washington, D.C. 20530
United States Attorney District of Colorado DELIVERED ELECTRONICALLY

I hereby certify that I have mailed a copy of the ORDER to the above-named

individuals, and the following forms to Julie L. Meyers, Douglas Maurer, US Attorney

General and the United States Attorney's Office: PETITION FILED 12/13/06, AND

CONSENT FORM on 12!11"3/010 .

:?)d::RK

Deputy Clerk

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-CV-2494-JLK-MJW RINALDO YARRITO, et al.,
Applicants, v. JULIE L. MYERS, Assistant Secretary for Homeland Security,
Respondent. RESPONDENT’S MEMORANDUM OF LAW IN RESPONSE TO THE ORDER
TO SHOW CAUSE Respondent Julie L. Myers, Assistant Secretary, United States Immigration and Customs Enforcement (“ICE”) respectfully responds to the Court’s December 13 Order to Show Cause.
INTRODUCTION United Food and Commercial Workers Union Local No. 7 (“Union”) has filed a petition for a writ of habeas corpus on behalf of individuals they believe were taken into detention during a worksite enforcement action by ICE. The worksite enforcement action was predicated on an ICE investigation which revealed that a significant number of workers at Swift & Company’s (“Swift”) Greeley, Colorado compound were illegal aliens and had illegally obtained employment by stealing the identities of United States citizens and lawful

permanent residents. In bringing this case, the Union has identified applicants by using those false identities.
Procedural Background Applicants are allegedly individuals who purportedly were taken into detention by ICE Officers during a worksite enforcement action at the Swift meatpacking plant compound in Greeley, Colorado on December 12, 2006. Petition at ¶ 4. On December 8, 2006, ICE applied for and was granted a civil administrative search warrant by United States District Court Judge Figa to assess the citizenship and immigration status of the Swift employees. Exhibit 1, Declaration of Paul Maldonado, Supervisory Special Agent, ICE (“Maldonado Decl.”) at ¶ 2. The appropriate cause shown for the warrant was the culmination of a nationwide ICE investigation that led to the justifiable suspicion that a large number of Swift employees were illegally in the United States and working without permission by using stolen identities. Id. The search warrant was served on December 12, 2006, at approximately 7:30 a.m. on Swift beef plant manager Bill Danley, who informed ICE that there were approximately 1400 employees on that shift between the two plants (one beef, one lamb). Id. at ¶¶ 2, 3. He provided a list of all employees scheduled for work that day. After discussing the operation with Mr. Danley, ICE decided to conduct the survey of the citizenship or immigration status of the beef plant employees in the beef plant cafeteria, which holds approximately 700 people. Id. at ¶ 3. Swift management then brought
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approximately 700 people in groups to the beef plant cafeteria, and rotated in additional employees as the initial entrants completed their survey and made cafeteria space available. Id. at ¶ 4. No workers were prevented from leaving the area. Id. at ¶ 11. All announcements made by ICE during the survey were done in English and Spanish to ensure each individual was advised of what was going on. Id. at ¶ 4.
Upon entry into the cafeteria, an announcement was made by ICE (in both English and Spanish) requesting that all employees who were born in the United States move to one side of the cafeteria, and the remaining employees were asked to move to a different area of the cafeteria. Id. at ¶ 5. The remaining employees were further separated into two groups based on their representations of working with immigration documentation and working without immigration documentation. Id.
ICE agents then conducted interviews, limited to eliciting background information, of each Swift employee to determine each employee’s nationality and immigration status. Id. at ¶ 7. ICE agents conducted each interview in either Spanish or English, whichever was most appropriate considering the language most fluently spoken by the employee. Id. The employees found to be credibly claiming United States citizenship were asked to return to work as soon as it was safe to do so. Id. The noncitizen employees claiming to have lawful status were interviewed and, if they were determined to be lawfully present, were also asked to return to work. Id. If certain employees needed immigration documents outside the
3

facility to confirm their lawful status, these employees were allowed to contact family and friends by telephone to bring those documents to the Swift plant, and present them to the ICE agents at the gate. If and when ICE agents received confirming documentation of the employee’s lawful, work-authorized immigration status, that employee was then instructed to return to work. Id.
Undocumented employees were advised of what was happening to them, placed in handcuffs and escorted to the buses waiting outside the plant. Id. at ¶ 8. When a bus was full, it departed for the Denver Federal Center, a processing center located in Lakewood, Colorado. Id. ICE repeated this process until all of the approximately 1,400 employees were interviewed. Id. at ¶ 9. ICE provided a list of all employees arrested to Mr. Dwayne Newkirk, Director of Human Resources for Swift. Id.
There were no locked doors, and no one was prevented from leaving the area. Id. at ¶ 10. Officers ensured that the employees entered the cafeteria in a safe and orderly fashion and had properly stored their meatpacking tools, many of which were dangerous objects. Id. at ¶ 11. Officers did not frisk the employees or act in anything but a calm and courteous manner so as to facilitate the safest environment possible. Id. at ¶ 10. A Swift management team was present during the entire vetting and questioning period. Id. at ¶ 12. Public telephones were available for those aliens who wanted to contact family members or friends who could bring evidence of lawful status or simply to make calls. Id. at ¶ 6. There were
4

no reports or observations of anyone requesting counsel during this period, and no counsel
came to meet any individual clients because no employee requested counsel. Id. at ¶ 12.
This same procedure was followed at the lamb processing plant with approximately 130
employees. Id. at ¶¶ 13-16.
A total of 260 aliens working without proper work authorization were arrested at the
two Swift plants. Id. at ¶ 17. The first bus carrying undocumented aliens arrived at the
Denver Federal Center at approximately 12:00 noon. Id. at ¶ 17. While still on the buses,
ICE officers, whose native language is Spanish, orally advised the aliens, in Spanish or
English as necessary, of their rights (including the reason for their arrest, the right to a
hearing before an immigration judge, the right to contact an attorney, the right to
communicate with the consular officers from their countries) and options in proceeding with
the resulting immigration charges. Id.1
1 Aliens who do not want to return to their native country voluntarily, or who are not offered the privilege of voluntary return, based on their criminal history or immigration record, are ordinarily detained pending a decision of whether to issue a Notice to Appear before an immigration judge. ICE has at least forty-eight hours, according to regulation, to decide whether to issue a Notice to Appear and to arrange the appropriate charges to be stated in the Notice. See 8 C.F.R. § 287.3. If ICE decides to issue the Notice to Appear, the Notice is drafted and the alien is served with a copy as soon as practicable. On some occasions, aliens who are not offered voluntary departure still want to return to their home countries as soon as possible, and these aliens may sign a stipulated order of removal. In this order, the alien is provided with a full list of his or her rights in a removal proceeding (in English and Spanish), those rights are read orally, in Spanish if appropriate, and the alien chooses to waive his or her right to an in-person appearance before an immigration judge, in the interest of speeding up his or her removal. Finally, aliens who have previously been
5

ICE agents began the administrative processing within approximately 15 minutes of the first bus’s arrival at the Denver processing center. Id. at ¶ 18. ICE agents asked the group of aliens whether they ever had contact with immigration officers previously or had been convicted of a crime. ICE agents instructed aliens who responded affirmatively to go to the rear of the bus. Id. ICE agents then took the other aliens, who did not have prior records, off the bus first and provided them the opportunity to voluntarily return to their native Mexico, an alternative which allows the aliens to return to their countries as soon as possible without a hearing. All Mexican nationals requesting voluntary return were determined to be non-criminals with no prior immigration contact. Id. Approximately 75 aliens requested voluntary return to Mexico and were returned that same evening, at Government expense, after completion of processing which included entry of their biographical data into the immigration data bases and completion of the I-826. Id. ICE agents then processed the remaining aliens as noted below.
The Denver Federal Center processing facility was divided into four stations, and each alien started in the first station and then proceeded through the rest. Id. at ¶ 20. The first
removed from the U.S. and who have entered illegally, or who have been convicted of aggravated felonies and are not permanent residents, may be subject to alternative forms of removal. The aliens who have previously been removed from the U.S. and reentered illegally are subject to reinstatement of a prior removal order. Aggravated felons are subject to an expedited administrative removal proceeding. In both of these cases, the alien may be ordered removed without an immigration judge’s involvement. Maldonado Decl. at ¶ 19.
6

station was to search IDENT, an automatic fingerprint identification database. Id. IDENT is used to retrieve records (including photographs and aliases) of aliens ICE has previously encountered. Id. At the second station an ICE agent again gave each alien of his or her rights in writing (in Spanish and English); gave each alien his or her Miranda rights; and made sure each alien completed the biographic portion of his or her Deportable Alien Record (I-213). Id. Afterwards, ICE agents then gave each alien an alien registration number (an A-number) and an A-file, and asked the alien to wait until there was an opening at the interview station (the third station). At the interview station, an agent conducted an in-depth interview, completed the form I-213, and issued a Notice to Appear (“NTA”) (the charging document). Id. At the fourth and final station, a Spanish-speaking agent explained to, and served on the alien the NTA, the Warrant of Arrest (form I-200), and the Notice of Custody Determination (form I-286, advising the alien of custody, bond, and right to reconsideration of custody by an immigration judge), and a list of local legal organizations. Id. The agent again explained to the alien his or her rights, and answered the alien’s questions. Id. After completing processing, the agent turned over the alien to ICE Detention and Removal Officers present at the processing area, who then placed the alien (and his or her bag of possessions) on the bus. Id. at ¶ 24. As each bus was filled, it left for the detention centers. Id.
During processing at the Denver Federal Center, ICE agents did not deny any
7

requests for attorneys, and did not deny any attorneys access to their clients. Id. at ¶ 23. Only one alien requested to speak to an attorney, and that alien was released because he was already in deportation or removal proceedings. Id. ICE agents offered use of their cell phones to any aliens who requested to use phones at the processing center. ICE agents honored all requests by the aliens to use bathroom facilities. Id. ICE provided liquids and two meals for each detainee during the process. No notable adverse incidents occurred between the aliens or between the aliens and ICE officers. Id. ICE agents completed processing at approximately 2:00 a.m., December 13, 2006. Id.
After completing processing, ICE transported the aliens to detention centers. Id. at ¶ 24. ICE sent the majority of the aliens to ICE’s contract detention facility in Aurora. Id. However, because beds at the Aurora facility are limited, ICE also transported aliens to the Park County Jail and the Otero County Prison Facility in Chaparral, Colorado. Id.
The aliens complicated the process by providing various names. Id. at ¶ 22. In some cases, up to five different names have been associated with one alien. Id. Due to the difficulties of finding an alien’s proper identification, ICE has been able to confirm that only seven of the thirteen individuals named by the Union have been in ICE custody to date, and an eighth name is believed to refer to one of the seven individuals already identified. Id. ICE voluntarily returned Juan Diego Gomez-Tejeda, who has been identified as using the name “Rinaldo Yarrito,” to Mexico on the evening of December 12, 2006. (“Rinald Dirrato”
8

is likely the same person.) Id. ICE also voluntarily returned Juan Bocanegra-Tejera, who has been identified as using the name “Carlos Perez,” to Mexico on the evening of December 12, 2006. Id. ICE took Maria Fraga (identified as “Maria E. Fragu”) into custody on December 12, but transferred her to the Weld County Sheriff later that same evening pursuant to an active warrant for her arrest (based on identity theft charges) under the stolen identity of “Vanesa Cadaveo.” Id. ICE booked Jose Isaias Chevez-Navarro, who has been identified as using the name “José Chavez,” into the Aurora detention facility on the evening of December 12 (or in the early morning on December 13), and he remains at that facility pending removal proceedings. Id. ICE initially transferred Fermin Paiz-Garcia, identified as using the name “Adam M. Flores,” to El Paso on December 13, but ICE returned him to Colorado. ICE has detained Mr. Paiz-Garcia at Aurora, pending a removal hearing. Id. ICE previously removed Pedro Vicente-Sontay, identified as using the name “Roberto Burgos Roman,” from the United States under the name “Pedro Pablo Perez.” ICE initially transferred him to El Paso on December 13, but has returned him to Colorado. ICE has detained Mr. Vicente-Sontay at Aurora, pending a removal hearing. Id. ICE also initially transferred Fabian Anaya, identified as using the name “Lionel Vicente Chum,” to El Paso on December 13, but has also returned him to Colorado. ICE has detained Mr. Anaya at Aurora, pending a removal hearing. Id. ICE has not been able to match the remaining five names to individuals detained at the Greeley plant. Id.
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On December 13, 2006, the United Food and Commercial Workers Local No. 7 (“Union”) filed a petition for a writ of habeas corpus, claiming to represent thirteen individuals as a next friend. On the same date, the Court ordered Respondents to show cause why the writ should not issue on or before December 18, 2006; directed that “the applicants shall remain in custody and within the jurisdiction of this court until further order;” and instructed the applicants to file a brief in support of their petition (also due on December 18, 2006).
DISCUSSION This Court should deny the applicants’ petition for a writ of habeas corpus because this Court does not have proper jurisdiction over respondent and because the petitioner Union does not have standing as next friend, and applicants and the Union have failed to exhaust administrative remedies. Further, even if the Court finds it has jurisdiction and the Union has standing as a next friend, the applicants fail to state a claim on which relief may be granted, as the government provided applicants with the requisite due process protections. In any event, the Court should make clear in its disposition that the petition applies only to the thirteen named applicants, as the applicants do not seek to certify a class, and the action cannot be maintained as a class action in any case. The Tenth Circuit has held that “[t]he deference due an administrative determination hinges not simply on the petitioners' ability to proceed under the habeas statutes, but rather
10

on the realm of the agency's authority and the nature of the petitioners' dispute.” Marczak v. Greene, 971 F.2d 510, 516 (10th Cir., 1992). As excluded aliens have no constitutional right to be paroled into this country, the scope of review of an ICE decision is therefore unrelated to a review the court would undertake were a convicted criminal claiming a violation of constitutional rights. “In immigration matters, the scope of judicial review on a petition for habeas corpus is more truncated than in the criminal context.” Amanullah v. Nelson, 811 F.2d 1, 16 (1st Cir.1987). The standard of review of agency action is the same for the reviewing district court as it is for this court; the review of agency action is deferential to the agency, and lacks the customary deference to the district court. Marczak, 917 F.2d at 516 (citing Webb v. Hodel, 878 F.2d 1252, 1254 (10th Cir.1989); Mason v. Brooks, 862 F.2d 190, 192 (9th Cir.1988). I. THE PETITION DOES NOT NAME THE PROPER CUSTODIAN-
RESPONDENT. The Supreme Court made clear that, in cases challenging physical custody, "the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent." Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also 28 U.S.C. § 2243 ("The writ, or order to show cause, shall be directed to the person having custody of the person detained."); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973) (“The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.”); see also Macias v.
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Greene, 28 F. Supp. 2d 635, 637 (D. Colo. 1998) (holding “[t]he proper respondent to a habeas action is the habeas petitioner’s custodian.”). More specifically, for "physical confinement" habeas actions, the proper respondents are the wardens of the facilities where the habeas petitioners are being held. Rumsfeld, 542 U.S. at 435. This is logical because the writ acts against the person who has "day-to-day control over [the] prisoner." Brittingham v. United States, 982 F.2d 378, 378 (9th Cir. 1992); see also Ex Parte Endo, 323 U.S. 283, 306 (1944) (writ is directed to prisoner’s “jailer”); Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986) (Parole Commission is not custodian despite its power to release the petitioner).
The Assistant Secretary of ICE is not the proper respondent in a habeas petition. The Tenth Circuit Court of Appeals has held that the warden of a detention facility – the person actually holding the petitioner in physical custody – is the proper respondent for a habeas action, not the Attorney General. Blango v. Thornburgh, 942 F.2d 1487, 1491-92 (10th Cir. 1991). "Otherwise, the Attorney General of the United States could be considered the custodian of every alien and prisoner in custody because [he] ultimately controls the [INS] district directors and [the] prisons." Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); see also Vasquez v. Reno, 233 F.3d 688, 693, 696 (1st Cir. 2000). The Assistant Secretary of ICE is not the warden of the facilities where the habeas applicants are being held, and, therefore, is not the proper respondent for a habeas petition. The petition should be dismissed for this reason alone.
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II. THE UNION HAS NO RIGHT TO SUE AS NEXT FRIEND. This Court does not have jurisdiction based on next friend standing because the Union
has not verified the petition, applicants can appear on their own behalf, and the Union does not have the requisite significant relationship with applicants.2 Congress codified the nextfriend standing doctrine in habeas proceedings in 1948; see 28 U.S.C. § 2242.
Applications for writs for habeas corpus must be signed and verified by the person seeking relief or the party acting on their behalf. 8 U.S.C § 2242; 28 U.S.C. § 1746 (signed documents declaring statements to be true under penalty of perjury are sufficient).3 Courts have found that “[a] habeas application must rest on a foundation of factual allegations presented under oath, either in a verified petition or supporting affidavits.” U.S. v. Labonte, 70 F.3d 1396, 1413 (1st Cir. 1995). This Court may find that it lacks jurisdiction because the Union’s petition in the present case fails to provide any acceptable form of verification. See Hem v. Maurer, 458 F.3d 1185, 1201 n.6 (10th Cir. 2006) (citing Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Without proper verification, the Court cannot properly weigh the credibility of the Union’s assertions. Even if the Court allowed petitioner the opportunity
2 It appears that the Union does not know who the applicants are, as it identifies the applicants by their stolen or fraudulent identities.
3 Absent a statutory definition, plain language defines verification as “[a] formal declaration made in the presence of an authorized officer, such as a notary public, or (in some jurisdictions) under oath but not in the presence of such an officer, whereby one swears to the truth of the statements in the document.” Black’s Law Dictionary (8th Ed. 2004).”
13

to remedy this omission, the Court should still find that the Union lacks next friend standing on two additional grounds.
The Supreme Court has established a two-prong test to establish such standing. Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). These two requirements are jurisdictional. Id. at 164; Williams v. Boone, 1999 WL 34856, *5 (10th Cir. 1999) (unpublished) (citations omitted) (copy attached per Local Rule 7.1.D.).
First, the next friend must demonstrate that the real party in interest cannot appear on his own behalf, and, therefore, that the real party in interest requires another to litigate the matter. Whitmore, 495 U.S. at 163. Detention alone is not enough to establish next friend standing; rather, the next friend must show “inaccessibility, mental incompetence, or other disability.” Id.; Williams, 1999 WL at *5 (citing Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir. 1989) (“A next friend may not file a petition for a writ of habeas corpus on behalf of a detainee if the detainee himself could file the petition.”).4
Second, the next friend must be truly dedicated to the “best interests of the person on whose behalf he seeks to litigate,” and it has been suggested the next friend must also have
4 Some courts have recognized additional situations that meet this prong including the inability to understand the English language or situation, Weber v. Garza, 570 F.2d 511, 514 n.4 (dictum)(citing united States ex. Rel. Bryant v. Houston, 273 F. 915 (2d. Cir. 1921), or a lack of access to counsel. See, e.g., Padilla v. Rumsfeld, 352 F.3d 695, 703 (2003), rev’d and remanded, 542 U.S. 426 (2004); Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1160 (9th Cir. 2002).
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some “significant relationship with the real party in interest.” Whitmore, 495 U.S. at 163. Courts have found that this second prong has been met by immediate relatives such as parents, see, e.g., Vargas v. Lambert, 159 F.3d 1161, 1163 (9th Cir. 1998); Hamilton v. Texas, 485 U.S. 1042, 1042 (1988); Gilmore v. Utah, 429 U.S. 1012, 1013-14 (1976); and sisters, see, e.g., United States ex. Rel. Roth v. Quarles, 350 U.S. 11, 13 n. 3 (1955). While some courts have recognized that detainees may not have relatives or friends to bring their claims as a next friend, there must still be a showing that a significant relationship exists to establish that the next friend is not an intruder or unintended meddler, styling themselves as a next friend. Whitmore, 495 U.S. at 164; see also Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1160, 1162-63 (9th Cir. 2002) (denying next friend standing where the party seeking next friend standing failed to demonstrate any relationship with the detainees, generally or individually); Weber, 570 F.2d at 514 (finding that powers of attorney alone without further showing of relationship and interest did not establish next friend standing).
Here, the Union has not adequately shown next friend standing. First, the Union has not demonstrated that the individual aliens are unable to appear on their own behalf. Unlike Padilla, where United States Court of Appeals for the Second Circuit affirmed next friend standing for Padilla’s attorney because Padilla was detained incommunicado, Padilla, 352 F.3d at 703-4, here the Union’s only, and insufficient assertion, is that the Union and Union’s
15

counsel were not notified of where individual applicants were incarcerated. See Petition at ¶13. The Union cannot show that individual applicants do not have access to outside communications. Indeed, the Union has hired two immigration attorneys to represent individual aliens who are union members in immigration proceedings. Maldonado Dec. at ¶ 21. Moreover, even where the immigration attorneys hired by the union have not made contact with individual detainees, the detainees were advised of their right to seek legal advice within hours of their arrest and were given access to telephones. Maldonado Dec. at ¶¶ 6, 13, 17, 20.5 Therefore, where the detainees have the opportunity to access the Union’s or their own counsel, this Court should find that the Union does not have next friend standing where the detainees could file habeas petitions themselves. See Williams, 1999 WL at *5.
Lastly, the Union has not affirmatively shown that it has a significant relationship with or represents the best interests of the applicant-detainees. The Union has a limited relationship to the applicant-detainees akin to the powers of attorney relationship that the United States Court of Appeals for the Fifth Circuit found insufficient to establish standing in Weber. 570 F.2d at 514. Here, all the Union claims is an interest in the applicants’ continued employment and conditions of employment, see Petition ¶5, and concern as to the applicants’ whereabouts. See Petition ¶13. The fact that the Union seeks to represent
5 Unlike the Sixth Amendment right to counsel in criminal cases, 8 C.F.R. § 287.3(c) provides that aliens in immigration detention need only be provided notice of the right to be represented. See infra part III(C).
16

applicants using stolen identities demonstrates that the Union knows little about the applicants they seek to protect, and further illustrates the lack of a significant relationship. As such the petition should be dismissed for a lack of jurisdiction because the petition is not verified, applicants can appear on their own behalf, and the Union does not have the requisite significant relationship with applicants. III. THE APPLICANTS HAVE NOT EXHAUSTED AVAILABLE REMEDIES.
In addition, applicants have failed to exhaust their administrative remedies. “[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed . . . remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193 (1969)). Although exhaustion may not be required in all aspects of habeas review, “[g]enerally, a habeas petition cannot be used to substitute for direct appeal.” Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004) (citing United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Importantly, where the administrative process can address claims of due process violations, exhaustion is required. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).
The various violations of due process that the Union believes to have occurred (without submitting a single statement from any of the applicants as to what actually occurred) are all violations which may be alleged and addressed in various removal proceedings, should the individuals wish to make such claims. Individual aliens may be placed in reinstatement proceedings, see section 241(a)(5) of the Immigration and Nationality
17

ACT (“INA”), 8 U.S.C. § 1231(a)(5), or in removal proceedings, see INA § 240, 8 U.S.C. § 1229a, where they can address their due process claims. Aliens in proceedings may also request additional opportunities to retain the counsel of their choice, see INA § 292, 8 U.S.C. § 1362, and aliens may request that an immigration judge review any bond determination, see INA § 242(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A). Thus, Congress established an administrative process through which aliens may seek their release from detention. Because applicants have failed to exhaust this process, this Court does not have jurisdiction over their claims. IV. APPLICANTS HAVE RECEIVED DUE PROCESS.
In any event, the Union fails to allege colorable claims of violations of any of the applicants’ constitutional rights.
This case arises from a worksite enforcement operation intended to apprehend illegal aliens who were unlawfully employed, and who had apparently, for the most part, secured their employment by stealing the identities of United States citizens and lawful permanent residents.6 DHS had a lawfully issued warrant to enter the Swift compound, see Maldonado Decl. at ¶ 2, and ICE agents have the authority to arrest those present in the United States in violation of the immigration laws, see INA § 287(a)(1), 8 U.S.C. § 1357(a)(1). Additionally,
6 Respondent notes the extraordinary nature of this case -- the use of false identities to bring a suit against the government for arresting and detaining individuals using those same false identities to work illegally in the United States.
18

a determination on whether to grant bond to an illegal alien detained by DHS is in the sole discretion of the Secretary in the first instance. See INA § 236(a)(2), 8 U.S.C. § 1226(a)(2). There is no absolute right to bond, and thus there is no right to be released. See Reno v. Flores, 507 U.S. 292, 306 (1993).
Moreover, DHS took numerous steps to ensure that the individual applicants had knowledge of their right to be represented by counsel and provided numerous opportunities for each individual applicant to call family, friends and/or counsel, even though, as explained below, applicants possess no constitutional right to counsel. Accordingly, DHS provided the applicants with a full and fair opportunity to obtain counsel. Thus, the applicants have failed to state colorable constitutional claims, and the petition should be denied.
A. The Arrests Were Lawful. ICE agents were lawfully present at Swift’s Greeley compound pursuant to a civil warrant issued by United States District Court Judge Phillip Figa. The use of civil warrants to authorize the entry upon premises where illegal aliens are believed to be present and to permit their questioning and arrest has longstanding judicial approval. See Blackie's House of Beef, Inc. v.Castillo, 659 F.2d 1211, 1219-27 (D.C. Cir. 1981), cert. denied, 455 U.S. 940 (1982). Further, it is well settled that the INA authorizes ICE agents to question any alien or person believed to be an alien regarding immigration status and right to be present in the United States. See INA § 287(a)(1), 8 U.S.C. § 1357(a)(1). Additionally, INA § 287(a)(2),
19

8 U.S.C. § 1357(a)(2), authorizes DHS agents to arrest aliens present in the United States without an arrest warrant, if the officer has reason to believe that the alien is in the United States in violation of the immigration laws and is likely to flee before a warrant can be obtained. Here, ICE not only had reason to believe that the aliens were not legally present in the United States, but also that they had obtained employment through the use of stolen identities.
Moreover, DHS unquestionably followed the regulations detailing how to examine suspected aliens taken into detention without an individual arrest warrant. See 8 C.F.R. § 287.3; Maldonado Decl. at ¶¶ 6, 13, 17, 20. ICE examined all individuals who were determined to be aliens within 20 hours of their apprehension; advised the aliens of their right to be represented by counsel on numerous occasions; provided the aliens with a list of available free legal services; and provided telephonic access, if requested, to family, friends, or the aliens counsel of choice. See Maldonado Decl. at ¶¶ 6, 13, 17, 20.
The applicants have failed to show that the arrests were illegal. In fact, the petition contains no allegations that the individual applicants, who were working due to their use of false identities, were not subject to arrest by ICE for violations of the immigration laws. Indeed, the government has shown that the arrests were legal.
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B. As The Decision On Whether Bond May Be Granted Is Discretionary, DHS Has Not Infringed Any “Right” To Bond.
There is no presumption that an alien will be released during his removal proceedings. Reno v. Flores, 507 U.S. at 306 ("Congress eliminated any presumption of release pending deportation, committing that determination to the discretion of the Attorney General").
While acknowledging that the Flores Court held that “the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” the Supreme Court nevertheless found that “detention during deportation proceedings [is] a constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003); Reno v. Flores, 507 U.S. at 294 (“Congress has given the Attorney General broad discretion to determine whether, and on what terms, an alien arrested on suspicion of being deportable should be released pending the deportation hearing process.”); Carlson v. Landon, 342 U.S. 524, 538 (1952) ("Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings"); Wong Wing v. United States, 163 U.S. 228, 235 (1896) ("We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid"); Carlson, 342 U.S. at 540 ("The [INA] does not grant bail as a matter of right."). See INA § 236(a)(2), 8 U.S.C. § 1226(a)(2).
21

The process by which the DHS Secretary and the Attorney General exercise that discretion is set forth in the regulations and involves multiple administrative components. ICE makes the initial custody decision in each case – that is, whether to keep the alien in detention pending completion of the removal proceedings, or whether to release the alien on bond or other appropriate conditions. See 8 C.F.R. § 236.1(a). The alien may appeal this determination to an immigration judge. 8 C.F.R. § 236.1(d)(1). That decision may in turn be appealed to the Board of Immigration Appeals (“Board”). 8 C.F.R. § 236.1(d)(3).7 In certain rare cases, the Attorney General himself may be the ultimate adjudicator of the custody decision. 8 C.F.R.§ 3.1(h)(1).
In cases such as these applicants’ cases, where the aliens were initially arrested without an arrest warrant, a bond determination must normally be made by ICE within 48 hours. See 8 C.F.R. § 287.3(d). In this case, initial bond determinations were made within the first 20 hours, and individual applicants are free to renew any requests for bond in future proceedings. Thus, DHS has infringed on no “right” to bond.
C. DHS Has Not Infringed Applicants’ Access To Counsel. The applicants, without asserting any facts, claim that they are being denied access to counsel. They are wrong.
7 In certain cases, DHS may appeal an immigration judge's decision to the Board, 8 C.F.R. § 1003.19(i)(2), and invoke an automatic stay of the immigration judge's order pending the Board's adjudication of the appeal.
22

It is well settled that removal proceedings are purely civil proceedings, and aliens in deportation proceedings are not entitled to the full panoply of rights available to criminal defendants. See INS v. Lopez-Mendoza, 486 U.S. 1032, 1038 (1984). Thus, the Sixth Amendment right to appointed counsel does not apply to aliens in deportation proceedings. See Michelson v. INS, 897 F.2d 465, 467 (10th Cir. 1990). An alien merely has the statutory privilege of being represented by counsel of the alien's choice, at no expense to the Government. See INA § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A); Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002).
The search warrant for a civil administrative search was executed at approximately 7:30 a.m., Tuesday, December 12, 2006 at the Swift meat plants in Greeley, Colorado. Maldonado Decl. at ¶ 2 . All Swift employees were brought to the plant’s cafeteria by Swift management and were interviewed to determine their legal status. Id. at ¶¶ 4, 9. Public telephones were available during this time for aliens who wanted to contact counsel, friends, family, anyone who could bring evidence of lawful status, or anyone else. Id. at ¶ 6.
Moreover, ICE repeatedly informed all aliens of their rights, including their right to counsel. While applicants were still on the buses that took them to ICE’s processing center, ICE officers orally advised everyone, in English and Spanish, of the reasons for their arrests and their rights, including their right to contact an attorney. Id.; see also Exhibit 2, Notice of Rights and Request for Disposition, Form A-826. The aliens were then processed at the
23

processing center, which was divided into four stations. Maldonado Decl. at ¶ 20. At the second station, the aliens were again given their rights in writing in Spanish and English, and given their Miranda rights as well. Id. At the fourth station, a Spanish-speaking agent served the Notice to Appear on the aliens, provided the aliens with a list of local legal organizations, and once again explained their rights. Id.
ICE denied no requests for attorneys, and denied no attorneys access to their individual clients. See id. at ¶ 23. Requests to use phones at the processing center were met with offers by ICE agents to allow use of their cell phones. Id.
Queries from individuals outside the processing center were complicated by the multiple names used by the aliens. See id. at ¶ 22. Unless the person making an inquiry regarding one of the detainees used the name the detainee gave to ICE, DHS had no way of determining initially which of the aliens was the subject of the inquiry. See id. Nevertheless, DHS advised everyone numerous times of the reasons for their arrests and their right to counsel, and gave the aliens ample opportunities to contact attorneys of their choice.8 See
8 Although the Union alleges it represents Union members in employment matters relating to conditions and terms of employment, it makes no showing that it represents individuals in civil immigration proceedings or in criminal proceedings. The Union represents its members in negotiations with the employer (in this case, Swift), and not in their individual contacts with the Federal Government. Additionally, even if the Union could be construed a representing individual aliens, none of the detained aliens requested Union representation. See NLRB v. Weingarten, 420 U.S. 251, 257 (1975) (“[T]he right [to Union representation] arises only in situations where the employee requests representation.”).
24

id. at ¶¶ 8, 14, 16, 17, 20. Consequently, the aliens had every opportunity to access counsel, in full compliance with the regulations regarding the processing of aliens arrested without warrant. See 8 C.F.R. § 287.3. D. No Constitutional Right Is Violated By the Detentions At Issue.
The Supreme Court decided in the government’s favor the constitutional issues raised by the Union. Specifically, the Court found that no constitutional right is violated when an alien is detained for the brief period of his removal proceedings. See Demore v. Kim, 538 U.S. 510, 523, 526 (2003) (noting the Court’s “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings”). Because the periods of detention at issue here have been extremely brief – far less than the three to six months in Kim – the applicants’ claims are foreclosed by Kim.
The Supreme Court expressly determined that detention during the removal process prior to issuance of a final order of removal is not the constitutionally suspect "indefinite detention" that was restricted by the Court in Zadvydas v. Davis, 533 U.S. 678 (2001):
While the period of detention in Zadvydas was “indefinite” and “potentially permanent,” the detention here is of a much shorter duration. Zadvydas distinguished the statutory provision it was there considering from § 1226 on these very grounds, noting that “post-removal-period detention, unlike detention pending a determination of removability, has no obvious termination point.” Kim, 538 U.S. at 529. Whether the applicants' detentions may some day become "too long" is not an issue before this Court. Habeas corpus is only a process for testing the current
25

legality of a detention. Walker v. Wainwright, 390 U.S. 335, 336 (1968). The Union has failed to allege even a colorable constitutional claim regarding the
detention of the applicants. V. THE PETITION FOR A WRIT OF HABEAS CORPUS IS NOT
MAINTAINABLE AS A CLASS ACTION It is axiomatic that, for a class action to be certified, a class must exist, and be susceptible to a precise definition. See A.H. Robins Co., Inc., 880 F.2d 709, 728 (4th Cir. 1989). Merely defining the class as “others similarly situated,” as the Union does here, without providing detailed guidance regarding how the class could be defined and identified, does not suffice. See Coleman v. Watt, 40 F.3d 255, 259 (8th Cir. 1994). In addition to failing to define a class, the habeas petition fails to establish the requirements of Rule 23 of the Federal Rules of Civil Procedure – numerosity, commonality, typicality, adequacy of representation, and that the class also satisfies at least one requirement of Rule 23(b). Monreal v. Potter, 367 F.3d 1224, 1235 (10th Cir. 2004). The Union fails to make allegations of fact that would satisfy any of the Rule 23 requirements. Thus, this case cannot be maintained as a class action. See id. // // //
26

CONCLUSION

For the foregoing reasons, this Court should deny the Petition for Writ of Habeas

Corpus.

Dated: December 18, 2006

Respectfully submitted, TROY A. EID United States Attorney

PETER D. KEISLER Assistant Attorney General DAVID KLINE Principal Deputy Director

MARK PESTAL Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) E-mail: mark.pestal@usdoj.gov

By: S/ ELIZABETH J. STEVENS Trial Attorney Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20044 Telephone: (202) 616-9752 Fax: (202) 353-7224 E-mail: elizabeth.stevens@usdoj.gov

27

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this date I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing
to the following CM/ECF participants:
John P. Bowen, Esq. United Food & Commercial Workers Union Local No. 7 7760 W.38th Ave., Suite 400 Wheat Ridge, CO 80033 tel: (303) 425-0897, ext. 445 email: jbowen@ufcw7.com
By: S/ Trial Attorney Office of Immigration Litigation Civil Division United States Department of Justice 1331 Pennsylvania Avenue, N.W. Washington, D.C. 20044 Telephone: (202) 616-9752 Fax: (202) 353-7224 E-mail: elizabeth.stevens@usdoj.gov

 
 Case 1:06-cv-02494-JLK Document 22 Filed 12/28/2006 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-CV-2494-JLK-MJW RINALDO YARRITO, et al.
Petitioners, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE DEPARTMENT OF HOMELAND SECURITY, JULIE L. MEYERS, Assistant Secretary for Homeland Security,
Respondents.
AMENDED ORDER

The Order to Show Cause issued by this Court is further amended as follows:

“Respondents may release applicants on bond or on their own recognizance. Respondents may also remove aliens from the United States who request voluntary removal pursuant to 8 C.F.R. § 240.5 or who request removal pursuant to a stipulated order of removal pursuant to 8 U.S.C. § 1229a(d) and 8 U.S.C. § 1103(a)(3), if said request was made without coercion, intimidation or harassment.

Dated: December 28, 2006

s/John L. Kane John L. Kane, Senior Judge United States District Court

 
 Case 1:06-cv-02494-JLK Document 36 Filed 01/05/2007 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 06-cv-2494-JLK-MJW RINALDO YARRITO, et al.
Applicants, v. JULIE L. MEYERS, Assistant Secretary for Homeland Security
Respondent.
MINUTE ORDER Judge John L. Kane ORDERS
Oral Argument on this case is set for January 12, 2007 at 9:00 a.m. in Courtroom A802, Alfred A. Arraj U.S. Courthouse, 901 19th Street.
Dated: January 5, 2007

 
 Case 1:06-cv-02494-JLK Document 42 Filed 01/12/2007 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane
Civil Action No. 06-cv-2494-JLK-MJW RINALDO YARRITO, et al.
Applicants, v. JULIE L. MEYERS, Assistant Secretary for Homeland Security
Respondent.
MINUTE ORDER Judge John L. Kane ORDERS
This case is set for further hearing on January 22, 2007 at 10:00 a.m. in Courtroom A802, Alfred A. Arraj U.S. Courthouse, 901 19th Street. The parties shall file a detailed status report no later than noon on January 18, 2007.
Dated: January 12, 2007

 
 Case 1:06-cv-02494-JLK Document 49 Filed 01/12/2007 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge John L. Kane

Date: January 12, 2007

Court Reporter: Janet Coppock Deputy Clerk: LaDonne Bush

Civil Action No. 06-cv-02494-JLK

RINALDO YARRITO, et al, Petitioners,

John Bowen DeAngelo Starnes Jim Salvatore

v.

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE DEPARTMENT OF HOMELAND SECURITY, JULIE L. MEYERS, Assistant Secretary for Homeland Security,

Mark Pestal Edward Wiggers Elizabeth Stevens

Respondents. _____________________________________________________________________

COURTROOM MINUTES _____________________________________________________________________

Oral Argument

9:05 a.m. Court in session.

Court’s preliminary comments.

Court finds, among other things, that it has jurisdiction over the petition, but any related challenges to the lawfulness of the removal order affecting individual petitioners will require a transfer to the Court of Appeals.

ORDERED: To the extent there are any detainees who have not yet been afforded bond hearings, those detainees shall be identified specifically and those hearings shall take place within 48 hours.

ORDERED: With regard to petitioners, if any, who remain in custody subject to a voluntary removal order which he or she claims was fraudulently or wrongfully obtained, those individuals shall not be removed pursuant to

Case 1:06-cv-02494-JLK Document 49 Filed 01/12/2007 Page 2 of 2
those orders. The government is directed to comply with any request on behalf of those individuals to withdraw their agreement to voluntary removal.
Court suggests that counsel meet and confer to determine the names of the detainees, where they are being detained and their status.
9:46 a.m. Statement by Mr. Pestal.
Discussion between the Court and counsel regarding the issue of the representation of petitioners by Mr. Salvatore.
Statement by Mr. Bowen.
Statement by Ms. Stevens.
ORDERED: With Regard to Respondent’s Motion for Reconsideration of the Court’s January 5, 2006, Order and, in the Alternative, Motion to Dismiss for Lack of Jurisdiction and Partial Motion to Dismiss for Lack of Jurisdiction (Doc. 38):
1. the Motion for Reconsideration is denied; 2. the case is not dismissed; 3. the petitions are held in abeyance pending completion of
petitioners’administrative processing; 4. the Court retains jurisdiction over the case to monitor ICE’s
compliance with the substantive and procedural due process protections afforded by Congress under the Immigration and Nationality Act and its implementing regulations, as well as the United States Constitution; and 5. petitioners’claims based on averred violations of the Fourth Amendment regarding the raid are dismissed.
Court directs counsel to meet and agree on a date for another hearing.
10:12 a.m. Court in recess.
Hearing concluded. Time - 01:07
2

 
 Case 1:06-cv-02494-JLK Document 59 Filed 01/25/2007 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-02494-JLK RINALDO YARRITO, an alias of a person whose true identity is unknown, et al,
Petitioners, v. JULIE L. MEYERS, Assistant Secretary for Homeland Security, ALFREDO CAMPOS, WARDEN, USDHS-ICE, El Paso, Texas, TERESA HUNT, Warden, GEO-ICE, Aurora, Colorado, and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE DEPARTMENT OF HOMELAND SECURITY,
Respondents. _____________________________________________________________________
FINAL JUDGMENT _____________________________________________________________________
This matter was before the Court on Monday, January 22, 2007, for hearing. The Court heard the arguments and statements of counsel, and made oral conclusions of law which are incorporated herein by reference as if fully set forth. The Court having found that respondents have complied with its orders to correct constitutional deficiencies in the due process afforded petitioners, it is
ORDERED that final judgment is entered in favor of petitioners. It is FURTHER ORDERED that this case is closed.

Case 1:06-cv-02494-JLK Document 59 Filed 01/25/2007 Page 2 of 2

DATED this 25th day of January, 2007.

APPROVED:

FOR THE COURT:
Gregory C. Langham, Clerk
s/Stephen P. Ehrlich By: _______________________________
Stephen P. Ehrlich Chief Deputy Clerk

s/John L. Kane John L. Kane, Senior Judge

Civil Action No. 06-cv-02494-JLK

2

 
 CM/ECF - U.S. District Court:cod - Docket Report

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U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:06-cv-02494-JLK

TERMED

Yarrito et al v. Meyers et al Assigned to: Judge John L. Kane Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 12/13/2006 Date Terminated: 01/25/2007 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Petitioner
Rinaldo Yarrito an alias of a person whose true identity is unknown next friend United Food & Commercial Workers Union, Local No. 7

represented by DeAngelo Starnes United Food Commercial Workers Local No. 7 7760 West 38th Avenue #400 Wheat Ridge, CO 80033 303-425-0897 Fax: 303-403-1387 Email: dstarnes@UFCW7.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Patrick Bowen United Food Commercial Workers Local No. 7 7760 West 38th Avenue #400 Wheat Ridge, CO 80033 303-425-0897 Fax: 303-403-1387 Email: jbowen@ufcw7.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner

Jim Salvator Jim Salvator, Attorney at Law 1643 Erin Way Lafayette, CO 80026 303-604-0320 Fax: 303-604-2024 Email: salvator@igc.org ATTORNEY TO BE NOTICED

https://ecf.cod.uscourts.gov/cgi-bin/DktRpt.pl?948034608988975-L_353_0-1

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Carlos Perez Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Maria E. Fragu Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Jose Chavez Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Adam M. Flores Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Rinald Dirrato Detainee next friend United Food & Commercial Workers Union, Local No. 7

represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen

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Petitioner Arrestada Joy Aspose Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Kimberly Cordova Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Roberto Burgos Roman Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Rudy Hernadez Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Lionel Vicente Chum

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes

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Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Juan Vela Detainee next friend United Food & Commercial Workers Union, Local No. 7
Petitioner Marquerez Barron Detainee, and all other persons similarly situated next friend United Food & Commercial Workers Union, Local No. 7
V. Respondent Julie L. Meyers Assistant Secretary for Homeland Security

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DeAngelo Starnes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Patrick Bowen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward E. Wiggers U.S. Department of Justice-DC-Civil Immigration Litigation 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202-616-1247 Fax: 202-233-0397 Email: edward.wiggers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joanne Stevens U.S. Department of Justice-DC-Civil Immigration Litigation 950 Pennsylvania Avenue, N.W.

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Respondent United States Immigration & Customs Enforcement Division of Department of Homeland Security
Respondent Theresa Hunt Warden at ICE's facility in Aurora, Colorado
Respondent Alfredo Campos warden at ICE's El Paso, Texas facility

Washington, DC 20530 202-616-9752 Fax: 202-233-0397 Email: elizabeth.stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark S. Pestal U.S. Attorney's Office-Denver 1225 Seventeenth Street #700 Denver, CO 80202 303-454-0101 Fax: 303-454-0404 Email: mark.pestal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward E. Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joanne Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark S. Pestal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward E. Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joanne Stevens (See above for address)
represented by Edward E. Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Joanne Stevens

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Date Filed 12/13/2006
12/13/2006 12/14/2006 12/18/2006 12/18/2006
12/18/2006 12/19/2006 12/20/2006
12/20/2006

(See above for address) ATTORNEY TO BE NOTICED

#

Docket Text

1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5, Receipt Number 273073), filed by Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Proposed Order to Show Cause# 2 Civil Cover Sheet # 3 Receipt)(gms, ) (Entered: 12/13/2006)

2 ORDER TO SHOW CAUSE: returnable by respondent why application for a writ of habeas corpus should not be granted. Show Cause Response due by 12/18/2006. Signed by Judge John L. Kane on 12/13/06. (Attachments: # 1 certified mail receipt)(jjh, ) (Entered: 12/13/2006)

3 AFFIDAVIT/RETURN of Service of upon US Attorney on 12/13/06 (jjh, ) (Entered: 12/14/2006)

4 RETURN of Service of green receipt upon District Director Department of Homeland Security on 12/14/06, filed by Respondent United States Immigration & Customs Enforcement (jjh, ) (Entered: 12/18/2006)

5 BRIEF re 1 Petition for Writ of Habeas Corpus, by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7)(Bowen, John) (Entered: 12/18/2006)

6 RESPONSE TO ORDER TO SHOW CAUSE re 2 by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit Ex.1, Declaration of P. Maldonado# 2 Exhibit Ex.2, Form I-826# 3 Attachment A)(Stevens, Elizabeth) (Entered: 12/18/2006)

7 MINUTE ORDER Petitioners to file Traverse as soon as practicable, no later than noon 12/29/06, by Judge John L. Kane on 12/19/06. (jjh, ) (Entered: 12/19/2006)

8 MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by Name by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Bowen, John) (Entered: 12/20/2006)

9 RESPONSE to Motion re 8 MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by

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12/20/2006 12/21/2006 12/22/2006
12/22/2006 12/22/2006
12/26/2006 12/26/2006 12/27/2006

Name MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by Name Respondent's Opposition to the Claimed Next Friend's Motion to Amend Petition for Writ of Habeas Corpus and Respondent's Motion For Clarification of the Court's December 13, 2006 Order to Show Cause filed by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit A# 2 Proposed Order (PDF Only))(Stevens, Elizabeth) (Entered: 12/20/2006)
11 Minute ORDER on Petitioner's 8 Motion to Amend Petition is held in Abeyance pending compliance with D.C.COLO.LCivR7.1A. by Judge John L. Kane on 12/20/06.(jjh, ) (Entered: 12/22/2006)
10 MOTION for Leave to File Response to Claimed Next Friend's Brief On or Before December 29, 2006 by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Proposed Order (PDF Only))(Stevens, Elizabeth) (Entered: 12/21/2006)
12 NOTICE of Entry of Appearance of DeAngelo Starnes by John Patrick Bowen on behalf of Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu (Bowen, John) (Entered: 12/22/2006)
13 Minute ORDER granting Respondent's 10 Motion for Leave to File Response to Claimed Next Friend's Brief on 12/29/06. Signed by Judge John L. Kane on 12/22/06.(jjh, ) (Entered: 12/22/2006)
14 SUPPLEMENT/AMENDMENT to 8MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by Name by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Proposed Order (PDF Only)) (Stevens, Elizabeth) (Modified on 12/26/2006 to correct linkage) (dln, ). (Entered: 12/22/2006)
15 Docket Annotation re: 14 SUPPLEMENT/AMENDMENT to 8MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by Name by Respondents. [Entry modified to correct linkage - Text only entry - no document attached]. (dln, ) (Entered: 12/26/2006)
16 ORDER 2 Order to Show Cause is amended as set forth in this order. This order pertains only to document 14. Document 8 is still pending and will be ruled on by a separate order. Signed by Judge John L. Kane on 12/26/06. (jjh, ) (Entered: 12/26/2006)
17 RESPONSE to Motion re 8 MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by Name MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, and Join Additional Petitioners by Name Response to Respondents' Opposition to Next Friend's Motion for Leave to Amend Petition for Writ of Habeas Corpus and Join Additional Petitioners by

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12/27/2006 12/27/2006 12/28/2006 12/28/2006 12/28/2006
12/29/2006 12/29/2006

Name filed by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Starnes, DeAngelo) (Entered: 12/27/2006)
18 MOTION for Reconsideration re 16 Order by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2) (Starnes, DeAngelo) (Entered: 12/27/2006)
19 MOTION for Order to Show Cause Amended Show Cause Order by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Starnes, DeAngelo) (Entered: 12/27/2006)
20 Docket Annotation: Motions terminated: 19 MOTION for Order to Show Cause Amended Show Cause Order by Petitioners. [Document is not a motion - proposed order for document #18]. Text only entry - no document attached. (dln, ) (Entered: 12/28/2006)
21 TRAVERSE re 7 Order by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Exhibit Exhibit 1 to Traverse# 2 Exhibit Exhibit 2 to Traverse# 3 Exhibit Exhibit 3 to Traverse)(Starnes, DeAngelo) (Entered: 12/28/2006)
22 AMENDED ORDER re: 16 Order to Show Cause is Further Amended as follows: "Respondents may release applicants on bond or on their own recognizance.Respondents may also remove aliens from the United States who request voluntaryremoval pursuant to 8 C.F.R. § 240.5 or who request removal pursuant to a stipulated order of removal pursuant to 8 U.S.C. § 1229a(d) and 8 U.S.C. § 1103(a)(3), if said request was made without coercion, intimidation or harassment. Signed by Judge John L. Kane on 12/28/06. (erv, ) (Entered: 12/28/2006)
23 BRIEF re 5 Brief, Respondent's Memorandum Of Law In Response To The Brief Filed By Alleged Next Friend by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit A, Declaration of SDDO Robert Lindly# 2 Appendix)(Stevens, Elizabeth) (Entered: 12/29/2006)
24 NOTICE re 14 Supplement/Amendment, Respondent's Notice To Court Regarding Respondent's Motion For Claritification Of The Court's December 13, 2006 Order To Show Cause by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement (Stevens, Elizabeth) (Entered: 12/29/2006)

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01/02/2007 01/02/2007 01/02/2007 01/03/2007 01/03/2007 01/05/2007
01/05/2007
01/05/2007 01/05/2007
01/05/2007

25 NOTICE of Entry of Appearance by Jim Salvator on behalf of Rinaldo Yarrito (Salvator, Jim) (Entered: 01/02/2007)
26 NOTICE OF EUSEBIO VICENTE PELICO by Petitioner Rinaldo Yarrito (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Salvator, Jim) (Entered: 01/02/2007)
27 NOTICE OF SANTOS GERVACIO VICENTE-VICENTE by Petitioner Rinaldo Yarrito (Salvator, Jim) (Entered: 01/02/2007)
28 AFFIDAVIT/RETURN of Service of upon Department of Homeland Security on 12/18/06. (jjh, ) (Entered: 01/03/2007)
29 AFFIDAVIT/RETURN of Service of upon US Attorney General on 12/28/06. (jjh, ) (Entered: 01/03/2007)
30 MOTION to Amend/Correct/Modify 1 Petition for Writ of Habeas Corpus, And Join Additional Respondents By Name by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Proposed Order (PDF Only)) (Starnes, DeAngelo) (Entered: 01/05/2007)
31 MOTION to Supplement 21 Traverse, 5 Brief, by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Supplement to Petitioners' Brief and Traverse# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Exhibit 12# 14 Exhibit 13# 15 Exhibit 14# 16 Exhibit 15# 17 Exhibit 16# 18 Exhibit 17# 19 Exhibit 18# 20 Exhibit 19# 21 Exhibit 20# 22 Exhibit 21)(Starnes, DeAngelo) (Entered: 01/05/2007)
32 Minute ORDER granting 31 Motion to Supplement Petitioner's Brief and Traverse, by Judge John L. Kane on 1/5/07.(gms, ) (Entered: 01/05/2007)
33 SUPPLEMENT to 5 Brief and 21 Traverse, by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Attachments: # 1 Exhibit #1# 2 Exhibit #2# 3 Exhibit #3# 4 Exhibit #4# 5 Exhibit #5# 6 Exhibit #6# 7 Exhibit #7# 8 Exhibit #8# 9 Exhibit #9# 10 Exhibit #10# 11 Exhibit #11# 12 Exhibit #12# 13 Exhibit #13# 14 Exhibit #14# 15 Exhibit #15# 16 Exhibit #16# 17 Exhibit #17# 18 Exhibit #18# 19 Exhibit #19# 20 Exhibit #20# 21 Exhibit #21)(gms, ) (Entered: 01/05/2007)
34 RESPONSE to 26 Notice (Other) of Eusebio Vicente Pelico Regarding Court's Order of December 29, 2006 by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1

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01/05/2007 01/05/2007 01/05/2007
01/11/2007 01/11/2007 01/11/2007 01/11/2007 01/12/2007 01/12/2007 01/12/2007

Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit 3)(Stevens, Elizabeth) (Entered: 01/05/2007)
35 RESPONSE to 27 Notice (Other) of Santos Gervacio Vicente Vicente, et al by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit 1)(Stevens, Elizabeth) (Entered: 01/05/2007)
36 MINUTE ORDER: Oral Argument set for 1/12/2007 09:00 AM in Courtroom A 802 before Judge John L. Kane, by Judge John L. Kane on 1/5/07. (gms, ) (Entered: 01/05/2007)
37 ORDER granting Petitioners' 30 Motion to Amend Petition for Writ of Habeas Corpus and Join Additional Respondents by Name. Caption is amended to add Theresa Hunt and Alfredo Campos as named respondents; granting Petitioners' 8 Motion for Leave to Amend Petition for Writ of Habeas Corpus and Join Additional Petitioners by Name, with the priviso petitioners file amended complaint within 10 days. With the caveat (contained in the order), the 252 individuals identified in Exhibit 1 to the brief in support of the petition for writ of habeas corpus are named as parties on the petition. Signed by Judge John L. Kane on 1/5/07. (gms, ) (Entered: 01/05/2007)
38 MOTION for Reconsideration re 37 Order on Motion to Amend/Correct/Modify,,,,, by Respondent Julie L. Meyers. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Proposed Order (PDF Only))(Pestal, Mark) (Entered: 01/11/2007)
39 NOTICE re 36 Order, Set/Reset Hearings Pre-Hearing Submission by Respondent Julie L. Meyers (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Pestal, Mark) (Entered: 01/11/2007)
40 NOTICE of Entry of Appearance of Edward E. Wiggers by Mark S. Pestal on behalf of Julie L. Meyers (Pestal, Mark) (Entered: 01/11/2007)
41 RESPONSE to Motion re 38 MOTION for Reconsideration re 37 Order on Motion to Amend/Correct/Modify,,,,, filed by Petitioner Rinaldo Yarrito. (Salvator, Jim) (Entered: 01/11/2007)
42 MINUTE ORDER Setting Oral Argument set for 1/22/2007 10:00 AM in Courtroom A 802 before Judge John L. Kane. Parties shall file a detailed status report no later than noon on 01/18/07, by Judge John L. Kane on 01/12/07. (jjh, ) (Entered: 01/12/2007)
46 Utility Setting/Resetting Deadlines/Hearings pursuant to minute order of 01/12/07. Text only entry - no document attached. Oral Argument set for 1/22/2007 10:00 AM in Courtroom A 802 before Judge John L. Kane. (jjh, ) (Entered: 01/16/2007)
49 Minute Entry - Courtroom Minutes for Oral Argument held before Judge John L. Kane held on 1/12/2007. ORDERED: To the extent there are any detainees who have not yet been afforded bond hearings, those detainees shall be identified specifically and those hearings shall take place within

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01/14/2007 01/14/2007 01/15/2007 01/16/2007 01/16/2007 01/17/2007 01/18/2007

48 hours. ORDERED: With regard to petitioners, if any, who remain in custody subject to a voluntary removal order which he or she claims was fraudulently or wrongfully obtained, those individuals shall not be removed pursuant to those orders. The government is directed to comply with any request on behalf of those individuals to withdraw their agreement to voluntary removal. ORDERED: With regard to 38 Respondents Motion for Reconsideration of the Courts January 5, 2006, Order and, in the Alternative, Motion to Dismiss for Lack of Jurisdiction and Partial Motion to Dismiss for Lack of Jurisdiction: (1) the Motion for Reconsideration is denied; (2) the case is not dismissed; (3) the petitions are held in abeyance pending completion of petitioners administrative processing; (4) the Court retains jurisdiction over the case to monitor ICEs compliance with the substantive and procedural due process protections afforded by Congress under the Immigration and Nationality Act and its implementing regulations, as well as the United States Constitution; and (5) petitioners claims based on averred violations of the Fourth Amendment regarding the raid are dismissed. (Court Reporter Janet Coppock) (lbush) (Entered: 01/16/2007)
43 MOTION to OBTAIN EMERGENCY RELIEF by Petitioner Rinaldo Yarrito. (Attachments: # 1 Exhibit A)(Salvator, Jim) (Entered: 01/14/2007)
44 MOTION for Order to Proposed Order by Petitioner Rinaldo Yarrito. (Salvator, Jim) (Entered: 01/14/2007)
45 BRIEF in Opposition re 43 MOTION to OBTAIN EMERGENCY RELIEF filed by Respondents Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit A# 2 Proposed Order (PDF Only))(Stevens, Elizabeth) (Entered: 01/15/2007)
47 Utility Setting/Resetting Deadlines/Hearings pursuant to Minute Order of 01/12/07. Text only entry - no document attached. Status Report due by noon on 1/18/2007. (jjh, ) (Entered: 01/16/2007)
48 Docket Annotation: Motions terminated: 44 MOTION for Order to Proposed Order by Petitioner. [Document is a duplicate of #43 - not a proposed order]. Text only entry - no document attached. (dln, ) (Entered: 01/16/2007)
50 RESPONSE to Motion re 43 MOTION to OBTAIN EMERGENCY RELIEF filed by Respondent United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit A)(Pestal, Mark) (Entered: 01/17/2007)
51 TRANSCRIPT of Oral Argument held on 01/12/07 before Judge Judge Kane. Prepared by: Federal Reporting Service. Pages: 1-40. (certified copy) Text Only Entry - Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digitalaudio taped record, the courtroom deputy for the judicial officer. (jjh, ) Modified on 1/22/2007 to correct who transcript was prepared by (jjh, ).

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01/18/2007 01/18/2007 01/18/2007 01/18/2007 01/18/2007 01/19/2007 01/22/2007
01/25/2007 03/26/2007

(Entered: 01/18/2007)
52 STATUS REPORT by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Starnes, DeAngelo) (Entered: 01/18/2007)
53 CERTIFICATE of Mailing/Service re 52 Status Report, by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Starnes, DeAngelo) (Entered: 01/18/2007)
54 ERRATA re 52 Status Report, by Petitioners Jose Chavez, Adam M. Flores, Rinald Dirrato, Arrestada Joy Aspose, Kimberly Cordova, Roberto Burgos Roman, Rudy Hernadez, Rinaldo Yarrito, Lionel Vicente Chum, Juan Vela, Marquerez Barron, Carlos Perez, Maria E. Fragu. (Starnes, DeAngelo) (Entered: 01/18/2007)
55 STATUS REPORT by Respondent United States Immigration & Customs Enforcement. (Pestal, Mark) (Entered: 01/18/2007)
56 REPLY to Response to Motion re 43 MOTION to OBTAIN EMERGENCY RELIEF filed by Petitioner Rinaldo Yarrito. (Salvator, Jim) (Entered: 01/18/2007)
57 SURREPLY re 43 MOTION to OBTAIN EMERGENCY RELIEF filed by Respondents Theresa Hunt, Alfredo Campos, Julie L. Meyers, United States Immigration & Customs Enforcement. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Stevens, Elizabeth) (Entered: 01/19/2007)
58 Minute Entry for proceedings held before Judge John L. Kane: denying 43 Motion Regarding 61 Mayans Detained without bond; Oral Argument Hearing held on 1/22/2007. Name of first plaintiff to be changed to "Rinaldo Yarrito, an alias of a person whose true identity is unknown." Case closed final judgment shall enter. (Court Reporter Gwen Daniel.) (jjh, ) (Entered: 01/22/2007)
59 Final JUDGMENT by Clerk in favor of Petitioners against United States Immigration & Customs Enforcement, Alfredo Campos, Julie L. Meyers, Theresa Hunt, Pursuant to Hearing 01/22/07. Case is closed. Signed by Stephen P. Ehrlich, Chief Deputy Clerk 01/25/07. (jjh, ) (Entered: 01/25/2007)
60 TRANSCRIPT of hearing on motions held on 1/22/2007 before Judge Kane. Pages: 1-14. Per statute, copies of transcripts are available for inspection in the clerk's office. Parties interested in a copy may contact the court reporter or, in the case of a transcript prepared from a digitalaudio taped record, the courtroom deputy for the judicial officer. (Daniel, Gwen) Modified on 3/30/2007 to correct the Judge to be Judge Kane (gmssl, ). (Entered: 03/26/2007)

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03/30/2007

61 Docket Annotation re: [60] Transcript. This docket entry was modified to correct the judge to Judge Kane, instead of Judge Nottingham. Text only entry - no document attached. (gmssl, ) (Entered: 03/30/2007)

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