Case 3:18-cv-1098 As of 06/26/2018 06:51 AM PDT Page 1 of 4 Page ID#: <pageID>
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:18−cv−01098−SI

Innovation Law Lab et al v. Secretary of the Department of Homeland Security, et al Assigned to: Judge Michael H. Simon Cause: 28:2241 Petition Writ of Habeas Corpus (Federal)
Plaintiff

Date Filed: 06/22/2018 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Innovation Law Lab

represented by Keith A. Ketterling Stoll Stoll Berne Lotking & Shlachter 209 SW Oak Street 5th Floor Portland, OR 97204 503−227−1600 Fax: 503−227−6840 Email: kketterling@stollberne.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly K. Simon ACLU of Oregon P.O. Box 40585 Portland, OR 97240 503−444−7015 Email: ksimon@aclu−or.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew W. dos Santos ACLU of Oregon P.O. Box 40585 Portland, OR 97240 503−227−6928 Email: mdossantos@aclu−or.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadia H. Dahab Stoll Stoll Berne Lokting & Shlachter P.C. 209 SW Oak Street Suite 500 Portland, OR 97204 503−227−1600 Fax: 503−227−6840 Email: ndahab@stollberne.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Luis Javier Sanchez Gonzalez by Xochitl Ramos Valencia as next friend

represented by Keith A. Ketterling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly K. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew W. dos Santos

Case 3:18-cv-1098 As of 06/26/2018 06:51 AM PDT Page 2 of 4 Page ID#: <pageID>
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Secretary of the Department of Homeland Security Kirstjen Nielsen, Secretary, Department of Homeland Security, in their official capacity
Defendant Director for U.S. Immigration and Customs Enforcement Thomas Homan, Acting Director, Immigration and Customs Enforcement, in their official capacity
Defendant Acting Field Office Director, Seattle Field Office of ICE Elizabeth Godfrey , Acting Field Office Director, Seattle Field Office of ICE, in their official capacity only
Defendant Attorney General of the United States Jefferson Beauregard Sessions, III, U.S. Attorney General, in their official capacity

represented by Dianne Schweiner U S Attorneys Office − District of Oregon Civil Division 1000 SW Third Avenue Suite 600 Portland, OR 97204 503−727−1102 Fax: 503−727−1117 Email: dianne.schweiner@usdoj.gov ATTORNEY TO BE NOTICED
Ubaid ul−Haq U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−532−4112 Fax: 202−305−7000 Email: ubaid.ul−haq@usdoj.gov ATTORNEY TO BE NOTICED
represented by Dianne Schweiner (See above for address) ATTORNEY TO BE NOTICED
Ubaid ul−Haq (See above for address) ATTORNEY TO BE NOTICED
represented by Dianne Schweiner (See above for address) ATTORNEY TO BE NOTICED
Ubaid ul−Haq (See above for address) ATTORNEY TO BE NOTICED
represented by Ubaid ul−Haq (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dianne Schweiner (See above for address) ATTORNEY TO BE NOTICED

Case 3:18-cv-1098 As of 06/26/2018 06:51 AM PDT Page 3 of 4 Page ID#: <pageID>

Defendant Director of the Federal Bureau of Prisons Hugh J. Hurwitz, Acting Director, Federal Bureau of Prisons, in their official capacity
Defendant Warden, FCI Sheridan Medium Security Prison Josias Salazar Warden, FCI Sheridan Medium Security Prison, in their official capacity only
Amicus FPD Lisa Hay Federal Public Defender 101 SW Main St #1700 Portland, OR 97204 503−326−2123 Amica Curiae

represented by Dianne Schweiner (See above for address) ATTORNEY TO BE NOTICED
Ubaid ul−Haq (See above for address) ATTORNEY TO BE NOTICED
represented by Dianne Schweiner (See above for address) ATTORNEY TO BE NOTICED
Ubaid ul−Haq (See above for address) ATTORNEY TO BE NOTICED
represented by Lisa Hay Office of the Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 503−326−2123 Fax: 503−326−5524 Email: lisa_hay@fd.org ATTORNEY TO BE NOTICED

Date Filed 06/22/2018
06/22/2018 06/22/2018
06/22/2018
06/22/2018 06/22/2018 06/22/2018 06/22/2018

# Docket Text
1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 0979−5456188 Filer is subject to the requirements of Fed. R. Civ. P. 7.1. Jury Trial Requested: No. Filed by Innovation Law Lab, Luis Javier Sanchez Gonzalez against All Defendants (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Proposed Summons, # 6 Proposed Summons, # 7 Proposed Summons). (Dahab, Nadia) (Entered: 06/22/2018)
2 Emergency Motion for Temporary Restraining Order and Memorandum in Support. Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Dahab, Nadia) (Entered: 06/22/2018)
3 Declaration of Stephen W. Manning . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J) (Dahab, Nadia) (Entered: 06/22/2018)
4 Declaration of Chanpone Sinlapasai . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Dahab, Nadia) (Entered: 06/22/2018)
5 Declaration of Leland Baxter−Neal . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Dahab, Nadia) (Entered: 06/22/2018)
6 Declaration of Luis Garcia . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Dahab, Nadia) (Entered: 06/22/2018)
7 Declaration of Ian Philabaum . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Dahab, Nadia) (Entered: 06/22/2018)
8 Declaration of Philip Smith . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Dahab, Nadia) (Entered: 06/22/2018)

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06/22/2018 06/22/2018
06/22/2018 06/22/2018
06/24/2018 06/24/2018
06/24/2018 06/24/2018 06/24/2018 06/24/2018 06/24/2018 06/24/2018 06/25/2018 06/25/2018
06/25/2018

9 Declaration of Chelsea Strautman . Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 2 .) (Dahab, Nadia) (Entered: 06/22/2018)
10 Notice of Case Assignment to Judge Michael H. Simon and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. Discovery is to be completed by 10/22/2018. Joint Alternate Dispute Resolution Report is due by 11/19/2018. Pretrial Order is due by 11/19/2018. Ordered by Judge Michael H. Simon. (sss) (Entered: 06/22/2018)
11 Summons Issued Electronically as to All Defendants. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3−5. (sss) (Entered: 06/22/2018)
12 Order − Setting a case schedule as follows: (1) Defendants' response to Plaintiff's Motion for Temporary Restraining Order (ECF 2 ) is due by noon on Sunday, June 24, 2018; and (2) Oral Argument is set for Monday, June 25, 2018 at 08:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/22/2018)
13 Notice of Appearance of Ubaid ul−Haq appearing on behalf of All Defendants in their official capacities only Filed by on behalf of All Defendants. (ul−Haq, Ubaid) (Entered: 06/24/2018)
14 Memorandum in Opposition to Emergency Motion for Temporary Restraining Order and Memorandum in Support 2 . Filed by All Defendants. (Attachments: # 1 Exhibit 1, Newman Declaration, # 2 Exhibit 2, Heaton Declaration, # 3 Exhibit 3, ICE Phone Lines, # 4 Exhibit 4, FDC Sheridan Laptop−Tablet Access) (ul−Haq, Ubaid) (Entered: 06/24/2018)
15 Motion to Appear as Amicus Curiae . Filed by Lisa Hay. (Hay, Lisa) (Entered: 06/24/2018)
16 ORDER: Granting Motion to Appear as Amicus Curiae 15 . Ordered by Judge Michael H. Simon. (SI) (Entered: 06/24/2018)
17 Notice of Appearance of Dianne Schweiner appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Schweiner, Dianne) (Entered: 06/24/2018)
18 Amicus Brief In Support Of Plaintiffs' Emergency Application for TRO. Filed by Lisa Hay. (Hay, Lisa) (Entered: 06/24/2018)
19 Request for Judicial Notice . Filed by All Plaintiffs. (Attachments: # 1 Exhibit A) (Dahab, Nadia) (Entered: 06/24/2018)
20 Motion to Withdraw Request for Judicial Notice 19 . Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 06/24/2018)
21 ORDER − Plaintiff's Motion to Withdraw Request for Judicial Notice (ECF 20 ) is GRANTED. Plaintiffs' Request for Judicial Notice (ECF 19 ) is WITHDRAWN. Ordered by Judge Michael H. Simon. (mja) (Entered: 06/25/2018)
22 Minutes of Temporary Restraining Order Hearing: Order − Plaintiffs' Emergency Motion for Temporary Restraining order (ECF 2 ) is GRANTED as stated on the record. Formal order to follow. Keith A. Ketterling, Nadia H. Dahab, Kelly K. Simon, and Victoria Bejarano Hurst Muirhead present as counsel for Plaintiff(s). Dianne Schweiner present as counsel for Defendants. Lisa Hay and Stephen Sady present as counsel Amicus Curiae. Court Reporter: Ryan White. Judge Michael H. Simon presiding. (mja) (Entered: 06/25/2018)
23 Opinion and Order − Plaintiff' s Motion for Temporary Restraining Order and Preliminary Injunction (ECF 2 ) is GRANTED as set forth in this Opinion and Order. A Status Conference is set for 7/2/2018 at 10:00AM in Portland, Courtroom 15B, before Judge Michael H. Simon. Signed on 6/25/2018 by Judge Michael H. Simon. (mja) (Entered: 06/25/2018)

 
 Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 1 of 22

Keith Ketterling, OSB No. 913368 Email: kketterling@stollberne.com Nadia H. Dahab, OSB No. 125630 Email: ndahab@stollberne.com STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 SW Oak Street, Suite 500 Portland, Oregon 97204 Telephone: (503) 227-1600
Mathew W. dos Santos, OSB No. 155766 Email: mdossantos@aclu-or.org Kelly K. Simon, OSB No. 154213 Email: ksimon@aclu-or.org ACLU FOUNDATION OF OREGON, INC. PO Box 40585 Portland, OR 97240 Telephone: (503) 227-3186
Attorneys for Plaintiffs-Petitioners

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

INNOVATION LAW LAB and LUIS JAVIER SANCHEZ GONZALEZ by XOCHITL RAMOS VALENCIA as next friend,

Case No. 3:18-cv-01098 COMPLAINT

Plaintiffs-Petitioners,

v.

KIRSTJEN NIELSEN, Secretary, Department of Homeland Security, THOMAS HOMAN, Acting Director, Immigration and Customs Enforcement, ELIZABETH GODFREY, Acting Field Office Director, Seattle Field Office of ICE, JEFFERSON BEAUREGARD SESSIONS, III, U.S. Attorney General, HUGH J. HURWITZ, Acting Director, Federal Bureau of Prisons, JOSIAS SALAZAR, Warden, FCI Sheridan Medium Security Prison, in their official capacity only,

Defendants-Respondents.

STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. OAK STREET, SUITE 500 PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 2 of 22

INTRODUCTION 1. The federal government is currently imprisoning more than one hundred individuals, with little to no way of meaningfully communicating with family members and immigration attorneys, at the Federal Correctional Institution, Sheridan, a medium security prison in Sheridan, Oregon (the Sheridan prison). Beginning sometime on or around June 8, 2018, the government transferred these individuals—who are being detained under color of the immigration laws—to the Sheridan from other parts of the country. The federal government has repeatedly refused to allow immigration attorneys to visit or contact the detainees or, it appears, permit the detainees to contact an attorney. 2. Because the federal government has denied all meaningful attorney access to immigration detainees at the Sheridan prison, these immigrants may face summary deportation without much-needed legal assistance. In addition, detainees may have no way to contact their children and other family members from whom they have been forcibly separated as result of the federal government’s newly-instituted “zero-tolerance” policies. 3. The federal government’s unlawful denial of attorney access to imprisoned immigrants at the Sheridan prison contravenes our most basic values. “There is a well established tradition against holding prisoners incommunicado in the United States. It would be hard to find an American who thought people could be picked up by a policeman and held incommunicado, without the opportunity to let anyone know where they were, and without the opportunity for anyone on the outside looking for them to confirm where they were.” Halvorsen v. Baird, 146 F.3d 680, 688–89 (9th Cir. 1998). 4. Fundamental principles of constitutional law forbid the government from holding prisoners without permitting them an opportunity to communicate with attorneys. In addition, the

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STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. OAK STREET, SUITE 500 PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 3 of 22

federal government’s standard operating rules governing individuals imprisoned for immigration proceedings also forbid the government from barring attorneys at the prison’s doors when they seek to represent their clients or provide legal assistance.
PARTIES 5. Plaintiff-Petitioner Innovation Law Lab (the Law Lab) is a nonprofit organization that works to improve the rights of noncitizens throughout the United States. The Law Lab seeks to provide “Know Your Rights” trainings to immigration detainees at the Sheridan prison covering the immigration system and detainees’ rights. In addition, through its pro bono representation program, the Law Lab seeks to provide representation to every unrepresented detainee at the Sheridan prison who requests representation. Pro bono attorneys from the Law Lab’s pro bono program have been turned away from the Sheridan prison when they attempted to visit immigrants at the facility and, despite following the prescribed procedures for visitation, have not been admitted to visit the facility or any of the immigrant detainees for individualized consultations regarding the detainees pending immigration proceedings. 6. Plaintiff-Petitioner Luis Javier Sanchez Gonzalez (Sanchez Gonzalez), by his partner Xochitl Ramos Valencia as next friend, is being held under federal immigration laws at the Sheridan prison. Sanchez Gonzalez, through Ms. Valencia, has requested representation by Innovation Law Lab for his immigration proceeding and has been denied access to his attorney. 7. Defendant-Respondent Kirstjen Nielsen is the Secretary of the U.S. Department of Homeland Security (DHS), an agency of the United States. Secretary Nielsen is ultimately responsible for the actions of Immigration and Customs Enforcement and Customs and Border Protection. She is the legal custodian of immigration detainees incarcerated at the Sheridan prison. She is named in her official capacity.

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Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 4 of 22
8. Defendant-Respondent Thomas Homan is the Acting Director of U.S. Immigration and Customs Enforcement (ICE), a component of DHS. ICE is responsible for apprehension, detention, and removal of noncitizens from the United States. He is the legal custodian of immigration detainees incarcerated at the Sheridan prison. Director Homan is named in his official capacity.
9. Defendant-Respondent Elizabeth Godfrey is the Acting Field Office Director for the Seattle Field Office of ICE. Director Godfrey is responsible for the enforcement of the immigration laws within this district, and for ensuring that ICE officials follow the agency’s policies and procedures. She is the legal custodian of immigration detainees incarcerated at the Sheridan prison. She is named in her official capacity.
10. Defendant-Respondent Jefferson Beauregard Sessions III is the Attorney General of the United States and the most senior official in the U.S. Department of Justice (DOJ). The Attorney General is ultimately responsible for the actions of the Federal Bureau of Prisons (BOP). He is the legal custodian of immigration detainees incarcerated at the Sheridan prison. He is named in his official capacity.
11. Defendant-Respondent Hugh J. Hurwitz is the Acting Director of the Federal Bureau of Prisons. He is the legal custodian of immigration detainees incarcerated at the Sheridan prison. He is named in his official capacity.
12. Defendant-Respondent Josias Salazar is the Warden of FCI Sheridan, a federal prison in Sheridan, Oregon. He is the legal custodian of immigration detainees incarcerated at the Sheridan prison. He is named in his official capacity.

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TEL. (503) 227-1600 FAX (503) 227-6840

Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 5 of 22
JURISDICTION AND VENUE 13. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1361, 1651, 2241; the Suspension Clause, U.S. Const. art. I, § 2; and 5 U.S.C. § 702. 14. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 706, 28 U.S.C. § 2241, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. A substantial, actual, and continuing controversy exists between the parties. 15. The federal government has waived its sovereign immunity for suits seeking injunctive relief against constitutional violations. 5 U.S.C. § 702. Presbyterian Church v. United States, 870 F.2d 518, 524 (9th Cir. 1989). 16. Venue is proper in the District of Oregon under 28 U.S.C. § 1391 because at least one federal Defendant is in this District, Plaintiff Sanchez Gonzales is detained in this District, Plaintiff Law Lab resides in this District, and a substantial part of the events giving rise to the claims in this action took place in this District. Venue is proper under 28 U.S.C. 2243 because the warden of the facility at issue resides in this district.
FACTUAL ALLEGATIONS 17. The Sheridan prison is a “medium security federal correctional institution” that typically houses prisoners serving sentences for criminal convictions.1 18. The federal government recently announced that it would incarcerate individuals in civil immigration proceedings at the Sheridan prison. ICE officials indicated that they intend to incarcerate approximately 130 noncitizens at the prison. Officials claim that the additional detention space is needed because of the federal government’s recently instituted “zerotolerance” policies, under which the government intends to prosecute all misdemeanor illegal
1 https://www.bop.gov/locations/institutions/she/. PAGE 4 - COMPLAINT
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Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 6 of 22
entry violations and to forcibly separate noncitizens subject to prosecution from their children and other family members.2
19. In early June, 2018, the federal government began transferring noncitizens to the Sheridan prison from other parts of the country. On information and belief, more than one hundred noncitizens are currently incarcerated at the Sheridan prison pending immigration proceedings.
20. A substantial number of the Sheridan detainees were likely apprehended at or near the border and are seeking protection under the asylum laws. They are incarcerated pending an initial screening known as a “credible fear” interview or “reasonable fear” interview and, if found to have such a fear, pending immigration court proceedings. See 8 U.S.C. § 1225(b)(1); 8 C.F.R. § 208.31. On information and belief, Plaintiff Sanchez Gonzalez is one such individual.
21. Other detainees at the Sheridan prison were likely apprehended in the interior of the country and are incarcerated pending immigration court proceedings at which they can litigate defenses to removal or request relief from removal under the immigration laws.
22. On information and belief, the immigration detainees at the Sheridan prison were incarcerated in May 2018 and transferred to Sheridan prison on or around June 8, 2018.
23. Since they were first incarcerated in the Sheridan prison, immigration detainees at the prison have been denied the ability to meaningfully visit, consult with, or contact an immigration attorney. In turn, pro bono attorneys seeking to meet with their clients at the Sheridan prison or to meet and screen immigrants for potential legal representation have been repeatedly and persistently denied access to the Sheridan prison.
2 See Sarah N. Lynch, U.S. sending 1,600 immigration detainees to federal prisons, Reuters, June 7, 2018, https://www.reuters.com/article/us-usa-immigration-prisons-exclusive/exclusive-us-immigration-authorities-sending-1600-detainees-to-federal-prisons-idUSKCN1J32W1. PAGE 5 - COMPLAINT
STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. OAK STREET, SUITE 500 PORTLAND, OREGON 97204
TEL. (503) 227-1600 FAX (503) 227-6840

Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 7 of 22

24. Neither ICE nor the BOP appears to have any process or policy for attorney visitation or communication to be followed for immigration detainees in Sheridan prison, and as a result, the government has repeatedly and persistently obstructed access to immigration detainees at Sheridan prison and have functionally denied all meaningful access to counsel.
The Innovation Law Lab Denied Meaningful Access to Conduct Screening Interviews. 25. Pro Bono Attorneys from the Law Lab’s pro bono program have been denied
access to Sheridan prison. 26. The Law Lab is a nonprofit organization that works to improve the rights of
noncitizens in the United States. 27. The Law Lab directs the pro bono project at many places around the United
States, including the former detention center in Artesia, New Mexico where, in collaboration with a large pro bono network, every woman and child detained had access to representation. The Law Lab initiated the pro bono project at the South Texas Family Residential Center where every woman and children detained has access to representation. The Law Lab has directed pro bono representation projects in states across the United States including Georgia, Kansas, Missouri, North Carolina, and Oregon. The Law Lab is a collaborating organization with the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative that provides pro bono lawyers at several immigrant detention centers in Georgia and Louisiana.
28. Under well-established policies at immigration detention facilities, pro bono attorneys may request an attorney consultation by visiting the detention facility and requesting access. Under well-established policies, no prior notice or clearance is required for an attorney visit. Most of these policies have been consolidated into a set of immigration detention standards

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Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 8 of 22
called the ICE 2011 Performance-Based Detention Standards.3 These Detention Standards were last issued in 2011 and revised in December 2016.
29. On June 8, 2018, the Law Lab, through its Executive Director, Stephen W. Manning, learned that the immigration authorities, through Defendants, were detaining over one hundred immigrant men at the Sheridan prison. Based on that information, the Law Lab decided to provide pro bono legal representation, through its volunteer attorneys, to every man in the Sheridan immigrant cohort.
30. To provide constitutionally adequate legal representation to the immigrant detainees at the Sheridan prison, the Law Lab decided, through Manning and based on Manning’s experience designing legal representation projects and representing individuals in immigration proceedings, that each individual at the Sheridan prison needed at least three attorney contacts: (a) a know-your-rights group orientation providing an overview of the immigration system and relief available, (b) an individualized screening with a trained advocate, and (c) an individualized client conference. After those contacts, depending on the case, the noncitizen may also need legal assistance preparing for fear interviews, immigration court hearings, release applications, among other potential elements of the individual’s unique case. The most critical element of meaningful representation in immigration cases, however, is the individualized client conference.
31. On June 8, 2018, to facilitate access to the immigrant detainees at the Sheridan prison, Plaintiff Law Lab, through Manning, wrote a letter to the FCI Sheridan Warden, Josias Salazar, and the Acting Field Office Director for Immigration and Customs Enforcement for Oregon, Elizabeth Godfrey. In the letter, Manning requested that ICE provide access to the
3 ICE Performance-Based Detention Standards 2011 (“Detention Standards”), available at https://www.ice.gov/detention-standards/2011. PAGE 7 - COMPLAINT
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Sheridan detainees for know-your-rights presentations, providing written notice to the detainees that the Law Lab’s pro bono attorneys are available to them, permit the detainees to call the Law Lab’s pro bono attorney hotline, and refrain from removing any immigrant detainee before warning them of their legal rights.
32. As of the date of this Complaint, none of the requests that the Law Lab made in its June 8, 2018, letter has been granted.
33. On June 12, 2018, the Law Lab sent another letter to the Warden and Ms. Godfrey. In its second letter, the Law Lab, through Manning, provided to the Warden and Ms. Godfrey a list of approximately 100 noncitizens who the Law Lab believed to be detained in the Sheridan prison, and requested meaningful access on an individual basis to speak with them about their legal rights. The Law Lab also assured ICE that it intended to provide pro bono legal representation to every individual detained under civil immigration process at the Sheridan prison. Finally, the Law Lab requested assurances from ICE that no deportations would occur without first providing the immigrant detainee access to individualized legal counsel.
34. As of the date of this Complaint, ICE has declined provide the Law Lab with the assurances it requested in its June 12, 2018, letter.
35. On June 15, 2018, after Law Lab attorneys had been denied access to visit and communicate with immigrant detainees in the Sheridan prison, the Law Lab, through Manning spoke with Chad Allen, ICE Supervisory Detention and Deportation Officer, about the denial of access to counsel. Officer Allen told the Law Lab that attorney visitation would very limited—a single room, for three hours a day, Monday through Friday. Officer Allen explained that immigration law library materials would be made available, and that ICE would provide an “ABA Know Your Rights” video. The Law Lab, though Manning, explained to Officer Allen

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TEL. (503) 227-1600 FAX (503) 227-6840

Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 10 of 22

that the attorney visitations he proposed would not suffice to provide meaningful and constitutionally adequate access to counsel to the 123 immigrant detainees at the Sheridan prison.
36. Despite the Law Lab’s repeated requests, through Manning and through other pro bono attorneys, Defendants repeatedly have denied meaningful access to the immigrant detainees in the Sheridan prison.
37. On June 18, 2018, the Law Lab, through Manning, spoke and communicated via e-mail with Corey Heaton, ICE’s Assistant Field Office Director in Portland. Manning explained to Director Heaton the model the Law Lab had established for providing pro bono legal representation to the detainees in the Sheridan prison. He explained that adequate representation must include individual client conferences in the days and weeks after the detainees participated in a know-your-rights presentation. Manning emphasized the importance of access to telephones, in-person meetings, and law library resources, all of which are required under ICE’s Performance-Based National Detention Standards and the U.S. Constitution.
38. As of the date of this Complaint, Defendants have failed to provide any mechanism through which immigrant detainees in the Sheridan prison can meaningful access pro bono legal representation. Indeed, only one attorney has been able to meet with a client, and that meeting was limited a one-hour preliminary consultation. The client was subsequently transferred to the North West Detention Center in Tacoma, Washington.
Attorney Philip Smith Denied Access to His Client, J-V-F-. 39. Philip Smith is an attorney duly licensed in the state of Oregon and an immigration law specialist.

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40. On Friday, June 8, 2018, the Law Lab received a request for pro bono legal assistance for a civil immigration detainee detained at the Bureau of Prisons Federal Correctional Institution of Sheridan, Oregon. Mr. Smith agreed to undertake the initial screening and investigation.
41. On June 9, 2018, Mr. Smith called the Sheridan prison to inform them he was an attorney and that he needed to meet with an immigration detainee. He was informed that normally attorney visits were permitted seven days a week and that one could be arranged through a counselor. He provided all the required information and followed all the proper procedures in arranging the attorney visit.
42. Mr. Smith provided the civil detainee’s name, BOP registration number, and Department of Homeland Security registration number (A number).
43. It was Mr. Smith’s intention to meet only with the individual detainee, explain to him the immigration process, identify potential immigration options, and offer him pro bono representation if he wanted to apply to remain lawfully in the United States.
44. On Sunday, June 10, 2018, Mr. Smith drove one and one-half hours from Portland, Oregon to the prison in Sheridan, Oregon.
45. On arriving at the Sheridan prison, Mr. Smith properly and correctly identified himself, the purpose of his visit as an immigration attorney, and provided the officer with the information for the individual detainee. The guards and attendants at the prison advised him that attorneys were not permitted to meet with immigration detainees on the weekend, appointments were required to use the attorney visitation rooms, appointments could only be scheduled for weekdays, and he was denied access.

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Attorney Luis Garcia Denied Access to Clients 46. Luis Garcia is an attorney licensed to practice in the State of Oregon. 47. On Thursday, June 14, 2018, Mr. Garcia visited the Sheridan prison as part of a delegation from the Mexican Consulate. During the visit, he was able to speak with five Mexican nationals, each of whom had been detained at the border and had requested asylum. 48. Mr. Garcia was informed by the individuals that none had contacted or had been able to contact legal counsel, and only two had any contact with their families. Mr. Garcia learned that two of the men had arrived at the border but immediately were separated from their families once they were detained. At the time of Mr. Garcia’s meeting, four of the men were in need of urgent medical care but had not received any treatment. All of the men stated that they wanted pro bono legal representation. 49. On Friday, June 15, Mr. Garcia, with his colleagues, visited the Sheridan prison again with the intent to meet with individual detainees. While Mr. Garcia was en route the prison for the meetings, he was informed that his access would be denied. He was also informed that he could not have access over the weekend. 50. On Monday, June 18, Mr. Garcia, again with his colleagues, visited the Sheridan prison for pre-arranged meetings with individual detainees. Again on Monday, while Mr. Garcia was en route to the prison for the meetings, he was informed that his access would be denied. 51. As of the date of this Complaint, Mr. Garcia has not been granted access to provide any meaningful legal representation to any immigrant detainee in the Sheridan prison.
Attorney Chanpone Sinlapasai Denied Access to Clients 52. Chanpone Sinlapasai is an attorney licensed to practice in the State of Oregon.

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53. On Friday, June 15, Ms. Sinlapasai, with her colleagues, visited the Sheridan prison again with the intent to meet with individual detainees. That meeting had been arranged ahead of time and were approved by ICE. While Ms. Sinlapasai was en route the prison for the meetings, she was informed that her access would be denied. She was also informed that she could not have access over the weekend.
54. On Monday, June 18, Ms. Sinlapasai spoke personally with ICE, during which conversation she was assured that she would be provided access to visit with immigrant detainees later that day. Again that day, while she was en route to the prison for the prearranged meetings, she was informed by ICE that her access would be denied.
55. On Wednesday, June 20, Ms. Sinlapasai was assured by ICE’s Acting Field Office Director Elizabeth Godfrey that Ms. Sinlapasai and her colleagues would be able to provide know-your-rights training to the Sheridan prison detainees on June 21, 2018. On June 21, 2018, the legal team was denied access when they arrived to provide the training.
56. As of the date of this Complaint, Ms. Sinlapasai has not been granted access to provide any meaningful legal representation to any immigrant detainee in the Sheridan prison. Attorney Leland Baxter-Neal, Attorney Chelsea Strautman, and Paralegal Ian Philabaum
Denied Access to Clients 57. Leland Baxter-Neal is an attorney licensed to practice in the State of Oregon. 58. Chelsea Strautman is an attorney licensed to practice in the State of Colorado whose practice in Oregon is limited to federal immigration law. 59. Ian Philabaum is the program director and paralegal for Innovation Law Lab. 60. On Monday, June 18, Baxter-Neal, and Philabaum drove to Sheridan from Portland to meet with individual immigration detainees. The visitation was previously

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authorized by ICE. Shortly after arriving in the town of Sheridan, they were informed that they would not be allowed to enter the Sheridan prison to meet with any detainees.
61. On Thursday, June 21, Baxter-Neal, Philabaum, and Strautman drove to Sheridan to meet with individual immigration detainees at the Sheridan prison. The visit had been previously authorized by ICE. When they arrived at the gates of the prison, they were stopped and, after providing their names and information and explaining the purpose of their visit and providing the name of the ICE officer who had authorized the visit, they were told by a Bureau of Prisons official that they would not be allowed to enter the prison. Later in the day on June 21, Philabaum returned to the Sheridan prison with colleagues to help provide a previously approved know-your-rights presentation to specific detainees who had requested such a presentation. Philabaum and his colleagues were again stopped at the gates to the Sheridan prison and told that no one was to be allowed to enter for the purpose of visiting the immigration detainees. The Bureau of Prisons official at the gate told Philabaum that no visits would be allowed until the following Monday, at the earliest.
Defendants Have Provided No Mechanism for Meaningful Access to Counsel 62. As of the date of this Complaint, Defendants have failed to provide any meaningful access to the legal assistance to which the Sheridan detainees are constitutionally guaranteed. To date, Defendants have denied all requests by the Law Lab or its attorneys to visit or communicate with individual detainees. Despite repeated requests by the Law Lab and its attorneys, Defendants have refused to provide any assurances that it will not proceed with asylum interviews or deportations without providing detainees meaningful opportunities to speak with counsel. And despite the Law Lab’s request, Defendants have failed to provide any reasonable means for 123 detainees to consult with attorneys, including having failed to provide

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any mechanism for the immigrant detainees to make telephone calls, free of charge, to access attorneys and other necessary support.
63. The limitations that Defendants have placed on in-person and telephone access for the immigrant detainees at Sheridan prison face are immense and functionally act to deny access. If more than 100 clients need access to a single visitation room, which is only available for 9 hours a week for multiple instances of representation, at different stages of each proceeding, there is simply no representation system that can permit an attorney to competently provide legal services and zealous representation.
64. On information and belief, Defendants are likely to initiate asylum interviews as soon as next week. Given the limited mechanisms that Defendants have offered for access to counsel, it is unlikely that any of the immigrant detainees in the Sheridan prison will be provide constitutionally adequate access before those interviews proceed.
65. If the men detained at the Sheridan prison who are seeking asylum are not provided meaningful access to counsel, which includes, in addition to the know-your-rights presentations, an intake screening, an individualized client conference, one or more meetings as required by each client to prepare for fear interviews with ICE officials, and accompaniment to fear interviews, they will likely be unable to pursue meritorious claims for relief or identify defenses to which they are entitled. As a result, they will face a real and imminent risk of deportation and, ultimately, physical harm, violence, or death.
Immigrant Detainees Are Harmed By Denial of Access to Counsel 66. The government’s denial of attorney access to the Sheridan prison therefore causes serious irreparable harm to the immigration detainees incarcerated there. Unlike in criminal proceedings, individuals in immigration proceedings are not generally entitled to

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Case 3:18-cv-01098-SI Document 1 Filed 06/22/18 Page 16 of 22
appointed counsel if they cannot afford one. See generally CJLG v. Sessions, 880 F.3d 1122, 1128 (9th Cir. 2018). Because attorneys are not automatically provided by the government, immigration detainees seeking representation must contact a private attorney to retain them or rely on a patchwork of legal service providers who provide “know your rights” trainings and, in some cases, pro bono representation. By denying attorney access, the federal government has effectively prevented detainees from retaining counsel or obtaining any legal assistance. In addition, the government’s practices prevent retained counsel from consulting with their clients, preparing for hearings or simply communicating with clients about the status of their cases.
67. The assistance of an attorney is essential for noncitizens navigating the notoriously complex immigration system. The immigration laws “have been termed second only to the Internal Revenue Code in complexity.” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (internal quotation marks omitted); see also Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (emphasizing the complexity of immigration laws and noting that lawyers may be the only ones capable of navigating through it).
68. Legal assistance is particularly critical for noncitizens at the outset of their cases, who must make important decisions about what claims or defenses to pursue. For noncitizens seeking asylum, “credible fear” interviews may be conducted within days of apprehension. A denial of “credible fear” may result in the noncitizen’s immediate deportation to the country where they believe they will be persecuted, tortured or killed. See 8 U.S.C. 1225(b)(1)(B)(iii). For such individuals, the assistance of counsel may mean the difference between life and death.

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CLAIMS FOR RELIEF FIRST CLAIM
(Violation of the Administrative Procedure Act) 69. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 70. The Detention Standards governing immigration detainees provide that “each facility shall permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days . . . and a minimum of four hours per day on weekends and holidays.” ICE Performance-Based Detention Standards 2011 5.7.J.2.4 71. Similarly, the Bureau of Prisons’ standards governing inmates who are not serving a criminal sentence require attorney visits to be available all seven days of each week. “The Warden shall provide the opportunity for pretrial inmate-attorney visits on a seven-days-aweek basis. Attorney visits for pretrial inmates may be conducted at times other than established visiting hours with the approval of the Warden or designee.” BOP Policy re Pretrial Detainees, 7331.04. See also id. at 5 (classifying ICE detainees as “pretrial” for purposes of the BOP regulations). 72. An agency’s unexplained failure to follow its own rules constitutes “arbitrary, capricious” conduct in violation of the Administrative Procedures Act. 5 U.S.C. 706(2)(A); United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009). 73. In addition, the agency’s failure to comply with the attorney access requirements of the Constitution and 8 U.S.C. 1229a(b)(4)(A) is not “in accordance with law.” 5 U.S.C. 706(2)(A).
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SECOND CLAIM (Violation of the Immigration and Nationality Act) 74. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 75. The Immigration and Nationality Act guarantees noncitizens in removal proceedings the right to counsel of their choosing at no expense to the government. 8 U.S.C. § 1229a(b)(4)(A); Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). This right necessarily entails the right to consult with an attorney in advance of any hearing. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). 76. Defendants’ acts of preventing attorneys from meeting with their clients violates 8 U.S.C. 1229a(b)(4)(A).
THIRD CLAIM (Violation of the Due Process Clause of the Fifth Amendment
to the United States Constitution) 77. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 78. The Due Process Clause of the Fifth Amendment guarantees noncitizen detainees the right of access to the courts; the government may not unjustifiably obstruct that access. See Procunier v. Martinez, 416 U.S. 396 (1974); Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). 79. This protection includes rights related to retaining and communicating with attorneys: Detainees must be afforded “reasonable time to locate counsel,” and counsel must be “permit[ted] . . . to prepare for the hearing.” Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). Impediments to communication after transfer to a remote facility can constitute a

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“constitutional deprivation” where they obstruct an “established on-going attorney-client relationship.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986).
80. The Fifth Amendment further prohibits the government from barring an attorney from meeting an incarcerated client, even where the client is imprisoned merely for a few hours. See generally Edwards v. Arizona, 451 U.S. 477, 482 (1981) (person subjected to custodial interrogation has the right to be represented by counsel); Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir. 1998) (six-hour confinement “cannot be held too short, as a matter of law,” to entitle a civil detainee the right to communicate).
81. These protections apply to prisoners held under color of the immigration laws. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554, 565 (9th Cir. 1990) (recognizing “aliens have a due process right to obtain counsel of their choice at their own expense,” and affirming injunction against government practices “the cumulative effect of which was to prevent aliens from contacting counsel and receiving any legal advice,” including the practice of denying visits with counsel). See also Lyon v. ICE, 171 F. Supp. 3d 961 (N.D. Cal. 2016) (plaintiffs stated a claim and survived summary judgment on access to courts and related due process claim based on insufficient phone access to call attorneys); cf. Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir. 1998) (“That a person is committed civilly . . . cannot diminish his right not to be held incommunicado.”).
82. Defendants’ acts of preventing attorneys from representing their imprisoned clients violate the Fifth Amendment’s Due Process Clause.

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FOURTH CLAIM (Violation of the First Amendment to the United States Constitution) 83. All of the foregoing allegations are repeated and realleged as though fully set forth herein. 84. Prisoners and detainees have the “obvious” right, arising under both the First Amendment and the Due Process Clause, not to be held incommunicado by the state. Halvorsen v. Baird, 146 F.3d 680, 688–89 (9th Cir. 1998). The First Amendment guarantees prisoners and detainees the right to communicate with the outside world. Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002). This protection encompasses the right to make telephone calls, exchange correspondence, and receive in-person visitors. See id; Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986). Detention facilities may not in effect deprive those who are incarcerated of telephone access altogether. Johnson v. California, 207 F.3d 650, 656 (9th Cir. 2000). 85. The First Amendment protects the right to hire and consult with an attorney. Mothershed v. Justices of Supreme Court, 410 F.3d 602, 611 (2005), as amended on denial of reh’g (9th Cir. July 21, 2005). The state may not unreasonably restrict this right. Id. Similarly, it protects an attorney’s right to advise both retained clients and prospective litigants. See NAACP v. Button, 371 U.S. 415, 428–429 (1963); In re Primus, 436 U.S. 412, 414, 423–24 (1978). 86. By depriving the detained Plaintiffs of any means of communication with the outside world, Defendants have violated and continue to violate the detained Plaintiffs’ rights under the First Amendment. And by denying the attorney Plaintiffs access to detainees who have sought and would benefit from their counsel, Defendants infringe on Plaintiffs’ First Amendment rights.

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PRAYER FOR RELIEF Plaintiffs ask this Court to grant the following relief: 1. Take jurisdiction over this complaint and petition for writ of habeas corpus; 2. Declare that the actions and practices of Defendants described above constitute
violations of federal regulatory, statutory, and constitutional law; 3. Permanently enjoin Defendants and their directors, officers, agents, and
employees from preventing attorneys from visiting or communicating with immigration detainees at Federal Correctional Institution, Sheridan, and from proceeding with their immigration cases or deporting them until they have been provided an adequate opportunity to individually consult with an attorney; 4. Order Defendants to release Plaintiff Sanchez Gonzalez and others imprisoned with him at Federal Correctional Institution, Sheridan under color of the immigration laws unless Defendants provide adequate attorney access and permit the pro bono attorneys and any attorney meaningful and adequate access; 5. Order Defendants to provide Plaintiffs with access to Federal Correctional Institution, Sheridan’s four attorney visitation rooms for a minimum of six hours per day, including weekends, in order to perform group “know your rights” training and individualized interviews; 6. Order Defendants to install four telephone lines per unit, with each line capable of placing free direct calls to legal service providers, including to Plaintiff Innovation Law Lab;

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7. Order Defendants to allow immigration detainees to access the telephones referred to in (6), above, during facility waking hours, or between 8 am and 8 pm, seven days a week;
8. Order Defendants to provide written notice to Plaintiff Law Lab of any scheduled credible fear screenings or asylum interviews;
9. Order Defendants to allow attorneys to use laptops in accordance with BOP security guidelines while performing legal services on behalf of any immigration detainee in Federal Correctional Institution, Sheridan.
10. Grant an award of attorneys’ fees and costs; and 11. Grant such other relief as may be just and reasonable. DATED this 22nd day of June, 2018.
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

By: s/Nadia H. Dahab Keith Ketterling, OSB No. 913368 Nadia H. Dahab, OSB No. 125630
209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Email: kketterling@stollberne.com
ndahab@stollberne.com
-and-
Mathew W. dos Santos, OSB No. 155766 Kelly K. Simon, OSB No. 154213 ACLU FOUNDATION OF OREGON, INC. PO Box 40585 Portland, OR 97240 Telephone: (503) 227-3186 Email: mdossantos@aclu-or.org
ksimon@aclu-or.org
Attorneys for Plaintiffs-Petitioners

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 Case 3:18-cv-01098-SI Document 23 Filed 06/25/18 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

INNOVATION LAW LAB and LUIS JAVIER SANCHEZ GONZALEZ by XOCHITL RAMOS VALENCIA as next friend,
Plaintiffs-Petitioners,
v.
KIRSTJEN NIELSEN, Secretary, Department of Homeland Security; THOMAS HOMAN, Acting Director, Immigration and Customs Enforcement (ICE); ELIZABETH GODFREY, Acting Field Office Director, Seattle Field Office of ICE; JEFFERSON BEAUREGARD SESSIONS, III, U.S. Attorney General; HUGH J. HURWITZ, Acting Director, Federal Bureau of Prisons; JOSIAS SALAZAR, Warden, FCI Sheridan Medium Security Prison; in their official capacities only,
Defendants-Respondents.

Case No. 3:18-cv-01098-SI
OPINION AND ORDER GRANTING TEMPORARY RESTRAINING ORDER

Keith Ketterling and Nadia H. Dahab, STOLL STOLL BERNE LOKTING & SHLACHTER PC, 29 SW Oak St., Suite 500, Portland, OR 97204. Mathew W. dos Santos and Kelly K. Simon, ACLU FOUNDATION OF OREGON, INC., PO Box 40585 Portland, OR 97240. Of Attorneys for Plaintiffs-Petitioners.

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Billy J. Williams, United States Attorney, and Dianne Schweiner, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE FOR THE DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Chad A. Readler, Acting Assistant Attorney General; William C. Peachey, Director; Jeffrey S. Robins, Assistant Director; and Ubaid ul-Haq, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION, PO Box 868, Ben Franklin Station, Washington, D.C. 20044. Of Attorneys for Defendants-Respondents. Lisa Hay, Federal Public Defender, and Stephen R. Sady, Chief Deputy Federal Defender, FEDERAL PUBLIC DEFENDER’S OFFICE FOR THE DISTRICT OF OREGON, 101 SW Main Street, Suite 1700, Portland, OR 97204. Amica Curiae. Michael H. Simon, District Judge.
We are a nation under law, and the rule of law is one of our most cherished values. The right to counsel, which allows a person to receive timely legal advice, is firmly entrenched in the concept of due process and protected by the Fifth Amendment against governmental interference. Further, this right is available to everyone in the United States, not just citizens or others who are here lawfully. In this case, Plaintiffs assert that the government is interfering with the rights of persons being civilly detained under our complex immigration laws from receiving the benefits of the right to counsel. No request is being made to provide legal counsel at taxpayer expense. The only relief sought is to enjoin the government from continuing to interfere with a civil immigrant detainee’s right to counsel when there are volunteer attorneys, expert in immigration matters, ready, willing, and able to provide legal assistance without charge. For the reasons that follow, the Court grants the requested relief.
Plaintiffs Innovation Law Law (“Law Lab”) and Luis Javier Sanchez Gonzalez, by Xochitl Ramos Valencia as next friend (“Sanchez Gonzalez”) bring this action challenging the policies and practices related to immigrant detainees held at the Federal Detention Center in Sheridan, Oregon (“FDC Sheridan”). Defendants are officials with the U.S. Department of Homeland Security (“DHS”), U.S. Immigration and Customs Enforcement (“ICE”), the Federal
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Bureau of Prisons (“BOP”), and the U.S. Department of Justice. Plaintiffs seek a temporary restraining order (“TRO”) requiring Defendants to, among other things: (1) provide adequate attorney visitation and telephone access for immigrant detainees at FDC Sheridan; (2) permit Law Lab to conduct “know your rights” (“KYR”) training for detainees; and (3) bar Defendants from proceeding with detainees’ interviews, cases, or deportations until after the detainees have had a full and fair an opportunity meaningfully to consult with an attorney and attend KYR training conducted by Law Lab. On June 25, 2018, the Court held a hearing on Plaintiffs’ motion. Plaintiffs’ motion for TRO is granted.
STANDARDS In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court’s decision on whether to issue a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20 (rejecting the Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction). The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the
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other two elements of the Winter test are also met.” Id. at 1132. Thus, a temporary restraining order or a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing Cottrell).
A temporary restraining order is necessarily of a shorter and more limited duration than a preliminary injunction.1 Thus, the application of the relevant factors may differ, depending on whether the court is considering a temporary restraining order or a preliminary injunction.2 Indeed, the two factors most likely to be affected by whether the motion at issue is for a TRO or a preliminary injunction are the “balancing of the equities among the parties” and “the public interest.”
Finally, the already high standard for granting a TRO or preliminary injunction is further heightened when the type of injunction sought is a “mandatory injunction.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (noting that the burden is “doubly demanding” for a mandatory injunction). To obtain a mandatory injunction, a plaintiff must “establish that the law
1 The duration of a temporary restraining order issued without notice may not exceed 14 days but may be extended once for an additional 14 days for good cause; in addition, the reasons for such an extension must be entered in the record. Fed. R. Civ. P. 65(b)(2). When a temporary restraining order is issued with notice and after a hearing, however, the 14-day limit for such orders issued without notice does not apply. See Horn Abbot Ltd. v. Sarsaparilla Ltd., 601 F. Supp. 360, 368 n.12 (N.D. Ill. 1984). Nevertheless, absent consent of the parties, “[a] court may not extend a ‘TRO’ indefinitely, even upon notice and a hearing.” Id. Accordingly, unless the parties agree otherwise, a court should schedule a preliminary injunction hearing to occur not later than 28 days after the date that the court first issues a temporary restraining order.
2 A preliminary injunction also is of limited duration because it may not extend beyond the life of the lawsuit. That is the role of a permanent injunction, which a court may enter as part of a final judgment, when appropriate. A preliminary injunction, however, may last for months, if not years, while the lawsuit progresses toward its conclusion.
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and facts clearly favor her position, not simply that she is likely to succeed.” Id. (emphasis in
original). As explained by the Ninth Circuit:
A preliminary injunction can take two forms. A prohibitory injunction prohibits a party from taking action and “preserve[s] the status quo pending a determination of the action on the merits.” Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988); see also Heckler v. Lopez, 463 U.S. 1328, 1333 (1983) (a prohibitory injunction “freezes the positions of the parties until the court can hear the case on the merits”). A mandatory injunction orders a responsible party to take action. A mandatory injunction goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages. The status quo ante litem referenced in Chalk means the last, uncontested status which preceded the pending controversy. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th
Cir. 2009) (quotation marks and citation omitted) (alterations in original).
FINDINGS OF FACT Based on the evidence presented by the parties, the Court finds the following facts are
more likely true than not:
1. On May 31, 2018, ICE transferred 124 immigrant men to FDC Sheridan for civil
detention. ECF 14-1 (Newman Decl.) ¶ 4. Approximately 121 immigrant detainees remain at that
location. Id. The detainees are housed in two units, at least one of which also houses inmates of
the federal prison Id. ¶ 6. According to Defendants, both social and legal visits currently take
place each Monday through Friday from 8:30 until 11:30 a.m. for inmates and from 12:00
until 3:00 p.m. for immigrant detainees. Id. ¶ 8. Defendants add that by June 27, 2018, they
intend to provide legal visitation for all pretrial/pre-sentence and civil detainees from 8:30 a.m.
until 3:00 p.m, Monday through Friday, on a “first-come, first-served” basis. Id. Many of the
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detainees have come to the United States to request asylum. See, e.g., ECF 3 (Manning Decl.) ¶ 26; ECF 6 (Garcia Decl.) ¶ 5.
2. Plaintiff Law Lab is a nonprofit organization that advocates on behalf of noncitizens in the United States. Law Lab seeks to provide KYR training sessions, which cover the immigration system and detainees’ rights, to civil detainees at FDC Sheridan. Law Lab also seeks to provide legal representation without charge (pro bono) to every unrepresented civil detainee at FDC Sheridan who requests legal representation. Law Lab provides representation to noncitizens, in part, through its Oregon-based network of 125 private, pro bono attorneys who have been trained in asylum and removal defense. ECF 3 (Manning Decl.) ¶ 2.
3. Stephen W. Manning (“Manning”) is the Executive Director of Law Lab. Law Lab, through Manning, designed a pro bono representation project to facilitate access to, and legal representation of, the FDC Sheridan immigrant detainees. Law Lab’s pro bono representation project seeks to provide a minimum of three attorney contacts with each detainee who requests legal representation, consisting of: (1) a KYR group orientation that provides an overview of immigration relief; (2) an individualized screening with a trained advocate; and (3) an individualized client conference. Law Lab determined that at least three know-your-rights orientations of 60 to 90 minutes duration is needed adequately to orient all interested FDC Sheridan immigrant detainees on their rights. Id. ¶ 8.
4. On June 8, 2018, Manning established a hotline with a local telephone number to allow anyone detained as a civil immigrant detainee to call Law Lab for free legal assistance. Id. ¶ 12. The hotline number was provided to the immigrant detainees at FDC Sheridan by members of the Mexican Consulate who visited Mexican nationals at FDC Sheridan on June 14, 2018. Id. ¶ 14. Despite having been provided the toll-free number, detainees have not been able to place
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free legal phone calls because free phone calls are not allowed by FDC Sheridan’s telephone system. Id. ¶ 17.
5. Also on June 8, 2018, Manning asked Philip Smith (“Smith”), a local immigration attorney, to provide pro bono legal representation for a detainee whose partner had asked Law Lab to represent the detainee. On Saturday, June 9, 2018, Smith called FDC Sheridan to arrange a meeting with his client, the detainee. Smith was told that attorney visits are normally permitted seven days a week and could be arranged through a counselor. Smith was further told that a counselor would be on duty on Sunday, June 10, 2018. Smith also left a telephone message with the person in charge of the unit where immigrant detainees were being held, in which he identified himself and provided his phone number and his client’s identifying information. ECF 8 (Smith Decl.) ¶ 2-4.
6. On Sunday, June 10, 2018, Smith traveled one and one-half hours to FDC Sheridan. Upon arrival at the visitation center, Smith identified himself as an immigration attorney and provided his client’s identification information. FDC Sheridan security officers denied Smith entry, telling him that visits needed to be scheduled in advance and were permitted only Monday through Friday. The supervising security officer also said that an appointment for one of the three attorney visitation rooms was required, and that such appointments were available only Monday through Friday. Smith asked if he could meet with his client in the public visitation area and was told that he could not. Smith left without meeting his client. Id. ¶ 6-10.
7. On June 14, 2018, Law Lab received referrals from Lisa Hay, the Federal Public Defender for the District of Oregon, for 13 FDC Sheridan immigrant detainees who had requested an immigration attorney. ECF 3 ¶ 15-16. An attorney who visited FDC Sheridan as
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Case 3:18-cv-01098-SI Document 23 Filed 06/25/18 Page 8 of 22
part of the visit of the Mexican Consulate also reported that each detainee with whom he had met had requested asylum relief and legal representation. ECF 6 (Garcia Decl.) ¶ 5, 11.
8. Law Lab attorneys have continued to be denied access to civil immigrant detainees at FDC Sheridan. Permission that had been granted for a legal visit on Friday, June 15, 2018, was revoked on the morning of June 15 after Law Lab’s legal team had already departed for FDC Sheridan. The legal team was told that the visit could occur only at some point later that evening, and that weekend access was also denied. ECF 3 ¶ 19-20 (Manning Decl.).
9. While attempting to make arrangements for a legal visit on the next available nonweekend day, Monday, June 18, 2018, Manning was told that attorney visitation would be limited to a single room for three hours per day, Monday through Friday, that no immigration library materials were available, and that the free direct call platform was not, and had not been, operational. Id. ¶ 21.
10. On Monday, June 18, 2018, Law Lab attorneys again had their permission to visit nine detainees revoked by FDC Sheridan at the last minute, despite earlier assurances that they could visit on that day. The attorneys were told by an ICE official that legal visitations would only occur on Tuesday, Wednesday, and Friday from 12:30 p.m. to 3:30 p.m. Id. ¶ 22.
11. On Wednesday, June 20, 2018, attorney Chelsea Strautman visited FDC Sheridan to meet with immigrant detainees. ECF 9 (Strautman Decl.) ¶ 5. She identified herself as an attorney who was there to offer legal representation to immigrant detainees who requested access to counsel. Id. ¶ 3. ICE denied her access. Id. ¶ 5-6. On Thursday, June 21, 2018, Strautman and two other attorneys visited FDC Sheridan seeking to provide pro bono legal representation to immigrant detainees who had requested access to counsel through Law Lab’s pro bono program.
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These attorneys identified themselves as attorneys but were denied access. ECF 9 (Strautman Decl.) ¶ 7-8; ECF 7 (Philbaum Decl.) ¶ 5; ECF 5 (Baxter-Neal Decl.) ¶ 5.
12. Shortly after 5:00 p.m. on June 21, 2018, two Law Lab lawyers returned to FDC Sheridan to present KYR training. A Law Lab attorney had confirmed the day before, with Defendant Elizabeth Godfrey, the Acting Field Office Director in the Seattle Field Office of ICE, that Law Lab’s pro bono team was authorized to provide KYR training at FDC Sheridan from 4:45 p.m. to 8 p.m. on Tuesday, Wednesday, and Thursday. ECF 4 (Sinlapasai Decl.) ¶ 12. BOP officers at FDC Sheridan, however, turned away the attorneys and would not let them conduct their KYR training. ECF 7 (Philbaum Decl.) ¶ 10.
13. At least 50 detainees have requested legal representation from Law Lab’s pro bono project. ECF 3 (Manning Decl.) ¶ 25-27. Only one attorney associated with the project, however, has been able to meet with his client, and that client has since been transferred by ICE from FDC Sheridan to the North West Detention Center in Tacoma, Washington, outside of the District of Oregon. Id. ¶ 28.
14. Plaintiff Sanchez Gonzalez is currently detained at FDC Sheridan. He is unable to file a complaint on his own due to lack of access to legal counsel. His domestic partner of ten years, Xochitl Ramos Valencia, has requested pro bono legal representation from Law Lab on his behalf. Law Lab attorneys have twice attempted to meet with Sanchez Gonzalez, including on June 21, 2018, but were denied access both times. Id. ¶ 33-34.
15. “Credible fear” interviews for immigrant detainees seeking asylum are scheduled to begin at FDC Sheridan on June 28, 2018. ECF 14-2 (Heaton Decl.) ¶ 8.
16. Removal proceedings for the 121 immigrant detainees at FDC Sheridan have not yet commenced. Further, none of these immigrant detainees have been served with an
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Case 3:18-cv-01098-SI Document 23 Filed 06/25/18 Page 10 of 22
administrative summons known as a “Notice to Appear,” which is how a removal proceeding typically begins.
17. On June 8, 2018, Chief Judge Michael W. Mosman of the U.S. District Court for the District of Oregon authorized the Federal Public Defender of Oregon to consult with the immigrant detainees at FDC Sheridan regarding the legality of their detention. ECF 18 at 8.
CONCLUSIONS OF LAW A. Subject Matter Jurisdiction
Defendants argue that the Immigration and Nationality Act (“INA”), as amended, removes subject matter jurisdiction from federal district courts and, thus, this Court has no jurisdiction over this action. This removal of subject matter jurisdiction, however, only applies to removal proceedings. Under 8 U.S.C. § 1252(b)(9) and 8 U.S.C. § 1252(a)(5), “claims that ‘arise from’ removal proceedings . . . must be channeled through the [petition for review] process.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016). In addition, when claims are “inextricably linked” to removal proceedings, they may not be heard by federal district courts. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012). Such claims may only be raised before a federal circuit court on a petition for review (“PFR”) of a final removal order. J.E.F.M., 837 F.3d at 1032. Under 8 U.S.C. § 1252(g), federal courts also lack jurisdiction to hear challenges to the Attorney General’s “decision or action to commence [removal] proceedings, adjudicate cases, or execute removal orders.” Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 482 (1999). “[C]laims that are independent of or collateral to the removal process,” however, are excluded from the PFR process and, thus, may be heard in federal district courts. Id.; see also Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006) (holding that the district court had jurisdiction over a habeas corpus petition when the petition did not involve a final order of removal).
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In J.E.F.M., the Ninth Circuit held that the district court lacked subject matter jurisdiction over immigrant children’s claims to court-appointed counsel because such claims arose from removal proceedings. 837 F.3d at 1033. The Ninth Circuit noted that such claims are “bound up in and an inextricable part of the administrative process.” Id. The court also observed that the jurisdiction-stripping provisions of the INA were intended to “channel all claims arising from removal proceedings, including right-to-counsel claims, to the federal courts of appeals and bypass the district courts.” Id.
Plaintiffs in the pending case, however, do not challenge the detainees’ removal proceedings because formal removal proceedings have not commenced. Rather, Plaintiffs challenge ICE and BOP procedures and policies relating to the conditions of the civil immigrant detainees’ pre-hearing confinement. J.E.F.M. did not address whether district courts have jurisdiction over constitutional claims by immigrant detainees whose removal proceedings have not yet commenced. In fact, the district court in J.E.F.M. had already dismissed all parties “against whom removal proceedings have not yet been initiated,” explaining that their claims for court-appointed counsel in removal proceedings were not ripe because their “removal proceedings may never be commenced.” Id. at 1030. The Ninth Circuit’s ruling in J.E.F.M., therefore, does not preclude this Court from hearing claims from civil immigrant detainees whose removal proceedings have not yet been initiated. See also Jennings v. Rodriquez, 138 S. Ct. 830, 840 (2018) (holding that 8 U.S.C. § 1252(b)(9) does not deprive a district court of jurisdiction to hear a challenge to an alien’s indefinite detention, even when the purpose of the detention is to lead ultimately to removal proceedings).
Moreover, Plaintiffs request a TRO to protect each immigrant civil detainee’s right to access attorneys pending their asylum proceedings. Although an alien’s asylum status likely will
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be relevant to the later question of removal, asylum proceedings, which are governed by 8 U.S.C. § 1158, are distinct from removal proceedings, which are governed by 8 U.S.C. § 1229a. The plain text of 8 U.S.C. § 1252(b)(9), 8 U.S.C. § 1252(a)(5), and the Ninth Circuit’s holding in J.E.F.M. explicitly limits the mandatory PFR process to claims arising from removal proceedings. Thus, this Court has subject matter jurisdiction over Plaintiffs’ claims, as presented in the pending motion.
Finally, even if Plaintiffs’ claims were subject to the INA’s jurisdiction-stripping provisions, there is a serious question as to whether it would be futile to require Plaintiffs to administratively exhaust their constitutional claims through the petition for review process. Administrative exhaustion is not required when exhaustion would be futile. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). On June 24, 2018, President Donald J. Trump announced, with regard to undocumented immigrants, that “[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” The position of the United States Government appears to be that aliens are not entitled to due process in immigration proceedings.3 There is, therefore, reason to believe that Plaintiffs’ claims alleging due process violations are unlikely to be given a full and fair hearing before immigration judges who fall under the authority of the executive branch. B. Standing
Defendant argues that the requested TRO is overbroad because neither Gonzalez nor Law Lab has standing to litigate on behalf of other detainees at FDC Sheridan who are not parties to
3 The Federal Government previously has taken the position that tweets from the Twitter account “@realDonaldTrump” are official presidential statements. See James Madison Project v. Department of Justice, et al, No. 1:17-cv-00144, Def. Supp. Mem. at 4 (ECF No. 29) (D.D.C. Nov. 13, 2017) (“[T]he government is treating the President’s statements to which plaintiffs point—whether by tweet, speech or interview—as official statements of the President of the United States.”).
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this lawsuit. To bring an action on the behalf of third parties, however, “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 410-11 (1991).
Law Lab meets these requirements. Law Lab’s stated mission is to advocate on behalf of and provide legal representation to noncitizens in the United States. In furtherance of this mission, they have undertaken considerable effort to provide pro bono legal representation to the FDC Sheridan immigrant detainees. The alleged policies, procedures, and actions at FDC Sheridan, however, have prevented Law Lab from fulfilling its mission of advocating on behalf of noncitizens, and render futile its efforts to coordinate pro bono legal representation. The challenged policies and procedures also have resulted in the diversion of Law Lab resources, as attorneys have repeatedly traveled to FDC Sheridan only to be turned away, and have established a toll-free hotline for detainees that detainees have not been able to access or use. Such facts sufficiently establish that Law Lab has suffered injury in fact.
Plaintiffs also have demonstrated that Law Lab has a sufficiently close relationship with the detainees to advocate on their behalf. Plaintiffs have submitted affidavits indicating that at least 50 detainees at FDC Sheridan have requested representation from Law Lab. The Federal Public Defender (“FPD”), as amica curiae, also states that at least 64 detainees have communicated their requests for immigration representation, which the FPD cannot provide, to FPD staff attorneys. ECF 18. These numerous requests from immigrant civil detainees and FDC Sheridan sufficiently demonstrate that Law Lab has a close relation to the detainees, even if Defendants’ policies, practices, and actions have prevented Law Lab attorneys from formalizing
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their legal relationship with many of those detainees. Finally, and perhaps most obviously, the circumstances of the detainees’ confinement—specifically, the lack of access to immigration lawyers that forms the foundation of this case—poses a significant hindrance to the detainees’ ability to advocate on their own behalf, as do the foreign language barriers faced by many of the civil detainees. Plaintiffs, thus, have established that they have standing in this case sufficient to request the relief they are seeking on a temporary or preliminary basis. C. Analysis of Motion for Temporary Restraining Order
1. Likelihood of Success on the Merits Plaintiffs have shown a likelihood of success on the merits of their third claim, which alleges a violation of the Due Process Clause of the Fifth Amendment. The Court need not decide at this stage of the litigation whether Plaintiffs have shown a likelihood of success on the merits regarding their other constitutional and statutory claims. The Due Process Clause of the Fifth Amendment guarantees to aliens the right to counsel at their own expense for immigration hearings. See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (“Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are subject to removal hearings.”) (emphasis added); Colindres-Aguilar v. INS, 819 F.2d 259, 261 n.1 (9th Cir. 1987) (“Petitioner’s right to counsel . . . is a right protected by the fifth amendment due process requirement of a full and fair hearing.”). The right to counsel in immigration proceedings, including asylum proceedings, requires that an alien be provided “reasonable time to locate counsel and permit counsel to prepare for the hearing.” Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). The Ninth Circuit has upheld mandatory injunctions designed to remedy government practices when the “cumulative effect” of
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such practices “was to prevent aliens from contacting counsel and receiving any legal advice.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 565 (9th Cir. 1990). Government practices that effectively deny access to counsel include the detention of aliens far from where potential or existing counsel was located, limited attorney visitation hours, and the processing of aliens at locations where telephones were not available to them. Id. at 565-67.
Plaintiffs have presented sufficient evidence of government practices at FDC Sheridan that are nearly identical to the enjoined practices at issue in Orantes-Hernandez. Attorneys associated with Law Lab’s immigrant detainee representation project have been repeatedly denied access to FDC Sheridan either to perform KYR training or to meet with clients who have retained their services through friends and family. Officials at FDC Sheridan have given conflicting and nearly-impossible-to-follow instructions on the availability of legal visitation hours. See also Nunez v. Bolden, 537 F. Supp. 578, 582 (S.D. Tex. 1982) (holding that a detention facility regulation prohibiting attorney visits after 3:30 p.m. was unreasonably restrictive, given the remoteness of the detention facility).
As with the enjoined practices at issue in Orantes-Hernandez, the BOP and ICE attorney visitation policies and practices have the “cumulative effect” of denying detainees constitutionally sufficient access to legal assistance. Plaintiffs have demonstrated not only a likelihood of success on the merits of their Fifth Amendment due process claim, as required for prohibitory injunctions, but that “the law and facts clearly favor [their] position,” as required to obtain a mandatory injunction. Garcia, 786 F.3d at 740 (emphasis added).
2. Irreparable Harm, Equities and Public Interest Plaintiffs also have made a compelling demonstration that they are likely to suffer immediate irreparable harm in the absence of emergency relief. The Court has concluded that Defendants are likely violating the immigrant detainees’ constitutional rights, and such violations
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“unquestionably constitute[] irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The harms likely to arise from the denial of access to legal representation in the context of asylum applications are particularly concrete and irreparable. The Ninth Circuit has repeatedly emphasized the complexity of immigration laws and procedures and the difficulty of navigating immigration proceedings without a lawyer. See, e.g., Baltazar-Alcazar v. I.N.S., 386 F.3d 940, 948 (9th Cir. 2004). The denial of access to legal assistance is likely to lead to the denial of asylum and ultimately to the deportation of detainees with meritorious asylum claims. Early representation is particularly important in asylum claims, given the complexity of treaty-based human rights statutes and the serious harm—including persecution, torture, and death—that may result if asylum is improperly denied. See Arizona v. United States, 567 U.S. 387, 395 (2012) (“Federal governance of immigration and alien status is extensive and complex.”); Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (noting in the void-for-vagueness context the “grave nature of deportation,” a “drastic measure” often amounting to lifelong “banishment or exile”).
The equities in this case also tip sharply in favor of emergency relief. Plaintiffs request only that BOP and ICE actually provide the same degree of access to legal assistance that their own regulations purport to guarantee. Defendants, thus, cannot show that the requested TRO will pose an undue burden on their time, resources, or personnel. Moreover, any such burden on Defendants is more than justified by the need to ensure the fulfillment of Plaintiffs’ constitutional rights and to prevent the improper denial of meritorious asylum applications. Finally, it is always in the public interest to prevent the violation of a party’s constitutional rights.
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D. Voluntary Cessation Doctrine Defendants also argue that the relief that Plaintiffs seek is moot because Defendants
either have already addressed Plaintiffs’ concerns or are taking steps to do so. The Supreme
Court, however, has explained the voluntary cessation doctrine as follows:
It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). As the Supreme Court
further explained:
“The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant . . . free to return to his old ways.’ A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. . . . Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for the trial judge. But this case is not technically moot[.]” Id. n.10 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203-04
(1968) (alterations in original) (citations omitted); see also Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (describing the voluntary cessation doctrine
and citing to City of Mesquite and Concentrated Phosphate).
Defendants represent that beginning on June 27, 2018, they will allow attorneys to
conduct legal visitation with immigrant detainees at FDC Sheridan Monday through Friday for
six and one-half hours. Defendants imply that they likely will permit KYR presentations to begin
on June 26, 2018. These presentations will take place outside of normal visitation hours to ensure
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maximum attendance. Defendants also state that they have arranged for two dedicated telephone lines that the immigrant detainees may use to make free legal, consulate, or crisis calls.
“Credible fear” interviews for asylum applications, however, are scheduled to begin on June 28, 2018. As recently as June 22, 2018, none of Law Lab’s attorneys had yet met with any immigrant detainee who are still located at FDC Sheridan. Defendants’ plan for improved attorney access thus provides for exactly six and one-half hours of attorney visitation before some detainees will begin their “credible fear” interviews. This is insufficient time to provide attorney access that satisfies the requirements of due process. Thus, a TRO is necessary, despite Defendant’s stated efforts to improve their policies and practices, in order to ensure that detainees will not begin their asylum proceedings with constitutionally inadequate access to their attorneys.
In addition, the Ninth Circuit has held that “an executive action that is not governed by any clear or codified procedures cannot moot a claim” and falls within the voluntary cessation exception. McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015). Although Defendants’ currently assert that they are now allowing the immigrant detainees sufficient due process and access to counsel, such informal policy changes are insufficient to meet the stringent standards of the voluntary cessation doctrine need to moot Plaintiffs’ claims. Id.; see also City of Mesquite, 455 U.S. at 289 n.10. As the Ninth Circuit has advised, courts should be less inclined to find mootness where the “new policy . . . could be easily abandoned or altered in the future” and is not a “kind of permanent change.” Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013) (holding that the defendants “failed to meet their heavy burden to make it ‘absolutely clear that the allegedly wrongful behavior . . . could not reasonably be expected to recur’” (quoting Friends of the Earth, 528 U.S. at 189)). Moreover, Defendants’ acknowledged at the TRO hearing that
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this is an “ever-changing” and “fluid” situation, which provides little guarantee that the policies currently in place will remain in place going forward. E. Bond
Rule 65 of the Federal Rules of Civil Procedure directs that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Federal courts, however, have discretion as to the amount of security and may even dispense with the security requirement altogether. See Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (“‘Rule 65(c) invests the district court with discretion as to the amount of security required, if any.’” (quoting Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003))); Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005) (“‘The district court has discretion to dispense with the security requirement, or to request mere nominal security, where requiring security would effectively deny access to judicial review.’” (quoting Cal. ex rel. Van De Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985))). The Court has considered the relative hardships and the likelihood of success on the merits and concludes that to require any security in this case would be unjust. Thus, the Court waives the requirement of a bond.
TEMPORARY RESTRAINING ORDER IT IS ORDERED that Plaintiffs’ Motion for Temporary Restraining Order is GRANTED, and until this Court orders otherwise and except as otherwise expressly permitted by this Temporary Restraining Order, for the next 28 days, or until such time as the parties agree in writing to amend, supersede, or terminate this TRO: 1. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall not
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Case 3:18-cv-01098-SI Document 23 Filed 06/25/18 Page 20 of 22
proceed with any asylum interview or hearing, including any “credible fear” interview or screening, for such detainee, nor shall Defendants deport or remove any that detainee, until after that detainee has had a full and fair opportunity meaningfully to: (1) attend a “know your rights” training session conducted by Law Lab; and (2) if the detainee has requested representation from a Law Lab attorney or other legal counsel, consult with that attorney.
2. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall not transfer any such detainee outside of the District of Oregon without: (1) the consent of counsel for that detainee; or (2) prior leave of the Court.
3. Defendants shall provide Law Lab’s designated pro bono attorneys, or a detainee’s otherwise designated counsel of choice, with access to at least two of FDC Sheridan’s attorney visitation rooms for a minimum of six hours per day, seven days a week (i.e., including weekends), to perform group “know your rights” training as well as individualized interviews and consultations for the immigrant detainees at FDC Sheridan. In addition, Defendants shall make all reasonable efforts to ensure that the provided attorney visitation rooms are equipped with outside-line telephones that have speakerphone capability, to facilitate the attorney’s consultation with a detainee who does not speak English by calling a telephone-accessible interpreter or interpretation service. Attorney calls may not be monitored, after Defendants are satisfied that the telephone call involves an attorney.
4. Defendants shall install at least four telephone lines in each unit where immigrant detainees are held, with each line capable of placing free direct calls to legal service providers, including to Law Lab. Defendants shall permit all immigrant detainees housed at FDC Sheridan to access these telephones during facility “awake hours,” or between 8:00 a.m. and 8:00 p.m.,
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whichever is longer, each day of the week, including weekends. Attorney calls may not be monitored, after Defendants are satisfied that the telephone call involves an attorney.
5. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall provide timely advance written notice to the Office of the Federal Public Defender for the District of Oregon of any scheduled “credible fear” interview or screening or any other asylum interview at FDC Sheridan. In addition, after Defendants have been informed that a particular attorney or Law Lab represents a specific detainee, Defendants shall provide timely advance written notice to that attorney or Law Lab, as appropriate, of any scheduled “credible fear” interview or screening or any other asylum interview at FDC Sheridan for that detainee.
6. Defendants shall allow attorneys to use laptops in accordance with BOP security guidelines while performing legal services on behalf of any immigrant detainee at FDC Sheridan.
7. Defendants shall appropriately allocate ICE and BOP resources, including but not limited to personnel and equipment, sufficient to accommodate the expanded attorney visiting time and other requirements of this Order.
8. The Court will hold a status conference on Monday, July 2, 2018, at 10:00 a.m. in Courtroom 15B of the Mark O. Hatfield United States Courthouse in Portland, Oregon. Any party seeking to modify any provision in this Order is requested to file a motion to amend not later than Sunday, July 1, 2018, at 12 noon. Among other things, at the status conference, the Court intends to set a hearing date for Plaintiffs’ motion for preliminary injunction, as well as any other periodic status conference(s) that a party may propose.
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Case 3:18-cv-01098-SI Document 23 Filed 06/25/18 Page 22 of 22 CONCLUSION
Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF 2) is GRANTED as set forth in this Opinion and Order.
IT IS SO ORDERED. DATED this 25th day of June, 2018 at 11:50 a.m.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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 Case 3:18-cv-01098-SI Document 54 Filed 07/31/18 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

INNOVATION LAW LAB and LUIS JAVIER SANCHEZ GONZALEZ by XOCHITL RAMOS VALENCIA as next friend,
Plaintiffs-Petitioners,
v.
KIRSTJEN NIELSEN, Secretary, Department of Homeland Security; THOMAS HOMAN, Acting Director, Immigration and Customs Enforcement (ICE); ELIZABETH GODFREY, Acting Field Office Director, Seattle Field Office of ICE; JEFFERSON BEAUREGARD SESSIONS, III, U.S. Attorney General; HUGH J. HURWITZ, Acting Director, Federal Bureau of Prisons; JOSIAS SALAZAR, Warden, FDC Sheridan Medium Security Prison; in their official capacities only,
Defendants-Respondents.

Case No. 3:18-cv-01098-SI
OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION

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Keith Ketterling and Nadia H. Dahab, STOLL STOLL BERNE LOKTING & SHLACHTER PC, 209 SW Oak Street, Suite 500, Portland, OR 97204. Mathew W. dos Santos, Kelly K. Simon, and Leland Baxter-Neal, ACLU FOUNDATION OF OREGON, INC., P.O. Box 40585 Portland, OR 97240. Of Attorneys for Plaintiffs-Petitioners. Billy J. Williams, United States Attorney, and Dianne Schweiner, Assistant United States Attorney, UNITED STATES ATTORNEY’S OFFICE FOR THE DISTRICT OF OREGON, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Chad A. Readler, Acting Assistant Attorney General; William C. Peachey, Director; Jeffrey S. Robins, Assistant Director; Anthony D. Bianco, Senior Litigation Counsel, and Ubaid ul-Haq, Trial Attorney, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION, P.O. Box 868, Ben Franklin Station, Washington, D.C. 20044. Of Attorneys for Defendants-Respondents. Lisa Hay, Federal Public Defender; Stephen R. Sady, Chief Deputy Federal Defender, and Jessica Greenlick Snyder, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER’S OFFICE FOR THE DISTRICT OF OREGON, 101 SW Main Street, Suite 1700, Portland, OR 97204. Amica Curiae. Michael H. Simon, District Judge.
Plaintiffs, Innovation Law Law (“Law Lab”) and Luis Javier Sanchez Gonzalez, by Xochitl Ramos Valencia as next friend (“Sanchez Gonzalez”), bring this action challenging certain actions taken by Defendants related to immigrant detainees held at the Federal Detention Center in Sheridan, Oregon (“FDC Sheridan”). Defendants are officials at the United States Department of Homeland Security (“DHS”), United States Immigration and Customs Enforcement (“ICE”), the Federal Bureau of Prisons (“BOP”), and the United States Department of Justice. On June 25, 2018, the Court granted Plaintiffs’ motion for temporary restraining order (“TRO”), requiring Defendants to, among other things: (1) provide adequate attorney visitation and telephone access for immigrant detainees at FDC Sheridan; (2) permit Law Lab to conduct “know your rights” (“KYR”) training for detainees; and (3) not proceed with interviews, cases, or deportations until after a detainee has had a full and fair opportunity meaningfully to consult with an attorney and attend KYR training conducted by Law Lab. Plaintiffs now seek a preliminary injunction, which Defendants oppose. A hearing on Plaintiffs’ motion for
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preliminary injunction was held on July 30, 2018. For the reasons stated below, Plaintiffs’ motion for preliminary injunction is granted.
STANDARDS A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20 (rejecting the Ninth Circuit’s earlier rule that the mere “possibility” of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction). The Supreme Court’s decision in Winter, however, did not disturb the Ninth Circuit’s alternative “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id. at 1132. Thus, a temporary restraining order or a preliminary injunction may be granted “if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest.” M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing Cottrell). Finally, the already high standard for granting a preliminary injunction is further heightened when the type of injunction sought is a “mandatory injunction.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (noting that the burden is “doubly demanding” for a mandatory injunction). To obtain a mandatory injunction, a plaintiff must “establish that the law
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and facts clearly favor her position, not simply that she is likely to succeed.” Id. (emphasis in
original). As explained by the Ninth Circuit:
A preliminary injunction can take two forms. A prohibitory injunction prohibits a party from taking action and “preserve[s] the status quo pending a determination of the action on the merits.” Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988); see also Heckler v. Lopez, 463 U.S. 1328, 1333 (1983) (a prohibitory injunction “freezes the positions of the parties until the court can hear the case on the merits”). A mandatory injunction orders a responsible party to take action. A mandatory injunction goes well beyond simply maintaining the status quo [p]endente lite [and] is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases or where the injury complained of is capable of compensation in damages. The status quo ante litem referenced in Chalk means the last, uncontested status which preceded the pending controversy. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th
Cir. 2009) (quotation marks and citation omitted) (alterations in original).
FINDINGS OF FACT Based on the evidence presented by the parties, the Court finds the following facts are
more likely true than not:
1. On May 31, 2018, ICE transferred 124 immigrant men to FDC Sheridan for civil
detention. ECF 14-1 (Newman Decl.) ¶ 4. Approximately 121 immigrant detainees remain at that
location. Id. The detainees are housed in two units, at least one of which also houses inmates of
the federal prison. Id. ¶ 6. Many of the detainees have come to the United States to request
asylum. See, e.g., ECF 3 (First Manning Decl.) ¶ 26; ECF 6 (Garcia Decl.) ¶ 5. Before June 25,
2018, both social and legal visits at FDC Sheridan took place each Monday through Friday from
8:30 until 11:30 a.m. for inmates and from 12:00 until 3:00 p.m. for immigrant detainees. ECF
14-1 (Newman Decl.). ¶ 8. Defendants add that they intended to provide legal visitation for all
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pretrial/pre-sentence and civil detainees from 8:30 a.m. until 3:00 p.m, Monday through Friday, on a “first-come, first-served” basis by June 27, 2018. Id.
2. Plaintiff Law Lab is a nonprofit organization founded by its executive director Stephen W. Manning that advocates on behalf of noncitizens in the United States. Law Lab provides representation to noncitizens, in part, through its Oregon-based network of 125 private, pro bono attorneys who have been trained in asylum and removal defense. ECF 3 (First Manning Decl.) ¶ 2. Law Lab, through Manning, designed a pro bono representation project to facilitate access to, and legal representation of, the FDC Sheridan immigrant detainees. Manning and Law Lab have previously run two similar detention-based pro bono representation projects. ECF 49 (Second Manning Decl.) ¶ 2. One of those projects, the Dilley Pro Bono Project in South Texas, has represented more than 40,000 noncitizens since its inception in 2015. Id. ¶ 4. Manning, in his role with Law Lab, has also collaborated with the Southern Poverty Law Center to design the model for a large-scale noncitizen representation project, and directs the Centers for Excellence—a pro bono project that provides technical and strategic assistance to noncitizens and their attorneys. Id. 2.
3. Law Lab’s pro bono representation project seeks to provide a minimum of three attorney contacts with each detainee who requests legal representation, consisting of: (1) a KYR group orientation that provides an overview of immigration relief; (2) an individualized screening with a trained advocate; and (3) an individualized client conference. Law Lab has determined that at least three know-your-rights orientations of 60 to 90 minutes duration is needed adequately to inform all interested FDC Sheridan immigrant detainees of their rights. ECF 3 (First Manning Decl.) ¶ 8. After beginning the pro bono project, approximately 900 community members, including immigration specialist attorneys, civil rights attorneys, and other
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legal advocates have offered to provide pr bono legal services through Law Lab. ECF 49 (Second Manning Decl.) ¶ 9. Law Lab perceives that its ability to provide representation to the immigrant detainees is limited only by the physical and temporal restrictions in place at FDC Sheridan. Id.
4. Between June 8 and June 21, 2018, Law Lab’s pro bono attorneys requested, but repeatedly were denied, access to the detained individuals for the purposes of delivering legal services. ECF 23 at 6-9; ECF 3 (First Manning Decl.) ¶ 12-17; 21-22; ECF 8 (Smith Decl.) ¶ 210; ECF 9 (Strautman Decl.) ¶ 3-8; ECF 7 (Philbaum Decl.) ¶ 5-10; ECF 5 (Baxter-Neal Decl.) ¶ 5; ECF 4 (Sinlapasai Decl.) ¶ 12. In that time period, approximately 50 detainees had requested representation from Law Lab. ECF 3 (First Manning Decl.) ¶ 25-27. Only one attorney had met with a client, however, and that client was thereafter transferred from FDC Sheridan to the North West Detention Center in Tacoma,
5. Plaintiff Sanchez Gonzalez is currently detained at FDC Sheridan. He is unable to file a complaint on his own due to lack of access to legal counsel. His domestic partner of ten years, Xochitl Ramos Valencia, requested pro bono legal representation from Law Lab on his behalf. Before June 25, 2018, Law Lab attorneys twice attempted to meet with Sanchez Gonzalez but were denied access both times. ECF 3 (First Manning Decl.) ¶ 33-34.
6. On June 22, 2018, Plaintiffs filed a complaint and a motion for TRO against Defendants, alleging violations of the First and Fifth Amendments of the U.S. Constitution, the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act (“APA”). At the time Plaintiffs filed their complaint, removal proceedings for the 121 immigrant detainees at FDC Sheridan had not yet commenced. Further, none of the immigrant detainees at FDC Sheridan had been served with an administrative summons known as a “Notice to Appear,”
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which is how a removal proceeding typically begins. ECF 27 (TRO Hearing Transcript) 5:20-25.
Before June 25, 2018, “Credible fear” interviews for immigrant detainees seeking asylum were
scheduled to begin at FDC Sheridan on June 28, 2018. ECF 14-2 (Heaton Decl.) ¶ 8.
7. On June 25, 2018, the Court held a hearing on Plaintiffs’ motion for TRO. The
Court granted the motion and entered the following order:
1. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall not proceed with any asylum interview or hearing, including any “credible fear” interview or screening, for such detainee, nor shall Defendants deport or remove any that detainee, until after that detainee has had a full and fair opportunity meaningfully to: (1) attend a “know your rights” training session conducted by Law Lab; and (2) if the detainee has requested representation from a Law Lab attorney or other legal counsel, consult with that attorney.
2. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall not transfer any such detainee outside of the District of Oregon without: (1) the consent of counsel for that detainee; or (2) prior leave of the Court.
3. Defendants shall provide Law Lab’s designated pro bono attorneys, or a detainee’s otherwise designated counsel of choice, with access to at least two of FDC Sheridan’s attorney visitation rooms for a minimum of six hours per day, seven days a week (i.e., including weekends), to perform group “know your rights” training as well as individualized interviews and consultations for the immigrant detainees at FDC Sheridan. In addition, Defendants shall make all reasonable efforts to ensure that the provided attorney visitation rooms are equipped with outside-line telephones that have speakerphone capability, to facilitate the attorney’s consultation with a detainee who does not speak English by calling a telephone-accessible interpreter or interpretation service. Attorney calls may not be monitored, after Defendants are satisfied that the telephone call involves an attorney.
4. Defendants shall install at least four telephone lines in each unit where immigrant detainees are held, with each line capable of placing free direct calls to legal service providers, including to Law Lab. Defendants shall permit all immigrant detainees housed at FDC Sheridan to access these telephones during facility “awake
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hours,” or between 8:00 a.m. and 8:00 p.m., whichever is longer, each day of the week, including weekends. Attorney calls may not be monitored, after Defendants are satisfied that the telephone call involves an attorney.
5. For all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order, Defendants shall provide timely advance written notice to the Office of the Federal Public Defender for the District of Oregon of any scheduled “credible fear” interview or screening or any other asylum interview at FDC Sheridan. In addition, after Defendants have been informed that a particular attorney or Law Lab represents a specific detainee, Defendants shall provide timely advance written notice to that attorney or Law Lab, as appropriate, of any scheduled “credible fear” interview or screening or any other asylum interview at FDC Sheridan for that detainee.
6. Defendants shall allow attorneys to use laptops in accordance with BOP security guidelines while performing legal services on behalf of any immigrant detainee at FDC Sheridan.
7. Defendants shall appropriately allocate ICE and BOP resources, including but not limited to personnel and equipment, sufficient to accommodate the expanded attorney visiting time and other requirements of this Order.
ECF 23 at 19-21.
8. At subsequent status conferences, Plaintiffs and Defendants have generally
reported good faith efforts to comply with the TRO and cooperate with one another. After the
Court issued the TRO, Law Lab provided KYR presentations to 114 immigrant detainees,
completed 100 initial client screenings, 95 client consultations, and 68 ancillary legal
conferences.
9. As of July 30, 2018, Law Lab represents 80 detainees at FDC Sheridan, each of
whom was, at the time of their detention, subject to expedited removal under 8 U.S.C.
§ 1225(b)(1). Of Law Lab’s 80 detainee clients, 79 have completed credible fear screening
interviews under 8 U.S.C. § 1225(b)(1)(B) and one has withdrawn his screening request at the
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interview. Of the 79 detainee clients who have completed credible fear interviews, 74 have received determinations. All 74 detainee clients of Law Lab who have received determinations, including Plaintiff Gonzalez, have been determined by an asylum officer to have a credible or reasonable fear of persecution. The determinations for the other five detainee clients remain outstanding.
10. Law Lab continues to provide representation to its client detainees who have received positive fear determinations to assist those detainees with their petitions for release pending adjudication of their asylum applications. Plaintiffs now seek a preliminary injunction limited to issues affecting the ability of Law Lab attorneys to continue to deliver legal services to its client detainees at FDC Sheridan. Plaintiffs no longer seek an order enjoining Defendants from moving forward with removal proceedings or asylum hearings.
CONCLUSIONS OF LAW A. Subject Matter Jurisdiction
Defendants argue that the INA, as amended, removes subject matter jurisdiction from federal district courts to provide relief for all detainees, whether they are subject to expedited removal under 8 U.S.C. § 1225(b)(1) or other formal immigration proceedings before an immigration judge. The jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(A) and 8 U.S.C. § 1252(e) apply only to detainees subject to expedited removal proceeding under § 1225(b)(1). Although all of Law Lab’s clients were subject to expedited removal proceedings at the time of their detention, all but one of their clients has since completed an credible fear interview as provided under § 1225(b)(1)(B). Five of those detainee clients’ credible fear determinations remain outstanding, but of the 74 determinations that have been made, every detainee client has received a positive fear determination. Thus, these 74 detainees are now permitted to pursue their asylum application under 8 U.S.C. § 1158 before an immigration judge
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and, if removal proceedings are commenced, will be subject to formal, rather than expedited,
removal proceedings under 8 U.S.C. § 1229a before an immigration judge. At this stage in the
litigation, therefore, essentially all of the detainee clients are no longer subject to the provisions
of § 1225(b)(1). The jurisdiction-stripping provisions of § 1252(a)(2)(A) and § 1252(e) are thus
inapplicable.1
Defendants argue that the detainees who are no longer subject to expedited removal
nevertheless bring claims that arise from their removal proceedings, and that such claims are
therefore barred by § 1252(b)(9) and (g). Under 8 U.S.C. § 1252(b)(9), “claims that ‘arise from’
removal proceedings . . . must be channeled through the [petition for review] process.” J.E.F.M.
1 If any of the five detainee clients whose fear determinations remain outstanding are found to lack credible or reasonable fear of prosecution, Defendants may file a motion for reconsideration. The Court notes, however, that § 1252(a)(2)(A) and 8 U.S.C. § 1252(e) likely do not strip the Court of jurisdiction over Plaintiffs’ request for relief even if some detainee clients remain subject to the provisions of § 1251(b)(1). Plaintiffs do not challenge any determination made pursuant to § 1225(b)(1), nor Defendants’ decision to invoke that section’s provisions. Thus, § 1252(a)(2)(A)(i)-(iii), which bars courts from reviewing such decisions and determinations, has no effect on jurisdiction in this case.
Similarly, § 1252(a)(2)(A)(iv) does not bar review of this lawsuit because Defendants do not challenge “procedures and policies adopted” to implement the provisions of § 1251(b)(1). In the administrative law context, “procedures” and “policies” generally refer to those internal regulations to which an agency may be bound. See Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”); see also Alcaraz v. I.N.S., 384 F.3d at 1150, 1162 (9th Cir. 2004) (noting that certain memoranda issued by an agency may not “establish a policy to which the agency was bound”).
In this lawsuit, Plaintiffs challenge only specific actions at FDC Sheridan that conflict with the very procedures and policies that Defendants—specifically, ICE—have adopted. ICE’s operations manual “Performance-Based National Detention Standards 2011” (“PBNDS 2011”) guarantees to detainees a certain degree of access to immigration attorneys. Plaintiffs allege that Defendants have failed to meet these adopted “policies and procedures” in violation of 5 U.S.C. § 706(2)(A). Thus, rather than challenge “procedures and policies” that Defendants have adopted to implement § 1225(b)(1), Plaintiffs seek to enforce the adopted procedures and policies. For the same reason, § 1252(e)(3), which requires that challenges to agency regulations, written policies, and written procedures be heard in the U.S. District Court for the District of Columbia, does not affect the Court’s jurisdiction over this claim. Plaintiff’s claims raise no such challenge.
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v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016). In addition, when claims are “inextricably linked” to removal proceedings, they may not be heard by federal district courts. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012). Such claims may be raised only before a federal circuit court on a petition for review (“PFR”) of a final removal order. J.E.F.M., 837 F.3d at 1032. Under 8 U.S.C. § 1252(g), federal courts also lack jurisdiction to hear challenges to the Attorney General’s “decision or action to commence [removal] proceedings, adjudicate cases, or execute removal orders.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999). “[C]laims that are independent of or collateral to the removal process,” however, are excluded from the PFR process and, thus, may be heard in federal district courts. Id.; see also Nadarajah v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006) (holding that the district court had jurisdiction over a habeas corpus petition when the petition did not involve a final order of removal).
In J.E.F.M., the Ninth Circuit held that the district court lacked subject matter jurisdiction over immigrant children’s claims to court-appointed counsel because such claims arose from removal proceedings. 837 F.3d at 1033. The Ninth Circuit noted that such claims are “bound up in and an inextricable part of the administrative process.” Id. The court also observed that the jurisdiction-stripping provisions of the INA were intended to “channel all claims arising from removal proceedings, including right-to-counsel claims, to the federal courts of appeals and bypass the district courts.” Id.
In the pending case, however, Plaintiffs do not challenge the detainees’ removal proceedings because formal removal proceedings under 8 U.S.C. § 1229a have not yet commenced. See ECF 27 (TRO Hearing Transcript) 5:20-25; 33:8-10. Rather, Plaintiffs challenge ICE and BOP actions relating to the conditions of the civil immigrant detainees’ pre-
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hearing confinement. J.E.F.M. did not address whether district courts have jurisdiction over constitutional claims by immigrant detainees whose removal proceedings have not yet commenced. In fact, the district court in J.E.F.M. had already dismissed all parties “against whom removal proceedings have not yet been initiated,” explaining that their claims for courtappointed counsel in removal proceedings were not ripe because their “removal proceedings may never be commenced.” Id. at 1030. The Ninth Circuit’s ruling in J.E.F.M., therefore, does not preclude this Court from hearing claims from civil immigrant detainees whose removal proceedings have not yet been initiated.
Moreover, in the recent Supreme Court decision in Jennings v. Rodriquez, five members of the Court agreed that 8 U.S.C. § 1252(b)(9) does not deprive a district court of jurisdiction to hear a challenge to an alien’s indefinite detention, even when the purpose of the detention is to lead ultimately to removal proceedings. 138 S. Ct. 830, 840 (2018) (opinion of the Court); see also 138 S. Ct. at 874 ( Breyer, J. dissenting). Chief Justice Roberts and Justice Kennedy joined Part II of the opinion of the Court in Jennings, in which they declined to interpret the phrase “arising from removal proceedings” in an “extreme way” that would make certain circumstances of pre-hearing detention “effective unreviewable.” Id. The justices concluded that when immigrant detainees are not challenging a removal order, or the decision to detain them, or “any part of the process by which their removability will be determined[,] . . . § 1252(b)(9) does not present a jurisdictional bar.” Id. at 841. Justice Breyer’s dissent in Jennings, joined by Justices Ginsburg and Sotomayor, concluded that § 1252(b)(9) poses a jurisdictional bar only to challenges to orders of removal. Id. at 874 (Breyer, J. dissenting). Five justices, therefore, agree that the mere fact that a noncitizen has been detained, even if that detention is an “action taken
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‘to remove an alien,’” id. at 841 n. 3, does not mean that § 1252(b)(9) presents a jurisdictional bar to the all claims arising from the circumstances of that detention.2
The Jennings decision relied in part upon the earlier Supreme Court decision Reno v. American-Arab Anti-Discrimination Committee, in which the Court had given a similarly limiting interpretation to § 1252(g). 525 U.S. 471, 482 (1999). In American-Arab, the Court held that § 1252(g) does not strip federal courts of jurisdiction over any claims other than those that challenged the three listed actions in the statute: the decision to commence removal proceedings, adjudicate cases, or execute removal orders. Id. at 482-83. In the pending case, Plaintiffs do not challenge any such decision or action. Indeed, they cannot, as no removal proceeding has yet begun and no removal decision has yet been made. Defendants argue that the very fact of the detainees’ detention means that removal proceedings have been initiated, and thus claims arising from the circumstances of the detainees’ confinement arise from the decision to initiate removal proceedings. The Supreme Court, however, rejected this argument in Jennings, writing “[w]e will assume for the sake of argument that detention is an action taken ‘to remove an alien’ . . . [but t]he question is not whether detention is an action taken to remove an alien but whether the legal questions in this case arise from such an action.” Jennings, 128 S.Ct.at 841 n. 3. As with the legal question regarding an alien’s indefinite detention in Jennings, the legal questions regarding detainees’ access to their retained counsel in this case are “too remote” from removal proceedings to fall within the scope of § 1252(b)(9) or (g).
2 Justice Kagan took no part in the decision and Justice Alito did not join Part II of the opinion of the Court. Justice Thomas wrote in a concurring opinion, joined by Justice Gorsuch, that § 1252(b)(9) posed a jurisdictional bar to the respondents’ claim of indefinite detention.
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B. Standing Defendant argues that the requested preliminary injunction is overbroad because neither
Gonzalez nor Law Lab has standing to litigate on behalf of other detainees at FDC Sheridan who are not parties to this lawsuit. To bring an action on the behalf of third parties:
[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Powers v. Ohio, 499 U.S. 400, 410-11 (1991). Law Lab meets these requirements. Law Lab’s stated mission is to advocate on behalf of and provide legal representation to noncitizens in the United States. In furtherance of this mission, they have undertaken considerable effort to provide pro bono legal representation to the FDC Sheridan immigrant detainees. The alleged policies, procedures, and actions at FDC Sheridan, however, have prevented Law Lab from fulfilling its mission of advocating on behalf of noncitizens, and render futile its efforts to coordinate pro bono legal representation. The challenged policies and procedures also have resulted in the diversion of Law Lab resources, as attorneys have repeatedly traveled to FDC Sheridan only to be turned away, and have established a toll-free hotline for detainees that detainees have not been able to access or use. Such facts sufficiently establish that Law Lab has suffered injury in fact. Plaintiffs also have demonstrated that Law Lab has a sufficiently close relationship with the detainees to advocate on their behalf. Plaintiffs have submitted affidavits indicating that at least 50 detainees at FDC Sheridan have requested representation from Law Lab. The Federal Public Defender (“FPD”), as amica curiae, also states that at least 64 detainees have communicated their requests for immigration representation, which the FPD cannot provide, to FPD staff attorneys. ECF 18. These numerous requests from immigrant civil detainees and FDC
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Sheridan sufficiently demonstrate that Law Lab has a close relation to the detainees, even if
Defendants’ actions have prevented Law Lab attorneys from formalizing their legal relationship
with many of those detainees. Further the circumstances of the detainees’ confinement—
specifically, the lack of access to immigration lawyers that forms the foundation of this case—
poses a significant hindrance to the detainees’ ability to advocate on their own behalf, as do the
foreign language barriers faced by many of the civil detainees. Finally, counsel for Plaintiff Law
Lab states, and counsel for Defendants do not dispute, that Law Lab currently represents 80 of
the detainees at FDC Sheridan. As Law Lab has explained, it seeks preliminary injunctive relief only on behalf of itself and its 80 detainee clients.3
C. Analysis of Motion for Preliminary Injunction 1. Likelihood of Success on the Merits Plaintiffs have shown a likelihood of success on the merits of their first claim, which
alleges a violation of the APA, and their third claim, which alleges a violation of the Due Process
Clause of the Fifth Amendment. Accordingly, the Court need not decide at this stage of the
3 Plaintiffs originally requested preliminary relief on behalf of “all immigrant detainees currently housed at FDC Sheridan or who may become housed at FDC Sheridan during the pendency of this Order.” ECF 48 at 21, 22. This request goes too far. First, Plaintiffs do not have standing to request an order affecting all current or future detainees at FDC Sheridan because some of those detainees have retained counsel not associated with Law Lab. Plaintiffs have standing to request relief that applies only to those immigrant detainees at FDC Sheridan who have either requested pro bono representation and are not already represented, or who are already represented by a Law Lab attorney. Second, for reasons explained in the earlier section, this Court lacks jurisdiction to prevent the transfer or removal of immigrant detainees who have been ordered removed under 8 U.S.C. § 1225(b)(1)(A)(i) or (B)(iii). Thus, Plaintiffs cannot obtain preliminary relief that restricts Defendants from transferring or removing immigrant detainees who are subject to expedited removal and have not requested asylum, or those who have requested asylum but have been found not to have a credible fear of persecution. Plaintiffs, however, have limited their requested relief, and subject to these modifications and clarifications, Plaintiffs have established that they have standing in this case sufficient to obtain the modified relief that they seek.
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litigation whether Plaintiffs have shown a likelihood of success on the merits of their other constitutional and statutory claims.
a. Administrative Procedure Act Plaintiffs have demonstrated a likelihood of success on the merits of their first claim, which alleges a violation of the APA, 5 U.S.C. § 706(2)(A). Under the APA, reviewing courts must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary [or] capricious.” 5 U.S.C. § 706(2)(A). It is arbitrary and capricious for agencies to depart from prior policy without explanation or “simply disregard rules that are still on the books.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). The principle that agencies must adhere to their own rules extends to both formal agency regulations and informal internal agency rules. Alcaraz v. I.N.S., 384 F.3d 1150, 1162 (9th Cir. 2004). In their opposition to Plaintiffs’ motion for preliminary injunction, Defendants make no argument that Plaintiffs’ APA claim is unlikely to succeed on the merits. ICE’s operations manual “PBNDS 2011” provides that “[d]etainees shall be able to make free calls to the ICE/ERO-provided list of free legal service providers for the purpose of obtaining initial legal representation.” PBNDS 2011 5.6.II.7. The manual further provides that “[d]etainees shall be able to communicate and correspond with representatives from [authorized] legal groups that make presentations at the facilities.” Id. at 6.4.II.5. Presentation on detainees’ rights and U.S. immigration law and procedures are “encourage[d].” Id. at 6.4.I. ICE’s detention standards also require that facilities “permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days . . . and a minimum of four hours per day on weekends and holidays.” Id. at 5.7.J.2. The Bureau of Prisons’ standards also require attorney visits to be available each day of the week for pretrial inmates, which includes “deportable aliens.” BOP Policy re Pretrial Inmates, 7331.04.
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Plaintiffs have presented substantial evidence that immigrant detainees at FDC Sheridan are not able to make free calls to legal service providers and have been denied access to knowyour-rights training, despite the Law Lab seeking and obtaining approval for such trainings from the relevant ICE authorities. Plaintiffs have also presented substantial evidence that detainees at FDC Sheridan are permitted legal visitation on a far more restricted basis than both BOP and ICE standards require. FDC Sheridan officials instructed attorneys with the Law Lab that legal visitation was available only on Tuesday, Wednesdays, and Fridays, from 12:30-3:00 p.m. Officials at FDC Sheridan turned away attorneys attempting to meet with detainees at FDC Sheridan on other days of the week. Such evidence demonstrates compellingly that both BOP and ICE are violating the APA by “simply disregard[ing] rules that are still on the books.”
b. Due Process Clause The Due Process Clause of the Fifth Amendment guarantees to aliens the right to counsel at their own expense for immigration hearings. See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (“Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are subject to removal hearings.”) (emphasis added); Colindres-Aguilar v. INS, 819 F.2d 259, 261 n.1 (9th Cir. 1987) (“Petitioner’s right to counsel . . . is a right protected by the fifth amendment due process requirement of a full and fair hearing.”). The INA also guarantees noncitizens the right to counsel of their choosing, at their own expense, in removal proceedings. 8 U.S.C. § 1362; 8 U.S.C. § 1229a(b)(4)(A). Similarly, the INA provides that those subject to expedited removal who are eligible for credible fear interviews “may consult with a person or persons of the alien’s choosing prior to the interview or any review thereof.” 8 U.S.C. § 1225(b)(1)(B)(iv). The Ninth Circuit has described the INA provisions guaranteeing counsel as making explicit the Fifth Amendment due process
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guarantee to aliens’ counsel of their choice at their own expense in immigration proceedings. Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985).
The right to counsel in immigration proceedings, including asylum proceedings, requires that an alien be provided “reasonable time to locate counsel and permit counsel to prepare for the hearing.” Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005); see also 8 U.S.C. § 1158(d)(4) (“At the time of filing an application for asylum, the Attorney General shall . . . advise the alien of the privilege of being represented by counsel”). The Ninth Circuit has upheld mandatory injunctions designed to remedy government practices when the “cumulative effect” of such practices “was to prevent aliens from contacting counsel and receiving any legal advice.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 565 (9th Cir. 1990). Government practices that effectively deny access to counsel include the detention of aliens far from where potential or existing counsel was located, limited attorney visitation hours, and the processing of aliens at locations where telephones were not available to them. Id. at 565-67.
Plaintiffs have presented sufficient evidence of government practices at FDC Sheridan that are nearly identical to the enjoined practices at issue in Orantes-Hernandez. Attorneys associated with Law Lab’s immigrant detainee representation project have been repeatedly denied access to FDC Sheridan either to perform KYR training or to meet with clients who have retained their services through friends and family. Officials at FDC Sheridan have given conflicting and nearly-impossible-to-follow instructions on the availability of legal visitation hours. See also Nunez v. Bolden, 537 F. Supp. 578, 582 (S.D. Tex. 1982) (holding that a detention facility regulation prohibiting attorney visits after 3:30 p.m. was unreasonably restrictive, given the remoteness of the detention facility). As with the enjoined practices at issue
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in Orantes-Hernandez, the BOP and ICE attorney visitation policies and practices have the “cumulative effect” of denying detainees constitutionally sufficient access to legal assistance.4
Plaintiffs have demonstrated not only a likelihood of success on the merits of their Fifth Amendment due process claim, as required for prohibitory injunctions, but that “the law and facts clearly favor [their] position,” as required to obtain a mandatory injunction. Garcia, 786 F.3d at 740 (emphasis added). Moreover, at the very least, Plaintiffs have presented serious questions going to the merits of their Due Process claim which, so long as the equities tip sharply in Plaintiffs’ favor, which they do, is sufficient to satisfy this component of the preliminary injunction analysis in the Ninth Circuit. See Cottrell, 632 F.3d at 1131-32.
2. Irreparable Harm, Equities, and Public Interest Plaintiffs also have made a compelling demonstration that they are likely to suffer immediate irreparable harm in the absence of emergency relief. The Court has concluded that Defendants are likely violating the immigrant detainees’ constitutional rights, and such violations “unquestionably constitute[] irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The harms likely to arise from the denial of access to legal representation in the context of asylum applications are particularly concrete and irreparable. The Ninth Circuit has repeatedly emphasized the complexity of immigration laws and procedures and the difficulty of navigating immigration proceedings without a lawyer. See, e.g., Baltazar-Alcazar v. I.N.S., 386 F.3d 940, 948 (9th Cir. 2004). The denial of access to legal assistance is likely to lead to the denial of asylum and ultimately to the deportation of detainees with meritorious asylum claims. Early 4 Defendants urge the Court to apply the three-part balancing test of Matthews v. Eldridge, 424 U.S. 319 (1976), in reviewing Plaintiff’s Due Process claim. Application of such a test is unnecessary, however, as binding Ninth Circuit case law has already made clear that immigrant detainees have a due process right to meaningful access to counsel. The Court thus need not conduct an analysis of the sufficiency of process anew. If Plaintiffs were denied meaningful access to counsel, such a deprivation was insufficient process as a matter of law.
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representation is particularly important in asylum claims, given the complexity of treaty-based human rights statutes and the serious harm—including persecution, torture, and death—that may result if asylum is improperly denied. See Arizona v. United States, 567 U.S. 387, 395 (2012) (“Federal governance of immigration and alien status is extensive and complex.”); Sessions v. Dimaya, 138 S. Ct. 1204, 1213 (2018) (noting in the void-for-vagueness context the “grave nature of deportation,” a “drastic measure” often amounting to lifelong “banishment or exile”).
Defendants, however, argue that issuance of this preliminary injunction will disrupt the prompt execution of the expedited removal process, in which the government and the public have a strong interest. Nothing in Plaintiffs’ requested relief, however, prevents Defendants from carrying out the provisions of 8 U.S.C. § 1225(b)(1) as the statute contemplates. Any detainee at FDC Sheridan who is subject to expedited removal who does not express an intent to apply for asylum may be removed “without further hearing or review” under § 1225(b)(1)(A)(i). Similarly, any detainee at FDC Sheridan who requests asylum, but is found not to have a credible fear of persecution following his screening interview may be removed “without further hearing or review” under § 1224(b)(1)(B)(iii), subject to the limitations of subclauses (I)-(IV) of that section. The requested relief merely ensures that those detainees with a right to counsel who have retained or requested counsel through Law Lab are ensured the same degree of access to that counsel that Defendants’ own policies guarantee in PBNDS 2011. The preliminary relief, as ordered by the Court creates no loophole and imposes no new impediments to the expeditious functioning of 8 U.S.C. § 1225(b)(1).
The equities in this case also tip sharply in favor of emergency relief for the Plaintiffs. They request only that BOP and ICE actually provide the same degree of access to legal assistance that their own regulations purport to guarantee. Thus, Defendants do not persuasively
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show that the requested preliminary relief will pose an undue burden on Defendants’ time, resources, or personnel. Moreover, any such burden on Defendants is more than justified by the need to ensure the fulfillment of Plaintiffs’ constitutional rights and to prevent the improper denial of meritorious asylum applications. Finally, it is always in the public interest to prevent the violation of a party’s constitutional rights. D. Bond
Rule 65 of the Federal Rules of Civil Procedure directs that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Federal courts, however, have discretion as to the amount of security and may even dispense with the security requirement altogether. See Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (“‘Rule 65(c) invests the district court with discretion as to the amount of security required, if any.’” (quoting Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003))); Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005) (“‘The district court has discretion to dispense with the security requirement, or to request mere nominal security, where requiring security would effectively deny access to judicial review.’” (quoting Cal. ex rel. Van De Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985))). The Court has considered the relative hardships and the likelihood of success on the merits and concludes that to require any security in this case would be unjust. Thus, the Court waives the requirement of a bond.
PRELIMINARY INJUNCTION IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction is GRANTED, and until this Court orders otherwise and except as otherwise expressly permitted by this Preliminary
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Injunction, or until such time as the parties agree in writing to amend, supersede, or terminate this Preliminary Injunction:
1. Defendants shall not transfer any detainee represented by Law Lab outside of the District of Oregon without either (1) the consent of counsel for that detainee or (2) prior leave of the Court.
2. Defendants shall provide Law Lab’s designated pro bono attorneys with access to at least two of FDC Sheridan’s attorney visitation rooms for a minimum of six hours per day, seven days a week (i.e., including weekends), to conduct individualized interviews and consultations for all immigrant detainees at FDC Sheridan who have retained pro bono representation through Law Lab. In addition, Defendants shall make all reasonable efforts to ensure that the provided attorney visitation rooms are equipped with outside-line telephones that have speakerphone capability, adequate to facilitate the attorney’s consultation with a detainee who does not speak English by calling a telephone-accessible interpreter or interpretation service. Attorney calls may not be monitored after Defendants are satisfied that the telephone call involves an attorney.
3. Defendants shall continue to make available to Law Lab’s client detainees at least two telephone lines in each unit where immigrant detainees are held, with each line capable of placing free direct calls to legal service providers, including to Law Lab. Defendants shall permit all Law Lab client detainees housed at FDC Sheridan to access these telephones during facility “awake hours,” or between 8:00 a.m. and 8:00 p.m., whichever is longer, each day of the week, including weekends. Attorney calls may not be monitored, after Defendants are satisfied that the telephone call involves an attorney.
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4. For all detainees at FDC Sheridan represented by Law Lab, Defendants shall provide timely advance written notice to the detainees’ counsel of record of any scheduled credible or reasonable fear interview or screening or any other immigration-related interview at FDC Sheridan.
5. The Court will hold periodic status conferences to monitor compliance with this Order and to determine whether any preliminary relief ordered should be modified or discontinued. The next status conference will be on Monday, August 13, 2018, at 10:00 a.m. Pacific time in Courtroom 15B of the Mark O. Hatfield United States Courthouse in Portland, Oregon. Any party seeking to modify any provision in this Order is requested to file such a motion not later than two business days before the next conference, unless an earlier decision is needed.
CONCLUSION Plaintiff’s Motion for Preliminary Injunction (ECF 48) is GRANTED as set forth in this Opinion and Order. IT IS SO ORDERED. DATED this 31st day of July, 2018.
/s/ Michael H. Simon Michael H. Simon United States District Judge
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